Miriani v NSW Attorney General's Department

[2008] NSWADT 343

CITATION:	Miriani v NSW Attorney General’s Department [2008] NSWADT 343
DIVISION:	General Division
PARTIES:	APPLICANT Joe Miriani RESPONDENT NSW Attorney General’s Department
FILE NUMBER:	073354
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	26 June 2008
DATE OF DECISION:	24 December 2008
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Access to documents
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	LZ v Office of the Protective Commissioner [2008] NSWADTAP 50 LZ v Office of the Protective Commissioner [2008] NSWADT 22 Black v General manager, Bathurst City Council [2001] NSWADT 139
REPRESENTATION:	APPLICANT In person RESPONDENT K Mattes, solicitor
ORDERS:	1. The application filed in the proceedings is competent, having been filed within the 60 days allowed by section 54(b)(ii) of the Freedom of Information Act 1989 2. The parties are directed to approach the Tribunal Registry within 21 days of receipt of these reasons for decision to obtain a date for a further planning meeting.

1 These proceedings have been brought by the applicant pursuant to the provisions of the Freedom of Information Act 1989 (NSW) seeking to review a determination by the respondent made under that Act in relation to access to documents. A jurisdictional issue has arisen for preliminary determination before embarking upon any substantive hearing of the proceedings. Both parties have requested that this preliminary determination be made upon the papers after the filing of submissions. The last submissions were filed by the applicant on 26 May 2008 following which a period was allowed for any response by the respondent, who was the moving party on the application. No submissions were filed in reply and the Tribunal’s decision was reserved on 26 June 2008.

2 The applicant made an initial application for access to documents under the Act, which was followed by an application for internal review, as the legislation requires. Upon receipt of the respondent’s decision on internal review the applicant placed the matter before the NSW Ombudsman. Consequently, the applicant was entitled, in general terms, to wait for the Ombudsman’s advice or report before commencing in the Tribunal, should he wish to do so. He in fact followed this course.

3 Section 54(b) of the Act however imposes a 60 day time limit, which is applicable in these circumstances. Time will start to run depending upon the relevant circumstance that is engaged: this is determined by whether the Ombudsman refuses to investigate the matter, discontinues an investigation or concludes and reports on an investigation (see section 54(b)(i) and (ii)). In the present case, the Ombudsman completed the investigation and reported upon the results of the investigation. This brings section 54(b)(ii) into play. The Ombudsman then advised the applicant of the results of the investigation by letter dated 27 September 2007, which was posted on 28 September 2007 to the applicant at his address. The applicant received this letter on 06.10.07. He then commenced proceedings in this Tribunal on 29 November 2007. These factual matters are not in dispute, for present purposes. It is common ground that if the relevant 60 day period runs from the date shown on the Ombudsman’s letter of report then the applicant has not commenced these proceedings within time: he will have commenced these proceedings 3 days out of time. Conversely, it is also common ground that if the date of the Ombudsman’s letter is not the critical date, then the application to the Tribunal is within time, and competent, no matter whether the material date of receipt is factual or arises from a statutory deeming provision. The respondent ran the case on this basis, as its submissions show, even though submissions were made as to the application of section 60 of the Freedom of Information Act 1989 as a matter of completeness, and to assist the Tribunal, given that the applicant had raised this provision as being in issue.

4 The precise question for determination is whether, within section 54(b)(ii), time runs from the date when the report is made, that is, the date shown on the Ombudsman’s letter, or from the time that the applicant ‘received’ the report. This turns on the proper construction of the words reported to the applicant as they appear in the sub-section. The respondent’s detailed and helpful submissions argue that these words mean the date of the Ombudsman’s letter to the applicant, the argument being that when the letter is signed and dated it can be properly said that the Ombudsman has reported the results of the investigation to the applicant. Put simply, this is the time when the report of the results has been made. This argument is based, in part, on the precise words used in the section: the word reported is specifically used rather than other words which could have been easily employed so as to make it clear that the date of receipt is the critical event, as has been done in other sections to which the respondent refers. The respondent supports this argument with dictionary definitions as to the word reported.

