LZ v Office of the Protective Commissioner [2008] NSWADT 22 (15 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
LZ v Office of the Protective Commissioner [2008] NSWADT 22


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
LZ

RESPONDENT
Office of the Protective Commissioner



FILE NUMBERS:
073007

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
16 November 2007



DATE OF DECISION:
15 January 2008

BEFORE:
Pearson L - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED:
Black v General Manager, Bathurst City Council [2001] NSWADT 239
Dezfouli v Justice Health [2007] NSWADT 262
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Hutchinson v Roads & Traffic Authority [2004] NSWADT 48
Johnson v Johnson [2000] HCA 48
Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 McGuirk v University of New South Wales [2007] NSWADT 258Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Parsonage v Office of the Board of Studies [2007] NSWADT 10
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355Raethel v Department of Education and Training [1999] NSWADT 108Re Ward and Secretary, Department of Industry and Commerce (1983) 5 ALN 235
Taylor v RSPCA [1999] NSWADT 23
Tringas v Quach (RLD) [2007] NSWADTAP 35
Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196

TEXTS CITED:


APPLICATION:
Jurisdiction

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
APPLICANT
In person
RESPONDENT
C Phang, solicitor


ORDERS:
The Tribunal has no jurisdiction to hear and determine the application for review.


Reasons for Decision:

REASONS FOR DECISION

1 On 11 January 2007 the applicant applied to the Tribunal for review. The application did not identify a particular decision or decisions of the respondent, as requested by part 6 of the Tribunal’s Application for Review of a Decision form, and stated in relation to the decision "received but stolen". The applicant provided a detailed written statement of her reasons for application, and a copy of a letter dated 31 October 2006 from the NSW Ombudsman in relation to review of a number of matters under the Freedom of Information Act 1989 (the FOI Act). That letter referred to a complaint received by the NSW Ombudsman on 4 April 2006, in which the applicant complained "that the OPC has failed to release a number of documents that you have requested under the FOI Act over the past three years."

2 The applicant’s written statement indicates that the applicant is concerned about decisions made by the respondent in response to a number of applications for access to documents under the FOI Act. On receiving notification of the lodging of the application for review, the respondent filed copies of all requests made by the applicant for access to documents, and the respondent’s responses. The respondent identified 18 different applications, made between 28 January 2004 and 10 August 2006.

3 At a planning meeting held on 20 February 2007 the issue of whether the Tribunal has jurisdiction to review these matters was raised. On 8 March 2007 the respondent filed written submissions addressing the issue of whether the Tribunal has power to review a determination where the application for review is lodged out of time, or where no internal review has been requested. At a direction hearing on 13 March 2007 a hearing on the jurisdictional issue was scheduled for 24 April 2007, and directions were made for filing and serving written submissions by the applicant, and submissions in response by the respondent.

4 On 11 April 2007 the applicant wrote to the Tribunal advising that she had been unwell, and had a dental appointment scheduled for 24 April 2007. The hearing was vacated, and rescheduled for 28 June 2007. On 18 June 2007 the applicant wrote to the Tribunal requesting a further adjournment. The applicant was advised by letter dated 19 June 2007 to seek the consent of the respondent and to advise suitable dates. It appears from later correspondence from the applicant that she had attempted to contact the respondent’s representative, but was unsuccessful. The applicant did not appear on 28 June 2007, and an attempt to contact her by telephone was unsuccessful.

5 On that occasion, having regard to the limited nature of the issues raised in the respondent’s submissions, and what appeared to be difficulty in scheduling a hearing date convenient to the applicant, I decided that the issues for determination could be adequately determined in the absence of the parties: section 76 Administrative Decisions Tribunal Act 1997 (the ADT Act). By letter dated 29 June 2007 the applicant was invited to provide written submissions relating to the jurisdictional issue by 27 July 2007, and the respondent was to provide any submissions in reply by 10 August 2007.

6 On 10 July 2007 the applicant wrote to the Tribunal requesting approval to serve a summons on "ZX", a neighbour of the applicant, to produce documents alleged by the applicant to have been stolen from her premises. The applicant also requested approval to serve a summons requiring the respondent to provide the direct telephone and fax numbers of the respondent’s representative; copies of agreements made concerning release of documents and correspondence to the applicant; and correspondence between ZX and the respondent. On 17 July 2007 the applicant was advised by letter that approval had not been given to issue the summons at this stage, however if it is determined that there is jurisdiction to consider the application for review, further consideration would be given to the issue of a summons.

