Miriani v Commissioner of Police, New South Wales Police [2008] NSWADT 2 (7 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Miriani v Commissioner of Police, New South Wales Police [2008] NSWADT 2


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Joe Miriani

RESPONDENT
Commissioner of Police, New South Wales Police



FILE NUMBERS:
073159

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
1 November 2007



DATE OF DECISION:
7 January 2008

BEFORE:
Wilson R - Judicial Member





LEGISLATION CITED:
Freedom of Information Act 1989

CASES CITED:
Neary v State Rail Authority [1999] NSWADT 107
University of NSW v McGuirk [2005] NSWADTAP 66
McGuirk v University of NSW [2007] NSWADT 258

TEXTS CITED:


APPLICATION:
access to documents - right of review

MATTER FOR DECISION:
Preliminary matter


REPRESENTATION:
APPLICANT
In person
RESPONDENT
J Brown, solicitor


ORDERS:
The proceedings are dismissed for want of jurisdiction.


Reasons for Decision:

REASONS FOR DECISION

1 The applicant has commenced these proceedings in the Tribunal seeking to review a decision by the respondent refusing access to documents. The respondent has not in fact reviewed the documents sought by the applicant, the decision being one that is deemed to have occurred by reason of the effluxion of time. The respondent has promptly raised for determination the question whether, in the circumstances, there has in truth been a deemed refusal.

2 The facts are in short compass and are common ground between the parties. On 28 March 2007 the applicant lodged an application under the Act for access to documents held by the respondent. The 21 day period allowed by the Act to the respondent to consider and determine this application commenced to run and expired on either 17 April 2007 or 18 April 2007, depending on whether the day of receipt is included in the calculation. Nothing turns on this difference.

3 On 17 April 2007 the respondent decided to request the payment of an advance deposit by the applicant, a step permitted by the legislation. On that day the respondent prepared a notice to this effect addressed to the applicant. This notice was mailed that same day by registered post. The applicant in fact received this notice on 20 April 2007. No issue is raised by the parties as to the form or sufficiency of this notice.

4 By letter dated 19 April 2007 the applicant requested an internal review of what was said to be a deemed refusal of his initial request. The respondent has not considered the application for access on internal review as it is of the view that it was not required to do so. The respondent advised this view to the applicant who then commenced these proceedings in the Tribunal after the expiry of the relevant time period required by the Act. These matters are common ground.

5 Section 24 of the Act required the respondent to determine the initial application within 21 days. If the respondent has not in fact done this within the period required, the Act entitles the applicant to seek internal review. Whether the respondent has complied with this statutory time period requires consideration of s.21 of the Act.

6 Section 21 permits a respondent, at any time after an initial application is made, to request an applicant to pay an advance deposit. This section then further provides for two different scenarios that could follow the making of such a request. The first is that, if the advance deposit has been properly requested but had not been paid, the respondent may decline to proceed with the initial application. This scenario is not involved here.

7 The second, is that the period of time that passes between the making of the request and the making of the requested payment is not to be taken into account in calculating the 21 day period for which s.24 provides (s.21(6)). The effect of this provision is that if a respondent makes a request for an advance payment before the Act gives rise to a deemed decision pursuant to s.24(2), then time will cease to run until the requested payment has been made. It is clear that a request for payment made after the expiry of the 21 day period would not have this consequence, and the parties do not argue otherwise.

8 Consequently, the issue for determination is whether the respondent’s request for payment of an advance deposit was made on 17 April 2007 (the date the formal request was engrossed and posted) or on 20 April 2007 (the date the notice was in fact received by the applicant). If the former, the 21 day period ceased to run, if the latter, the Act has given rise to a deemed refusal, the request not having been made in time. The parties agree that this is the question in issue and is the only point that requires determination at this stage. The applicant argues that the request was made when he received it; the respondent argues that it was made when the letter was engrossed and posted.

9 In determining this question the Tribunal has had regard to the formal documents filed, the statement of evidence by Senior Sergeant Maddox and the submissions filed by the parties. The parties were content to have the question determined on these materials alone and without a hearing to address the written submissions. The written submissions of both parties ably address the question under consideration.

