Irvine v Temora Shire Council

NCAT Administrative and Equal Opportunity|2025-03-10

Background

The current proceedings concern an application for administrative review of a decision made by Temora Shire Council (the respondent) on 20 August 2024, under the Government Information (Public Access) Act 2009 (NSW) (the Act) which was lodged by Anthony Irvine (the applicant).
However, that decision was made by the respondent following a remittal order made by the Tribunal on 25 July 2024 (the remittal decision), in previous administrative review proceedings between the applicant and the respondent: Irvine v Temora Shire Council [2024] NSWCATAD 202.
The applicant sought administrative review of the remittal decision on the following grounds: Please refer case number 2023/00454688. I believe, when making the new decision as directed by NCAT in orders dated 25th July, 2024, Temora Shire Council has failed to properly consider the recommendations set out in paragraph 103 of the decision attached. Were I to request an internal review, I have been advised that the review would be conducted by Temora Shire Council General Manager, Melissa Boxall. Based on comments made by Ms Boxall in a media release relative to these matters, I do not believe Ms Boxall would be able to consider the matter impartially or fairly.
On 21 October 2024, Senior Member Ziegler issued orders, which noted that an issue had been raised as to whether the Tribunal has jurisdiction to hear and determine this application. She referred the parties to the decision of the Appeal Panel in Webb v Port Stephens Council [2020] NSWCATAO 152 (Webb), particularly paras [20] to [38]. She ordered the respondent to file and serve submissions on jurisdiction by 18 November 2024. She ordered the applicant to file and serve submissions on this issue by 16 December 2024. She gave the respondent leave to file submissions in reply by 23 December 2024. She also ordered that the Tribunal may determine the issue of jurisdiction on the papers without an oral hearing and the parties' submissions were to address whether they consent to a determination on the papers or seek an oral hearing.

Respondent's submissions

On 13 November 2024, the Tribunal received written submissions from the respondent.
The respondent stated that the decision under review indicates that there was an overriding public interest against disclosure of most of the information in the document that was the subject of the previous Tribunal proceedings, but that a redacted version of that document could be released to the applicant.
The respondent addressed the decision in Webb as follows: 10. In Webb, the Appeal Panel relevantly reversed earlier decisions in Howell v Macquarie University [2007] NSWADTAP 10 at [85], Stojanovic v Commissioner of Fair Trading, New South Wales Office of Fair Trading [2008] NSWADTAP 84 at [60] and [61] and Commissioner of Police, NSW Police Force v Barrett (No. 2) [2016] NSWCATAP 86 at [99]. 11. Most relevantly in Webb, the Appeal Panel determined at [25] and [35] that: 25. If the Tribunal remits a decision to the administrator under the "final remittal power" in s 63(3)(d) of the Administrative Decisions Review Act, there are no machinery provisions. The Tribunal has made a final decision and its administrative review jurisdiction is exhausted… 35. There is no provision in the enabling legislation giving the Tribunal jurisdiction to administratively review a decision of an agency to fail to reconsider its decision in accordance with the Tribunal's directions or recommendations. Nor is there any provision in the enabling legislation giving the Tribunal jurisdiction to administratively review a decision of the agency made in response to a remittal decision under s 63(3)(d). For those reasons, the Tribunal was correct to dismiss Ms Webb's new application for administrative review.
The respondent argued that the principles set out in Webb are directly relevant to this matter, as the remittal decision was made under s 63(3)(d) of the ADR Act, and there is no provision in the Act that gives the Tribunal jurisdiction to review it. Therefore, the remittal decision is not a reviewable decision for the purposes of s 80 of the Act.
Further, in Webb, the Appeal Panel stated: 38. Our conclusion that the second Tribunal did not have jurisdiction to hear Ms Webb's administrative review application means that there is no need to consider any of her other grounds of appeal that relate to the dismissal of her administrative review application. However, we will address one issue. Ms Webb contended that the Tribunal had no power to address the question of its jurisdiction in what it described as a "show cause" proceeding. Even if the respondent does not raise the issue of jurisdiction, the Tribunal must satisfy itself that it has jurisdiction before determining any matter before it. If necessary, the Tribunal may require the parties to address that question. That is what the Tribunal did in this case.
The respondent argued that the Tribunal should dismiss the current application, essentially for lack of jurisdiction, and it stated that it did not seek an oral hearing on this issue. It consented to a determination being made on the papers under s 50(2) of the NCAT Act.

