LZ v Protective Commissioner

[2004] NSWADT 164

CITATION:	LZ v Protective Commissioner [2004] NSWADT 164
DIVISION:	General Division
PARTIES:	APPLICANT LZ RESPONDENT Protective Commissioner
FILE NUMBER:	043103
HEARING DATES:	21/06/2004
SUBMISSIONS CLOSED:	06/21/2004
DATE OF DECISION:	08/10/2004
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - substantial and unreasonable diversion of agency's resources - Freedom of Information Act - access to documents - substantial and unreasonable diversion of agency's resources
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	IN -v- Protective Commissioner (GD) [2004] NSWADTAP 9
REPRESENTATION:	APPLICANT In person RESPONDENT R Young, agent
ORDERS:	Application for review dismissed

1 This decision deals with an application filed 16 April 2004 for review of a decision made by the respondent agency not to respond to a request for access to documents made by the applicant pursuant to the Freedom of Information Act 1989 (FOI Act). As is explained below, as at 16 April the agency had not made a determination in respect of an access application lodged initially on 28 January 2004 and renewed on 18 March 2004. The situation is one of deemed refusal: see FOI Act s 24(2). As is also explained below, the Protective Commissioner has since taken action to meet the request in full.

2 The applicant is the subject of a financial management order made by the Supreme Court in September 2003 under which the Protective Commissioner has been appointed her manager. The applicant has taken action in the Supreme Court and this Tribunal since that time to challenge the order and to challenge the decisions made by the Protective Commissioner in connection with a personal injuries action brought by the applicant.

3 The following background was given in the reasons for decision in one of the cases that has reached finality: see IN -v- Protective Commissioner (GD) (heard 12 March 2004, decision delivered 22 March 2004) [2004] NSWADTAP 9 at [1]:

‘The appellant is a protected person under the Protected Estates Act 1983 (Protected Estates Act). Her financial affairs are the subject of a financial management order made by the Supreme Court in September 2003 appointing the Protective Commissioner as her manager. The Protective Commissioner has in recent months been her tutor in District Court proceedings. They were commenced in 1986 for damages arising from a motor car accident that occurred in 1979 in which she was injured. There was a judgment in her favour in 1990 in relation to liability. It was not until on or about 12 November 2003, when the case settled, that the question of assessment of damages was resolved. The appellant is of the view that the appropriate level of damages for the injury she suffered is about $2 million, when account is taken of the loss of future earnings that she considers is attributable to the accident. The case was settled for about $400,000 against which there are to be substantial deductions for legal costs and disbursements. She is of the view that she has not been represented adequately.’

4 Earlier in the same month, on 9 March 2004 the Court of Appeal dismissed her appeal against the decision of the Supreme Court. The reasons for decision included the following introductory comments:

‘2 At the time of Barrett J’s orders, [the applicant’s] only assets were the half-finished house in which she lived and the cause of action she was bringing in the District Court arising out of a motor car accident. Her only source of income was a pension payable by the Social Security Department. In the District Court action there was a finding in her favour on the issue of liability, but no concluded orders on quantum. In that action, she had been represented by at least six different solicitors. There was an apprehended possibility that the defendant in that case might move to strike the matter out, or obtain other relief on the ground of want of prosecution.

3 Before the substantive hearing before Barrett J, there were a bewildering multitude of procedural skirmishes, including two applications to the High Court.’

5 In preparation for her proceedings before the Court of Appeal the applicant issued subpoenas for documents to various persons connected with her damages case. By form dated 28 January 2004 she made a request under the FOI Act for ‘all documents pertaining to me’ held by the Protective Commissioner. The Office of Protective Commissioner (OPC) responded as follows, by letter dated 1 March 2004:

‘Re: Application for Access under Freedom of Information Act

I am advised that OPC has been subpoenaed to produce your file at the Supreme Court. This we have done and your file is available from that source.

Accordingly I am returning your application fee.

If you have any questions please contact me on 9265 1227.

Yours sincerely

Bob Young

FOI Co-ordinator’

6 The applicant replied by letter dated 18 March 2004 with a 6 page closely handwritten letter of about 2000 words setting out her grievances with the way her case had been handled and resolved. In the course of that letter she requested ‘all documents pertaining to the above legal matters to be made available to me for inspection and photocopy.’ There was a shorter letter the following day to Ms Phang, legal officer, which included the words: ‘I again press that you direct the FOI Co-ordinator to attend to the immediate release of all documents pertaining to me held by the OPC, regardless of what you allege you have supplied to the Court on subpoena.’

7 As noted earlier, the applicant’s application for review of the OPC’s determination was filed 16 April 2004.

8 On the same day, 16 April 2004, the co-ordinator replied to the further communications as follows:

‘I refer to our recent telephone conversations and correspondence between us in regard to your application for access to files held by this office regarding your affairs.

Notwithstanding that access has been provided in whole or in part to these records in the past we are going to provide you with supervised access to the Management, Legal and ADT [files?] held by us.

During the course of that access you may wish to identify any documents of which you consider you require a copy. Please note that any such request will be subject to review and while a limited amount of copying may be undertaken on your behalf this office reserves the right to charge for copying if the volume of requests requires it.

Copies will not be available on the day of the file inspection.

Once again I am returning the FOI fee to you as I believe that on this occasion no fee is required to provide you with access.

