Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Choi v NSW Ombudsman [2022] NSWCATAD 292 Hearing dates: 18 January 2022, 31January 2022 and 3 June 2022 Date of orders: 29 August 2022 Decision date: 29 August 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: (1) The application to appoint a McKenzie Friend for the applicant is refused.
(2) The respondent’s decision dated 3 August 2018 is valid and is an administratively reviewable decision.
(3) The respondent is to provide the applicant with copies of the attachments to document no 49 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.
(4) The respondent is to provide the applicant with a copy of document no 81 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.
(5) The remainder of the documents listed in the respondent’s Further Amended Confidential Schedule of Documents dated 16 February 2022, including document no 49, are “excluded documents” under cl 2 of sch 2 of the GIPA Act.
(6) The respondent’s decision dated 3 August 2018 is otherwise affirmed.
Catchwords: ADMINISTRATIVE LAW – administrative review – Government information – Procedural fairness – Application to appoint a McKenzie Friend – Validity of an instrument of delegation – Jurisdiction – Whether the respondent has power to review the respondent’s decision – Excluded documents under cl 2 sch 2 of the GIPA Act
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Court Security Act 2005 (NSW)
Government Information (Information Commissioner) Act 2009 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Interpretation Act 1987 (NSW)
Legal Profession Uniform Law (NSW) (NSW)
Ombudsman Act 1974 (NSW)
Cases Cited: CEU v Ombudsman [2017] NSWCATAD 267
Capilano Honey Ltd v Dowling [2018] NSWSC 876
CEU v University of Technology Sydney [2017] NSWCATAD 323
Department of Education v Zonnevylle [2020] NSWCATAD 96
Goldfish Potts Point Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 13
McEwan v Port Stephens Council [2021] NSWCATAD 110
McEwan v Port Stephens Council [2022] NSWCATAD 148
McEwan v Port Stephens Council [2018] NSWCATAP 211
McEwan v Port Stephens Council [2017] NSWCATAD 269
McGuirk v Vice-Chancellor, University of New South Wales [2009] NSWADTAP 43
McKenzie v McKenzie [1970] 3 WLR 472; [1970] WLR 472; 3 WLR 472; [1970] 3 All ER 1034; [1971] LRP 33; (1971) 1971 P 33
Pincevic v Nicholas Panos t/as N Panos and Associates [2013] NSWDC 188
REGINA v Michael Kanaan [2003] NSWCCA 190
Webb v Port Stephens Council [2019] NSWCATAD 47
Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38
Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274
Texts Cited: None cited
Category:
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- Case
- [2022] NSWCATAD 292
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed by the court were whether the respondent had the authority to review the decision, the validity of the instrument of delegation, and the proper application of procedural fairness principles. Additionally, the court considered whether the respondent had the jurisdiction to exclude certain documents from disclosure under the GIPA Act, specifically those listed in the respondent's Further Amended Confidential Schedule of Documents. The applicant also sought clarification on the meaning and application of the term "excluded documents" under clause 2 of schedule 2 of the GIPA Act.
The court found that the respondent's decision dated 3 August 2018 was valid and was an administratively reviewable decision. The court also upheld the respondent's power to review the decision and the validity of the instrument of delegation. The application to appoint a McKenzie Friend was refused, as the court found it was not necessary in the circumstances of the case. The court directed the respondent to provide the applicant with specific documents within a set timeframe. Furthermore, the court concluded that certain documents listed in the respondent’s Further Amended Confidential Schedule of Documents were properly classified as "excluded documents" under the GIPA Act. The court affirmed the respondent's decision in all other respects.
The final orders of the court included the refusal of the McKenzie Friend application, the affirmation of the respondent’s decision as valid, the requirement for the respondent to provide certain documents to the applicant, and the classification of other documents as "excluded documents" under the GIPA Act. The respondent's decision dated 3 August 2018 was otherwise affirmed.
Orders
Orders of the court
(1) The application to appoint a McKenzie Friend for the applicant is refused.
(2) The respondent’s decision dated 3 August 2018 is valid and is an administratively reviewable decision.
(3) The respondent is to provide the applicant with copies of the attachments to document no 49 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.
(4) The respondent is to provide the applicant with a copy of document no 81 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.
(5) The remainder of the documents listed in the respondent’s Further Amended Confidential Schedule of Documents dated 16 February 2022, including document no 49, are “excluded documents” under cl 2 of sch 2 of the GIPA Act.
(6) The respondent’s decision dated 3 August 2018 is otherwise affirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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