McDonald v Department of Lands (No 2)

[2009] NSWADT 156

CITATION:	McDonald v Department of Lands (No 2) [2009] NSWADT 156
DIVISION:	General Division
PARTIES:	APPLICANT Brett Ian McDonald and Michael Vivian McDonald RESPONDENT Department of Lands
FILE NUMBER:	073238
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	19 June 2009
DATE OF DECISION:	23 June 2009
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Application for dismissal on grounds of being frivolous, vexatious or lacking substance
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 LZ v Office of the Protective Commissioner [2008] NSWADTAP 50 McDonald and Anor v Director General, Department of Lands [2008] NSWADT 25 Walsh v Department of Lands [2008] NSWADT 340
REPRESENTATION:	APPLICANT J Hassan, agent RESPONDENT D Shulz, solicitor
ORDERS:	The application for dismissal is refused. The matter is to be listed for further directions.

Background

1 This matter has a complex procedural history. On 6 August 2007 the Tribunal received an Application for Review of a Decision. The application was made in the names of Mr Brett McDonald and Mr Michael McDonald, and stated that the decision which the applicants wished to have reviewed was “FOI0714”, made on 9 May 2007 and received on 14 May 2007. That decision was to affirm on internal review a determination to grant access under the Freedom of Information Act 1989 (the FOI Act) to a document described in the following terms:

“Application to close a Public Road” Form (CL-31-30) lodged with Lands regarding Crown public road at Williamsdale, in Palerang Council, Parish of Burra, County of Murray – now closed road Lot 1 on DP1075182.

2 The applicants had made the application to close the public road, and the respondent had consulted the applicants, as required by s32 of the FOI Act, before deciding whether or not to grant access to the document to a third party. The applicants opposed the granting of access on the basis that disclosure would disclose information relating to their personal and commercial affairs.

3 I considered, as a preliminary issue, whether the application for review had been lodged within the prescribed time: McDonald and Anor v Director General, Department of Lands [2008] NSWADT 25. I concluded that the application had not been lodged within the 60 day period prescribed by s54 of the FOI Act, and applying previous Tribunal decisions, determined that there was no power to extend the time and that accordingly the Tribunal had no jurisdiction.

4 The applicants applied to the Appeal Panel. Based on the decision in LZ v Office of the Protective Commissioner [2008] NSWADTAP 50, the Appeal Panel allowed the appeal, granted leave to extend time to lodge the application for review, and remitted the application for review for determination. The matter was scheduled for hearing on 2 March 2009.

5 On 22 December 2008 the Tribunal received a request made on behalf of Hanson Construction Materials Pty Ltd (the third party) that it be joined as a party to the proceedings. I made directions for the parties to file and serve submissions and responses on the issue of joinder.

6 By letter dated 15 January 2009 the respondent requested further directions from the Tribunal. The relevant parts of this letter were:

On 17 July 2007 Mr John Walsh, solicitor for Michael and Brett McDonald, lodged an application for review of a decision by the Department of Lands to grant Hanson Construction Materials Pty Ltd access to
“All documents in the possession of the Department relating to crown Road at Williamsdale in Palerang Council, Parish of Burra, County of Murray – now closed road lot 1 on DP1075182” (the first set of documents)
On 24 December 2008 Judicial Member Wilson affirmed the Department of Lands’ determination to grant access to the first set of document (“the first decision”).

On 8 August 2007 Michael and Brett Mc Donald lodged an application with the Tribunal directly (“the second application”). ...The second application seeks review of a separate decision by the department to grant Hanson Construction Materials Pty Ltd access to an

“Application to close a Public Road” Form (CL-31-30) lodged with Lands regarding Crown public road at Williamsdale, in Palerang Council, Parish of Burra, County of Murray – now closed road Lot 1 on DP1075182 (“the second set of documents”)
The first set of documents clearly includes the second set of documents. Given that a stay has not been sought or granted regarding the first decision, the second set of proceedings now appear to be somewhat otiose.

7 The hearing scheduled for 2 March 2009 was vacated, and the matter listed for directions on 10 February 2009. On that occasion the applicants indicated that they wished to appeal the decision of Judicial Member Wilson in Walsh v Department of Lands [2008] NSWADT 340. I made directions that the applicants take steps to initiate an appeal in that matter by 10 March 2009, and that the respondent file and serve any application for dismissal of this matter by 24 March 2009.

8 The applicants proceeded with the application to appeal the decision in Walsh v Department of Lands [2008] NSWADT 340. That appeal has not yet been determined by the Appeal Panel. I note in regard to that appeal that Hanson Construction Materials Pty Ltd has been joined as second respondent to the appeal.

