Administrative review - Freedom of Information Act 1991 - Parties aggrieved by a determination of the ombudsman following internal review

Administrative tribunals - Procedure - Consent orders

Freedom of Information Act 1991 s 40

South Australian Civil and Administrative Tribunal Act 2013 ss 3, 34, 38, 43, 52

AGL Loy Yang v Dept Head, Dept of Economic Development, Jobs, Transport and Resources [2016] VCAT 1249

John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2022] VSC 100

Moloney v 21-25 South Esplanade Pty Ltd [2024] SASCA 58

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of the parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Adjournment for further directions - request for consent orders declined

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 43(2)

1. This is an application made under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) and s 40(2)(c) of the Freedom of Information Act 1991 (FOI Act) for review of a decision of the Ombudsman made on 2 April 2025.
2. The matter was scheduled for its first telephone directions hearing to take place on 13 June 2025.
3. Prior to that directions hearing, the parties contacted the Tribunal and requested that the directions hearing be vacated and that the Tribunal make 'consent orders' in a form provided to the Tribunal.
4. The Tribunal declined to vacate the directions hearing and it proceeded as scheduled on 13 June 2025. At that directions hearing the parties reiterated their request that the Tribunal make 'consent orders'. The responding parties said that they do not wish to be heard in the matter. The applicant submitted that the Tribunal is empowered by s 52(2) of the SACAT Act to make any determination or order necessary to give effect to a settlement if the parties agree in writing to settle a matter before the Tribunal. The applicant pressed that the Tribunal make orders in the terms of paragraphs 2 and 3 of the 'consent orders' provided to the Tribunal, namely that:
   1. The decision of the Ombudsman dated 2 April 2025 is set aside.
   2. The decision of the Mount Barker District Council on internal review dated 6 August 2024 is affirmed.
5. Proceedings under s 34 of the SACAT Act and/or s 40 of the FOI Act are administrative review proceedings. They are not inter partes litigation of an adversarial nature.
6. Section 52(3) of the SACAT Act fetters the Tribunal's power to make orders settling proceedings. Section 52(3) reads:

A settlement under this section must not be inconsistent with a relevant Act and the Tribunal may reject a settlement under subsection (2) on the basis that the settlement may materially prejudice any person who is not a party to the settlement but who has a direct or material interest in the matter or that the terms of the settlement are inappropriate.

