McMahon v Director General, Department of Fair Trading

[2003] NSWADT 164

CITATION:	McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 revised - 10/07/2003
DIVISION:	General Division
PARTIES:	APPLICANT Stephen McMahon RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	023288
HEARING DATES:	16/04/2003
SUBMISSIONS CLOSED:	04/16/2003
DATE OF DECISION:	07/11/2003
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - confidential material - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Home Building Act 1989
CASES CITED:	McMahon v Director General, Department of Fair Trading [2003] NSWADT 63 Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 Re Maher and Attorney General's Department (1985) 7 ALD 731 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Wiseman v Commonwealth, unreported, Federal Court, 24 October 1989 Ryder v Booth [1985] VR 870
REPRESENTATION:	APPLICANT In person RESPONDENT M Allars, barrister
ORDERS:	The decision of the Director General to refuse access to the document, dated 21 May 2001, is affirmed.

Background

1 Mr Mc Mahon has made an application seeking review of a decision of the Director General, Department of Fair Trading (“Director General”), to refuse him access to a document, dated 21 May 2001, from his former defacto wife Ms Mary Kumar. Mr McMahon had requested access to the document pursuant to the Freedom of Information Act 1989 (“FOI Act”) and the Director General refused access to the document on the grounds that it was an exempt document under cls. 6 and 13(b) of Schedule 1 of the FOI Act. That is, access was refused on the grounds that the document contained information concerning the personal affairs of another person and that it contained confidential information.

2 The Director General made his original determination on 2 August 2002 and his determination was affirmed on 6 September 2002, following Mr McMahon’s request for an internal review of the original decision. Mr Mc Mahon initially lodged an application with the Tribunal for review on 14 November 2002. The question of whether Mr McMahon had lodged his application within the time prescribed by the FOI Act was raised as a preliminary issue. After a short hearing on this issue, the Tribunal determined that it had been lodged within time: McMahon v Director General, Department of Fair Trading [2003] NSWADT 63.

Evidence

3 Mr McMahon did not give any sworn evidence in respect of his substantive claim.

4 Ms Allars, on behalf of the Director General, provided the Tribunal, on a confidential basis, pursuant to s. 55 of the FOI Act, a copy of the document that is the subject of this application and a confidential affidavit.

5 Ms Allars also tendered into evidence two non confidential affidavits. The first affidavit was that of Rebecca Kiu, solicitor, employed with the Department of Fair Trading (”the Department”), affirmed on 14 April 2003. In her affidavit Ms Kiu made reference to the Department’s Privacy Management Plan (dated October 2000), Privacy Code of Practice (undated) and the Code of…