Waite v General Manager, Hornsby Shire Council (GD)

[2004] NSWADTAP 30

Appeal Panel - Internal

CITATION:	Waite v General Manager, Hornsby Shire Council (GD) [2004] NSWADTAP 30
PARTIES:	APPELLANT Peter Waite RESPONDENT General Manager, Hornsby Shire Council
FILE NUMBER:	049022
HEARING DATES:	20/07/2004
SUBMISSIONS CLOSED:	07/20/2004
DATE OF DECISION:	07/20/2004
DECISION UNDER APPEAL:	Waite v General Manager, Hornsby Shire Council [2004] NSWADT 93
BEFORE:	Hennessy N - Magistrate (Deputy President); Robinson MA - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	033181
DATE OF DECISION UNDER APPEAL:	05/18/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3 Mayhew v A [1999] NSWADTAP 1 Patsalis v Commissioner of Police, NSW Police [2004] NSWADTAP 20
REPRESENTATION:	APPELLANT In person RESPONDENT C Drury, solicitor
ORDERS:	The appeal against the Tribunal’s first order is dismissed. The appeal against the Tribunal’s second order is dismissed.

Introduction

1 This is an appeal against two orders made by the Tribunal in relation to a number of applications under the Freedom of Information Act 1989 (FOI Act) against the respondent. The Tribunal’s orders were as follows:

1.The Tribunal has no jurisdiction to hear and determine Mr Waite’s application for external review of FOI application No 310;

2.The General Manager’s decision to refuse Mr Waite access to the tape recording of the Council meeting of 12 March 2003 up to and including item 2 on the agenda is set aside. The General Manager is to provide Mr Waite with a copy of that tape within 28 days.

2 We deal firstly with the second order. The Tribunal gave Mr Waite access to the tape recording for which he applied under the Freedom of Information Act 1989. Although Mr Waite appealed against that order, he did not seek to change it. He merely submitted that the Tribunal’s reasons do not address all the relevant issues he raised. Mr Waite’s submission can be characterised as an appeal on the ground that the Tribunal provided inadequate reasons in support of its conclusion.

3 Mr Waite’s appeal against the second order is misconceived. There is no right of appeal against an order which is wholly in that party’s favour. A successful appeal allows the Appeal Panel to vary or set aside orders, not to comment on the decision while leaving the orders intact. (See s 114(2) and s 115(3) Administrative Decisions Tribunal Act 1997 (ADT Act). Consequently this ground of appeal fails.

First order – application out of time

4 The first order was that the Tribunal did not have jurisdiction to hear or determine the application because it had been lodged out of time. The FOI application was for a copy of the Morgan & Banks report into the performance of the General Manager of the respondent.

5 Mr Waite challenged this decision on the ground that the Tribunal was mistaken as to the date on which the respondent gave him notice of the internal review determination and as to the date on which he applied to the Tribunal for a review of the respondent’s decision. In particular, Mr Waite says that he was given the internal review determination by mail on or after 1 April 2003, not 28 March. He also claims that he applied to the Tribunal for a review of the decision, along with other applications for review against separate respondents, on 30 May 2003, not 8 July 2003.

6 The Tribunal found at [23] and [39] that there was no dispute that Mr Waite was given notice of the determination on or about 28 March 2003 or that he lodged an application with the Tribunal on 8 July 2003. The Tribunal also found that, contrary to Mr Waite’s submission, he had not lodged an application for review of the decision in relation to the Morgan & Banks report on 30 May 2003. The Tribunal concluded that since the relevant statutory provisions required an application to be lodged with the Tribunal within 60 days of being given notice of the decision, and Mr Waite had applied to the Tribunal 92 days after that date, the Tribunal had no jurisdiction to hear and determine the application. We note that the Tribunal concluded that there was no scope for a late application in FOI matters. In any case no written application was made to extend time as required by s 57(1) of the ADT Act.

Jurisdiction

7 The Appeal Panel has jurisdiction to hear this matter under s 113(1) of the ADT Act. Section 113(2) allows a party to appeal to an Appeal Panel of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision. Mr Waite applied to the Tribunal for the appeal to be extended to a review of the merits of the Tribunal's decision.

8 The respondent correctly submitted that generally, the Appeal Panel will not grant leave to extend an appeal to the merits unless there is an arguable question of law identified. (Patsalis v Commissioner of Police, NSW Police [2004] NSWADTAP 20 at [33]; Mayhew v A [1999] NSWADTAP 1; Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3; and Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 at [4]. We have adopted this approach in the present case.

Did the Tribunal make an error of law in relation to its first order?

9 As Glass JA said in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, there are three stages of the determinative process in which the judge could make a legal error: “determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found.” The main basis on which Mr Waite challenged the Tribunal’s decision was that it had erred in determining the primary facts, that is the relevant dates for calculating the 60 day time limit. There is an extremely limited scope for the Tribunal to make an error of law when finding the primary facts. In this case there was ample evidence for the Tribunal’s findings. A copy of the internal review determination was before the Tribunal as were copies of the applications to the Tribunal of 30 May and the application of 8 July together with other relevant correspondence. These documents as well as written and oral evidence, provided a sufficient basis for the Tribunal’s findings of facts.

10 Mr Waite’s second submission was that he was delayed in lodging his application on 30 May because the Minister for Local Government took 64 days to determine a separate application. Given that the Tribunal made a supportable finding of fact that the application was lodged on 8 July 2003, considerations of why Mr Waite did not lodge another application until 30 May are irrelevant.

11 At paragraph 60 of its decision, the Tribunal declined to exercise its discretion pursuant to s 58 of the FOI Act to report improper conduct by an agency official to the responsible Minister for the agency. It is our understanding that Mr Waite believed that the Tribunal should have reported the conduct of the General Manager to the Minister, but not that of any other officer or representative of the respondent. The Tribunal’s refusal to do so is not an appellable decision within the meaning of s 112(1)(b) of the ADT Act. Consequently we make no finding in relation to this ground of appeal.

12 In relation to the first order, Mr Waite has not identified an error of law in the Tribunal’s decision. Based on our reasoning set above we decline to extend the appeal to the merits of the decision. Consequently the appeal against the first order is dismissed. In relation to the second order, Mr Waite was wholly successful and appeal against the Tribunal’s reasoning, as distinct from the order, is misconceived.

Respondent’s submission

13 The respondent submitted that Mr Waite is misusing the appeal process to conduct a personal vendetta against the General Manager of the respondent, Mr Robert Ball. The respondent made an application for several parts of Mr Waite’s submissions, which were, in its view improper or irrelevant, to be struck out. In the respondent’s submission, the fact that Mr Waite is self represented should not allow him to make submissions that would ordinarily be considered “improper conduct” or irrelevant to the appeal, if made by a legal practitioner without supporting evidence.

14 We do not intend to strike out any of Mr Waite’s submissions. As the respondent rightly points out, Mr Waite is not legally represented and, unlike lawyers, has no professional duty to this Tribunal. Occasionally self-represented parties vigorously pursue agendas which are either unrelated or only marginally related to issues in dispute in the proceedings. We make no findings as to the content of Mr Waite’s submissions, but we are mindful that it would be an extremely time consuming exercise for this Tribunal to strike out every submission from an unrepresented party which was “improper” or “irrelevant.”

Orders

The appeal against the Tribunal’s first order is dismissed.

The appeal against the Tribunal’s second order is dismissed.