McGuirk v University of New South Wales

[2007] NSWADT 258

Set aside by Appeal:

CITATION:	McGuirk v University of New South Wales [2007] NSWADT 258
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	063197; 063262
HEARING DATES:	9 February 2007, 21 March 2007, 29 May 2007
SUBMISSIONS CLOSED:	29 May 2007
DATE OF DECISION:	26 October 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	access to documents - right of review
MATTER FOR DECISION:	Principal 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 1062 Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196 Tringas v Quach (RLD) [2007] NSWADTAP 35
REPRESENTATION:	In Person P Singleton, barrister
ORDERS:	1. The tribunal has no jurisdiction to hear and determine these applications for review.

Introduction

1 This is a decision in respect to two applications by the applicant, Mr McGuirk, for external review of two decisions of the respondent University, the University of New South Wales (‘the University’), in respect to two separate FOI requests made by Mr McGuirk under the provisions of the Freedom of Information Act 1989 (‘the FOI Act’).

2 The first decision, as identified by Mr McGuirk in his application lodged on 12 May 2006, is the decision made on 17 October 2005, by the University’s FOI officer, Ms D. Osborn, in regard to an FOI request of Mr McGuirk dated 23 September 2005. This decision is the subject of file no. 063197 and is a request that Mr McGuirk pay an advanced deposit of $2,865.00 for the University to deal with his FOI request.

3 The second decision, as identified by Mr McGuirk in his application lodged with the Tribunal on 7 July 2006, is a decision made by the executive officer of the University, Ms J. Davoren. This decision is the subject of file no. 063262 and concerns a purported internal review decision of an FOI request made by Mr McGuirk on 27 February 2006. This decision concerned a refusal to deal with Mr McGuirk’s FOI request as he had failed to pay a requested advance deposit of $1,260.00.

Issue

4 Both applications give rise to issues relating to the tribunal’s jurisdiction and if jurisdiction is found to exist, issues in regard to the merits of the decision the subject of each application. For the reasons set out below the tribunal finds that it does not have jurisdiction to hear either application as the procedural requirements that vest the tribunal with jurisdiction to hear and determine the applications have not been met.

5 Accordingly, the merits of each application have not been considered any further.

Procedural requirements necessary to give the tribunal jurisdiction to review a decision of an agency pursuant to the FOI Act

6 The FOI Act gives every person a legally enforceable right to be given access to an agency’s documents in accordance with the Act: see s.16 of the FOI Act. The Act then sets out the procedure for making an application for access (see s.17), how the agency is to deal with an application (see ss.19, 20, 21 & 23), how the agency is to decide or determine whether access is to be granted or refused (ss. 22, 24 & 25), how and when access is to be given (ss.26 & 27) and the review rights of the FOI applicant if dissatisfied with a determination of the agency (s.34 internal and ss.52 & 53 external).

External Review Rights of FOI Applicants from Decision of an Agency

7 An application to the Tribunal seeking review of a decision of an agency under the FOI Act falls into the category of an external review right of an FOI. That right is set out in s.53 of the FOI Act. For the purposes of these applications this is an appropriate starting point in examining the procedural requirements that must be met in order for the Tribunal to hear and determine an application concerning a decision made pursuant to the FOI Act. That section relevantly provides as follows:

53 Right to make a review application

(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

(2) A review application may not be made:

(a) while the determination is subject to a right of review under section 34 or 47, or

(b) if the determination has been subject to 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.

(3) For the purposes of this section, a person is aggrieved by a determination :
(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36 – if the determination is to the effect that:
(i) an agency or Minister refuses to give the person access to a document, or

(ii) access to a document is to be given to the person subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or

(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or

(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or

(b) …
(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 .

8 Another form of external review is the making of a complaint to the Ombudsman pursuant to s.52 of the FOI Act.

9 Paragraph 54(a) of the FOI Act provides that any application for review lodged with the Tribunal must be made within 60 days after the applicant has received notice of the internal review decision (determination) or deemed internal review decision (determination). If the applicant has made a complaint to the Ombudsman, then a similar period of time is provided for in paragraph 54(b) of the Act. That is, 60 days after being notified by the Ombudsman of the completion or discontinuance of the Ombudsman’s investigation into the complaint.

