Taylor v Destination NSW

[2020] NSWCATAD 137

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Taylor v Destination NSW [2020] NSWCATAD 137
Hearing dates:	8 August 2019
Date of orders:	22 May 2020
Decision date:	22 May 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	The Respondent is referred to the Information Commissioner pursuant to s 111 of the GIPA Act in relation to the systemic issues identified in these proceedings
Catchwords:	ADMINISTRATIVE LAW — Freedom of information — Reviews and appeals – GIPA – whether systemic issue - referral to Information Commissioner
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Government Information (Information Commissioner) Act 2009 Government Information (Public Access) Act 2009 Ombudsman Act 1974
Cases Cited:	Beesley v Commissioner of Police, New South Wales Police Force [2000] NSWADT 52 Destination NSW v Taylor [2019] NSWCATAP 123 Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Shoebridge v Commissioner of Police, NSW Police Force [2013] NSWADT 302 Taylor v Destination NSW [2017] NSWCATAD 272 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Zonnevylle v Department of Justice [2019] NSWCATAP 44 Zonnevylle v Minister for Education [2019] NSWCATAD 28
Texts Cited:	None cited
Category:	Consequential orders (other than Costs)
Parties:	Andrew Taylor (Applicant) Destination NSW (Respondent) Information Commissioner (Intervenor)
Representation:	Solicitors: Banki Haddock Fiora (Applicant) Crown Solicitor (Respondent) Office of the Information Commissioner (Intervenor)
File Number(s):	2016/00378436
Publication restriction:	Nil

reasons for decision

Background

1. In the decision of Taylor v Office of Destination NSW [2018] NSWCATAD 195 (‘the 2018 Decision’) I determined at [99]:

In considering the remedies expressed in Beesley for the Tribunal’s dissatisfaction with the agency’s evidence of searches, I note that this Tribunal has already directed the Respondent to conduct additional searches. Bearing in mind the Tribunal’s objects expressed at s 3 of the Civil and Administrative Tribunal Act 2013, making the same order a second time would be inappropriate. The utility of production of better evidence as to searches would also be questionable in the circumstances. The option of referral by the Tribunal’s President to the Ombudsman is available under s 35D of the Ombudsman Act 1974. There is also an option for the referral of the Respondent to the Information Commissioner pursuant to s 111 of the GIPA Act in relation to systemic agency issues of compliance with the GIPA Act. However, prior to such a referral, in according with the rules of procedural fairness, the Respondent should be afforded the opportunity to make submissions.

2. The Information Commissioner and the Applicant filed submissions on the issue of referral on 20 September and 24 September 2018 respectively (referred to hereafter as “Applicant’s Submissions” and “IC’s Submissions”).

3. The Respondent appealed my decision on various grounds. In the appeal Destination NSW v Taylor [2019] NSWCATAP 123, the Appeal Panel at [89] stated:

In our view, the Tribunal has not breached the rules of procedural fairness and this ground of appeal fails. We will direct the…