McGuirk v University of New South Wales

[2008] NSWADT 159

CITATION:	McGuirk v University of New South Wales [2008] NSWADT 159
DIVISION:	General Division
PARTIES:	APPLICANT (Gerard) Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	073225, 073276, 073279, 073282
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	3 March 2008
DATE OF DECISION:	2 June 2008
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Black v General Manager, Bathurst City Council [2001] NSWADT 239 Cheung v Administrative Decisions Tribunal [2000] NSWSC 10632 Canoboles Heritage Railway Society Inc v General Manager Bathurst Regional Council [2005] NSWADT 61 Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196 Tringas v Quach (RLD) [2007] NSWADTAP 35 McGuirk V University of New South Wales (GD) [2007] NSWADTAP 65 McGuirk v University of New South Wales [2007] NSWADT 270 Sawires v Commissioner of Police, New South Wales Police [2008] NSWADT 91 McDonald and anor v Director General, Department of Lands [2008] NSWADT 25 Dezfouli v Justice Health [2007] NSWADT 262
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, barrister
ORDERS:	1. The Tribunal has no jurisdiction to hear and determine the applications that are file numbers 073225, 073276 and 073279 and these applications are dismissed 2. On or before Monday 16 June 2008, Mr McGuirk is given liberty to file an amendment to the application with these reasons for decision 3. The application that is file number 073282 is stood over for further directions on Thursday 19 June 2008 at 2:00pm.

REASONS FOR DECISION

Introduction

1 This decision concerns preliminary issues arising in four applications by Mr McGuirk in which he has sought review of four decisions of the University of New South Wales (‘the University’). Each decision of the University is a decision it made pursuant to the Freedom of Information Act 1989 (‘the FOI Act) in regard to a request, by Mr McGuirk, for access to specified documents (‘the FOI request’). Mr McGuirk made four FOI requests, hence four decisions.

2 Mr McGuirk and the University consented to the Tribunal determining these preliminary issues first and that they should be determined on papers.

3 The preliminary issue for determination in the applications that are file numbers 073225 and 073276 is whether the Tribunal can exercise the extension of time powers under section 57 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) where the application for review, as in these applications, is an application for review of a reviewable decision of an agency under the FOI Act. There was no dispute that the two decisions the subject of review in file numbers 073225 and 073276 are reviewable decisions by the Tribunal: see section 38 of the ADT Act and section 53 of the FOI Act. Nor is it disputed that Mr McGuirk lodged his application for review outside the period prescribed in section 54 of the FOI Act (that is, 60 days).

4 In reliance on previous decisions of the Tribunal, the University contended that section 57 of the ADT Act had no application to a review of a reviewable decision made under the FOI Act: see Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196 and Black v General Manager, Bathurst City Council [2001] NSWADT 139. In these decisions the Tribunal followed the decision of Dunford J in Cheung v Administrative Decisions Tribunal [2000] NSWSC 10632 and held that the extension of time provisions in the ADT Act were contrary to those contained in FOI Act and by reason of section 40 of the ADT the provisions in the FOI Act prevailed.

5 Mr McGuirk contended that the decision in Cheung was distinguishable in that it concerned the extension of time provision in regard to the Tribunal’s original jurisdiction (that is, section 44) and not the extension of time provision in regard to its review jurisdiction (that is, section 57). He went on to contend that the Tribunals’ decision in Wilmshurst and Black were wrongly decided as the Tribunal in these matters was exercising its review jurisdiction and it had incorrectly based its findings on the extension of time provisions in the Tribunal’s original jurisdiction.

6 The preliminary issue for determination in the application that is file number 073279 is similar to the above, except it concerns the application of section 55(2)(b) of the ADT Act to a review of a reviewable decision under the FOI Act. That section gives the Tribunal power to hear and determine an application for review where an applicant made a late application for internal review and that late application was unreasonably refused by the agency. This issue also centres on the question of whether the provisions of the FOI Act are contrary to this particular section.

7 The preliminary issue for determination in the application that is file number 073282 is whether the decision for which Mr McGuirk has sought review is a reviewable decision and whether it was made within the prescribed time.

File Numbers 073225 and 073276 – Does the Tribunal have power to extend time?

The evidence

8 The decision that is the subject of file number 073225 is an internal review decision by Ms Gibson, Head Policy Management, of the University, dated 30 November 2006. In his application for review of that decision, Mr McGuirk states that he received notice of this decision on 1 December 2006. His application for review was lodged on 24 July 2007. However, it would appear that Mr McGuirk had initially sought review of that decision by the Ombudsman. It is not apparent from the material when the Ombudsman completed his review. In any event the parties appear to agree that the review of the Ombudsman was completed well before 60 days prior to Mr McGuirk lodging his FOI application.

