LZ v Office of the Protective Commissioner (GD)

[2008] NSWADTAP 50

Appeal Panel - Internal

CITATION:	LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT LZ RESPONDENT Office of the Protective Commissioner
FILE NUMBER:	089013
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	19 March 2008
DATE OF DECISION:	6 August 2008
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	Freedom of Information - Review Application - Whether Late - If Late, Discretion to Extend Time - Whether Available - ADT Act s 57 - FOI Act s 54 - Whether Contrary Provision - ADT Act s 40 - Held Discretion Available
MATTER FOR DECISION:	Appeal
DECISION UNDER APPEAL:	LZ v Office of the Protective Commissioner [2007] NSWADT 22
FILE NUMBER UNDER APPEAL:	073007
DATE OF DECISION UNDER APPEAL:	01/15/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Legislation Amendment Act 1998 (No. 48) Freedom of Information Act 1982 (Cth) Freedom of Information Act 1982 (Vic.) Freedom of Information Act 1989 Interpretation Act 1987 Local Government Act 1993 Retail Leases Act 1994 Retail Leases Amendment Act 2005 Victorian Civil and Administrative Tribunal Act 1998
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9; (2008) 243 ALR 207 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 David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 Dezfouli v Justice Health [2007] NSWADT 262 McDonald v Director General, Department of Lands [2008] NSWADT 25 McGuirk v University of New South Wales [2007] NSWADT 258 McGuirk v University of New South Wales [2008] NSWADT 159 Nile v Wood (1988) 167 CLR 133 Robertson v Australian Electoral Commission (1993) 116 ALR 407 Sawires v Commissioner of Police, New South Wales Police Force [2008] NSWADT 91 Tringas v Quach (RLD) [2007] NSWADTAP 35 Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196
REPRESENTATION:	APPELLANT In person RESPONDENT C Phang, legal officer
ORDERS:	1. Appeal allowed 2. Leave to extend to the merits refused 3. Application for review remitted to the Tribunal for determination, having regard to these reasons.

1 In review proceedings under the Freedom of Information Act 1989 (the FOI Act or the Act) the agency raised as a preliminary issue the jurisdiction of the Tribunal.

2 The agency submitted that the Application for Review was out of time; and if out of time, the Tribunal had no jurisdiction to consider any application for extension of time. Alternatively, it submitted that if the Tribunal did have a discretion to extend time, the Application was so late that it should be refused. The Tribunal ruled that the Application was out of time, and it did not have power to consider any application for extension of time.

3 The review applicant has appealed. Directions were given by the Appeal Panel to deal with the matter by way of written submissions: see Administrative Decisions Tribunal Act 1997 (the ADT Act), s 76.

4 The appeal raises the important question of whether the 60 day time limit for filing review applications (see s 54) is an absolute one, or is open to be extended by the Tribunal using its general power to extend time given by s 57 of the ADT Act. The first ground of appeal goes to this issue.

5 We will deal first, however, with the second and third grounds of appeal as they challenge the Tribunal’s conclusion that the Application for Review was in fact filed out of time.

Background

6 The appellant is a protected person whose financial affairs are under the management of the respondent agency, the Office of Protective Commissioner (pursuant to an order of the Guardianship Tribunal). Her Application to the Tribunal for Review is dated 11 January 2008.

7 The Application did not follow the prescribed procedure, and attach a copy of the determination to which the application was intended to relate. Instead there was attached a long, hand-written statement referring to a range of concerns that the applicant had with the handling by the OPC, as her representative, of a personal injuries case in which she was the plaintiff.

8 The Application also attached a letter to her from the Ombudsman’s office dated 31 October 2006. The letter contained the Ombudsman’s final reply to a complaint by the appellant relating to the way the agency had handled various of her access applications. The Ombudsman expressed satisfaction with the agency’s standing arrangement to make documents available to her on a regular and orderly basis. Further the Ombudsman found:

‘I am satisfied, having reviewed the determination of the OPC relating to your FOI matters, that the OPC has provided you with all of the documents that it has been able to locate that fall within the scope of your FOI requests. Consequently I will not be taking any further action on your complaint to this office.’

9 Section 54 of the FOI Act provides:

‘ 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.’

10 Ordinarily, it is the review applicant’s responsibility to identify with precision the pre-conditions for an application for review to the Tribunal.