Determinations of an Agency that may be the subject of External Review

10 For the purpose of these applications, the relevant ‘determinations’ or decision reviewable by the Tribunal under s.53(1) are ‘determinations’ of an agency made under s.24 of the FOI Act. Those ‘determinations’ or decisions also having to relate to an access application made under s.17 or 34 of the Act.

11 In this regard s.24 of the FOI Act relevantly provides as follows:

24 Determination of Applications
(1) After considering an application for access to a document, an agency shall determine :
(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given – any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.

(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of s.34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates. …

12 The grounds for refusing access to a document are set out in ss.22 and 25 of the FOI Act. Again the relevant provision for the purposes of determining jurisdiction to hear and determine these applications is s.22. That section relevantly provides:

22 Agencies may refuse to continue to deal with applications if advanced deposit not paid
(1) …

(3) An agency may refuse to continue dealing with an application if:

(a) it had requested payment of an advance deposit in relation to the application, and

(b) payment of the deposit has not been made within the period of time specified in the request.

(4) …

(5) An agency that refuses to continue to deal with an application under this section must forthwith cause written notice of that fact be given to the applicant.

(6) A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those parts apply accordingly.

13 It should be noted that ss.53 and 54 (i.e. external review to the Tribunal) fall within Part 5 of the FOI Act. The internal review provisions are found in s.34 of the FOI Act.

14 Section 21 of the FOI Act gives an agency power to request an advanced deposit from an FOI applicant in the following circumstances:

21 Agencies may require advanced deposits
(1) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the amount of the application fee, the agency may request the applicant to pay to it such amount, by way of advanced deposit, as the agency may determine.

(2) …

(3) …

(4) A request for an advanced deposit shall be accompanied by a notice that sets out the basis on which the amount of the deposit has been calculated.

(5) The amount of an advanced deposit requested by an agency in respect of an application shall be paid to the agency within such period of time as the agency may specify in the request.

(6) The period of time between the making of a request under this section and the payment of an advanced deposit in accordance with the request shall not be taken into account in calculating the period of 21 days within which the relevant application is required to be dealt with.

15 It is a failure by the FOI applicant to meet the request for an advance deposit by the specified date which gives rise to the agency’s power to decide to refuse to deal with the application any further.

Determinations that may be the subject of Internal Review

16 Where an agency has made, or is deemed to have made, a ‘determination’ under s.24 of the FOI Act and the FOI applicant is aggrieved by that determination (i.e. the original determination), s.34 of that Act provides that the FOI applicant with a right to make an internal review application. That section relevantly provides as follows:

34. Internal review
(1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination.

(2) An application for review of a determination:

(a) shall be in writing, and

(b) …

(c) shall be lodged at an office of the agency:

(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.

(3) …

(4) An application under this section shall be dealt with in accordance with this Part as if it were an application under section 17.

(5) …

(6) An agency that fails to determine an application made under this section within 14 days after it is received by the agency shall, for the purposes of this Act, be taken to have a made a determination under section 24 refusing access to the document to which the application relates.

(7) For the purposes of this section, a person is aggrieved by a determination:

(a) if the determination relates to an application made by the person under section 17 and is to the effect that:
(i) an agency refuses to give the applicant access to a document, or

(ii) access to a document is to be given to the applicant subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the applicant, or

(iv) access to a document is to be given to the applicant subject to a charge for dealing with the application, or for giving access to a document, that the applicant considers to be unreasonable, or

(v) a charge for dealing with the application is payable by the applicant, being a charge that the applicant considers to have been unreasonably incurred, or

(b) …

(c) if the determination relates to an application made by the person under section 17 and is a determination that was taken to have been made by virtue of section 24(2) (which provides that an agency that fails to determine an application within 21 days after the application was received by the agency is taken to have determined the application by refusing access to the document to which it relates).

