Treglown v South Australia Police - [2008] SADC 146

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
TREGLOWN v SOUTH AUSTRALIA POLICE
[2008] SADC 146
Judgment of Her Honour Judge Cole
6 November 2008
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - GENERALLY
Appeal in relation to an application for access to documents pursuant to s 40 of the Freedom of Information Act 1991 - consideration of orders requested in application by respondent - decision of Police Complaints Authority that he does not have jurisdiction in relation to appellant's application for external review set aside - matter remitted to the PCA for consideration of the substantive merits of appellant's application.
Freedom of Information Act 1991; District Court Act 1991, referred to.
Saraf & Anor v Johns [2008] SASC 166, considered.

TREGLOWN v SOUTH AUSTRALIA POLICE
[2008] SADC 146

This is a decision in relation to an application for access to documents pursuant to the Freedom of Information Act 1991 (“the FOI Act”).
The Facts
On 4 July 2007 the appellant applied to the South Australia Police (SAPOL) under s 13 the FOI Act for access to “All documentation relating to, or connected in any way with, the investigation/enquiry codenamed Operation Atop”.
By letter dated 20 July 2007, Senior Sergeant Robyn Wesley, who was the Manager of the Freedom of Information Unit of SAPOL, and an accredited freedom of information officer, sought, from the appellant, in writing, “an advance payment for the anticipated cost involved in processing the application” of $1,500. The payment was said to have been sought “In accordance with section 17(1) of the FOI Act.”
By letter dated 8 August 2007 to Senior Sergeant Wesley, Mr Clarke, the appellant’s solicitor, challenged the validity of the request for $1,500. In summary, Mr Clarke argued that the request did not set out the basis for the calculation of the fee, as required by s 17(4) and, in any event, was beyond power because the items for which a fee could be charged were set out in s 53(2aa) and did not permit a charge to be levied for many of the processes for which the fee was requested. In his letter, Mr Clarke said “…the time period within which my client’s application is to be dealt with continues to count down. My client awaits your determination on his FOI application.”
On 27 August 2007, the appellant lodged an application for internal review pursuant to s 29 of the FOI Act. Under “Reason for Review” on the application form, the appellant wrote
“Statutory refusal. S.19 FOI Act.”
The FOI Act provides, in s 19(2):-
If –
(a)…
(b)…an agency fails to determine an application within 30 days after receiving the application,
the agency is to be taken to have determined the application by refusing access to the document to which it relates for the purposes of the provisions of Division 3 and Part 5.
The appellant was applying for an internal review from a deemed refusal of his application pursuant to s 19(2).
By letter dated 10 September 2007, Ms Hunt, the Manager, Business Service Support Branch, an accredited FOI officer (internal review), responded to the appellant’s application for internal review. Ms Hunt said, in her letter,
Having reviewed the file, I refuse to make a determination at this time, on the basis that your application for internal review is invalid.
Ms Hunt disagreed with the assertion made by Mr Clarke on behalf of the appellant that the request for the fee of $1,500 was invalid. Ms Hunt asserted that, because in her view the request for the fee was valid, then pursuant to s 17(6), “the clock has stopped” and SAPOL could not be treated as having failed to make a determination within time. The FOI Act provides, in s 17(6):
The period between the making of a request under this section and the payment of an advance deposit in accordance with the request is not to be taken into account in calculating the period within which the relevant application is to be dealt with.
By letter dated 6 October 2007, Mr Clarke applied to the Police Complaints Authority (“the PCA”), pursuant to s 39 of the FOI Act, for a review of a determination “following a statutory refusal as set out in Section 29(5) of the FOI Act.” The FOI Act provides, in s 29(5), in relation to an internal review:
An agency that fails to determine an application made under this section within 14 days after it is received by the agency is, for the purposes of this Act, to be taken to have confirmed the determination in respect of which a review is sought.
The basis for the appellant’s application for external review by the PCA was that the response to the application for internal review amounted to a failure to make a determination within 14 days, with the result that, pursuant to s 29(5) of the FOI Act, the internal review is taken to have confirmed the determination in respect of which the review is sought. Mr Clarke also set out, in the application for external review, the appellant’s objection to the request for an advance fee of $1,500. The parties to this matter are now in agreement that the clock had not, in fact, stopped, and the decision of the internal review officer is therefore a deemed confirmation of the deemed refusal by SAPOL of Mr Treglown’s application for access to documents pursuant to s 29(5) of the FOI Act.
