Altaranesi v Commissioner of Police

[2010] NSWADT 252

CITATION:	Altaranesi v Commissioner of Police [2010] NSWADT 252
DIVISION:	General Division
PARTIES:	APPLICANT Tareq Altaranesi RESPONDENT Commissioner of Police
FILE NUMBER:	103104
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	14 July 2010
DATE OF DECISION:	22 October 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Freedom of Information - Access to documents - right of review - Costs
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997
CASES CITED:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60Morton v Hampson [1962] VR 264 Reynolds v Reynolds [1941] VLR 249Ward v Walton (1989) 10 MVR 537, 66 NTR 20; Susiatin v MIMA 52 ALD 238
REPRESENTATION:	APPLICANT In person RESPONDENT J Windsor, agent
ORDERS:	No order as to costs.

REASONS FOR DECISION

Introduction

1 On 22 February 2010 the NSW Police Force (the Respondent) received an application from Mr Altaranesi under the Freedom of Information Act 1989 for Police reports relating to a specific Police event number, and for any other events or reports involving him, recorded by Newtown Police, in the period 1 August 2004 until 1 April 2008. Section 24 of the Freedom of Information Act 1989 required that his application be determined within 21 days, by 16 March 2010, in default of which the Respondent was “taken to have determined the application by refusing access to the document to which it relates.”

2 On 23 April 2010 the Respondent received an application for internal review from Mr Altaranesi on the basis that there had been a deemed refusal of his original application. Mr Altaranesi says this request was made on 21 April 2010, when it was sent to the Respondent with a money order in payment of the fee. Section 34(6) required that the internal review be determined within 14 days, by 11 May 2010, in default of which the Respondent was “taken to have made a determination under section 24 refusing access to the document to which the application relates.”

3 On 5 May 2010, fourteen days after he sent his application for internal review to the Respondent, Mr Altaranesi applied to the Tribunal to review a deemed refusal of his internal review application.

4 On 6 May 2010 the Respondent says it made a decision on internal review in which it identified 17 pages of documents responsive to the request. Three pages (1, 2 and 17) were released to Mr Altaranesi in full. The balance were released in part subject to deletions made in reliance on the personal affairs exemption (all documents), and on the basis that they contained confidential information and that disclosure would reveal a confidential source in relation to the enforcement or administration (pages 3 to 5).

5 Mr Altaranesi says he did not receive this decision until 17 May 2010. The decision he received is dated 6 May 2010.

6 Mr Altaranesi’s application to the Tribunal was listed for a planning meeting before me on 16 June 2010. In the course of that planning meeting Mr Altaranesi agreed to withdraw his application, save that he sought an order for his costs relating to the application. The Respondent opposed Mr Altaranesi’ application for costs.

7 I made directions requiring the parties to file submission on the costs question. These reasons relate to that issue alone.

8 Section 88 of the Administrative Decisions Tribunal Act 1997 (ADTA) provides the general rule is that parties are to bear their own costs of proceedings. The Tribunal has the discretion to award costs if it is fair to do so having regard to the factors set out in sub-section (1A). Those factors are:

“(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths 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,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.”

9 The operation of s 88 has been recently considered by Appeal Panels in B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21, Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 and KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60.

Submissions

10 On 22 June 2010 Mr Altaranesi filed submissions in which, in summary, he argued that his filing of the application with the Tribunal was the direct result of the Respondent’s failure to make decisions in time. He asserted that the time for the Respondent to complete its internal review decision under s 34(6) expired on 4 May 2010, and that he was entitled to make his application to the Tribunal to enforce his right to access.

11 He detailed the costs he sought as follows:

- Application fees for access sent to police $15
- Application fees of ADT $68
- Travel to/ from Tribunal (2 times) $110
- Printing, Paper, Copying and postage $95
- Pocket money/ 2 days $60
-Wasting my time: 4 hours x 4 30 $120
(1 hour in ADT, 3 hour in preparation the case)

12 In reply the Respondent made detailed submissions. It’s principal contention was that Mr Altaranesi has made his application for review to the Tribunal before the time for the Respondent to make its internal review determination, in accordance with s 36(4), had expired. As a result the Respondent submitted that Mr Altaranesi was not entitled to make his application for external review on 5 May 2010 and the Tribunal did not have jurisdiction to entertain his application. The Respondent argued that –

It would be an irrational and absurd interpretation of section 88 if a party were liable for the costs on an application that, through no fault of that party, was not brought properly or was not within the jurisdiction of the Tribunal. Indeed, such circumstances would be favourable to that Respondent if that Respondent sought costs: subsection 88(1A)(a)(vi) and 88(1A)(c).

13 Alternately, the Respondent argued that it would not be fair to award costs against it, given that the Tribunal did not have jurisdiction. The circumstances, it was said, pointed to fairness requiring that no order for costs being made.

14 The Respondent also made submissions as to the quantum of the costs claimed.

15 Mr Altaranesi has filed submissions in reply. Relevantly, he alleged that the Respondent had altered the copy of his original FOI request by inserting the month of his date of birth, and by deleting the date 18 February 2010 from the request. He attached a copy of his copy of the document to demonstrate this. He asserted that the internal review decision had been sent to him on 17 May 2010. He submitted that the Tribunal had jurisdiction to entertain his application for review, and that the Respondent had deceived the Tribunal and himself, giving rise to a ground to award costs under s 88(1A)(a)(v). He said that ordering the Respondent, whose delay had caused him to make to the application, would enhance its accountability, in terms of its obligation to comply with the Freedom of Information Act 1989.

16 Section 53 provides persons aggrieved by a decision of an agency may seek a review in this Tribunal. Persons aggrieved by a determination include those who have made an access application under s 17 or 34, which has been refused: ss(3)(a)(i). Sub-section 2(a) provides that –

A review application may not be made:
(a) while the determination is subject to a right of review under section 34 or 47.