7 On 25 July 2007 the applicant wrote to the Tribunal, requesting a stay of proceedings. The basis for that application appeared to be that her neighbour, ZX, had again illegally entered her premises and stolen recent correspondence, and that she could not file submissions without being able to refer to relevant documents. That request was refused, and the applicant was advised by letter dated 27 July 2007.

8 On 9 August 2007 the applicant wrote requesting that I disqualify myself "due to perceived bias and procedural unfairness". A copy of that letter was sent to the respondent with a request for written submissions to be filed and served by 14 September 2007. The applicant was advised that she should file and serve any submissions in reply by 5 October 2007, and a hearing was scheduled for that date. The respondent provided written submissions on 10 September 2007. The applicant did not provide any written submissions.

9 The applicant and respondent made oral submissions at the hearing. Having considered the submissions of the parties, I declined to disqualify myself, and I provide my reasons for that decision below. At the conclusion of the hearing I directed that the applicant file and serve her written submissions on the jurisdictional issue by 2 November 2007, and the respondent file and serve any written submissions in reply by 16 November 2007, and that the decision would be made on the papers after that date. The applicant filed a 50 page written submission on 15 November 2007. The respondent did not file any submissions in reply.

Disqualification

Applicant’s submissions

10 The applicant made oral submissions in support of her request that I disqualify myself. For the most part, the submissions concerned the applicant’s dissatisfaction with the respondent, in particular its refusal to provide her with documents requested, from 2004. The applicant referred to an agreement made in 2004 that the respondent would provide documents, and stated that this had not happened. The respondent had provided some documents, but not all, and she has had to make continual requests. The applicant outlined her attempts to obtain an adjournment of the hearing of 28 June 2007, including her telephone contacts with various officers of the respondent. The applicant referred to the refusal of the request to issue a summons, stating that this had prevented her from obtaining documents from the respondent that she needs. The applicant stated that she needs the fax number of Ms Phang, as she is repeatedly being told that documents she has sent have not been received.

Respondent’s submissions

11 In written submissions filed on 10 September 2007 the respondent submitted that there is no basis for disqualification; that the applicant’s claims of perceived bias and procedural unfairness are misconceived and an abuse of process. The respondent submitted that the letter of 9 August 2007 did not set out any basis for the claims of perceived bias and procedural unfairness. The respondent outlined the procedural history of the matter, and submitted that I had assisted the applicant to progress her application. In oral submissions the respondent’s representative stated that the applicant had Ms Phang’s fax number, as it was included in her correspondence.

Consideration

12 The bias rule of procedural fairness, which includes both actual and apprehended bias, is designed to ensure the integrity of the decision-making process, and is a basis on which a tribunal member could be asked to disqualify themselves during the course of proceedings. Actual bias is present when a decision-maker’s mind is so closed to persuasion that argument against that view is ineffectual: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. In Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 Drummond J summarised the principles relating to actual bias at 133-134:

(a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.

(c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real.

(d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case.’

13 The test for disqualification for apprehended bias is as stated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, where Gleeson CJ, McHugh, Gummow and Hayne JJ said at [6]:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

14 The "fair-minded lay observer" is assumed to have some general understanding of the Tribunal’s powers and processes, and the nature of the issues in dispute: Johnson v Johnson [2000] HCA 48.

15 As I understand the applicant's position, her grievance relates to my decision to deal with the jurisdictional issue before considering the substance of her requests for access to documents held by the respondent; the circumstances of the hearing scheduled for 28 June 2007; and my declining to approve the issue of the summons.

