Fitzpatrick v Chief Executive Officer, Ambulance Service of NSW

[2003] NSWADT 132

CITATION:	Fitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132
DIVISION:	General Division
PARTIES:	APPLICANT John Raymond Fitzpatrick RESPONDENT Chief Executive Officer, Ambulance Service of NSW
FILE NUMBER:	023295
HEARING DATES:	25/03/2003
SUBMISSIONS CLOSED:	05/16/2003
DATE OF DECISION:	06/04/2003
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Privacy & Personal Information Protection Act 1998
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT C Brown, agent
ORDERS:	The Tribunal has jurisdiction to determine this matter as the application has been lodged within time.

Introduction

1 On 16 December 2002, the applicant lodged an application with the Tribunal under the Privacy and Personal Information Protection Act 1998 (PPIP Act) for a review of certain conduct of the respondent. The respondent undertook an internal review of the conduct on 20 March 2002. A preliminary issue has arisen as to whether the application has been lodged out of time and if so, whether the Tribunal should accept the application.

2 The provisions in the Administrative Decisions Tribunal Act 1997 (ADT Act) which govern the acceptance of applications, vary depending on whether the application is for a review of a reviewable decision or an application for an original decision. Consequently, the initial question which must be determined is whether applications under PPIP Act fall within the Tribunal’s original or review jurisdiction.

Original or review jurisdiction?

3 Section 36 of the ADT Act, states that reviewable and original decisions are the two principal kinds of decision that the Tribunal may make. While s 36(2) states that “This section does not limit any other function of the Tribunal”, the ADT Act does not confer any other jurisdiction on the Tribunal to make final decisions at first instance.

4 Section 37 confers jurisdiction on the Tribunal to make original decisions:

The Tribunal has jurisdiction under an enactment to act as the primary decision-maker if the enactment provides that applications may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment.
5 Section 7 of the ADT Act defines an “original decision” as “a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker.

6 Section 38 confers jurisdiction on the Tribunal to review reviewable decisions:

(1) The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other functions of the administrator identified by the enactment.

7 Section 8 of the ADT Act defines a “reviewable decision” as “a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.”

8 Section 55 of the PPIP Act gives the Tribunal jurisdiction in the following terms:

(1) If a person who has made an application for internal review under section 53 is not satisfied with:
(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.
9 Because s 55 provides that applications may be made to the Tribunal for a review of conduct, rather than for a review of a decision, it is arguable that it does not confer jurisdiction to review a reviewable decision. If that argument is accepted, the Tribunal’s jurisdiction must be to make an original decision. However, other provisions of the PPIP suggest that parliament intended to confer jurisdiction on the Tribunal to review a reviewable decision.

10 The circumstances which suggest that the Tribunal is conducting a review of a reviewable decision in relation to applications under the PPIP Act are as follows:

· Section 52(4) of the PPIP Act states that “Section 53 (internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies.” There would be no need to oust the internal review provisions of the ADT Act if an application under the PPIP was not intended to be an application for a review of a reviewable decision.

· Section 55(3) of the PPIP Act states that: “Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.” The provisions referred to are those which allow the Tribunal, among other things, to affirm, vary or set aside a reviewable decision, apply government policy and remit a matter to an administrator for further consideration. The specific inclusion of these provisions suggests that despite the fact that damages, injunctions and other civil remedies are available in cases of this kind, the merits review outcomes are also available. (It is also open to argue that there would have been no need to specifically include the merits review outcomes if the application came squarely within the definition of a review of a reviewable decision.)

· Section 88(1) of the ADT Act, which allows the Tribunal to award costs “but only if it is satisfied that there are special circumstances warranting an award of costs.” Under s 88(3) of the ADT Act. “. . . the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.” The absence of any such provision in the PPIP Act suggests that the legislature intended that an application under the PPIP is an application for a review of a reviewable decision; otherwise the Tribunal would have no costs power in relation to such applications.

11 The circumstances which suggest that an application to the Tribunal is an application for an original decision are as follows:
Section 112(1) of the ADT Act defines an appealable decision as a decision made in proceedings for an original decision or a review of a reviewable decision. However an appeal to the Tribunal’s Appeal Panel against an original decision can only be made “where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel.” Section 56 of the PPIP Act provides that “An order or other decision made by the Tribunal under this Part may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made.” There would be no need for such a provision if an application under the PPIP Act was an application for a review of a reviewable decision.

The remedies available under s 55(2) of the PPIP Act include damages and injunctions. These kinds of remedies are not typically available in merits review proceedings.

The subject matter of the application is conduct rather than the exercise of discretion to make a particular decision. Discrete decisions of an administrator, rather than conduct in which they are alleged to have engaged, are generally the subject of merits review proceedings.

12 Although the legislative intention is not consistent, on balance, I am satisfied that applications made under s 55 of the PPIP Act are applications for a review of a reviewable decision, despite the fact that it is conduct, and not a decision, that is being reviewed and that s 56 of the PPIP Act relating to appeals is superfluous. The use of the word “review”, albeit in relation to conduct, suggests that the Tribunal is conducting a merits review of that conduct.

Relevant legislative provisions

13 If applications under the PPIP Act are applications for a review of a reviewable decision, then the relevant section in relation to the time within which such applications must be lodged is s 55 of the ADT Act. Section s 55(1)(d) states that:

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:
(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).
14 Clause 15(3) of the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998, (the ADT Regulation) states that:
For the purposes of section 55(1)(d) of the Act, an application for the review of a reviewable decision must be made to the Tribunal within 28 days from the day on which an internal review is taken to have been finalised under s 53(9) of the Act.
15 Under s 57 of the ADT Act:
(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).

Interpretation of legislative provisions

16 The difficulty in applying these provisions to applications under the PPIP Act is that the whole of s 53 of the ADT Act, including s 53(9), is ousted by s 52(4) of the PPIP Act. The only provision in the PPIP Act which mentions the lodging of applications with the Tribunal is s 53(6):

The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.
17 While s 53(6) of the PPIP Act implies that an internal review is taken to have been finalised 60 days after the application was received, there is no provision, either in the PPIP Act or the ADT Act, which states that an internal review under the PPIP Act is taken to have been finalised when the applicant is notified of the outcome of the review.

18 Furthermore, there is no provision in either the ADT Act or the PPIP Act which imposes a time period for the lodging of applications with the Tribunal. The excision of s 53 of the ADT Act for the purposes of the PPIP Act means that s 55 of the ADT (which refers to s 53(9)) has no application to privacy matters.

19 Even applying a purposive approach to statutory interpretation, it is not possible to read into s 55 of the ADT Act, or any other provision, a time limit for applications to the Tribunal under the PPIP Act. There is only one possible construction of the provisions set out above, and that is that there are no time limits for the lodging of privacy applications with the Tribunal.

Circumstances of this case

20 In this case the respondent advised the applicant and his solicitor on 20 March 2002, that the internal review under s 53 of the PPIP Act had been completed and that Mr Fitzpatrick has the right to have the matter reviewed by the Administrative Decisions Tribunal. Mr Fitzpatrick did not lodge his application until 16 December 2002.

21 Despite the fact that the application was not made until nearly nine months after the internal review had been completed, the Tribunal has jurisdiction to entertain the applicant’s application. The matter will be listed for a further planning meeting.

Orders

The Tribunal has jurisdiction to determine this matter as the application has been lodged within time.