Retain Beacon Hill High School Committee Inc v Landcom

[2008] NSWADT 283

CITATION:	Retain Beacon Hill High School Committee Inc v Landcom [2008] NSWADT 283
DIVISION:	General Division
PARTIES:	APPLICANT Retain Beacon Hill High School Committee Incorporated RESPONDENT Landcom
FILE NUMBER:	053283
HEARING DATES:	14 October 2008
SUBMISSIONS CLOSED:	14 October 2008
DATE OF DECISION:	17 October 2008
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Access to documents – adequacy of search – jurisdiction - referral of matter to Ombudsman
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Ombudsman Act 1974
CASES CITED:	Retain Beacon Hill High School Committee Inc v Landcom [2006] NSWADT 108 Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 Cianfrano v Audit Office of NSW [2008] NSWADT 183 Re Judiciary and Navigation Acts (1921) 29 CLR 257 McIntosh v National Australia Bank (1988) 17 FCR 482 Director General, Department of Commerce v Cianfrano & Anor [2008] NSWADTAP 56 Brown v Petrie (1997) 7 Tas R 216
REPRESENTATION:	APPLICANT C Saggers, agent RESPONDENT S Morris, solicitor
ORDERS:	The proceedings are dismissed.

1 On 17 August 2005, Sue Covey, the Secretary of the Retain Beacon High School Committee Incorporated (‘the Committee’), acting on behalf of the Committee, applied to the Tribunal for the review of a decision made by Landcom, dated 25 May 2005, confirmed on an internal review on 13 July 2005, to refuse access to certain documents requested by the Committee. The Committee’s application, dated 20 April 2005, requesting access to “all documents and communications in relation to ... Beacon Hill High School from 1 January 2000 to 20 April 2005”, is one of a number of applications made by the Committee to NSW government departments/agencies relating to the site of the former Beacon Hill High School.

2 Landcom agreed to release some of the relevant documents, but refused access to others pursuant to section 25 and Schedule 1, Part 2, clause 7 of the Freedom of Information Act 1989 (‘the FOI Act’), on the ground that they were exempt documents containing information relating to Landcom’s commercial practices. Following the application to the Tribunal, Landcom reviewed its decision and released further documents to the Committee. The documents released inadvertently included two unedited documents in respect of which Landcom claimed partial exemptions.

3 Landcom requested that the Tribunal order the Committee to return the two documents to Landcom. After considering the parties’ submissions, I determined as a preliminary issue that the Tribunal did not have power to make such an order: Retain Beacon Hill High School Committee Inc v Landcom [2006] NSWADT 108. Following this, I conducted Planning Meetings with the parties on 1 August 2006, 13 March 2007, 20 August 2007, 11 February 2008, and 10 June 2008. Landcom prepared a revised schedule of documents said to fall within the original FOI application, and ultimately, on 25 June 2008, released to the Committee in full all the remaining documents in respect of which an exemption had been claimed. However, the Committee continued to question the adequacy of the search for relevant documents undertaken by Landcom and sought a determination from the Tribunal on this issue.

4 In a decision dated 19 June 2008, the NSW Court of Appeal held that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by an agency in response to a request for access to an agency’s documents made pursuant to sections 17 and 18 of the Act: Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 (‘ADTAP v Commerce’). The Court’s determination on this issue is binding on the Tribunal. (See my decision in Cianfrano v Audit Office of NSW [2008] NSWADT 183.)

5 I conducted a further Planning Meeting with the parties on 8 July 2008 at which the Committee requested that the Tribunal refer the issue of the adequacy of Landcom’s search for relevant documents to the NSW Ombudsman pursuant to a Memorandum of Understanding (‘MOU’) entered into between the Tribunal and the Ombudsman in December 2006. I invited written submissions from the parties on this issue and, on 14 October 2008, heard further oral submissions.

The Committee’s Submissions

6 The Committee recognises that pursuant to the decision of the NSW Court of Appeal in ADTAP v Commerce, the Tribunal has no jurisdiction to review the adequacy of searches undertaken by an agency in response to an FOI application. However, the Committee submits that pursuant to the MOU, the Tribunal must draw an applicant’s attention to the power conferred on the Ombudsman to review matters outside the Tribunal’s jurisdiction, and requests that the Tribunal refer the matter to the Ombudsman. Further, the Committee seeks an adjournment of these proceedings either, it appears, to enable the Ombudsman to deal with a referral by the Tribunal as to the adequacy of the search for documents undertaken by Landcom, or to enable the Committee to forward a complaint to the Ombudsman about this and to enable the Ombudsman to deal with the complaint.

