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NSW ADT President highlights problems with repeat applicants

By Peter Timmins

In commenting on the year in review in the latest annual report of the NSW Administrative Decisions Tribunal President Kevin O'Connor highlights the "increasingly difficult management problem for tribunals" of the repeat litigant.

"The "querulent" litigant may have suffered a real injustice..... but the wrong may have disappeared from view "as the person pursues procedural complaints against the officials in institutions with whom he or she has dealt along the way........These users will often file mountains of paper, they will regularly arrive at the counter seeking attention or make numerous phone of fax calls.....They will often make formal applications in connection with their filed claims on narrow, procedural points necessitating the giving of notices to their opponent, and the convening of hearings. These activities can place major strain on the capacity of complaint handling institutions including tribunals".

The report does not specify the areas of jurisdiction where this issue has arisen. Without categorising anyone as a querulent, a search of reported decisions dealing with Freedom of Information and privacy matters, reveals three applicants have racked up an impressive list of decided matters: between them, 26 in 2007, 17 in 2006, 16 in 2005 - 59 in the last three years.

President O'Connor says that Tribunals have commenced work on developing common standards and practices to deal with the activities of repeat applicants.

FOI applications to the Tribunal during the year to June 2007 fell from 125 to 114, and 30 privacy applications were lodged, the same as the previous year. Accurate figures were not kept but about 42% of information law matters were resolved without a final hearing. Unfortunately the Tribunal has never published any information about matters resolved in this way. If, as seems likely, in many instances a government agency has agreed to release additional documents after Tribunal proceedings have commenced, this would suggest that the agency decided to concede rather than continue to fight disclosure. This would form part of a broader picture about the quality of determinations in the agencies concerned.

The only performance standards published by the Tribunal relate to time taken to deal with an application. No separate statistics are published about the FOI and privacy cases but Appendix E reveals that of the cases in the relevant division 66% of matters were disposed of in less than 6 months (the target was 85%), and 85% of matters were disposed of in less than a year (100%).

The report also reminds the NSW Government that it has never tabled in Parliament the statutory review of the Administrative Decisions Tribunal Act (required by 2003 ) or provided a response to a Parliamentary Committee report on Tribunal jurisdiction released in November 2002. President O'Connor hoped both would appear in late 2007. Keep hoping Judge - neither have been published to date.

The Annual Report 2006-200

Full post as published by Open and Shut on January 27, 2008 (boomark / email).