Cianfrano v Director General, Premier's Department (GD) [2006] NSWADTAP 48

Cianfrano v Director General, Premier's Department (GD) [2006] NSWADTAP 48

The Tribunal made an error of law by failing to give effect to Premier's Memorandum No. 91-30, a relevant Government policy in force at the time of the reviewable decision, as required by s 64 of the Administrative Decisions Tribunal Act 1997. The policy was not contrary to law and would not produce an unjust decision; it required negotiation with the applicant about a longer or staged period for compliance before refusing the application on the resources exception. The Tribunal should have remitted the decision to the agency under s 65 with a recommendation that the policy be applied. The other appeal grounds did not disclose error of law, and the appeal was not extended to the merits.

Jurisdiction
Australia
Judgment Date
18 September 2006
Procedural Posture
Appeal From Administrative Decisions Tribunal Freedom of Information Review Decision / Appeal Panel Decision
Outcome
Appeal allowed on one ground; Tribunal's decision set aside and matter remitted; leave to extend the appeal to the merits declined.
Legal Topics
['freedom of Information Act Resources Exception' 'application of Government Policy' 'apprehended Bias' 'expert Opinion Evidence' 'failure to Exercise Discretionary Power' 'remittal']
['administrative Law' 'freedom of Information' 'evidence'] ['freedom of Information Act Resources Exception' 'application of Government Policy' 'apprehended Bias' 'expert Opinion Evidence' 'failure to Exercise Discretionary Power' 'remittal']

Case Brief

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Procedural Posture

Appeal From Administrative Decisions Tribunal Freedom of Information Review Decision / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the Tribunal erred in law by failing to give effect to Premier's Memorandum No. 91-30 as Government policy under s 64 of the Administrative Decisions Tribunal Act 1997." "Whether the agency's reliance on evidence from a person who was not an officer of the agency involved an error of law by the Tribunal." 'Whether the Tribunal erred in admitting or relying on opinion evidence from Mr Quinnell and in relation to Practice Note 14.' 'Whether the Tribunal erred by failing to make a recommendation to the Minister under s 58 of the Freedom of Information Act 1989.' "Whether the Tribunal was obliged to require production of the files to test the agency's estimates." "Whether comments by O'Connor P gave rise to apprehended bias." "Whether the appeal should be extended to the merits of the Tribunal's decision."]

Ratio Decidendi

The Tribunal made an error of law by failing to give effect to Premier's Memorandum No. 91-30, a relevant Government policy in force at the time of the reviewable decision, as required by s 64 of the Administrative Decisions Tribunal Act 1997. The policy was not contrary to law and would not produce an unjust decision; it required negotiation with the applicant about a longer or staged period for compliance before refusing the application on the resources exception. The Tribunal should have remitted the decision to the agency under s 65 with a recommendation that the policy be applied. The other appeal grounds did not disclose error of law, and the appeal was not extended to the merits.

Court Disposition

Appeal allowed on one ground; Tribunal's decision set aside and matter remitted; leave to extend the appeal to the merits declined.

Orders

  • ["The Tribunal's decision is set aside." 'The matter is remitted to the Tribunal to be heard and decided again either with or without the hearing of further evidence.']