Director General, Department of Commerce v Cianfrano

[2008] NSWADTAP 56

Appeal Panel - Internal

CITATION:

Director General, Department of Commerce v Cianfrano and Anor [2008] NSWADTAP 56

PARTIES:

APPELLANT
Director General, Department of Commerce

1ST RESPONDENT
Robert Cianfrano

2ND RESPONDENT
Sydney Markets Ltd

FILE NUMBER:

069042

HEARING DATES:

24 July 2008

SUBMISSIONS CLOSED:

24 July 2008

 
DATE OF DECISION: 

24 July 2008

BEFORE:

Hennessy N - Magistrate (Deputy President); Handley R - Deputy President; Bolt M - Non Judicial Member

DECISION UNDER APPEAL:

Cianfrano v Director General Department of Commerce and anor (No. 2) [2006] NSWADT 195

FILE NUMBER UNDER APPEAL:

043384

DATE OF DECISION UNDER APPEAL:

06/27/2006

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997

CASES CITED:

Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282
McGuirk v University of New South Wales [2008] NSWADTAP 41

REPRESENTATION:

APPELLANT
J McDonnell, solicitor

1ST RESPONDENT
C Saggers, agent

2ND RESPONDENT
No appearance

ORDERS:

The Tribunal's order that “First Respondent’s objection to jurisdiction dismissed” is set asideIn substitution for that order the following orders are made:
1. The First Respondent’s objection to jurisdiction is upheld
2. The Applicant's application to the Tribunal is dismissed.

1 Mr Cianfrano has asked the Appeal Panel to provide written reasons for a decision it made on 24 July 2008. Below we set out those reasons.

2 The history of this matter is that Mr Cianfrano applied to the Department of Commerce for access to documents relating to the sale of the Flemington Markets to a private company known as Sydney Markets Limited. The Department gave Mr Cianfrano access to a large number of documents but refused access to many others claiming various exemptions under the Freedom of Information Act 1989 (FOI Act). The Tribunal reviewed the Department’s decision and handed down its reasons: Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 (5 December 2005). In that decision the Tribunal noted that Mr Cianfrano had submitted that the Department had not conducted an adequate search for the documents he had requested. The issue of whether the Tribunal had jurisdiction to inquire into the adequacy of searches was determined in separate proceedings. That question depends, to some extent, on the interpretation of s 24 of the FOI Act which states that:

(1) After considering an application for access to a document, an agency shall determine:
(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given-any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.

3 The Tribunal decided, contrary to the Department’s submission, that it did have jurisdiction to determine the adequacy of search question: Director-General, Department of Commerce and anor (No 2) [2006] NSW ADT 195. The matter was listed for further directions. The Tribunal’s orders were as follows:

1. First Respondent’s objection to jurisdiction dismissed.

2. Tribunal to reconvene to make further directions as appropriate.

4 Although the Tribunal’s decision was in favour of Mr Cianfrano, he appealed to the Appeal Panel saying that the Tribunal had misinterpreted s 28(1)(b) of the FOI Act. That section states that:

(1) An agency shall cause written notice to be given to the applicant:
(a) of its determination of his or her application, or

(b) if the application relates to a document that is not held by the agency-of the fact that the agency does not hold such a document.

5 The Department also appealed against the Tribunal’s decision. Its submission was that the Tribunal had erred in deciding that it had jurisdiction in relation to the adequacy of search issue. Mr Cianfrano agreed that he would not pursue his appeal. That was the only logical response given that the Tribunal’s decision was in his favour. The parties agreed that the Appeal Panel should refer the jurisdiction question to the Supreme Court for determination pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 (ADT Act). That provision states that:

(1) An Appeal Panel determining an appeal under this Part may, of its own motion or at the request of a party, refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court.

(2) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section.

(3) If a question of law arising in any appeal to an Appeal Panel has been referred to the Supreme Court under this section, the Appeal Panel is not:

(a) to give a decision in the appeal to which the question is relevant while the reference is pending, or

(b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.

