McMahon v Director General, Department of Fair Trading

[2003] NSWADT 63

CITATION:	McMahon -v- Director General, Department of Fair Trading [2003] NSWADT 63
DIVISION:	General Division
PARTIES:	APPLICANT Stephen McMahon RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	023288
HEARING DATES:	10 March 2003
SUBMISSIONS CLOSED:	03/10/2003
DATE OF DECISION:	03/27/2003
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 1998 Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT M Allars, barrister
ORDERS:	The Tribunal orders that it has jurisdiction to hear Mr McMahon’s application for review.

BACKGROUND

1 Mr McMahon has filed an application seeking review of the decision of a delegate of the Director-General, Department of Fair Trading (“Director-General”) to refuse him access to a document for which he had sought access under s. 17 of the Freedom of Information Act, 1989 (“FOI ACT”). It is not disputed that the document is a document written by his former defacto wife to the Department of Fair Trading.

2 The Tribunal’s jurisdiction to hear Mr McMahon’s application arises from s.53(1) of the FOI Act and s.38 of the Administrative Decisions Tribunal Act, 1998 (“ADT Act”).

3 However, at the hearing of the matter Ms Allars, on behalf of the Director-General, raised a preliminary issue in respect of the Tribunal’s jurisdiction under these provisions. The preliminary issue related to the time within which Mr McMahon was required to lodge his application with the Tribunal, whether he had lodged it within that time and if not whether the failure to lodge it on time ousted the Tribunal’s jurisdiction to hear the application.

4 After hearing evidence on this preliminary issue, the Tribunal, with the consent of the parties, decided that this issue should be determined before the Tribunal considers the substantive application.

RELEVANT LAW

Freedom of Information Act, 1989

5 Part 3 of the FOI Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (s. 17 FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24 FOI Act). Access can only be refused on specified grounds and after the agency has made its determination, s.28 of the FOI Act requires the agency to cause written notice of its determination to be given to the applicant.

6 If the applicant is dissatisfied with the determination of the agency, the applicant is able to seek an internal review of that determination (s.34 FOI Act). Subsection 34(4) of that Act provides that an application for internal review is to be dealt with in accordance with Part 3 as if it were an application under s.17. This means that after the agency has made a determination in respect of the internal review, the agency is required to cause notice of its internal review determination to be forwarded to the applicant.

7 S.60 of the FOI Act makes provision for the service of notices, which an agency or Minister are required to serve under the Act. That section provides as follows:

“60. A notice that an agency or Minister is required by this Act to cause to be given to a person:
(a) may be served personally or by means of a letter posted to the person’s address last known to the agency or minister, and

(b) shall, if it is served by means of a letter, be taken to have been given to the person at the end of the fifth day after the letter was posted to the person.”

8 S.53(1) of the FOI Act makes provision for the applicant (access applicant) to seek review of an internal review determination of an agency. This section provides as follows:
“A person who is aggrieved by a determination made by an agency or minister under s.24 of s.43 may apply to the Tribunal for a review of the determination.”
9 S.54(a) of the FOI Act goes on to provide as follows:
“A review application is to be made:
(a) except as provided by paragraph (b) – within 60 days after notice of the determination to which it relates is given to the access applicant, or…”

Administrative Decisions Tribunal Act 1997

10 Section 55 of the ADT Act sets out the circumstances in which a person can make an application for review of a “reviewable decision”. A “reviewable decision” is defined in s. 8 of the ADT Act to mean “… a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.” And an “enactment” in relation to a “reviewable decision” is defined in s. 5(a) of the ADT Act to mean an Act (other than the ADT Act) or a statutory rule (other than a statutory rule made under the ADT Act.

11 Paragraph 55(1)(d) of the ADT Act provides that an application for a review of a “reviewable decision” is to be made within such period as prescribed by the Rules of the Tribunal following the date on which the internal review is taken to have been finalised. Under its Rules the Tribunal has prescribed a period of 28 days (rule 15(3)).

12 Section 57 of the ADT Act gives the Tribunal a discretion to extend the time for making an application under s.55.

13 Section 56 of the ADT Act prescribes the circumstances in which an application for review is filed with the Tribunal. That section provides as follows:

“56(1) An application to the Tribunal cannot be made unless the fee prescribed by the regulations (if any) in respect of the application is paid.

(2) An application in respect of which a fee is waived under the Regulations, (whether the time of lodgement or otherwise) is taken to be made at the time the application is lodged with the Tribunal.”

