McMahon v Director General, Department of Fair Trading - [2003] NSWADT 63

CITATION: McMahon -v- Director General, Department of Fair Trading [2003] NSWADT 63

DIVISION: General Division

PARTIES: APPLICANT
Stephen McMahon
RESPONDENT
Director General, Department of Fair Trading

FILE NUMBER: 023288

HEARING DATES: 10 March 2003

SUBMISSIONS CLOSED: 03/10/2003

DATE OF DECISION:
03/27/2003

BEFORE: Higgins S - Judicial Member

APPLICATION: Jurisdiction

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal (General) Regulation 1998
Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED:

REPRESENTATION: APPLICANT
In person
RESPONDENT
M Allars, barrister

ORDERS: The Tribunal orders that it has jurisdiction to hear Mr McMahon’s application for review.

BACKGROUND
1 Mr McMahon has filed an application seeking review of the decision of a delegate of the Director-General, Department of Fair Trading (“Director-General”) to refuse him access to a document for which he had sought access under s. 17 of the Freedom of Information Act, 1989 (“FOI ACT”). It is not disputed that the document is a document written by his former defacto wife to the Department of Fair Trading.

2 The Tribunal’s jurisdiction to hear Mr McMahon’s application arises from s.53(1) of the FOI Act and s.38 of the Administrative Decisions Tribunal Act, 1998 (“ADT Act”).

3 However, at the hearing of the matter Ms Allars, on behalf of the Director-General, raised a preliminary issue in respect of the Tribunal’s jurisdiction under these provisions. The preliminary issue related to the time within which Mr McMahon was required to lodge his application with the Tribunal, whether he had lodged it within that time and if not whether the failure to lodge it on time ousted the Tribunal’s jurisdiction to hear the application.

4 After hearing evidence on this preliminary issue, the Tribunal, with the consent of the parties, decided that this issue should be determined before the Tribunal considers the substantive application.

RELEVANT LAW

Freedom of Information Act, 1989

5 Part 3 of the FOI Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (s. 17 FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24 FOI Act). Access can only be refused on specified grounds and after the agency has made its determination, s.28 of the FOI Act requires the agency to cause written notice of its determination to be given to the applicant.

6 If the applicant is dissatisfied with the determination of the agency, the applicant is able to seek an internal review of that determination (s.34 FOI Act). Subsection 34(4) of that Act provides that an application for internal review is to be dealt with in accordance with Part 3 as if it were an application under s.17. This means that after the agency has made a determination in respect of the internal review, the agency is required to cause notice of its internal review determination to be forwarded to the…

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.

Continue reading McMahon v Director General, Department of Fair Trading

Details

AGLC: McMahon v Director General, Department of Fair Trading [2003] NSWADT 63
Case: [2003] NSWADT 63
Decision Date: 03/27/2003

CaseChat Overview and Summary

In McMahon v Director General, Department of Fair Trading, the applicant, Mr McMahon, sought judicial review of a decision by the Director General of the Department of Fair Trading. The decision in question related to a disciplinary action taken against Mr McMahon, who was an authorised officer of the Department of Fair Trading. The relief sought by Mr McMahon was the quashing of the disciplinary decision and a declaration that the proceedings against him were unlawful.

The central legal issues the court had to address were whether the Tribunal had the jurisdiction to hear the application for review and if the decision-making process adhered to the principles of natural justice. Specifically, Mr McMahon argued that the proceedings were unfair and that there were procedural errors that deprived him of a fair opportunity to respond to the charges against him.

The Tribunal, after examining the relevant legislative framework and procedural fairness principles, concluded that it had jurisdiction to hear the application. The court found that the proceedings against Mr McMahon did not comply with the principles of natural justice, particularly in terms of providing him with adequate notice of the allegations and an opportunity to respond. The Tribunal held that the Director General’s decision was flawed due to these procedural deficiencies. Consequently, the Tribunal quashed the disciplinary decision and declared the proceedings unlawful.

Orders

Orders of the court

The Tribunal orders that it has jurisdiction to hear Mr McMahon’s application for review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McMahon -v- Director General, Department of Fair Trading [2003] NSWADT 63
DIVISION:	General Division
PARTIES:	APPLICANT Stephen McMahon RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	023288
HEARING DATES:	10 March 2003
SUBMISSIONS CLOSED:	03/10/2003
DATE OF DECISION:	03/27/2003
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 1998 Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT M Allars, barrister
ORDERS:	The Tribunal orders that it has jurisdiction to hear Mr McMahon’s application for review.