Em v NSW Department of Education and Training

[2009] NSWADT 87

CITATION:	EM v NSW Department of Education and Training [2009] NSWADT 87
DIVISION:	General Division
PARTIES:	APPLICANT EM RESPONDENT NSW Department of Education and Training
FILE NUMBER:	083033
HEARING DATES:	22 August 2008
SUBMISSIONS CLOSED:	22 August 2008
DATE OF DECISION:	27 April 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Interlocutory application that the Tribunal is without jurisdiction to entertain the proceedings.
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
CASES CITED:	MG v Director General, Department of Education and Training [2004] NSWADTAP 45 Y v Director General, Department of Education and Training [2001] NSWADT 149 BQ v Commissioner of Police, NSW Police Service [2002] NSWADT 64
REPRESENTATION:	APPLICANT C White, agent RESPONDENT K Edwards, barrister
ORDERS:	1. The respondent’s interlocutory application to dismiss the proceedings for want of jurisdiction is dismissed 2. The parties are directed to approach the Registry within 3 weeks of receipt of these reasons in order to list the proceedings for further directions on a date suitable to the parties and to the Tribunal’s order of business.

1 The applicant commenced these proceedings seeking review of a determination (to use a neutral term) made by the respondent in relation to an application that he had lodged with the respondent pursuant to the provisions of the Privacy and Personal Information Protection Act 1998. The respondent raised for early consideration the issue whether the Tribunal has jurisdiction under the primary legislation, and the Tribunal’s own enabling Act, to entertain the application. This is to express the issue only generally at this stage, as the precise issues that the parties requested the Tribunal to determine, as preliminary matters, were refined and more precisely formulated at hearing.

2 The respondent sought a preliminary determination of the jurisdictional issue upon the basis that, if it be successful, there would be a significant saving in relation to the adducing of evidence. Consequently, with the consent of the applicant, directions were made for filing evidence and submissions, and a hearing date was set, for this single purpose. The preliminary issue was heard on 22 August 2008 at which time the parties submitted documentary materials and made oral submissions.

3 The respondent had earlier indicated that it wished to also argue, as an additional preliminary matter, whether Ms. White should be permitted to act as the applicant’s representative in the proceedings. Subsequently, this issue was deferred for later consideration upon the basis that the respondent accepted that Ms. White could act in that capacity for the purpose of determining the jurisdictional issue. Consequently, no decision on this aspect is required at this stage.

4 The applicant came to the hearing prepared to argue the factual issue whether the s.53 application submitted to the respondent for internal review was in fact received by the respondent within the 6 month time period. However, at the commencement of the hearing the respondent indicated that it had not come prepared to meet this factual issue and that, if it had to be determined, it would need time to put on relevant evidence. He respondent’s position was that it had come prepared to argue only a specific jurisdictional issue.

5 The precise nature of the jurisdictional issue was discussed at length at the hearing, there being no pleadings or formal application which adequately defined the question for consideration. The respondent submitted that the only issue it wished to argue at this stage was that where an applicant has lodged an application, purportedly under s.53 of the primary legislation, to an agency, and the only decision or determination that the agency makes with respect to that application is that it does not allow further time, as it could pursuant to s.53(3)(d), then the applicant is not entitled, upon any basis, to commence proceedings in the Tribunal pursuant to s.55 of that Act. In developing this submission, the respondent argued that this is the proper construction of the legislative provisions irrespective of whether the application is, or is not, lodged with an agency within the 6 month period. On the respondent’s argument everything turns on the nature of the determination that the agency has in fact made: if it simply decides that further time will not be allowed, and does no more, then that is an end of the matter. The applicant cannot, the respondent argues, bring such a determination to this Tribunal as there is no jurisdiction to review a decision of this nature. There is no need, the respondent argues, to enquire into whether or not the application was in fact lodged within the 6 month period prescribed. Ancillary to this, the respondent submits, if the application was in fact lodged within time, and the respondent has erred in this regard, the appropriate remedy lies in the hands of the Supreme Court of New South Wales, and not with this Tribunal.

