McGuirk v Attorney General's Department - [2007] NSWADT 138

CITATION: McGuirk v Attorney General’s Department [2007] NSWADT 138

DIVISION: General Division

PARTIES: APPLICANT
Michael (Gerard) McGuirk
RESPONDENT
Attorney General’s Department

FILE NUMBER: 063263

HEARING DATES: 12 April 2007

SUBMISSIONS CLOSED: 12 April 2007

DATE OF DECISION:
25 June 2007

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Costs - Dismissal of application - frivolous vexatious misconceived or lacking in substance

MATTER FOR DECISION: Preliminary matter
Costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195
McGuirk v Director General, Attorney General’s Department [2006] NSWADT 265
University of NSW v McGuirk [2006] NSWSC 1362
Neary v The Treasurer, New South Wales [2002] NSWADT 261

REPRESENTATION:
APPLICANT
In person
RESPONDENT
J. McDonnell, Solicitor

ORDERS: 1. The applicant’s application is dismissed under s.73(5)(h) of the Administrative Decisions Tribunal Act 1997; 2. There are no orders as to costs.

REASONS FOR DECISION

1 The respondent, the Attorney General’s Department, has made an application that the applicant’s (Mr McGuirk’s) application for review of a decision of the respondent under the Freedom of Information Act 1989 (‘the FOI Act’) be dismissed on the grounds that it was frivolous, vexatious and lacking in substance. That application was heard on 12 April 2004 and I reserved my decision.

Relevant legislation

2 Section 73 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) makes provision for the procedure of the Tribunal generally. This section so far as it is relevant to this application provides as follows:

73 Procedure of the Tribunal generally
(1) The Tribunal may, subject to this Act and the rules of the Tribunal determine its own procedure.

(2) …

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal is to:

(a) is to act as quickly as is practicable, and
(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case 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] NSWADT 138
Decision Date: 25 June 2007

CaseChat Overview and Summary

The case of McGuirk v Attorney General's Department involved a legal dispute between McGuirk, the applicant, and the Attorney General's Department. The matter was heard in the Administrative Appeals Tribunal (AAT), where McGuirk sought to challenge a decision made by the Attorney General's Department. The applicant argued that the decision was flawed and sought various remedies. The AAT was tasked with determining the validity of McGuirk's application and any associated costs.

The primary legal issue before the AAT was whether McGuirk's application was frivolous, vexatious, misconceived, or lacking in substance. This determination was crucial as it would affect the tribunal's ability to grant the applicant's relief. The AAT had to assess the merits of the application and decide if it warranted the tribunal's time and resources. The court needed to weigh the substance of the arguments presented by McGuirk against the potential for the application to cause unnecessary delay or expense.

In delivering its decision, the AAT found that McGuirk's application was indeed frivolous, vexatious, misconceived, or lacking in substance. The tribunal concluded that the application did not present a viable legal challenge and was more likely to cause unnecessary delay or expense. As a result, the AAT dismissed the application under section 73(5)(h) of the Administrative Decisions Tribunal Act 1997. The tribunal also made no orders as to costs, indicating that the application did not meet the threshold for awarding costs against the applicant.

The AAT's decision effectively terminated McGuirk's attempt to challenge the Attorney General's Department's decision. The dismissal of the application and the refusal to award costs underscored the tribunal's view that the application was without merit and served no useful purpose. This outcome highlights the importance of ensuring that legal applications are well-founded and not an unnecessary burden on the tribunal system.

Orders

Orders of the court

1. The applicant's application is dismissed under s.73(5)(h) of the Administrative Decisions Tribunal Act 1997; 2. There are no orders as to costs.

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:	McGuirk v Attorney General’s Department [2007] NSWADT 138
DIVISION:	General Division
PARTIES:	APPLICANT Michael (Gerard) McGuirk RESPONDENT Attorney General’s Department
FILE NUMBER:	063263
HEARING DATES:	12 April 2007
SUBMISSIONS CLOSED:	12 April 2007
DATE OF DECISION:	25 June 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Costs - Dismissal of application - frivolous vexatious misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195 McGuirk v Director General, Attorney General’s Department [2006] NSWADT 265 University of NSW v McGuirk [2006] NSWSC 1362 Neary v The Treasurer, New South Wales [2002] NSWADT 261
REPRESENTATION:	APPLICANT In person RESPONDENT J. McDonnell, Solicitor
ORDERS:	1. The applicant’s application is dismissed under s.73(5)(h) of the Administrative Decisions Tribunal Act 1997; 2. There are no orders as to costs.