Set aside by Appeal : CITATION: McDonald and anor v Director General, Department of Lands [2008] NSWADT 25 DIVISION: General Division APPLICANTS Brett Ian McDonald and Michael Vivian McDonald PARTIES: RESPONDENT Director, General, Department of Lands FILE NUMBER: 073238 HEARING DATES: On the papers SUBMISSIONS CLOSED: 18 December 2007 DATE OF DECISION: 21 January 2008 BEFORE: Pearson L - Judicial Member CATCHWORDS: Jurisdiction MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 LEGISLATION CITED : Interpretation Act 1987 Local Government Act 1993 Retail Leases Act 1994 Black v General Manager, Bathurst City Council [2001] NSWADT 139 Canobolas Heritage Railway Society Inc v General Manager, Bathurst Regional Council [2005] NSWADT 61 Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062 Dezfouli v Justice Health [2007] NSWADT 262 Federal Commissioner of Taxation v Australia and New Zealand Savings Bank Ltd 93 ATC 4370 CASES CITED: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 McGuirk v University of New South Wales [2007] NSWADT 258 Sullivan v Secretary, Department of Transport (1978) 1 ALD 383 Tringas v Quach (RLD) [2007] NSWADTAP 35 Waite v General Manager, Hornsby Shire Council [2004] NSWADT 93 Waite v General Manager, Hornsby Shire Council [2007] NSWADT 93 Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196 J Hassan, agent REPRESENTATION: D Schulz, agent ORDERS: The Tribunal has no jurisdiction to hear and determine the application for review. REASONS FOR DECISION 1 On 6 August 2007 the Tribunal received an Application for Review of a Decision. The application stated that the decision which the applicants wished to have reviewed was "FOI0714", made on 9 May 2007 and received on 14 May 2007. 2 The background to the application, based on copies of correspondence attached to the application, is as follows: (a) On 15 February 2007 an application was made under the Freedom of Information Act 1989 (the FOI Act) for access to a copy of a document relating to an application to close a public road (form CL-31-30) regarding a Crown public road at Williamdale in Palerang Council. The application to close the public road had been made by the applicants in 2002. (b) The respondent consulted the applicants. The applicants objected to the release of the documents based on clause 7 of Schedule 1 to the FOI Act, as release would disclose information that has commercial value and could reasonably be expected to diminish the commercial value of that information. (c) On 26 March 2007 the respondent notified the applicants that it had determined that the document did not meet the criteria for exemption under clause 7 of Schedule 1 to the FOI Act, and determined to grant access to the document requested. (d) At the request of the applicants, an Internal Review of that determination was carried out. The Internal Review Report, prepared by a Senior Legal Officer of the respondent, concluded that the document was not an exempt document under the FOI Act, and was to be released to the applicant. 3 A file note on the Tribunal file indicates that on 7 August 2007 an officer of the Tribunal informed the applicants that the application was out of time, and the applicants advised that they still wanted to proceed with filing. 4 In accordance with the Tribunal's usual practice, the matter was listed for a planning meeting on 18 September 2007. On 6 September 2007 the Tribunal received a letter dated 4 September from Mr Fred Chilton and Ms Georgia Price, solicitors acting for Hanson Construction Materials Pty Ltd ("Hanson"), requesting that the Tribunal make an order under s67(4) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) to make Hanson a party to the proceedings. At the planning meeting on 18 September 2007 the applicants made it clear that they were opposed both to release of the documents, and to the joinder of Hanson. The issue of jurisdiction was discussed, and the respondent was directed to provide written submissions by 28 September 2007. Following the planning meeting the applicants, respondent, and the solicitors acting for Hanson, were advised in writing that the issue of jurisdiction would be determined first; that if there is a valid application for review, the application by Hanson to be joined would be determined; following which the issue of whether the documents or any part of the documents were exempt and if so, whether they should be released, would be determined. 5 On 28 September 2007 the respondent provided written submissions regarding the Tribunal's jurisdiction to hear and determine an application made out of time, and a copy of the initial application and a brochure entitled "Review and Appeals". 