Pevara Pty Ltd trading as Sophies Restaurant

[2009] NSWADT 300

CITATION:	Pevara Pty Ltd trading as Sophies Restaurant [2009] NSWADT 300
DIVISION:	General Division
PARTIES:	APPLICANT Pevara Pty Ltd trading as Sophies Restaurant RESPONDENT NSW Food Authority
FILE NUMBER:	093123
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	23 October 2009
DATE OF DECISION:	2 December 2009
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Review a decision under the Food Act 2003
LEGISLATION CITED:	Food Act 2003 Administrative Decisions Tribunal Act 1997 Interpretation Act 1987
CASES CITED:	Tringas v Quach (RLD) [2007] NSWADTAP 35 Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062 LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50
REPRESENTATION:	APPLICANT P Walsh, solicitor RESPONDENT D Muddle, solicitor
ORDERS:	1. I find that the application for review was made within time and that requirement for internal review in s 55(1)(b) of the Administrative Decisions Tribunal Act 1997 does not apply. The Tribunal therefore has jurisdiction to determine the appeal 2. This matter is to be listed for directions before me at a time and date to be fixed.

REASONS FOR DECISION

1 Pevara Pty Ltd operates a restaurant in New South Wales. Following the issue of a Penalty Notice by the local Council for a breach of the Food Act 2003 (the FA), details of the notice were published on the internet on the Authority's Register of Information about Penalty Notices. The restaurant was thereby ‘named and shamed.’

2 Under s 133(5) and 133(6) of the FA, unless other circumstances prevail, information regarding a Notice is removed from the Register twelve (12) months after the date from which the Authority is first authorised to publish the information.

3 On 4 March 2009, the Authority received a letter, dated that day, by facsimile from the applicant's legal representatives, seeking removal of the applicant's details from the Register. On 31 March 2009, the Authority responded by facsimile, informing the applicant’s legal representative that a decision had been made rejecting the applicant's application for removal. A copy of that letter was also sent to the Applicant’s legal representatives by post and was received by them on 6 April 2009.

4 According to the Tribunal file on 12 May 2009 the Applicant filed an application to review the decision of the Authority together with an application for an urgent stay of the Authority’s decision. There is some confusion as to when those applications were in fact filed. In its submissions the Applicant asserts that the original review application was filed by facsimile on 29 April 2009. There is a significant difficulty with this proposition. Section 56 of the Administrative Decisions Tribunal Act 1997 (the ADTA) provides that an application cannot be made to the Tribunal unless the fee is paid or waived. No payment accompanied the fax.

5 While the original review application and stay application are stamped as being filed with the Tribunal on 12 May 2009, other correspondence and inquiries made with the Registrar reveal that the fee for the application was received and banked by the Tribunal on 4 May 2009. It is improbable that a fee would be received and banked in payment of the fees for a non-existent application.

6 On 20 May 2009 the applications was listed before me. The Applicant realised that a stay was not available in the circumstances and withdrew that application. The Authority appeared and argued that the review application to the Tribunal was made outside the time prescribed by s 133F(6) of the FA, and that the Tribunal has no power to extend time. The Authority argued that, as a consequence, the Tribunal had no jurisdiction to hear the application.

7 It was agreed that the parties should make submission going to those issues and that I would then determine the question on the papers.

8 Due to a combination of factors there has been a delay in reaching this determination. In August, while reviewing the parties’ submission I became aware that the parties had not turned their minds to the fact that there had been no internal review of the Authority’s decision. I therefore asked the Registrar to write to them seeking submissions as to:

‘Whether reviewable decisions under s133F(6) of the FA are exempt from the requirement for internal review and, if so, how?
If not –
-what consequences flow from the fact there has not been an internal review in this case;
-should the Tribunal dispense with the requirement for internal review; and
-what, if any, impact do the internal review provisions of the Administrative Decisions Tribunal Act 1997 have on the parties submissions with respect to the Tribunal’s power under s 57
Whether the application should be taken as being made to the Tribunal when the fee was paid (see s 56 Administrative Decisions Tribunal Act 1997) and, if so, whether that makes any and what difference to the parties submissions.’

9 I also advised the parties inquiries made with the Tribunal’s Registry ‘reveal that the cheque in payments of the application fee for in this matter was received and banked by the Tribunal on 4 May 2009, despite the fact that the application is not stamped as filed at the Tribunal until one week later, on 12 May 2009.’ I asked whether the application should be taken as having been made on that date.

