Horton v Great Southern Energy

[2001] NSWADT 111

CITATION:	Horton -v- Great Southern Energy [2001] NSWADT 111
DIVISION:	General Division
PARTIES:	APPLICANT Derek Horton RESPONDENT Great Southern Energy
FILE NUMBER:	003367; 003372
HEARING DATES:	09/04/2001
SUBMISSIONS CLOSED:	04/09/2001
DATE OF DECISION:	06/29/2001
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - right of review - Freedom of Information Act - access to documents - right of review
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT V Sharma, barrister
ORDERS:	1. Decision under review affirmed.

1 This application for review arises from a Freedom of Information (FOI) request from the applicant to the respondent agency. The applicant contends that the documents supplied to him by the agency in response to his request were not true copies of the documents to which the request related. The rights of ‘access applicants’ to seek review of determinations by agencies are set in Div 2 of Part 5 (ss 52B-58) of the Freedom of Information Act 1989 (the FOI Act).

2 There is no provision dealing with the kind of objection made by the applicant in this case. Placed within the framework of the FOI Act, what the applicant is alleging, as I see it, is that the agency’s determination was illusory. The real position as he sees it is that there was no proper response. So the situation, on his view, is one where there has been no effective response to the request, giving rise to a deemed refusal (s 24(2) FOI Act).

3 The Tribunal will proceed by assessing the premise upon which the application relies.

4 The applicant made a request dated 26 July 2000, received by the agency on 31 July 2000. In that letter he requested, what he described as, ‘copies of the three appendices A, B and C in the Stat Dec of Colin Hackney dated 11 September 1998.’ Mr Hackney was at that time the Regional Assets Manager of the agency.

5 That Statutory Declaration was tendered by the agency in proceedings in the Consumer Claims Tribunal (CCT) in 1998 where the applicant was the claimant and the agency the respondent. Briefly put, the context in which this FOI application arises is a dispute, now going back many years, about the connection of electricity to the country property where the applicant lives. The CCT proceedings related to that issue. The applicant was unsuccessful.

6 In its reply to the request the agency attached what it described as ‘appendix A, B and C to Col Hackney’s affidavit dated 11 September 1998’. There were three documents: letters dated 26 November 1997 and 18 December 1997 from Hackney to applicant; letter dated 23 January 1998 from Hackney to applicant’s then solicitor. These were sent to the applicant under cover of a letter dated 4 August 2000 from James King, Legal Compliance Manager.

7 That prompted a letter from the applicant dated 10 August 2000 in which he said, as material to this case, ‘I have received from James King in answer to my F.O.I. request copies of three letters. I do not accept these letters as complying with my request. Will you please send me copies of the actual documents I requested or send me the reason(s) why you cannot. You have 3 weeks after you received the request, to comply.’

8 That prompted a further response from James King dated 8 September 2000 in which, as material, Mr King said, ‘The appendices you requested were attached to Col Hackney’s Affidavit tendered in the Consumer Claims Tribunal and provided to you prior to the hearing. The documents provided in accordance with your FOI request were copies of the relevant documents from our file.’

9 The applicant then made a request dated 21 September 2000 for internal review of the decision. This placed the agency in an odd situation. In its eyes it had fully complied with the request; there was nothing to review. I have no concern, in these circumstances, that the agency did not undertake a process of internal review.

10 The application for review was filed on 29 November 2000. At the planning meeting held in preparation for the hearing on 28 February 2001, Mr King attended (by telephone) and confirmed his statement that the proper documents had been provided in response to the request. As Mr King now had a new job with another employer, Mr Sharma, solicitor, appeared on behalf of the agency at the hearing held at Queanbeyan on 9 April 2001. There was in evidence an affidavit filed 26 March 2001 from Mr King.

11 In response to a summons, the Tribunal had before it the CCT file of 1998 in matter 98/273, finally heard and determined by Referee Fox on or about 17 September 1998. The Referee’s notes record an initial hearing held on 21 July 1998. Evidence was taken from Mr Hackney on that occasion. Three hours were set aside for hearing, and the matter was adjourned part-heard. The matter was relisted for Batemans Bay on 17 September 1998.

12 I am satisfied that the Statutory Declaration made by Mr Hackney and held by the agency bearing fax imprint 14/09/98 is the same as the Statutory Declaration held on the CCT file.

13 The CCT notes record that the Statutory Declaration of Mr Hackney, along with a declaration of Mr Rob Ward (Technical Resources Officer, Moruya Depot of the agency), formed Exhibit 5. The Hackney Statutory Declaration refers at para 6 to a letter from Hackney to the applicant dated 26 November 1997 (and describes it as appendix A), para 10 refers to a letter to the applicant dated 17 December 1997 (appendix B) and para 13 refers to a letter from Hackney to the applicant’s solicitor (Mr Hurst) (appendix C). None of these documents are directly appended to the Declaration. The summaries given in these paragraphs as to the purpose of the letters and as to their contents are consistent with what is found in the documents that were provided to the applicant in response to his request.

14 What can not be found in either the CCT file or the agency’s files is a single document comprising the Statutory Declaration and the three appendices. (See further para 10 of the King affidavit of 26 March 2001.)

15 Mr King could not recall whether he had taken these 3 documents to the hearing or whether they had been handed up. Based on the accounts of the course of proceedings before the CCT provided by Mr King at the planning meeting and by Mr Horton, it is possible that Mr King handed up the appendices at the hearing, and they were handed back to him after perusal by the Referee. But I do not need to reach any conclusions on what occurred during the hearing.

16 I have, I consider, reasonably credible evidence to support the conclusion that the documents supplied are the documents to which the request referred.

17 At one stage in the hearing the applicant said that he now believed the documents referred to in the Statutory Declaration may never have existed. He was not able to provide any cogent evidence in support of that proposition.

18 Mr King, a legal practitioner, has said that as far as he is aware they are. The documents provided are consistent with the description contained in the body of the Hackney Statutory Declaration. Whether or not they were handed up at the hearing, I am satisfied that these are the documents which constituted the appendices referred to in the Statutory Declaration. Through Mr Sharma at hearing, the agency said that it had made diligent enquiries to check whether there might be any other documents that could have been the Appendices to the Statutory Declaration. An administrative body should be presumed to have conducted itself regularly, unless some good reason to displace that presumption is established. No such reason has been shown here.

Order

1. Decision under review affirmed.