IAN TURNBULL and NATIONAL HEALTH AND MEDICAL RESEARCH COUNCIL

[2009] AATA 613

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 613

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2461

GENERAL ADMINISTRATIVE  DIVISION		)
Re		IAN TURNBULL

Applicant

And NATIONAL HEALTH AND MEDICAL RESEARCH COUNCIL

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date20 July 2009

PlaceMelbourne

Decision

On 2 June 2009 the applicant lodged an application for review of a reviewable decision of the respondent together with an application for extension of time within which to lodge the application for review.

On 24 June 2009, the respondent advised that it opposed an extension of time being granted to the applicant.

Having heard both parties at a hearing, the Tribunal decides that an extension of time for lodging the application for review is not granted.

(sgd) B H Pascoe
  Senior Member

REASONS FOR DECISION

20 July 2009 B.H. Pascoe, Senior Member       

1. This was an application by Dr I Turnbull pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act), for an extension of time for the making of an application for the review of a decision of the respondent, the National Health and Medical Research Council.  The decision Dr Turnbull sought to be reviewed was a decision not to waive a fee of $30 in relation to a request for access to documents under the Freedom of Information Act 1982 (FOI Act). 

2.      On 29 October 2008 an authorised decision maker of the respondent refused Dr Turnbull’s request that the fee be waived.  Dr Turnbull requested an internal review of that decision. It was affirmed by letter of 8 December 2008.  Pursuant to s 55(4) of the FOI Act, an application to this Tribunal is to be made within 60 days of the day on which notice of the decision was given to the applicant.  The Tribunal application was lodged on 2 June 2009, almost six months from the date of the decision sought to be reviewed. 

3.      By letter of 24 June 2009 the respondent advised the Tribunal that it opposed the application for extension of time.  As a consequence, a hearing to consider the extension of time application was held on 20 July 2009.  At that hearing Dr Turnbull attended in person and the respondent’s representative, Mr L Holcombe, a solicitor, appeared by telephone from Canberra. 

4.      In his application for an extension of time, Dr Turnbull stated as his reasons:

The documents relied upon by Ms Sullivan and consequently Hilary Russell in making their decisions not to waive the fees in Request No. 2008-788 were requested in Request No. 2009-273. That later request has only now reached some level of finality (see enclosed letters from Heather Thomas dated 26 February 2009 and from Dr Clive Morris dated 20 May 2009). A proper application for review of 2008-788 by the Administrative Appeals Tribunal could only follow once 2009-273 was substantially finalised.

5.      At the conclusion of the hearing, the Tribunal decided not to grant Dr Turnbull an extension of time.  By letter received on 3 August 2009, Dr Turnbull requested a rehearing, although not able to provide any legislative basis for such request, and written reasons for the Tribunal’s decision.  It is clear that there is no basis for a rehearing as, the Tribunal having made the decision, the only right of review is that provided under the Administrative Decisions Judicial Review Act 1977.  Under s 43(2a) of the AAT Act, a party may request written reasons for a Tribunal decision.  It may be argued that this subsection applies only to decisions of the Tribunal under s(1) of s 43, which are  substantive decisions either affirming, varying or setting aside a respondent’s decision under review.  Without an extension of time being granted, the Tribunal has no valid application in relation to which it can make such a decision.  The Tribunal’s decision of 20 July 2009 related solely to an interlocutory issue.  However, in the circumstances, the Tribunal is prepared to provide reasons in writing for its decision of 20 July 2009. 

6.      The general principles to be considered in considering an application for extension of time have been set out by the courts and this Tribunal in numerous decisions including Hunter Valley Developments Pty Ltd and others v Cohen (1984) AATA 7.  They may be summarised as:

·Proceedings commenced outside the prescribed period should not be entertained; although an extension of time may be granted if it is considered proper to do so.

·Whether there is an acceptable explanation for the delay

·Whether the material placed before the Tribunal justifies the exercise of the discretion

·Whether the applicant took any action to make the decision maker aware that the decision would be contested

·Whether there would be prejudice to the respondent if the extension of time is granted

·Whether there would be fairness in granting an extension of time as between the applicant and other persons in a like position

·Whether there is merit in the application to review the substantive decision. 

7.      At the hearing Dr Turnbull argued that it was not appropriate to consider an application for review of the decision until his second request under the FOI Act had been dealt with.  He maintained that, until then, it was not appropriate to contemplate paying an application fee to this Tribunal.  He further argued that the issue of the fee in question was in the public interest. 

8.The respondent argued that

(a)The explanation for the delay provided by the applicant was not an acceptable explanation;

(b)No prior action had been taken to make the respondent aware of an intention to contest the decision;

(c)An extension of time would cause prejudice to the respondent in that substantial costs would be incurred in dealing with a substantive application relating to a $30 fee; and

(d)There was no merit in the substantive application.

9.      The Tribunal notes at the outset that Dr Turnbull is a barrister, and is therefore assumed to be a person who would be aware of his legal obligations and rights.  In addition, the Tribunal notes that, at the time the application was lodged at this Tribunal, Dr Turnbull provided a certified copy a Health Care Card in his name, which entitled him to have any application fee waived by the Tribunal. 

10.     Dealing with the explanation for the delay in lodging the application, the Tribunal does not accept that it was a reasonable explanation.  As indicated earlier, it is reasonable to assume that Dr Turnbull was well aware of his rights of review and the prescribed period for making an application.  These were, in any event, conveyed to him by the respondent with the decision.  He made a conscious decision not to exercise that right until some four months after the expiration of the period.  His argument that further documents were required in order for him to decide whether to make an application is not accepted.  It was clear that he was aware that no fee is payable to this Tribunal on production of a Health Care Card so that the alleged cost factor was not an issue.  While he may have needed the additional documents to build his case in the course of a review by the Tribunal, that could readily be dealt with after he had lodged an application but prior to a substantive hearing. 

11.     There is no evidence that Dr Turnbull took any action to make the respondent aware that he would contend the decision until his application was lodged.  Here I am satisfied that there would be prejudice to the respondent in having to revisit the decision some six months after it had made the decision and, more particularly, incur substantial costs in defending its decision to not waive a standard $30 fee for provision of documents under the FOI Act.  The Tribunal may well add that it is not in the public interest to allow an applicant to consciously ignore prescribed periods and have the respondent and this Tribunal incur substantial expenditure from the public purse, unless it is considered proper to do so in light of the importance of the decision. 

12.     In dealing with an application for extension of time it is not appropriate to deal in any detail with the merits of the substantive application.  However, the Tribunal notes that the FOI Act provides for fees on request for access to documents.  Fees may be waived in cases of financial hardship or where access is in the public interest.  Dr Turnbull’s claim appears to be limited to the public interest issue.  But it is noted that his request for the documents stated that his interest is academic, for research purposes.  While he may be able to demonstrate some public interest, it is difficult on the surface, to see how such a claim could be demonstrated. 

13.     Regardless, the Tribunal’s decision not to grant an extension of time is based on its rejection of the explanation for delay as being reasonable, the failure to provide any earlier indication that the decision would be contested and the prejudice to the respondent and the public if an extension of time was granted.  For these reasons, the Tribunal refuses to grant the requested extension of time in which to lodge the application with this Tribunal. 

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of
B.H. Pascoe, Senior Member

Signed: ...Dianne Eva
  Clerk

Dates of Hearing  20 July 2009
Date of Decision  20 July 2009
Self Represented Applicant     Ian Turnbull
Solicitor for the Respondent     Lex Holcombe, DLA Phillips Fox