Wilmshurst v Vice Chancellor, Macquarie University

[2002] NSWADT 196

CITATION:	Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196
DIVISION:	General Division
PARTIES:	APPLICANT Anthony Peter Wilmshurst RESPONDENT Vice Chancellor, Macquarie University
FILE NUMBER:	013314
HEARING DATES:	08/05/02
SUBMISSIONS CLOSED:	06/07/2002
DATE OF DECISION:	10/04/2002
BEFORE:	Britton A - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Black v General Manager, Bathurst City Council [2001] NSWADT 139 Cheung v The Administrative Decisions Tribunal of NSW [2000] NSWSC 1062 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
REPRESENTATION:	APPLICANT In person RESPONDENT S Rares SC & T Catanzariti, barristers
ORDERS:	1 The Tribunal has jurisdiction to entertain his application

1 This is an application brought under the Freedom of Information Act 1989 (“the Act”) for review of a decision of the Vice-Chancellor of Macquarie University. The one issue to be decided is whether the Tribunal has jurisdiction to entertain the application, given as asserted by the respondent, it was brought out of time. The respondent submits that the Tribunal has no jurisdiction under the Act; the applicant, Mr Wilmshurst, maintains a contrary view.

Background

2 The history of this matter may be briefly stated. The applicant, Mr Wilmshurst, is an academic employed at Macquarie University (“the University”). It appears that in the 1990s a conflict arose between Mr Wilmshurst and the university. It is not necessary here to consider the details or merits of that dispute.

3 On 14 June 2001, the University received a letter dated 13 June 2001 from the Applicant making an application under s 17 of the Act for a number of documents believed by him to be held with the University’s records. At this stage it is unnecessary to describe the documents or the categories of documents sought. The University determined that access to the documents would not be provided to Mr Wilmshurst.

4 On or about 25 July 2001, the University received a letter dated 18 July 2001 from the Applicant making an application for an internal review under Section 34 of the Act on the basis that under Section 24(2) of the Act, the University was taken to have determined the Application by refusing access to the documents to which it relates. Pursuant to Section 34(6) of the Act, the University was deemed to have made a determination on or before 8 August 2001 refusing access to the documents to which the Application relates.

5 On 19 October 2001, a period of 71 days after the deemed rejection of the application following internal review, the Applicant made a complaint to the Ombudsman and sought an investigation into the University's handling of the application pursuant to s 52 of the Act. On 24 October the Ombudsman informed the Applicant of his decision to refuse to investigate the conduct complained of.

6 On 20 December 2001, the Applicant applied to the Administrative Decisions Tribunal (“the Tribunal”) for a review of the University's determination refusing access to the documents to which the application relates.

7 On 15 February 2002, the University responded to Mr Wilmshurst’s request for internal review of its original determination.

Relevant legislation

8 The Act provides various means of redress for persons aggrieved by determinations made against their applications under the Act. Statutory timetables for various actions on the parts of applicants and respondents are laid down.

9 Once an application has been rejected by the initial decision-maker the applicant may apply, pursuant to s 34 for an internal review of the original determination. The application for such an internal review must be lodged within 28 days after the determination is notified to the applicant or within such further time as may be allowed by the principal officer of the agency concerned: s 34(2)(e).

10 Section 34(6) provides that an agency which fails to determine an application for internal review within 14 days is deemed to have made a determination refusing access to the information sought in the original application. If an internal review results in a determination against an applicant, he or she may complain to the Ombudsman, pursuant to s 52 of the Act, seeking to have the Ombudsman investigate the decision to refuse access to the information sought. The Ombudsman has a discretion as to whether the complaint will be investigated. If the Ombudsman refuses to investigate the complaint, s 54 of the Act supplies an avenue for further review of the agency’s determination by the Tribunal.