Applicant's submissions

On 20 December 2024, the Tribunal received the applicant's written submissions.
I note that after setting out a procedural background in relation to his access application under the Act, and the previous decisions of the Tribunal, the applicant asserted that the decision dated 20 August 2024 did not address the recommendations contained in the decision at first instance, as follows: The Notice of Decision provided by the respondent dated 20th August 224 at paragraph 2(c) states the decision 'is" reviewable under s 80(d) yet the respondent simultaneously argues at 13, 14 and 15 in their current submission that the Tribunal does not have jurisdiction to review the decision in question. At section 9, of the Notice of Decision provided by the respondent on 20th August 2024, Review Rights, the respondent claims I may seek review under Part 5 of the GIPA Act. At 9.2 the respondent advises I may have the decision reviewed by NCAT yet the respondent simultaneously argues at 13, 14 and a5 in their current submission that the Tribunal does not have jurisdiction to review the decision in question. Can the respondent occupy opposition positions simultaneously? The respondent has not withdrawn the Notice of Decision so I must believe the respondent would claim it is a valid Notice of Decision and I must further believe the statements regarding review contained within the Notice of Decision are also valid. I applied for a Review of the Original Decision on the 27th November 2023. This decision has not been reviewed. It has been remitted to the respondent to make a new decision. It appears that the actions of the respondent with respect to the transfer has created a situation whereby the respondent argues my review rights cannot be exercised.
The applicant referred to numerous paragraphs of the Tribunal's decision at first instance and he complained that Senior Member Deane did not address the reasons why he did not consent to the confidentiality requirements that the respondent attached to providing him with access to the disputed information. He concluded, relevantly: It is clear the decision by Senior Member Deane was intended to enable an outcome whereby any questions raised in the consideration of the matter may be addressed and that a procedurally fair outcome be achieved for the applicant and the respondent and further consultation be conducted with (name provided). The denial of a review of the subject decision will be procedurally unfair…

Dispense with a hearing

The parties were given an opportunity to address this issue in their submissions.
The respondent consented to a hearing being dispensed with, but the applicant did not specifically address the issue.
I am satisfied that an oral hearing can be dispensed with under s 50(2) of the NCAT Act based on the submissions received from the parties.

Jurisdiction

In my view, the principles set out by the Appeal Panel in Webb apply to this matter and the Tribunal lacks jurisdiction to determine the current application for administrative review.
The Tribunal remitted the matter to the respondent under s 63(3)(d) of the ADR Act, which is known as the "final remittal power". By making that order, the Tribunal exhausted its jurisdiction to conduct an administrative review of the respondent's decision and the proceedings were finalised.
While the applicant asserts that the remittal decision is reviewable under s 80(d) of the Act, I reject his argument that the decision dated 20 August 2024 is a decision that falls within the scope of s 80(d) of the Act.
The decision that was reviewable under s 80(d) of the Act was that which was the subject of the administrative review conducted by Senior Member Deane. The Tribunal set aside that decision and remitted the matter to the respondent for reconsideration under the final remittal power.
Section 80 does not invest the Tribunal with jurisdiction to administratively review a decision made by an agency following remittal under the final remittal power.
It appears that in making the decision dated 20 August 2024, the respondent used a standard template for a decision under the Act, which included advice concerning an applicant's rights of review. The respondent clearly erred by not deleting those sections of the template before issuing the decision, but jurisdiction cannot be generated by error.
While the inclusion of those paragraphs in the decision is unfortunate, it does not empower the Tribunal to administratively review the remittal decision as it falls outside the parameters of s 80(d) of the Act.

Conclusion

For these reasons, I am satisfied that the Tribunal lacks jurisdiction to determine the current application for administrative review and that the application must be dismissed.

Order

I make the following orders: 1. I dispense with an oral hearing of the application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The current application is dismissed for lack of jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 10 March 2025

At a glance

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Judgment (8 paragraphs)

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