16 In relation to the first issue, my position has been that if the Tribunal has no jurisdiction to deal with the application for review, I cannot proceed to determine the substance of what the applicant has characterised as the refusal of the respondent to provide her with documents as requested. The jurisdictional issue must be determined first. My decision not to approve the issue of the summons until the jurisdictional matter had been determined was made on the same basis. In relation to the hearing scheduled for 28 June 2007, I consider that having regard to the proceeding as a whole, the applicant has been provided with sufficient opportunity to provide submissions on the issues for determination, both in writing and orally. I do not consider that there is any indication of actual prejudgment, or that a fair-minded observer might reasonably form a view that I might not bring an impartial mind to the determination of the issues. It was for these reasons that I declined the applicant’s request that I disqualify myself.

Jurisdiction

17 The applications as identified by the respondent in the materials filed with the Tribunal in accordance with section 58 of the FOI Act, and a summary of the respondent's responses to those applications, are as follows:

1. 28 January 2004

(a) Application for access "to all documents pertaining to me"

(b) Response on 1 March 2004 advising that the file had been provided to the Supreme Court under subpoena and was available from that source.

2. 18 March 2004

(a) 10 page letter from applicant referring to the letter of 1 March 2004, detailing specific documents and records requested.

(b) Response dated 16 April 2004 advising the applicant that supervised access would be provided to files held by the respondent "regarding your affairs".

3. 25 April 2005

(a) Four-page document requesting access to itemised documents concerning the applicant's property.

(b) Response dated 8 June 2005 (file reference AD/05/0082) stating:

"In terms of the specific documents or information that you have sought, no information has been found concerning many of the points raised in your application. Copies of those documents that are available are attached for your reference."

4. 27 April 2005

(a) Letter referring to an FOI request made in 2004 "for the release of documents held by solicitor WH Parsons which was declined on the assertion of there being over 20 boxes of documents involved", and requesting "that you provide me with the remainder of the documents requested in that FOI application ..."

(b) Response dated 25 May 2005 noting that following a determination on 3 June 2004, the applicant had requested internal review. The determination was affirmed on 17 June 2004 and the applicant was notified and given reasons. This application was declined "as the decision not to provide you with copies of documents held by WH Parsons has already been subject to internal review under section 53 of the Administrative Decisions Tribunal Act and the decision affirmed."

5. 9 August 2005

(a) Letter requesting access to specified documents and records, including documents relating to proceedings in the Local Court, communications between the respondent and the applicant’s neighbours.

(b) Response dated 29 August 2005 (file reference AD/05/0160) providing copies of "almost 250 pages of documents"; advising the applicant to obtain transcripts of Local Court matters from the court; and in relation to that part of the request for copies of correspondence and files held by WH Parsons, repeating the response of 25 May 2005.

6. 18 September 2005

(a) Letter requesting copies of previous FOI applications and responses, and referring to application AD/05/0160 made on 9 August 2005 and pressing for the release of documents and records identified in that application.

(b) Response dated 5 October 2005 (file reference AD/05/183) providing copies of some documents; stating in response to some of the requests that no documents were held; claiming that other documents were exempt; and repeating the statement concerning documents held by WH Parsons.

7. 18 October 2005

(a) Letter referring to applications AD/05/0084, AD/05/0082, AD/05/0160 and AD/05/183, stating "I remain concerned that information provided to me under my freedom of Information applications is selective", and pressing for the release of documents as requested, and identified in 24 numbered paragraphs.

(b) Response dated 1 November 2005 (file reference AD/05/216) providing copies of certain correspondence and documents ("some 200 pages") and replying to each of the 24 paragraphs.

8. 23 October 2005

(a) Letter making "an urgent formal application" that the respondent obtain specified documents from the Supreme Court Prothonotary.

(b) Response dated 31 October 2005 (file reference AD/05/220) advising that the respondent had limited documents concerning the Supreme Court matter, providing copies of documents that were held, and advising the applicant as a party to the matter to contact the Supreme Court direct.

9. 12 November 2005

(a) No copy of the applicant's request was provided.

(b) Response dated 18 November 2005 (file reference AD/05244) responding to 20 points in a letter dated 12 November 2005, and concluding with a reference to the provision of 85 pages of documents.

10. 24 November 2005

(a) Letter referring to the application dated 12 November 2005 "and your release of documents under reference AD/05/244", and pressing for the release of specified documents.

(b) Response dated 20 December 2005 (file reference AF/05/255) responding to the 19 points raised in the applicant's letter.

