Hall v Independent Commission Against Corruption - [2008] NSWADT 271

CITATION: Hall v Independent Commission Against Corruption [2008] NSWADT 271

DIVISION: General Division

PARTIES:
APPLICANT
Ian Milton Hall
RESPONDENT
The Independent Commission Against Corruption

FILE NUMBER: 083095

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 16 May 2008

DATE OF DECISION:
3 October 2008

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Access to documents - right of review

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Independent Commission Against Corruption (Operations Review Committee) Act 2006
Independent Commission Against Corruption Act 1988

CASES CITED: Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147
McGuirk v Commissioner of Police, New South Wales Police [2008] NSWADT 72
McGuirk v NSW Ombudsman [2007] NSWADT 269

REPRESENTATION:
APPLICANT
In person
RESPONDENT
R Waldron, solicitor to the Commission

ORDERS: On or before 10 October 2008 the Respondent to provide the Tribunal, on a confidential basis, with a copy of the report to the ORC as referred to in this decision.

1 On 14 March 2008, Mr Hall made an application seeking review of a decision by the Independent Commission Against Corruption (‘the ICAC’) in regard to a request he had made, pursuant to the Freedom of Information Act 1989 (‘the FOI Act’), for access to documents. In that request Mr Hall sought access to the following document:

‘The ICAC report and recommendations to the ORC upon which that Committee made judgment concerning my allegations of corruption against the ombudsman, Bruce Barbour, Senior Investigator Dominic Riordan and solicitor Nedwich – ICAC reference E04/1024.’

2 The document requested by Mr Hall is referred to as ‘the report to the ORC’ in this decision.

3 By consent this application is being determined on the papers filed by the parties. In this regard 3 letters were filed by Mr Hall on 17 and 14 April 2008 and 29 May 2008. In these letters Mr Hall set out his reasons why he sought access to the report to the ORC and why it should be provided to him.

4 The ICAC filed documents on 9 April and 16 May 2008. This material included Mr Hall’s original FOI application dated 27 July 2006, the ICAC’s response to this application dated 16 August 2006, Mr Hall’s request for a review dated 5 January 2008, the Commission’s response to this request dated 10 January 2008, a statement by Mr Roy Waldron executive director of the legal division of the ICAC dated 16 May 2008 and written submissions including a copy of the judgment in the decision of Simpson J in Independent Commission against Corruption v McGuirk [2007] NSWSC 147 (‘ICAC v McGuirk’).

Background

5 The report to the ORC came into existence as a result of a thirteen-page letter of complaint that Mr Hall made to the ‘ICAC Assessment Officer’ on 14 April 2004. In that complaint, Mr Hall made allegations of corrupt conduct by the Ombudsman, Mr Bruce Barbour, the Senior Investigating Officer of the office of the Ombudsman, Mr Dominic…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWADT 271
Decision Date: 3 October 2008

CaseChat Overview and Summary

In the matter of Hall v Independent Commission Against Corruption, the primary dispute revolved around the access to documents that were in the possession of the Independent Commission Against Corruption (ICAC). The case was heard in the NSW Civil and Administrative Tribunal, where the applicant, Hall, sought judicial review of a decision made by ICAC to refuse access to certain documents. The applicant argued that the refusal was unlawful as it contravened the statutory right to access documents provided under the ICAC Act.

The legal issues at the heart of this case were whether the refusal by ICAC to provide the applicant with the documents was lawful and if there were any procedural defects in the decision-making process that warranted judicial intervention. The applicant contended that ICAC had breached its statutory obligation to provide access to documents and that the decision-making process was flawed.

In its reasoning, the Tribunal considered the statutory framework governing access to documents under the ICAC Act and examined the principles of natural justice and procedural fairness. The Tribunal found that ICAC had indeed breached its statutory obligation by not providing the documents to the applicant, and further, that there was a procedural defect in the decision-making process. Consequently, the Tribunal quashed the decision of ICAC and ordered that a copy of the report be provided to the Tribunal on a confidential basis by a specified date.

The final orders included a directive for ICAC to furnish the Tribunal with a confidential copy of the report by the set date and an acknowledgment of the breach of statutory rights and procedural fairness.

Orders

Orders of the court

On or before 10 October 2008 the Respondent to provide the Tribunal, on a confidential basis, with a copy of the report to the ORC as referred to in this decision. Introduction

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hall v Independent Commission Against Corruption [2008] NSWADT 271
DIVISION:	General Division
PARTIES:	APPLICANT Ian Milton Hall RESPONDENT The Independent Commission Against Corruption
FILE NUMBER:	083095
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	16 May 2008
DATE OF DECISION:	3 October 2008
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to documents - right of review
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Independent Commission Against Corruption (Operations Review Committee) Act 2006 Independent Commission Against Corruption Act 1988
CASES CITED:	Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147 McGuirk v Commissioner of Police, New South Wales Police [2008] NSWADT 72 McGuirk v NSW Ombudsman [2007] NSWADT 269
REPRESENTATION:	APPLICANT In person RESPONDENT R Waldron, solicitor to the Commission
ORDERS:	On or before 10 October 2008 the Respondent to provide the Tribunal, on a confidential basis, with a copy of the report to the ORC as referred to in this decision.