McGuirk v University of New South Wales

[2009] NSWADTAP 12

Appeal Panel - Internal

CITATION:	McGuirk v University of New South Wales [2009] NSWADTAP 12
PARTIES:	APPELLANT (Gerard) Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	089003
HEARING DATES:	24 October 2008
SUBMISSIONS CLOSED:	24 October 2008
DATE OF DECISION:	4 March 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Fitzgerald K - Judicial Member; Antonios Z - Non-Judicial Member
CATCHWORDS:	Jurisdiction to review purported decision
DECISION UNDER APPEAL:	McGuirk v University of New South Wales [2007] NSWADT 258
FILE NUMBER UNDER APPEAL:	063197 and 063262
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997
CASES CITED:	Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72 LZ v Office of the Protective Commissioner [2008] NSWADTAP 50 McGuirk v University of New South Wales (GD) [2007] NSWADTAP 4 McGuirk (GD) v University of New South Wales [2007] NSWADTAP 65
REPRESENTATION:	APPELLANT In person REPSONDENT P Singleton, barrister
ORDERS:	Matter 063197 1.The Tribunal’s decision that it did not have jurisdiction to determine the applicant’s application is affirmed. In Matter 063262 1. The Tribunal’s decision that it did not have jurisdiction to review the decision made on 20 April 2006 is set aside 2. The matter is remitted to the Tribunal to determine:a) whether the applicant wishes to apply for the application to be accepted even though it was lodged out of time;b) if so, whether the Tribunal should accept the application out of time; and c) if so whether the decision made on 20 April 2006 is the correct and preferable decision.

Introduction

1 The Tribunal decided that it did not have jurisdiction to review determinations made by the University of New South Wales in relation to two applications Mr McGuirk made for documents under the Freedom of Information Act 1989 (FOI Act). Mr McGuirk has appealed against the Tribunal’s decision on a question of law: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2)(a). The appeal was filed more than 28 days after he received the Tribunal’s reasons but we allowed him until 17 January 2008 to file his appeal: ADT Act, s 113(3).

1st application – File No 063197

2 Application for documents. On 26 September 2005 Mr McGuirk applied to the University of New South Wales under the FOI Act for access to:

“All correspondence with the Officer of the Crown Solicitor related file notes and all other documents held by the University of New South Wales relating to the defence of Professors John Niland, John Ingleson, Roger Layton, Greg Whittred and Mr Neil Morris in the McGuirk v Niland & Ors matter concluded in the Downing Street Local Court on Friday 11 February 2005.”

3 The preliminary issue for the Tribunal was whether the University had made a determination in response to this application which was reviewable by the Tribunal. The University made three written decisions in response to Mr McGuirk’s application. Those decisions were:

1. a decision by letter of 17 October 2005 signed by Ms Osborne to request an advance deposit of $2865 before processing the application;

2. a decision by letter of 2 November 2005 signed by Mr Milne to request an advanced deposit of a lesser amount ($750) payable within 14 days; (that decision followed a request by Mr McGuirk for an internal review of the first decision); and

3. a decision by letter of 18 November 2005 signed by Mr Milne to refuse to continue to deal with the application because the advance deposit of $750 had not been paid.

4 Identification of decision. The Tribunal identified the decision under review as the first decision, made on 17 October 2005, to request payment of an advanced deposit of $2,865. The Tribunal decided that it did not have jurisdiction to review that decision. It also decided that it did not have jurisdiction to review the second or third decisions.

5 The Tribunal set out the relevant provisions of the FOI Act, that is s 21 (agencies may require an advance deposit), s 22 (agency may refuse to continue to deal with an application if an advance deposit not paid), s 24 (determination of applications), s 34 (internal review) and s 53 (right to make a review application). The Tribunal then summarised the procedural steps required in order for it to have jurisdiction to review a decision.

6 The Tribunal’s reasons for deciding that it did not have jurisdiction to determine Mr McGuirk’s application are set out at [21] to [27]:

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.

7 We assume that the reference to a decision of 8 November 2005 in [26] is a typographical error and that it should read 2 November 2005.