(8) …

17 It should be noted that subsections 34(4) and (6) above expressly provide that an internal review decision (determination) is to be made in accordance with the requirements of s.24. That is, the same provisions apply to the internal review decision as applied to the original decision (determination). The only difference being that the decision maker on review must be a person other than the original decision maker. If the original decision maker is the principal officer of the agency, then no internal review right exists (see s.34(3)(b)). This provision does not apply to these applications.

Summary of Jurisdictional Requirements for the Tribunal to hear and determine an application for review

18 Accordingly, in summary, the procedural steps that must be satisfied in order for the Tribunal to have jurisdiction under s.53 of the FOI Act to hear and determine Mr McGuirk’s applications is as follows:

(a) the decisions for which Mr McGuirk has sought review are internal review decisions (determinations) or deemed internal review decisions (determinations) under s.24(1) and (2) of the FOI Act; and

(b) each decision relates to a request made by Mr McGuirk under s.17 of the FOI Act and is to the effect that the University has determined to:

- refused him access to the document (s.25(1)), or

- defer access (s.26), or

- grant access to a copy of the document with the exempt material deleted (s.25(4)); or

- grant access subject to a charge for dealing with the request and Mr McGuirk considers the charge to be unreasonable (s.27(6)), or

- to charge Mr McGuirk for dealing with his request which Mr McGuirk considers to be unreasonable (s.22); and

(c) Mr McGuirk’s applications to the Tribunal were each lodged within 60 days after receiving notice of the internal review decision (determination) of the University, or 60 days after a deemed internal review decision (determination) (i.e. 74 days from notice of original decision), or within 60 days of receiving notice from the Ombudsman of the completion or discontinuance of the Ombudsman’s investigation into a complaint that Mr McGuirk has made, if any.

History of FOI request

19 It is necessary to set out the history of Mr McGuirk’s 23 September 2005 FOI request to the University as the parties differ on the significance of the various stages during the progress of that request through the University and then the Ombudsman’s Office. That history is as follows:

23 September 2005 - Mr McGuirk’s made a written request for access to a specified category of documents.

17 October 2005 - Ms Osborn (now Gibson), of the University, responded and said that she had identified 9 files that contained documents coming within the request. She went on to say that these files comprised well over 2,000 in pages and in light of the considerable number of documents in the files she requested from Mr McGuirk an advance deposit of $2,865.00 in order to process his application. She requested that this advance deposit be paid within 14 days from the date of her letter.

21 October 2005 - Mr McGuirk sought internal review of Ms Osborn’s decision to request that he pay an advance deposit.

2 November 2005 - Mr M. Milne, executive officer to the Deputy Vice Chancellor (Academic) of the University wrote to Mr McGuirk advising him that he had conducted an internal review and had determined to affirm Ms Osborn’s decision to request an advance deposit. He estimated the cost to be between that which Ms Osborn had determined and $7,000 but suggested the deposit be paid in instalments. Mr Milne also stated that Mr McGuirk had appeal external rights to the Tribunal and the Ombudsman if he was dissatisfied with his decision.

8 November 2005 - Mr McGuirk wrote to the Vice Chancellor requesting review of Mr Milne’s decision to affirm the decision of Ms Osborn and to request that he pay an advance deposit.

18 November 2005 - Mr Milne again wrote to Mr McGuirk and on this occasion advised Mr McGuirk that pursuant to s.22 of the FOI Act, the University had determined to refuse to continue to deal with this FOI request because he had failed to pay the advance deposit within the time period specified. He went on to say in that letter that the time period for an external review application to the Tribunal or the Ombudsman would run from the date of that letter and not his earlier letter of 2 November 2005.

22 January 2006 - Mr McGuirk lodged a complaint with the office of the Ombudsman.

6 February 2006 - Mr McGuirk wrote to Mr Wayne Kosh, investigator, with the Ombudsman Office and Ms Osborn. In that letter Mr McGuirk agreed to narrow the scope of his FOI request to 30 documents that he specified in a schedule attached to his letter.

