N v Director General, Attorney General's Department (No. 4)

[2003] NSWADT 122

CITATION:	N -v- Director General, Attorney General's Department (No. 4) [2003] NSWADT 122 revised - 25/06/2003
DIVISION:	General Division
PARTIES:	APPLICANT N RESPONDENT Director General, Attorney General's Department
FILE NUMBER:	013091
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12/10/2002
DATE OF DECISION:	05/23/2003
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	freedom of information - immunity - judicial function - Freedom of Information Act - immunity - judicial function
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	N v Commissioner of Police, New South Wales Police Service (No. 3) [2002] NSWADT 34 Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93 Neary -v- The Treasurer, New South Wales [2002] NSWADT 261
REPRESENTATION:	APPLICANT In person RESPONDENT R Ellis, solicitor
ORDERS:	1. Application dismissed. ; 2. Decision under review affirmed

1 This application for review was lodged with the Tribunal on 17 April 2001. It has been the subject of a hearing on preliminary questions of jurisdiction and of several planning meetings, the last of which was held on 10 December 2002.

2 The application for review in its original form challenged a determination of the Attorney General’s Department refusing to release various documents sought by the applicant said to be in the possession of the Victims Compensation Tribunal (VCT), a service administered by the Department. The request was made on 14 September 1998 and the determination in issue made after internal review on or about 27 November 1998. In that request the applicant sought documents relating to four named persons, only two of whom (X and Y), he was informed, had lodged claims with the VCT in which they had named the applicant as perpetrator of offences against them.

3 The respondent objected to the jurisdiction of the Tribunal so far as it related to documents of the VCT. The respondent submitted that they were rendered immune from FOIA by s 10 which provides that FOIA does not apply to judicial functions of courts and tribunals. In a decision delivered on 8 March 2002, the Tribunal held that s 10 did not apply to VCT documents: N (No 2) v Commissioner of Police, New South Wales Police Service [2002] NSWADT 33. This outcome affected but did not entirely dispose of the present application for review. This was due mainly to the fact that all but two of the documents relevant to this request had not been lodged with the Tribunal for inspection. Therefore the Tribunal could not take the final step, once having ruled that certain kinds of documents were immune from FOIA, of satisfying itself that the actual documents withheld fell within the immunity.

4 The respondent’s Amended Schedule divided the documents affected by the request in issue into three categories, of which the second and third were not affected by the s 10 point. The categories were:

(1) VCT file 95-7026 relating to application by Y (16 documents); file 97-33047 relating to application by X (30 documents) [not lodged originally].

(2) Transcripts of VCT and District Court proceedings, said to be exempt by reference to the exemption contained in cl 11 of Schedule 1 to FOIA (documents relating to the judicial functions of a court) [not lodged originally].

(3) Two documents: one, being a letter from the NSW Police Service to the VCT requesting file information from the VCT in respect of its investigation of an allegation that a fraudulent claim had been made on the Tribunal; and the second is subsequent advice to the Tribunal in respect of the Police Service’s conclusions. The exemption invoked was cl 6 (unreasonable disclosure of the personal affairs of a person other than the applicant) [lodged originally].

5 In the decision delivered 8 March 2002, the Tribunal expressed the provisional view that the category (2) documents, if not immune by reference to s 10 would have, on their face, the benefit of cl 11. There was no substantive consideration of the general issues relating to the documents in category (3).

6 It was against this background that the Tribunal ordered that the present application be relisted for a further planning meeting. The applicant decided not to press his application in relation to the category (2) and category (3) documents above. At the planning meeting by consent of the parties, the application was dismissed in those respects.

7 That left the application unresolved in relation to the category (1) documents. In that regard it was therefore necessary for the Tribunal to inspect the 46 documents; and satisfy itself that they were covered by the s 10 immunity. Those documents were then lodged with the Tribunal by the Crown Solicitor’s Office on behalf of the VCT.

8 I have proceeded by comparing each of the documents with the description given by the respondent in the Amended Schedule of Documents made available to the applicant (Ex E in the proceedings that occurred on 22 November 2001 prior to the ruling on jurisdiction).

9 I have taken into account the affidavit sworn by the applicant on 11 April 2002, his submissions filed 13 March and 9 April 2002 and further submissions by the respondent filed 22 March 2002.

10 I am satisfied that each of the descriptions given in the Amended Schedule of Documents is accurate, and that s 10 has properly been invoked in relation to each of them. It is not required, consequently, for me to take into account any of the factual assertions made by the applicant in his affidavit of 11 April 2002. (I had indicated to the respondent that if any account was to be taken of those factual assertions, it would be given an opportunity to test them).

11 The applicant has made detailed submissions in support of the view that the Tribunal should nevertheless set aside the determination of the agency ‘in the public interest’. The availability of such a discretion to the Tribunal is said to arise from an interpretation of the general power of agencies to grant or refuse access (FOIA s 25). The proposition has enjoyed some currency in the Tribunal since a ruling in an early case, Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93. In Neary -v- The Treasurer, New South Wales [2002] NSWADT 261 delivered 13 December 2002, in my capacity as Divisional Head and in the absence of any Appeal Panel ruling to the contrary, I stated that this ruling should no longer be followed in the Tribunal. I ruled that there was no ‘public interest override’ discretion conferred on the Tribunal by FOIA, in contradistinction to the position in Victoria under that State’s legislation. I ruled that any consideration of the public interest may only occur where it is expressed to be a relevant criterion within the formulation of the relevant exemption clause (there are several instances of that in FOIA, but none relevant to this case).

12 Accordingly, the submissions as to public interest have not been considered.

Order

1. Application dismissed.
2. Decision under review affirmed.