11 Section 54 provides:

A review application is to be made:

(a) except as provided by paragraph (b)—within 60 days after notice of the determination to which it relates is given to the access applicant, or

(b) if a complaint is made to the Ombudsman in relation to the determination—within that period of 60 days and:

(i) the Ombudsman refuses to investigate the conduct complained of or discontinues an investigation of that conduct within 60 days after the complainant is informed of that fact, or

(ii) the Ombudsman completes an investigation of the conduct complained of within 60 days after the results of the investigation are reported to the complainant.

12 The first thing to be observed is that s 54, in contrast with s 34(2) which enables the principal officer of the agency to extend time for lodging an application for internal review, does not appear on its face to allow for the exercise of any discretion to extend time for applications for external review by the Tribunal.

13 The respondent University submits that the application before the Tribunal is out of time under Section 54(b)(i) of the Act, as Mr Wilmshurst did not make a complaint to the Ombudsman in relation to the determination within 60 days of 8 August 2001 and that, therefore, the Tribunal does not have jurisdiction to hear this application.

14 Mr Wilmshurst, on the other hand, contends that this case is to be distinguished from those in Black v General Manager, Bathurst City Council [2001] NSWADT 139 and Cheung v The Administrative Decisions Tribunal of NSW [2000] NSWSC 1062.

15 In those cases, it was held that this Tribunal does not have power to extend the time for applications where the statute under which the application is brought imposes specific time limits within which applications must be made. To the extent of the inconsistency between the general provision in s 44 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) and the specific provision of s 54 of the Act in relation to time limits it is clear that the Act must prevail. The rule of statutory interpretation (“Generalia specialibus non derogant”) that a later general provision (in this case s 44) does not impliedly repeal an earlier specific provision was applied in both Cheung and Black. In Black, Deputy President Hennessy said:

12 Section 42 of the Administrative Decisions Tribunal Act 1997 (“ADT Act”) requires that an application to the Tribunal be made in the manner and within the time prescribed by the Rules of the Tribunal, or prescribed by or under the enactment under which the application is made. Rule 14(3) provides for the application to be lodged within 28 days, but s 44 of the ADT Act allows the Tribunal to extend the time for make a late application. "Late application" is defined in s 44(3) to mean "an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made)."

13 Section 40 of the ADT states that the ADT Act has effect subject to any "contrary provision" in another enactment (such as the FOI Act). In Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062, Dunford J interpreted this provision in the context of s 329 of the Local Government Act 1993. His Honour reasoned (at [10] of the decision) that while s 44 of the ADT Act allows for an extension of time, s 329 of the Local Government Act does not so that the two provisions are inconsistent. In these circumstances the ADT Act which allows for an extension of time must be read as being subject to the Local Government Act which does not allow for an extension.

The same reasoning is applicable to s 54 of the FOI Act.

16 Mr Wilmshurst seeks to distinguish Cheung and Black on their own facts by arguing that in each of those cases there was what he called “an identifiable event” from which time could be reckoned for the purposes of s 54 of the Act. He contends that there was no “identifiable event” triggering the time limits set out in s 54 until 15 February 2002, when there was a response from the University in relation to the request for internal review. The thrust of his submissions is that his time for making an application for review by this Tribunal did not begin to run until 15 February 2002. He argues:

The time to lodge an application to the Ombudsman or the ADT runs from the date of the determination, even if it is outside the time limits set in the Act and despite any other action. The time limits imposed under s.54 The Act should only be seen to apply to those agencies which actually comply with the Act. They should not afford protection to agencies which deliberately choose to ignore the Act. Such an approach would achieve the objectives set out in s 5 of the Act.

17 A further argument he propounds is that there is nothing in the Act which specifies when notice of a deemed refusal is to be given or deemed to be given. As he notes, s 60(b) deems a notice sent by letter to have been received five days after post. Nothing is said of notices which are not sent or notices of deemed refusals. He argues that, given the objects of the Act, it would be an “absurd result” if time ran, and an applicant was denied an opportunity to argue his or her case, despite the fact that no notice had been given. He, of course, was not given the notice of the result of the internal review to which he was entitled under s 28 and s 34 until 15 February 2002, notwithstanding the fact that he had, by 15 February 2002, already complained to the Ombudsman and applied to the Tribunal for external review. It follows, if his argument is accepted, that he remained entitled until 15 February 2002 plus 60 days to complain to the Ombudsman and that the Tribunal therefore has jurisdiction to deal with this matter.

