Potier v Department of Corrective Services (GD)

[2011] NSWADTAP 28

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Potier v Department of Corrective Services (GD) [2011] NSWADTAP 28
Hearing dates:	On the papers
Decision date:	08 June 2011
Before:	Judge K P O'Connor, President
Decision:	Leave to make interlocutory appeal not granted
Catchwords:	APPEAL - Interlocutory - Leave Refused
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
Cases Cited:	Potier v Department of Corrective Services [2011] NSWADT 53
Category:	Separate question
Parties:	Malcolm Huntley Potier (Appellant) Department of Corrective Services (Respondent)
Representation:	In Person (Applicant) G Singer (Respondent)
File Number(s):	119014
Decision under appeal	Jurisdiction: 9108 Citation: Potier v Department of Corrective Services [2011] NSWADT 53 Before: General Division File Number(s): 103076

REASONS FOR DECISION

1. APPEAL PANEL (K O'CONNOR, DCJ (PRESIDENT)): The General Division of the Tribunal presently has before it an application for review of an agency's decision to refuse to release documents sought under the Freedom of Information Act 1989 .

1. The Tribunal has made a preliminary decision dealing with objections raised by the applicant in response to the submissions of the agency: see Potier v Department of Corrective Services [2011] NSWADT 53 (15 March 2011).

1. The applicant now wishes to appeal against the Tribunal's rulings. He lodged a notice of appeal on 27 April 2011. In its reply the agency noted that, on its face, the appeal had not been lodged in time, but did not press any objection on that ground.

1. The Tribunal has yet to give substantive consideration to the documents in dispute, with one exception - in the decision under appeal it did make an order of remit to the respondent for reconsideration one of the disputed documents. That order is not in issue in this appeal.

1. The appeal therefore requires leave to proceed, as it is an interlocutory one. See Administrative Decisions Tribunal Act 1997 (the ADT Act), s 113. The notice of appeal included an application for leave. This decision deals with that application.

1. In accordance with directions, the applicant has filed submissions in support of the grant of leave, and the agency has filed submissions in reply, opposing the grant of leave. There was no direction allowing any further filing. Nonetheless the applicant has filed submissions in reply to the agency accompanied by an affidavit sworn by him (2 June 2011).

1. While that filing seeks to introduce evidence, I will proceed, as originally directed, to determine the question of leave on the papers without a hearing, as permitted by s 76 of the ADT Act.

1. The Tribunal's decision extracts at [7] paras 26 to 48 of the applicant's submissions as providing the background to its preliminary rulings. Those paragraphs were divided under two headings 'Claims by the Applicant of Inadequate Search' (26-39) and 'Access to Publicly Available Documents: the Junee contract' (40-48). The Tribunal responded to the second matter by the remittal order, with a recommendation to release. So that matter has been dealt with for the time being.

1. As the Tribunal notes in respect of the first matter (inadequacy of search) the Tribunal has no jurisdiction under the FOI Act to examine that kind of claim. The Tribunal referred to binding Court of Appeal authority. The notice of appeal seeks to challenge the Tribunal's understanding of the scope of that authority, contending that this is a case that falls outside its scope. In my view, this is an argument that need not be addressed at this stage. The Tribunal should be allowed to finalise the case.

1. The applicant also wishes to canvass an observation made by the Tribunal at [17]-[19] of its reasons about the agency's interpretation of the meaning to be given to one element of the access application. While the terms of the applicant's request were not confined to communications from a named officer (Officer Donaldson), the agency limited its response to communications from that officer. The Tribunal did not consider that any issue arose, treating it as another sufficiency of search issue.

1. It may be that an issue arises here. The applicant asserts that there is a distinction between a case where the agency properly interprets the scope of a request and fails to conduct an adequate search (not challengeable) and a case where the agency wrongly, and too narrowly, interprets the scope of a request and confines its search to the narrow compass. In the latter case it may be arguable that the documents that fell within the request properly interpreted (if they can be ascertained) have been the subject of a deemed refusal. But I think it premature to deal with that question at this stage. Again, it is better, I think, for the Tribunal to be left to dispose of the entirety of the application for review, and for any appeal to proceed after that.

1. I note that the submissions lodged 2 June 2011 traverse a range of further matters, many of which remain alive before the Tribunal. They should also first be dealt with by the Tribunal.

Order

Leave to make interlocutory appeal not granted.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar/Associate

Decision last updated: 08 June 2011