NSW Department of Premier and Cabinet v Cianfrano
[2009] NSWADTAP 15
•16 March 2009
Appeal Panel - Internal
CITATION: New South Wales Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 PARTIES: APPLICANT
RESPONDENT
New South Wales Department of Premier and Cabinet
Robert CianfranoFILE NUMBER: 089052 HEARING DATES: 25 September 2008 SUBMISSIONS CLOSED: 9 January 2009
DATE OF DECISION:
16 March 2009BEFORE: Hennessy N - Magistrate (Deputy President); Pearson L - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: Moot appeal, whether appeal should be determined DECISION UNDER APPEAL: Cianfrano v New South Wales Department of Premier and Cabinet FILE NUMBER UNDER APPEAL: 073353 DATE OF DECISION UNDER APPEAL: 06/16/2008 LEGISLATION CITED: Freedom of Information Act 1989
Administrative Decisions Tribunal Act 1997CASES CITED: McGuirk v University of New South Wales [2007] NSWADT 258
R v Secretary of State for the Home Department; ex parte Salem [1999] 2 All ER 42 at 47
Secretary to the Department of Human Services v Magistrate’s Court at Melbourne and Anor (2002) 6 VR 140
Minister for Community Services and Another v Children’s Court of NSW and Ors [2005] NSWSC 154
Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355
Miller v Commissioner of Police NSW [2004] NSWCA 356
Rams Mortgage Corporation Ltd v Skipworth [2008] WASCA 148
Harrington v Rich [2008] FCAFC 61REPRESENTATION: APPELLANT
RESPONDENT
G Shirm, solicitor
C Saggers, agentORDERS: The appeal is dismissed.
Introduction
1 The issue to be determined in this appeal is whether, despite the fact that Mr Cianfrano has withdrawn his application to the Tribunal, the Appeal Panel should nevertheless determine an appeal by the Department of Premier and Cabinet against the Tribunal’s decision. We have decided not to do so because of doubts about whether the appeal is against an “appealable decision” and because the proceedings have now been resolved and no substantive issue remains to be determined.
Background
2 Mr Cianfrano applied to the Department of Premier and Cabinet for documents under the Freedom of Information Act 1989 (FOI Act). The Department requested that Mr Cianfrano pay an advance deposit before processing his application. When the money was not paid within 14 days, the Department gave him a further 14 days to pay. Mr Cianfrano did not pay the deposit and requested an internal review of the Department’s decision. The Department’s internal review decision was to affirm the request for an advance deposit. Mr Cianfrano was given a further 14 days to pay the money.
3 Mr Cianfrano applied to the Tribunal for external review of the Department’s internal review decision. Following a planning meeting, the Tribunal remitted the decision to the Department pursuant to s 65(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) for reconsideration. On 20 March 2008, the Department decided to refuse to continue to deal with the application. The Tribunal did not treat that decision as the decision then under review. Rather, the Tribunal proceeded to determine, as a preliminary question, whether it had jurisdiction to review the decision requesting payment of an advance deposit. At [24], the Tribunal identified this question as the issue in the case. On 16 June 2008 the Tribunal made the following order:
The Tribunal has no jurisdiction to review the Respondent’s request for payment of an advance deposit by the Applicant.
4 Mr Cianfrano had also submitted that after the date for payment of the deposit had expired, the 21 day time period for the making of a determination began to run again: FOI Act, s 21(6) and s 24(2). He said that when that time limit had expired, the Department was deemed to have made a decision refusing access to the requested documents. The Tribunal summarised Mr Cianfrano’s submission in relation to that issue at [20]:
More specifically with regard to jurisdiction, Mr Saggers said once an agency has requested payment of an advance deposit and allowed a specific time for payment in accordance with section 21, if payment is not received within that period the agency must exercise its power under section 22(3) to decide whether to continue dealing with the application. Failure to make such a determination should be treated as a deemed refusal under section 22(6). Otherwise, the agency could continually defer to deal with the application, with the result that the object of the FOI Act that applications should be dealt with as quickly and inexpensively as possible will be defeated. The legislation requires an agency to accept, defer or refuse an application. Deferrals are permitted for a set time and the legislation does not allow an application to be put on hold indefinitely.
5 The Department expressed a contrary view, which was summarised by the Tribunal at [10] and [11]:
Ms Shirm, for the Department, submitted that there can be no ‘deemed refusal’ pursuant to section 24(2) because, under section 21(6), the period of time between the making of a request for an advance deposit and the payment of a deposit in accordance with the request, is not taken into account in calculating the period of 21 days within which an application must be dealt with. Time does not run until the advance deposit is paid or the agency refuses to deal with the application.
The Department referred to Judicial Member Higgins’ comments in McGuirk v University of NSW [2007] NSWADT 258 (‘McGuirk 258’), at paragraph 23, that once the period within which an advance deposit is required to be paid has expired, and also the 21 day period from the receipt of the application, then the agency will be deemed to have made a determination pursuant to section 24(2). The Department submits that these comments, made before the Appeal Panel decisions in McGuirk 64 and McGuirk 65, were obiter and involved an erroneous construction of section 21(6). Such a construction would result in the unworkable situation where an applicant could subvert the agency’s power to request an advance deposit by simply not paying the advance deposit and then relying on the deemed refusal.