11 In the case of FOI review applications, the review applicant needs first to identify the ‘trigger’ event – the making of an application to the agency for access to documents. The application to the Tribunal needs then to identify: an original determination; and an internal review determination. In FOI cases, the requirement for an internal review determination is not applicable – where the time for internal review by the agency has passed (the internal review is deemed to be finalised: ADT Act, s 53(9)); if the original determination is made by a head of agency (not applicable to this case); or if the Tribunal dispenses with the requirement for internal review: ADT Act, s 55(2)(c).

12 The Application for Review in this case was difficult to comprehend, and did not clearly identify these matters. The Tribunal nonetheless pressed on to seek to identify the required matters. It did so, we surmise, because of the applicant’s situation as a protected person; and having regard to the provisions affecting the Tribunal procedures found in the ADT Act, s 73.

13 At para [17] of its reasons, the Tribunal listed 17 administrative events (the Tribunal referred to them as ‘items’) involving requests by the applicant for access to documents relating to the management of her financial affairs by the agency, during the period 2004-2006, many of which took the form of FOI access applications. At para [18] it refers to the complaint made to the Ombudsman.

14 The last application identified as an FOI application is event (or ‘item’) 16. On 6 July 2006 the appellant requested access to documents held by the agency. According to the Tribunal’s account, in its response dated 19 July 2006 the agency provided some documents, advised that other documents had already been provided, and advised that other documents had not been located. There was no determination of a kind to which the Tribunal’s jurisdiction attaches. The Ombudsman’s review dealt with the sufficiency of search issue.

15 The last FOI application that gave rise to an internal review determination is referred to at event 12 in the sequence. The application is dated 9 August 2005, and the internal review determination is dated 13 February 2006. There is an earlier application, at event 4, which also gave rise to an internal review determination. The date of the application is unclear, but appears to be some time in 2004. The date of the internal review determination is 17 June 2004.

16 The Tribunal devoted a substantial part of its decision to determining whether any more of the events should be regarded as involving an access application subject to the FOI Act. It decided that 11 of the events should be regarded as access applications, and dated the latest as an access application made 6 July 2006 (event 16). The response could be regarded, the Tribunal considered, as a primary determination. There was no information provided as to review rights. The appellant did not apply for review.

17 The Tribunal concluded its discussion on these matters at paras [37]-[38], as follows:

‘37 The next issue to determine is whether the application to the Tribunal for review was lodged within time. I have considered the 18 items in three categories: those requests investigated by the Ombudsman, those requests where an internal review was requested, and those where no internal review was requested.

38 (a) Requests investigated by the Ombudsman. The applicant's written submission states that she complained to the Ombudsman by letter dated 26 March 2006, delivered on 4 April 2006. The Ombudsman informed the respondent of the complaint by letter dated 18 April 2006. On the most favourable view, any procedural defect in the determinations of any of items 5 to 12 was overtaken by the Ombudsman’s decision to investigate the applicant’s complaint. The Ombudsman advised the applicant by letter dated 31 October 2006 that the complaint had been investigated and that no further action would be taken, and advised the applicant of her right to appeal to the Tribunal within 60 days. The application to the Tribunal was lodged on 11 January 2007. Applying section 60 of the FOI Act and section 34 of the Interpretation Act 1987, time started on 1 November 2006, and the application for review was lodged some 67 days after the Ombudsman reported the results of the investigation, which is outside the time frame prescribed by section 54(b)(ii) of the FOI Act.

39 (b) Requests for access where an internal review application was made. In relation to item 1 (28 January 2004), whether the response dated 1 March 2004 is regarded as an effective determination, or there was a deemed refusal, the applicant requested internal review within time. No formal internal review determination was made within 14 days, and by virtue of section 34(6) there was a deemed refusal. The same reasoning applies to item 16 (6 July 2006). The application to the Tribunal was lodged on 11 January 2007, nearly three years after the first deemed refusal, and nearly five months after the last of the deemed refusals.’

18 The appellant disputes the accuracy of treating the Ombudsman’s letter dated 31 October 2006 as the starting point for applying the service by post rules. She submits that the relevant starting point for the calculation is the date (10 November 2006) shown on the postmark of an envelope that she states is the one that contained the letter dated 31 October. The envelope bears the insignia of the Ombudsman, and is attached to her Application. She then allows for the delay time permitted by the service by post rules (Interpretation Act 1987, s 76) – four business days. (The Tribunal referred in its calculations to the post rule in s 60 of the FOI Act which is to similar effect to s 76 of the Interpretation Act but allows five days.) She submits that the Application was filed in time, once the service by post time period is added.