By letter dated 19 November 2007 to Mr Clarke, the PCA advised that he declined to undertake an external review in relation to the application for access to documents because he considered that he had no jurisdiction. The PCA rejected Mr Clarke’s argument in relation to the advance fee. The PCA found that there had not been an actual or a deemed refusal of the original application, so that “There is nothing which I have jurisdiction to Externally Review.” The PCA advised SAPOL of his decision by letter of 19 November 2007.
On 19 December 2007, the appellant appealed to this Court pursuant to s 40 of the FOI Act. The Notice of Appeal said:
MICHAEL RAYMOND TREGLOWN of PO Box 441 Echunga SA 5153 being a person who is aggrieved by a determination made on review under Division 1 of Part 5 of the Freedom of Information Act 1991 (“the Act”) by the Police Complaints Authority on 19 November 2007 hereby appeals against the determination pursuant to section 40 of the Act.
1. The grounds of appeal are:
1.1That the request made pursuant to section 17 of the Freedom of Information Act 1991 (“the Act”) is invalid as
(a)it does not set out the basis on which the deposit has been calculated.
(b)it exceeds the legislative authority to require a fee or charge as provided for by section 53(2aa) of the Act.
(c)it was made by a person who was not an accredited FOI officer as required by the Act.
1.2That as South Australia Police did not determine the application within 30 days after receiving it, in accordance with section 19(2)(b) of the Act, it should have been determined that it had refused to give access to the documents.
1.3That as South Australia Police did not determine the application for review of the determination (internal review) within 14 days after receiving it, in accordance with section 29(5) of the Act, it should have been determined that it had confirmed the determination in respect of which the review was sought.
1.4The appellant should have been given access to all the documents requested.
2. The appellant seeks the following orders:
2.1That the section 17 request is invalid.
2.2That as the application was not determined within 30 days after its receipt access to the documents has been refused.
2.3That as the application for review was not determined within 14 days after its receipt the original determination was confirmed.
2.4That the appellant be given access to the documents.
2.5Costs.
2.6Such other orders as the Honourable Court think fit.
On 20 March 2008, Robertson J made the following orders:-
By consent, THE COURT ORDERS that:
1. The request made pursuant to Section 17 of Freedom of Information Act is invalid [sic].
2.    As the application was not determined within 30 days after its receipt access to the documents has been refused.
3.    As the application for review was not determined within 14 days after its receipt the original determination was confirmed.
4.    The appellant have his costs to be agreed or taxed.
AND the Court further orders that
5.    Issues arising from the order sought in paragraph 2.4 of the Notice of Appeal, dated 19 December 2007 be set down for argument at 10.00am on Monday 14 April 2008.
6.    Both parties file and serve outlines of submission by no later than 5.00pm on Tuesday, 8 April 2008.
On 14 April 2008, there was a brief argument before me, in the course of which the respondent requested that the application be referred to SAPOL for a decision in relation to the granting of access to the documents originally applied for to be made on the merits. I declined to adopt that course.
Negotiations proceeded between the parties. On 13 August 2007, the respondent filed an interlocutory application. It said:
The South Australian Police intends to applies [sic] for the following orders or directions:-
1. Rescind the decision of the Police Complaints Authority that it lacked jurisdiction to exercise its powers of external review pursuant to Part 5 Division 1 of the FOI Act.
2. Remit the Appellant’s application for external review made on 6 October 2007 pursuant to sub-section 39(2) Freedom of Information Act 1991 to the Police Complaints Authority for determination.
3. Direct the Police Complaints Authority to exercise its powers on external review on the basis that there had been a confirmation on Internal Review of a deemed determination to refuse access to the documents to which the Appellant’s freedom of information application relates.
The application will be made pursuant to Section 42F(c) of the District Court Act 1991 (SA) and Rule VI-9(g) of the District Court Administrative Appeals Rules.
The argument in respect of the interlocutory application proceeded on 16 September 2008.
Ms Charlesworth, counsel for the respondent, conceded that the respondent was bound by the orders of 20 March 2008, and said that the respondent did not now seek any order inconsistent with those orders.
