CITATION: Damorange Pty Ltd v Roads and Traffic Authority [2008] NSWADT 309 DIVISION: General Division APPLICANT Damorange Pty Ltd PARTIES: RESPONDENT Roads and Traffic Authority FILE NUMBER: 083071 HEARING DATES: On the papers SUBMISSIONS CLOSED: 30 September 2008 DATE OF DECISION: 20 November 2008 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Freedom of Information Act - access to documents - business affairs - issue of jurisdiction Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Administrative Decisions Tribunal Amendment Act 2008 Freedom of Information Act 1989 Ombudsman Act 1974 Cianfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 CASES CITED: Ex Parte Toohey's Ltd; Re Bulter (1934) 34 SR (NSW) 277 Hoban v Davey (1972) 1 NSWLR 59 John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 APPLICANT B James, solicitor REPRESENTATION: RESPONDENT M Allars, barrister ORDERS: The matter is to be listed for a planning meeting at 11.45 a.m. on Tuesday 9 December 2008 to allow the further conduct of the matter to be addressed. REASONS FOR DECISION 1 The substantive matter concerns an application under the Freedom of Information Act 1989 ("the FOI Act") by Mr Michael McKinnon to the Roads and Traffic Authority ("the RTA") for access to documents held by the RTA. 2 Mr McKinnon's request was in the following terms: Specifically, I am seeking access to documents relating to Safe T Cam produced in the last three years showing, for each year: 1. The number of (a) cars and (b) trucks caught travelling at excessive speeds including the highest speeds recorded each year. 2. The number of trucks travelling beyond prescribed hours. I am also interested in any documents showing repeat offenders in relation to exceeding prescribed hours and documents showing whether drivers from any particular company or firm are consistently breaching prescribed hour limitations, 3. The number of (a) unregistered cars and (b) unregistered trucks. 4. Incidences where drivers have attempted to avoid detection by Safe-T-Cam. 3 The RTA determined that Mr McKinnon's request sought access to information concerning the business affairs of Damorange Pty Ltd ("Damorange"). The RTA wrote to Damorange and invited it to state whether or not it objected to the information being released. 4 Damorange objected to the release of documents pursuant to Clause 7 of Schedule 1 to the FOI Act. Notwithstanding Damorange's objection, the RTA determined to release the documents. That determination was affirmed following an internal review. Damorange has applied to the Tribunal for an external review of that determination. Preliminary Issues 5 Damorange has asked the Tribunal to dismiss the proceeding with a right of reinstatement, so that it can make a complaint to the Ombudsman. The preliminary issues arise as to: (i) whether the Tribunal has power to reinstate an application following discontinuance by the applicant; and (ii) if the Tribunal has such power, whether or not it should be exercised. Damorange's Submissions 6 Damorange contends that some of the documents sought to be released by the RTA should have been held to be exempt pursuant to section 32 of the FOI Act and that others go beyond the scope of the FOI application. 7 Damorange has taken the view that the whole matter should be the subject of a complaint to the Ombudsman under the provisions section 52 of the FOI Act and for the Ombudsman to investigate the complaint under the provisions of the Ombudsman Act 1974. Damorange has not formally made a complaint to the Ombudsman as its solicitors have been informed by the Ombudsman's office that the Ombudsman will not conduct an investigation into a matter while there is a proceeding in relation to the same matter pending in the Tribunal. 8 Damorange is concerned to secure a right to reinstate prior to discontinuance, because it is possible that the Ombudsman may decline to investigate. Damorange would then be precluded from lodging a fresh review application in the Tribunal. The 60-day limitation period imposed by section 54 of the FOI Act for lodging a review application in the Tribunal would then have expired. 9 Damorange is content that the proceeding before the Tribunal should not proceed during the investigation by the Ombudsman. However, it is important to Damorange that it is not left in a position where it is unable to pursue a complaint to the Ombudsman (for example if the Ombudsman declines to investigate) and also shut out from pursuing its application in the Tribunal and out of time to commence a new application in the Tribunal. Therefore, it has asked the Tribunal to dismiss the proceeding with a right of reinstatement, so that it can make a complaint to the Ombudsman. 10 Damorange concedes that there is no provision in the ADT Act or the ADT Rules that specifically empowers the Tribunal to make such an order. However it contends there is ample power in section 73(1) of the ADT Act to allow the Tribunal to give effect to the request. It argues that the Tribunal can be informed by the common law in dealing with the situation where there is no practice applicable to the matter. It relies on Ex Parte Toohey's Ltd; Re Bulter (1934) 34 SR (NSW) 277 at 284 as authority for the principle that where a statute provides that a proceeding is to be brought in a particular court and there is not practice in the court applicable to the proceeding then it is competent for the court to deal with the matter as justice and common sense call for. It is for the Tribunal to determine the machinery as best as it can: Hoban v Davey (1972) 1 NSWLR 59 at 67. 