Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140

New South Wales Court of Appeal

CITATION: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140

HEARING DATE(S): 29 January 2008

JUDGMENT DATE: 19 June 2008

JUDGMENT OF: Beazley JA at 1; Giles JA at 78; Basten JA at 79

Question: Is a notification under s 28(1)(b) of the Freedom of Information Act 1989 that an agency does not hold a document, a determination that the Administrative Decisions Tribunal has jurisdiction to review? DECISION: Answer: (a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the Freedom of Information Act 1989; (b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24; (c) the jurisdiction of the Tribunal conferred by s 53 of the Freedom of Information Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents made pursuant to ss 17 and 18 of the Freedom of Information Act.

CATCHWORDS: ADMINISTRATIVE LAW - Freedom of Information Act 1989– access to documents - a notification that an agency does not hold a document under s 28 of the FOI Act is not a "determination" for the purposes of s 24 - ADMINISTRATIVE LAW - Freedom of Information Act 1989 – jurisdiction of Administrative Decisions Tribunal - the jurisdiction of the Tribunal conferred by s 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by an agency

Administrative Decisions Tribunal Act 1997, s118 Freedom of Information Act 1989, ss 24, 28, 52, 53 LEGISLATION CITED: Ombudsman Act 1974, s 26 Supreme Court Act 1970, s 48 Uniform Civil Procedure Rules 2005, r 6.35