7. A 'relevant Act' is an Act which confers jurisdiction on the Tribunal: SACAT Act s 3(1). In this matter there are two relevant Acts, namely the SACAT Act itself and the FOI Act.
8. Section 34 of the SACAT Act and s 40 of the FOI Act require the Tribunal to review the decision which is the subject of the proceedings. Those sections do not empower the Tribunal to enter consent orders on request by the parties without conducting such a review. To do so would be inconsistent with the relevant Acts, and therefore contrary to s 52(3) of the SACAT Act.
9. It is well-established that a tribunal such as this Tribunal when exercising its review jurisdiction ought not to 'rubber stamp' consent orders provided to it: AGL Loy Yang v Dept Head, Dept of Economic Development, Jobs, Transport and Resources [2016] VCAT 1249 at [28] cited in John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2022] VSC 100 at [20].
10. When parties submit 'consent orders' to the Tribunal with a request that the very first directions hearing in the matter be vacated and the 'consent orders' entered in the absence of any other submissions by the parties, it is difficult to construe that request as anything other than a request for the Tribunal to rubber stamp the orders provided to it. Such a request ought not to be granted and in this matter was in my view correctly declined.
11. Parties to proceedings of any nature in this Tribunal are at liberty to reach whatever agreements between them that they wish. If such an agreement is reached, it is open to the applicant in the Tribunal to seek to withdraw its application and for the parties then to proceed on the basis of the agreement reached. If parties wish to have orders made by the Tribunal, such orders can only be made in accordance with the relevant Act/s.
12. The mechanism for review by the Tribunal under s 40(2)(c) of the FOI Act has a particular feature which is not present in many of the Acts conferring review jurisdiction on the Tribunal. That feature is that the decision-maker whose decision is under review, namely the Ombudsman, cannot be a party to the Tribunal proceedings pursuant to s 40(6) of the FOI Act. In my view a request for consent orders in a review under s 40(2)(c) of the FOI Act ought only to be exercised very rarely, if ever, because the decision-maker is not able to be heard on the review. This obstacle does not exist in many other Acts conferring review jurisdiction on the Tribunal, where the decision-maker is a party to the Tribunal proceedings.
13. Another consequence of this feature of s 40(6) of the FOI Act is that the decision-maker is not present so as to be able to consent to the matter being remitted for the decision-maker to reconsider the decision pursuant to s 38 of the SACAT Act. Section 38 of the SACAT Act can be a useful tool for the Tribunal when the parties (including the decision-maker) have come to an agreement about a different decision being made. However it is not of assistance when, as in this matter, the decision-maker is not a party.
14. A rehearing by the Tribunal pursuant to s 34 of the SACAT Act can take various forms. In many matters the Tribunal will conduct a rehearing by the parties appearing in person before it and making oral submissions, often in furtherance of written submissions filed in advance. In other matters it may be appropriate for the Tribunal to conduct the rehearing 'on the papers' without requiring oral submissions from the parties. Section 34(5) of the SACAT Act generally requires the Tribunal on a rehearing to examine the evidence or material before the decision-maker and to consider any further evidence or material that the Tribunal may decide, in the circumstances of the particular case, to admit for the purposes of rehearing the matter. In my view the Tribunal would not properly comply with s 34(5) of the SACAT Act if it were to purport to carry out a rehearing under s 34 without actually hearing from the parties in some form, whether that be orally or in writing. How extensive that hearing must be may vary depending on the nature of the matter. It must however in my view be more than the parties providing the Tribunal with a request for 'consent orders' to be made.
15. Section 52(3) of the SACAT Act requires the Tribunal to consider whether a proposed settlement may materially prejudice any person who is not a party to the settlement but who has a direct or material interest in the matter. The Tribunal cannot be satisfied that no material prejudice exists when there is a complete absence of submissions from the parties on that point. Where a party is a public body of some kind, such as a local council, the proceedings have a public character. In my view a public decision-maker or body consenting to a settlement ought to demonstrate that the decision-maker or body, in giving its consent, has had appropriate regard to all of the relevant matters it was required to consider under the enabling enactment (including relevant matters of a 'public' character) and that the proposed consent position does not materially prejudice any person who is not a party to the settlement but who has a direct or material interest in the matter.
16. In this matter, Mount Barker District Council gave its consent to the proposed consent orders but then sought not to have to participate any further in the matter, contrary to the requirements of FOI Act s 40(5) that it be a party to the review. I am not satisfied that that is an appropriate course. The Tribunal has no means of knowing whose interests might be materially prejudiced if it acceded to the parties' request that the decision of the Mount Barker District Council dated 6 August 2024 (that four documents are exempt from disclosure pursuant to FOI Act Schedule 1 clause 7(1)) be substituted for the decision of the Ombudsman dated 2 April 2025 that those four documents are not exempt from disclosure due to their age and the fact that the development to which they relate has been completed.
17. None of the parties has yet put any submission to the Tribunal, however brief, about why they say the Ombudsman's decision is not the correct and preferable decision and why the Tribunal ought to set aside that decision and substitute the decision of the Mount Barker District Council dated 6 August 2024 in accordance with the consent orders provided. This includes the party which initially sought review by the Ombudsman of the decision of the Mount Barker District Council. Why that party is now (apparently) content with the decision of the Mount Barker District Council is unclear to the Tribunal. Like Mount Barker District Council, that party too sought not to have to participate any further in the matter, despite the requirements of FOI Act s 40(5). I leave aside for the time being the point that the true identity is undisclosed of the party which made the original application to Mount Barker District Council for disclosure of documents and then sought review by the Ombudsman of the decision of the Council. That party acted first through an employee of a law firm and acts now through a partner of the same law firm who is individually named as a respondent in these proceedings (his name having been substituted by the Tribunal Registry for the law firm employee's name, without objection from any party, on the grounds that the employee has left that firm). It may be that the Tribunal does not need to know on whose behalf the law firm was acting. However, if it is to consider proposed settlement orders, it is clear that the Tribunal needs to satisfy itself that s 52(3) of the SACAT Act is not contravened by the proposed orders.
18. In my view the Tribunal cannot satisfy itself that s 52(3) of the SACAT Act is not contravened if the parties to the proceeding do not put any submission to the Tribunal beyond unadorned consent to the proposed settlement orders. Nor can the Tribunal properly conduct a rehearing under s 34 of the SACAT Act if all that the parties provide it with is such unadorned consent to settlement orders. In this matter the Ombudsman has separately provided the Tribunal with the material that was before it, but that does not entitle the parties not to make any submissions at all of their own and only to provide the Tribunal with proposed consent orders.
19. The applicant submitted that the SA Court of Appeal decision in Moloney v 21-25 South Esplanade Pty Ltd [2024] SASCA 58 has the effect that the Tribunal ought to enter orders to 'quell the dispute' when the parties have come to an agreement as to the orders they seek. I do not accept that Moloney stands for that principle, nor that it binds the Tribunal to enter consent orders when requested by parties to do so in an administrative review matter. In such a matter, the Tribunal must consider, at a minimum, whether s 52(3) of the SACAT Act has been satisfied and whether the Tribunal has fulfilled the requirements of the relevant Act within the meaning of s 52(3). This will usually require the Tribunal to conduct some form of rehearing, after having heard the parties to some extent on that rehearing. It may require a full rehearing with both written and oral submissions by the parties. The Tribunal should also consider whether it is appropriate to remit the matter to the decision-maker pursuant to s 38 of the SACAT Act or for the applicant to withdraw its application and for the parties to proceed on the basis of their agreement.
20. In this matter I am not persuaded that s 52(3) of the SACAT Act has been satisfied. Further, I do not consider it appropriate to entertain 'consent orders' in a matter under s 40(2)(c) of the FOI Act before conducting at least some form of rehearing based on submissions from the parties.
21. I will decline the parties' request for consent orders. I will relist the matter for a further directions hearing to discuss the future progress of the matter. On that occasion all parties should be prepared to address the Tribunal on (at least) the question of why they say that the Ombudsman's decision was not the correct and preferable decision, and whether, if the Ombudsman's decision were to be set aside, there might exist any material prejudice to any person who is not a party but who has a direct or material interest in the matter. Such submissions should enable the Tribunal to consider the nature and extent of rehearing required for the Tribunal to be able to carry out its task pursuant to s 34 of the SACAT Act and s 40 of the FOI Act.

1. The parties' request for consent orders to be made is declined.
2. The Tribunal sets this matter down for a further telephone directions hearing on a date to be determined and notified to the parties by the Registry.