8 Mr McGuirk submitted that the Tribunal erred when it decided that it had no jurisdiction to determine his application. He said that the Tribunal’s jurisdiction is triggered by his application and the Tribunal is bound to exercise its jurisdiction as provided by s 63 of the ADT Act to determine the “correct and preferable” decision. He submitted that the decision of 2 November was made in response to an application for internal review so it is an internal review decision. By applying to the Tribunal for a review of that decision, he says that the Tribunal’s jurisdiction has been properly engaged.

9 The Tribunal’s application form asks applicants to answer several questions including, “What is the decision you wish to have reviewed?” and “Has the decision been the subject of an internal review?” In response to the first question, Mr McGuirk identified the first decision, that is the decision made on 17 October 2005 to request an advance deposit of $2865. In answer to the second question, Mr McGuirk identified the second decision, that is the decision made on 2 November to request an advance deposit of $750. Mr McGuirk said that the application form was misleading because it is the internal review decision that is subject to external review by the Tribunal, not the original decision.

10 Finally, Mr McGuirk submitted that because s 6 of the ADT Act allows the Tribunal to review a decision made without power, the Tribunal had jurisdiction to review the University’s decision.

11 Mr Singleton agreed that the Tribunal’s application form was defective but maintained that that does not affect the Tribunal’s jurisdiction. In relation to s 6 he said that even a decision made without power must be the kind of decision that the Tribunal has jurisdiction to review. Since none of the decisions made by the University was the kind of decision the Tribunal had jurisdiction to review, the Tribunal had not erred in reaching its conclusion.

Appeal Panel’s reasoning and conclusion on 1st application

12 Tribunal’s jurisdiction. The Tribunal derives its jurisdiction to review decisions from s 38 of the ADT Act. Sub-sections (1), (2) and (3) are relevant to these proceedings:

Conferral of review jurisdiction

(1) The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:

(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other functions of the administrator identified by the enactment.

When statutory rules may confer jurisdiction to review decision

(2) Nothing in subsection (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by an Act (other than this Act).

Preconditions for applications laid down by enactment

(3) If an enactment makes provision for applications to be made to the Tribunal in respect of a reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enactment only if those conditions are satisfied.

13 The FOI Act is a relevant enactment. It specifies certain kinds of decisions as being decisions about which a person may apply to the Tribunal to review. These decisions are those made under s 22 (to refuse to continue to deal with an application following the non-payment of an advance deposit), s 24 (to refuse to grant access to a document or to impose a charge in respect of giving access or dealing with an application) and 43 (to refuse to amend records). Section 53 and s 22(6) of the FOI Act permit a person to apply to the Tribunal for a review of these decisions:

(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

14 Section 22(6) provides that:

(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.

15 Section 53(2) of the FOI Act specifies certain conditions which must be met before an application for review may be made. One of those conditions is that if the determination has been subject to a right of internal review (under section 34) but no application for such a review of the determination was made while it was subject to that right, an application for external review may not be made. By virtue of s 22(6) that condition applies to decisions under s 22 (to refuse to continue to deal with an application following the non-payment of an advance deposit) as well as to decision under s 24 and 43. Section 38(3) of the ADT Act provides that the Tribunal only has jurisdiction to review a decision if conditions set out in the enactment for the making of such an application have been satisfied.

16 Section 6 of the ADT Act ensures that certain decisions which are made without power are nevertheless reviewable by the Tribunal. So far as is relevant to these proceedings, s 6 defines a “decision” as follows:

(2) For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment.

Decisions made without power

(3) For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it.

Failure to make decision on basis that beyond power

(4) For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under an enactment because the decision-maker considers that the decision concerned cannot lawfully be made under the enactment is taken to be a decision made under the enactment to refuse to make the decision requested.

17 It is likely that s 6(3) was inserted to address situations of the kind that first arose before the Commonwealth Administrative Appeals Tribunal (AAT) in Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167. In that case, the Collector of Customs revoked the applicant’s warehouse licence without statutory authority to do so. At that time the Administrative Appeals Tribunal Act 1975 (Cth) provided that the Tribunal had power to review “any decision in respect of which application is made to it under any enactment”: former s 25(4). Brennan J held that a decision made beyond power may nevertheless be reviewed by the AAT. The Federal Court refined that proposition by holding that the AAT had jurisdiction over a decision made in the purported exercise of powers conferred by an enactment.

