Diamond v Gosford City Council [2008] NSWADT 282

CITATION: Diamond v Gosford City Council [2008] NSWADT 282

DIVISION: General Division

APPLICANT Neville Diamond PARTIES: RESPONDENT Gosford City Council

FILE NUMBER: 073203

HEARING DATES: 11 March 2008

SUBMISSIONS CLOSED: 15 April 2008

DATE OF DECISION: 16 October 2008

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Access to documents held by the respondent over which exemption is claimed pursuant to the primary legislation - - whether the proceedings should be dismissed as being vexatious and without substance - whether an advance deposit was requested under the primary legislation, but not paid, so that the Tribunal was without jurisdiction

MATTER FOR DECISION: For access to documents held by the respondent over which exemption is claimed pursuant to the primary legislation.

LEGISLATION CITED : Freedom of Information Act 1989

APPLICANT In person REPRESENTATION: RESPONDENT M Everingham, solicitor for council

1. The respondent's application for summary dismissal is dismissed ORDERS: 2. The Tribunal has jurisdiction to hear and determine the substantive application for access to documents held by the respondent 3. The parties are directed to approach the Registry, within 14 days of receipt of this decision and reasons, for the purpose of listing the matter for further directions.

REASONS FOR DECISION 1 The applicant has brought these proceeding pursuant to the provisions of the Freedom of Information Act 1989 (NSW) seeking to review a decision by the respondent made under that Act. The respondent subsequently made application for summary dismissal of the proceedings and, in addition, raised an issue that, it submitted, goes to the Tribunal's jurisdiction. Both these issues were then set down for preliminary hearing on 11 March 2008 to be decided, by consent, before embarking upon a hearing as to the merits of the substantive application. 2 On the morning of the hearing a further preliminary issue was raised: the applicant submitted that there were good grounds as to why the respondent should not be represented by the legal representative who then appeared for the Council. This was a challenger to the retainer of the legal representative appearing for the respondent which, if successful, may have prompted the Tribunal, no doubt the applicant would have submitted, to make some type of orders that would have regulated the proceedings in some way. The type of orders sought were not articulated by the applicant at that stage. This issue was then argued and the Tribunal declined to make any orders to give effect to the argument advanced. Oral reasons for this determination were delivered during the course of the morning. Neither party has requested that these reasons be reduced to writing. Following this determination, the Tribunal heard argument as to the summary dismissal application and the jurisdictional issue that the respondent had raised. The evidence that was adduced is contained in exhibits A1, R1, R2, R3 and R4 together with the parties' submissions. Much of this factual material was common ground and the parties were content for factual matters to be raised in submissions without resort to other proof. 3 At the conclusion of the hearing time was allowed for the applicant to file and serve further evidence in relation to payment of the deposit moneys referred to hereunder. An inspection of the Tribunal file just prior to the handing down of this decision and reasons did not disclose that any further evidence had been filed with the Tribunal. This aspect is not of great moment and therefore the Tribunal has decided to deliver its reasons forthwith rather than to delay matters by communicating further with the parties about this. 4 In its written submissions the respondent made the point that the applicant is an undischarged bankrupt. However, it did not advance any argument that the applicant, by reason of his status, could not maintain these proceedings, so this issue has not arisen for consideration and the Tribunal expresses no view about it. Rather, the respondent argued that the applicant's status had the consequence that, as he had no interest in any of his assets, he would not be able to pay any costs that he may be liable for in connection with his FOI application or these proceedings (exhibit R2). The respondent's submissions put the applicant's status forward as a consideration relevant to this issue, which it most likely is and therefore is a matter that should be taken into account. Whilst this may be so, it is not correct to say that an undischarged bankrupt has no interest in his assets as the legislation provides for certain exceptions to the broad reach of a sequestration order and the effect of bankruptcy on after acquired property. No details of the applicant's true financial position were provided to the Tribunal in these proceedings. 5 In relation to the jurisdictional issue the respondent submitted that by letter dated 26 April 2007 (exhibit R3) it required payment of an advance deposit of $225 pursuant to section 21 of the Freedom of Information Act 1989, which had not been paid at the time that the applicant commenced in the Tribunal. This letter is not in form a section 21 request as the requirements of section 21(4) are not met. Rather it is no more than a request for a deposit on the overall fee for making certain documents available to the applicant. Also, an advance deposit of the kind contemplated by section 21 may not be requested on internal review and, as noted, exhibit R3 was in fact the notification of the outcome of the internal review process. This argument therefore cannot be sustained. 6 There is an additional reason for this. If an advance deposit is properly requested during the course of processing the initial application and, assuming it is not paid, the consequence is that time for processing the application ceases to run until it is in fact paid. This will mean that there cannot be any deemed refusal, and this is the way in which an unpaid advance deposit may affect the Tribunal's jurisdiction to entertain an application. However, exhibit R3 is in fact notification of the decision on internal review. Once the decision on internal review is in fact made, an applicant may commence in the Tribunal if there is dissatisfaction with the decision. Whether an advance deposit has, or has not, been paid in such circumstances is irrelevant. For this reason as well, the respondent's argument as to jurisdiction cannot be sustained. 