Avery v State of New South Wales

Supreme Court of NSW|2009-04-27|Before: Schmidt AJ

CITATION : Avery v State of New South Wales (Attorney General's Department) [2009] NSWSC 353

CATCHWORDS : ADMINISTRATIVE LAW - judicial review - reviewable decisions and conduct - orders sought correcting or amending the Births, Deaths and Marriages Register and form of Change of Name Certificate - defendant's notice of motion seeking orders for summary dismissal and in the alternative, that statement of claim be struck out - scheme of Administrative Decisions Tribunal Act 1997 and Freedom of Information Act 1989 considered - proceedings concerned with Registrar's decisions about information retained in the Register and the form of name change certificates - plaintiff's notice of motion seeking leave to amend statement of claim in relation to costs and damages - defendant's claim in contract, not tort - application dismissed - costs

Avery v Registry of Births Deaths and Marriages Act [2008] NSWADTAP 68 Boral Gas (NSW) Pty Ltd v Magill and Another (1993) 32 NSWLR 501 CASES CITED : Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales and Others [2001] NSWSC 494 Shalhoub Holdings Pty Ltd & Ors v CBA [2006] NSWSC 607

PARTIES : Plaintiff - Stephanie Tatiana Patricia Avery Defendant - State of New South Wales (Attorney General's Department)

COUNSEL : Plaintiff - Ms S Avery, unrepresented Defendant - Ms M Dalla-Pozza, solicitor

SOLICITORS : Defendant - IV Knight, Crown Solicitor, Crown Solicitor's Office, New South Wales

18 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30125/2008 AVERY v STATE OF NEW SOUTH WALES (ATTORNEY GENERAL'S DEPARTMENT)

JUDGMENT 1 HER HONOUR: These proceedings were commenced by statement of claim filed in October 2008. Ms Avery seeks orders correcting or amending the Births, Deaths and Marriages Register, in relation to her birth name and other particulars, as well as orders directed to the form of a change of name certificate, to be issued to her by the Registrar of Births Deaths and Marriages. In support of this application, Ms Avery relied on applications made to the Attorney General's Department under the Freedom of Information Act 1989 ('the FOI Act') and complains that they were not dealt with, as that legislation requires, amongst other matters. Damages and expenses amounting to some $19,300 are also sought. 2 By notice of motion of 27 November 2008, the defendant seeks orders summarily dismissing the application pursuant to Part 13 Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 and in the alternative, that the statement of claim be struck out, pursuant to Part 14 Rule 14.28. 3 By notice of motion of 26 February 2009, Ms Avery seeks leave to amend her statement of claim, in relation to the costs and damages sought. An amount of $15,000 is sought to be pursued, for non pecuniary damages in relation to:

... exposure to identity fraud, submitting risk, uncertainty and insecurity, distress, loss of trust and confidence in personnel and actions of the Department, oppression, refusing rights under Freedom of Information Act, necessity of undertaking of court procedures to enforce the rights and distress related to the proceedings, inconvenience and difficulties of carrying the matter affecting quality of life, undertaking investigations in respect of personal information held by other government departments. 4 It was agreed at the hearing that the name of the defendant in the proceedings be corrected as 'State of New South Wales (Attorney General's Department)'. By consent, that change was ordered. 5 In December 2007, Ms Avery successfully applied to the Registrar to change her name. The change was evidenced by a certificate later issued by the Registrar and numbered XXXXX/2007. 6 By letter of 7 January 2008, Ms Avery complained about errors in the certificate, which the defendant, through its officers and on behalf of the Registrar, confirmed would be corrected. Ms Avery was required to return the certificate which had been issued to her, before she was provided with a new certificate. 7 Despite this, Ms Avery commenced proceedings in the Administrative Decisions Tribunal ('the Tribunal'), challenging the inclusion of certain information on the certificate. On 9 January 2008, the Tribunal granted a stay of the Registrar's issue of the certificate, ordering Ms Avery to return the certificate which had been issued and the Registrar to issue her with a copy of her former Change of Name Certificate, numbered XXXXX/1997, to use until the stay expired. 8 In March 2008, the Tribunal gave its decision on Ms Avery's application, confirming the Registrar's decision. On 28 April, Ms Avery appealed the decision to the Administrative Decisions Tribunal Appeal Panel ('the Appeal Panel'). 9 In August 2008, Ms Avery asked the defendant to take certain steps in relation to the information contained in the Register, relying on s 50 of the FOI Act. 10 At the same time, Ms Avery approached the Appeal Panel, requesting that it consider additional material and submissions, in relation to the matters which she had raised with the defendant under the FOI Act. That application was later refused when the Appeal Panel gave its decision in October 2008, the Appeal Panel taking the view that it had no jurisdiction to deal with those matters, because they did not relate to the certificate which the Tribunal had considered in the decision under appeal and because the orders sought were not orders which the Appeal Panel could make in those proceedings, under sections 114 and 115 of the Administrative Decisions Tribunal Act 1997. (See Avery v Registry of Births Deaths and Marriages Act [2008] NSWADTAP 68.) 11 On 15 September 2008, the defendant wrote to Ms Avery advising that certain steps had been taken to alter the records maintained by the Registrar, but that:

The purpose of a Change of Name certificate is to certify that a person has registered a change of their name. It does not replace a birth certificate. The names of parents are not included on any change of name certificate, and the Registry cannot verify parental information of people who are born overseas. A change of name certificate should not be used in isolation as a proof of identity document, rather in conjunction with the person's birth certificate or other documentation.

The Registry notes that your comments about maintaining correct records and a history of a person's legal identify are correct. The Registry maintains a person's history of legal identity by recording all former names used by a person applying to register a change of name and confirms that there are currently proceedings between you and the Registry about this issue in the ADT.

The Registry confirms that when you applied for a change of name in December 2007, you presented supporting identity documentation in the name of 'Stephanie Tatiana Avery' which you had used since 1997, along with a statutory declaration stating you had used this name during the past ten years. This name appeared as former name on the change of name certificate issued after 2007 change of name was registered, as required by the Births Deaths and Marriages Act . You requested this name to be removed from the Register and the certificate on the grounds that you had never legally registered this name.

The ADT ruled in favour of the Registry on this point, but the outcome of your appeal is awaited.

I trust that this information assists you. Your internal review application under the Freedom of Information Act 1989 will be provided to you in a separate letter. 12 On 6 November 2008, the defendant again wrote to Ms Avery, advising that with the Appeal Panel's decision, the stay had expired and that accordingly, the defendant would reissue to her the new change of name certificate, which would include her former names. On 20 November, Ms Avery was provided with a copy of a printout of a Change of Name Data Entry Screen, showing that various amendments had been made to the Register. She was also advised that the Registrar was prepared to include her parents' names on the change of name certificate to be issued to her. She was first requested to return Change of Name Certificate number XXXXX/1997. 13 That certificate has not been returned and a new certificate has not been issued, although correspondence and discussions between Ms Avery and the defendant continued to the point where it is agreed that what now appears on the Change of Name Data Entry Screen contains the correct information, subject to the issue which is still on appeal to the Court of Appeal. 14 What thus remains in dispute is firstly, whether the information maintained by the Registrar accords with what is required by the Regulations and secondly, whether the proposed form of certificate XXXXX/2007, reflects the information which the Registrar is required to maintain and issue, consistently with the requirements of the Births, Deaths and Marriages Registration Act 1995.

