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Wednesday, January 16, 2013

Tribunal delay, Henry George and other hopeless causes

I'm sure there are plenty of examples of clutching at straws or voids in space with resultant costs to the taxpayer and delay to others.

However those waiting patiently for a Government Information (Public Access) Act review decision from the NSW Administrative Decisions Tribunal (in a matter that I'm involved in, since a hearing in July) won't be amused that part of the long delay results from the tribunal having to deal with cases such as NSW Henry George Foundation v Director General Department of Attorney General and Justice decided by Deputy President Higgins last week. The application for review came before the tribunal member in February and April last year.

Everyone is and should be entitled to their review of course, but it should have been made clear along the way in this case that virtually everything being put on behalf of the third party, a charitable trust objecting to disclosure of three years of filed financial accounts, was fanciful and had no prospect of success. The case was decided on the papers, without a hearing.

But Deputy President Higgins took (seven months and) 72 paragraphs to reject claims regarding various public interest considerations against disclosure that did not arise (one), were not relevant (two) or were not established (three). On one, that disclosure of its annual financial statements could reasonably be expected to prejudice the future supply of information from an informant, Deputy President Higgins said the applicant "clearly has little understanding of the application of this ground of public interest consideration against disclosure." Other public interest arguments in my view, were slightly higher grade.

One claim was remitted to the agency for determination, although Deputy President Higgins seemed dubious, with good reason: whether disclosure of the names of trustees, acknowledged as personal information, could reasonably be expected to 'reveal' their names, in light of the fact they appear on the trust's letterhead used in correspondence, and some in other court proceedings.

None of these arguments appear to have been submitted to the tribunal by a hapless group innocently caught up in a GIPA application and doing its best to deal with unfamiliar legal issues. Dwyer Lawyers, experts in tax, wills, estates etc acted for the trust. You have to wonder whether they opined beforehand that there were reasonable prospects of success.

Henry George is turning in his grave at the cost to the taxpayer of agency and tribunal time spent on this. 

There is no reference in the decision to the agency raising the issue of costs but one ground for an order is the relative strength of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law.

Agencies that concede as soon as a matter hits the ADT - as the Department of Education  and Communities did in this recent case that has been cluttering Deputy President Higgins' decision pending tray - should have done better first time round, and by failing to do so also contribute to delay in the tribunal for others, and unnecessarily to ADT costs. Not to mention the administrative cost in this case that may arise from stuffing up in releasing unrelated personal information about others to the applicant.

It's my second day back. Excuse the grumpiness.

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