6 The Tribunal expressed its view on this issue at [33]:
Thus, in my view, in the absence of an extension of the period within which an advance deposit is required to be paid under section 21(5) being granted for good reason in accordance with the objects of the FOI Act , and not for an improper purpose, if an applicant fails to pay an advance deposit within the specified period, at the end of that period, the suspension of the 21 day period pursuant to section 21(6) will expire and the running of the 21 day period will resume. Then if the agency does not make a decision to refuse to continue dealing with an application under section 22(3), at the end of the 21 day period, if no decision to determine the application has been made, section 24(2) will deem the application to have been refused, thereby giving rise to the review rights set out in Parts 3 and 5 of the FOI Act.
7 The Tribunal agreed with an obiter comment by Judicial Member Higgins in McGuirk v University of New South Wales [2007] NSWADT 258 that:
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.
8 Having come to the conclusion expressed in [33] of its decision, the Tribunal did not take the next step and consider whether there had been a deemed refusal in the circumstances of this case and if so, whether such a refusal was a reviewable decision.
9 The Department sought leave to appeal against the Tribunal’s interlocutory “decision” expressed at [33] of its reasons. The ground of appeal was that:
The Tribunal erred in concluded (at [33]) that if an agency does not refuse to continue to deal with an application under s 22(3) of the Freedom of Information Act 1989, a deemed refusal of the whole application can occur under s 24(2), because that conclusion involved a misconstruction of s 21(5) of the FOI Act .
10 The Department withdrew its second ground of appeal relating to a denial of procedural fairness.
Appeal Panel hearing
11 The hearing took place on 25 September 2008. Following the hearing, Mr Cianfrano withdrew his application to the Tribunal for a review of the Department’s decision on the understanding that the Department would conduct an internal review of the decision on 20 March 2008 to refuse to continue to deal with his application. The Department submitted that despite the fact that the appeal was now moot, the Panel should either determine the appeal or express its view in relation to the ground of appeal. Mr Cianfrano did not make any submissions in relation to that application.
Application to determine the appeal
12 Introduction. The Department submitted that the Appeal Panel has the discretion to determine the jurisdictional issue considered by the Tribunal in [33] of its decision. In support of its application, the Department relied on a decision by the House of Lords in R v Secretary of State for the Home Department; ex parte Salem [1999] 2 All ER 42 at 47 and on a Victorian Court of Appeal decision in Secretary to the Department of Human Services v Magistrate’s Court at Melbourne and Anor (2002) 6 VR 140. In the Victorian decision, the Court of Appeal dismissed the appeal because it was moot, but thought it appropriate to express its opinion on an issue of statutory construction. The Supreme Court (Hoeben J) accepted this reasoning in Minister for Community Services and Another v Children’s Court of NSW and Ors [2005] NSWSC 154. The Department submitted that even if the Appeal Panel dismissed the appeal, we should express an opinion on the correctness of their ground of appeal because:
1. it is a discrete issue of statutory construction;
2. it affects how the Department will deal with future matters where an advance deposit is requested;
3. it affects how all government agencies will deal with matters where an advance deposit is requested;
4. the authorities on point are not clear; and
5. the Appeal Panel has already heard the arguments from both parties.
13 While we regard each of these points as valid, it would not be appropriate in the circumstances of this case to answer a question which is “merely moot, theoretical, abstract, hypothetical and advisory”: Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed). In Miller v Commissioner of Police NSW [2004] NSWCA 356 the Court of Appeal said that it “would not deliver what would, in effect, be an advisory opinion on an issue which had become moot.” The Court went on to say that, “Courts do not entertain appeals on questions which would ‘produce no foreseeable consequences for the parties’”. These principles were recently endorsed by the Supreme Court of Western Australia in Rams Mortgage Corporation Ltd v Skipworth [2008] WASCA 148.
14 In Harrington v Rich [2008] FCAFC 61 at [36], the Federal Court declined to express a view in relation to a moot appeal because the proceedings had been resolved and no substantive issue remained to be determined. In this case, there is another reason for declining to exercise any discretion we may have to determine a moot appeal. In our view, there is a real question as to whether the Department’s appeal is against an “appealable decision”. Section 113(1) of the ADT Act allows a party to appeal to the Appeal Panel against an appealable decision of the Tribunal. An appealable decision is defined in s 112 of the ADT Act:
(1) For the purposes of this Part, an "appealable decision" of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for:
(2) Without limiting subsection (1), the following decisions are also appealable decisions:
(a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or
(b) a review of a reviewable decision.
(3) A decision of an Appeal Panel (including any such decision made in relation to an external appeal) is not an appealable decision for the purposes of this Part.
(a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or
(b) an order of the Tribunal under section 71 (2) that the parties to proceedings before it may not be represented by an agent of a particular class, or
(c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal.
15 An appealable decision is not restricted to orders of the Tribunal but it must be a “decision” of the Tribunal. In this case, the Tribunal expressed a view in relation to a submission made by Mr Cianfrano that the Department had made a deemed decision to refuse access to the requested documents. While the Tribunal decided that the 21 day time period begins to run again following the non-payment of an advance deposit, the Tribunal did not decide whether or not the Department was deemed to have made such a decision in this case. Nor did the Tribunal decide whether, if a deemed decision had been made, it was a reviewable decision. The Tribunal’s consideration of this issue appears to have been prompted largely by the Department’s disagreement with the observations of Judicial Member Higgins in McGuirk v University of New South Wales [2007] NSWADT 258. In those circumstances, we doubt whether the Tribunal’s observations at [33] fit within the meaning of an “appealable decision”.
Order
The appeal is dismissed.
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