Could you please ring Kenneth Gulline to arrange a suitable day to view the files?’

9 It would appear that the applicant took up this suggestion, and there is a further letter from the co-ordinator dated 30 April 2004 which formally refers to the provisions of the FOI Act for the first time. The applicant had asked for photocopies of all documents. The material portions of the letter follow:

‘Given the volume of documents held and the time and expense of photocopying I am of the view that your request is unreasonable. I am satisfied that the access granted to you by way of inspecting all documents is sufficient in terms of the Freedom of Information Act.

Section 27(1)(a) of the Freedom of Information Act states that:

27 Forms of access

(1) Access to a document may be given to a person:

(a) by giving the person a reasonable opportunity to inspect the document,

The access provided to you yesterday complies with this section of the Act. The Freedom of Information Act also details the grounds under which I am deciding not to provide you with a full copy of the documents:
25 Refusal of access

(1) An agency may refuse access to a document:

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions,

This decision does not affect your ability to request copies of certain documents but you will have to be specific in requesting any particular documents.

You have a right of appeal from my decision and in the first instance that appeal, setting out in writing the grounds under which you are seeking an appeal, should be addressed to the Protective Commissioner and submitted within 28 days of the receipt of this letter.’

10 It would seem that the OPC was not aware that by this stage the applicant already had lodged an application for review with the Tribunal.

11 The first planning meeting was set down for 18 May 2004. On that day the OPC failed to appear. The Registry contacted the OPC, and was advised that it had been unaware of the application for review and the planning meeting. Nonetheless Mr Tunbridge from the OPC agreed to participate in a telephone conference. As a result of that conference certain directions were given resulting in a letter from the OPC dated 20 May 2004.

12 In that letter the OPC set out a chronology of request for access to documents made and subpoenas issued by the applicant since September 2003. The letter noted that the copied documents sent to the Supreme Court had now been returned to the OPC. The letter advised that the OPC no longer considered it unreasonable to meet the applicant’s request to provide copies of all documents. The letter stated:

‘Accordingly the Protective Commissioner will provide [the applicant] with:-

1. the photocopies returned by the Supreme Court which contain all documents up to 1 February 2004, and

2. copies of all documents from 1 February 2004 to date.’

13 On the face of it this communication should have entirely disposed of the matter. There was another planning meeting already scheduled for 26 May 2004. It was scheduled for 10.00am. As the applicant had not appeared by 10.20am the Tribunal proceeded to deal with the matter, and dismissed the application as the access application had been granted in full.

14 About an hour later the applicant appeared, explained the reasons for her delay, and as a result the Tribunal decided to vacate the earlier order and proceed to deal with her submissions. She expressed concern that the OPC had promised to courier her all the documents but had yet to do so. After some discussion the Tribunal directed that the Protective Commissioner deliver the documents by courier to the applicant with delivery to take place at her home between 3.45pm and 4.15pm that afternoon (26 May 2004). The matter was relisted for dismissal on 21 June 2004.

15 The reason for not proceeding immediately to dismiss was to give the applicant the opportunity to satisfy herself that there had been full disclosure in response to her request, and that the OPC had not failed to provide her with any relevant documents.

16 On 21 June 2004 the matter resumed. On that occasion Mr Young, the FOI co-ordinator attended.

17 Mr Young attested that the OPC had provided the applicant with copies of all the documents that it had located at that time. As a result of further requests by the applicant two more items had been located – handwritten notes that formed the basis for a typed document that was among the documents released, and some small copies of some photographs taken of her house for insurance purposes. He had them with him at the hearing and handed them over.

18 In the course of her cross-examination of Mr Young the applicant asked numerous questions and made numerous statements regarding the handling of her damages case. Ultimately it emerged that there were two documents in particular that she believed existed and was trying to locate. Consequently the Tribunal gave the following directions to Mr Young:

1. Respondent to provide the Tribunal with copies of the applicant’s two FOI requests.

2. Respondent to advise in writing:

(a) As to whether the bundle of documents includes a document that is a record of a conference on 7 October 2003 between Terracini, Andrews, Parsons, Tunbridge and the applicant;

(b) Whether the bundle included an original letter advising the applicant of an inspection that occurred in January 2004;

and to provide:

(c) A statement that refers to the respondent’s current instruction that all documents created in future be provided to the applicant.

19 Mr Young replied the same afternoon. Direction 1 was complied with. As to Direction 2(a) he advised that hand written minutes of the meeting were included in the documents provided to the applicant in response to her second FOI request. A copy of the hand written minutes were attached to his letter, as was a typed version. As to Direction 2(b) he advised:

‘A copy of the letter that the applicant claims to have seen advising her that we would be undertaking an inspection of her house. It is not a general practice for OPC to send a letter advising of an inspection although telephone contact is often made. On this occasion because the applicant does not have a phone the inspection was undertaken without prior notice. The applicant may have seen a file note advising that the inspection should take place and a copy of this file note is also attached to this letter.’

20 As to Direction 2(c), Mr Young stated:

‘I am happy to give that undertaking and can confirm that I have spoken to the applicant’s estate manager to ensure that this happens.’

21 These actions on the part of the Protective Commissioner dispose of the remaining issues, and the application for review is dismissed as the underlying access application has been fully satisfied.

Order

Application for review dismissed.