Black v General Manager, Bathurst City Council

CITATION:	Black -v- General Manager, Bathurst City Council [2001] NSWADT 139
DIVISION:	General Division
PARTIES:	APPLICANT Sam Black RESPONDENT General Manager, Bathurst City Council
FILE NUMBER:	013116
HEARING DATES:	18/07/01
SUBMISSIONS CLOSED:	07/18/2001
DATE OF DECISION:	08/20/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Jurisdiction - Late application to the Tribunal
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Local Government Act 1993
CASES CITED:	Cheung -v- Administrative Decisions Tribunal [2000] NSWSC 1062
REPRESENTATION:	APPLICANT In person RESPONDENT J Clague, agent
ORDERS:	The application is dismissed.

1 The preliminary issue to be resolved is whether Mr Black’s application to the Tribunal has been lodged within time and if not, whether the Tribunal has any power to extend the time for lodging such an application. The application was lodged more than 60 days after the Ombudsman informed him that he did not intend to investigate the matter. The Tribunal has concluded that it was not lodged within time and that there is no power to extend that time.

2 There is also an issue as to whether Mr Black can lodge an application with the Tribunal given that more than 60 days elapsed between the date of the internal review and the referral to the Ombudsman. That question is not addressed in these reasons given the conclusion set out above.

Relevant facts

3 On 28 April 1999 the Mr Black applied to the Bathurst City Council under the Freedom of Information Act 1989 (FOI Act) for access to a letter of complaint which related to an ornamental windmill on Mr Black’s property. On 7 June 1999 the Council made a determination not to provide Mr Black with access to the letter.

4 Mr Black request an internal review of the decision on 12 July 1999. The internal review decision, made on 28 July 1999, affirmed the original decision not to provide access to the letter.

5 Mr Black complained to the Ombudsman on 26 October 1999. He wrote back on 9 February 2001 concluding that it was reasonable for the Council to consider the identify of the author of the complaint about the windmill to be exempt from disclosure under the FOI Act.

6 The final paragraph of the Ombudsman’s letter to Mr Black, dated 9 February 2001, stated, in part, that:
Section 54(b)(i) of the FOI Act requires a review application to the Tribunal to be made within 60 days after the complainant is informed of the fact that the Ombudsman has refused to investigate the complaint. For the purposes of s 54(b)(i) my decision to take not further action on your complaint is a decision to refuse to investigate your complaint. It would therefore be advisable that any review application in relation to Council’s determination of your FOI applications be made within 60 days of the date of this letter.


7 Mr Black told me in the case conference that he wrote back to the Ombudsman on 21 February 2001 and…