14 Clause 5E of the Administrative Decisions Tribunal (General) Regulations 1998 (“the ADTG Regs ”) provides for the waiver of fees as follows:
“The Registrar may waive the payment of any fee prescribed by this Part in respect of an application to the Tribunal or appeal to an Appeal Panel (either at the time of the lodgement of the application or appeal or otherwise) if the Registrar is satisfied that the payment of the fee would result in undue hardship to the Applicant or Appellant concerned.”
EVIDENCE

15 Ms Allars, on behalf of the Director-General, tendered into evidence two affidavits:

(a) an affidavit of Merilyn Betty, a manager in the Operational Priorities & Intelligence Branch, Compliance & Standards Division of the Department. Ms Betty was the officer delegated by the Director-General to make the determination on Mr McMahon’s application for internal review; and

(b) an affidavit of Ms Rupasri Perera, the team leader, Records & Mail, in the Records Management Division of the Department at Enterprise House in Parramatta

16 Ms Betty was also called to give oral evidence and be cross-examined.

17 In her evidence Ms Betty stated that she made her determination in respect of Mr McMahon’s internal review application on 6 September 2002. It was accepted that this was a Friday. Ms Betty also stated that she prepared a letter on that day advising Mr McMahon of her determination. She addressed the letter to Mr McMahon at his nominated post office box and after she had signed it and inserted the day on which she had written it she put it into an envelope and put it into her out tray. What she does not recollect is the time when she placed the envelope in her out tray.

18 In her affidavit Ms Perera gave evidence of the system the Department had in place for the collection of mail from the out trays of officers located in Enterprise House in Parramatta, including the Division where Ms Betty was located, and the posting of those letters. This system provided for the collection of mail from the officer’s out tray at approximately 9.00 am, 11.00 am and 3.00pm each day. The mail is then sorted in the Department’s mail room for pick-up by Australia Post, who under an agreement with the Department collect mail from the Department’s mail room on a daily basis between 4.00 pm and 5.00 pm. The mail collected by Australia Post is then posted through the ordinary mail.

19 Mr McMahon also gave sworn evidence. He stated that he did not collect from his mail box the letter sent by Ms Betty until 30 September 2002. He remembers this as he has a practice of always hand writing on the front page of every piece of correspondence he receives the date he has received it. This he does before he reads the correspondence and this is what he did in this case.

20 Mr McMahon also stated that he has had his mail box for over 40 years and that he collects his mail from it at least once a week. Just prior to collecting the letter he had become aware that the former husband of his defacto had been using his mail box address and collecting his mail over the counter of the post office. He became aware of this when he collected mail from his box and saw that it contained mail addressed to the former husband. He had also noticed that some of his mail had been missing and that his mail was taking a long time to get to him. He complained to the Post Office who were monitoring the situation and preventing other person’s mail being put into Mr McMahon’s mail box.

21 The parties also relied on the dates stamped on Mr McMahon’s application to the Tribunal and Mr MacMahon’s application for a waiver of the application fee. In respect of Mr McMahon’s application this is stamped and dated twice by the Tribunal – once on 14 November 2002 and another time on 12 December 2002. Mr McMahon’s application for a waiver of the fee is dated by him on 5 November 2002, which is the same date as he has dated his application for review. However, the Tribunal has stamped the application for waiver as being filed on 12 December 2002 and it approved the waiver on that day.

FINDINGS OF FACT

22 The Tribunal found Ms Betty and Mr McMahon to be frank and truthful witnesses and accepted their evidence.

23 The Tribunal also accepts the evidence of Ms Perera as set out in her affidavit. However, her evidence and that of Ms Betty do not establish the date on which the letter to Mr McMahon advising him of Ms Betty’s determination was in fact posted. While the Tribunal accepts that Ms Betty prepared the letter on 6 September 2002 and put it into her out tray, the fact that the Department had a particular system for collecting that letter and sorting it for collection by Australia Post does not necessarily prove that the letter was in fact posted in strict accordance with that system.

24 In this case the Tribunal received no evidence on how reliable that system was and how it was working at that particular time. As mentioned above, the day Ms Betty put the letter in her out tray was a Friday and it could have been after 3.00pm that afternoon. This means that the letter would not have been collected by the person responsible from records and mail until the Monday, 9 September 2002. This was of course dependent on that person working on that day and collecting the mail in accordance with the system. However, there is no evidence of this or that the mail was sorted on that day. Systems invariably fail temporarily for one reason or another. It may be for a reason as simple as the absence of the responsible staff member and as there is no evidence about whether the system was in fact working on the days in question the Tribunal cannot exclude the possibility of a temporary failure of the system for one reason or another. Accordingly, the Tribunal finds that Ms Betty’s letter was posted on either 10 or 11 September 2002.

25 The Tribunal also finds that Mr McMahon filed his application for review with the Tribunal on 14 November 2002, without paying the requisite fee and without making an application for a waiver of that fee at that time. The application for a waiver of the fee, the Tribunal finds was filed in the Tribunal on 12 December 2002 and was granted on that day.

REASONS AND DECISION

26 The Director-General has not pressed the jurisdiction issue. However, as this was raised by the Tribunal at the preliminary conference the Director-General has submitted that the Tribunal has no jurisdiction and Ms Allars has provided the Tribunal with very helpful and detailed written submissions in this regard.

27 In considering this issue, there are three questions to be determined. The first question to be determined is the date on which Mr McMahon lodged his application with the Tribunal – was it 14 November 2002 or 12 December 2002?

28 The second question to be determined is which provision is the relevant provision within which Mr McMahon was required to lodge his application – i.e. s. 54(a) of the FOI Act or s. 55(1)(d) of the ADT Act – and whether he made his application within the prescribed time.

