CITATION: Jamieson v Narrandera Shire Council [2007] NSWADT 284 DIVISION: General Division APPLICANT Andrew James Jamieson PARTIES: Respondent Narrandera Shire Council FILE NUMBER: 073182 HEARING DATES: 13 November 2007 SUBMISSIONS CLOSED: 13 November 2007 DATE OF DECISION: 7 December 2007 BEFORE: Wilson R - Judicial Member CATCHWORDS: Dismissal of application - frivolous vexatious misconceived or lacking in substance MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: NZ v Commissioner of Police NSW [2006] NSWADT 142 McGuirk v Attorney-General's Department [2007) NSWADT 138 APPLICANT In Person REPRESENTATION: RESPONDENT W Henningham, solicitor ORDERS: 1. Respondent's interlocutory application pursuant to s.73(5)(h) is refused; 2. Respondent's application for costs is refused; 3. The parties are directed to approach the Tribunal Registry within 14 days to obtain a suitable date for a further directions hearing REASONS FOR DECISION 1 The applicant has commenced these proceedings in this Tribunal seeking to review a decision by the respondent refusing access to certain documents under the Freedom of Information Act 1989. Exemption is claimed by the respondent, under clause 13(b) of the Schedule, with respect to only one document falling within the ambit of the applicant's request for access. 2 The respondent has brought a preliminary application to have these proceedings summarily dismissed pursuant to s. 73(5)(h) of the Tribunal's enabling legislation. The evidence relied upon by the parties are the formal documents that have been filed to date, no additional evidence being put forward for the purposes of this preliminary application. Both parties have filed written submissions and addressed the Tribunal orally at the hearing on 13 November 2007. By reason of the remoteness of the parties, and by consent, this hearing was conducted by telephone. The evidence was not developed or tested by cross-examination on this occasion. 3 Should this matter proceed to a determination on the merits the respondent would seek findings that the document under consideration is exempt under clause 13(b) to the Schedule and that a final determination ought to be made, as a matter of discretion, that access to this document should be refused. Before preparing this matter for substantive hearing the respondent wishes to have the proceedings dismissed summarily: the essential argument being that the proceedings are intended to harass, have been brought for a collateral purpose and are manifestly untenable, this latter point being made by the respondent with respect to the substantive application that the applicant has commenced. This was the way that the respondent's case was put orally at the hearing. It is expressed a little differently in the written submissions. For the purposes of this summary dismissal application it is clear on the materials before the Tribunal that the question whether the document is exempt is a triable issue. The respondent did not seek summary dismissal upon any jurisdictional grounds, the only argument being that s.73(5)(h) has application in the circumstances. 4 The Tribunal accepts on the limited evidence before it that there is a basis upon which the respondent may well argue that the document is exempt and that there are discretionary considerations which could, but not must, persuade the Tribunal to refuse access to this document. Put briefly, the document in question contains information pertaining to the applicant which was prepared by an employee of the respondent and submitted to the respondent's General Manager. The purpose of the document was to assist the General Manager in his administration of the respondent's public affairs, particularly with regard to the welfare of staff employed by the respondent. The parties did not press the tribunal to peruse this document for the purposes of this interlocutory application, and the Tribunal has followed this course. However, it is clear from the submissions that this document contains information concerning the applicant and that it is to be argued by the respondent that the author of the document provided this information upon the basis that the document would be kept confidential. The fact that information is given on a confidential basis is sufficient to raise the possibility that, if this confidence is not maintained, future information may be restricted and that, should this ensue, the public interest may well suffer. By this the Tribunal does not express any concluded view but merely notes that the issues are raised for consideration on the materials before it. 5 With respect to the substantive proceedings themselves, it is clear that the onus is upon the respondent to establish that a document falls within on of the scheduled exemptions, and it is equally clear that, if an exemption does apply, the Tribunal must nevertheless determine, as an exercise of discretion, whether access should be refused. If a document is exempt it does not necessarily follow that access is to be refused (University of NSW v McGuirk [2206] NSWSC 1362). 6 To justify an exercise of the power conferred by 2.73(5)(h) of the Act it must be shown that the proceedings are frivolous or vexatious or otherwise misconceived, or that they are lacking in substance. Unless the Tribunal is satisfied as to at least one of these elements in this section the power cannot be exercised. The applicant is seeking access to a document which makes certain references to himself and he wishes to know what was said. He has a statutory right to bring this application which arises from the respondent's adverse decision. He is not able to examine the document over which exemption is claimed, but the Tribunal is. In these circumstances it cannot be said that his application is frivolous, vexatious or misconceived. The Tribunal was informed during the hearing that the applicant has made earlier applications to the respondent under the Freedom of Information Act 1989, but the respondent does not argue that this current application is vexatious because it is a repeated application: the respondent disavowed any such argument at the hearing. The respondent's written submissions note that these earlier applications were discontinued, but does not note the reasons for this. 7 In its submissions the respondent also says that, upon instructions, the applicant is engaged in a course of conduct designed to harass and annoy the General Manager. It was incumbent upon the respondent to file and serve appropriate evidence if it wishes to establish this factual assertion, which was not done. Without appropriate evidence the Tribunal is unable to come to any determination of fact as alleged. 8 The respondent however further submits that this current application is lacking in substance. This submission is put on two bases. The first argument is that the applicant has advanced no reasons of substance contesting the reasons given by the respondent for reaching the decision that is under review and no reasons in support of his application to the Tribunal. To the extent that the respondent is here arguing that the proceedings should be dismissed summarily because the substantive application is unsupported by good reason, then the summary dismissal application must fail. An applicant does not need in these proceedings to establish a prima facie right to access the document as the Act itself provides such a right. It is for the respondent to show that the document is exempt. 9 The second basis is that the application is manifestly untenable because, it is said, the respondent's decision is clearly, and necessarily, correct. Even if the respondent's argument is construed so as to mean that the case it proposes to present necessarily means that the only conclusion open to the Tribunal is to find that the document is exempt, then it must present this case on proper evidence so that a determination can be made. It is premature to argue a point like this until all the evidence is in, unless there be common factual grounds or an agreed statement of facts, neither of which were available in this application. Whilst it is possible to come to the view that the document was provided in confidence, the exemption clause under consideration involves the elements of prejudicial effect as well as a public interest test. The respondent must establish these elements by proffering evidence, and not just assert them in submissions. In the absence of concessions the Tribunal is not prepared to simply accept the findings of the decision-maker that these elements are satisfied without hearing the evidence. To do so would mean that the Tribunal is abdicating its review function. 10 Consequently, the Tribunal does not find that the application brought by the applicant is lacking in substance. 11 The respondent relied upon two earlier authorities decided by this Tribunal, NZ v Commissioner of Police NSW [2206] NSWADT 142 and McGuirk v Attorney-General's Department [2007] NSWADT 138. However, these authorities are distinguishable on the facts. The first was a privacy matter and the second concerned whether there had been adequate search for documents. Neither authority assists the respondent in this present application. 12 By letter dated 14 November 2007 the applicant requested an opportunity to make further submissions by reason of illness at the hearing. Given the Tribunal's decision there is no need to consider this procedural application. 13 As the respondent's preliminary application for dismissal is refused, its application for costs is also refused. 14 The Tribunal will therefore order that the respondent's application for dismissal of the proceedings pursuant to s.73(5)(h) of the Act is refused as is its application for costs. The matter is to be re-listed for a further directions hearing, the parties being directed to approach the Registry for this purpose within 14 days. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.