19 This submission is correct if 10 November 2006 is accepted as the starting point. On its face, therefore, the appellant’s submission is a good one.

20 There is sufficient doubt about the matter to justify remitting this case to the Tribunal to have it reconsider its calculations, and make a finding as to whether the postmark is a relevant matter in that regard, as it would seem it is.

If Late, whether the Time Limit is Absolute or May be Extended

21 We turn now to the main question, whether if the Application for Review is out of time, the Tribunal is prevented from applying the power to extend time given to the Tribunal by the ADT Act.

22 Section 57 of the ADT Act provides (emphasis added):

‘ 57 Late applications to Tribunal

(1) Despite section 55 (1) (d) [the provision which requires review applications to be lodged within the time period set by the rules of the Tribunal], 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).’

23 The Tribunal held that this power was unavailable, because s 54 of the FOI Act (the time requirement) was a provision that constituted a provision ‘contrary’ to s 57 of the ADT Act, by virtue of s 40 of the ADT Act, which provides relevantly:

‘ 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) …

(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.’

24 The Tribunal said:

‘41 The issue of whether there is power to extend the time for an application for review has been the subject of several decisions of the Tribunal. In Black v General Manager, Bathurst City Council [2001] NSWADT 139, Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196, Dezfouli v Justice Health [2007] NSWADT 262, and McGuirk v University of New South Wales [2007] NSWADT 258 [ McGuirk 258 ] the Tribunal has held that the provisions of the ADT Act which enable the Tribunal to extend the time for an application for review do not apply to review of decisions under the FOI Act. These decisions are based on the express words of section 40 of the ADT Act, which provide that the provisions of the ADT Act have effect subject to any contrary provision being made in a relevant enactment. Section 54 of the FOI Act is such a “contrary provision”, and there is no power to extend the time. The reasoning in these decisions is supported by the recent decision of the Appeal Panel, in construing the operation of section 40 of the ADT Act in the context of the Retail Leases Act 1994: Tringas v Quach (RLD) [2007] NSWADTAP 35. Applying the reasoning in those decisions, I conclude that the Tribunal has no jurisdiction to review the decisions described in the respondent's chronology as items 1, 5 to 12, and 16.’

25 Since this ruling, there have been three more decisions to the same effect. See: McDonald v Director General, Department of Lands [2008] NSWADT 25; Sawires v Commissioner of Police, New South Wales Police Force [2008] NSWADT 91; and McGuirk v University of New South Wales [2008] NSWADT 159 (McGuirk 159).

26 [We note that two of the first instance decisions taking this view, McGuirk 258 and McGuirk 159, were made by the second member of this Appeal Panel. The only decision to the opposite effect is Canobolas Heritage Railway Society Inc v General Manager, Bathurst Regional Council [2005] NSWADT 61. The presiding member of this Appeal Panel, the President, made the ruling. However, that ruling did not take into account the contrary arguments based on s 40 or consider the alternative line of authority.]

27 The conclusion that the time limit is absolute has worked most unfairly against applicants in a number of the cases, McDonald, perhaps, being the outstanding example.

28 In McDonald (appeal adjourned, pending the ruling in this appeal), the applicants for review were third party objectors to a proposed determination by the agency to release their communications with the agency to an access applicant. The agency undertook an internal review of the determination to release, and again rejected the objection. The third party objectors were advised by the agency as to how to go about applying to the Tribunal for review. They received notice of the determination on or shortly after 14 May 2007.

29 They filled out the Tribunal form sent to them by the agency, and returned it to the agency on 9 July 2007. This action occurred within the 60 day period. Unfortunately they adopted the wrong course, and should have filed directly in the Tribunal. They were informed about that on 16 July 2007, and proceeded to file in the Tribunal on 6 August 2007. The agency and the applicants both submitted that the Tribunal should accept jurisdiction. The Tribunal declined on the basis of the prevailing line of authority in the Tribunal.

30 The prevailing view is traceable to the decision of the Supreme Court (Dunford J) in the case of Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062.