29 The third question to be determined, if Mr McMahon’s application was outside of the prescribed time, whether the Tribunal has power to extend the period within which Mr McMahon was required to file his application. For the reasons stated below, the Tribunal has found that Mr McMahon has lodged his application within the prescribed time, which means that the Tribunal is not required to consider this particular question.

30 Clause 5E of the ADTG Regs expressly gives the Registrar a discretionary power to waive the payment of any fee including a fee that is payable on the lodgement of an application for review (see s.56(1) ADT Act ). Furthermore, the rule does not limit the Registrar’s power to applications for a waiver that are made at the time the application for review is filed or lodged. Instead, the clause expressly makes provision for the exercise of the power where an application for waiver is made after the application for review has been filed or lodged.

31 This clause, being subordinate legislation must be read in light of its enabling provision in s. 56 of the ADT Act. As mentioned above, s, 56(1) provides that an application cannot be made to the Tribunal unless it is accompanied by the prescribed fee. This provision if considered in isolation prevents an application that has been lodged or filed with the Tribunal from being processed if it is not accompanied by the requisite fee. However, this section must be read with s. 56(2) of the ADT Act, which gives the Registrar of the Tribunal the power to waive the fee.

32 Where the Registrar has exercised his/her power to waive an application fee after the application was filed with the Tribunal, s. 56(2) has the effect of deeming the application to have been made at the time the application was originally filed/lodged with the Tribunal and not the date on which the Registrar granted the waiver.

33 In this case the Tribunal has found that Mr McMahon filed his application for review on 14 November 2002. He did not file his application for a waiver of the fee until 12 December 2002, which was granted on that day. For the reasons stated above, the granting of the waiver on this day meant that his application for review is deemed to have been filed/lodged on 14 November 2002 and not 12 December 2002. The restamping and dating of Mr McMahon’s application on 12 December 2002 was clearly an error on the part of the Registry.

Relevant Provision re Timing of Lodging Application for Review

34 The Tribunal agrees with the submissions of Ms Allars that the relevant provision is s. 54(a) of the FOI Act and that this provision operates as a pre-condition to the Tribunal’s jurisdiction to review an FOI internal review determination.

35 As mentioned above, s.38(1) of the ADT Act expressly provides that the Tribunal only has jurisdiction to “review a reviewable” decision made pursuant to an enactment other than the ADT Act. It is not disputed that Ms Betty’s decision was a decision that came within the terms of s. 53(1) of the FOI Act. However, subsection 38(3) of the ADT Act goes on to provide as follows:

“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.”
36 Section 54 of the FOI Act , which expressly makes provision for the time within which an application to the Tribunal pursuant to s. 53(1) of the FOI Act is to be made is a condition that qualifies a persons ability to make an application for review under that Act and is therefore a pre-condition to the right of review under that Act. Accordingly, s. 54 of the FOI Act is a provision that comes within the terms of s.38(3) of the ADT Act and goes to the jurisdiction of the Tribunal.

37 In these circumstances s. 55 of the ADT Act has no application as the time within an application for review under the FOI Act is to be made is prescribed under that Act (s. 54(a) FOI Act) and is a matter that goes to the jurisdiction of the Tribunal to hear the application for review.

Has Mr McMahon made his application within the prescribed time?

38 As mentioned above, s. 60 of the FOI Act provides that any notice an agency is required to cause to be given to a person under the Act may be posted to the person’s last known address. In this case it is not disputed that Ms Betty’s letter constituted a notice of her determination on Mr McMahon’s internal review application that she was required to give to him under s. 28 of the FOI Act. Nor was it disputed that she complied with the requirements of s. 60(a) of that Act.

39 What was in issue was when was the letter posted. The Tribunal has already found that the letter was posted either on the 10th or 11th of September 2002. That is this is the date on which Australia Post received the letter for posting. This means that by virtue of the deeming provision contained in s. 60(b) of the FOI Act Mr McMahon must be found to have been given notice of Ms Betty’s determination at the end of the “fifth day after” it was posted to him. In this case it would be on the 15th or the 16th of September 2002.

40 The fact that Mr McMahon collected the letter from his mail box on 30 September 2002 is of no relevance as the FOI Act makes no provision for contrary evidence to over-ride the deeming provision contained in s. 60(b) of the Act.

41 Section 54(a) of the FOI Act then provides that time does not begin to run until the day “after” the person has received notice of the determination. In this case that would be the 16th and 17th of September 2002. This means that Mr McMahon’s application would need to have been lodged on the 14th or 15th of November 2002 in order to have complied with s. 54(a) of the FOI Act (i.e. within 60 days). For the reasons stated above, Mr McMahon lodged his application on 14 November 2002 and has complied with the prescribed time limit. Accordingly, the Tribunal has jurisdiction to hear Mr McMahon’s application as the pre-condition to the Tribunal’s jurisdiction has been met.

42 The Tribunal orders that it has jurisdiction to hear Mr McMahon’s application for review.