9 February 2006 - Mr Kosh wrote to Mr McGuirk advising that his complaint was considered to be resolved in that Mr McGuirk had made a fresh application in regard to the 30 documents he had specified.

11 February 2006 - Mr McGuirk wrote to Mr Kosh stating that he had not made and did not intend to make a fresh FOI request in regard to the 30 documents. It was Mr McGuirk’s position that his complaint remained subject to the conciliation process and if the University failed to provide him with the 30 documents at no cost within 28 days he would request that his complaint be investigated. A copy of this letter was also sent to the University.

27 February 2006 - Ms Gibson (nee Osborn) wrote to Mr McGuirk and confirmed that the University was prepared to accept a fresh FOI request in respect to the 30 documents. She also informed Mr McGuirk that she considered that some of the listed documents related to the business affairs of third parties and required consultation.

6 March 2006 - Mr McGuirk wrote to Ms Gibson and confirmed his position as set out in his letter of 11 February 2006.

13 March 2006 - Ms Gibson wrote to Mr McGuirk setting out her determination in regard to the 30 documents. Her determination was that the University did not hold two documents and in regard to the remainder she determines to refuse access on the grounds that these were exempt under clause 10 (legal professional privilege) or clause 7 (business affairs) of Schedule 1 of the FOI Act..

16 March 2006 - Mr McGuirk wrote to Mr Kosh advising him that he had withdrawn from the conciliation process and requesting that he undertake an investigation into the conduct of the University in regard to his request.

23 March 2006 - Mr Kosh wrote to Mr McGuirk and advised him of his right to seek internal review of Ms Gibson’s determination of 13 March 2006 and that external review to the Ombudsman was an avenue of last resort after an internal review had been completed.

3 April 2006 - Mr McGuirk wrote to Mr Kosh requesting that he investigate his complaint.

20 April 2006 - Bruce Barbour wrote to Mr McGuirk setting out the history of Mr McGuirk’s FOI request and advising that his office would be taking no further action in respect to his FOI request dated 23 September 2006.

12 May 2006 - Mr McGuirk lodged his application with the Tribunal seeking review of the decision of Ms Osborn (now Gibson) dated 17 October 2005.

20 The Tribunal being a creature of statute (i.e. Administrative Decisions Tribunal Act 1997) only has jurisdiction to hear and determine matters in accordance with that statute. The jurisdiction of the Tribunal is set out in Chapter 3 of the Administrative Decisions Tribunal Act 1997 and the relevant section in regard to reviewable decisions is s.38 of that Act. That section provides that the Tribunal’s jurisdiction is derived from an enactment (other than the Administrative Decisions Tribunal Act 1997) which provides that applications may be made to it for review of decisions under that enactment. Section 53 of the FOI Act is such a provision. Accordingly, in order for the Tribunal to hear and determine Mr McGuirk’s application the decision for which review is sought must fall within the terms of that section and any relevant procedural requirements set out in the Administrative Decisions Tribunal Act 1997 must also be met. In these applications the relevant procedural requirements are those set out in the FOI Act (see s.40 of the Administrative Decisions Tribunal Act 1997 and ss.53 & 54 of the FOI Act).

21 In this application the decision for which Mr McGuirk has sought review is the decision of Ms Osborn (now Gibson) of 17 October 2005 and the first question is whether this is a decision or determination that is reviewable by the Tribunal. It is noted that the decision is an initial decision and not a review of an earlier decision. Ms Gibson, in her decision did not express the decision to be a ‘determination’ or to be a ‘determination’ under s.24 of the FOI Act. Nor did she make a reference to Mr McGuirk having a right to seek an internal review of her decision. She merely said it was a decision under s.21 of the FOI Act.

22 However, Mr Milne in his decision purported to treat Ms Gibson’s decision as an original ‘determination’ under s.24 of the FOI Act and he went on to purportedly make an internal review ‘determination’ under s.34 of the Act.

