Dezfouli v Justice Health

[2007] NSWADT 262

CITATION:	Dezfouli v Justice Health [2007] NSWADT 262
DIVISION:	General Division
PARTIES:	APPLICANT Saeed Dezfouli RESPONDENT Justice Health
FILE NUMBER:	073197
HEARING DATES:	On the Papers
SUBMISSIONS CLOSED:	22 October 2007
DATE OF DECISION:	8 November 2007
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary Matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Local Government Act 1993
CASES CITED:	Black v General Manager, Bathurst City Council [2001] NSWADT 139 Canobolas Heritage Railway Society Inc v General Manager, Bathurst Regional Council [2005] NSWADT 61 Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062 Waite v General Manager, Hornsby Shire Council [2004] NSWADT 93 Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196
REPRESENTATION:	In Person S Morris, solicitor
ORDERS:	The application is dismissed.

Application 28/03/2006 (331689)

1 On 28 March 2006 the applicant applied under the Freedom of Information Act 1989 (FOI Act) for access to the following documents:

Medical file from 28/02/06 to 28/03/06 (A copy of everything).

2 That application was received by the respondent on 4 April 2006.

3 On 13 April 2006 the applicant applied under the FOI Act for access to the following documents:

Entire medical file from 28/02/06 to 13/04/06.

4 That application was received by the respondent on 8 May 2006.

5 The respondent treated these two applications as being a request for access to copies of the applicant’s entire medical records dating from 28/02/06 to 13/04/06, reference number “28/03/06 (331698)”. On 23 May 2006 a determination was made to grant partial access. Six documents had been identified as being within the scope of the request. Full access was granted to one document, partial access was granted to 4 documents, and access was refused to one document. The respondent relied on exemptions in clause 4(1)(a), (c) and (h), and clause 6 of Schedule 1 to the FOI Act.

6 The applicant requested internal review of that determination, and on internal review the decision to grant partial access to 4 documents and refuse access to one document was upheld. The applicant was notified of this determination by letter dated 30 June 2006.

Application 10/07/2006 (331689)

7 On 10 July 2006 the applicant applied under the FOI Act for access to the following documents:

Entire medical records from 01/01/06 to 10/07/06.

8 This application was received by the respondent on 26 July 2006.

9 The respondent treated this as a request for access to copies of the applicant’s medical records dating from 13/04/06 to 10/07/06, reference number “10/07/06 (331689)”. By letter dated 25 August 2006 the respondent notified the applicant that 20 documents had been identified as being within the scope of his request. Full access had been granted to 6 documents, partial access had been granted to 13 documents, and access was refused to one document. The respondent relied on the exemptions in clauses 2(1)(e), 4(1)(c) & (h), 6, 7(1)(b) & (c) and 16(a)(iv) & (b) of Schedule 1.

10 The applicant requested internal review of that determination, and on internal review the decision to grant partial access to 13 documents and refuse access to one document was upheld. The applicant was notified of this determination by letter dated 25 September 2006.

Applications to the Tribunal

11 On 18 May 2007 the Tribunal received an application from the applicant for review of the determination of an application under the FOI Act, quoting reference number 28/03/06 (331689). This application is Tribunal file 073150. On 21 June 2007 the Tribunal received an application from the applicant for review of the determination of another application under the FOI Act, quoting reference number 10/07/06 (331689). This application for review is Tribunal file 073197. Included with the latter application were copies of two letters addressed to the applicant from Ms Sania Silver, Senior Investigation Officer, NSW Ombudsman.

12 The letter dated 3 May 2007 is headed “Your complaint about Justice Health pursuant to the Freedom of Information Act 1989 (the FOI Act)”, and commences as follows:

I refer to your initial letter dated 18 July 2006 as well as further correspondence and telephone conversations we had about the above complaint. You were dissatisfied with Justice Health’s determination of your FOI application number 331698, in which you requested a copy of everything on your medical file between 28 February 2006 and 14 March 2006.

13 The letter outlines the various inquiries undertaken; discussions concerning which documents should be placed on the applicant’s medical file; and discussions concerning the possible provision of regular access outside the FOI regime. Ms Silver concluded with a summary of the arrangement put in place by the respondent as to which information would be placed on the applicant’s medical record, and under which the applicant was to have access to his medical record each month. The letter concluded with a statement that no further action would be taken on the applicant’s complaint, and notification of the applicant’s right of appeal to the Tribunal.