10 An extension of the time for filing those submissions was sought by the Applicant and granted.

11 The Respondent asserts that the requirements for internal review set out in s 55(1)(b) of the ADTA have no application to reviews under s 133F of the FA. The FA, it is said, provides that the procedures for internal review and extension of time in the ADTA do not apply to FA reviews, thereby making ‘contrary provision’ in accordance with s 40 of the ADTA so that the ADTA procedures do not apply.

12 The issues for determination in this case are:

-When the application for review was made to the Tribunal?

-Whether the application for review was made within the 28 days after the day on which notice of the decision of the Authority was received as required s 133F (6)of the Act.

- Whether the FA impliedly makes contrary provision to those in the ADTA so as to exclude the application of the ADTA with respect to internal reviews and extensions of time

- If not, whether the Tribunal has power to extend the time for the making of an application to review the decision under s 57 of the Administrative Decisions Tribunal Act 1997, and to dispense with the need for an internal review?

- If the Tribunal has the power to extend time, whether there is a reasonable explanation for the application for review being made outside the prescribed time, and whether the Tribunal should dispense with the need for an internal review.

13 On 3 May 2008 the Act was amended by the Food Amendment (Public information on Offences) Act 2003. The long title of the amending Act was:

‘An Act to amend the FA to make further provision for the disclosure of offences relating to the handling and sale of food, to provide for the disclosure of penalty notice information, and to make further provision for payments into the Food Authority Fund.’

14 It inserted a new Part 10A into the Act, s 133 – 133H. Section 133A allows the Authority to maintain a register ‘of information about penalty notices issued for alleged offences under this Act or the regulations relating to the handling or sale of food, and for the information that the register may contain. Sub-section (3) provides that:

‘Information relating to a penalty notice served on a person is not to be published on the register unless:
(a) the amount payable under the penalty notice has been fully or partly paid, or
(b) a penalty notice enforcement order under Part 3 of the Fines Act 1996 has been issued in respect of the penalty notice, or
(c) at least 70 days has elapsed since the penalty notice was served and the penalty notice is unresolved.’

15 Similar provision is made with respect to a register of offences: s 133.

16 Section 133B provides that information in a register kept under Part 10 ‘is to be made available for public inspection on an internet website of the Food Authority’ and may be published in manner approved by the Authority including in a newspaper.

17 Section 133C is concerned with correction of errors or omissions in Registers, whether on application or the Authority’s own motion. The Authority ‘must’ correct error, and ‘may’ correct any omission.

18 Section 133D deals with the removal of information form Registers, whether on application or the Authority’s own motion. Sub-sections (5) and (6) provide:

5. The Food Authority must remove information about a particular penalty notice from the register of penalty notices as soon as practicable after it has become aware that:
(a) the relevant penalty notice was not properly served, or
(b) the person on whom the notice was served has elected to have the matter dealt with by a court, or
(c) a decision has been made by the enforcement agency or other body under the direction of which, or on behalf of whom, the penalty notice was issued not to enforce the penalty notice, or
(d) a penalty reminder notice or penalty notice enforcement order in respect of the penalty notice has been withdrawn under the Fines Act 1996 (unless the enforcement action authorised by the enforcement order is authorised by another penalty notice enforcement order), or
(e) a penalty notice enforcement order in respect of the penalty notice has been annulled under the Fines Act 1996 and the matter has been referred to a court, or
(f) a period of 12 months has elapsed since the date on which the Food Authority was first authorised to publish information about the particular penalty notice on the register.
6. The Food Authority may remove any information about a particular penalty notice from the register of penalty notices if it is satisfied it is appropriate in the circumstances to remove the information from the register (for example, if the issue of the penalty notice contravened any policy of the Food Authority relating to enforcement of the Act).

19 Section 133G provides the Authority and its staff with protection from liability for anything done ‘in good faith in connection with the keeping of a register.’ The Authority may exercise its function under Part 10 ‘despite any prohibition in, or the need to comply with, the Privacy and Personal Information Protection Act 1998’: s 133H.