11 Damorange says that section 39(1)(c) of the ADT Act contemplates that there might be circumstances where there is an application to the Tribunal at the same time as there is a complaint to the Ombudsman in relation to the same matter. It submits that the purpose of section 39 of the ADT Act is to allow for the Tribunal and the Ombudsman to cooperatively manage the two matters. The Tribunal and the Ombudsman are specifically empowered to exercise their functions in conformity with any arrangements made under section 39 in relation to the referral or otherwise of matters between the two agencies. Section 39(5)(c) specifically empowers the Tribunal to dismiss, adjourn or stay proceedings for an application for review of a reviewable decision to give effect to an arrangement entered into under section 39 of the ADT Act. 12 In this case Damorange has requested that the Tribunal dismiss the Tribunal proceeding with a right of reinstatement. Alternatively, it seeks an order adjourning or staying the ADT proceeding pending the outcome of a complaint made to the Ombudsman pursuant to section 52 of the FOI Act. If the Tribunal is not prepared to accede to the requested orders or the alternative orders, then Damorange asks that the Tribunal application be adjourned pending the lodging of a complaint with the Ombudsman and a decision as to what arrangements are to be made as between the Tribunal and the Ombudsman pursuant to section 39 of the ADT Act. The RTA's Submissions 13 The RTA argues that it is clear from section 53(2)(c) of the FOI Act that a review application may not be made to the Tribunal while a complaint is being investigated by the Ombudsman. It says that the effect of this provision is that the Ombudsman has no jurisdiction to investigate while a review application is pending in the Tribunal. Whether the Tribunal has power to reinstate 14 Section 73(5)(g) of the ADT Act vests power in the Tribunal to dismiss an application at any stage if an applicant withdraws the application. Section 73(5)(h) vests in the Tribunal a discretionary power to dismiss an application at any stage if it considers the proceedings frivolous or vexatious or otherwise misconceived or lacking in substance. Section 86(1) and (2) vests in the Tribunal a discretionary power to dismiss an application to give effect to an agreed settlement reached by the parties. However Ms Allars submits that the ADT Act does not vest in the Tribunal power to reinstate an application which has been withdrawn or dismissed. She says that no source of jurisdiction or power of the Tribunal to reinstate an application arises from the common law, the practice of courts in developing their procedure, or section 73(1) of the ADT Act. 15 Ms Allars argues that the Damorange's submission that the Tribunal has power to reinstate at common law is effectively a submission that it has inherent power to reinstate. She says that it is well settled that an authority established by statute has only the powers conferred upon it by statute. It has no inherent jurisdiction: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at [24] - [26]. 16 Ms Allars points to section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") as an example of an express power to reinstate that is vested in the Administrative Appeals Tribunal ("the AAT"). She points to section 33(1)(a) of the AAT Act as a similar provision to section 73(1) of the ADT Act. She says that, contrary to Damorange's submission, section 73(1) of the ADT Act does not include, or give the Tribunal an implied power to reinstate. 17 She refers to the decision in John Fairfax Publications Pty Ltd at [35] where the Court of Appeal held that the District Court had no implied power to make a suppression order over publication of its verdict. The Court held that the test of whether there exists an implied power arising from expressly conferred jurisdiction is a test of necessity. 18 Ms Allars submits that the power to reinstate effectively permits an application that is no longer alive to be revived. It is a jurisdiction-conferring provision rather than a procedural provision. She says that if the similar provision in section 33(1)(a) of the AAT Act impliedly gave the AAT power to reinstate an application, it would not have been necessary to insert section 42A into the AAT Act. 19 Accordingly, she submits, if the test of necessity is applied, a power to reinstate cannot be implied into the ADT Act. Whether any power to reinstate should be exercised 20 Ms Allars submits that even if the Tribunal has power to reinstate, it would be inappropriate to exercise that power now. The proceeding has not yet been dismissed. A power to reinstate should only be exercised on the basis of the circumstances in which the power is invoked. The Tribunal should not fetter any discretionary power it has by making an order that it will exercise that power in a particular manner in the future. 21 Ms Allars also submits that it appears that no arrangements have been entered into which would permit the Tribunal to follow Damorange's suggestion that the Tribunal refer the matter to the Ombudsman under section 39 of the ADT Act. 22 Ms Allars submits that in any event any referral while a proceeding is pending in the Tribunal in relation to the subject matter of the complaint, would be precluded by section 53(2)(c) of the FOI Act. She says that the legislative intention of that provision is that proceedings should not be pending before the Tribunal and the Ombudsman at the same time. 23 In summary, the RTA submits that the Tribunal has no power to reinstate, that it would be inappropriate for the Tribunal to order that Damorange has a "right" to reinstatement, and that no referral can be made pursuant to section 39 of the ADT Act. Discussion Power to reinstate 24 It is my view that the Tribunal has no power to reinstate the application if Damorange withdraws it. I agree with the arguments presented by Ms Allars in regard to that issue. 