14 The letter dated 14 May 2007 is again headed “Your complaint about Justice Health pursuant to the Freedom of Information Act 1989 (the FOI Act)”, and commences:

I refer to our telephone conversation on 10 May 2007. You asked me to confirm the Justice Health reference number for the FOI application I reviewed and closed on 3 May 2007. I have consulted the file and confirm that Justice Health referred to the application as 28/03/06 (331689).

15 In correspondence to the Tribunal before the first scheduled planning meeting, the respondent raised the question of whether the Tribunal has jurisdiction to review the determination of the application lodged with the Tribunal on 21 June 2007. The respondent submits that this application was lodged more than 60 days after notification of the internal review determination of 25 September 2006, and was thus outside the 60 day period prescribed by s54 of the FOI Act. The respondent accepts that the application for review lodged by the applicant on 18 May 2007 (relating to reference number 28/03/06 (331689)) was lodged within the period of 60 days after the Ombudsman reported the results of the investigation, and was thus within the time requirements of s54 of the FOI Act.

16 The jurisdictional issue was discussed at the first planning meeting. The question of whether there is power to extend the period for lodging an application for review, and if so, whether that power should be exercised, is to be determined as a preliminary matter on the basis of written submissions.

17 The respondent provided written submissions on 24 August 2007. The respondent submits that there is no power to extend the time for lodging an application for review under the FOI Act, and relies on the decision of the Supreme Court of New South Wales in Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062. The respondent submits that the decisions of the Tribunal which have followed Cheung, namely Black v General Manager, Bathurst City Council [2001] NSWADT 139, Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196, should be followed, rather than the decision in Canobolas Heritage Railway Society Inc v General Manager, Bathurst Regional Council [2005] NSWADT 61.

18 The respondent further submits that, in the alternative, if the Tribunal finds that there is a discretion to extend the time for lodgement of an application for review, that it should not be exercised in this case. The respondent has been provided with no evidence of a reasonable explanation for the delay; the application was lodged some 238 days after the internal review determination, well outside the 60 day period; and the applicant is familiar with the Tribunal’s procedures, having had several matters before the Tribunal. Further, the applicant was well aware that there were two FOI determinations, as he had made two separate applications for internal review and received two separate internal review determinations, and it should have been clear that he would need to make two separate complaints to the Ombudsman.

19 The applicant wrote to the Tribunal on 2 September 2007 acknowledging that he had received the respondent’s submissions, and stating:

‘In my response and submission, all I can say is that I was waiting for the forms from the ADT, then I got transferred to the Acute Ward in LBH, which is a very violent and unpredictable ward, which I have been under passive and active physical and mental torture, then most of my property and documents and records were taken out of my cell by DCS, so the deadline skept from my mind.

So, if it can be considered, I will be thankful, for your consideration and kindness.’

20 On 19 September 2007 the applicant wrote to the Tribunal stating that his previous letter was his submission.

21 On 4 October 2007 the respondent’s representative advised the Tribunal that she had not received a copy of the applicant’s submissions. The Tribunal forwarded a copy, requesting that any submissions in reply be filed and served by 22 October 2007. On 22 October 2007 the respondent advised that no submissions in reply would be made.

Legislation

22 The relevant provisions of the FOI Act are sections 53 and 54. Section 53 of the FOI Act confers the right to apply to the Tribunal for review of decisions made under that Act:

53 Right to make a review application

(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

(2) A review application may not be made:

(a) while the determination is subject to a right of review under section 34 or 47, or

(b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or

(c) while any relevant complaint is being investigated by the Ombudsman.

…

(5) The provisions of this Division apply to a review application to the exclusion of section 55 (1) (d), section 58 and Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

23 The time within which applications are to be made is provided in s54 of the FOI Act:

54 Time within which review applications to be made

A review application is to be made:

(a) except as provided by paragraph (b)—within 60 days after notice of the determination to which it relates is given to the access applicant, or

(b) if a complaint is made to the Ombudsman in relation to the determination—within that period of 60 days and:

(i) the Ombudsman refuses to investigate the conduct complained of or discontinues an investigation of that conduct within 60 days after the complainant is informed of that fact, or

(ii) the Ombudsman completes an investigation of the conduct complained of within 60 days after the results of the investigation are reported to the complainant.