20 Section 133F is concerned with applications to amend or remove entries from a Register, and reviews of decisions refusing such applications by this Tribunal. It provides:

(1) An interested person in relation to any information on a register kept under this Part may, by application to the Food Authority, request the Food Authority:
(a) to make any correction or addition to information on the register that the Food Authority is authorised or required to make under this Part, or
(b) to remove information from the register on the ground that the Food Authority is authorised or required by this Part to remove the information.
(2) the Authority person is an interested person in relation to information on a register only if the information relates to the person or to the person’s employee or agent, or to a business or company which the person owns or has an interest in.
(3) An application must:
(a) be made in a form approved by the Food Authority, and
(b) be accompanied by the fee (if any) prescribed by the regulations.
(4) The Food Authority may reduce or waive payment of the whole or any part of the fee.
(5) A person who is aggrieved by a decision of the Food Authority not to make any correction or addition to information, or not to remove any information, in accordance with the person’s request under this section may apply to the Administrative Decisions Tribunal for a review of the decision.
(6) An application for such a review must be made within 28 days after the day on which notice of the decision of the Food Authority is received by the person.

21 Section 133F of the Act, when read with s 38 of the Administrative Decisions Tribunal Act 1997, confers jurisdiction on this Tribunal to hear and determine an application to review a decision by the Authority not to amend or remove information form a Register. Section 38 provides:

1) Conferral of review jurisdiction
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.
…
(2) When statutory rules may confer jurisdiction to review decision
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).
(3) Preconditions for applications laid down by enactment
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.

22 Section 40 of the ADTA is concerned with what occurs when an Act conferring review jurisdiction on the Tribunal contains ‘contrary provisions’ to those in the ADTA. Relevantly, it provides that:

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) …
(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.
(4) In this section:
relevant enactment means an enactment under which the Tribunal has jurisdiction:
(a) to make an original decision, or
(b) to review a reviewable decision,
or that otherwise deals with the jurisdiction of the Tribunal.

23 Section 53 of the ADTA provides that an interested person may seek an internal review of a reviewable decision, and sets out the requirements for seeking an internal review. Requests for internal review are to be made within 28 days of the provision of the initial decisions, or reasons for it (ss(2)(d)). An internal review is then to be completed within 21 days (ss(6)) and reasons provided for the decision (ss(7)).

24 Section 55 of the ADTA is concerned with when an application for review may be made. It relevantly provides:

(1) the Authority person may apply to the Tribunal for a review of a reviewable decision only if:
(a) the application is made by an interested person, and
(b) where the person was entitled to seek an internal review of the decision—the person has duly applied for such a review and the review is taken to have been finalised under section 53 (9), and
(c) the application is made in the manner prescribed by the rules of the Tribunal, and
(d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, the default application period for the decision.
...
(2) The default application period for a reviewable decision is:
(a) in the case where the applicant has duly applied for an internal review of the reviewable decision—the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9), or
(b) in any other case—the period of 28 days after:
…
(3) Despite subsections (1) (b) and (d) and (2), the Tribunal may deal with an application for the review of a reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:
(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned, or
(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned.

25 Section 56 says that an application cannot be made unless the prescribed fee is paid.

26 Section 57 of the ADTA allows the Tribunal to extend time for making an application for review, where there is a reasonable explanation for the delay. It provides:

1) Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.
(1A) An application by an interested person under subsection (1) must be in writing unless the Tribunal dispenses with the requirement.
(2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired.
(3) In this section, late application means an application not made within the period or time referred to in section 55 (1) (d).

When was the Application for Review made?

27 At the directions hearing on 20 May 2009 the Respondent submitted that there was no evidence before the Tribunal at that time, aside from assertions made in correspondence from the Applicant’s solicitor, as to the reasons for the delay. The Respondent said that evidence going to that issue was required.

28 Aside from a letter from the Applicant’s solicitor where some explanation is given, there has been no such evidence filed.

29 The Respondent submits that the letters from the Applicant’s do not satisfy the evidentiary requirements of a reasonable explanation, and, if they do, they do not offer a reasonable explanation.

30 In his submissions the Applicant’s solicitor wrote:

‘The explanation is that firstly the time the writer believed ran from the date of receiving the original letter from the Authority which was 06 April 2009; if this is accepted then the Application is clearly in time. Secondly, if that is wrong and it is the date of the facsimile, then the delay is minimal because the original appeal is filed by facsimile on 29 April 2009 and followed up by sending the original documents and necessary filing fee in the post that same day. The delay, if any, is at the filing stage which takes place some 13 days later, quite out of the control of the Applicant.’

31 An examination of the Tribunal file confirms that the review application and the stay application are stamped as filed at the Tribunal on 12 May 2009. A letter from the Applicant’s solicitor received on that day, and dated 11 May 2009, encloses an application for an urgent stay and a “further three copies of the application for review of a decision.” That letter is attached to an earlier, original letter to the Tribunal, bearing the date 29 April 2009 and stamped as received by the Tribunal on 4 May 2009. It enclosed the fee and an original application.