11. 4 December 2005 (two applications)

(a) letter requesting the authority of the respondent "to inspect and photocopy" specific documents on a file held by the Supreme Court.

(i) Response dated 7 December 2005 (file reference AD/05/220) advising that the applicant can apply directly to the Supreme Court.

(b) letter requesting copies of communications by telephone, fax or letter between the applicant's neighbours, and specified police officers, and any officer of the respondent.

(ii) Response dated 7 December 2005 (file reference AD/05/216) providing copies of electronic file notes, email correspondence and letters.

12. 26 December 2005

(a) Letter referring to "my Freedom of Information applications, much of which I applied for in my letter of 9 August 2005 and repeated correspondence since, yet it still has not been released.", and responding to "your letter of 20 December 2005 re my further letter of 24 November 2005 of points 1-19".

(i) Response dated 19 January 2006 (file reference AF/05/255), referring to "your letter dated 26th December 2005... in reply to my letter to you dated 20th December 2005", addressing 19 numbered points. This letter concludes with the following:

"In response to your request for an internal review of my handling of your application and in accordance with section 34 of the Freedom of Information Act 1989 I have referred the conduct of the internal review to Mr Mark Orr, Deputy Protective Commissioner and Director Client Services".

(ii) Response dated 13 February 2006 (file reference AD/05/255) affirming the initial determinations. This letter advises the applicant of her right to appeal.

Included with this correspondence is a request dated 9 May 2006 for internal review "of my 29.3.06 FOI requesting previous information not supplied under the FOI Act", and a response dated 30 May 2006 referring to a request dated 9 May 2006 and containing an internal review determination. This letter advises the applicant of her right to seek review by the Tribunal.

13. 8 January 2006

(a) Letter requesting access to internal records, minutes and records, and communications, concerning proceedings involving the applicant.

(b) Response dated 20 January 2006 (file reference AF/06/11) providing copies of documents and advising that no other records had been located.

14. 30 May 2006

(a) Letter referring to letters dated 29 March 2006, and following discussion with Estate Manager on 4 May 2006, hand delivered on 10 May 2006; and requesting "as a matter of urgency a copy of the internal review pertaining to" the following:

Letter of 19 January 2006

Letter re [third party] FOI AD/05/260

Letter re review of [third party] application

Letter of 9 May 2006 requesting internal review of 29 March 2006.

(b) Response dated 6 June 2006 (file reference AF/05/255, AF/05/260) attaching copies of correspondence, and advising that the outcomes of internal reviews had been advised by letters dated 30 May 2006.

15. 5 June 2006

(a) Letter requesting copy of correspondence referred to in letter dated 30 May 2006 "as my premises were illegally entered and documents stolen".

(b) Response dated 8 June 2006 (file reference AF/05/255, AF/05/260) providing copies of documents.

16. 6 July 2006

(a) Letter requesting access to documents.

(b) Response dated 19 July 2006 (file reference AF/05/255) providing some documents, advising that other documents had already been provided, and advising that other documents had not been located.

17. 10 August 2006

(a) Letter referring to request made on 6 July 2006, and responding to response of 19 July 2006.

(b) Response dated 21 August 2006 (file reference AF/05/255) responding to points raised in letter of 10 August 2006.

18 In a letter dated 18 April 2006 to the respondent the NSW Ombudsman stated that the applicant had complained about the respondent's handling and determination of her applications made between 9 August 2005 and 26 December 2005, that is, items 5 to 12 in the above chronology. The letter to the applicant dated 31 October 2006 from the NSW Ombudsman states:

In your letter of complaint to this office you specifically request that the OPC release to you:

1.A copy of any file notes of telephone communication between Fay Parkinson and officers of the OPC that were handed up to Judge Barrett in relation to hearing 29/01.

2. Records of communication between the Crown Solicitors office and Catherine Phang of the OPC.

3. Documents held by Mr Dominic Wilson of Craddock Murray Neumann that relate to your civil matters including matter 13376/01 and 9105/03.

4. Copies of communication between your neighbours and the OPC.

5. Documents held by solicitors WH Parsons, requested in your FOI applications dated 18 October 2005 and 12 November 2005 that are set out in those letter as points 7(a-n).

