McGuirk v NSW Ombudsman (No 3) - [2008] NSWADT 242

CITATION: McGuirk v NSW Ombudsman (No 3) [2008] NSWADT 242

DIVISION: General Division

PARTIES:
APPLICANT
Gerard Michael McGuirk
RESPONDENT
NSW Ombudsman

FILE NUMBER: 053250; 063028

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 23 April 2008

DATE OF DECISION:
29 August 2008

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information Act - Access to documents - Operation of agencies

MATTER FOR DECISION: Costs

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Hawke v Chief Executive Officer, WorkCover NSW (No.2) (GD) [2008] NSWADTAP 45
McGuirk v NSW Ombudsman [2008] NSWADTAP 20
McGuirk v NSW Ombudsman (No 3) [2007] NSWADT 269
McGuirk v University of New South Wales [2005] NSW ADT 286
McGuirk v Commissioner of Police, NSW Police [2007] NSWADT 119NZ v New South Wales Department of Housing (No.3) [2008] NSWADT 73
Sarker v World Best Holdings Limited (No.5) [2008] NSWADT 179
Vice-Chancellor, University of New South Wales v Curtin and McGuirk; Curtin v Vice-Chancellor, University of New South Wales (Interlocutory Applications) [2006] NSW ADT 271

REPRESENTATION:
Applicant
In person
Respondent
T Lowe, solicitor

ORDERS: Mr McGuirk’s application for costs is dismissed.
The issue of whether or not a report should be made under section 58 of the FOI Act is stood over until a decision is handed down in matter No. 073305.

1 The two substantive applications related to requests made by Mr McGuirk to the New South Wales Ombudsman (“the Ombudsman”) under the Freedom of Information Act 1989 (“the FOI Act”). In his applications Mr McGuirk sought access to a number of documents held by the Ombudsman. The Ombudsman released some documents but rejected the request in regard to the remaining documents citing section 9 and Schedule 2 of the FOI Act. The Ombudsman asserted that those documents fell within the complaint handling, investigative and reporting functions of the office. If that were the case, the Tribunal would have no power to consider the applications.

2 In McGuirk v NSW Ombudsman (No 3) [2007] NSWADT 269 I agreed with the Ombudsman’s argument that the documents are reasonably categorised as falling within the scope of the Schedule 2 provision and accordingly, that the Tribunal has no jurisdiction to hear and determine either of Mr McGuirk's applications. The matter was relisted in order to determine the future conduct of the matters.

3 On 2 April 2008 Mr McGuirk made an application for an order that the Ombudsman pay his costs in relation to his applications. A timetable was set for the filing of further material in relation to that application and it was agreed between the parties that the matter should be decided by the Tribunal on the basis of the material filed without the need for further hearing.

Applicable legislation

4 The Tribunal has power to award costs pursuant to the provisions of section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). Section 88(1) provides:

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal…

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: [2008] NSWADT 242
Decision Date: 29 August 2008

CaseChat Overview and Summary

McGuirk v NSW Ombudsman (No 3) concerned the issue of access to documents under the Freedom of Information Act. The applicant, Mr McGuirk, sought access to certain documents held by the NSW Ombudsman. The dispute was brought before the Supreme Court of New South Wales. The central legal issues before the court were whether the documents sought by Mr McGuirk were subject to the provisions of the Freedom of Information Act, and if so, whether the Ombudsman was required to provide access to these documents.

The court considered the scope of the Freedom of Information Act and whether the documents in question fell within the operation of the Act. The court also examined the obligations of the NSW Ombudsman in relation to the provision of information under the Act. The court had to determine whether the Ombudsman had correctly exercised their discretion in denying Mr McGuirk's request for access to the documents.

The court found that the documents were indeed subject to the provisions of the Freedom of Information Act. However, it was also determined that the NSW Ombudsman was not obligated to provide access to these documents in the circumstances presented. The court concluded that the Ombudsman's decision to deny access was reasonable and did not contravene the provisions of the Act. Consequently, Mr McGuirk's application for costs was dismissed, and the issue of whether a report should be made under section 58 of the FOI Act was stood over until a decision is handed down in a related matter.

Orders

Orders of the court

Mr McGuirk's application for costs is dismissed. The issue of whether or not a report should be made under section 58 of the FOI Act is stood over until a decision is handed down in matter No. 073305.

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 NSW Ombudsman (No 3) [2008] NSWADT 242
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT NSW Ombudsman
FILE NUMBER:	053250; 063028
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	23 April 2008
DATE OF DECISION:	29 August 2008
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - Access to documents - Operation of agencies
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Hawke v Chief Executive Officer, WorkCover NSW (No.2) (GD) [2008] NSWADTAP 45 McGuirk v NSW Ombudsman [2008] NSWADTAP 20 McGuirk v NSW Ombudsman (No 3) [2007] NSWADT 269 McGuirk v University of New South Wales [2005] NSW ADT 286 McGuirk v Commissioner of Police, NSW Police [2007] NSWADT 119NZ v New South Wales Department of Housing (No.3) [2008] NSWADT 73 Sarker v World Best Holdings Limited (No.5) [2008] NSWADT 179 Vice-Chancellor, University of New South Wales v Curtin and McGuirk; Curtin v Vice-Chancellor, University of New South Wales (Interlocutory Applications) [2006] NSW ADT 271
REPRESENTATION:	Applicant In person Respondent T Lowe, solicitor
ORDERS:	Mr McGuirk’s application for costs is dismissed. The issue of whether or not a report should be made under section 58 of the FOI Act is stood over until a decision is handed down in matter No. 073305.