5 The applicant’s equally detailed and helpful submissions argue that the date of receipt of the letter is the critical event. He argues that the results of the investigation can only be said to have been reported to him when he actually receives them, and not before. This, he argues, is the natural meaning of the words reported to. He cites dictionary meanings and notes the statutory obligations and discretions applicable to reports made by the Ombudsman after investigations are completed.

6 In general terms, where a time limit runs from a particular event or circumstance it makes good sense to look at the position through the eyes of the person who must take the specified steps within the prescribed time. Here, it is the applicant. It is desirable that a person in the position of the applicant is able to ascertain precisely when time has commenced to run, as the legislation envisages that the effluxion of time will defeat any remedies that are available. However, this does not take matters very far as the date of the report is stated clearly on the letter itself, and the applicant would of course be aware of the date when he received it. Both are capable of being clearly known to the applicant, so he may easily determine the period within which he must act from either event. Also, as a matter of general principle, there is always good sense in making a time limit run from the point in time where a person first becomes aware that action is required. Here, the applicant only became so aware when he in fact received the letter. The words used in the section are reported to a complainant. This reasoning, and the use of the words reported to, supports the applicant’s argument of course.

7 Assistance can also be obtained in this case by looking at the specific provisions of section 54(b) itself. Where the Ombudsman refuses to entertain a complaint by investigation, or discontinues an investigation that is on foot, section 54(b)(i) applies, and time will start to run from the date when the complainant is informed of that fact, that is, is informed of the refusal or discontinuance. On a prima facie reading, this sub-section appears to mean the date of receipt of such information by the applicant. This is its most natural meaning. From this it may be cogently argued that section 54(b)(ii) should be given the same meaning, there being no reason why the two subsections, which are simply dealing with alternative scenarios following complaint to the Ombudsman, should have different applications. The respondent could, of course, argue the other way, namely that section 54(b)(ii) clearly means the date when the report is made and therefore section 54(b)(i) should be given this meaning as well. The word informed could possibly, the respondent would argue, bear this meaning without too much distortion. However, there is quite some difficulty in reading the words the complainant is informed of that fact, as meaning when a letter is written to an applicant: to inform someone is, put simply, to tell them. A person is not informed until knowledge is actually received, unless a particular statutory context requires otherwise: and, as noted above, the words used in the sub-section under consideration are reported to a complainant. The first argument therefore is the stronger of the two, and more persuasive as to the proper construction of the subsection.

8 The applicant’s submissions note that whilst the Ombudsman is obliged to make a report of an investigation to the responsible Minister and the Head of the relevant Public Authority, it is discretionary whether a copy of the report is made available to a complainant. There is perhaps a distinction to be drawn here between the Ombudsman’s report under the Ombudsman Act 1974 and the provision of the results of the investigation as referred to in section 54(b)(ii). The import of this is not all that clear, but it may assist in explaining the different wordings of section 54(b)(i) and (ii). As the Ombudsman is required to provide a formal Report under the Ombudsman Act 1974, as the culminating step, it would be consistent to refer to the provision of the results of the investigation as a reporting rather than as an informing. However, this aspect is not all that persuasive.

9 If the issue were free of any authority the Tribunal would hold that, for the reasons stated at paragraphs 6 and 7 above, section 54(b)(ii) requires receipt by an applicant of notification of the results of the Ombudsman’s investigations. It is only when such results are actually received by the applicant that they are thereby reported to an applicant (or complainant), in the sense that the subsection uses that word.

10 However, the section has been considered by the Tribunal’s Deputy President in Black v General Manager, Bathurst City Council [2001] NSWADT 139, a decision which the respondent cites and relies upon. If the Deputy President has decided the issue, which is now before the Tribunal, in the way that the respondent submits, then the Tribunal as presently constituted should follow it. There are two relevant paragraphs in the Deputy President’s reasons for decision that require consideration.

11 The first is at paragraph [11] where the reasons state: (the) application to the Tribunal needed to be made within 60 days of the Ombudsman’s letter (09 February 2001). Here, the date of the Ombudsman’s letter is treated, for the purposes of that decision, as being the date from which the time period in section 54(b)(i) commences to run. The case concerned section 54(b)(i) and not section 54(b)(ii) (see paragraph [6] of the Deputy President’s reasons).