18 Where the kinds of decisions that the external reviewer can review are stipulated in enactments (as is currently the case for both the AAT and this Tribunal) a decision will be beyond power where, for example, the person making the decision does not have the delegation to make it, the decision is made for improper purposes or the decision is invalid because of some procedural irregularity such as a failure to accord procedural fairness: Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72 per von Doussa J at 78. However, s 6 does not allow the Tribunal to review a purported decision unless that decision is specified in an enactment as one of the kinds of decision that the Tribunal has jurisdiction to review.

1st decision 17 October decision to request advance deposit

19 The Tribunal’s conclusion that it had no jurisdiction to review a decision to request an advance deposit was correct. As the FOI Act does not provide that applications may be made to the Tribunal for a review of such a decision, the Tribunal has no jurisdiction to review it: ADT Act, s 38(1). We adopt the reasoning in McGuirk (GD) v University of New South Wales [2007] NSWADTAP 65 (9 November 2007) at [13] to [18] in support of that view.

20 The parties did not raise the operation of s 6 as an issue before the Tribunal. In our view, s 6 has no application to a situation where the kind of decision the agency has made is not specified in the FOI Act as one of the decisions that a person may apply to the Tribunal to review. As we have said, s 6(3) and (4) apply in circumstances where a decision that the Tribunal has jurisdiction to review is made without power because, for example, the person did not have the delegation to make it.

21 Nor are we persuaded that the Tribunal made an error of law because of the way the Tribunal’s application form is worded. In completing that form Mr McGuirk identified the reviewable decision as the decision made on 17 October which was affirmed by way of an “internal review” on 2 November. The Tribunal made findings in relation to both those decisions. Mr McGuirk was not disadvantaged by the way the form was worded.

22 The Tribunal made no error of law in reaching the conclusion that it had no jurisdiction to review the 17 October decision to request an advance deposit.

2nd decision: 2 November decision to again request an advance deposit

23 This decision was made in response to an application by Mr McGuirk on 21 October 2005 for an internal review of the 17 October 2005 determination. Mr Milne, on behalf of the University, made the following comment in the 2 November letter:

Since under the FOI Act Ms Osborn’s request for an advance deposit does not constitute a determination to refuse to continue to deal with the FOI application, I take your letter dated 21 October 2005 to be both a refusal to pay this advance deposit and a request for an internal review of the advance deposit request.

24 Mr Milne went on to estimate that the cost of dealing with the application was between $2,865 and $7,000. He then said he was prepared to accept an original payment of $750 to be paid by 17 November. He also advised Mr McGuirk that if he was dissatisfied with that determination he could apply to the Tribunal for an external review of the decision within 60 days.

25 The Tribunal did not err in concluding that it had no jurisdiction to review this decision. As with the decision made on 17 October 2005, this decision was a request for an advance deposit. Decisions of that kind are not reviewable. Again, s 6 of the ADT Act does not assist Mr McGuirk’s case because even though the decision was a purported internal review decision, the Tribunal has no jurisdiction to review those kinds of decision.

3rd decision: 18 November 2005 decision to refuse to continue to deal with the application

26 This decision was a decision to refuse to continue to deal with the application due to non-payment of the $750 advanced deposit requested on 2 November. A decision to refuse to continue to deal with an application is one of the kinds of decision that the Tribunal has jurisdiction to review: FOI Act, s 22(6).

27 There were three reasons for the Tribunal’s decision that it did not have jurisdiction to review this decision. The first was that Mr McGuirk did not apply to the Tribunal for a review of that decision. Rather, his application nominated the 2 November decision requesting an advance deposit as the reviewable decision. The second reason was that while purporting to be an internal review decision, the decision was, in fact, an original determination under s 24. The third reason was that Mr McGuirk had not complied with the condition in s 53(2)(b) that he must apply for an internal review under s 34 within the prescribed time of 28 days: s 34(2)(e).

28 The Tribunal’s first reason for concluding that the Tribunal was without jurisdiction was that Mr McGuirk did not apply to the Tribunal for a review of the 18 November decision. A review of Mr McGuirk’s application to the Tribunal, his written submissions and the transcript of the hearing, confirms that the application was always framed in terms of a review of the 2nd decision to request an advance deposit. Pursuant to s 38 of the ADT Act, “the Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator . . . ” Under s 22(6) of the FOI Act “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.” Part 5 includes s 53 which states that, “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.” (Emphasis added.) While the decision is one of the kinds of decision over which the Tribunal has jurisdiction, its jurisdiction is not triggered unless a person applies to the Tribunal for a review of the determination. Mr McGuirk did not apply to the Tribunal for a review of that determination nor did he apply to amend his application to include that determination. The Tribunal did not err by concluding that it had no jurisdiction to review this decision because Mr McGuirk did not apply to the Tribunal for a review of that decision.