Ms Charlesworth argued that the appellant’s appeal is an appeal against the determination of the PCA, pursuant to s 40 of the FOI Act. However, Ms Charlesworth said, the decision by the PCA was not a determination to confirm the determination made on internal review, and nor was it a deemed determination. There is no provision of the Act which deems the PCA to have made a decision on external review if no decision is made after the lapse of a set period of time. The PCA’s decision was to decline jurisdiction to determine the matter, on the basis that the clock had stopped whilst the requested fee remained unpaid. Ms Charlesworth argued that, under s 42F of the District Court Act 1991, the Court’s powers do not extend to substituting a decision of that kind with a decision to grant access to documents. The District Court Act 1991 provides, in s 42F:
The Court may, on an appeal –
(a)affirm the decision appealed against;
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Ms Charlesworth submitted, in the alternative, that if the Court does have power to substitute a decision that access be granted to the documents for the decision of the PCA, it should not do so, as such an order, in all of the circumstances, should not be viewed as “appropriate” within the meaning of s 42F of the District Court Act 1991.
Mr Clarke argued that previous submissions by the respondent in this matter, and documents filed, the terms of which are inconsistent with the submissions now made by Ms Charlesworth, bind the respondent and prevent it from seeking to rely on the argument now advanced. I reject that submission. The respondent is not bound by minutes of order previously filed, which did not lead to the making of any orders. There is no overriding rule preventing a party from changing its position at appropriate times in appropriate circumstances in an administrative appeal in relation to issues which are not the subject of undertakings or orders. In considering all aspects of this matter, I bear in mind s 42E(2) of the District Court Act 1991, which says:
The Court, on an appeal –
(a)…
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Mr Clarke further argued that s 42F(b) should not be construed narrowly, and should be read with the District Court Administrative Appeal Rules, and in particular Rule VI-9, which says:
The Court when hearing an appeal:
(a)    shall have the power to allow any amendment upon such terms as it shall think proper;
(b)    may in its discretion receive further evidence upon any question of fact;
(c)    may draw inferences of fact;
(d)    may amend, set aside or discharge any order, decision or direction appealed from;
(e)    may make any order or give any decision which might have been made by the body or person appealed from and make such further or other order as the justice of the case may require;
(f)     may direct that the proceeding be remitted for further consideration with or without special direction;
(g)    may make such order as to costs as it deems fit;
(h)    may exercise its powers notwithstanding that:
(i)any party to the proceedings under appeal has not appealed;
(ii)any ground for allowing or dismissing the appeal or varying the decision is not stated in any notice of appeal;
(iii)that there has been no appeal from some part of the decision;
(i)     may reverse or vary any interlocutory order or direction which is incidental to or consequent upon the decision under appeal.
Mr Clarke argued that the decision of the PCA should be characterised as a determination that the requirement for the payment of a fee under s 17 was valid, and that the PCA’s decision was also an implicit confirmation of the deemed confirmation by the internal reviewer of the deemed determination by SAPOL that access to the documents is refused. Mr Clarke argued that the objects of the FOI Act, together with s 42F of the District Court Act 1991 and Rule VI-9 of the District Court Rules, confer power upon the Court to rescind that implicit confirmation and substitute a fresh decision in relation to the original application for access to documents.
The FOI Act, in s 40(2), provides:
A person (other than an agency)-
(a)who is aggrieved by a determination of any agency following internal review; or
(b)who is aggrieved by a determination that is not subject to internal review; or
(c)who is aggrieved by a determination made on a review under Division 1,
may appeal against the determination to the District Court.
A review by the PCA is “a review under Division 1”. The right of appeal is a right to appeal “against the determination”, that is, in this matter, the determination of the PCA. The decision of the PCA was communicated by letter to Mr Clarke dated 19 November 2007. The PCA considered the argument put to him in relation to the fee, and rejected it (this was the point later conceded by the respondent in these proceedings on a different factual basis from that which the PCA had before him). The PCA referred to the right of appeal in relation to the amount of the fee in s 53 of the FOI Act. The PCA then commented:
It follows that I do not consider that the agency has made, or is to be deemed to have made, a determination to refuse the access sought in the application.
There is nothing which I have jurisdiction to Externally Review.
The FOI Act says, in relation to an external review, in s 39(11):
On an application under this section, the relevant review authority may (based on the circumstances existing at the time of the review) confirm, vary or reverse the determination the subject of the review.
The PCA expressly declined to make a determination under s 39 of the FOI Act in relation to the question of whether access to the documents sought should be given. He declined jurisdiction. The PCA did, however, consider the argument in respect of the fee and confirm the internal review officer’s determination that it was valid. In my view, the PCA can fairly be regarded as having made a determination in relation to the fee, but not in relation to the substance of the application for access to documents.