9 On 18 March 2009 the respondent lodged an application for dismissal of this matter, including submissions in support of the application. The applicants have filed submissions opposing the application to dismiss, and the respondent has filed submissions in reply.

Respondent’s case

10 The respondent applies for dismissal of this matter under s73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 on the basis that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. The respondent submits that a determination of this matter would be a review of the previous decision of Judicial Member Wilson in Walsh v Department of Lands, and that the only body authorised tor review that decision is the Appeal Panel or the Supreme Court; in the alternative, that the proceedings in this matter seek to re-visit an issue between the parties that has already been determined against the applicants.

11 The basis for the respondent’s application is the argument that the “Application to close a Public Road Form (CL-31-30) lodged with Lands regarding Crown public road at Williamsdale, in Palerang Council, Parish of Burra, County of Murray – now closed road Lot 1 on DP1075182” (referred to as “the Road-Closing Application”), is included within the range of documents that were the subject of the request for access to “All documents in the possession of the Department relating to crown Road at Williamsdale in Palerang Council, Parish of Burra, County of Murray – now closed road lot 1 on DP1075182”. These documents were the subject of Judicial Member Wilson’s decision on 22 December 2008, and the respondent has now granted access to those documents with the exception of the Road Closing Application.

Applicants’ case

12 The applicants’ agent submits that these proceedings are not a breach of the principle of res judicata or issue estoppel and are in no way frivolous, vexatious, misconceived or lacking in substance, noting:

The matter has been proceeding for over two years simultaneously with the matter considered and wrongly decided by Judicial Member Wilson. An appeal has been lodged against Judicial Member Wilson’s decision. To dismiss this matter for want of substance or on the basis that it is frivolous or misconceived at this stage would make a mockery of the tribunal's proceedings.

If the proceedings were dismissed it would amount to a breach of natural justice and procedural fairness for our clients. If the Tribunal were to consider the dismissal of this matter, then that consideration should only take place once the appeals process in the appeal numbered 099006 has been finally exhausted.

Respondent’s reply

13 The respondent’s submissions in reply rely on its claim that these proceedings relate to the decision to grant access to the Road-Closing application, and that the Walsh matter relates inter alia to the very same subject matter and is now before the Appeal Panel. The respondent submits that to postpone a decision on the dismissal application would be to allow the applicants to re-ventilate issues already determined by the Appeal Panel.

Consideration

14 Section 73 of the ADT Act confers power to dismiss an application for review:

73 Procedure of the Tribunal generally

...

(5) The Tribunal:

...

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and

15 The respondent’s application depends on a finding that “the Road-Closing Application” which is the subject of these proceedings is included in the request for access made for the “first set of documents”, which was the subject of determination by Judicial Member Wilson. The matter before me concerns a request for a specific document, which the respondent has provided to the Tribunal on a confidential basis, in accordance with the usual Tribunal practice. The document is a four-page departmental form headed “CL31-30” containing handwritten information, and is accompanied by plans.

16 The terms in which the request for access to the “first set of documents” was framed are certainly sufficiently broad to have included such a document. In Walsh v Department of Lands [2008] NSWADT 340 Judicial Member Wilson describes the documents in dispute in paragraph 6 as being five in number, and discusses the application of the exemption provisions in paragraphs 11 – 15. It is not clear from that discussion whether the document in dispute in this matter is included. The documents are still held on the Tribunal’s file, and on checking that file, it became apparent that the document in dispute in this matter is not among the five documents considered in Walsh v Department of Lands [2008] NSWADT 340.

17 Whether or not this document should have been included is not to the point. The Tribunal’s jurisdiction is limited to a consideration of whether a respondent agency’s determination under s24 of the FOI Act is the correct and preferable decision. The Tribunal’s jurisdiction does not extend to a consideration of whether an agency has conducted sufficient searches and retrieved all the documents it in fact holds in responding to a request for access. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the terms of a request for access: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140.

18 The review conducted by Judicial Member Wilson was limited to the five documents then before him. That matter is now before the Appeal Panel, and the outcome of the appeal proceedings, whatever it is, will be limited to the five documents that were before Judicial Member Wilson. That outcome can have no bearing on whether or not the document at issue in these proceedings is exempt. The applicants are entitled to have the respondent’s determination that the document is not exempt, and can therefore be released, reviewed. Accordingly, whether or not the issue is expressed in terms of res judicata or issue estoppel, or in terms of whether the application for review is frivolous, vexatious, misconceived or lacking in substance, there is no basis for dismissing this application for review.

19 The question of whether Hanson Construction Materials Pty Ltd should be joined as a party to the review is yet to be decided. Once that application is determined, the substantive issues arising can be determined. The appropriate course is to list this matter for directions on a date suitable to the parties.

Order

20 Application for dismissal is refused. The matter is to be listed for further directions.