7 The Committee contends that this is the correct and preferable decision in the light of (1) the objects of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), which emphasise that proceedings before the Tribunal should be determined in an informal and expeditious manner in such a way as to promote and effect compliance by administrators with NSW legislation enacted for the benefit of NSW citizens (section 3(c) and (g)), and (2) the objects of the FOI Act, which emphasise that the discretions conferred by the Act “shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information” (section 5(3)(b)). The Committee’s FOI application to Landcom was dated 20 April 2005, and the matter has now been on foot for about three and a half years.

8 Mr Saggers referred the Tribunal to the wording of the MOU stating that the Tribunal “will inform the applicant and draw their attention to the powers of the Ombudsman to review the matter”, indicating, he said, that this is a mandatory requirement. It is not for the Tribunal to “second guess” the level of an applicant’s understanding of the scheme for review of administrative action enacted by Parliament. The Committee should have the opportunity to refer matters of possible maladministration to the Ombudsman for investigation. Where the Ombudsman is undertaking an investigation, there needs to be a stay of the proceedings before the Tribunal. The Committee therefore seeks a stay of the present proceedings pending referral of the issue of adequacy of search to the Ombudsman.

Landcom’s Submissions

9 Landcom submits that the Tribunal can only refer a “matter” to the Ombudsman pursuant to the MOU where it has jurisdiction in respect of that matter. “Matter” should be taken to mean not simply a legal proceeding, but rather the subject matter for determination in a legal proceeding: Re Judiciary and Navigation Acts (1921) 29 CLR 257, at 265. Referring a matter to the Ombudsman constitutes the exercise of jurisdiction in respect of that matter: McIntosh v National Australia Bank (1988) 17 FCR 482 at 483 (per Gummow J). As the NSW Court of Appeal held in ADTAP v Commerce, the Tribunal has no jurisdiction to review the adequacy of searches undertaken by an agency – the appropriate recourse is “to seek prerogative relief, or relief via the Ombudsman Act” (Beazley JA at [76] and see also Giles JA at [78] and Basten JA at [106]).

10 Landcom contends that its submission is supported by the fact that section 39(1)(a) of the ADT Act requires the Tribunal to consider whether it is more appropriate for the Ombudsman to deal with the matter before making a referral. For the Tribunal to make such a preliminary assessment would be inconsistent with the Court of Appeal’s decision in ADTAP v Commerce, and the Court did not suggest that the appropriate course where the adequacy of a search is in issue is for the matter to be referred by the Tribunal to the Ombudsman. Further, the use of the word “more” in section 39(1)(a) assumes some degree of appropriateness in the Tribunal considering the matter. This is clearly not the case if the Tribunal is without jurisdiction.

11 Landcom notes that the MOU distinguishes between assisting an applicant to make a complaint to the Ombudsman “whether or not it is within the jurisdiction of the Tribunal”, and a formal referral to the Ombudsman, which is not so qualified. Moreover, at the time the MOU was gazetted, on 5 January 2007, the Tribunal was of the view that it did have jurisdiction in such matters. Landcom submits that following the Court of Appeal’s decision, to the extent that the arrangements in the MOU contemplate referral of such matters to the Ombudsman, those arrangements are invalid.

12 Alternatively, if the Tribunal finds that it is not necessary for it to have jurisdiction in order to refer a matter to the Ombudsman, Landcom submits, firstly, that the Tribunal should not make a referral. As the Tribunal’s Appeal Panel has recently stated, “neither section 39 nor the Arrangements with the Ombudsman oblige the Tribunal to refer any particular matter to the Ombudsman”: Director General, Department of Commerce v Cianfrano & Anor [2008] NSWADTAP 56 (‘Commerce v Cianfrano’), at [13]. In the present case, the Ombudsman has not consented to the referral, as the MOU requires. Secondly, it is not “more appropriate” for the matter to be dealt with by the Ombudsman. The Committee’s concerns about the adequacy of the search undertaken by Landcom were addressed by Robert Kennedy, the Development Director of Landcom, in a Statement of Evidence filed on 5 June 2008, in which he described the provision of additional documents to the Committee following further searches undertaken at his request, and provided an explanation in respect of each category of document the Committee claims is missing.