6 The matter was listed for directions on 5 October 2007, and adjourned at the request of the applicant (with the consent of the respondent) to 30 October 2007. On that occasion directions were made that the applicants file and serve written submissions on the jurisdictional issue by 20 November 2007, the respondent to file and serve any submissions in reply by 4 December 2007, and the matter would be determined on the papers. The applicants' agent, Mr Joe Hassan requested further time, and written submissions on behalf of the applicants were filed on 5 December 2007. No further submissions in reply were made by the respondent Relevant legislation 7 Under section 16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. The FOI Act imposes limitations on that right, in particular section 25(1), under which an agency may refuse access to a document if it is exempt. The exemptions are set out in Schedule 1 to the FOI Act. Clause 7 applies to the following documents: 7. Documents affecting business affairs (1) A document is an exempt document: (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or (a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made. 8 Section 32(2) of the FOI Act provides that an agency shall not give access to a document to which the section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 7 of Schedule 1. Section 32 applies to a document that contains: "(a) information concerning the trade secrets of any person, or (b) information (other than trade secrets) that has a commercial value to any person, or (c) information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any person." (s32(1)). 9 If after having sought the views of the person concerned, the agency determines to grant access, it must notify the person concerned, and defer granting access. Under section 34 of the FOI Act, an application for internal review of an agency's determination may be made by a person "aggrieved" by a determination. That includes the person who made the initial application for access, and a person consulted by the agency: section 34(7) FOI Act. 10 The right to make an application for review to the Tribunal is conferred by section 53 of the FOI Act: 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. 11 Section 54 of the FOI Act sets out the time limit: 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. 12 The issue is whether the applicants lodged their application for review within the time prescribed by section 54 of the FOI Act; if not, whether there is power to extend the time; and if so, whether an extension should be granted. 13 Determination of that issue involves construction of the provisions of the FOI Act set out above, and the relevant provisions of the ADT Act. A determination made under section 24 of the FOI Act, in this matter a determination to grant access to documents, is a "reviewable decision" for the purposes of Part 3 of the ADT Act: section 38 ADT Act. Section 55 of the ADT Act provides the time period for lodging an application for review of a reviewable decision: 55. When can an application for a review be made? (1) A person may apply to the Tribunal for a review of a reviewable decision only if: (a) the application is made by an interested person, and (b) an internal review is taken to have been finalised under section 53(9), and (c) the application is made in the manner prescribed by the rules of the Tribunal, and (d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53(9). 14 Section 57 of the ADT Act enables the Tribunal to extend the time for making an application: 57. Late applications to Tribunal (1) Despite section 55(1)(d), the Tribunal may, on application in writing by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. 2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. (3) In this section, late application means 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). 15 Section 40 of the ADT Act states how the FOI Act and the ADT Act are to be read together: 40. When enactment taken to make contrary provision to this Act (1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly). (2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter. (3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section. (4) In this section: relevant enactment means an enactment under which the Tribunal has jurisdiction: (a) to make an original decision, or (b) to review a reviewable decision, or that otherwise deals with the jurisdiction of the Tribunal. 16 The reference in section 40(2) is a reference to Chapter 3 of the ADT Act, "Jurisdiction of the Tribunal". The provisions concerning the timing of applications, including section 55 and 57, are contained in Chapter 5 of the ADT Act, "Process for review of reviewable decisions". Respondent's submissions 17 The respondent's submissions accepted that the application for review was lodged at the Tribunal after the 60 day period prescribed by section 54 of the FOI Act. The respondent submitted that the Tribunal should follow the reasoning of the President, O'Connor DCJ, in Canobolas Heritage Railway Society Inc v General Manager, Bathurst Regional Council [21005] NSWADT 61, that the Tribunal can extend the time to lodge an application for review, in preference to the reasoning in Waite v General Manager, Hornsby Shire Council [2004] NSWADT 93, Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196, and Black v General Manager, Bathurst City Council [2001] NSWADT 139. That submission was based on an argument that the Tribunal in Waite and Wilmshurst had misapplied the generalia specialibus non derogant principle of statutory interpretation. The respondent submitted that s57 of the ADT Act (which gives the Tribunal a discretionary power to hear an out of time application) and section 54 of the FOI Act (which does