CITATION: Gunning Sustainable Development Association Inc. v Upper Lachlan Shire Council [2006] NSWADT 267 DIVISION: General Division APPLICANT PARTIES: Gunning Sustainable Development Association Inc. RESPONDENT Upper Lachlan Shire Council FILE NUMBER: 063031; 063134; 063135; 063188 HEARING DATES: 01/06/06 SUBMISSIONS CLOSED: 09/20/2006 DATE OF DECISION: 09/14/2006 BEFORE: Wilson R - Judicial Member CATCHWORDS: Jurisdiction MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Freedom of Information Act 1989 CASES CITED: University of NSW v McGuirk [2005] NSWADTAP 66 APPLICANT GD Stewart-Richardson, agent REPRESENTATION: RESPONDENT A Hawkes, solicitor ORDERS: 1. The letter from the Respondent dated 13 April 2006 requesting payment of an advance deposit with respect to the fourth request by the Applicant under the Freedom of Information Act 1989 was not authorised by s.21 of the Act and did not engage the provisions of s.22 of that Act and consequently the Tribunal has jurisdiction over the matter the subject of proceedings 063188; 2. All four proceedings are adjourned for further planning meeting on 06 October 2006 at 12:00 noon. REASONS FOR DECISION 1 The Applicant has brought these four proceedings pursuant to the provisions of the Freedom of Information Act 1989 seeking to review determinations made by the Respondent refusing access to documents. 2 During the course of preparing these proceedings for hearing the parties jointly applied for them to be heard together, with evidence in one to be evidence in the others in so far as such evidence be relevant. As the four applications under the FOI Act were related, in one way or another, the Tribunal granted this joint application by the parties and made directions accordingly. 3 The parties then sought that all matters be listed for hearing, but on the basis that, at this stage at least, only particular issues were to be argued and decided in relation to three of the matters and that one of the matters would necessarily be adjourned for later hearing. The parties asserted that they were both of the view that determinations by the Tribunal in relation some issues would enable them to advance their negotiations in their endeavours to resolve these matters without final determinations by the Tribunal on all issues. These preliminary issues are of fairly short compass. This appeared to the Tribunal to be a sensible course in the particular circumstances and consequently all four matters were listed for hearing on 01 June 2006. The consequence of these arrangements, as the parties clearly understood, would be that the Tribunal's determination at this stage will not finally determine the applications; they would all need to be stood over to a further planning meeting to await the outcome of the parties' subsequent endeavours to achieve resolution. The particular matters in issue were argued on 01 June 2006 and the Tribunal's decision reserved on particular issues pending the filing of written submissions. 4 However, a further development occurred post the hearing. Whilst the Tribunal was deliberating upon its decision a separate proceeding between the same parties came on for its first planning meeting. After dealing with this matter the parties requested the Tribunal to convene planning meetings in the four reserved matters as there had been developments which could affect the need for the Tribunal to deliberate further in relation to these matters. The Tribunal acquiesced in this request and planning meetings were convened that same day, 29 August 2006. The developments that the parties then brought to the attention of the Tribunal are noted hereunder. 5 Following these several developments it is not now necessary for the Tribunal to consider all the evidence presented and all the submissions that have been made. The issues that require the Tribunal's present consideration are noted below. PROCEEDINGS 063031 (The First FOI request) 6 In relation to this matter the Applicant was initially pressing for directions that the Respondent ought to make further searches for documents falling within its FOI application upon the basis of evidence which, the Applicant contended, demonstrated that certain categories of documents had not been adequately searched for. At the conclusion of the hearing the Respondent conceded that there was substance in this argument to a given degree whereupon the parties consented to certain directions being made in relation to further searches against particular names and in relation to documents in the nature of narratives to particular tax invoices that were rendered to the Respondent by its then legal advisors. In view of this consensual approach the Tribunal indicated that the parties should bring in consent orders following which appropriate orders will be made without considering the evidence and arguments further. The parties are to be commended for taking this sensible approach. 7 At the commencement of the hearing there also existed an issue whether the Respondent had taken a narrow view of the words "briefing papers" in the FOI request with the consequence that it had passed over, and had failed to consider as falling within the request, certain documents which the Applicant contended were in fact "briefing papers". At the conclusion of the hearing the parties also agreed on a course of conduct that would effectively resolve this issue. This was done by the Respondent undertaking to waive its requirement for an advance deposit in relation to the "third FOI request" (proceedings 063135 considered hereunder) so that this request could proceed in the normal course. This third request will necessarily require the Respondent to consider the same documents that it passed over on its view of what fell within the words "briefing papers". Again this is a sensible course the parties have adopted rather than requiring the Tribunal to spend time on this issue, there being no real need for this to happen. Again the parties were to bring in consent orders. 8 However, there still remained one issue in these proceedings for determination by the Tribunal. This issue focuses on the period between June and November 2005 and the Applicant's argument that documents, mainly correspondence, exist in this period which fall within the FOI request but which have not been considered by the Respondent. It was this issue upon which the Tribunal reserved its decision at the conclusion of the hearing. Leave was granted to the parties to file further written submissions and to bring in the consent orders mentioned. 