31 There an aggrieved ratepayer had brought an application under the Local Government Act 1993 in the original jurisdiction of the Tribunal for the dismissal of an elected councillor from her office on the ground of irregularity in the conduct of the election. The time period for the bringing of such an application is specified by the relevant provision to be three months. The application was 3 days’ late, and the Tribunal extended time, relying on the power given by s 44 (s 44 is the original jurisdiction’s provision equivalent to s 57).

32 The argument that prevailed in the Tribunal was summarised by the Court:

‘7 Pausing there, the argument for the second defendant (and this argument was accepted by the Tribunal) is a comparatively simple one. Section 329 of the LG Act prescribes a time of 3 months, which is therefore the time "prescribed by or under the enactment under which the application is made" , and so, that is the time fixed by s 42. But the same wording, i.e. "prescribed by or under the enactment under which the application is made" , is used to define what is meant by a "late application" in s 44(3), and therefore the time fixed by the enactment under which the application is made, i.e. under s 329 of the LG Act , may be extended pursuant to s 44(1).’

33 The councillor’s submission was that the 3 months’ time limit was not extendable. The Supreme Court agreed, and was satisfied that the Local Government Act time period was a ‘contrary provision’ within the meaning of s 40.

34 The Court said:

9 "Enactment" is defined in s 5, and as s 329 confers jurisdiction on the Tribunal, the LG Act is a "relevant enactment" within the terms of s 40. Whether the two Acts, that is the ADT Act and the LGA Act , contain contrary provisions must depend on their operation rather than on the precise wording that is used, and this is made abundantly clear by the reference in s 40(1) to the "contrary provision" being made either expressly or impliedly.

10 Whereas the ADT Act provides in s 44 for an extension of time for the making of applications, s 329 of the LG Act does not; and this is consistent with the form that s 329 took prior to the current section being substituted by the Administrative Decisions Tribunal Legislation Amendment Act 1998 (No. 48) Schedule 2.10.

11 The previous s 329 provided that this Court, the District Court or a Local Court could order the dismissal of a person from civic office in the same circumstances as the current section and required proceedings for such an order to be commenced within 3 months. There was no provision in the LG Act for any extension of time.

12 It is also consistent with what appears to be the general rule relating to applications to upset election results, namely that the time for the commencement of proceedings cannot be extended: see Nile v Wood (1988) 167 CLR 133, Robertson v Australian Electoral Commission (1993) 116 ALR 407, and cases therein referred to.

13 For these reasons I am satisfied that the 2 provisions are inconsistent and accordingly make contrary provision. It follows that ss 44(2) and 44(1) of the ADT Act must be read subject to s 329(3) of the LG Act.

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".

15 It follows that in the present case the time for making the application being fixed by s 329 of the LG Act and that section containing no provision for an extension of time, there is no power to extend such time pursuant to s 44 of the ADT Act.

16 I am by no means sure that this is the effect that Parliament intended. Whilst there may be good reason for having a provision such as s 40 in Chapter 3 relating to the jurisdiction of the Tribunal, it might seem surprising that it was intended to override procedural provisions relating to the Tribunal such as ss 42 and 44, but it seems to me the meaning of the words is clear. Section 40(1) refers to the provisions of the Act, not to the provisions of Chapter 3, and indeed s 40(2) makes special provision in relation to Chapter 3, thereby suggesting that the other provisions of s 40 are to apply to all the chapters of the Act, including Chapter 4 where ss 40 to 42 are contained.’

35 Recently, in the case of Tringas v Quach there was a considered discussion at Appeal Panel level of a similar conundrum involving the interaction of s 44 of the ADT Act, and a time specific provision in the Retail Leases Act 1994 (the RL Act).

36 Section 32A(1) of the RL Act provides:

‘ 32A Review of current market rent determinations

(1) Application for review

A party to a lease may apply to the Tribunal for the appointment of two specialist retail valuers to conduct a review of a determination of the current market rent made by a specialist retail valuer made under section 19 or 31.

(2) The application for a review must be made within 21 days after the party first received a copy of the determination.

Note. Subsection (13) provides another opportunity to make an application for a review if the decision on the review is set aside.

(3) Review by and decision of valuers

The specialist retail valuers may conduct the review and may jointly:

(a) affirm the reviewed determination, or

(b) vary the reviewed determination.’

