Hutchinson v Roads & Traffic Authority - [2006] NSWADT 21

CITATION: Hutchinson v Roads & Traffic Authority [2006] NSWADT 21

DIVISION: General Division

PARTIES: APPLICANT
Rowan Hutchinson
RESPONDENT
Roads & Traffic Authority

FILE NUMBER: 043378

HEARING DATES: 08/12/05

SUBMISSIONS CLOSED: 12/12/2005

DATE OF DECISION:
01/27/2006

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1989

CASES CITED: Bramwell v Repatriation Commission (1998) 51 ALD 56
Lavery v Registrar, Supreme Court of Queensland (1996) 23 AAR 52;N1112/00
A v Minister for Immigration & Multicultural Affairs [2000] FCA 1597
Re Brain Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Re Grolier Enterprises and Australian Postal Commission (1977) 1 ALD 10
Re Hare and Commissioner for Superannuation (1979) 2 ALN N662
Poudyal & Anor v Minister for Immigration [2005] FMCA 265
Re Slater and Repatriation Commission [1999] AATA 336

REPRESENTATION:
APPLICANT
B Zipser, barrister
RESPONDENT
M Allars, barrister

ORDERS: 1. The Tribunal does not have jurisdiction to make a decision based on either of the applicant’s amended requests for documents; 2. The Tribunal makes the following directions:; a) Within 21 days of the date of this decision, the RTA is to provide written submissions on the following questions:; (i) does the Tribunal have power to remit the reviewable decision under s 65 of the ADT Act in the circumstances of this case?; (ii) if so, should the Tribunal exercise its discretion under s 65 to remit the decision? ; b) Within a further 21 days, Mr Hutchinson is to provide written submissions in reply on the same questions; c) The Tribunal will determine these questions “on the papers” in accordance with s 76 of the ADT Act.

Introduction

1 Mr Hutchinson applied to the Roads and Traffic Authority (RTA) under the Freedom of Information Act 1989 (FOI Act) for access to certain documents. The documents related to premature road pavement failure or unnecessary road pavement rehabilitation in some areas of the Hume Highway and the Newcastle Freeway. Initially the RTA interpreted this request as applying to documents that had been audited by the Audit Office. The RTA made a determination that the documents were exempt because they related to the audit and investigative functions of the Auditor General and also because they were the subject of secrecy provisions. That determination was affirmed on internal review. Mr Hutchinson applied to the Tribunal for a review of that decision.

2 The parties attended several planning meetings at the Tribunal. At the first planning meeting on 21 January 2005, Mr Hutchinson clarified that he did not intend to confine his request to documents relating to the functions of the Auditor General. It was not until that time that officers from the RTA appreciated that Mr Hutchinson was requesting documents held by the RTA. Mr Bechini, solicitor with the RTA, indicated to Mr Hutchinson at that meeting that providing access to the documents may “substantially and unreasonably divert the agency’s resources away from their use…

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: [2006] NSWADT 21
Decision Date: 01/27/2006

CaseChat Overview and Summary

The case of Hutchinson v Roads & Traffic Authority involves a dispute between Mr Hutchinson and the Roads & Traffic Authority (RTA). Mr Hutchinson sought access to certain documents through an amended request, which the RTA declined. This led to Mr Hutchinson lodging an application with the Administrative Decisions (Administrative Review) Tribunal (ADT) for review of the RTA's decision. The Tribunal was tasked with determining whether it had the jurisdiction to make a decision on Mr Hutchinson's amended request for documents.

The central legal issue before the Tribunal was whether it possessed the jurisdiction to make a decision based on Mr Hutchinson's amended requests for documents. The Tribunal needed to consider the applicable legislation, particularly the Administrative Decisions (Administrative Review) Act 1977 (ADT Act), and decide whether it had the power to remit the reviewable decision under section 65 of the ADT Act in the circumstances of this case, and if so, whether it should exercise its discretion to do so.

In resolving these issues, the Tribunal found that it did not have the jurisdiction to make a decision based on either of Mr Hutchinson's amended requests for documents. Consequently, it directed the RTA to provide written submissions on whether the Tribunal had the power to remit the reviewable decision under section 65 of the ADT Act and, if so, whether it should exercise its discretion to do so. Mr Hutchinson was also directed to provide written submissions in reply within a further 21 days. The Tribunal decided to determine these questions "on the papers" in accordance with section 76 of the ADT Act.

In summary, the Tribunal concluded that it did not have jurisdiction to make a decision based on Mr Hutchinson's amended requests for documents. It directed the RTA and Mr Hutchinson to provide written submissions on specific questions regarding the Tribunal's power to remit the reviewable decision under section 65 of the ADT Act. The Tribunal would then determine these questions on the basis of the written submissions.

Orders

Orders of the court

1. The Tribunal does not have jurisdiction to make a decision based on either of the applicant’s amended requests for documents; 2. The Tribunal makes the following directions:; a) Within 21 days of the date of this decision, the RTA is to provide written submissions on the following questions:; (i) does the Tribunal have power to remit the reviewable decision under s 65 of the ADT Act in the circumstances of this case?; (ii) if so, should the Tribunal exercise its discretion under s 65 to remit the decision? ; b) Within a further 21 days, Mr Hutchinson is to provide written submissions in reply on the same questions; c) The Tribunal will determine these questions “on the papers” in accordance with s 76 of the ADT Act.

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:	Hutchinson v Roads & Traffic Authority [2006] NSWADT 21
DIVISION:	General Division
PARTIES:	APPLICANT Rowan Hutchinson RESPONDENT Roads & Traffic Authority
FILE NUMBER:	043378
HEARING DATES:	08/12/05
SUBMISSIONS CLOSED:	12/12/2005
DATE OF DECISION:	01/27/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Freedom of Information Act 1989
CASES CITED:	Bramwell v Repatriation Commission (1998) 51 ALD 56 Lavery v Registrar, Supreme Court of Queensland (1996) 23 AAR 52;N1112/00 A v Minister for Immigration & Multicultural Affairs [2000] FCA 1597 Re Brain Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 Re Grolier Enterprises and Australian Postal Commission (1977) 1 ALD 10 Re Hare and Commissioner for Superannuation (1979) 2 ALN N662 Poudyal & Anor v Minister for Immigration [2005] FMCA 265 Re Slater and Repatriation Commission [1999] AATA 336
REPRESENTATION:	APPLICANT B Zipser, barrister RESPONDENT M Allars, barrister
ORDERS:	1. The Tribunal does not have jurisdiction to make a decision based on either of the applicant’s amended requests for documents; 2. The Tribunal makes the following directions:; a) Within 21 days of the date of this decision, the RTA is to provide written submissions on the following questions:; (i) does the Tribunal have power to remit the reviewable decision under s 65 of the ADT Act in the circumstances of this case?; (ii) if so, should the Tribunal exercise its discretion under s 65 to remit the decision? ; b) Within a further 21 days, Mr Hutchinson is to provide written submissions in reply on the same questions; c) The Tribunal will determine these questions “on the papers” in accordance with s 76 of the ADT Act.