Hutchinson v Roads and Traffic Authority (No 2)

[2006] NSWADT 233

CITATION:	Hutchinson v Roads and Traffic Authority (No 2) [2006] NSWADT 233 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Rowan Hutchinson RESPONDENT Roads and Traffic Authority
FILE NUMBER:	053110
HEARING DATES:	7/04/2006
SUBMISSIONS CLOSED:	04/07/2006
DATE OF DECISION:	08/07/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	access to documents - substantial and unreasonable diversion of agency's resources - power of remittal - Freedom of Information Act - access to documents - substantial and unreasonable diversion of agency's resources - power of remittal
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Brooks Maher v Cheung [2001] NSWADT 18 Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39 Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281 Hutchinson v Roads and Traffic Authority [2006] NSWADT 21 Kolavo v Pitsikas and Conomos [2003] NSWCA 59, Lloyd v Veterinary Surgeons Investigating Committee (Disciplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) (No 2) (GD) [2005] NSWADTAP 15 Murphy v David Jones Limited [2002] NSWADTAP 42 Poudyal v Minister for Immigration [2005] FMCA 265 Stefopoulos v Manikas (No 3) [2004] NSWADT 172 Trust Company of Australia Ltd v Craig & Ors [2005] NSWADT 65 Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 481
REPRESENTATION:	APPLICANT B Zipser, counsel RESPONDENT M Allars, counsel
ORDERS:	1. Application dismissed; 2. No order for costs

Introduction

1 These reasons follow on from the decision in Hutchinson v Roads and Traffic Authority [2006] NSWADT 22 and should be read in conjunction with that decision. The background to this case is set out in those reasons at [1] to [3]:

1. The applicant, Mr Hutchinson, worked for the Roads and Traffic Authority (RTA) until 12 January 1998 when he was suspended from duty. The RTA decided to recommend that he be dismissed from employment. In April 1998 the RTA made the decision to dismiss him. Mr Hutchinson appealed to the Government and Related Employees Tribunal (the GREAT) against both the recommendation and the dismissal. Shortly after the decision to suspend him, Mr Hutchinson applied to the RTA under the Freedom of Information Act 1989 (FOI Act) for his employee file and any other records the agency held about him. After that, he made several further applications for documents relating to his employment. The application which was originally the subject of these proceedings was made on 7 October 2004 and requested the following information:
Documents submitted between RTA and the GREAT Tribunal in relation to GREAT Appeals 259 of 1998 and 310 of 1998. File notes of any telephone conversations or any correspondence or notes about these GREAT appeals. In particular, any documents that may indicate bias or other improper conduct. Also any documents that may put into question the ability of the RTA appointee to sit on the Tribunal, or that he was not properly appointed or any instructions he may have been given by the RTA.
2. The two GREAT Appeals referred to in the application were the appeals from the decision to recommend dismissal and from the decision to dismiss. The agency refused to give Mr Hutchinson access to the documents he requested. The refusal was based on the exception in s 25(1)(a1) of the FOI Act. That provisions states that:
(1) An agency may refuse access to a document:

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions,

3. I refer to this exception in these reasons as the “resources exception.” On 29 April 2005, the RTA affirmed its decision after an internal review. Mr Hutchinson submitted that the RTA could not rely on the resources exception because it had not complied with s 25(5). That provision prevents an agency from relying on the resources exception unless it has endeavoured to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources. In his statement to the Tribunal Mr Hutchinson narrowed his request. The request was narrowed again at the hearing . (Emphasis added.)

2 I then articulated six questions that arise for consideration. They are:

(a) what is the decision that Mr Hutchinson has asked the Tribunal to review?

(b) has the RTA complied with s 25(5)?

(c) if not, what is the effect of any non-compliance with s 25(5)?

(d) if the Tribunal has jurisdiction to review the decision, is there any utility in reviewing that decision?

(e) does the Tribunal have jurisdiction to make a decision based on Mr Hutchinson’s amended request for documents?

(f) if not, should the Tribunal remit the decision to the RTA for reconsideration?