9 The decision that is the subject of file number 073276 is also an internal review decision by Ms Gibson. It is dated 16 July 2007 and in his application for review of that decision, Mr McGuirk states that he received notice of this decision on 18 July 2007. His application for review was lodged on 19 September 2007. That is sixty three days after he received notification of Ms Gibson’s decision.

The applicable law

10 Section 55 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) sets out the pre-requisites to making an application for external review of a reviewable decision. That section relevantly provides:

55 When can an application for review be made

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person, and

(b) an internal review is taken to have been finalised under section 53(9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(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).

11 For the purpose of these applications, the relevant provisions in sub-section 55(1) are those relating an internal review (that is, sub-section 55(1)(b)) and the time within which an application is to be lodged (that is, sub-section 55(1)(d)).

12 Internal Review requirement Section 53 of the ADT Act sets out a scheme whereby reviewable decisions of an administrator are to be internally reviewed by another person within the agency concerned before an application for review can be made to the Tribunal.

13 The FOI Act contains its own scheme of internal review of decisions made under that Act. These are found in sections 34 and 47 of the FOI Act and sub-section 53(4) of the FOI Act expressly provides that the internal review provisions in the FOI Act apply to reviewable decisions made under that Act and not those contained in section 53 of the ADT Act.

14 Time within which the application is to be lodged Sub-section 53(5) of the FOI Act expressly excludes the operation of sub-section 55(1)(d) of the ADT Act and provides that the provisions of Division 2 of Part 5 of the FOI Act apply. Sub-section 53(5) of the FOI Act is in the following terms:

53 Right to make a review application

(1) …

(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.

15 As mentioned in the introduction, section 54 of the FOI Act prescribes the time within which an application for review of a decision is to be lodge with the Tribunal. It is unnecessary to recite that section for the purpose of this application other than to note that the section is included in Division 2 of Part 5 of the FOI Act and therefore falls within the operation of sub-section 53(5) of the FOI Act.

16 Late applications and extension of time The FOI Act does not expressly exclude the operation of section 57 of the ADT Act, which provides as follows:

57 Late applications to Tribunal

(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 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 sub-section (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).

17 As mentioned in the introduction, the question is whether the provisions of the FOI Act are contrary to section 57 of the ADT Act and by reason of section 40 of the ADT Act that section does not apply. Section 40 of the ADT Act provides as follows:
40 When enactment taken to make contrary provisions 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) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

(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.

18 There is no dispute that the FOI Act is a ‘relevant enactment’ for the purpose of section 40 of the ADT Act and that section 53 of the FOI Act gives the Tribunal jurisdiction to review decisions, specified in that section, made by an agency pursuant to that Act.

Consideration

19 As mentioned earlier in this decision, in Wilshurst and Black, the Tribunal held that section 57 of the ADT Act was of no application to applications for review of a reviewable decision under the FOI Act. These decisions have been followed in several decisions of the Tribunal and more recently in the decisions of Sawires v Commissioner of Police, New South Wales Police [2008] NSWADT 91 at [32], McDonald and anor v Director General, Department of Lands [2008] NSWADT 25 at [28], McGuirk v University of New South Wales [2007] NSWADT 258 at [34]-[38] and Dezfouli v Justice Health [2007] NSWADT 262 at [33].

20 Mr McGuirk is correct that the decisions of the Tribunal in Wilmshurst and Black were reasoned on the basis of the extension of time provision in section 44 of the ADT Act and not section 57 of that Act, which was the applicable provision as the Tribunal in these decisions was exercising its review jurisdiction and not its original jurisdiction. In my opinion, nothing turns on this as sections 44 and 57 are essentially in the same terms. Accordingly, it is difficult to see how the principles as set out by Dunford J in Cheung were not equally applicable to the application of section 57 of the ADT Act to the Tribunal’s jurisdiction when exercising its review decision.

21 It is noted that there is a differences in the terminology of section 42(b) (relating to the time within which an application for an original decision is to be lodged with the Tribunal) and section 55(1)(d) of the ADT Act (relating to the time within which an application for review of a reviewable decision is to be lodged). However, Mr McGuirk did not base his arguments on such a difference.

22 His argument was based on the terms of sub-section 40(2) of the ADT Act and the proper construction of section 57 of the ADT Act in light of the express words in sub-section 53(5) of the FOI Act.