18 He also advances an argument that the deemed refusal “merely facilitates the manner in which parties may proceed under the legislative scheme and does not exclude other responses and actions. In other words, the Act is silent on reckoning of time in relation to deemed refusals.” He submits that “because there is no way of reckoning the date from which time is to be measured in the case of a deemed refusal, it must be the legislative purpose to allow both the Ombudsman and the ADT some discretion” in relation to the time limits imposed on applicants or complainants.

19 He goes on to argue that the Ombudsman accepted the complaint notwithstanding that it was out of time and that the Ombudsman had the discretion to do so. He did not say, however, on what basis the Ombudsman had such power. He goes on to submit that whereas in Black and Cheung the Tribunal and the Supreme Court were dealing, respectively, with inconsistent statutory provisions, here there is no inconsistency between ss 55 and 57 of the ADT Act, which give the Tribunal a discretion to accept late applications for review upon a reasonable explanation being given.

20 With respect this point appears to be misconceived. It is clear from Black and Cheung that there will be an irreconcilable difference between the ADT Act and the Act where an application is brought out of time, and that the conflict will be resolved in favour of the Act. There can be no harmonisation of the inconsistent general and specific provisions. (See also David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 and Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1). If this application has been brought out of time, the Tribunal has no jurisdiction to exercise.

21 The real question that Mr Wilmshurst’s submissions raise is whether his application was, in fact, brought out of time.

22 Mr Wilmshurst applied for an internal review of the University’s original determination. Pursuant to s 34(6) of the Act, on 8 August 2001, the University was deemed to have made a decision refusing him access to the documents he sought. As far as I am aware, the University never sought an extension of time to conclude the internal review. Accordingly, whether it was an oversight or a conscious decision on the part of an administrator at the University, once it had failed to meet its 14-day deadline for the internal review, the matter was taken out of its hands. Its decision was made for it by statute. This entitled, but did not oblige, Mr Wilmshurst to take the next step, namely to seek external review by the Ombudsman or the Tribunal.

23 Of course, Mr Wilmshurst did not receive the notification he was entitled to once the internal review was summarily concluded in this fashion. As far as one can make out, the University did not even notice that it was obliged to undertake an internal review for several months. Why it lurched into action in February 2002, more than six months after its deadline had passed is difficult to say, because a purported determination at that stage was a nullity. The decision had been made on 8 August 2001. In any event, it was not only a waste of time by then, it was, despite Mr Wilmshurst’s arguments to the contrary in his submissions, a legal irrelevancy insofar as this application is concerned.

24 Counsel for the University, Mr Rares SC, submits that once the University missed its deadline, Mr Wilmshurst knew or was on constructive notice that a deemed determination had been made refusing him access to the documents he had applied to see.

25 The legislative intention behind s 34(6) is obvious. Government agencies are not enabled to frustrate the objects of the Act by delaying or refusing or forgetting to act. Section 34(6) is designed to ensure that internal reviews are carried out expeditiously. If an internal review is carried out within 14 days as provided for, it would frustrate the intention of the provision if an agency was entitled then to delay notifying the applicant of its determination for an unreasonable period. It is implicit in s 34(6) that the intention of Parliament was that not only should internal reviews be conducted speedily but that notice of the determination be given to the applicant within a reasonable but short time afterwards.

26 The sanction against agencies if they fail to meet the 14-day deadline for internal reviews is that they suffer the embarrassment of entitling an applicant to make an immediate application for external review. It seems to me that Mr Wilmshurst in effect argues that an applicant can either act on the constructive notice he or she receives by dint of the failure of the agency to meet the deadline or may sit back waiting upon the agency before any further action is required on his or her part. In my view, however, the legislation is not that flexible.