The parties' cases 15 It was the defendant's case that Ms Avery's proposed amended statement of claim, as well as the original statement of claim disclosed no reasonable cause of action. There was no possibility that the claim could be repleaded, so as to give rise to a good cause of action and so summary dismissal under Rule 13.4 was the appropriate course. 16 Ms Avery's application for leave to amend the statement of claim would be refused, as it would not cure the defects and, in the alternative, if the dismissal application was refused, the statement of claim should be struck out and Ms Avery required to replead. 17 Ms Avery's case was that her claim would not be struck out, because it was not frivolous, vexatious, oppressive, an abuse of process or hopeless or without foundation. The application was concerned with a refusal to correct the Register to comply with statutory requirements. Her complaints concerned incorrect, incomplete and misleading records of personal information held with the Registry of Births, Deaths and Marriages, which she sought to have corrected. To dismiss her application would leave her in the position where she had no proper proof of identity and supporting records with the Department. 18 Ms Avery maintained that despite the corrections made to the Register, it remained incorrect, in breach of ss 3 and 31 of the Births, Deaths and Marriages Registration Act and regulation 8 of the Births, Deaths and Marriages Registration Regulation 2006 ('the Regulations'), given the form in which it was maintained. She had made a request under the FOI Act to correct the records, which was also refused. 19 It was only the Supreme Court which had the power to deal with the complaints she wished to advance under the Births, Deaths and Marriages Registration Act and the Regulations and the FOI Act, as well as the damages which she pursued. While the information maintained on the Register had been corrected, as she had sought, the form of the Register and the certificate proposed to be issued did not accord with what the legislation required. These were matters which the Tribunal had no power to deal with. 20 Her pleadings accorded with the requirements of the Civil Procedure Act 2005, as did the amendment which she sought to pursue. Her application would not be dismissed, the heavy onus falling on the defendant not having been satisfied. What was raised were serious issues. The form of the Register and the proposed certificate enhanced the possibility of identity theft and must be heard, as must the claim for damages, which had flowed from the defendant's failure to maintain the Register and issue certificates, in accordance with its statutory obligations.

Consideration 21 It was common ground that Ms Avery had changed her name in 1997, in accordance with s 27 of the Births, Deaths and Marriages Registration Act. Change of Name Certificate number XXXXX/1997 evidenced this change. In December 2007, Ms Avery applied to change her name back to her former name. The change was evidenced by certificate number XXXXX/2007, subsequently issued by the Registrar. 22 It was also common ground that there was a spelling error in the certificate; Ms Avery objected to the inclusion of the name Stephanie Tatiana Avery in the former name section of the certificate and she asserted that the former names noted on the certificate were included in incorrect order. The misspelling and order of names were corrected and Ms Avery was notified of the correction. It was also explained that the Registrar would not omit the name Stephanie Tatiana Avery from the former names section of the certificate, for reasons then given. Ms Avery was required to return certificate number XXXXX/2007, so that a corrected certificate could be issued. 23 The proceedings in the Tribunal were then brought by Ms Avery, who sought an order that the name Stephanie Tatiana Avery be removed from the certificate. Ms Avery later appealed the decision refusing that application to the Appeal Panel. On 19 August, she sought additional orders from the Panel, in light of information provided to her by the defendant, following her FOI Act request, as earlier outlined. That application was refused by the Appeal Panel. Its decision, rejecting Ms Avery's appeal, has been appealed to the Court of Appeal, pursuant to s 119 of the Administrative Decisions Tribunal Act. 24 Ms Avery then sought an internal review of the decision in relation to her FOI Act request, which was declined, the defendant advising that it had not treated her original letters as FOI Act applications. Ms Avery had the right to challenge that decision, s 43(2) of the FOI Act providing that:

(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 47 and other provisions of this Act, be taken to have determined the application by refusing to amend its records in accordance with the application. 25 Section 53 of the FOI Act gave Ms Avery the right to appeal such a refusal to the Tribunal, although in such proceedings, an issue between the parties would have plainly been the correctness of the defendant's view that her application was not one properly brought within the FOI Act. 26 Even so, what Ms Avery's FOI Act request was concerned with, errors in the record; the Registrar's manner of keeping the information required to be maintained by the Regulations and the form of the name change certificate proposed to be issued, as being inconsistent with the requirements of the Births, Deaths and Marriages Registration Act and the Regulations, were matters which she was plainly also entitled to challenge in the Tribunal, given the provisions of s 56 of the Births, Deaths and Marriages Registration Act. There it is provided that:

56 Review by the Administrative Decisions Tribunal A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Administrative Decisions Tribunal for a review of the decision.

