Druett v Director General, Department of Community Services

[2003] NSWADT 127

CITATION:	Druett -v- Director General, Department of Community Services [2003] NSWADT 127
DIVISION:	General Division
PARTIES:	APPLICANT Garry Keith Drett RESPONDENT Director General, Department of Community Services
FILE NUMBER:	023091
HEARING DATES:	05/03/2003, 02/05/2003
SUBMISSIONS CLOSED:	05/02/2003
DATE OF DECISION:	05/23/2003
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT P Lakatos, barrister
ORDERS:	Orders Made On 2 May 2003; The Applicant’s application to the Tribunal for review of a reviewable decision is dismissed.

EX TEMPORE

1 An application has been made before me in these proceedings by Mr Lakatos, who appears for the respondent agency, for the Tribunal to dismiss the proceedings for want of jurisdiction. Mr Druett appears for himself.

2 These proceedings first came on for hearing and were partly dealt with on 5 March 2003, when the internal solicitor for the respondent agency appeared. On that day there were some difficulties with the applicant’s case as were identified by the respondent in various applications that were made on that day, and I was minded to set the matter down for a further hearing today. I also made various orders that affidavits and documents be filed.

3 The application that was made on 5 March 2003 was that the review application of the applicant, in which he was seeking external review of a refusal to provide him access to documents under the Freedom of Information Act 1989 (NSW) (“FOI Act”) was misconceived, in that it was premature. It was also argued that it was barred under a doctrine of res judicata, as it was put to me, in that it was said the decision sought in these proceedings was identical to the decision concerning the applicant made by the Tribunal on I think it was 10 April 2002 by her Worship the Deputy President.

4 It was also put on 5 March 2003 that the Tribunal did not have jurisdiction because the applicant was not “aggrieved” within the meaning of sections 24, 43 and 53(1) of the FOI Act. Those arguments were not expanded upon in great detail at the time and I was not taken to the different provisions I have now been taken to today.

5 Today, at the commencement of the hearing, Mr Lakatos for the respondent drew my attention to and based the respondent’s new application on section 55(1)(b) of the Administrative Decisions Tribunal Act 1997 (NSW) (“ADT Act”), which provides:

“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: …

(b) an internal review is taken to have been finalised under section 53 (9), ….
6 That provision should be read in tandem with, Section 53(4)(b) of the FOI Act, so that the internal review reference is meant to be a reference to an internal review application under the FOI Act.

7 Section 55(1)(b) of the ADT Act is something that enlivens the Tribunal's jurisdiction in FOI matters.

8 The respondent contended that the agency has never received an internal review application from the applicant under the FOI Act, and therefore the Tribunal did not have the jurisdiction to deal with the matter. Before the Tribunal, the applicant has said that he does not believe that he made an internal review application, although he has attested to various conversations with the respondent over time, and it is clear that in these proceedings the applicant has had a number of conversations with the respondent.

9 In any event, I think the parties agree today that the applicant did not make any formal internal review application. As a consequence, the provisions of section 55(2) and (3) of the ADT Act apply, and the applicant needs to satisfy the Tribunal of the matters referred to in Section 55(2)(a), (b) and (c). Section 55(2) of the ADT Act provides:

“(2) However, subsection (1) (b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:
(a) the person was not at any time entitled to apply for an internal review of the decision, or

(b) the person made a late application for an internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned, or

(c) it is necessary for the Tribunal to deal with the application in order to protect the person's interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.”

10 The applicant made no attempt to convince the Tribunal that those provisions apply to him, and, indeed, upon my reading of them, and my understanding of the case before me, they do not apply to the applicant in this case. Therefore, I feel that there is no option available to me whatsoever other than to dismiss these proceedings for want of jurisdiction.

11 I have asked the applicant to provide me with any reason as to why he considers that the Tribunal might have jurisdiction in the matter. He has made submissions to the effect that it is unethical, to use his word, for the respondent to, as it were, take this matter so far in these proceedings to this point, and only to take this jurisdiction point in this way on this day. Strictly speaking, it does not matter when the point is taken. It is a jurisdictional point, and, if correct, it means the Tribunal cannot go on to determine these proceedings, or even adjourn them, as the applicant has today asked me to do.

12 The applicant informed me that he is seeking access to the remainder of the disputed documents, and I understand that is what he wants. However, he has been unable to point me to any argument or any provision in the relevant legislation under the ADT or the FOI Act that would enable me to continue to deal with the matter.

13 I note that there is a provision in section 57 of the ADT Act which deals with late applications. That relates to late applications despite section 55(1)(d) of the ADT Act (which does not apply in FOI cases due to the operation of section 53(5) of the FOI Act). It does not relate to -premature- applications. Therefore, the only proper course open to the Tribunal, it seems to me, is to dismiss the proceedings, and I do so now.

14 In dismissing the proceedings, I note that the applicant has stated today that he wishes to now make an internal review application, and his attention has been drawn by Mr Lakatos to the formal requirements of such an application in section 34 of the FOI Act. The applicant would need to make an application in writing and attend to all of the matters that are set out in section 34 of the FOI Act. He would need to make an application to the respondent agency in those terms.

15 Upon him having done that, it is really up to the agency as to whether it permits the late internal review application, and that is not a matter that it would be appropriate for me to comment on.

16 For these reasons I dismiss this application.