23 In my opinion, on the proper construction of s. 21 of the FOI Act, a decision by an agency to request an advance deposit is not a ‘determination’ for the purposes of s.24 of that Act. It is merely a decision to make a request for a deposit and having made that request, one of the following situations will arise:

(a) the agency will do nothing more – in which case the 21 day period within which the agency is required to make a ‘determination’ under s.24(2) will re-commence on the expiry of the period within which the requested deposit was to be paid and once that 21 day period has expired the agency will be deemed to have decided (determined) to refuse the FOI applicant access to the documents requested; or

(b) the agency will make a decision (determination) under s.22 of the FOI Act to refuse to continue to deal with the FOI applicant’s FOI request as he/she has failed to pay the requested deposit.

24 In either situation, the FOI applicant will then have a right to seek an internal review under s.34 of the FOI Act and where that right is exercised and the FOI applicant remains dissatisfied with that decision (determination) then he/she has a right to seek external review to the Tribunal or the Ombudsman.

25 In this application, the decision (determination) of 18 November 2005 of Mr Milne not to deal with Mr McGuirk’s FOI application was a decision pursuant to s.22 and one for which he could seek review: see s.22(6) of the FOI Act. While Mr Milne purported to be giving an internal review decision (determination), in my opinion, having regard to the history of Mr McGuirk’s FOI application, his decision can only be considered to be an original decision (determination) under s.24 and any right for review that was available to Mr McGuirk was an internal review under s.34. That is, contrary to the advice given to him by Mr Milne in his letter of 18 November 2005, Mr McGuirk had no right of external review to the Tribunal or the Ombudsman. If he had a right for review it was a right to internal review. Mr McGuirk did not exercise such a right within the prescribed time.

26 Nor did a right to external review arise from Mr Milne’s decision of 8 November 2005.

27 In any event the 18 November 2005 decision of Mr Milne is not a decision for which external review has been sought.

28 In regard to the decision of Ms Gibson of 13 March 2006 (the 30 document decision), I agree with Mr McGuirk that this should not have been treated as a separate FOI application. It was, as the tribunal understands from the papers, no more than a narrowing of the original application and once narrowed it is not for the FOI applicant to then seek to revert to the original scope of the access application. I note Mr McGuirk did not at any time seek to revert to his original application. Whether Ms Gibson’s decision of 13 March 2003 was an internal review decision or an original decision, is not necessary for the Tribunal to determine as the decision is not the subject of Mr McGuirk’s application to the Tribunal.

29 Accordingly, for the reasons set out above, the Tribunal has no jurisdiction to hear and determine Mr McGuirk’s application to seek review of the decision of Ms Osborn (now Gibson) of 17 October 2005.

30 The history of Mr McGuirk’s FOI application is most unfortunate. The object of the FOI Act is to have applications for access to an agency’s documents dealt with in a timely manner and to do so the agency must comply with the time requirements and respond to applications and review applications correctly. In this application I note the University made the request for an advance deposit on the 21st day after receiving Mr McGuirk’s application. The Act clearly envisages such a request to be made earlier than this and where no deposit is paid within the time requested the agency should decide whether or not to continue to deal with the application. If it decides not to deal with the application it should make a decision in accordance with s.22 prior to the expiry of the 21 day period provided for in s.24(2). As pointed out above, a failure to do so will mean that there is a deemed decision (determination) to refuse the FOI applicant access to the documents requested. Such a situation arguably arose in the history of both FOI applications of Mr McGuirk, however he did not seek review of such a deemed refusal nor did the University treat any of his internal review requests as an internal review request of a deemed refusal. I have not considered this point further as this the basis on which the current applications were argued.

