Pearlman v The University of Western Australia

In the matter of Pearlman v The University of Western Australia, the applicant sought a review of a decision made by the Commissioner of the Office of the Information Commissioner (WA) (Commissioner). The dispute centred on whether the expression of a preliminary view by the Commissioner constituted a "decision" under section 85(1) of the Freedom of Information Act 1992 (WA). The court was tasked with determining the legal issues surrounding the Commissioner's powers and whether the Commissioner's expression of a preliminary view constituted pre-judgment or a decision with finality.

The primary legal issues the court addressed were whether the Commissioner's expression of a preliminary view constituted a "decision" within the meaning of the Act and whether the Commissioner had the authority to make such a view without reaching a final decision on the access complaint. The court also considered the scope of the Commissioner's powers under section 64 of the Act and whether the Commissioner's authority was limited to making decisions that had finality in disposing of the access complaint.

The court held that the Commissioner's power under section 64 was broad and general, but did not extend beyond the scope of the Commissioner's functions. The court found that the Commissioner's expression of a preliminary view did not constitute a decision with finality and that the Commissioner was required to make a decision that disposed of the access complaint. The court concluded that the Commissioner's finding that the access complaint had been resolved by conciliation was an error of law, as it exceeded the Commissioner's authority to make a final decision. The court determined that the Commissioner's powers were limited to making decisions that had finality and that the Commissioner was not required to make findings of fact or assess the veracity of the subject matter of the complaint when resolving a matter by negotiation or conciliation.

The court quashed the decision of the Commissioner and remitted the matter to the Commissioner for reconsideration in accordance with the court's findings. The Commissioner was directed to make a decision that had finality in disposing of the access complaint, in accordance with the provisions of the Act.