3 I decided at [5], that the reviewable decision is the decision of the RTA (the agency) made on 29 April 2005 in relation to his request for documents dated 7 October 2004 (the “reviewable decision”). I held at [8], that I did not need to decide whether the agency had complied with s 25(5) because of my ultimate decision that non-compliance does not affect the Tribunal’s jurisdiction. I also held that there was no utility in the Tribunal reviewing the agency’s decision based on the applicant’s original request for documents because he has effectively withdrawn that request. Finally, I decided at [11] that the Tribunal has no jurisdiction to make a decision based on the applicant’s amended request for documents. I directed the parties to provide further submissions on the final question as to whether the Tribunal should remit the decision to the agency for reconsideration. The parties have provided those submissions and the remainder of these reasons address that question.

Remittal power

4 I agree with the submissions of both parties that the Tribunal has power to remit the “reviewable decision” to the agency. Section 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act) states that:

(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the administrator varies the decision:

(a) the application is taken to be an application for review of the decision as varied, and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied, or

(ii) withdraw the application.

(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision, and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision, or

(ii) withdraw the application.

5 Section 65(1) gives the Tribunal a broad discretionary power to remit a reviewable decision “at any stage” of the proceedings. Ms Allars, representing the agency, set out a useful summary of the New South Wales and Commonwealth case law relating to remitting a decision to an agency. However, none of those cases involved fact situations which are analogous to this case. In Poudyal v Minister for Immigration [2005] FMCA 265 at [48] Smith FM stated that:

... [I]n the normal structure of Commonwealth merits review it is the expectation of the legislature that a Tribunal exercising all the powers of decision vested in the primary decision-maker will fully exercise the relevant power and try to bring finality to the particular administrative process involved. On this basis, the power of remitter is a supplementary power designed to be used when a Tribunal considers it appropriate and administratively efficient in the circumstances to allow the primary administrator, rather than itself, to complete that process.

6 Relying on the passage set out at [48] in Poudyal v Minister for Immigration [2005] FMCA 265, the applicant submitted that where the Tribunal is unable to “fully exercise the relevant power and try to bring finality to the particular administrative process involved”, the power of remitter is appropriate. In addition it can be used when it is “appropriate and administratively efficient in the circumstances” to remit rather than dismiss a matter. According to the applicant, a factor relevant to the exercise of the Tribunal’s discretion includes “bring[ing] finality to the particular administrative process” expeditiously and cheaply.

7 The crux of the applicant’s submission is that if the Tribunal remits the reviewable decision, the agency could make a determination on the basis of the applicant’s amended request. The agency disagrees with that submission saying that if the application for access to documents to which the decision relates has effectively been withdrawn, or even if part of the application has been withdrawn, there is no utility in remitting the decision under s 65.

8 Section 65 allows the Tribunal to remit a “decision” for “reconsideration”. The decision based on the resources exception relates to a request the applicant made on 7 October 2004. The agency affirmed its decision after an internal review. The agency’s decision was to refuse to provide access to the documents on the basis that the work involved would substantially and unreasonably divert the agency’s resources. In his written statement, the applicant amended his request. The scope of the request was narrowed again at the hearing. The effect of the amendment was to request access to fewer documents than originally requested. There is no point in the Tribunal remitting the agency’s decision for reconsideration as the applicant is now seeking access to fewer documents. The agency would not be reconsidering its decision but making a fresh decision as to whether providing access to those documents would substantially and unreasonably divert the agency’s resources. The discretion to remit a decision under s 65 allows the agency to reconsider its original decision, not to make a new decision based on a different request.

Consequences for Mr Hutchinson

9 I accept that this conclusion has some unfortunate consequences for the applicant. As Mr Zipser points out, it may mean that the applicant has to make a fresh application for documents to the agency. The agency may be entitled to object to another application being made for similar documents, but I make no comment on the potential merits of any such objection. A new application would obviously delay the applicant’s request further. There is a public interest in this matter being resolved expeditiously and cheaply. It is arguable that remittal of the decision would achieve that objective. Nevertheless, the Tribunal is a creature of statute and, in freedom of information cases, only has the powers given to it by the ADT Act and the FOI Act. The power under consideration is the power in s 65 to remit a decision to the agency for reconsideration. While the Tribunal has the power to remit the reviewable decision, there is no utility in doing so because that decision does not relate to the applicant’s current request for documents.