24 A determination made under s 24 of the FOI Act, in this matter a determination to refuse access to documents, is a “reviewable decision” for the purposes of Part 3 of the Administrative Decisions Tribunal Act 1997 (the ADT Act): s38 ADT Act. Section 55 of the ADT Act provides the time period for lodging an application for review of a reviewable decision:

55 When can an application for a review be made?

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person, and

(b) an internal review is taken to have been finalised under section 53 (9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).

25 Section 57 of the ADT Act enables the Tribunal to extend the time for making an application:

57 Late applications to Tribunal

(1) Despite section 55(1)(d), the Tribunal may, on application in writing by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

(2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired.

(3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).

26 Section 40 of the ADT Act states how the FOI Act and the ADT Act are to be read together:

40 When enactment taken to make contrary provision to this Act

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.

(4) In this section:

relevant enactment means an enactment under which the Tribunal has jurisdiction:

(a) to make an original decision, or

(b) to review a reviewable decision,

or that otherwise deals with the jurisdiction of the Tribunal.

27 The reference in s. 40(2) is a reference to Chapter 3 of the ADT Act, “Jurisdiction of the Tribunal”. The provisions concerning the timing of applications, including section 55 and 57, are contained in Chapter 5 of the ADT Act, “Process for review of reviewable decisions”.

28 Section 54 of the FOI Act does not in terms allow for the exercise of any discretion to extend the time for an application for review by the Tribunal. Section 57 of the ADT Act does, subject to the Tribunal being of the opinion that the person has provided a reasonable explanation for the delay in making the application. Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062 concerned the construction of s329 of the Local Government Act 1993 and sections 42, 44 and 40 of the ADT Act. Section 329 of the Local Government Act provided that an application to the Tribunal for an order that a person be dismissed from civic office if there has been any irregularity in the manner of election or appointment could not be made more than 3 months after the date of the person’s election or appointment. Section 44 of the ADT Act, which applies to an application for an original decision, enables the Tribunal to extend the time for an application in terms similar to s55 of the ADT Act. Dunford J was satisfied that section 329 of the Local Government Act and s44 of the ADT Act were inconsistent and accordingly made contrary provision, and that it followed from s40 of the ADT Act that s44 of the ADT Act had to be read subject to s329 of the Local Government Act. That meant that as s329 made no provision for extension of time, there was no power to extend the time pursuant to s44 of the ADT Act.

29 The reasoning in Cheung has been applied to review of determinations under the FOI Act in Black v General Manager, Bathurst City Council [2001] NSWADT 139, and Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196. In Wilmshurst JM Britton noted:

20…It is clear from Black and Cheung that there will be an irreconcilable difference between the ADT Act and the [FOI] Act where an application is brought out of time, and that the conflict will be resolved in favour of the [FOI] Act. There can be no harmonisation of the inconsistent general and specific provisions.

30 In Canobolas Heritage Railway Society Inc v General Manager, Bathurst Regional Council [2005] NSWADT 61, O’Connor DCJ, President of the Tribunal, held that the Tribunal does have power to extend time. His Honour reasoned that Division 2 of Part 5 of the FOI Act deals with external review of FOI decisions by the Tribunal. Section 53(5) of the FOI Act, which is within Division 2 of Part 5, states that certain specified provisions of the ADT Act do not apply to review of FOI decisions. Section 53(5) includes s55(1)(d) of the ADT Act, which imposes the time limit for applications, but does not include s57 of the ADT Act, which enables the Tribunal to extend time. Section 57 applies to a “late application”, which is defined in s57(3) to mean “an application not made within the time prescribed by the rules of the Tribunal(or prescribed by or under the enactment under which the application is made)”. O’Connor DCJ concluded:

23 It is clear from the words in parenthesis in s57(3) that the FOI Act’s provisions are brought within the scope of s57.