13 Landcom submits that if the Tribunal is minded to refer the adequacy of its search for documents to the Ombudsman, it is not appropriate for the proceedings to be adjourned where the only matter in issue is one in respect of which the Tribunal does not have jurisdiction: Brown v Petrie (1997) 7 Tas R 216. Furthermore, even if the proceedings could be adjourned pursuant to section 39(5)(c) of the ADT Act, there is no utility in doing so because there is nothing flowing from the Ombudsman’s investigation of a complaint that could affect the Tribunal’s functions on a review application under the FOI Act. Landcom submits that the appropriate course is for the Tribunal to dismiss the proceedings pursuant to section 73(5)(h) of the ADT Act.

14 With regard to the Committee’s submissions, Landcom notes that the MOU arrangements which contemplate the Tribunal assisting an applicant to make a complaint to the Ombudsman, appear to be designed to address the situation where an applicant is not aware of the Ombudsman’s powers of review. This aspect of the arrangements appears to be of minimal utility in the context of the FOI Act where a notice of determination is required to identify a person’s right to complain to the Ombudsman. Moreover, in this case, the Committee itself raised referral to the Ombudsman as an issue. With regard to section 39(5)(c) of the ADT Act, Ms Morris noted that the powers of the Tribunal include dismissing proceedings to give effect to an arrangement.

Discussion

15 Section 39(1) of the ADT Act states that the President of the Tribunal and the Ombudsman may enter into arrangements regarding any of the following:

“(a) matters that the Tribunal will refer to the Ombudsman where it considers that the matter can be the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974 and that it would be more appropriate for the Ombudsman to deal with the matter,

(b) ...

(c) ...

(d) the co-operative exercise of the respective functions of the Tribunal and the Ombudsman.”

16 Section 39(2) requires notice of any such arrangements to be published in the NSW Government Gazette. Section 39(3) states that the Tribunal and the Ombudsman “are empowered to exercise their functions in conformity with any relevant arrangements entered into under this section”. Section 39(5) states relevantly:

(5) without limiting subsection (3):

(a) ...

(b) ...

(c) the Tribunal may dismiss, adjourn or stay proceedings for an application for the review of a reviewable decision to give effect to an arrangement entered into under this section, and

(d) ...

17 In December 2006, the President of the Tribunal and the Ombudsman entered into such an arrangement in the form of a MOU, notice of which was published in the Gazette on 5 January 2007 (at pp 22-23). The MOU provides relevantly:

“(i) Assisting the applicant to make a complaint to the Ombudsman

Where the Tribunal receives an application or where aspects of an application or matters arising from an application come to light that it considers could more appropriately be dealt with by the Ombudsman, whether or not it is within the jurisdiction of the Tribunal, and whether or not it forms that opinion during the course of a hearing or preliminary conference, the Tribunal will inform the applicant and draw their attention to the powers of the Ombudsman to review the matter.

The Tribunal will advise an applicant of the powers of the Ombudsman to review and investigate any matter of maladministration related to a reviewable decision that it becomes aware of and which it is not able to deal with ...

The Tribunal will consider any application for an adjournment of a preliminary conference or a proceeding to enable an applicant to lodge a complaint or make appropriate enquiries of the Ombudsman and to consider their position ...

(ii) Formal referral to the Ombudsman

The Tribunal will only formally refer a matter to the Ombudsman pursuant to s 39(1)(a) of the Administrative Decisions Tribunal Act 1997 with the consent of the applicant and the Ombudsman.

The types of matters that may be referred to the Ombudsman include:

...

Freedom of Information matters where there is a denial of the existence of documents by an agency and the Ombudsman could rely on its search and investigative powers (including claims that documents have been lost, destroyed or never existed), and ...”