Costs

10 The agency applied for costs against the applicant. The rule to be applied when deciding whether to award costs is set out in s 88(1) of the ADT Act:

Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

11 To amount to “special circumstances,” the circumstances must be “seriously beyond the usual or ordinary pursuit of a claim so that it would be seriously unfair to a party not to be awarded some or all of its costs where it has been successful”: Stefopoulos v Manikas (No 3) [2004] NSWADT 172 at [33]. In Brooks Maher v Cheung [2001] NSWADT 18 at [14] the Tribunal said that “where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted.” In another FOI case, the President gave guidance as to the sort of circumstances that would justify as order of costs:

If a citizen continues to press an application in circumstances where it is reasonable to conclude that the applicant had enough understanding of the Act as to be likely to appreciate that the application was an empty one, then some sanction should be administered by the Tribunal in the form of a costs order: Miriani v Commissioner for Fair Trading [2005] NSWADT 99 at 37

12 Special circumstances warranting costs orders in past cases have included:

(i) commencement of proceedings that are untenable at law or “entirely without substance or merit” or which have “no real prospects of success”, (although this does not determine the issue finally, particularly when the party is unrepresented) Kolavo v Pitsikas and Conomos [2003] NSWCA 59, Trust Company of Australia Ltd v Craig & Ors [2005] NSWADT 65 at [43], Murphy v David Jones Limited [2002] NSWADTAP 42 at [16], Lloyd v Veterinary Surgeons Investigating Committee (Disciplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) (No 2) (GD) [2005] NSWADTAP 15 at [41]-[42].

(ii) conduct which results in avoidable costs being incurred by the other party: Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39 at [36].

13 Listed below are the “special circumstances” the agency says warrants an award of costs and the applicant’s response:

(i) only the day before the hearing the applicant served an additional statement of evidence in which he sought to reduce the scope of his request for access;

Response: First, the agency complains that the applicant reduced his request for access to documents. However, this is not a special circumstance. As the Tribunal found at [9] of its decision in matter 043378, “it is common for an applicant to narrow his or her request for documents after the agency had made its determination.” Second, the agency complains that the applicant reduced the scope of his request for access to documents shortly before and/or on the day of the hearing. It is common for parties involved in a dispute before a court or tribunal to compromise their original position in order to resolve the dispute. There is a public interest in parties resolving disputes without the requirement for a formal hearing and determination by the court or tribunal.

(ii) because of the applicant’s late reduction in the scope of his request, the agency’s submissions and filed evidence were in part rendered inapposite, through no fault of the agency;

Response: First, if part of the agency’s submission and filed evidence were rendered inapposite, it was only a small part. Second, the hearing in the Tribunal would probably have been avoided if the agency complied with s 25(5) of the FOI Act, rather than any late reduction in the scope of the applicant’s request.

(iii) The applicant nonetheless cross-examined the agency’s witness, Mr Youngman, on matters which, by reason of the late reduction in the scope of the request were no longer in issue.

Response: First, the applicant denies that the matters on which Mr Youngman was cross examined were irrelevant. Second, if the matters were irrelevant, the agency could have objected at the time of the cross examination. Third, if Mr Zipser’s conduct in cross examining Mr Youngman constituted an abuse of process, this might be a special circumstance supporting an award of costs against the applicant. However, Mr Zipser’s conduct was not an abuse of process. Fourth, Mr Zipser’s conduct in cross examining Mr Youngman was unreasonable, the agency would, at minimum, need to show that it incurred additional costs as a result the unreasonable conduct.

14 I agree with the applicant that in the context of this case, the circumstances listed in (i) and (ii) above do not, either separately or together, constitute, “special circumstances” warranting an award of costs. This is not a case where the applicant continued to press his application knowing or suspecting that the Tribunal lacked jurisdiction to determine it. It is unfortunate that neither the Tribunal nor the parties foresaw, either before or during the hearing, that a narrowing of the applicant’s request for documents would deprive the Tribunal of jurisdiction to determine the application. The agency did not identify the matters on which Mr Zipser cross-examined Mr Youngman which were no longer in issue as a result of the narrowing of the request. Nor did the agency’s representative object to that cross-examination at the time. Consequently, I am not satisfied that there are special circumstances justifying an award of costs against the applicant.

Orders

1. Application dismissed.

2. No order for costs.

23/08/2006 - To correct File Number - Paragraph(s) Front Cover