The most appropriate and convenient course at this juncture is to treat this appeal as an appeal against the PCA’s determination in relation to the fee, recognising that he has declined jurisdiction in relation to the substance of the application for access to documents. I acknowledge that the FOI Act provides for a process for the review of fees under s 53, but there is no apparent reason why a determination in relation to a fee cannot be the subject of the reviews provided for in s 29 and s 39. Given the limited scope of the PCA’s determination, which forms the subject matter of the appeal, it would not now be appropriate for this Court to undertake an examination of the merits of the application for access to documents. Ms Charlesworth argued that the Court lacked jurisdiction under s 42F of the District Court Act 1991 to make the orders sought on appeal by the appellant. I consider that the deficiency in this appeal is more fundamental than that. The FOI Act provides in s 40(2)(c) for a person aggrieved by a determination made on an external review to have a right of appeal. The PCA has not expressly or impliedly made a determination in relation to the application for access to documents. He has expressly declined jurisdiction in relation to that issue.
The FOI Act provides, in s 40(4):
Where an application for review is made under Division 1, an appeal cannot be commenced until that application is decided and the commencement of an appeal to the District Court bars any right to apply for a review under Division 1.
The position now, in this matter, following the concession by the respondent that the request for the fee was not a valid request under s 17, is that there is in existence a deemed confirmation by the internal review officer of SAPOL’s deemed refusal of Mr Treglown’s application for access to documents. Mr Treglown has applied to the PCA for a review of that deemed confirmation of the deemed refusal by SAPOL, and the PCA has declined jurisdiction in relation to that application. The PCA declined jurisdiction on the basis of his opinion that a valid request for a fee had been made by SAPOL of the appellant. The parties have now agreed that the request for the fee was not valid. In these circumstances, it seems to me that the most appropriate course is to set aside the PCA’s decision that he does not have jurisdiction and remit the matter to the PCA in order that he may now review the deemed refusal by SAPOL in relation to the application for access to documents. I do not consider that it would be appropriate to treat the matter as an appeal from the deemed confirmation by the internal review officer of the deemed refusal of the application by SAPOL because that would ignore the application for external review, contrary to s 40(4). It was also not the basis of the appellant’s appeal.

I recognise that there are some unsatisfactory substantive and procedural aspects to this matter which remain unexamined. With the benefit of hindsight, different proceedings may have been more appropriate. The procedural missteps in the matter have, I think, largely resulted from the changing perception of certain factual aspects of the matter, which could not necessarily have been foreseen.
I bear in mind the remarks of Debelle J in Saraf & Anor v Johns [2008] SASC 166 at para 34:
The firm policy of the law is to put an end to litigation as speedily as justice allows. That policy is expressed in the maxim interest reipublicae ut sit finis litium: Co Litt 303B. That maxim might be translated to mean that it is in the best interests of the State that litigation should not be protracted. That policy is reflected in the philosophy of the rules of this court relating to joinder of causes of action that multiplicity of proceedings is to be avoided. In this respect, it is appropriate to refer the words of Lord Browne-Wilkinson speaking for the House of Lords in Delaney v Staples [1992] 1 AC 687 at 698, words that have so often been said in other similar occasions:
To be forced to bring two sets of proceedings for small sums of money in relation to one dismissal is wasteful of time and money. It brings the law into disrepute…
An appellant against a finding should not have to be put to the expense and possible delay of having to institute separate proceedings by way of judicial review to challenge a recommendation that is perceived to be invalid. That plainly brings the law into disrepute.
I also bear in mind the provisions of s 42F of the District Court Act 1991 and Rule VI-9 of the District Court Administrative Appeals Rules. Both parties have sought orders from this Court in this appeal.
I set aside the PCA’s decision that he does not have jurisdiction in relation to Mr Treglown’s application for external review in relation to the deemed refusal of his application for access to documents. I remit the matter to the PCA for the purpose of having the PCA review the deemed refusal of Mr Treglown’s application for access to documents, with the intention that the PCA will deal with the substantive merits of Mr Treglown’s application and make a decision pursuant to s 39(11).
I note that Ms Charlesworth said in Court that, were the matter to be remitted to the PCA, SAPOL would not seek to have the PCA refer the matter back to SAPOL.
I have some misgivings about dealing with the matter in this way, bearing in mind its history. I am concerned about the time which has now elapsed between the making of the application by Mr Treglown and this point in the process, and, bearing in mind the objects of the FOI Act, I recommend that the PCA deal with the matter as expeditiously as possible.