10 As the submissions by the respondent note, there is no authority, either binding or persuasive, in point although three decisions were cited which are of assistance (Neary v State Rail authority [1999] NSWADT 107; University of NSW v McGuirk [2005] NSWADTAP 66; and McGuirk v University of NSW [2007] NSWADT 258). The construction question is therefore free of authority. Generally, the relevant parts of the provisions in question provide mechanisms whereby the substantive provisions of the Act are put into play. As such they should have as much clarity as possible so that persons pursuing the provisions of the Act will readily, and with certainty, know what they are required to do from time to time as an application progresses. A pragmatic resolution of this issue is therefore required.

11 The expression "making a request" (of another) could well carry with it the idea, on the assumption that the request is made to someone to do something, that the request is communicated to that other person: therefore it would not be out of place to conceptualise the making of a request as including the communication of the request to the person who is to carry out the act. Indeed this would be the way that many people would understand the words in ordinary speech. Section 21 confers a power to "request the applicant" to pay an advance deposit so that these words could easily be construed in this way. Such a construction has pragmatic support: an applicant clearly has a need to know whether or not the time has come to make an application for internal review and he can only determine this if he has received a determination at first instance or 21 days have in fact elapsed since the initial application was lodged with the respondent (s.17(f) and s.18(3)). To determine this latter aspect an applicant would need to know whether the respondent has requested the payment of an advance deposit.

12 However, it is equally commonplace in ordinary speech to say that a request has in fact been made even if it has not yet reached the hands of the intended recipient. This distinguishes between the making of a request and its receipt. This distinction is quite apposite where, for example, a request is made by post. In this context one would not say that the request was not made until it was received. What makes this distinction apposite is the necessary delay between the posting and the receipt of the letter of request.

13 A respondent has a need to know whether it should accept that there has been in fact a deemed refusal (and hence should entertain an application for internal review on this basis). This will depend upon whether the 21 day period has expired or has been suspended whilst awaiting payment of an advance deposit. The respondent also needs to know whether it may properly invoke the provisions of s.22. Consequently, there are pragmatic considerations which favour the respondent’s construction of the legislation and there are those which favour the applicant’s argument. However, during the 21 days after the applicant has lodged an application, it is the respondent who is the moving party and must take the next step. At this stage it could be said that the respondent has the greater need to know where it precisely stands in relation to the powers that are conferred upon it by the Act.

14 There are three reasons why the respondent’s construction of the act could be preferred. Firstly, s.21(4) requires that the "request for an advance deposit" shall be accompanied by a notice setting out the basis of how the advance deposit is calculated. When this sub-section speaks of a "request for an advance deposit" it is clearly referring to the engrossed document wherein the respondent has set out the actual request for payment. This suggests that the section as a whole has this particular document in mind as its subject matter. However, this is not decisive as s.21(6) refers to the "making of the request". It is this particular expression that must be construed, and not just the word "request".

15 The second reason is that when the Act bases its operation on the fact that an event has been completed, it expressly says so: see for example s.17(f) and s.24(2) which provide that the 21 day period shall run from the time that the application is received by the respondent, and s.34(34(2)(e)(i) which provides that the 28 day period there specified shall run from the date when the applicant was given notice of the initial determination. Section 21(6) does not contain words of like import. This omission strongly suggests that the words "making of a request" in s.21(6) refer to the time when the respondent’s letter to the applicant requesting an advance deposit is engrossed and posted, rather than to the time when an applicant actually receives that document.

16 The third reason lies in the practical application of the Act. When a respondent receives a request for access to documents that it holds it has 21 days within which to make a determination at first instance. The purpose of s.21(6) is to suspend the running of time in which a determination must be made. Therefore the most direct sphere of operation for s.216) is to condition the respondent’s duty to reach a determination. Consequently, it is preferable that the section be construed so as to provide as much certainty to the respondent as possible. This is a procedural mechanism and this construction is not antagonistic to the objects of the Act to make documents readily accessible to those who request them.

17 The Tribunal therefore holds that the correct construction of s.21(6) of the Act is that the words "making of a request" refer to the time when the respondent engrossed and posted the letter requesting payment of an advance deposit, namely 17 April 2007, and that the request was in fact made when the respondent accomplished these two steps.

18 Consequently, the applicant was not entitled to request internal review of the decision as there has been no deemed refusal. As no internal review has been held this Tribunal has no jurisdiction to entertain these proceedings, absent some other basis. The applicant does not assert that there is an alternative basis. It is clearly unfortunate that these events have come to pass in this way and that time will be lost by the parties in processing the application, but the Tribunal has no latitude that it can exercise when jurisdiction is absent. The proceedings are therefore dismissed for want of jurisdiction.