Black v General Manager, Bathurst City Council [2001] NSWADT 139 (20 August 2001)

Last Updated: 3 September 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Black -v- General Manager, Bathurst City Council [2001] NSWADT 139

PARTIES: APPLICANT

Sam Black

RESPONDENT

General Manager, Bathurst City Council

FILE NUMBERS: 013116

HEARING DATES: 18/07/01

SUBMISSIONS CLOSED: 18/07/2001

DECISION DATE: 20/08/2001

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Freedom of Information Act 1989

Local Government Act 1993

CASES CITED: Cheung -v- Administrative Decisions Tribunal [2000] NSWSC 1062

APPLICATION: Jurisdiction

Late application to the Tribunal

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

J Clague, agent

ORDERS: The application is dismissed.

Reasons for Decision:

Introduction

1 The preliminary issue to be resolved is whether Mr Black's application to the Tribunal has been lodged within time and if not, whether the Tribunal has any power to extend the time for lodging such an application. The application was lodged more than 60 days after the Ombudsman informed him that he did not intend to investigate the matter. The Tribunal has concluded that it was not lodged within time and that there is no power to extend that time.

2 There is also an issue as to whether Mr Black can lodge an application with the Tribunal given that more than 60 days elapsed between the date of the internal review and the referral to the Ombudsman. That question is not addressed in these reasons given the conclusion set out above.

Relevant facts

3 On 28 April 1999 the Mr Black applied to the Bathurst City Council under the Freedom of Information Act 1989 (FOI Act) for access to a letter of complaint which related to an ornamental windmill on Mr Black's property. On 7 June 1999 the Council made a determination not to provide Mr Black with access to the letter.

4 Mr Black request an internal review of the decision on 12 July 1999. The internal review decision, made on 28 July 1999, affirmed the original decision not to provide access to the letter.

5 Mr Black complained to the Ombudsman on 26 October 1999. He wrote back on 9 February 2001 concluding that it was reasonable for the Council to consider the identify of the author of the complaint about the windmill to be exempt from disclosure under the FOI Act.

6 The final paragraph of the Ombudsman's letter to Mr Black, dated 9 February 2001, stated, in part, that:

Section 54(b)(i) of the FOI Act requires a review application to the Tribunal to be made within 60 days after the complainant is informed of the fact that the Ombudsman has refused to investigate the complaint. For the purposes of s 54(b)(i) my decision to take not further action on your complaint is a decision to refuse to investigate your complaint. It would therefore be advisable that any review application in relation to Council's determination of your FOI applications be made within 60 days of the date of this letter.

7 Mr Black told me in the case conference that he wrote back to the Ombudsman on 21 February 2001 and the Ombudsman replied on 15 March 2001. He wrote again on 19 March asking how he should contact the Tribunal. The Ombudsman wrote back telling him how to contact the Tribunal on 24 April 2001. Mr Black lodged his application with the Tribunal on 10 May 2001. Mr Black says that he misunderstood the Ombudsman's letter and thought he had to ask the Ombudsman, not the Tribunal, to review the matter within 60 days. By the time correspondence went back and forward between him and the Ombudsman, more than 60 days had passed.

Respondent's submission

8 Council submits that the application is out of time. In their view, more than 60 days has elapsed between the Ombudsman's refusal to investigate the complaint (9 February 2001) and the date the new application was made to the Tribunal (end of May, 2001).

Applicant's submission

9 Mr Black submitted that he acted in a timely manner during every step of the process. He set out a chronology of events in support of this claim. He maintains that there has been no delay of 60 days on his part at any stage. He says that the Ombudsman and the Council have delayed matters, but he has always been prompt in his replies to correspondence. Mr Black feels very strongly that he is being unfairly dealt with by the Council.

Relevant legislation

10 Section 54 of the FOI Act sets out the time limits within which a person must lodge an application with the Tribunal. It states that:

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.

11 The effect of these provisions is that Mr Black's application to the Tribunal needed to be made within 60 days of the date of the Ombudsman's letter (9 February 2001), that is, by 12 April 2001. The application was not filed until 4 May 2001.

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.

14 The same reasoning is applicable to s 54 of the FOI Act. I acknowledge that Mr Black has always acted in a timely fashion and it is unfortunate that he should be penalised because he misunderstood the Ombudsman's letter. However, I must apply the legal requirements in the FOI Act and the ADT Act which give me no option but to find that the application has been lodged out of time.

Order

15 The application is dismissed.