6 The applicant argues that this is not the correct way to interpret the legislation. The submission put is that, where an application to an agency is in fact lodged within time, but the agency incorrectly decides, or determines, that it was lodged after the requisite period, then the applicant has made a competent application within s.53 of the Act which the agency is obliged to consider (and review on the merits). If the agency fails to do this, and simply issues a determination that it will not allow further time, when the application was not in fact lodged after the 6 month period, then, after the expiration of 60 days (from the date of receipt of the application), s.53(6) of the primary legislation is engaged and the applicant, it is argued, may commence in the Tribunal in the manner set forth in s.55. The applicant’s argument involves the proposition that it is necessary, in all such cases, to determine whether the initial application to the agency was lodged within the 6 month period prescribed. If it was not, then in the absence of a competent initial application to the agency, an applicant cannot come to the Tribunal. However, if it was in fact lodged within time, and was not dealt with on the merits, then an applicant may commence in the Tribunal and the Tribunal has jurisdiction to review the merits of the application, that is, may review the conduct specified in the application and determine whether the agency has acted in breach of the primary legislation. If this be the case, the applicant submits, then there is a pathway by which he may bring the matter to the Tribunal which is open to him and there is no need to approach the Supreme Court, although he could do so if he wished in such circumstances. The genesis of this argument is to be found in the President’s decision in Y v Director General, Department of Education and Training [2001] NSWADT 149.

7 These then are the competing arguments. Before proceeding further it is useful to note the statutory provision whereby a respondent may allow further time in which to lodge a application. Where an initial application is received by an agency after the prescribed 6 month period this is not the end of the matter as the agency is empowered, should it wish to do so, to “allow” the application by extending the prescribed time to a later date (s.53(3)(d) of the primary legislation). If it does this then the application, otherwise within s.53, will become a competent one. When an agency exercises this power favourably to an applicant, the consequence is akin to granting an extension of time but the true consequence of this act is that it turns an application out of time into a competent one for the purposes of the Act. Its exercise does not in truth bring about an extension of time in which an applicant may thereafter prepare and lodge an application, save perhaps in the factual situation where an intending applicant requests the exercise of this power prior to lodging any application. This power is material to the later discussion of the authorities. It is sufficient to simply note its existence at this stage.

8 As the issue at hand is the respondent’s application it should be confined to the precise question that the respondent wishes to argue. However, one consequence of this is that it is not apposite, at this stage to consider all of the arguments that the applicant has advanced as to why the Tribunal has jurisdiction, and they will have to be deferred to another day. The present focus therefore is on whether the precise argument advanced by the respondent is based upon a correct interpretation of the applicable legislation.

9 The relevant provisions of the primary legislation commence with s.53. This section provides that a person who is aggrieved by the conduct of an agency is entitled to a review of that conduct. The conduct in question is prescribed by s.52: for example, conduct alleged to have been in breach of an information protection principle, as where an agency improperly discloses personal information about a particular person to a third party. The aggrieved person must then lodge a written application for review, containing prescribed information about the agency’s alleged conduct, with the agency concerned. This application must be received by the agency within 6 months of the applicant becoming aware of the conduct, unless the agency allows a greater time. Where an application complies with s.53(3) the agency must review the conduct the subject of the application and in doing so it must take certain materials into account (ss 53(1), (2) and (5)). The legislation does not expressly state the fate of an application that does not comply with s.53(3) and it may well be that such an application may still suffice to engage the obligation of an agency to review the conduct. However, it is not necessary to decide this point in these proceedings. As it was not the subject of argument, nor of dispute, the Tribunal will accept for the purposes of these proceedings that if an application does not comply with s.53, then it is not competent so as to engage the obligation to review which falls to the agency in the case of a competent application, save where the only defect relates to the 6 months time requirement and the agency “allows” the application, even though submitted late.

10 It may readily be accepted, as the respondent submits, that a refusal by an agency to allow an application out of time does not constitute conduct falling within s.52 and therefore in no circumstances could such a refusal be the subject of a s.53 application, nor could it be the subject of an application to this Tribunal pursuant to s.55 of the Act (see MG v Department of Education and Training [2004] NSWADTAP 45 at [6] and [8]: reference should also be made to Y v Director General, Department Of Education and Training [2201] NSWADT 149 and BQ v Commissioner of Police, NSW [2002] NSWADT 64). However, this it to diverge from the main analysis of the legislation.

11 Returning to this analysis, where a competent application has been received, the agency is obliged to review the conduct the subject of the application (s.53(2) and (5). The conduct that is to be reviewed is the conduct, if any, which comes within s.52 and which is specified in the application. The review is to be completed as soon as is reasonably practicable (s.53(6)). The agency has a number of conferred powers in relation to its determination upon review (s.53(7)) and it must notify the applicant of the outcome. This requires the agency to advise an applicant of ‘the findings of the review”, “the action proposed to be taken” and the right of the applicant to have “these findings” and “the proposed action” to reviewed by the Tribunal (s.53(8)).

12 Where a person who has made an application under s.53, assuming for present purposes that it complies with s.53(3), is not satisfied with the findings or the action taken in relation to the application, that person may apply to the Tribunal for a review of the conduct that was the subject of the application under s.53 (s.55(1)). This is the first pathway that the primary legislation provides for an applicant to come to the Tribunal. This pathway will be open to a person who has made a competent s.53 application and only, the respondent argues, where the agency has actually made findings on review or has taken action in relation to the application. Clearly, there is a need for a finalisation of the internal review (s.55(1)(b)) and also for an applicant to form the view that he or she is not satisfied with the findings or the action taken.