23 In my opinion, Mr McGuirk has misconstrued sub-section 40(2) of the ADT Act as applying to section 57 of that Act. These provisions are in different Chapters in the Act. Sub-section 40(2) is in Chapter 3 and is expressly stated to only apply to provisions that are contained in this Chapter. That Chapter deals with the conferral of original and review jurisdiction on the Tribunal. Section 57 is not in Chapter 3. It is contained in Chapter 5. Therefore, sub-section 40(2) has no application to the matters in issue. What is relevant is sub-section 40(1) of the ADT Act which refers to ‘express’ or ‘implied’ contrary provisions in another enactment. Dunford J addressed this issue in Cheung at [16] and there is no basis not to follow His Honour’s reasoning as sections 42 and 44 of the ADT Act are also contained in a different Chapter of the Act (that is, Chapter 4).

24 In regard to his second argument, Mr McGuirk has submitted that the effect of the wording of sub-section 53(5) of the FOI Act, section 57 of the ADT Act should be read by deleting any reference to sub-section 55(1)(d) of the FOI Act.

25 In my opinion, this approach is also misconceived. Section 40 of the ADT Act requires consideration be given to all the relevant provisions, or lack thereof, in Division 2 of Part 5 of the FOI Act and then determining whether they are by implication contrary to the extension of time provision in section 57 of the ADT Act. This is the approach that was adopted by Dunford J in Cheung and which was followed by the Tribunal in Wilmshurst and Black and other decisions of the Tribunal: see also Tringas v Quach (RLD) [2007] NSWADTAP 35: see at [34] to [38].

26 While not raised by the parties, there is a decision of the President in Canoboles Heritage Railway Society Inc v General Manager Bathurst Regional Council [2005] NSWADT 61, which held that section 57 of the ADT Act was applicable to a review by the Tribunal of a reviewable decision under the FOI Act: see at [23] and [24]. This decision provides some support for Mr McGuirk’s argument. However, in that decision no reference was made given to section 40, the decisions of the Tribunal in Wilmshurst and Black, or the principles set out in Cheung.

27 The decision of the President was considered in Sawires at [26], MacDonald at [26] and Dezfouli at [30]. In each of these decisions the Tribunal followed the earlier decisions of the Tribunal that were based on the decision of Wilmshurst and Black. In Sawires, Montgomery JM followed the earlier decisions on the basis of ‘judicial comity’ as described by the President in BY v Director General, Attorney General's Department [2002] NSWADT 79 at [22] - [23]. Montgomery JM went on to say that he considered that the issues arising from the two differing decisions of the Tribunal were best determined by the Appeal Panel.

28 In my opinion, this is the correct approach, particularly as the decision in Canoboles has not been followed in any other decision of the Tribunal. I also agree that there are important issues arising from these differing decisions that need to be resolved. These are best resolved at the Appeal Panel level.

29 For the reasons set out above, I find that the Tribunal has no power to extend the time within which Mr McGuirk is to file and serve his applications that are file numbers 073225 and 073276 and that these applications should be dismissed.

File Number 073279 – Does section 55(2)(b) of the ADT Act apply to an application for review of a decision of an agency under the FOI Act?

The evidence

30 On the material before the Tribunal the sequence of events leading to the application that is file number 073279 is as follows:

(a) On 13 June 2007, Mr McGuirk made a request to the University for access to 4 categories of documents. That request was received by the University on 14 June 2007.

(b) On 4 July 2007, Ms Gibson, the FOI Officer of the University, wrote to Mr McGuirk informing him that his FOI request required consultation with third parties and as a result the time within which his application must be determined was extended from 21 days to 35 days.

(c) On 23 August 2007, Mr McGuirk wrote to the Vice Chancellor of the University and requested an internal review of ‘the deemed’ determination of the University to refuse him access to the documents requested. That request was received by the University on 24 August 2007.

(d) On 6 September 2007, Ms Gibson wrote to Mr McGuirk informing him that his request for internal review was made outside the 49 day period prescribed under section 34(2)(e)(ii) of the FOI Act and as he had not sought an extension of time the University did not accept his internal review application. Ms Gibson also advised Mr McGuirk that no external review was available as he had failed to make a request for internal review whilst his FOI request was the subject of a right for internal review.

(e) On 24 September 2007, Mr McGuirk lodged his external review application with the Tribunal.

Relevant Legislation

31 As mentioned in paragraph [10] above, under sub-section 55(1)(b) the ADT Act, a precondition to the Tribunal having jurisdiction to hear and determine an application for review is that an ‘internal review is taken to have been finalised under section 53(9) of the Act’.