32 A check of the Tribunal’s remittances by post register reveals that a cheque in payment of the application fee was received and banked on 4 May 2009. There is no record of the Tribunal receiving the copy application faxed on 29 April 2009. Common sense, however, leads to the conclusion that the fee received on 4 May was in payment for an application which the Tribunal had received, if not by fax, then with the letter stamped as received on 4 May 2009. There is, however, no stamped copy of that original on the file.

33 This is sufficient to persuade me that the application for review was received and the fee paid on 4 May 2009. I suspect, but it is not necessary to decide, that Applicant was then advised that the Tribunal required extra copies of the application and could not hear the application without an internal review, unless a stay was sought. This would explain the subsequent correspondence.

Was the application for review made within time?

34 Section 133F(6) of the Food Act provides that an application is to be made to the Tribunal within 28 days “days after the day on which notice of the decision of the Food Authority is received by the person.” That notice was dated 31 March 2009 and sent by fax to the Applicants solicitor. It was posted on the same day and received on 6 April 2009. There is no provision in the FA dealing with how such notices are to be served. I think it reasonable to read s 133F(6) as requiring service by post. Section 76 of the Interpretation Act 1987 provides that service by post is taken to be affected 5 working days after posting. Receipt by the Applicant’s solicitor on 6 April 2009 is entirely consistent with this.

35 Section 36(1) of the Interpretation Act 1987 provides:

‘If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.’

36 That being the case the 28 days within which the application had to be made to the Tribunal commenced on 7 April 2009, and expired on 5 May 2009.

37 As a result the application was made inside the time provided by s133F(6). Therefore it is not necessary to consider whether there is a power to extend time.

Is there a requirement for internal review?

38 The Authority also submits that provisions of the ADTA with respect the seeking of an internal review do not apply to reviews under s 133F(6) because the FA makes provision to the contrary.

39 There is no express contrary provision to this effect made in the FA. Aside from granting a right of review and providing for such applications to be made within 28 days, Part 10A is silent on the issues. There is no reference to the ADTA.

40 The issue is therefore whether the FA impliedly makes contrary provision: s 40(1) ADTA. This is not an issue which has been previously considered by the Tribunal, although similar questions have been determined, at appeal levels with respect to extension of time provisions. These were with respect to provisions of the Retail Leases Act 1997 (the RLA) in Tringas v Quach (RLD) [2007] NSWADTAP 35, the Local Government Act 1993 (the LGA) in Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062) and the Freedom of Information Act 1989 (the FOIA) in LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50). In the first two it was found that the relevant enactments did impliedly contain contrary provision, while the opposite conclusion was reached in LZ.

41 The Appeal Panel in LZ explained and clarified the relevant principles of interpretation, and in doing so explained how the apparently contrary conclusions reached in Cheung and Tringas were consistent with, and could be reconciled with, those principles. The Appeal Panel took the view that the starting point, ‘in dealing with issues of interpretation bearing on practice and procedure governing applications to the Tribunal is to seek to give a harmonious reading’ between the relevant enactment and the ADTA: see [46].

42 In approaching that task the Appeal Panel examined the statutory settings against which Cheung and Tringas were decided. The Panel had regard to indications of legislative intent derived from ‘the immediate statutory context’ and ‘from the legislative purposes that the time-specific provision in issue was seen as serving, to justify the conclusion that the general, or omnibus, provision was not operative:’ see [39].

43 In Cheung the time limit related to applications under the LGA, in the original jurisdiction of the Tribunal, for the dismissal of an elected councillor from her office on the ground of irregularity in the conduct of the election. The statutory context, which Dunford J considered, included a number of important considerations. First, that there was a ‘general rule relating to applications to upset election results, namely that the time for the commencement of proceedings cannot be extended:’ [2000] NSWSC 1062 at [12]. Secondly, s 329 of the LGA had, prior to the commencement of the ADTA, been in a similar form and had not included a provision for extension of time. His Honour considered that these features pointed to an inconsistency between provisions of the LGA and the ADTA. He accepted this as evidence of an implied contrary intention.

