HO v Attorney-General's Department - [2008] NSWADT 224

CITATION: HO v NSW Attorney General’s Department [2008] NSWADT 224

DIVISION: General Division

PARTIES:
APPLICANT
HO
RESPONDENT
New South Wales Attorney General’s Department

FILE NUMBER: 083168

HEARING DATES: 23 June 2008

SUBMISSIONS CLOSED: 31 July 2008

DATE OF DECISION:
14 August 2008

BEFORE: Handley R - Deputy President

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Freedom of Information Act 1989
FOI Regulation 2005
District Court Act 1973
Evidence Act 1995

CASES CITED: R v Prasad (1979) 23 SASR 161
N (No 3) v Commissioner of Police, NSW Police Service [2002] NSWADT 34
Commissioner of Police NSW Police Service v N (2003) NSWSC 943
Budd v Director, Attorney General’s Department [2006] NSWSC 1267
N v Director General, Attorney General’s Department (GD) [2002] NSWADTAP 41
NZ v Director General, Attorney General’s Department (GD) [2005] NSWADTAP 62
Re Altman and the Family Court of Australia (1992) 27 ALD 369
N (No. 2) -v- Director General, Attorney General's Department [2002] NSWADT 33
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Re Dingjan and ors ex parte Wagner and anor (1995) 183 CLR 323

REPRESENTATION:
APPLICANT
In person
RESPONDENT
D Hartman, solicitor

ORDERS: Pursuant to s 10 of the Freedom of Information Act 1989, the Tribunal has no jurisdiction to review the decision refusing to amend a document containing information concerning HO’s personal affairs.

1 This matter involves an application by HO for the review of a decision of the NSW Attorney General’s Department (‘the Department’) made pursuant to the Freedom of Information Act 1989 (‘the FOI Act’) to refuse to amend a document containing information concerning his personal affairs.

Background

2 HO was charged with two indictable offences to which he pleaded ‘not guilty’ and in respect of which he was tried in the District Court of NSW before Judge Saunders between 21 and 24 August 1995. On 24 August 1995, at the conclusion of the prosecution case and at the invitation of counsel for the defence, His Honour directed the jury to consider whether to acquit the accused without hearing the defence case (transcript 24 August 1995, page 141ff). Such a direction is referred to as a ‘Prasad Direction’ (pursuant to the decision in R v Prasad (1979) 23 SASR 161). After a short adjournment, the jury responded that they had “heard enough evidence” and found HO not guilty of both offences (transcript 24 August 1995, page 144).

3 Following the jury’s verdict, Judge Saunders noted on a Court result sheet that he had given a ‘Prasad Direction’, that “accused found ‘NG’ of each count”, and “jury discharged”. A Court notation for 24 August 1995 reads as follows:

“At the conclusion of Crown’s case, His Honour gives a ‘Prasad Direction’ to jury. Jury do not wish to hear further at end of Crown’s case. Accused found ‘Not Guilty’ of 2 counts. Jury discharged.”

4 By letter dated 27 February 1996, HO requested a Certificate of Acquittal in relation to the trial. On 12 March 1996, the…

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 224
Decision Date: 14 August 2008

CaseChat Overview and Summary

In the case of HO v Attorney-General's Department, the applicant, HO, sought review of a decision by the Attorney-General's Department to refuse to amend a document under the Freedom of Information Act 1989. The document contained personal information about the applicant, and the applicant sought changes to this information. The Australian Information Commissioner, as part of the Administrative Appeals Tribunal, was asked to review this decision.

The central legal issues the Tribunal had to address were whether it had jurisdiction under section 10 of the Freedom of Information Act to review the decision, and if so, whether the decision was legally sound. The Tribunal needed to determine if it could interfere with the decision and, if not, what the implications of this were for the applicant's request.

The Tribunal found that section 10 of the Act specifically excluded certain decisions from its review jurisdiction. This included decisions regarding amendments to documents that contained personal information about an individual. Given this statutory exclusion, the Tribunal held it did not have the authority to review the decision in question. Consequently, the Tribunal's hands were tied, and it could not interfere with the decision made by the Attorney-General's Department.

As the Tribunal did not have jurisdiction to review the decision, no further orders were made. The decision of the Attorney-General's Department stood, and the applicant's request to amend the document was denied.

Orders

Orders of the court

Pursuant to s 10 of the Freedom of Information Act 1989, the Tribunal has no jurisdiction to review the decision refusing to amend a document containing information concerning HO's personal affairs.

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:	HO v NSW Attorney General’s Department [2008] NSWADT 224
DIVISION:	General Division
PARTIES:	APPLICANT HO RESPONDENT New South Wales Attorney General’s Department
FILE NUMBER:	083168
HEARING DATES:	23 June 2008
SUBMISSIONS CLOSED:	31 July 2008
DATE OF DECISION:	14 August 2008
BEFORE:	Handley R - Deputy President
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Freedom of Information Act 1989 FOI Regulation 2005 District Court Act 1973 Evidence Act 1995
CASES CITED:	R v Prasad (1979) 23 SASR 161 N (No 3) v Commissioner of Police, NSW Police Service [2002] NSWADT 34 Commissioner of Police NSW Police Service v N (2003) NSWSC 943 Budd v Director, Attorney General’s Department [2006] NSWSC 1267 N v Director General, Attorney General’s Department (GD) [2002] NSWADTAP 41 NZ v Director General, Attorney General’s Department (GD) [2005] NSWADTAP 62 Re Altman and the Family Court of Australia (1992) 27 ALD 369 N (No. 2) -v- Director General, Attorney General's Department [2002] NSWADT 33 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Re Dingjan and ors ex parte Wagner and anor (1995) 183 CLR 323
REPRESENTATION:	APPLICANT In person RESPONDENT D Hartman, solicitor
ORDERS:	Pursuant to s 10 of the Freedom of Information Act 1989, the Tribunal has no jurisdiction to review the decision refusing to amend a document containing information concerning HO’s personal affairs.