13 However, the primary legislation also provides a second and independent pathway whereby an applicant may come to this Tribunal. If a respondent agency has not completed a review of an application within 60 days from the date of its receipt, section 53(6) entitles an applicant to make application under s.55 for a review of the conduct concerned, that is, the infringing conduct which has been alleged in the application. The applicant will only be so entitled if a competent application has been received by an agency, that is, one which complies with s.53(3) and the respondent agency fails to review the conduct within the 60 day period. Whether this pathway is open to the present applicant will depend upon whether the initial application to the respondent complies with s.53(3) and, in particular, whether it was, as a matter of fact, received by the respondent within 6 months of the applicant becoming aware of the relevant infringing conduct. It should be noted that this factual determination has been expressly put to one side for the purposes of this present interlocutory application, at the respondent’s request. This question will have to be addressed before any final determination may be made as to whether the Tribunal does, or does not, have jurisdiction in these proceedings.

14 Consequently, the point of law put by the respondent is correct. If it be accepted that an application under s.53 to an agency which is not received by the agency within the 6 month period, does not engage the respondent’s duty to consider that application, and all the respondent does is to refuse to allow further time (s.53(3)), then it is not competent for an applicant to seek review that particular refusal decision in this Tribunal (MG v Department of Education and Training op cit at [8] and [12]; Y v Director General, Department of Education & Training op cit at [69]). The Tribunal has no jurisdiction in relation to such a decision perse se. However, this principle is of narrow application. In particular, it has nothing to say about whether this Tribunal has jurisdiction where a competent s.53 application is made, that is, one received within time which identifies relevant conduct, but which is not reviewed on the merits by the agency. Thus the principle does not preclude the application of all the bases upon which jurisdiction is conferred upon the Tribunal by the primary legislation. Consequently, it does not follow from this point alone that the Tribunal has no jurisdiction in relation to these proceedings. All it means is that the Tribunal has no jurisdiction to review, on the merits, the refusal to allow further time, being a decision made by the respondent pursuant to powers conferred by s.53(3)(d) of the Act. However, if the respondent in fact received the s.53 application within the 6 month period, the Tribunal has jurisdiction to review the infringing conduct alleged if the 60 day period has passed. This principle is implicit in the reasons for decision in both MG v Department of Education & Training and Y v Director General, Department of Education & Training. There is a clear need for factual enquiry on this point.

15 There is a rather fine point that should also be noted. It arises from the legislative provisions themselves. A close reading of s.55(1)(b) suggests the argument that a person, who has made a competent s.53 application, and who is not satisfied with the action taken by the public sector agency in relation to the application may proceed to the Tribunal. These are the express words of the sub-section. This argument proposes that any action by the agency which is related to the application, being action about which the person is not satisfied, will suffice for the purposes of s.55(1)(b). This would include, so the argument runs, inter alia, a determination by the agency that the s.53 application was lodged outside the 6 month period. The argument depends, in part, upon a distinction between action that the agency proposes by way of conscious decision made when completing the review process (as contemplated by s.53(8) for example) and action taken by the agency which has a relationship with the application, the latter having broader compass than the former. At hearing, the applicant pressed an argument of this nature by submitting that the decision made by the respondent, that the application was out of time and therefore did not comply with s.53 (see exhibit R2, letter dated 24.12.07), was action falling within s.55(1)(b). It does not matter, so this argument runs, if all an agency has done is to reject an application because it is out of time. However, even if this is the correct construction of the Act, no final determination can be made at this stage until the Tribunal embarks upon the question of whether the initial application was lodged within time. This will therefore have to wait for another day as well, should it be raised for consideration. In this regard it should be noted that the decision in Y v Director General, Department of Education & Training is against this argument: action taken by an agency refers to action following a competent application (at [69]) and there needs to be a decision by the agency on the merits for the purposes of s.55 (at [73]).

16 The particular issue that the respondent has raised for consideration here has been confined to a very narrow argument. It allowed no consideration to be given to whether the s.53 application was in fact received by the respondent within the statutory 6 month period. This has been unfortunate in that the possibility of repeated appeals on interlocutory matters is of some magnitude. Hopefully this will not eventuate and the proceedings may progress to an early finalisation.

17 For these reasons the respondent’s interlocutory application to dismiss the proceedings for want of jurisdiction is dismissed. The Tribunal directs the parties within 3 weeks of receipt of these reasons to approach the Registry in order to list the proceedings for directions on a date suitable to the parties and to the Tribunal’s order of business.