37 The Appeal Panel began by referring in detail to Dunford J’s decision in Cheung and continued:

‘48 This decision in the Supreme Court was applied by the Tribunal in two cases to which Mr Ashhurst referred us: Black v General Manager, Bathurst City Council [2001] NSWADT 139 and Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196. In both of them, the Tribunal held that a time limit of 60 days stipulated in s. 54 of the Freedom of Information Act 1989 could not be extended by an order under s. 44 of the ADT Act.

49 Mr Ashhurst relied also on dicta of Gummow J (with whom Brennan CJ and Dawson, Gaudron and McHugh JJ agreed) in David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265. Here the High Court held that a 21-day time limited stipulated in s. 459G of the Corporations Law (Vic) for the filing of an application by a company to set aside a statutory demand by a creditor could not be extended under a general provision of the same statute (s. 1322(4)) authorising the court to make an order extending the period of time for, amongst other things, instituting any proceeding. The terms of s. 459G(2) were that ‘an application may only be made within 21 days after’ service of the demand on the company.

50 At 276-277, Gummow J placed significant emphasis on two matters: (a) that s. 459G was a provision defining in specific terms the conditions under which the court obtained jurisdiction to exercise this particular power, whereas s. 1322 was a provision of general operation; and (b) that the ‘force of’ the phrase ‘may only’ in s. 459G(2) was to ‘define’ this jurisdiction ‘by imposing a requirement as to time as an essential condition of the new right conferred by s 459G’.

51 Mr Ashhurst argued that the phrase ‘must be made within 21 days…’ in subsection (2) of s. 32A of the RL Act should similarly be viewed as imposing a condition upon the exercise of the right created by subsection (1): that is, the right to have two specialist retail valuers appointed by the Tribunal to review a determination that has been made pursuant to s. 19 or s. 31.

52 The Applicant’s submissions. In response, Mr Cullen argued that we were not bound to apply the Supreme Court decision in Cheung (though he could not challenge its correctness), nor indeed the Tribunal decisions in Black and Wilmshurst, because they were concerned with legislation other than the RL Act.

53 In seeking to distinguish Cheung, Mr Cullen submitted that a policy factor noted by Dunford J – namely, that there was a ‘general rule’ that the time for commencement of proceedings to challenge election results could not be extended – had no equivalent in proceedings under the RL Act. He also pointed out that Dunford J himself expressed some doubt as to whether Parliament intended that procedural sections in the ADT Act such as ss. 42 and 44 should be overridden, in the absence of express provision, by enactments that conferred jurisdiction on the Tribunal.

54 With reference to Gummow J’s observations in the Grant case, Mr Cullen submitted that the phrase ‘may not’ had a ‘negative’ and ‘exclusionary’ quality which was not present in the terminology of s. 32A.

55 Our conclusions. In our opinion, there is no ground on which the decision in Cheung can be distinguished, so as to provide scope for a ruling that the time limit in s. 32A(2) can be extended under s. 44 of the ADT Act.

56 We accept that the two points that Mr Cullen made in seeking to persuade us that Cheung should be distinguished (see [53]) have some weight. But, as we pointed out near the end of the appeal hearing, the following aspects of the retail leases legislation suggest, by implication, that the time limit of 21 days in s. 32A(2) cannot be extended.

57 The Retail Leases Amendment Act 2005, which inserted s. 32A into the RL Act, also amended pre-existing provisions that stipulated a limitation period of three years for retail tenancy claims and unconscionable conduct claims and made no allowance for extension of this period. Under a new section (s. 71B), the Tribunal may extend this period to six years (at most) if the applicant satisfies the Tribunal that it is ‘just and reasonable’ to do so. The contrast between the express power to extend a time limit in s. 71B and the lack of any equivalent provision in s. 32A is in our opinion significant, since both these sections were inserted in the RL Act by the same amending statute.

58 It also appears to us that the protection afforded to lessees by s. 32(1)(c), which extends in certain circumstances the period in which an option to renew may be exercised, might be seriously weakened if extensions of the time limit in s. 32A(2) could be granted. But as this point was not raised at the appeal hearing, our conclusion in this judgment does not in any way depend on it.

59 As far as we can tell, the decision in Cheung was not relied upon by the Respondent in his submissions to the Tribunal at first instance. But in these appeal proceedings the Applicant has not sought to rely in any way on this aspect of the case.

60 For these reasons, our conclusion is that, although the Tribunal assumed to the contrary, the 21-day time limit imposed by s. 32A(2) of the RL Act cannot be extended by an order under s. 44 of the ADT Act.’

