Whoops, devil in the detail, again

This sounds like an expensive oversight.

For years, NSW Government agencies represented by the Crown Solicitor, have been arguing in the Administrative Decisions Tribunal that the Tribunal had no power to undertake a review of a Freedom of Information matter where the applicant in the case raised the issue of the sufficiency of search for documents.

The Tribunal has maintained the position that it has such powers.

In August last year the Department of Commerce, represented by the Crown Solicitor's Office made an application in a case where this issue arose, to have the question of law resolved by the Supreme Court.

The case was heard in January and a decision (Director General Department of Commerce v Cianfrano (2007) NSWSC849) handed down last week. The Crown Solicitor's Office took it seriously as the Crown Solicitor appeared in the proceedings.

Unfortunately for all, including the taxpayer, Justice Hall found that he had no authority to decide the matter as there had not been a proper reference from the Tribunal: under the relevant legislation, a matter could only be referred to the Court by an Appeal Panel of three members of the Tribunal. In this case the matter had been referred by the Deputy President of the Tribunal sitting alone.

It's back to the drawing board on this one a year after the attempt to have the matter resolved.