9 The parties then filed written submissions in due course, however they did not bring in consent orders. The reason for this appears to be that the parties acted within the spirit of the proposed consent orders and regarded them as having been made. The parties so advised at the planning meeting on 29 August last. The consequence of the steps that have been recently taken by the parties is that they believe that they have resolved the issues in this proceeding and therefore most likely will not require a determination by the Tribunal. 10 This being the case, the parties then requested that these proceedings be stood over for a further planning meeting on 06 October 2006 at which they anticipate either that consent orders will be made or that the Applicant will withdraw the proceedings. The Tribunal has acquiesced in this proposed course and will make an appropriate order. PROCEEDINGS 063134 (the Second FOI request) 11 At the conclusion of the hearing on 01 June 2006 the parties agreed that these proceedings ought to be adjourned as the Respondent is in the course of processing the relevant FOI request and a decision will be forthcoming in the near future. This was clearly the only course open as the proceedings were not then ready for hearing and may well not reach a hearing. 12 At the planning meeting on 29 August 2006 the proceedings were, by consent, adjourned to a further planning meeting on 06 October 2006. PROCEEDINGS 063135 (the Third FOI request) 13 Initially there was an issue in these proceedings whether the Respondent could properly require an advance deposit at the stage that had been reached when the requirement was advised to the Applicant. The Respondent indicated at the hearing on 01 June 2006 that this requirement would be waived in order to facilitate the resolution of an issue in matter 063031 (see paragraph 7 of these reasons). Consequently there is no issue requiring the Tribunal's determination in these proceedings at this stage. 14 At the planning meeting on 29 August the parties requested that this matter be also adjourned to a further planning meeting on 06 October 2006. The Tribunal will make an appropriate order to this effect PROCEEDINGS 063188 (the Fourth FOI request) 15 One issue that had been mooted for determination in this proceeding was the Respondent's view that the FOI application placed an unreasonable demand on its resources. However, by the time of the hearing on 01 June 2006 the Applicant had reduced the scope of its application in an endeavour to remove this issue. This amended application had not then been determined by the Respondent so that the parties did not wish to argue this issue at this stage. The Respondent is in the course of considering the release of documents in this regard. There has been no refusal by the Respondent at any stage to release documents pursuant to s.25(1)(a1) of the Freedom of Information Act 1989. 16 However, the parties did argue the question whether the Respondent's request for the lodging of an advance deposit in relation to this FOI request, at the stage that the request was made, is permissible under the legislation. The parties wish this aspect to be resolved as they then believe that it may well resolve all the issues in the proceedings. At the planning meeting on 29 August 2006 the parties confirmed their request that the Tribunal determine this issue following which they requested an adjournment of the proceeding to a planning meeting on 06 October 2006. The Applicant also indicated that its written submissions in this regard, by inadvertence, had not been forwarded to the Tribunal. However, they were being sent that day. 17 The relevant evidence on the point in issue is fairly brief and is not in dispute. By letter dated 09 March 2006 the Applicant lodged a request under the Freedom of Information Act 1989. It was received by the Respondent that same day. The period provided by s.24(2) of the Act therefore expired on 31 March 2006. By letter dated 30 March 2006 the Respondent advised that the request would unreasonably divert its resources and it invited the applicant to amend its request. By letter dated 31 March 2006 the Applicant asserted that the 21 day period had expired since the making of its request and sought internal review of the deemed refusal arising from s.24(2). 18 By letter dated 13 April 2006 the Respondent requested an advance deposit in the sum of $2,458-22 pursuant to s.21 of the Act. The sole question is whether this request is authorised by the legislation so as to bring into play the provisions of s.22. 19 The Respondent's submissions dated 25 May 2006, but filed 14 June 2006, have introduced a complication in that it is asserted that s.34(3)(b) of the Act is in play so as to prohibit the internal review process. Unfortunately the parties have not squarely addressed this point in the evidence. 20 It is clear on the evidence that the Respondent had not determined the FOI application by 31 March 2006 and therefore s.24(2) of the Act came into play. This meant that the Applicant was entitled to seek internal review. It did so by letter dated 31 March 2006. The Respondent then had 14 days to determine the internal review application (s.34(6)). It did not make any final determination of the internal review during this period. The only act by the Respondent was to issue the letter dated 13 April 2006 seeking payment of an advance deposit. This request, as made in these circumstances, does not attract sections 21 and 22 of the FOI Act 1989. It is not authorised by s.21 and therefore can not bring s.22 into play (University of NSW v McGuirk [2005) NSWADTAP 66). Consequently, the Applicant was entitled to seek review in this Tribunal, and has done so. The Tribunal has jurisdiction to review the application that the Applicant has filed, and will do so unless the parties resolve the issues themselves. 21 As the letter from the Respondent seeking an advance payment does not have statutory consequences it is of no moment as far as the Tribunal's jurisdiction and powers are concerned. Equally, the Applicant's response to this request does not affect the Tribunal's powers and jurisdiction. The status of that letter is simply that it plays a part in the ongoing discussions between the parties. 22 The matter raised in the Respondent's submissions concerning s.34(3)(b) of the Act has not been the subject of any evidence so that it would be inappropriate for the Tribunal to rule upon it at this stage. The Applicant's latest submissions make the point that, even if this provision does have application it will not affect the existence of a deemed refusal after the initial 21 day period, and therefore the Applicant may come to the Tribunal in any event. If the parties wish to argue this point it will have to be left for another day. 23 For these reasons the Tribunal makes the determinations and orders set forth above DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.