6 On 19 June 2008 the Supreme Court decided that:

(a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the Freedom of Information Act 1989;

(b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of section 24;

(c) the jurisdiction of the Tribunal conferred by its 53 of the Freedom of Information Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents made pursuant to s 17 and 18 of the Freedom of Information Act.

7 The effect of this decision was that the question of law referred to the Supreme Court was answered in favour of the Department of Commerce. As there were no outstanding issues raised by either of the parties’ appeals, the Registry wrote to the parties advising that unless they objected, the Appeal Panel would make the following orders:

The Tribunal's order that “First Respondent’s objection to jurisdiction dismissed” is set aside.

In substitution for that order the following orders are made:

1. The First Respondent’s objection to jurisdiction is upheld.

2. The Applicant's application to the Tribunal is dismissed.

8 The Department and Sydney Markets Ltd consented to these orders. Mr Cianfrano did not consent. He said that the orders should be as follows:

1. The Tribunal's decision is set aside.

2. Cianfrano v Director-General Department of Commerce and anor (No 2) [2006] NSW ADT 195 is remitted to the Tribunal to be heard and decided again with the hearing of further evidence.

9 The Appeal Panel convened to hear Mr Cianfrano’s reasons for requesting those orders. In essence the reason was that if the Tribunal had applied the law correctly and accepted that it had no jurisdiction to hear the application, it would have been bound to refer the question of whether there had been an adequate search for the documents to the Ombudsman. As it did not do so, the matter should be remitted to the Tribunal so that the referral could be made.

10 Section 39 of the ADT Act allows the President of the Tribunal and the Ombudsman to enter into arrangements regarding various matters. Arrangements have been made pursuant to this provision. The Arrangement gives the following example of the types of matters that the Tribunal may refer to the Ombudsman:

Freedom of Information matters where there is a denial of the existence of documents by an agency and the Ombudsman could rely on its search and investigative powers (including claims that documents have been lost destroyed or never existed)

11 In the matter under appeal, the Tribunal mentioned those arrangements in its decision at [73]:

The agency interpreted the request initially as possibly covering 3000 documents. So on its face the agency would not appear to have taken an unduly narrow view. On the other hand the applicant, who has made a number of similar requests to other agencies involved in the Flemington/Sydney Markets sale process, is discontented, it would seem, by comparing what he has received from this agency as compared to what has been revealed to him by the other determinations. Faced with a conflict of this kind, the Tribunal has occasionally, as it is permitted to do, referred the matter to the Ombudsman for review (see Administrative Decisions Tribunal Act 1997, s 39). But, in my view, the Tribunal is not bound to do so, if it is seized of a s 24(2) point.

12 Mr Cianfrano’s application for the Appeal Panel to make the orders he requests cannot succeed because he did not proceed with his appeal and there is nothing left for the Appeal Panel to determine. Even if he had proceeded with his appeal, the issue of whether the matter should be referred to the Ombudsman was not raised in his Notice of Appeal. Mr Cianfrano cannot wind back the clock and attempt to re-instate, amend and re-argue his appeal.

13 Even if the question of the referral to the Ombudsman were a live issue before the Appeal Panel, neither s 39 nor the Arrangements with the Ombudsman oblige the Tribunal to refer any particular matter to the Ombudsman. The Tribunal considered the question of referral at [73] of its decision and decided not to refer the matter. It is arguable that a decision not to refer a matter to the Ombudsman is not an appealable decision because it is not a “decision of the Tribunal made in proceedings for a review of a review of a reviewable decision”: ADT Act, s 112. It is essentially executive rather than judicial in character: McGuirk v University of New South Wales [2008] NSWADTAP 41 (21 July 2008) at [37]. Mr McDonnell, representing the Department, submitted that the Tribunal has no power to refer a matter which involves an adequacy of search issue to the Ombudsman because the Tribunal has no jurisdiction to entertain such a matter. These are issues which need not be resolved in these proceedings given the conclusions set out in the previous paragraph.

Orders

The Tribunal's order that “First Respondent’s objection to jurisdiction dismissed” is set aside

In substitution for that order the following orders are made

1. The First Respondent’s objection to jurisdiction is upheld.

2. The Applicant's application to the Tribunal is dismissed.