McGuirk v NSW Ombudsman

[2006] NSWADT 190

CITATION:	McGuirk v NSW Ombudsman [2006] NSWADT 190
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT NSW Ombudsman
FILE NUMBER:	053250 and 063028
HEARING DATES:	20/06/2006
SUBMISSIONS CLOSED:	06/20/2006
DATE OF DECISION:	06/21/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Application for adjournment
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Ombudsman Act 1974
CASES CITED:	McGuirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17
REPRESENTATION:	APPLICANT In person RESPONDENT S Cohen, solicitor
ORDERS:	1. The Ombudsman’s application for adjournment is refused; 2. Any submissions by the Ombudsman with respect to the further conduct of the matter are to be filed and served by Friday 30 June 2006; 3. Any submissions by Mr McGuirk with respect to the further conduct of the matter are to be filed and served by Friday 7 July 2006

1 Mr McGuirk has applied to the Office of the Ombudsman under the Freedom of Information Act 1989 (“the FOI Act”) seeking access to documents held by that office. The Ombudsman asserted that the documents sought fall within an exemption offered by section 9 and Schedule 2 of the FOI Act. Mr McGuirk sought review of the Ombudsman’s determinations in the Tribunal.

2 On 1 February 2006, application number 053250 was adjourned pending finalisation of an appeal in the decision in McGuirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17 (“the ICAC matter”). The issues in that matter are similar to those in these applications. Application number 063028 was subsequently adjourned on the same basis. The decision in the ICAC matter was finalised on 26 April 2006 and the Tribunal’s Appeal Panel accepted an argument that would not assist the Ombudsman in these matters. The Appeal Panel’s decision is now on appeal to the Supreme Court.

3 Mr McGuirk’s applications were relisted for further planning meetings on 20 June 2006 at which time Mr Cohen applied for the matters to be stood over generally pending determination of the Supreme Court matter. He submitted that the Ombudsman would be at a significant disadvantage if these matters were to proceed and the Supreme Court were to disagree with the Appeal Panel’s decision. In that circumstance the Ombudsman would have no remedy.

4 Mr McGuirk opposes Mr Cohen’s application. He asserts that given the subject matter of the Supreme Court appeal it is probable that there would be further appeals after the current appeal is finalised and that the matter may well proceed to the High Court. If that were the case, it could be several years before these matters would be finalised. He contends that the only disadvantage to which the Ombudsman would be put would be the cost of determining these applications in accordance with its own guidelines. In contrast, he would be placed at a significant disadvantage because of the amount of time the appeals are likely to take to be finalised.

5 Following completion of submissions by each of the parties, I reserved my decision on Mr Cohen’s application. I undertook to determine the matter today and to provide reasons for my decision.

6 After giving consideration to the respective arguments it is my view that the matter should proceed. Essentially I agree with the argument that Mr McGuirk has presented. I accept that the Supreme Court appeal is not likely to be finalised this year. I also accept that it is likely that there would be a further appeal regardless of the outcome of that matter. I also note that the Ombudsman is not a party to the Supreme Court appeal proceedings. While the issues in dispute in the Supreme Court appeal are relevant to these matters, they are distinct.

7 In my view the interests of the parties are best served if these matters are resolved without the benefit of the Supreme Court decision. I do not consider that the disadvantage to which the Ombudsman would be put is such that it should prevent these matters proceeding. I also note that the Ombudsman has appeal rights, which can be pursued to address any disadvantage.

8 In light of this decision, the parties are invited to make written submissions with respect to the further conduct of the matter. I will then make a direction as to the further conduct of the matter after consideration of those submissions.

Orders

1. The Ombudsman’s application for adjournment is refused.

2. Any submissions by the Ombudsman with respect to the further conduct of the matter are to be filed and served by Friday 30 June 2006.

3. Any submissions by Mr McGuirk with respect to the further conduct of the matter are to be filed and served by Friday 7 July 2006.