32 This pre-requisite is subject to the provisions in sub-section 55(2) of the ADT Act, which relevantly provides:

55(2) However, sub-section (1)(b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:
(a) …

(b) the person made a late application for an internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned, or

(c) …

33 Sub-section 55(3) of the ADT Act sets out the matters the Tribunal is to have regard to when determining whether a late application for internal review was unreasonably refused and whether the application to the Tribunal was made within reasonable time.

34 As mentioned in paragraph [13] above, sub-section 53(4) of the FOI Act expressly provided that the procedures for internal review that are provided in the FOI Act ‘apply to the exclusion of’ the internal review provisions in the section 53 of the ADT Act: see sub-section 53(4)(a) of the FOI Act. By reason of section 40 of the ADT Act, it is the internal review provisions contained in sections 34 and 47 of the FOI Act which prevail as they are expressly contrary to that contained in section 53 of the ADT Act.

35 Sub-section 53(4)(b) of the FOI Act goes on to provide the following:

53(4)(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.
36 For the purposes of this application, the relevant internal review provision is section 34 of the FOI Act and in regard to the time within which such an application is to be lodged with the agency relevantly provides as follows:
34(2)(e)(i) if notice of the determination was given to the applicant-within 28 days after that notice was given, or
(ii) if no notice of the determination was given to the applicant-within 49 days after the application was received by the agency, or

(iii) in any case, within such further time as the principal officer of the agency may allow.

37 It is not disputed that sub-section 34(2)(e)(ii) of the FOI Act is the applicable provision for the purposes of the application that is file number 073279 and that Mr McGuirk’s internal review application was lodged about 30 days late.

Consideration

38 This application also gives rise to difficult issues of construction. The simple approach would be to substitute the words ‘section 53’ in section 55 of the ADT Act with the words ‘section 34 or 47 of the FOI Act’ as envisaged by the express words of sub-section 53(4)(b) of the FOI Act. If that were correct then sub-section 55(2)(b) of the ADT Act would be read to apply to applications for review of a reviewable decision under the FOI Act. Sub-sections 55(2)(a) and (c) of the ADT Act would also apply.

39 In my opinion this is not the correct approach as section 40(1) of the ADT Act requires consideration of express and implied contrary provisions in another enactment, such as the FOI Act, to those contained in the ADT Act.

40 Accordingly, it is necessary to have regard to sub-section 53(2) of the FOI Act which sets out the circumstances in which an application for review cannot, as opposed to when it can, be made to the Tribunal. This sub-section provides as follows:

53(2) A review application may not be made:
(a) while the determination is the subject to a right of internal review under section 34 or 47, or

(b) if the determination has been the subject of a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or

(c) while any relevant complaint is being investigated by the Ombudsman.

41 A ‘determination’ is a decision of an agency made under section 24 or 43 of the FOI Act in regard to an FOI applicant’s request for access to documents held by the agency or for amendment to documents of the agency.

42 In my opinion, sub-section 53(2) of the FOI Act is a contrary provision to that contained in sub-section 55(1)(b) of the ADT Act. It is contrary as it makes specific provision for the circumstances in which the Tribunal is given jurisdiction to review a reviewable decision made under the FOI Act and although they have a similar effect to that provided in sub-section 55(1)(b) of the ADT Act they differ in substance. Hence, by reason of section 40 of the ADT Act, as construed by Dunford J in Cheung and as followed by the Tribunal in numerous decisions, sub-section 53(2) of the FOI Act prevails and sub-section 55(1)(b) of the ADT Act is of no effect.

43 In my opinion, the consequence of this construction is that sub-section 55(2)(b) of the ADT Act is also of no application where the application for review is a review of a reviewable decision under the FOI Act. If I am correct in my interpretation, as observed below, this may give rise to unintended results. This is especially so where an agency fails to make an initial determination within the time required and there is a deemed determination of refusal of access to the documents sought (see section 24 of the FOI Act).

44 Accordingly, on the basis of my findings of construction of the relevant provisions, in this application, the question is whether Mr McGuirk’s application for internal review of the University’s deemed determination under section 24(2) of the FOI Act was made while that deemed determination was subject to a right to internal review under section 34 of that Act. As set out above, that right expired 49 days after the University had received Mr McGuirk’s request (see sub-section 34(2)(e)(ii) of the FOI Act). After that time, Mr McGuirk’s right was subject to the University allowing him further time to make his internal review application (see sub-section 34(2)(e)(iii) of the FOI Act).