27 While s 34(6) is obviously a beneficial or protective provision, designed to circumvent bureaucratic obstructionism or negligence, there are limits to the extent to which it can be interpreted in favour of a tardy applicant. Sixty days is an unusually generous appeal period in any event. The Tribunal has no power to extend the time of appeal whether a reasonable explanation is offered or not.

28 It would seem to me to be unfair, however, to expect that Mr Wilmshurst knew or was on constructive notice of the rejection of his application on 8 August. If the University had complied with s 34(6), and notice had been sent that day by post, Mr Wilmshurst would have had until 13 August plus 60 days to apply to the Ombudsman.

29 Taking into account the realities of modern bureaucracies it would be utopian in the extreme to expect a government agency of any size, whose main administrative efforts are directed to achieving its core objectives and tasks, to expect that internal reviews would receive inordinately high priority. That they did not in the case of the University is apparent from the fact that an answer was not provided in writing until six months after the deadline had passed. One assumes that most government agencies do better than that but it would be wrong to assume that notices of determination are, as a matter of course, sent out by the end of the 14-day period allowed for internal review. Applying one’s common sense and experience, it would be reasonable to expect that many agencies allow themselves the 14-day period and a further reasonable time to send out the requisite notices.

30 The Act is silent on the time which will be allowed to agencies to send their notices. It would follow from general principles of law that the time allowed would, if not specifically regulated, be a reasonable one. What is reasonable will depend on circumstances and may vary from case to case.

31 Mr Wilmshurst is obviously an intelligent and educated applicant. That is one of the circumstances to be taken into account in this instance. It appears that he is very familiar with the legislation. That is another circumstance to be taken into account. What might be regarded as a reasonable time to allow for constructive notice would probably be a lesser period in his case than in, for example, the case of a poorly-educated migrant for whom English is not his or her first language. I have already alluded to the realities of modern administration, which are a further factor to be taken into account. It is also necessary to take into account the fact that the legislation is beneficial in intent and the purpose of s 34(6) is to advantage rather than disadvantage applicants under the Act.

32 Time started to run for Mr Wilmshurst once he received constructive notice of the deemed refusal of his application for access to the documents which took place by 8 August. I am not to be construed as seeking to establish a general principle or rule of law or statutory construction when I reach the following conclusions. In this case I would allow a period of 14 days for constructive notice plus the five days Mr Wilmshurst would have been allowed for a postal notification. In short, I would allow 19 days plus the 60-day appeal period to him.

33 In construing the legislation in this fashion I see no conflict between the principles established in general law and in relation to the Act in Black and Cheung, but quite the reverse. Having allowed Mr Wilmshurst a 79-day period within which to bring his complaint to the Ombudsman it was for him to bring himself within that period. There is no discretion for the Tribunal to exercise concerning a tardy application. In my opinion, he met the deadline with eight days to spare.

Law reform

34 This case demonstrates, however, the need for amendment of the Act or its regulations. It seems to me that if, as is obviously the Parliament’s intent, there are to be mandatory time limits which are not open to extension the Tribunal, these must be specified for those cases where, for whatever reason, agencies fail to comply with their deadlines. It would also follow that applicants need to be given comprehensive and comprehensible information as to their rights and obligations under the system of internal and external review.

35 This should include clear timetables and checklists for action. For example, an applicant for an internal review ought be given information in writing that if he or she does not receive notification of the result of the internal review within a certain period after lodgment of the application for internal review, he or she may complain to the Ombudsman within a further 60 days. Such a system would do much to dispel the fog of uncertainty which has clouded this particular case and fairly balance the individual applicant’s legitimate expectations with the public interest.

Orders and Directions

The Tribunal has jurisdiction to deal with the substantive application.

Matter to be set down for hearing at a date to be fixed by the Registrar