6. The name of receptionist "Sussan T" and a copy of your hand delivered letter dated 22 September 2005.

7. A letter that you wrote to Ms Phang of the OPC on 27 November 2003.

19 The letter concluded that the respondent had provided the applicant with all of the documents that it had been able to locate and that fell within the scope of the requests, and that no further action would be taken on the complaint to the Ombudsman's office. The letter informed the applicant of her right of appeal to the Tribunal.

20 The applicant lodged an application for review on 11 January 2007. The issue is whether this application was lodged within the prescribed time. If the application was lodged late, and there is no power to extend the period of time for lodgement, the Tribunal has no jurisdiction to hear and determine the application for review.

Respondent's submissions

21 The respondent noted in written submissions that the applicant appeared in her application for review to be seeking a review of decisions to which access was denied to documents concerning communications with Fay Parkinson; access to documents held by WH Parsons; and access to files held by Craddock Murray Neumann. The respondent's submissions accordingly addressed items 4 - 10, and 12. The respondent submits that the Tribunal has no jurisdiction on the following grounds:

(i) applications 4, 12:

the application for review was lodged more than 60 days after the internal review determination

(ii) applications 5, 6, 7, 9, 10:

the applicant did not exercise her right to seek internal review, and the application to the Tribunal was lodged out of time.

22 The respondent submits that the applicant has not applied for an extension of time to apply for review to the Tribunal; that, even if there were power to extend the time, the Tribunal should not extend the time as there is no reasonable explanation for the delay in making the application. The respondent further submits that the Tribunal has no jurisdiction in relation to the decisions where the applicant has not sought internal review.

Applicant's submissions

23 As noted above the applicant has provided a 50 page written submission on the jurisdictional issue. Much of this submission details the applicant's objections to the way in which various legal proceedings have been conducted on her behalf. The submission itemises the applications made to the respondent, and its responses, from 9 August 2005 to 8 March 2007, consistent with the chronology and documents provided to the Tribunal by the respondent. The applicant describes her letters dated 18 September 2005, 18 October 2005, 12 November 2005, and 24 November 2005, as "follow up" letters to earlier letters. In her submissions the applicant identifies two formal requests for internal review, dated 29 March 2006 and 9 May 2006.

Consideration

24 The Tribunal’s jurisdiction to hear and determine this application is conferred by section 38 of the ADT Act and section 53 of the FOI Act. Section 38(1) of the ADT Act provides that the Tribunal has jurisdiction to review an administrative decision where an enactment, other than the ADT Act, provides that an application may be made to the Tribunal for review of a decision under that enactment. Such a decision is referred to in the ADT Act as a "reviewable decision": section 8 ADT Act. Section 53(1) of the FOI Act provides that a determination made by an agency or Minister under section 24 or 43 of the FOI Act is reviewable by the Tribunal. Section 43 concerns applications for amendment of records, and is not relevant in this matter. Section 24 of the FOI Act is the provision requiring an agency to determine whether or not access is to be given to a document.

25 Section 34 of the FOI Act makes provision for internal review of a determination under section 24:

34. Internal review

(1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination.

(2) An application for review of a determination:

(a) shall be in writing, and

(b) shall be accompanied by such application fee as the agency may determine, and

(c) shall be addressed to the principal officer of the agency, and

(d) shall specify an address in Australia to which notices under this Act should be sent, and

(e) shall be lodged at an office of the agency:

(i) if notice of the determination was given to the applicant--within 28 days after that notice was given, or

(ii) if no notice of the determination was given to the applicant--within 49 days after the application was received by the agency, or

(iii) in any case, within such further time as the principal officer of the agency may allow.

(3) A person is not entitled to a review of:

(a) a determination of an application made under this section, or

(b) a determination that has been made by the principal officer of an agency.

(4) An application under this section shall be dealt with in accordance with this Part as if it were an application under section 17.

(5) An application under this section shall not be dealt with by the person who dealt with the original application under section 17 or by a person who is subordinate to that person.

(6) An agency that fails to determine an application made under this section within 14 days after it is received by the agency shall, for the purposes of this Act, be taken to have made a determination under section 24 refusing access to the document to which the application relates.