29 The second reason the Tribunal gave for deciding that it did not have jurisdiction was that, while purporting to be an internal review decision, the decision was, in fact, an original determination under s 24 and therefore was not a reviewable decision. We agree that the determination of 18 November purported to be an internal review decision. However the University did not have power to make an internal review decision at that stage because it had not made an original decision to refuse to continue to deal with the application. This was a procedural irregularity. The effect of s 6(2) and (3) of the ADT Act is that a decision that purports to be the kind of decision that is subject to review, is a reviewable decision even if the decision maker did not have power, at that time, to make the decision. It follows that the Tribunal made an error of law by not taking into account the effect of s 6(2) and (3) even though neither party adverted to that provision. Given our conclusion in the previous paragraph, that error made no difference to the Tribunal’s conclusion that it had no jurisdiction to review the third decision.

30 The third reason the Tribunal gave for deciding that it did not have jurisdiction was that Mr McGuirk had not complied with the condition in s 53(2)(b) of applying for an internal review while the determination was “subject to that right”. Unless this condition is met, the Tribunal does not have jurisdiction to review the decision: ADT Act, s 38(3). (See McGuirk v University of New South Wales (GD) [2007] NSWADTAP 4.) However, in our view, the condition did not apply in this case because the 18 November decision purported to be an internal review decision. As such, it was not subject to a right of internal review. Again it follows that the Tribunal made an error of law in making a finding to the contrary. Again, that error made no difference to the Tribunal’s decision that it had no jurisdiction to review the third decision.

31 Despite these two errors, the third decision is not a decision that the Tribunal has jurisdiction to review because Mr McGuirk did not apply to the Tribunal for a review of that decision. If Mr McGuirk had applied for a review of the 18 November 2005 decision, and the application had been made within time, the Tribunal would have had jurisdiction to review it.

32 When an appeal is made on a question of law s 114 of the ADT Act states that the Appeal Panel is to “determine the appeal and may make such orders as it thinks appropriate in light of its decision”. In this case it is appropriate to affirm the Tribunal’s decision.

Order

The Tribunal’s decision that it did not have jurisdiction to determine the applicant’s application is affirmed.

2nd application – File No 063262

33 Application for documents. On 27 February 2006 Mr McGuirk applied under the FOI Act for access to:

All correspondence between Professor John Niland, Professor John Ingleson, Professor Greg Whittred, Professor Roger Layton and Mr Neil Morris with the UNSW Legal Office in regard to the legal action initiated by Mr Gerard Michael McGuirk under the Protected Disclosures Act 1994 against these current or former officers of the University in November 2003 (the McGuirk v Niland & Ors matter) and All diary entries, notes of telephone conversations, file notes and other documentary material held by the UNSW Legal Office in regard to the McGuirk v Niland & Ors matter.

34 . The preliminary issue for the Tribunal was whether the University had made a determination in response to this application which was reviewable by the Tribunal. The University made three written decisions in response to Mr McGuirk’s application. Those decisions were:

1. a decision by letter of 21 March 2006 to request (by 5 April 2006) an advance deposit of $2,865;

2. a decision by letter of 19 April 2006 that in view of his failure to pay the advance deposit the University had decided to refuse to continue to deal with his application.

3. a decision by letter of 20 April 2006 affirming the decision to request an advance deposit and refusing to continue to deal with the application on the basis that an advance deposit had not been paid. (The University noted in this letter that the decision on 19 April 2006 was a refusal to continue to deal with the application and that the University was interpreting Mr McGuirk’s letter of 4 April 2006 as a request for internal review of that decision.)

35 Mr McGuirk applied to the Tribunal for a review of the decision of 20 April 2006.

Tribunal’s decision on second application

36 The Tribunal gave three reasons for concluding that it did not have jurisdiction to review the decision made on 20 April 2006. The first was that Mr McGuirk lodged his application with the Tribunal more than 60 days after he was notified of that decision and the Tribunal has no power to extend the time. The second reason was that the decision was, in fact, an original decision, not an internal review decision. The third reason was that Mr McGuirk had not applied for an internal review of the 19 April decision. The Tribunal’s reasons appear at [32] – [40]:

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.