18 The Committee has requested that the Tribunal refer the issue of the adequacy of search to the Ombudsman. As the Appeal Panel stated in Commerce v Cianfrano, at [13], quoted above, neither section 39(1) nor the arrangements made with the Ombudsman set out in the MOU oblige the Tribunal to refer a particular matter to the Ombudsman. Section 39(1)(a) clearly contemplates that the Tribunal will, in any particular case, need to consider and form a view as to whether “the matter can be the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974 and that it would be more appropriate for the Ombudsman to deal with the matter”.

19 I agree with Landcom’s submission that for the Tribunal to form such a view necessarily involves an exercise of jurisdiction. At the time the MOU was gazetted on 5 January 2007, the Tribunal took the view that it did have jurisdiction with regard to the adequacy of an agency’s search for documents, and the wording of the MOU under the heading “Formal referral to the Ombudsman”, quoted above, reflects this view. However, following the NSW Court of Appeal decision in ADTAP v Commerce, it is clear that the Tribunal has no such jurisdiction. Thus, in my view, the Tribunal has no power to make a formal referral to the Ombudsman in the present case.

20 The Committee submits that notwithstanding that the Tribunal has no jurisdiction with regard to the adequacy of a search for documents, the wording of the MOU under the heading “Assisting the applicant to make a complaint to the Ombudsman”, quoted above, obliges the Tribunal to draw an applicant’s attention to the power conferred on the Ombudsman to review matters outside the Tribunal’s jurisdiction. Mr Saggers said it is not for the Tribunal to “second guess” the level of an applicant’s understanding of the scheme for the review of administrative action enacted by Parliament and, in particular, it would seem, of the role and powers of the Ombudsman in relation to that scheme.

21 In my view, the wording of the first paragraph under that heading clearly contemplates that the Tribunal will need to consider whether a matter could more appropriately be dealt with by the Ombudsman in deciding whether to inform the applicant and draw their attention to the powers of the Ombudsman to review the matter. Given what would appear to be a lower level of assessment required in forming this view by comparison with that required in deciding whether to make a formal referral, and given that the obligation on the Tribunal is solely that of providing information to the applicant, it seems reasonable to assume that the providing of information to an applicant in such circumstances would not be beyond the power of the Tribunal.

22 In the present case, I have no doubt from my dealings with the Committee in a number of proceedings brought in the Tribunal that the Committee is sufficiently aware of the powers of the Ombudsman in such matters and capable of making a complaint to the Ombudsman. As Landcom pointed out in its submissions, it was the Committee that raised the issue of a referral to the Ombudsman and requested that the Tribunal exercise its power to make such a referral. In my view, there would be no utility in this case in providing further information to the Committee concerning the Ombudsman’ powers.

23 The Committee also seeks an adjournment of the proceedings to permit an investigation by the Ombudsman, whether, it seems, following a referral by the Tribunal or in response to a complaint lodged by the Committee. In my view, an adjournment would not be appropriate at this stage in these proceedings given that the Tribunal has no jurisdiction in relation to the adequacy of Landcom’s search for documents, and given that all the documents identified by Landcom in response to the Committee’s FOI application have now been released in full. I also note the Statement of Evidence prepared by Robert Kennedy, Development Director of Landcom, filed on 5 June 2008, in which he responds to questions raised by the Committee about a series of documents that the Committee contends should have been released to it.

24 If pursuant, to an investigation by the Ombudsman, further documents were to be identified as being relevant to the original FOI application, then Landcom would need to make a fresh determination about whether to claim exemptions in respect of those documents. Were the Committee to be dissatisfied with the outcome, it could then invoke the review process in the normal way. If, ultimately, the matter were to be appealed to the Tribunal, it would then have jurisdiction to conduct a review in relation to that fresh determination. However, the Tribunal would not otherwise have jurisdiction in relation to that fresh determination. Thus, the adjournment of these proceedings would be of no utility.

25 In view of the fact that all documents identified by Landcom in response to the Committee’s FOI application have now been released, and that the Tribunal has no jurisdiction in relation to the adequacy of Landcom’s search for documents, there is no further role for the Tribunal to perform in these proceedings. I agree with Landcom that the appropriate course, therefore, is for me to exercise the power of the Tribunal under section 73(5)(h) of the ADT Act to dismiss the proceedings on the ground that they are now lacking in substance.