Jamieson v Narrandera Shire Council

CITATION:	Jamieson v Narrandera Shire Council [2007] NSWADT 284
DIVISION:	General Division
PARTIES:	APPLICANT Andrew James Jamieson Respondent Narrandera Shire Council
FILE NUMBER:	073182
HEARING DATES:	13 November 2007
SUBMISSIONS CLOSED:	13 November 2007
DATE OF DECISION:	7 December 2007
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Dismissal of application - frivolous vexatious misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	NZ v Commissioner of Police NSW [2006] NSWADT 142 McGuirk v Attorney-General’s Department [2007) NSWADT 138
REPRESENTATION:	APPLICANT In Person RESPONDENT W Henningham, solicitor
ORDERS:	1. Respondent’s interlocutory application pursuant to s.73(5)(h) is refused; 2. Respondent’s application for costs is refused; 3. The parties are directed to approach the Tribunal Registry within 14 days to obtain a suitable date for a further directions hearing

REASONS FOR DECISION

1 The applicant has commenced these proceedings in this Tribunal seeking to review a decision by the respondent refusing access to certain documents under the Freedom of Information Act 1989. Exemption is claimed by the respondent, under clause 13(b) of the Schedule, with respect to only one document falling within the ambit of the applicant’s request for access.

2 The respondent has brought a preliminary application to have these proceedings summarily dismissed pursuant to s. 73(5)(h) of the Tribunal’s enabling legislation. The evidence relied upon by the parties are the formal documents that have been filed to date, no additional evidence being put forward for the purposes of this preliminary application. Both parties have filed written submissions and addressed the Tribunal orally at the hearing on 13 November 2007. By reason of the remoteness of the parties, and by consent, this hearing was conducted by telephone. The evidence was not developed or tested by cross-examination on this occasion.

3 Should this matter proceed to a determination on the merits the respondent would seek findings that the document under consideration is exempt under clause 13(b) to the Schedule and that a final determination ought to be made, as a matter of discretion, that access to this document should be refused. Before preparing this matter for substantive hearing the respondent wishes to have the proceedings dismissed summarily: the essential argument being that the proceedings are intended to harass, have been brought for a collateral purpose and are manifestly untenable, this latter point being made by the respondent with respect to the substantive application that the applicant has commenced. This was the way that the respondent’s case was put orally at the hearing. It is expressed a little differently in the written submissions. For the purposes of this summary dismissal application it is clear on the materials before the Tribunal that the question whether the document is exempt is a triable issue. The respondent did not seek summary dismissal upon any jurisdictional grounds, the only argument being that s.73(5)(h) has application in the circumstances.

4 The Tribunal accepts on the limited evidence before it that there is a basis…