(7) For the purposes of this section, a person is aggrieved by a determination:

(a) if the determination relates to an application made by the person under section 17 and is to the effect that:

(i) an agency refuses to give the applicant access to a document, or

(ii) access to a document is to be given to the applicant subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the applicant, or

(iv) access to a document is to be given to the applicant subject to a charge for dealing with the application, or for giving access to a document, that the applicant considers to be unreasonable, or

(v) a charge for dealing with the application is payable by the applicant, being a charge that the applicant considers to have been unreasonably incurred, or

(b) if the determination relates to an application made by some other person under section 17 in respect of a document to which one or more of the provisions of Division 2 applies and:

(i) an agency should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or

(ii) an agency should have, and has, taken such steps, but the determination is not in accordance with the views of the person, or

(c) if the determination relates to an application made by the person under section 17 and is a determination that was taken to have been made by virtue of section 24 (2) (which provides that an agency that fails to determine an application within 21 days after the application was received by the agency is taken to have determined the application by refusing access to the document to which it relates).

(8) Subsections (3) (b) and (5) do not apply to the internal review of a determination that was taken to have been made by virtue of section 24 (2).

26 Section 53 sets out provisions relating to an application to the Tribunal for review:

53. Right to make a review application

(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

(2) A review application may not be made:

(a) while the determination is subject to a right of review under section 34 or 47, or

(b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or

(c) while any relevant complaint is being investigated by the Ombudsman.

(3) For the purposes of this section, a person is aggrieved by a determination:

(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36--if the determination is to the effect that:

(i) an agency or Minister refuses to give the person access to a document, or

(ii) access to a document is to be given to the person subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or

(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or

(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or

(b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies--if:

(i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or

(ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or

(c) in the case of a determination that relates to an access application made by the person under section 40, 47 or 49 - the determination is to the effect that an agency or Minister refuses to amend the agency’s records or that Minister’s records, as the case may be, in accordance with the application,

and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections.

(4) In relation to decisions under this Act that are reviewable decisions under the Administrative Decisions Tribunal Act 1997:

(a) the procedures for internal reviews provided by this Act apply to the exclusion of section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997, and

(b) any reference in the Administrative Decisions Tribunal Act 1997 to an internal review of a reviewable decision under that Act is taken, in its application to a decision made under this Act, to be a reference to an internal review under this Act.

(5) The provisions of this Division apply to a review application to the exclusion of section 55 (1) (d), section 58 and Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

27 Section 54 of the FOI Act sets out the time limits:

54. Time within which review applications to be made

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.

28 A person dissatisfied with conduct of an agency in relation to a determination can complain to the NSW Ombudsman: section 52 FOI Act. The Ombudsman cannot investigate such a complaint if the applicant has a right to apply for internal review, or has had such a right but failed to exercise it, or while there are proceedings in the Tribunal for review of the determination: section 52(2) FOI Act.

29 The scheme for review of determinations of requests for access to documents under the FOI Act can be summarised in general terms as follows:

(a) a person dissatisfied with an agency’s determination under section 24 can apply for internal review, unless the original determination was made by the principal officer of the agency;

(b) such an application must be made within 28 days if notice of the determination was given by the agency, or within 49 days after the application was received by the agency if no notice of the determination is given;

(c) the agency may extend the time for making an application for internal review;

(d) an applicant dissatisfied with an agency’s determination of an internal review may either apply to the Tribunal for review, or complain to the Ombudsman;

(e) an application cannot be made to the Tribunal while any relevant complaint is being investigated by the Ombudsman;

(f) an application to the Tribunal for review must be made within 60 days after notice of the internal review determination is given to the applicant, or if the applicant has complained to the Ombudsman, within 60 days after the Ombudsman advises the results of the investigation.

30 Specific provisions apply where an agency fails to make a determination either in relation to an initial application, or to a request for internal review. Subject to provisions enabling an extension of time (which are not relevant here), an agency that fails to determine an original application within 21 days after the application is received by the agency is deemed to have determined the application by refusing access to the document to which it relates: section 24(2). If no notice of the determination in relation to an original application is given to the applicant (as would be the case if there is a deemed refusal), the time for application for internal review ends 49 days after the application was received by the agency: section 34(2)(e)(ii). An agency that fails to determine an internal review application within 14 days after it is received by the agency is deemed to have made a determination under section 24 refusing access to the document to which the application relates: section 34(6) FOI Act.