45 As the University did not allow such further time, in this application, I must find that Mr McGuirk did not make an application for internal review while the determination was the subject to a right of review. That is, his application to the Tribunal is an application that falls within sub-section 53(2)(b) of the FOI Act and the consequence of this is that the Tribunal has no jurisdiction to hear and determine his application.

46 In the event I am incorrect in my construction of the relevant provisions of the FOI Act and the ADT Act, I would have been inclined to find the decision of Ms Gibson not to exercise her discretion (that is, on the assumption she was given the relevant delegation) under sub-section 34(2)(e)(iii) of the FOI Act as an unreasonable refusal to accept Mr McGuirk’s late application. The FOI Act does not set out any formal requirements that must be met before this discretion can be exercised. In my view, where, as in this application, an internal review request is made out of time following a ‘deemed’ determination of refusal of access to the documents requested, it would be prima facie unreasonable for an agency not to exercise its discretion to allow the late application. There may of course be other factors relevant as to whether the discretion should or should not be exercised. In this application no such other factors were put before the Tribunal.

47 For the reasons set out above, I find that the Tribunal has no jurisdiction to hear and determine the application that is file number 073279.

File No.073282 – What is the decision the subject of review and is it a reviewable decision?

The evidence

48 On the material before the Tribunal the sequence of events leading to the application that is file number 073282 is as follows:

(a) On 15 June 2007, Mr McGuirk made a request seeking access to specified documents pursuant to the FOI Act.

(b) On 4 July 2007, Ms Gibson, wrote to Mr McGuirk requesting an advance deposit of $750.00 pursuant to section 21 of the FOI Act. Ms Gibson requested that the deposit be paid by 18 July 2007.

(c) On 20 July 2007, Ms Gibson determined, pursuant to section 22 of the FOI Act, to refuse to deal with Mr McGuirk’s FOI request as he had failed to pay the advanced deposit as requested.

(d) On 20 August 2007, Mr McGuirk made an internal review request. In that application Mr McGuirk sought review of the 4 July 2007 determination of Ms Gibson to request an advance deposit and the decision not to deal with his application until the deposit was paid.

(e) On 4 September 2007, Mr Milne, Executive Officer of the University, made an internal review determination affirming the decision of Ms Gibson to refuse to deal with Mr McGuirk’s FOI request. In making his determination Mr Milne found that the request for an advance deposit was reasonable and appropriate.

(f) On 25 September 2007, Mr McGuirk lodged an application for review with the Tribunal. In his application for review Mr McGuirk stated that the decision for which he was seeking review was the decision of Ms Gibson dated 4 July 2007. Mr McGuirk had however, attached to his application a copy of each of the abovementioned decisions of the University, which followed the 4 July 2007 decision.

Consideration

49 The University contends that the decision for which Mr McGuirk has sought review (that is, the 4 July 2007 decision) was not a reviewable decision and even if it were reviewable, Mr McGuirk’s application for review of that decision was not lodged within the time prescribed by section 54 of the FOI Act. On this basis the University contended that the Tribunal had no jurisdiction to hear and determine this application.

50 In my opinion the approach adopted by the University in this application is unnecessarily restrictive and arguably contrary to the Tribunal’s obligation ‘to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’: see section 73(3) of the ADT Act.

51 On the basis of the evidence, and previous decisions of the Tribunal (that is, McGuirk v University of New South Wales (GD) [2007] NSWADTAP 65 and McGuirk v University of New South Wales [2007] NSWADT 270 at [47] to [89]) the decision which is reviewable by the Tribunal, is the 4 September 2004 decision of Mr Milne. Review of this decision has not been lodged out of time and subject to Mr McGuirk confirming that this is the decision for which he seeks review, his application should be amended accordingly. However, if Mr McGuirk presses review of the earlier decision of 4 July 2007, his application should be dismissed, as the Tribunal has no jurisdiction to hear and determine that application.

52 For the reasons set out above, the appropriate orders are to direct Mr McGuirk be given liberty to file and serve an amendment to his application which specifies the decision for which he seeks review as being the decision of Mr Milne of 4 September 2007 and failing the filing and serving of such an amended application this application is dismissed.

Orders

1. The Tribunal has no jurisdiction to hear and determine the applications that are file numbers 073225, 073276 and 073279 and these applications are dismissed

2. On or before Monday 16 June 2008, Mr McGuirk is given liberty to file an amendment to the application with these reasons for decision

3. The application that is file number 073282 is stood over for further directions on Thursday 19 June 2008 at 2:00pm.