31 In considering whether I should apply the reasoning in Canobolas, or that in Black and Wilmshurst, I note that it appears that O’Connor DCJ was not referred to Cheung, Black or Wilmshurst in Canobolas. I note also that there are some differences between the provisions of the FOI Act and the Local Government Act. First, the Local Government Act contains no equivalent to s53(5) of the FOI Act. Secondly, Dunford J noted a further factor in Cheung, namely that the lack of a provision enabling an extension of time in s329 was consistent with the form that s329 took before its substitution by the Administrative Decisions Tribunal Legislation Amendment Act 1998, and consistent with the general rule relating to applications to upset election results, which is that the time for commencement of proceedings cannot be extended. Despite the differences in context, I am not satisfied that Cheung can be distinguished. The argument which had been accepted by the Tribunal in extending the time in Cheung focused on the reference in sections 42 and 44 to the time “prescribed by or under the enactment under which the application is made”, which was both the time fixed by s42 (and thus, s54) and the definition of a “late application” in s44 of the ADT Act. However, Dunford J held that the determination of whether the two Acts contain contrary provision for the purpose of applying s40 of the ADT Act “must depend on their operation rather than on the precise wording that is used” (at [9]). In concluding that ss. 44(2) and 44(1) of the ADT Act had to be read subject to s329 of the Local Government Act, Dunford J held:

14 I was concerned that this construction may not be correct because it could deprive the words in brackets in s 44(3) of any operation but, on reflection, I am satisfied that there is scope for such words to have an effective operation, namely, in the case where the other enactment itself contains a provision for an extension of time. In such cases where the application is made outside the time fixed by the "other enactment" there would need to be reliance on s 44 to obtain an extension and the words in brackets in s 44(3) would ensure that such application could be made to the Tribunal as a "late application".

32 As was the case in Cheung, s54 of the FOI Act is not a provision which permits an extension of time, and so the words in brackets in s57(3) of the ADT Act have no effective operation in this context.

33 I agree with the respondent’s submissions that while s53(5) of the FOI Act “disapplies” only some of the provisions of the ADT Act, and not, relevantly, s57 of the ADT Act, it does disapply s55(1)(d) of the ADT Act, which means that the time that an applicant has to lodge an application for review is limited to the time period specified in s54 of the FOI Act. Section 54 specifies the time in which a review applicant “is to be made” and does not allow for the possibility of a late application being accepted. Section 54 is inconsistent with s57 of the ADT Act in its operation. Section 40 of the ADT Act applies to reconcile the inconsistency, and by virtue of s40(1), the provisions of the FOI Act apply. That is so even though the ADT Act was enacted after the FOI Act: s40(3). There is no power to extend the time for the lodging of an application for review.

34 There is no dispute that the internal review determination was notified on 25 September 2006. Under s60(b) of the FOI Act, notice of the determination is be taken to have been given to the applicant at the end of the fifth day after the letter was posted, namely 30 September 2006. The application was lodged with the Tribunal on 25 June 2007, some 8 months after that date, and well outside the 60 day period specified in s54(a) of the FOI Act. Section 54(b) of the FOI Act enables the 60 day time limit to run from the date the Ombudsman refuses to investigate the conduct complained of or discontinues an investigation, or notifies the person concerned of the results of an investigation. The letter dated 14 May 2007 confirms that the investigation referred to in the letter dated 3 May 2007 was in relation to the other request for access, reference number 28/03/06 (331689). There is no evidence that the Ombudsman has refused to investigate or discontinued an investigation in relation to application reference number 10/07/06 (331689).

35 As noted above, the respondent submitted that even if there were a discretion to extend the time for application, it should not be exercised in the applicant’s favour as the applicant has not provided a reasonable explanation for the delay. My conclusion on the jurisdictional issue makes this unnecessary to decide. I note, however, that the applicant’s circumstances as a patient of Long Bay Forensic Prison Hospital make it difficult for him to keep track of the many applications he has on foot for access to documents under the FOI Act. This is not helped by the respondent’s practice of referring to FOI applications using a combination of the applicant’s management index number, or “MIN”, and the date of application, rather than a more distinctive referencing system. The possibility of confusion which arises is demonstrated by the letter from the Ombudsman dated 3 May 2007, which refers only to the applicant’s MIN and the substance of the first request for access. However, I must apply the provisions of the legislation, which give me no option but to find that the application for review of the determination in 10/07/06 (331689) was lodged out of time. There being no power to extend the time, the Tribunal has no jurisdiction to consider the application for review.

Order

The application is dismissed.