Appeal Panel’s reasoning and conclusion on 2nd application

37 Out of time issue. After the Tribunal handed down its decision, the Appeal Panel decided that the Tribunal does have power to extend the time for an applicant to apply to the Tribunal for a review of a reviewable decision made under the FOI Act: LZ v Office of the Protective Commissioner [2008] NSWADTAP 50. While Mr McGuirk agreed with the Appeal Panel’s conclusion, he disagreed with its reasoning and referred to his submissions in another matter dated 3 January 2008 in support of his argument. Regardless of the reasoning, the parties and the Appeal Panel all agree that the conclusion in the Appeal Panel’s decision in LZ v Office of the Protective Commissioner [2008] NSWADTAP 50 is correct. It follows that the Tribunal erred in deciding that one of the reasons it had no jurisdiction was that it did not have power to extend the time for the lodging of the application.

38 Given that the Appeal Panel has recently determined this issue (albeit for reasons with which Mr McGuirk disagrees) we refuse his request to refer the question to the Supreme Court under s 118 of the ADT Act.

39 The Tribunal’s second reason for deciding that it had no jurisdiction to review the 20 April decision was that it was, in fact, an original decision, not an internal review decision. In our view, with respect, the Tribunal erred in coming to that conclusion. Even though the decision was not made in response to an application for internal review following the 19 April decision, it purported to be an internal review decision to refuse to continue to deal with the application. A decision of that kind is a reviewable decision. Section s 6(3) of the ADT Act ensures that the mere fact that it was made in a procedurally irregular way and was therefore beyond power does not mean that the Tribunal is deprived of jurisdiction to review it.

40 The final barrier to jurisdiction identified by the Tribunal was the fact that Mr McGuirk did not apply for an internal review of the 20 April decision to refuse to continue to deal with the application while it was subject to that right. Section 53(2) specifies that an application for external review may not be made 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. Unless this condition is met the Tribunal does not have jurisdiction to review the decision: ADT Act, s 38(3). (See McGuirk v University of New South Wales (GD) [2007] NSWADTAP 4.) The Tribunal’s view was that the 20 April decision was subject to a right of review under s 34 because it was, in fact, an original decision not an internal review decision even though the University characterised it as an internal review decision. We respectfully disagree with the Tribunal’s reasoning on this point. Because the 20 April decision purported to be an internal review decision it was not, in fact, “subject to a right” of internal review.

41 It follows that the Tribunal erred in finding that it had no jurisdiction to review the 20 April 2006 decision. However, in order to exercise its jurisdiction to review this decision, the Tribunal would have to be satisfied that Mr McGuirk’s application should be accepted even though it was lodged out of time.

42 When an appeal is made on a question of law s 114 of the ADT Act states that the Appeal Panel is to “determine the appeal and may make such orders as it thinks appropriate in light of its decision” In this case it is appropriate to set aside the Tribunal’s decision that it did not have jurisdiction and remit the matter so that the outstanding issues can be determined.

Order

1. The Tribunal’s decision that it did not have jurisdiction to review the decision made on 20 April 2006 is set aside.

2. The matter is remitted to the Tribunal to determine:

a) whether the applicant wishes to apply for the application to be accepted even though it was lodged out of time;

b) if so, whether the Tribunal should accept the application out of time; and

c) if so whether the decision made on 20 April 2006 is the correct and preferable decision.

Referral under s 58

43 Mr McGuirk requested that even if the Tribunal has no jurisdiction to review any of the decisions made by the University, the Tribunal should refer the University’s conduct to the Minister under s 58 of the FOI Act. That provision states that:

If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.

44 We are not satisfied that the University has failed to exercise in good faith a function conferred or imposed under the FOI Act. The process for responding to applications under the FOI Act is not straightforward. The mere fact that the University misunderstood its powers is not sufficient to demonstrate that it failed to exercise its functions in good faith. There is no evidence of bad faith on the part of the University in the manner in which it dealt with either of the applications and we refuse to bring the matter to the attention of the responsible Minister.