17 In Mr Altaranesi’ case he had made a request for internal review following a deemed refusal of his original request to access information. The internal review request was dated 21 April 2010 and is stamped as received by the Respondent on 23 April 2010. Mr Altaranesi maintains it was made, for the purposes of s 34, on 21 April 2010.

18 Section 34 relevantly provides –

(1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination.
(2) An application for review of a determination:
(a) shall be in writing, and
(b) shall be accompanied by such application fee as the agency may determine, and
(c) shall be addressed to the principal officer of the agency, and
(d) shall specify an address in Australia to which notices under this Act should be sent, and
(e) shall be lodged at an office of the agency:
(i) …
(ii) if no notice of the determination was given to the applicant—within 49 days after the application was received by the agency, or
…
(6) An agency that fails to determine an application made under this section within 14 days after it is received by the agency shall, for the purposes of this Act, be taken to have made a determination under section 24 refusing access to the document to which the application relates.

19 It is important to observe that the time within which an agency is to make an internal review determination begins to run after it is “received” by the agency; not when it is sent to the agency. The evidence in this case points to it being received by the Respondent on 23 April 2010.

20 The Respondent’s obligation was to make an internal review decision within 14 days after receiving the internal review application, failing which s 34(6) provided for a deemed refusal.

21 Mr Altaranesi lodged his application with the Tribunal on 5 May 2010, on the basis of a deemed refusal on 4 May 2010. In this he is incorrect.

22 The starting point is the date the internal review application was received by the agency: 23 April 2010. A deemed refusal would be taken to have been made if an internal review determination was not made “within 14 days after” receipt. I think it plain that those words make it clear that the day of receipt is not to be counted in determining when those 14 days expire. I am reinforced in this view by decisions as to the accepted legal meaning of the word “within.” In Morton v Hampson [1962] VR 264, at 365 said:

The modern rule in relation to a period of time fixed by statute ``within'' which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from and of course including the first day.

See also Reynolds v Reynolds [1941] VLR 249; Ward v Walton ( 1989) 10 MVR 537, 66 NTR 20; and Susiatin v MIMA 52 ALD 238.

23 The day after the Respondent received the application was 24 April 2010. Fourteen days from then, counting 24 April, was 7 May 2010. This means that Mr Altaranesi was at liberty to lodge an application for review on the basis of a deemed refusal from 8 May 2010 onwards.

24 When he did lodge his application with the Tribunal on 5 May 2010 the original deemed refusal was still subject to a right of internal review under section 34. The Tribunal therefore did not have jurisdiction to determine the application he made. He was not a person aggrieved as, when he lodged his application with the Tribunal, there was no existing determination made under s 34 refusing him access to the information sought, deemed or otherwise. Further, because the original deemed refusal was still subject to a right of review under s 34, s 54(2)(a) provided that Mr Altaranesi did not have the right to seek external review when he did so.

25 Because Mr Altaranesi withdrew his substantive application it was not necessary to me to determine that issue in that proceeding. It has proved to be necessary on the issue of costs.

Costs

26 I have no doubt, as Mr Altaranesi explained during the planning meeting and has repeated in his submissions, that he made his application to the Tribunal out of frustration with the delays and lack of response from the Respondent. He did, however, jump the gun. He made his application to the Tribunal prematurely, before the time for the making of an internal review had passed. As a result the Tribunal had no jurisdiction to entertain it.

27 This a factor to be born in mind in considering his application for costs under s 88(1A)(a)(ii).

28 Mr Altaranesi argued that the Respondent had attempted to deceive both the Tribunal and himself with respect to the contents of his original FOI request and with respect to when the internal review decision dated 6 May 2010 was sent to him. I am not prepared on the basis of assertions of fact alone to reach the conclusion that the Respondent sought to deceive the Tribunal and him. I do not consider that Mr Altaranesi has established a basis for treating s 88(1A)(a)(v) as a relevant consideration to his costs application.

29 The other factor in s 88 which I consider Mr Altaranesi’s submissions fairly raise for consideration is s 88(1A)(a)(ii) –

“… failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings”

30 Mr Altaranesi pointed to the failure to make a decision with respect to his original FOI request, his subsequent internal review request and application to the Tribunal as showing a failure by the Respondent to comply with the Freedom of Information Act 1989. He argued that an order for costs would make the Respondent accountable for its actions. I have considerable reservations as to whether sections 17, 24 and 34 of the Freedom of Information Act 1989 are relevant provision of that Act under which the Tribunal has jurisdiction in relation to the proceedings, for the purposes of s 88(1A)(a)(ii) of the Administrative Decisions Tribunal Act 1997. This is so as they are concerned with decision making under that Act, not the review of such decisions.

31 In contrast Division 2 of Part 5 of the Freedom of Information Act 1989 (Reviews by the Tribunal) contain provisions conferring jurisdiction on the Tribunal (s 53) and setting out procedures to be followed in applying to the Tribunal, and by the Tribunal in undertaking those reviews. These impress me as relevant provisions of the kind mentioned in s 88(1A)(a)(ii) that the Tribunal might properly take a failure to comply with into account on a costs issue. Thus, I have already found that Mr Altaranesi premature application, in breach of s 54(2)(a) of that Act, is a factor I can take into account.

32 In this case only Mr Altaranesi seeks an order for costs. Having considered the factors in s 88 I do not think it fair that the Tribunal depart from the general rule that each party bear their own costs. I do not think it fair that the Respondent be required to pay Mr Altaranesi’s costs of proceedings which were commenced prematurely and would, had he not withdrawn his application, have been destined to be dismissed for want of jurisdiction.

33 The order I will make is: No order as to costs.