12 The second is at paragraph [1] where the reasons state: the application was lodged more than 60 days after the Ombudsman informed him. This shows that the Deputy President had the provisions of section 54(b)(i) in mind and therefore had to make a factual determination as to when the applicant had been informed that the Ombudsman had refused to undertake an investigation of the applicant’s complaint. The Deputy President has then accepted, as appears later in the reasons, that the relevant date was that appearing on the Ombudsman’s letter. Consequently, the respondent relies upon this decision as being directly in point, as well as being decisive of the issue presently before the Tribunal. In particular, the respondent would argue, the point made above at paragraph 7 of these present reasons is incorrect: the Deputy President has in fact decided that informed in section 54(b)(i) means the date appearing on the Ombudsman’s letter to an applicant. Consequently, the argument flows, section 54(b)(ii) should be given the same application as the Deputy President has given section 54(b)(i).

13 This argument should be sustained unless there is proper reason for the Tribunal as presently constituted to treat the Deputy President’s decision as not being decisive of the same issue that this Tribunal has under consideration. It appears to this Tribunal that there is such good reason. The matter before the Deputy President was one where the application to the Tribunal was well out of time irrespective of whether the date of the Ombudsman’s letter or the date of receipt of that letter was the critical event. A close reading of the Deputy President’s reasons does not suggest that any point taken turned on which of these two events was the correct one to take into account, and there is no indication that the point was argued. This distinction between these two events cannot have played any part in the case before the Deputy President as the application to the Tribunal was so far out of time that the distinction could not have even been employed to raise any cogent argument one way to the other. Consequently, it is most unlikely that the Deputy President had to mind the precise issue that is now before this Tribunal. Rather, the real argument in that case was as to the power to extend time. That being the case, the Tribunal is of the view that there is proper ground for holding that the Deputy President did not in fact decide the precise issue that the Tribunal now has before it. Also, for the same reason, this Tribunal is of the view that the Deputy President did not in fact decide, there being no argument on this point as a contested issue, that the word informed in section 54(b)(i) means the date of the Ombudsman’s letter.

14 This being so, it appears to this Tribunal that the issue is free from authority. In this regard it is noted that the Appeal Panel in LZ v Office of the Protective Commissioner [2008] NSWADTAP 50 remitted this same type of issue back to the Tribunal at first instance (see paragraph [18]). It is also noted that, at first instance, the Tribunal did not treat the date of the Ombudsman’s letter as the critical event: rather the Tribunal there applied a statutory deemed receipt (LZ v Office of the Protective Commissioner [2008] NSWADT 22 at [38]).

15 Consequently, the Tribunal holds that the words reported to the complainant in section 54(b)(ii) of the Act do not mean the date of the Ombudsman’s letter advising the results on investigations, but rather, they refer to the point in time when an applicant receives notification of the results of the Ombudsman’s investigation, either as a matter of fact or, possibly, as a matter of law. The consequence of so holding is that, as the parties have agreed, the application to the Tribunal was filed within time, that is, within the 60 days time period allowed.

16 There is still a question remaining, namely whether a statutory provision may provide a date of receipt based upon the ordinary course of post. Although there was some argument on this aspect in the submissions, there is no need for the Tribunal to determine this question in these proceedings because of the approach taken by the parties as noted at paragraph 3 above. However, the tribunal notes the cogent argument by the respondent that section 60 of the Freedom of Information Act 1989 has no application, essentially because the terms of this provision are not satisfied.

17 The parties also argued the question whether the Tribunal was empowered to extend compliance with the time limit, should it be appropriate to do so. The respondent relied upon a line of authority in this Tribunal where it had been held that there was no power to extend time. However, the position has now changed since the Appeal Panel decision in LZ vOffice of the Protective Commissioner [2008] NSWADTAP 50. This decision postdated the filing of submissions by the parties. If this issue had become material to the Tribunal’s decision, the matter would have been re-listed in order to allow the parties the opportunity to consider their position and make such further submissions, as they should so wish. However, given the Tribunal’s decision herein, this aspect is not material and need not be taken further.