File No. 063262 – the 27 February 2006 FOI request of Mr McGuirk

History of FOI request

31 It is also necessary to set out the history of Mr McGuirk’s 27 February 2006 FOI request for the purpose of this application. That history is as follows:

27 February 2006 - Mr McGuirk made a written request seeking access to a specified category of documents.

21 March 2006 - Ms Deborah Osborn (now Gibson) of the University wrote to Mr McGuirk and advised him that she had identified 9 administrative files, each containing at least 300 pages of documents that may fall within his FOI request. She also advised Mr McGuirk that she considered the cost to the University in dealing with his application would exceed his $30.00 application fee and requested, pursuant to s.21 of the FOI Act, an advance deposit of $1,260.00, that deposit being payable within 14 days of the letter.

4 April 2006 - Mr McGuirk sought an internal review of Ms Gibson’s decision.

19 April 2006 - Ms Gibson responded to Mr McGuirk’s internal review request in a letter. In that letter she advised Mr McGuirk that a request for an advance deposit was not a determination which was subject to internal review. What was subject to internal review was a decision by the University to refuse to deal with his FOI request. She then went on to say that on the assumption Mr McGuirk had refused to pay the requested deposit she had determined to refuse to deal with his FOI request pursuant to s.22 of the FOI Act.

20 April 2006 - Ms Judith Davoren of the University wrote to Mr McGuirk purporting to have made an internal review determination of Ms Gibson’s refusal to deal with the determination the previous day. In making this determination, she relied on Mr McGuirk’s internal review request of 4 April 2006. In her internal review determination Ms Davoren agreed with Ms Gibson’s decision that most of the documents for which Mr McGuirk had sought access would attract several exemptions and would require consultation. However she went on to determine that subject to Mr McGuirk reducing the scope of his FOI request, the University continued to require an advance deposit of $840.00.

7 July 2006 - Mr McGuirk lodged his application for review of Ms Davoren’s decision of 20 April 2006.

32 In this application the issue is whether Ms Davoren’s decision is an internal review decision and if it is, whether Mr McGuirk’s application was lodged with the Tribunal within the time prescribed by s.54 of the FOI Act.

33 It is convenient to deal with the latter issue first.

34 Mr McGuirk’s application for external review was lodged 77 days after he was notified of the decision of Ms Davoren. In his application he stated that he was notified of the decision on the same day it was made, namely 20 April 2006. There is no evidence before the Tribunal that Mr McGuirk lodged a complaint in respect of the University’s conduct in dealing with this particular FOI request, so time began to run from the day he was notified of the purported internal review decision.

35 As mentioned above, s.54 of the FOI Act required Mr McGuirk to have lodged his application within 60 days of the purported internal review determination. The FOI Act makes no provision for an extension of time. Subsection 57(1) of the Administrative Decisions Tribunal Act 1997 gives the Tribunal power to extend the time for making an application for a review of a reviewable decision. That power however, relates to the time period set out in paragraph 55(1)(d) of that Act.

36 In Black v General Manager, Bathurst City Council [2001] NSWADT 239 and Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196 the Tribunal held that the extension of time provisions in the Administrative Decisions Tribunal Act 1997 had no application to applications that sought review of a decision of the FOI Act. The relevant section for a reviewable decision is subsection 57(1). A similar decision was reached in Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062.

37 These decisions were based on the express words of s. 40 of the Administrative Decisions Tribunal Act 1997 which states that the provisions of that Act had effect subject to any contrary provision being made in a relevant enactment, whether expressly or impliedly. Section 54 of the FOI Act is such a provision.

38 This particular construction of s.40 of the Administrative Decisions Tribunal Act 1997 was recently confirmed by the Appeal Panel in Tringas v Quach (RLD) [2007] NSWADTAP 35. This was a retail leases application but the principles of statutory constructions are the same.

39 Accordingly, for the reasons set out above, the Tribunal must find that it has no jurisdiction to hear and determine Mr McGuirk’s application for review of Ms Daveron’s decision of 20 April 2006.

40 For the same reasons set out above in regard to the decision of Mr Milne of 18 November 2005, I find that the purported internal review decision (determination) of Ms Daveron of 20 April 2006 was in fact an original and not internal review decision (determination). Furthermore, no internal review decision was made by Mr McGuirk in regard to that decision.

Orders

The Tribunal has no jurisdiction to hear and determine these applications for review.