27 As the defendant conceded, the computerised form in which the information required to be maintained by the Regulations is kept, plainly flows from decisions made by the Registrar in the exercise of the statutory functions conferred on that office. Section 6 of the Births, Deaths and Marriages Registration Act specifies the Registrar's general functions, which include establishing and maintaining the Registers required by the Act and s 43 dictates the information to be kept in such Registers. 28 Section 31 of the Births, Deaths and Marriages Registration Act specifies in relation to change of name that: 31 Entries to be made in the Register (1) The Registrar registers a change of name by making an entry about the change of name in the Register including the particulars required by the regulations. (2) If the applicant for registration of the change of name asks the Registrar to arrange for noting the change of name in the particulars of the person's birth, and the person's birth is registered under this Act or a corresponding law, the Registrar must: (a) if the birth is registered under this Act - note the change of name in the entry relating to the birth, or (b) if the birth is registered under a corresponding law - give notice to the relevant registering authority of the change of name. (3) If the change of name is noted in the Register under subsection (2), a birth certificate issued by the Registrar for the person must show the person's name as changed under this Part. 29 Regulation 8 requires that: 8 Registration of change of name

For the purposes of section 31 (Entries to be made in the Register) of the Act, the following particulars are required: (a) the sex and date and place of birth of the person whose change of name is being registered, (b) the name of the person immediately before the change of name, (c) the name first given to the person after birth and any other name shown on the person's birth registration, (d) any other former names of the person, (e) the new full name of the person, (f) the full names of the parents of the person (as at the date of the person's birth or registration of the person's birth).

30 Section 49 of the Births, Deaths and Marriages Registration Act empowers the Registrar to issue certificates certifying particulars contained in an entry in the Register. It follows that the form of certificates which the Registrar issues to certify entries in a Register, are also decisions for the Registrar to make and that consequently, such decisions may be reviewed by the Tribunal. Ms Avery is dissatisfied with the Registrar's decision as to the form of the name change certificate which he proposes to issue and seeks to have the decision reviewed in these proceedings. 31 Ms Avery's concerns about the form in which the Register is maintained, and whether it complies with the requirements of Regulation 8, as well as the form of the certificate which the Registrar proposes to issue to her, have not been reviewed by the Tribunal, because Ms Avery has not made the necessary application to that body. 32 The Tribunal's power of review is specified in the Administrative Decisions Tribunal Act by s 38 Conferral of review jurisdiction, to review reviewable decisions: (1) Conferral of review jurisdiction

The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator: (a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other functions of the administrator identified by the enactment.

33 What decisions the Tribunal may make on such a review is specified by s 63 of the Administrative Decisions Tribunal Act: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 34 It is apparent that while Ms Avery attempted to raise the matters which she now seeks to pursue in these proceedings with the Appeals Panel, that application failed, the Appeal Panel taking the view that those concerns could not be raised before it on appeal in that way. No doubt that is a conclusion which Ms Avery might wish to challenge in her appeal. Nevertheless, it appears that under this legislative scheme, Ms Avery's concerns were matters to be considered, in the first instance, by the Tribunal, not the Appeal Panel. 35 Ms Avery determined, however, given the Appeal Panel's refusal of her request, that she should initiate these proceedings, instead of taking the alternative course clearly available to her, namely, bringing a fresh application to the Tribunal. Her explanation for that course rested firstly on the Appeal Panel's refusal of her request on the basis that it had no jurisdiction to deal with what she had sought to raise with it and secondly, that her FOI Act request could not be raised before the Tribunal, the defendant having refused to treat her application as a FOI Act request. 36 As I have explained, Ms Avery misunderstood the basis of the view which the Appeal Panel reached. There is no question that the Tribunal has the jurisdiction to entertain her complaints. Indeed, it has a very wide discretion to grant relief, if the basis of her complaint is accepted. 37 Further, it is apparent, given the provisions of sections 43 and 53 of the FOI Act, to which I have earlier referred, that Ms Avery also misunderstood that statutory scheme. The submission that the Tribunal had a discretion to refuse to consider any application she might make in relation to the defendant's treatment of her FOI Act application had no foundation in the statutory scheme. As the defendant accepted, there is no such discretion, either under the FOI Act, or the Administrative Decisions Tribunal Act. 38 There may, of course, be a contest between the parties as to whether or not the defendant was correct, in refusing to deal with Ms Avery's application as an FOI Act application, but, as the defendant conceded, the Tribunal has no discretion to refuse to entertain Ms Avery's application at all, because the defendant refused to treat her application as a FOI Act application. 39 Whatever be the correct view as to the question of whether or not the defendant was correct in refusing to deal with Ms Avery's request under the FOI Act, the fact remains that as a result of the defendant's response to the application, it is common ground between the parties that the information on the Register is now correct, leaving to one side the complaint which Ms Avery is still pursuing in the Court of Appeal. 40 Ms Avery's other two complaints remain. They concern the Registrar's decisions about the form of the Register and the form of the name change certificate proposed to be issued, matters plainly falling within the Tribunal's broad powers of review. As the defendant submitted, those statutory powers may well be broader than the powers of judicial review which Ms Avery asks this Court to exercise in these proceedings. 41 In NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales and Others [2001] NSWSC 494, Barrett J had to consider a situation where, instead of an appeal being pursued from the Tribunal to an Appeal Panel, an application was made to this Court in its original jurisdiction. Sections 122 and 123 of the Administrative Decisions Tribunal Act thus arose for consideration. They preserve the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal, but provide a mechanism whereby such an application may be refused, if the Court is satisfied that, in all the circumstances, adequate provision is made under the Administrative Decisions Tribunal Act, for the applicant to seek an alternative review of the decision. The application to this Court was there refused, Barrett J concluding that adequate provision was made under the Administrative Decisions Tribunal Act, for the plaintiff to seek a review of the Tribunal's decision, by way of an appeal to the Appeal Panel. 42 His Honour referred to the approach of the Court of Appeal in Boral Gas (NSW) Pty Ltd v Magill and Another (1993) 32 NSWLR 501, which considered the long held principle that relief by way of prerogative writs will be refused by this Court, if there is another equally effective and convenient remedy, even though an alternative statutory remedy, is not necessarily fatal to the application (at 508). There, what was being considered was a case where an application was made to this Court, before appeal processes available under the Industrial Relations Act 1991 had been exhausted. At 511, Kirby J observed: In the course of my reasons in Ballam, I collected the considerations which seemed to me to favour the normal rule of policy followed in Ultra Tune and in Ballam and in many cases before and since: "1. It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals ... 2. It affords a proper place to the specialised tribunal which may have a superior advantage in ready knowledge of the developments of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that tribunal frequently has a superior armoury of remedies at its disposal than this Court can offer; 3. Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction; 4. It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and 5. It conserves to cases where no other remedy exists, the discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction."