25 Support for this view is found in the recent amendments to section 73 of the ADT Act by the Administrative Decisions Tribunal Amendment Act 2008. This amendment provided for dismissal of proceedings and for reinstate of proceedings that have been dismissed because of an applicant's failure to appear. The amending provision is as follows: [22] Section 73 Procedure of the Tribunal generally Omit section 73 (5) (g) and (h). Insert instead: (g) may dismiss at any stage any proceedings before it in any of the following circumstances: (i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate, (ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, (iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and (h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure. 26 For similar reasons to those argued by Ms Allars in relation to amendments to the AAT Act, if the ADT Act or the common law impliedly gave the Tribunal the power to reinstate an application, it would not have been necessary to insert these amendments into the ADT Act. Referral to the Ombudsman 27 Damorange has suggested that the Tribunal refer the matter to the Ombudsman pursuant to section 39 of the ADT Act. 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, … (d) the co-operative exercise of the respective functions of the Tribunal and the Ombudsman." 28 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): … (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 … 29 Ms Allars submitted that while section 39 provides for the President of the Tribunal and the Ombudsman to enter into arrangements regarding the referral of matters between them, it appears that no arrangements have been entered into. This is not correct. 30 On 8 December 2006, the President of the Tribunal and the Ombudsman entered into such an arrangement and notice of the arrangement was published in the Gazette on 5 January 2007 (at pp 22-23). The notice provides relevantly: "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 inquiries of the Ombudsman and to consider their position. The Tribunal may, where appropriate and at any time, consult with the Ombudsman on whether the Ombudsman has jurisdiction to review or investigate the decisions or conduct related to the subject of the application and whether the Ombudsman may be the appropriate body to conduct the review and the likelihood of the Ombudsman conducting such a review. Where the Tribunal decides any application or conduct related to a reviewable decision would be better dealt with by the Ombudsman and expresses such a view, the Tribunal will forward a copy of its expression of view to the Ombudsman. (ii) Formal referral to the Ombudsman The Tribunal will only formally refer a matter to the Ombudsman pursuant to section 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: matters where the application relates to the administrative behaviour of an organisation … matters which can be more appropriately resolved by an investigation by the Ombudsman in the absence of the public … Where the Tribunal refers an applicant to the Ombudsman, the Ombudsman will advise the Tribunal expeditiously if there are any reasons why the matter is not able to be dealt with in a satisfactory manner by the Ombudsman." 31 Pursuant to section 52(2) of the FOI Act, the Ombudsman cannot investigate a complaint while any relevant proceedings are before the Tribunal. However, section 39(1) of the ADT Act provides for the Tribunal to dismiss, adjourn or stay proceedings to give effect to an arrangement entered into under that section. In my view, if a matter were adjourned or stayed and referral made to the Ombudsman pursuant to the arrangement between the President of the Tribunal and the Ombudsman, the matter could be reactivated before the Tribunal after the Ombudsman had dealt with it. 32 Section 39(1)(a) contemplates that the Tribunal will 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": Retain Beacon Hill High School Committee Inc v Landcom [2008] NSWADT 283 33 The Tribunal has occasionally referred a matter to the Ombudsman for review pursuant to section 39, but it is not bound to do so: Cianfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195. 34 In the present matter Damorange has made assertions with respect to the conduct of the RTA. In my view, a reference to the Ombudsman would serve a useful purpose in that it would allow the Ombudsman to consider a number of issues alluded to by Damorange that impact on the decision under review but which are out of the scope of the Tribunal's jurisdiction. 35 However, I am unable to make such a reference without the consent of both the applicant and the Ombudsman. I note that the Ombudsman has not consented to the reference. In these circumstances, the matter should continue before the Tribunal unless Damorange can obtain the consent of the Ombudsman. The matter should therefore be relisted for a planning meeting to determine the further progress of the matter. Order The matter is to be listed for a planning meeting at 11.45 a.m. on Tuesday 9 December 2008 to allow the further conduct of the matter to be addressed. 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.