31 The first task is to identify from the correspondence between the applicant and respondent which of the 18 matters is an original request for access to documents, and which is a request for review, and to characterise the respondent's responses. This task does not involve any examination of the substance of the applicant's concerns about the respondent's responses to her requests for access. I have disregarded item 15, which is a request for further copies of documents previously provided, and in response to which copies were provided by the respondent.

32 The file referencing system used by the respondent to identify applications, and referred to by the applicant in her correspondence, is of some limited assistance. The letter addressed to the NSW Ombudsman dated 9 May 2006 refers to eight different OPC references, and notes in part:

Please note that multiple request from [the applicant] for copies of documents were dealt with in some cases under the same file numbers. Such multiple requests are included within those files.

33 Having regard to the terms of the requests made by the applicant, I am satisfied that 11 of the 18 items should be regarded as requests for access to documents, namely items 1 (28 January 2004), 3 (25 April 2005), 4 (27 April 2005), 5 (9 August 2005), 8 (23 October 2005), 8 (23 October 2005), 9 (12 November 2005), 11 (two items, dated 4 December 2005), 13 (8 January 2006), and 16 (6 July 2006).

34 None of the determinations made in relation to the matters listed in paragraph 17 above was made by the principal officer of the respondent. Accordingly, to the extent that any one or more of the responses was a determination made under section 24 of the FOI Act, the applicant was entitled to seek internal review under section 34 of the FOI Act.

35 The respondent’s responses to these requests could be read as determinations made under section 24 of the FOI Act, granting access to some documents and refusing to grant access to others. However, none of the letters to the applicant include advice as to her review rights, as required by section 28(2)(g) of the FOI Act. The FOI Act does not contain any express provision as to the consequences of a failure to comply with this requirement, and accordingly the matter must be considered in light of any implied legislative intention: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. The Tribunal has in previous matters noted the importance of compliance with section 28, in particular the requirement in section 28(2)(d) and (e) for an agency to give reasons for a decision to give access subject to deferral or to refuse access: Raethel v Department of Education and Training [1999] NSWADT 108; Taylor v RSPCA [1999] NSWADT 23. In Re Ward and Secretary, Department of Industry and Commerce (1983) 5 ALN 235 the Administrative Appeals Tribunal held that a failure to include appropriate information concerning appeal rights in a notice of determination meant that the applicant had not received notice of the decision, and that as a consequence there was a deemed decision to refuse access as requested. Provision of information concerning rights of review is as important a part of the scheme of freedom of information legislation as the provision of reasons for refusal of access. Applying the reasoning in Ward, I regard the respondent’s responses to these 11 items as not being effective notices of determination, and accordingly in each case there was a deemed refusal to provide access to documents as requested.

36 Items 2, 6, 7, 10, 14 and 17 can be read as requests for review. Item 2 (18 March 2004) refers expressly to the respondent’s determination of 1 March 2004, and takes issue with that response. Item 6 (18 September 2005) refers expressly to application AD/05/1060 made on 9 August 2005 and presses for release of documents identified in that application. Item 7 (18 October 2005) refers expressly to applications AD/05/0082 (which is item 3); AD/05/0160 (which is item 5); and AD/05/183 (which is item 6), and presses for release of documents as requested. Item 10 (24 November 2005) refers to the request dated 12 November 2005 (which is item 9), and presses for release of specified documents. Item 17 (10 August 2006) refers to the request made on 6 July 2006 and response of 19 July 2006 (item 16). On their face items 2, 6, 7, 10, and 17 are requests for review of previous determinations, and not fresh applications. Item 14 (30 May 2006) is more complex, and appears to be ongoing correspondence concerning a number of earlier requests. It concludes with the letter dated 6 June 2006 which refers to the internal review conducted on 30 May 2006. While it may be appropriate to regard all these requests as being requests for internal review, only two of the responses (dated 13 February 2006 and 30 May 2006) are identified in terms as being internal review determinations, were carried out by someone other than the original decision-maker, and advise the applicant of her right to appeal to the Tribunal. The responding determination in all the other instances was made by the same person who made the initial determination. So even if each of these items could be regarded as requests for internal review, section 34(5) has not been complied with, and the consequence must be that there was a deemed decision by operation of section 34(6) of the FOI Act.