43 The Court of Appeal there also refused the application brought to this Court. 44 Considerations such as this, it seems to me, must in this case also lead to the view that Ms Avery's application should be dismissed. The legislature has established a process of review of administrative decisions of the kind about which she is concerned. Thereby, the legislature has given the Tribunal very broad powers of review of the Registrar's decisions, under the Births, Deaths and Marriages Registration Act as well as in relation to the defendant's refusal of Mrs Avery's FOI Act request. The scheme of the Administrative Decisions Tribunal Act envisages that recourse to this Court will be limited in the way in which the appeal provisions in Chapter 7 and the provisions made in sections 122 and 123 of the Act envisage. 45 What has been revealed by the parties' submissions is that Ms Avery has not pursued available applications to the Tribunal, but instead has made an application direct to this Court, in its original jurisdiction, because of her view that the Tribunal lacks power to deal with her concerns. While at the heart of her complaints is what she undoubtedly perceives to be serious inadequacies in the Registrar's compliance with obligations imposed by the Births Deaths and Marriages Registration Act, her view of the Tribunal's powers is mistaken. 46 I am satisfied that in this case, the ordinary approach, that Ms Avery's rights under the Administrative Decisions Tribunal Act should be exhausted, before this Court's power is invoked, should be observed. While s 123 of that Act does not strictly apply to this case, applying its considerations leads to the same result. 47 Adequate provision is certainly made under the Administrative Decisions Tribunal Act for Ms Avery to seek a review of the Registrar's decisions and the defendant's refusal of her FOI Act request. As I have explained, there is no question that Ms Avery is entitled to apply for such reviews. That the Tribunal is likely to deal with such matters more expeditiously and cheaply than this Court, cannot seriously be doubted. That it has power to grant Ms Avery an alternative remedy is clear, indeed, its powers may well be broader than those available to this Court to exercise, in the present circumstances. No question of any substantial hardship for Ms Avery, if this application is refused arises, other than in relation to her claim for damages, to which I will now turn. 48 In October 2008, Ms Avery commenced these proceedings, seeking not only the correction of certain information kept on the Register, (which has in fact been corrected), but a review of the Registrar's manner of keeping the information required to be maintained by Regulation 8 and the form of the name change certificate to be issued to her, as well as damages. Her statement of claim did not identify what it was claimed that these damages flowed from. In its submissions the defendant postulated that Ms Avery might seek to argue that the damages flowed from an alleged tort, such as a breach of statutory duty in relation to its approach to her request under the FOI Act, or even misfeasance in public office. It advanced submissions to explain why such claimed torts could have no foundation. 49 While her written submissions did not make entirely clear what the basis of her claim for damages was, in her oral submissions Ms Avery repeatedly disavowed any reliance on such torts. She argued that 'each legislative instrument including Constitution Act 1902 is binding contract between government and citizen'. She claimed that a 'contractual relation' existed between herself and the defendant, where it had 'promised to deliver public services' 'paid by the taxpayer for the following:

provide trustworthy, well-informed and committed to public service and justice system personnel; personnel that act ethically and professionally and maintain integrity;

maintenance of correct, complete and non-misleading personal information;

compliance with Birth(sic), Deaths and Marriages Registry Act and Regulation;

integrity of Birth(sic), Deaths and Marriages Register;

peace, good government and peace of mind in respect of government procedures.' 50 I endeavoured to explain to Ms Avery, as an unrepresented litigant, that the defendant's case was that her statement of claim did not identify any foundation for her damages claim and that if her case was to proceed, there would have to be some identification of the basis of her claim in the statement of claim. It was also accepted by the defendant that leave to replead would be given, if some arguable cause of action was identified, the defendant having accepted that its application had to be approached with caution (see Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942). 51 The defendant also accepted that it had to show that there was no possibility that Ms Avery had a good cause of action, consistent with the pleadings and the facts (see Shalhoub Holdings Pty Ltd & Ors v CBA [2006] NSWSC 607 at [36]). This explained the references in the defendant's submissions to the possibility that Ms Avery's damages claim might be brought in tort, albeit it was argued that there was no foundation for such a claim, in the circumstances. 52 Ms Avery explained that while she did not practice law, she had a legal qualification. Her case, she explained, rested only on contract, such a contract flowing from her view as to the contractual nature of statutes and her FOI Act application, which the defendant had wrongly refused. She insisted that she advanced no claim in tort.

53 So explained, as the defendant argued, it became apparent that Ms Avery's damages case can have no foundation and that it must be struck out. In the circumstances here before the Court, there is no conceivable basis upon which it could be concluded either that the FOI Act, or the request made to the defendant under that legislation, which was rejected as being a request available to be made by Ms Avery, could have resulted in any contractual relationship coming into existence between the plaintiff and the defendant. Nor is such a conclusion available in relation to the Constitution Act, on which Ms Avery's argument also rested. 54 As I have explained, the defendant's refusal of Ms Avery's FOI Act request gave rise to certain statutory rights, but cannot have given rise to any contract between Ms Avery and the defendant. Basic contract law, which requires not only that there be a mutual intention to enter into a contractual relationship, but also offer, acceptance and consideration, does not allow for Ms Avery's view of the contractual nature of statutes enacted by Parliament. 55 It is conceivable, that the exercise of a particular statutory right, might give rise to a contract, particularly where payment of a fee is involved for the provision of a service, but such a conclusion is not available here. The damages claim in contract is misconceived. Ms Avery claimed to have a right under the FOI Act which she sought to exercise, paying the required fee. The defendant did not accept that she had such a right, refused to act on the statutory request and returned to her the fee which she had paid. While that refusal gave rise to a statutory right of review, it cannot have resulted in the bringing into existence of any contract between these parties, let alone the claimed damages. The refusal of a statutory request under the FOI Act, cannot have resulted in any necessary meeting of minds, let alone any form of consideration, pre-requisites for the formation of any contract. 56 It follows that the defendant's case in relation to the damages claim was established, with the result that the claim must be summarily dismissed.

Orders 57 For the reasons given, Ms Avery's claim for judicial review of the decisions here in question is summarily dismissed. Costs must follow the event in the ordinary way. Ms Avery is ordered to pay the plaintiff's costs, as agreed or assessed. ********

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.

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Parties

Cases Cited (3)

Cited By (1)