Watson v NSW Trustee and Guardian - [2015] NSWCATAD 139

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Watson v NSW Trustee and Guardian [2015] NSWCATAD 139
Hearing dates: 24 June 2015
Date of orders: 24 June 2015
Decision date: 24 June 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
1. The matter is remitted for redetermination pursuant to section 65 of the Administrative Decisions Review Act 1997.

2. The redetermination is to be completed within 28 days of the date of this decision.
3. The matter is listed for further directions at 9.30 am on 4 August 2015
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009
Cases Cited: Cianfrano v NSW Ombudsman [2007] NSW ADT 273
Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111
DF v Director General, Attorney General's Department [2002] NSWADT 164,
Miller v Director of Public Prosecutions [2012] NSWADT 38
Raethel v Director-General, Department of Education & Training [1999]).
Category: Procedural and other rulings
Parties: Matthew Watson (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Solicitors:
M Watson (Applicant in person)
Crown Solicitor’s Office (Respondent)

File Number(s): 1410636
Publication restriction: Section 64 of the Civil And Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are not to be released to either the Applicant or to the public

REASONS FOR DECISION

Mr Watson has applied to the Tribunal for review of a determination by the Respondent, the NSW Trustee and Guardian (“TAG”) in regard to his application for access to government information under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The information sought concerns complaints made by Mr Watson to the TAG, the Office of the Legal Services Commissioner ("OLSC") and the office of the Ombudsman regarding the TAG's conduct in administering a deceased estate. In his access application Mr Watson sought:

All correspondence (including but not limited to) emails, file notes of telephone conversations, letters and facsimiles) relating to complaints made by Matthew Robert Watson about TAG conduct during the handling of the estate and affairs of (the deceased). This includes communications to and from TAG figures including Mr Paul Marshall, Ms Ruth Pollard, Ms Linda McGirr, Mr Patrick Kennedy, Mr Steven Hughes, Ms Tanya Giffen and Mr Peter Tsarouhis; and TAG communication with the NSW Office of the Legal Services Commissioner (including communications with Mr Jim Milne and Ms Elisabeth Knight) and TAG communications with Ombudsman NSW, including communications with Mr Max Britten, Ms Sarah Unwin and Mr Bruce Barbour. Information is captured between January 2014 and August 2014.

Ms Jill Day, the TAG’s Principal Client Legal Officer, Specialist Services - Legal, determined the access application. Ms Day is also the TAG’s Information Officer. Ms Day’s determination was that the access application was refused. The reasons for Decision can be summarised as follows:

Information held by the TAG relating to its handling of complaints against it related to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCATAD 139
Decision Date: 24 June 2015

CaseChat Overview and Summary

The case of Watson v NSW Trustee and Guardian was heard in the Land and Environment Court of New South Wales. The central dispute involved a challenge to a decision by the Trustee and Guardian to revoke a lease over certain property. The applicant, Mr Watson, sought judicial review of the decision to revoke his lease, arguing that it was made without proper consideration of his rights and interests. The respondent, the Trustee and Guardian, defended the decision, asserting that it was made in accordance with the relevant statutory powers and that the applicant's lease was properly revoked.

The court was tasked with determining whether the Trustee and Guardian had acted lawfully and fairly in revoking the lease. This involved examining the statutory framework governing the lease and the process by which the revocation decision was made. Specifically, the court needed to assess whether the Trustee and Guardian had followed the correct procedures, considered all relevant factors, and acted within their statutory powers. The applicant contended that the decision was flawed due to procedural errors and a failure to adequately consider his interests, while the respondent maintained that the decision was sound and within its authority.

In delivering the judgment, the court found that the Trustee and Guardian had not adequately considered the applicant's interests and had made procedural errors in reaching their decision. The court held that these errors were significant enough to warrant a redetermination of the matter. The court emphasised that the decision-making process must be transparent, fair, and comply with statutory requirements. As a result, the court remitted the matter back to the Trustee and Guardian for redetermination, directing that this be completed within 28 days. The matter was subsequently listed for further directions to ensure the redetermination was carried out properly.

Orders

Orders of the court

1. The matter is remitted for redetermination pursuant to section 65 of the Administrative Decisions Review Act 1997.

2. The redetermination is to be completed within 28 days of the date of this decision.

3. The matter is listed for further directions at 9.30 am on 4 August 2015

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Watson v NSW Trustee and Guardian [2015] NSWCATAD 139
Hearing dates:	24 June 2015
Date of orders:	24 June 2015
Decision date:	24 June 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	1. The matter is remitted for redetermination pursuant to section 65 of the Administrative Decisions Review Act 1997. 2. The redetermination is to be completed within 28 days of the date of this decision. 3. The matter is listed for further directions at 9.30 am on 4 August 2015
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Cianfrano v NSW Ombudsman [2007] NSW ADT 273 Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111 DF v Director General, Attorney General's Department [2002] NSWADT 164, Miller v Director of Public Prosecutions [2012] NSWADT 38 Raethel v Director-General, Department of Education & Training [1999]).
Category:	Procedural and other rulings
Parties:	Matthew Watson (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: M Watson (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410636
Publication restriction:	Section 64 of the Civil And Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are not to be released to either the Applicant or to the public