7 The respondent's submissions also relied upon this unpaid amount as demonstrating, by itself, that the application was vexatious and should be dismissed accordingly (see exhibit R2 page 1). The applicant agreed that he had not paid the requested deposit at the time he commenced in the Tribunal but informed the Tribunal at the hearing that he had in fact made payment after an earlier planning meeting. The respondent does not dispute this payment. This late payment is not a proper ground upon which to dismiss these proceedings as being vexatious or without substance. The moneys sought concerned part payment prior to releasing documents to the applicant in accordance with the decision in exhibit R3. This fact has little bearing on the proceedings, which are of course concerned with the documents that were not released to the applicant. It does not, by itself, demonstrate in any way that these proceedings are without substance or are vexatious. However, it is a relevant circumstance that should be considered together with the other matters pressed by the respondent in relation to its application for summary dismissal pursuant to section 73(5)(h) of the Tribunal's enabling legislation. 8 In relation to the summary dismissal application, the respondent relied upon the unpaid deposit, the fact that the applicant was an undischarged bankrupt and certain aspects of his "litigation history" to establish adequate grounds for summary dismissal. These several matters are detailed in the respondent's submissions (exhibit R2) and were further advanced at the hearing. This litigation, the respondent submits shows that the applicant has conducted campaigns which were not justified nor reasonably based, has raised irrelevant and mischievous issues, harbours malice, has made unsubstantiated allegations of misconduct, is evasive and has been deliberately unresponsive. 9 However, the Tribunal is not persuaded that these circumstances warrant summary dismissal of the proceedings, even if the relevant considerations be considered together. Both the late payment of the deposit and the applicant's status as a bankrupt are of little moment in this regard. However, where a party is proved to have a history of running litigation otherwise than as a model litigant, and has been subject to judicial criticism, any tribunal before whom that party appears must remain alert to the possibility that the proceedings that it is hearing may in truth be vexatious or without substance. This is mere common sense. However, even if it be assumed that the allegations made by the respondent as to the applicant's past conduct in this regard be true, and the Tribunal expresses no view on this, there are two reasons why this would not form a proper basis for summary dismissal in these proceedings. The first is that people change, and the applicant has not acted in any way in the present proceedings to suggest that his application is vexatious, frivolous or has been instigated for the purpose of causing hardship or embarrassment to the respondent. There is no evidence suggesting that any conduct of the type alleged by the respondent is liable to occur in these proceedings. The focus must always be on the proceedings being heard and whether an applicant's earlier conduct is affecting, or is likely to affect, the current proceedings. 10 Secondly, the nature of the proceedings and how they must be conducted is an important consideration. The applicant is entitled to be granted access to documents held by the respondent unless a relevant exemption is made out. The respondent has the obligation to satisfy the Tribunal that a relevant exemption applies to the documents under consideration. The applicant will play little part in this stage of the process. He will of course be able to play a greater part should the Tribunal's discretionary power to grant access arise for consideration. However, at present he is simply seeking the intervention of the Tribunal as an independent body to give consideration to whether the documents in issue are in fact exempt. This is of course the very rationale for the Tribunal's creation. The applicant is entitled to do this as the pre-requisites to the Tribunal's jurisdiction have been established. Given these considerations, there is no need for an applicant to establish any reason why he wishes to have access to documents, there being clear law to this effect. Consequently, to argue that the applicant is motivated by an improper, or an extraneous, purpose in bringing the proceedings is very difficult, if not almost impossible in the absence of clear evidence that the proceedings have been brought improperly in some way. There is simply little or no scope for arguing, in the abstract, that the bringing of proceedings is motivated by an extraneous purpose: an applicant may seek access for any purpose whatsoever. There would have to be quite cogent evidence to show that an applicant was motivated by some purpose such that the proceedings are necessarily vexatious rather than just being brought in the exercise of a statutory right to request this Tribunal to determine, as an independent body, whether or not he may have access to documents held by an agency. There is no such evidence here. 11 Whilst the respondent did in fact argue that the exemption relied upon is clearly established, the relevant evidence is lacking. Whether access is to be granted can therefore only be determined at a substantive hearing. At present there is no proper basis upon which the Tribunal is able to find that the application is without substance for this reason. The Tribunal does not have the evidence before it which would enable it to find at this preliminary level that the documents in question are exempt and, in any event, there is the discretionary power to grant access that must be addressed and considered. 12 For these reasons the respondent's preliminary applications in relation to jurisdiction and summary dismissal are dismissed. In its orders the Tribunal will direct the parties to approach the registry to obtain a suitable date for a further planning meeting so that the proceedings may be advanced to hearing.