38 The very point of inserting an extension provision of general application is to save the drafter the need to put a similar clause in every time-specific provision. Caution must be exercised in reaching the conclusion that particular provisions that have time limits are not qualified by general powers. Both Cheung and Tringas demonstrate that the mere fact that a time is fixed in a particular provision of a procedural kind in a statutory scheme does not necessitate the conclusion that a general, or omnibus, power to extend found in another provision in the same statutory scheme is overridden. More is required.

39 In our view, each of these cases involve statutory settings where there were strong indications from the immediate statutory context, or from the legislative purposes that the time-specific provision in issue was seen as serving, to justify the conclusion that the general, or omnibus, provision was not operative.

40 The consideration that was most persuasive for Dunford J was the need for certainty and finality in election results. His Honour observed that ‘the general rule relating to applications to upset election results’, as recorded in the leading authorities, was that ‘the time for the commencement of proceedings cannot be extended’. He read the disputed elections procedure under the Local Government Act in that context. In Tringas the Appeal Panel was influenced by the presence of extension of time provisions in nearby provisions of the RL Act, which pointed to the conclusion that the provision under notice was meant to be absolute.

41 One of the features of the FOI Act is its continual specification of time periods. Agencies are bound to deal with access applications in accordance with strict time lines. At various points decisions are deemed to have been made if the time line is not observed, e.g. s 24(2) (deemed refusal of application), s 34(6) (deemed refusal on internal review). There is a power given to the person dealing with an application to extend time in respect of the 21 day periods referred to at various points of the scheme, most importantly the usual determination period (for agencies, s 24) and the usual internal review period (for agencies, s 37): see s 59B.

42 It could, perhaps, therefore be argued that the failure to refer to extension of time when dealing with time limits on applications to the Tribunal for review supports the conclusion that s 54’s time limit is absolute.

43 On the other hand, s 54 appears as one of a series of provisions in Part 5 of the FOI Act that have regard to their interaction with the general provisions as to practice and procedure found in the ADT Act.

44 Section 53 of the FOI Act allows a person who is aggrieved by certain determinations made by an agency or Minister to apply to the Tribunal for a review of the determination. The provision expressly limits the operation of the ADT Act at sub-sections (4) and (5), as follows:

‘(4) In relation to decisions under this Act that are reviewable decisions under the Administrative Decisions Tribunal Act 1997 :

(a) the procedures for internal reviews provided by this Act apply to the exclusion of section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997, and

(b) any reference in the Administrative Decisions Tribunal Act 1997 to an internal review of a reviewable decision under that Act is taken, in its application to a decision made under this Act, to be a reference to an internal review under this Act.

(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.’

45 In contrast there is no interacting body of law relevant to the time limits that appear earlier in the FOI Act governing internal agency handling of an access application. Consequently, it makes sense for the extension of time issue to be dealt with directly in that part of the Act.

46 In our view the starting point in dealing with issues of interpretation bearing on practice and procedure governing applications to the Tribunal is to seek to give a harmonious reading to the provisions of the FOI Act and the ADT Act. In our view, the specific express exclusions in s 53 of certain provisions of the ADT Act provide a strong textual indication that the Parliament intended that the remaining practice and procedure provisions of the Tribunal remain operative.

47 Had the FOI Act been entirely silent on lodgement time (and, thereby, left in place the ordinary 28 day rule applicable to other types of review application under the ADT Act), we doubt whether this issue would ever have arisen.

48 Writing in 1997, when the review jurisdiction was with the District Court, Anne Cossins saw the question as an unproblematic one (Annotated Freedom of Information Act New South Wales (1997) at [58.13]). She said:

‘ Extension of the 60 day time limit

There is no formal mechanism for applying for an extension of the 60 day time period under the FOI Act, however, under Pt 5 r 11 of the District Court Rules, an extension of time can be ordered by the court. An application for a motion for leave to appeal outside a time limit is required to be filed with the District Court Registry (Pt 3 r 2(2)) which will cost $345 (as at November 1996).’

49 In our view there are no compelling considerations of policy or legislative purpose of the kind that were present in Cheung to necessitate treating s 54 of the FOI Act as setting an absolute time limit. Nor are there any textual indications of the kind present, for example, in Tringas that s 54 of the FOI Act is to be interpreted as contrary to the general power to extend time afforded by s 57 of the ADT Act.

