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Howell v Macquarie University (GD)

Howell v Macquarie University (GD)

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Appeal Panel - Internal

CITATION: Howell v Macquarie University (GD) [2007] NSWADTAP 10

PARTIES: APPELLANT
Sally Howell
RESPONDENT
Macquarie University

FILE NUMBER: 069043 and 069044

HEARING DATES: 1/11/2006

SUBMISSIONS CLOSED: 1 November 2006

DATE OF DECISION:
1 March 2007

BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non Judicial Member

CATCHWORDS: adequacy of orders - adequacy of reasons - correct and preferable decision - role of Tribunal- suggesting grounds for determination not relied on by Administrator - leave to extend to the merits - opportunity to be heard - remitted to agency for reconsideration

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 053277 & 053320

DATE OF DECISION UNDER APPEAL: 07/07/2006

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Freedom of Information Act 1989
Ombudsman Act 1974

CASES CITED: Howell v Macquarie University [2006] NSWADT 207
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49
Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26
Trade Practices Commission v Sterling (1979) 36 FLR 244
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234
Ingot Capital Investments Pty Limited & Ors v Macquarie Equity Capital Markets Limited & Ors [2006] NSWSC 530
Clark v United States (1933) 289 US 1
Soulemezis v Dudley (1987) 10 NSWLR 247
Mifsud v Campbell (1991) 21 NSWLR 725
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Stead v State Government Insurance Commission (1986) 161 CLR 141
Kioa v West (1985) 159 CLR 550
University of New South Wales v McGuirk [2006] NSWSC 1362
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659
Austin v Deputy Secretary, Attorney-General’s Department (1986) 10 ALD 169
Re Carver and Department of Prime Minister and Cabinet (1987) 12 ALD 447
Re Rae and Department and Department of the Prime Minister and Cabinet (1986) 12 ALD 589
Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976
N v Director-General, Attorney-General’s Department (No. 4) [2003] NSWADT 122

REPRESENTATION:
APPELLANT
P Howell, solicitor
RESPONDENT
M Allars of counsel instructed by P Dillon, Foulsham & Geddes

ORDERS: 1. As to appeal no 069043Appeal allowed. Order (b) is set aside. Leave to extend to merits granted, in accordance with the following directions. The application is remitted to the respondent agency pursuant to s 65 of the ADT Act for reconsideration, such reconsideration to be undertaken within 21 days. The whole of the document known as document 1 is to be the subject of reconsideration. The result of…

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: [2007] NSWADTAP 10
Decision Date: 1 March 2007

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Howell, the appellant, challenged a decision of the Administrative Appeals Tribunal (AAT) regarding the adequacy of orders and reasons in relation to a Freedom of Information (FOI) application. The dispute centred on the AAT's handling of an appeal by Howell against a decision by Macquarie University, the respondent, to deny Howell access to certain documents under the FOI Act. Howell argued that the AAT's decision was flawed because it did not adequately address the exemption claims made by the University and failed to provide sufficient reasons for its determination.

The court was required to determine whether the AAT's decision was legally sound and whether it had provided adequate reasons for its determination. Specifically, the court had to consider whether the AAT's decision was the correct and preferable decision, and whether it had properly exercised its discretion under the FOI Act. The court also needed to assess whether the AAT had adequately considered the exemption claims made by the University and whether it had given Howell a fair opportunity to be heard.

The court found that the AAT's decision was flawed in several respects. The AAT had not adequately considered the exemption claims made by the University, and had not provided sufficient reasons for its determination. The court held that the AAT's decision was not the correct and preferable decision, and that it had not properly exercised its discretion under the FOI Act. The court also found that the AAT had not given Howell a fair opportunity to be heard, as it had suggested grounds for determination that were not relied on by the University. The court accordingly allowed the appeal and remitted the matter to the AAT for reconsideration.

The court made orders setting aside certain parts of the AAT's decision and granting leave to extend to the merits. The court remitted the matter to the AAT for reconsideration, directing that the whole of the document known as document 1 be the subject of reconsideration. If the University decided that document 1 was exempt in whole or in part, the Appeal Panel would give directions for the further conduct of the matter. The court also remitted document 15 to the AAT for reconsideration, with the result of that reconsideration to be reported to the Appeal Panel.

Orders

Orders of the court

1. As to appeal no 069043Appeal allowed. Order (b) is set aside. Leave to extend to merits granted, in accordance with the following directions. The application is remitted to the respondent agency pursuant to s 65 of the ADT Act for reconsideration, such reconsideration to be undertaken within 21 days. The whole of the document known as document 1 is to be the subject of reconsideration. The result of that reconsideration is to be reported to the Appeal Panel. If the University decides that document 1 is exempt in whole or in part, the Appeal Panel will give directions for the further conduct of the matter; 2. As to appeal no 069044Appeal allowed in part. Order (a) is varied. The Tribunal's decision that the documents are exempt documents is affirmed in respect of documents 2-6 and 8-14. Leave to extend to merits granted, in accordance with the following directions. Document 15 is remitted to the respondent agency for reconsideration, such reconsideration to be undertaken within 21 days. The result of that reconsideration is to be reported to the Appeal Panel. The Appeal Panel will then give directions for the further conduct of the matter.

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:	Howell v Macquarie University (GD) [2007] NSWADTAP 10
PARTIES:	APPELLANT Sally Howell RESPONDENT Macquarie University
FILE NUMBER:	069043 and 069044
HEARING DATES:	1/11/2006
SUBMISSIONS CLOSED:	1 November 2006
DATE OF DECISION:	1 March 2007
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	adequacy of orders - adequacy of reasons - correct and preferable decision - role of Tribunal- suggesting grounds for determination not relied on by Administrator - leave to extend to the merits - opportunity to be heard - remitted to agency for reconsideration
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053277 & 053320
DATE OF DECISION UNDER APPEAL:	07/07/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989 Ombudsman Act 1974
CASES CITED:	Howell v Macquarie University [2006] NSWADT 207 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 Trade Practices Commission v Sterling (1979) 36 FLR 244 AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 Ingot Capital Investments Pty Limited & Ors v Macquarie Equity Capital Markets Limited & Ors [2006] NSWSC 530 Clark v United States (1933) 289 US 1 Soulemezis v Dudley (1987) 10 NSWLR 247 Mifsud v Campbell (1991) 21 NSWLR 725 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 Stead v State Government Insurance Commission (1986) 161 CLR 141 Kioa v West (1985) 159 CLR 550 University of New South Wales v McGuirk [2006] NSWSC 1362 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659 Austin v Deputy Secretary, Attorney-General’s Department (1986) 10 ALD 169 Re Carver and Department of Prime Minister and Cabinet (1987) 12 ALD 447 Re Rae and Department and Department of the Prime Minister and Cabinet (1986) 12 ALD 589 Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 N v Director-General, Attorney-General’s Department (No. 4) [2003] NSWADT 122
REPRESENTATION:	APPELLANT P Howell, solicitor RESPONDENT M Allars of counsel instructed by P Dillon, Foulsham & Geddes
ORDERS:	1. As to appeal no 069043Appeal allowed. Order (b) is set aside. Leave to extend to merits granted, in accordance with the following directions. The application is remitted to the respondent agency pursuant to s 65 of the ADT Act for reconsideration, such reconsideration to be undertaken within 21 days. The whole of the document known as document 1 is to be the subject of reconsideration. The result of…