44 In Tringas, s 32 of the RLA provided that an application for review of a rent determination ‘must be made within 21 days after the party first received a copy of the determination.’ The Appeal Panel followed the decision in Cheung pointing out, at [56], that ‘the following aspects of the retail leases legislation suggest, by implication, that the time limit of 21 days in s. 32A(2) cannot be extended.’ These were first; that at the same time as s 32A was inserted into the RLA another provision (s 71B) was also inserted. This made specific provision for the Tribunal to extend the time for making retail tenancy and unconscionable conduct claims. Given the provisions of s 71B the Appeal panel thought the absence of an extension of time provision in s 32A ‘significant.’ Secondly, the Appeal Panel pointed out that, at [58]:

‘It also appears to us that the protection afforded to lessees by s. 32(1)(c), which extends in certain circumstances the period in which an option to renew may be exercised, might be seriously weakened if extensions of the time limit in s. 32A(2) could be granted. But as this point was not raised at the appeal hearing, our conclusion in this judgment does not in any way depend on it.’

45 In LZ the provision in issue, s 54 of the FOIA, required that applications for review be made ‘within 60 days’ of the determination. In finding that there was no implied contrary provision to s 57 in the FOIA, the Appeal Panel had regard to fact that ‘s 54 appears as one of a series of provisions in Part 5 of the FOI Act that have regard to their interaction with the general provisions, as to practice and procedure found in the ADT Act:’ see [43]. It noted that s 53 of the FOIA contained specific provisions which operated to modify the procedures set out in s 53, 55 and 58 of the ADTA for FOI applications. The Panel pointed out that there was no such provision relating to the interaction of the time limits set under the FOIA, with those under the ADTA. The Panel observed, at [46], that:

‘In our view, the specific express exclusions in s 53 of certain provisions of the ADT Act provide a strong textual indication that the Parliament intended that the remaining practice and procedure provisions of the Tribunal remain operative.’

46 The Appeal Panel concluded at [49]:

‘In our view there are no compelling considerations of policy or legislative purpose of the kind that were present in Cheung to necessitate treating s 54 of the FOI Act as setting an absolute time limit. Nor are there any textual indications of the kind present, for example, in Tringas that s 54 of the FOI Act is to be interpreted as contrary to the general power to extend time afforded by s 57 of the ADT Act.’

47 It is to be noted that the FOIA also includes a specific provision dealing with internal review: s 34.

48 In the context of the FA the Authority submitted that, as a matter of statutory interpretation, by providing that applications for review ‘must be made within 28 days’ s 133F(6) impliedly makes contrary provision to s 55(1)(d), with the result that s 55(1)(d) of the ADTA – the requirement for internal review – does not apply. This is so because by providing that review must be made within 28 days of receipt of the decision, s 133F(6) is in conflict with the provisions of s 55(2) of the ADTA which establish a 28 day default period in which an internal is to be requested, following which an agency has 21 days in which to provide the internal review (s 53(9) ADTA) .’

49 I accept that there is a conflict between these provisions. Section 133F(5) and (6) provide that persons aggrieved by a decision of the Authority may apply to the Tribunal, which application must be made within 28 days. It is not, in my view, possible to reconcile this with the provisions of the ADTA requiring that an internal review be sought and given. The combined time frames for those processes allow a maximum of 49 days for both, thereby creating the inconsistency. I am unable to see how a harmonious reading of these provisions can be achieved.

50 I have considered whether, in an effort to reach a harmonious interaction between the two Acts, it is possible to read the words ‘notice of the decision’ in s 133F(6) as referring to a notice of internal review decision. In my view, this is not possible. Read in context, it is apparent that the decision referred to is ‘a decision of the Food Authority not to make any correction or addition to information, or not to remove any information’ against which an aggrieved person is given a right to seek external review under s 133F(6). The reality is that an application to remove information from the Register requires the Authority the reconsider its initial decision, a process akin to an internal review.

51 In my opinion this is a case, like Tringas, in which textual considerations compel the conclusion that the s 133F of the FA makes contrary provision to s 55(1)(d) of the ADTA. That being the case s 40(2) of the ADTA provides that the FA provisions apply.

52 I note that the Authority has made similar submissions with respect to the Tribunal’s power under s 57 of the ADTA to extend the time in which an application for review can be made. Because I have found that the application was made within time, it is not necessary to consider that question. It should not be assumed that the same result will follow.

Conclusion

53 I find that the application for review was made within time and that requirement for internal review in s 55(1)(b) of the ADTA does not apply. The Tribunal therefore has jurisdiction to determine the appeal.

54 I will list this matter for directions at which which the parties are at liberty to attend by phone.