50 The decision in Tringas turned on a textual approach. While the Appeal Panel did not express a final view on this point, there were also, we consider, strong policy reasons supporting the conclusion. Disputes over the appointment of a specialist valuer will usually be related to a wider dispute arising under a retail lease, typically relating to adjustment of rent. Any lack of certainty in relation to the time for using dispute procedures may undermine the commercial position of a party. Issues of this kind are not present in FOI review proceedings.

51 We do not accept as accurately stating the approach taken in Cheung or more recently in Tringas, the following analysis in one of the founding decisions for the line of authority in the Tribunal, Wilmshurst:

‘15 … To the extent of the inconsistency between the general provision in s 44 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) and the specific provision of s 54 of the Act in relation to time limits it is clear that the Act must prevail. The rule of statutory interpretation (“Generalia specialibus non derogant”) that a later general provision (in this case s 44) does not impliedly repeal an earlier specific provision was applied in both Cheung and Black. In Black, Deputy President Hennessy said:
12 Section 42 of the Administrative Decisions Tribunal Act 1997 (“ADT Act”) requires that an application to the Tribunal be made in the manner and within the time prescribed by the Rules of the Tribunal, or prescribed by or under the enactment under which the application is made. Rule 14(3) provides for the application to be lodged within 28 days, but s 44 of the ADT Act allows the Tribunal to extend the time for make a late application. "Late application" is defined in s 44(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)."

13 Section 40 of the ADT states that the ADT Act has effect subject to any "contrary provision" in another enactment (such as the FOI Act). In Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062, Dunford J interpreted this provision in the context of s 329 of the Local Government Act 1993. His Honour reasoned (at [10] of the decision) that while s 44 of the ADT Act allows for an extension of time, s 329 of the Local Government Act does not so that the two provisions are inconsistent. In these circumstances the ADT Act which allows for an extension of time must be read as being subject to the Local Government Act which does not allow for an extension.’

16 Mr Wilmshurst seeks to distinguish Cheung and Black on their own facts by arguing that in each of those cases there was what he called “an identifiable event” from which time could be reckoned for the purposes of s 54 of the Act. He contends that there was no “identifiable event” triggering the time limits set out in s 54 until 15 February 2002, when there was a response from the University in relation to the request for internal review. The thrust of his submissions is that his time for making an application for review by this Tribunal did not begin to run until 15 February 2002. He argues:
The time to lodge an application to the Ombudsman or the ADT runs from the date of the determination, even if it is outside the time limits set in the Act and despite any other action. The time limits imposed under s.54 The Act should only be seen to apply to those agencies which actually comply with the Act. They should not afford protection to agencies which deliberately choose to ignore the Act. Such an approach would achieve the objectives set out in s 5 of the Act. …
20 … . It is clear from Black and Cheung that there will be an irreconcilable difference between the ADT Act and the Act where an application is brought out of time, and that the conflict will be resolved in favour of the Act. There can be no harmonisation of the inconsistent general and specific provisions. (See also David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 and Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1). If this application has been brought out of time, the Tribunal has no jurisdiction to exercise.’

52 It will be apparent that our view is that Cheung did not involve an analysis that relied on the canon of statutory construction that general provisions give way to specific provisions where they deal with the same subject matter. The court in Cheung simply concerned itself with the question of whether it had before it an implied contrary provision. As noted, it was heavily influenced by the absence of any ameliorating provision in the Local Government Act, and the traditional acceptance of the importance of finality in connection with disputes over election results.

53 As it happened, the Tribunal in Wilmshurst allowed the application to proceed, after engaging in a convoluted set of calculations as to the due date for lodgment which led to 19 days of the time period being discounted, and the application was found to be within time.

54 The approach we prefer is, we consider, consistent with the reasoning in two High Court cases, David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265, discussed in Tringas, above; and the very recent decision, Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9; (2008) 243 ALR 207. We are of this view, even though in both these cases the Court held that a time specific provision was absolute, and a general power to extend time was ousted.

55 In David Grant the issue arose in connection with the provisions in corporation laws governing insolvency. The relevant provision stated that the recipient of a statutory demand can apply for an order setting the demand aside, but ‘only … within 21 days’. The question was whether a court could extend time for an application to set aside the demand, relying on the general statutory power to extend time limits found in the general provisions of the corporations law. The High Court held that the general power was displaced, and that the time limit on applications to set aside the statutory demand was absolute.