37 The next issue to determine is whether the application to the Tribunal for review was lodged within time. I have considered the 18 items in three categories: those requests investigated by the Ombudsman, those requests where an internal review was requested, and those where no internal review was requested.

38 (a) Requests investigated by the Ombudsman. The applicant's written submission states that she complained to the Ombudsman by letter dated 26 March 2006, delivered on 4 April 2006. The Ombudsman informed the respondent of the complaint by letter dated 18 April 2006. On the most favourable view, any procedural defect in the determinations of any of items 5 to 12 was overtaken by the Ombudsman’s decision to investigate the applicant’s complaint. The Ombudsman advised the applicant by letter dated 31 October 2006 that the complaint had been investigated and that no further action would be taken, and advised the applicant of her right to appeal to the Tribunal within 60 days. The application to the Tribunal was lodged on 11 January 2007. Applying section 60 of the FOI Act and section 34 of the Interpretation Act 1987, time started on 1 November 2006, and the application for review was lodged some 67 days after the Ombudsman reported the results of the investigation, which is outside the time frame prescribed by section 54(b)(ii) of the FOI Act.

39 (b) Requests for access where an internal review application was made. In relation to item 1 (28 January 2004), whether the response dated 1 March 2004 is regarded as an effective determination, or there was a deemed refusal, the applicant requested internal review within time. No formal internal review determination was made within 14 days, and by virtue of section 34(6) there was a deemed refusal. The same reasoning applies to item 16 (6 July 2006). The application to the Tribunal was lodged on 11 January 2007, nearly three years after the first deemed refusal, and nearly five months after the last of the deemed refusals.

40 The application for review was lodged after the prescribed period for those items investigated by the Ombudsman (5 to 12), and for items 1 and 16. The Tribunal has jurisdiction only if there is power to extend the time for application for review, and if there is time to extend, an extension of time is granted.

41 The issue of whether there is power to extend the time for an application for review has been the subject of several decisions of the Tribunal. In Black v General Manager, Bathurst City Council [2001] NSWADT 239, Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196, Dezfouli v Justice Health [2007] NSWADT 262, and McGuirk v University of New South Wales [2007] NSWADT 258 the Tribunal has held that the provisions of the ADT Act which enable the Tribunal to extend the time for an application for review do not apply to review of decisions under the FOI Act. These decisions are based on the express words of section 40 of the ADT Act, which provide that the provisions of the ADT Act have effect subject to any contrary provision being made in a relevant enactment. Section 54 of the FOI Act is such a "contrary provision", and there is no power to extend the time. The reasoning in these decisions is supported by the recent decision of the Appeal Panel, in construing the operation of section 40 of the ADT Act in the context of the Retail Leases Act 1994: Tringas v Quach (RLD) [2007] NSWADTAP 35. Applying the reasoning in those decisions, I conclude that the Tribunal has no jurisdiction to review the decisions described in the respondent's chronology as items 1, 5 to 12, and 16.

42 (c) No internal review requested: In relation to items 4 (27 April 2005) and 13 (8 January 2006) there is no evidence that a request for internal review was made. The applicant has not referred to these requests in her written submissions. Whether or not the Tribunal has jurisdiction depends on the application of section 53(2)(b) of the FOI Act. While section 55(2) of the ADT Act gives the Tribunal power in certain circumstances to review an application where no internal review has been conducted, the effect of section 40 of the ADT Act is that the applicable provision is section 53(2)(b) of the FOI Act, which only permits an application to be made to the Tribunal where an internal review has been requested. The Tribunal has consistently held that it has no jurisdiction to hear and determine a review application where no internal review has been requested: Hutchinson v Roads and Traffic Authority [2004] NSWADT 48; Parsonage v Office of the Board of Studies [2007] NSWADT 10. Applying the reasoning in these decisions, I conclude that the Tribunal has no jurisdiction to review the decisions described in the respondent's chronology as items 4 and 13.

Order

The Tribunal has no jurisdiction to hear and determine the application for review.