not) are not inconsistent. They are compatible: the earlier provision imposes time limits on review applicants, while the later provision simply provides an exception to those limits in special cases. Further, section 57(3) of the ADT Act expressly contemplates review applications being made out of time, and in enacting provisions such as section 57 and 44 of the ADT Act, Parliament explicitly recognised that various time limits existed under earlier legislation and authorised the tribunal to make exceptions and to grant extensions where appropriate. The respondent further submitted that the argument in Waite, that the 60 day time limit under section 54 of the FOI Act is a 'condition precedent' to the Tribunal having jurisdiction for the purposes of section 38(3) of the ADT Act, is wrong. Section 38(3) and 57 of the ADT Act are inconsistent in respect of late review applications and are therefore provisions to which the generalia specialibus non derogant principle can be applied. Applicants' submissions 18 The applicants adopted the submissions of the respondent, and submitted that the Tribunal should follow the reasoning in Canobolas. The applicants submitted that to interpret section 57 of the ADT Act as accepted in Waite, Wilmshurst and Black would be contrary to the intention and spirit of the ADT Act. This is recognised by the statement on the Tribunal application form referring to applications lodged later than the time allowed under the relevant legislation. The applicants supported the respondent's submissions relating to section 38(3) of the ADT Act, and further relied on the decision in Federal Commissioner of Taxation v Australia and New Zealand Savings Bank Ltd 93 ATC 4370. The applicants submitted that the Tribunal has a special role in achieving justice between citizens and the state, relying on the decisions in Sullivan v Secretary, Department of Transport (1978) 1 ALD 383 and Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186. The applicants submitted that the ADT should exercise its discretion to grant an extension of time: the applicants had always corresponded with the respondent and mistakenly sent the application to it; upon becoming aware of their mistake the applicants took immediate steps to file the application with the Tribunal; and the respondent took an inordinate amount of time to send the application back to the applicants. Consideration 19 The central facts in this matter are not in dispute. The initial request for access to documents dated 15 February 2007 was made by Mr Fred Chilton (the access applicant), who requested access to: "Application to close a Public Road" Form (CL31-30) lodged with Lands regarding Crown public road at Williamsdale, in Palerang Council, Parish of Burra, County of Murray – now closed road Lot 1 on DP 1075182." 20 The applicants objected to access being provided, and requested internal review of the respondent's determination to grant access. Correspondence attached to the application to the Tribunal includes a letter dated 18 April 2007 from the respondent's Freedom of Information Co-ordinator, which refers to a fax from the applicants dated 17 April 2007 and a telephone conversation of 18 April 2007, and states: I enclose the application for review of determination for completion and return with a fee of $40.00. 21 A letter dated 24 April 2007 acknowledges receipt of an Application for Review of Determination and cheque for $40.00. 22 The applicants were notified of the determination of the internal review by letter dated 9 May 2007. This letter, again from the Freedom of Information Co-ordinator, states: "I enclose a photocopy of the Internal Review Report and a brochure detailing your rights of appeal." 23 There are two further letters: (a) letter to the applicants dated 14 May 2007 referring to a telephone conversation with Mr Brett McDonald, stating: "I enclose a photocopy of the document requested by the original Freedom of Information application together with the Administrative Decisions Tribunal Form, Application for Review of Decision, as requested. I advise the fee for lodgement, from the Tribunal's website, is $55.00." (b) letter to the applicants dated 24 July 2007, which states: "I refer to your application to the Administrative Decisions Tribunal for a review of the determinations in this matter, received on 16 July 2007. Your application should be lodged with a cheque made out to: Administrative Decisions Tribunal Level 15 111 Elizabeth Street Sydney NSW 2000 I apologise for the delay in the return of your application and cheque but I have not been in the office due to an illness in the family." 24 The content of the letters dated 14 May 2007 and 24 July 2007, and the markings on the Application for Review of a Decision, are consistent with the applicants having received a copy of the Tribunal's application form from the respondent; completing that form and faxing it to the respondent on 9 July 2007; the respondent returning the form to the applicants on 24 July 2007; and the applicants mailing that form to the Tribunal, with a cheque for $55.00, where it was received on 6 August 2007. 