56 Gummow J gave the leading judgment. He referred to the significance of the making of a statutory demand as a precondition to insolvency. He also referred to the use of the word ‘only’, in the terms of the provision, as a counter-indication. He noted that within the Part of the Act in which this provision appeared there were instances of express provisions conferring power on the court to extend time, thus supporting the conclusion that where no power of extension was given within that Part none was intended. He also had regard to the extrinsic materials (including a Law Reform Commission report) which explained problems with the previous statutory demand system, and supported the conclusion that no time extensions were to be permitted under the new statutory demand system. It will be seen that Gummow J had regard to a mix of textual and policy considerations.

57 In Aussie Vic Plant Hire related provisions fell under notice. Corporations law now provides that a company is presumed to be insolvent if, during or after the 3 months ending on the day when the application was made, the company failed to comply with a statutory demand. A sub-section of the same provision provided that this presumption ‘operates except so far as the contrary is proved for the purposes of the application’. The question was whether or not an order could be made to extend the period for compliance under the powers given by the general provisions of the law. The general provision was as follows:

‘ Extension of period for doing an act

Where this act confers power to extend the period for the doing of an act, an application for the exercise of the power may be made, and the power may be exercised, even if the period, or the period as last extended, as the case requires, has ended.’

58 The principal judgment (per Gleeson CJ, Hayne, Crennan and Kiefel JJ) focused squarely on the immediate statutory context of the time specific provision under notice. The judgment noted that the relevant Part of the law dealt with insolvency. The judgment noted that at [14] ‘the evident purposes’ of the Part ‘include the speedy resolution of applications to wind up companies in insolvency’. The judgment looked to the history of the present provisions, including the same Law Reform Commission report that Gummow J had considered in David Grant. The judgment was influenced by the presence in nearby provisions of other absolute time limits, including the one considered in David Grant. The judgment concluded at [19] that it would be ‘sharply at odds with the purposes revealed by Part 5.4 to read the power to extend time for compliance with a statutory demand as capable of exercise after the time has expired’. This conclusion was reinforced by the language of the presumption: also at [19]. (In dissent, Kirby J disagreed with any ‘reading down’ of general facultative provisions of the kind that the extension of time provision represented: see [30] ff.)

59 It will be seen that the approach adopted in the joint judgment is a textual and purposive one. As we have said, if this kind of approach is applied to the provisions under notice in this case the same result does not follow.

60 In our view the appellant’s first ground of appeal succeeds.

61 Finally as to the issue raised by this ground of appeal, it would be far better if the FOI Act was amended, and the issue put beyond doubt.

62 The comparable FOI jurisdictions where there is an external review tribunal – the Commonwealth and Victoria – leave no doubt about this issue. There are express provisions allowing the Tribunal to extend time. See for the Commonwealth: Freedom of Information Act 1982, s 55(4) the time limit is specified, and stated to be ‘subject to any extension of time granted by the Tribunal’, and see further s 54(7), time may be extended ‘if reasonable in all the circumstances to do so’. See for Victoria: Freedom of Information Act 1982, s 52 (time limit), and Victorian Civil and Administrative Tribunal Act 1998, s 126 which expressly gives power to extend ‘any time limit fixed by or under an enabling enactment for the commencement of a proceeding’.

Further Conduct of the Matter

63 As noted in our discussion of the question of whether in fact the Application was late, we are minded to remit the matter. It will be necessary in calculating the time period for the Tribunal to identify precisely the previous application which is the subject of the Application for Review, and make its calculations against that starting point, allowing for any suspension of time if a connected complaint was under investigation by the Ombudsman.

64 We note that the conclusion expressed in the Ombudsman’s letter dated 31 October 2007 may present a new difficulty. If the only matter left in issue in respect of the access application upon which the Application for Review is said to be founded is sufficiency of search, then the Tribunal has no jurisdiction to deal with that matter: see Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140.

65 If it is finally determined that there has been an infraction of the time requirement, the Tribunal is, for the reasons we have given, not precluded from considering an application to extend time. The question will then be whether the applicant has a reasonable explanation for the delay in making the application. In our view, this matter should be approached with some circumspection. The FOI filing period is already a generous one (60 days), as compared to the usual period in the Tribunal (28 days).

Order

1. Appeal allowed

2. Leave to extend to the merits refused

3. Application for review remitted to the Tribunal for determination, having regard to these reasons.

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