25 The letter notifying the applicants of the internal review determination was dated 9 May 2007. In their application for review the applicants stated that they received it on 14 May 2007. The relevant date for the purposes of s54(a) of the FOI Act was the date the access applicant was notified of the internal review determination. The letter notifying the access applicant of the internal review determination was dated 10 May 2007. Applying section 60 of the FOI Act, the access applicant was notified of that determination on 15 May 2007. The 60 day period prescribed by section 54 ended on 14 July 2007. That was a Saturday, and applying section 36 of the Interpretation Act 1987, the final day for lodging an application for review was Monday 16 July 2007. The review applicants lodged their application with the Tribunal on 6 August 2007, some 21 days after the 60 day period prescribed by section 54 of the FOI Act 26 As acknowledged in the written submissions, there are divergent views within the Tribunal as to whether there is power to extend the time for an application for review of a decision made under the FOI Act. The decision in Canobolas favours an interpretation of the legislation that since section 53(5) of the FOI Act does not expressly refer to section 57 of the ADT Act, the power conferred by that section to extend the time is available. To the contrary are the decisions in Waite, Black and Wilmshurst referred to by the respondent, and Waite v General Manager, Hornsby Shire Council [2007] NSWADT 93, McGuirk v University of New South Wales [2007] NSWADT 258, and Dezfouli v Justice Health [2007] NSWADT 262. These decisions are based on 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, which includes section 54 of the FOI. 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. The Appeal Panel concluded in that decision that there was no ground on which the Supreme Court decision in Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062 could be distinguished, so as to provide scope for a ruling that the time limit in section 32A(2) of the Retail Leases Act 1994 could be extended under section 44 of the ADT Act 27 Cheung v Administrative Decisions Tribunal [2000] NSWSC 10632 concerned the relationship between section 329 of the Local Government Act 1993 (imposing a time limit for an application for review) and section 44 of the ADT Act (which is in similar terms to section 57 of the ADT Act, and allows an extension of time). Dunford J held that the determination of whether two Acts contain "any contrary provision" for the purposes of section 40 of the ADT Act depends on the operation rather than on the precise words used. There is an inconsistency in operation between section 54 of the FOI Act (which specifies the time within which an application for review "is to be made") and section 57 of the ADT Act. The sections are not compatible. Section 40 of the ADT Act applies to reconcile the inconsistency, and by virtue of section 40(1), the provisions of the FOI Act apply. That is so even though the ADT Act was enacted after the FOI Act: section 40(3) ADT Act. In Cheung, Dunford J accepted that a consequence of concluding that section 44 of the ADT Act had to be read subject to section 329 of the Local Government Act 1993 was that the words in brackets in sub-section 44(3) would have no effective operation. The same consequence follows in this case, namely that the words in brackets in section 57(3) of the ADT Act have no effective operation. 28 The respondent's submissions relating to section 38(3) of the ADT Act depend on giving section 57 of the ADT Act some operation. Applying Cheung, section 57 of the ADT Act has no application to an application for review of a decision made under the FOI Act, and the Tribunal has no power to hear and determine an application for review of such a decision that does not comply with section 54 of the FOI Act. There is no power to extend the time for the lodging of an application for review. 29 This is an unfortunate outcome. I accept that the applicants relied on advice and information provided by the respondent. The letters of 18 April 2007 and 14 May 2007 establish that the applicants relied on the respondent to provide them with copies of the relevant application forms. While the brochure on Review and Appeals states that "you are entitled to take your appeal to the ADT in NSW", there is a degree of ambiguity as to where and how an appeal is to be lodged. In those circumstances it is understandable that the applicants sent the Application for Review to the respondent, rather than directly to the Tribunal. The delay in returning the form to the applicants left them outside the 60 day period prescribed by section 54 of the FOI Act. Had there been a discretion to extend the time for lodging the application for review under section 57 of the ADT Act, I consider that it would be open to conclude that the applicants had provided a reasonable explanation for the delay in making the application. However, on the basis that there is no power to extend the time, the only conclusion possible is that the Tribunal has no jurisdiction to hear and determine this application for review. Order The Tribunal has no jurisdiction to hear and determine the application for review. 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.