Appeal Panel - Internal CITATION: University of New South Wales v McGuirk (No 2) (GD) [2005] NSWADTAP 66 APPELLANT PARTIES: University of New South Wales RESPONDENT Gerard Michael McGuirk FILE NUMBER: 059057 HEARING DATES: 1/11/2005 SUBMISSIONS CLOSED: 11/01/2005 DATE OF DECISION: 12/08/2005 McGuirk v University of New South Wales [2005] NSWADT 201 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: leave to appeal interlocutory decision - leave to appeal out of time - orders - irrelevant and/or outside the Tribunal's power to make MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053164 DATE OF DECISION UNDER APPEAL: 08/25/2005 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Commissioner of Police v Mercer [2005] NSWADTAP 55 Freedom of Information (Fees and Charges) Order 1989 CASES CITED: Grassby v The Queen (1989) 168 CLR 1 Licul v Corney (1976) 180 CLR 213 Lupevo Pty Ltd t/as Ampol Nabiac v Bree [2002] NSWADTAP 9 R v Mosley (1992) 28 NSWLR 735 APPELLANT REPRESENTATION: P Singleton, barrister RESPONDENT In person ORDERS: The decision of the Tribunal is affirmed; The appeal is dismissed. REASONS FOR DECISION Background 1 In January 2005, Mr McGuirk applied to the University of New South Wales under the Freedom of Information Act 1989 (FOI Act) for five categories of documents. The University did not determine that application within the 21 day time limit allowed in the Act and was therefore deemed to have refused the application. Mr McGuirk then applied for an internal review of the University's deemed refusal to provide him with access to the documents. The University had until 2 March 2005 (14 days from the date of the internal review application) to make its determination. If it did not make a determination within that time, it would be deemed to have refused access to the documents. On 1 March, which was the 13th day, the University decided to require Mr McGuirk to pay an advance deposit of $2,430 by 15 March 2005. The deposit was to cover the cost of dealing with the application. The University submitted that the clock stopped running until the amount was paid in accordance with the request. 2 While it is not in dispute that the University is entitled to request an advance deposit in relation to an application under the FOI Act, Mr McGuirk disputed the University's entitlement to request such a deposit at the internal review stage. He raised that objection both at the time the advance deposit was requested and before the Tribunal. Nevertheless, Mr McGuirk asked the University to provide him with a breakdown of the $2,430 in relation to each of the five categories of documents he sought. The University provided that breakdown and extended the time for Mr McGuirk to pay the advance deposit to 31 March 2005. According to the University, the clock stopped running during that time and the 14 day time limit therefore expired on 1 April 2005. 3 The fifth category of documents Mr McGuirk requested was a copy of a St James Ethics Centre Report (the Report) The University required an advance deposit of $82.50 in relation to that document. Mr McGuirk decided not to pay that amount because he did not think that the University was entitled to request an advance deposit at the internal review stage. On 23 March 2005, he applied to the Tribunal for external review of the University's deemed refusal of his application for the Report. At that stage he did not apply to the Tribunal for a review of any decision made by the University in relation to the other four categories of documents requested in his original FOI application. 4 The application in relation to the Report was listed for hearing on 13 April 2005. One of the issues that was discussed at the hearing was which of two possible decisions the Tribunal should be reviewing. According to Mr Mullen representing the University, the relevant decision was a decision of the University to refuse to continue to deal with Mr McGuirk's application because of the non-payment of the advance deposit within the specified time. According to Mr McGuirk the relevant decision was the "deemed" decision of the University to refuse to give access to the Report because of the expiry of the time for an internal review. 5 The Tribunal resolved that question by deciding that the FOI Act only allows an advance deposit to be requested in relation to an original access application, not in relation to an application for internal review. The order it made was as follows: Section 21 of the Freedom of Information Act 1989 operates only in relation to an original application and not in relation to an internal review application. Accordingly, it does not authorise an agency to request an advanced deposit in relation to an internal review application. 6 The University appealed against that decision to the Appeal Panel (the "first" matter). The University also appealed against a later decision of the Tribunal in relation to the other categories of documents (the "second" matter). The Appeal Panel's decision in relation to that appeal is University of New South Wales v McGuirk (No 3) [2005] NSWADTAP 67. Preliminary issues 7 Two preliminary issues arise. They are: (a) whether the Appeal Panel should accept the appeal even though it was lodged three days late? (b) whether the Tribunal's decision was an interlocutory decision and, if so, whether the Appeal Panel should give its permission for the appeal to go ahead despite that fact? 8 Paradoxically, before these issues can be determined we need to make findings in relation to the substantive grounds of appeal. That is because the circumstances giving rise to these proceedings and the nature of the Tribunal's decision are both relevant to the preliminary issues. Were the orders irrelevant and/or outside the Tribunal's power to make? 9 The University's first ground of appeal was that the order made by the Tribunal was a "declaration". While the Supreme Court has power to make declaratory orders, the University said that the Tribunal does not have power to do so. Secondly, the University said that the orders were not relevant to the question of whether or not the Tribunal had jurisdiction to hear the application or to any other issue that the Tribunal needed to decide. We deal firstly with the ground of appeal relating to relevance. 10 University's submission. The University submitted that the Tribunal conducted a purely academic inquiry into the functions and powers of the University and that such an inquiry was entirely irrelevant to the Tribunal's functions. It argued that it was an error of law – indeed a jurisdictional error of law – for the Tribunal to address itself to the wrong question in this way. Shortly after the Appeal Panel heard this appeal, another Appeal Panel handed down a decision in Commissioner of Police v Mercer [2005] NSWADTAP 55. The University drew that decision to the attention of this Appeal Panel and pointed in particular to [25] of that decision. That paragraph relates to calling the person who decided an internal review to give evidence before the Tribunal. We are unable to see the relevance of those observations or anything else the Appeal Panel decided in Mercer to the present appeal. 11 University's submission to the Tribunal. Mr Mullen submitted to the Tribunal that the decision it should be reviewing was the University's decision to refuse to continue to deal with the application because of non-payment of the advance deposit within the time requested. Mr Mullen said: ... the decision of the university – the determination of the university upon which Mr McGuirk has lodged his application is a refusal to continue to deal with the application under s 22(6). (Page 21, line 36) 12 Shortly after Mr Mullen made that submission, the Tribunal conveyed to Mr McGuirk its understanding of what Mr Mullen had said. The concession by the University, as I understand it, is not that they have refused to provide you access but they have refused to continue to deal with it. (page 22, line 8) 13 Mr Mullen acknowledged that the University had not in fact advised Mr McGuirk that it had decided to refuse to continue to deal with the application. Under s 22(5) of the FOI Act an agency that refuses to continue to deal with an application must give written notice of that fact to the applicant. No written notice had been given in this case. Mr Mullen went on to suggest that the parties may be able to agree that that is what the University had done. (page 23, line 5). 14 Applicant's submission to the Tribunal. Mr McGuirk did not agree that the reviewable decision was a decision to refuse to continue to deal with his application because of non-payment of the advance deposit. His point was that because the University had no power to request an advance deposit on internal review, the 14 day time limit for determining the internal review had expired and he was entitled to apply to the Tribunal for a review of the University's deemed decision to refuse to give him access to the Report: s 34(6). 15 Tribunal's decision. In the written reasons for decision at [3], the Tribunal identified the preliminary issue it needed to decide as: ... whether or not the University was entitled, when dealing with an application for an internal review, to require payment of an advance deposit under section 21 of the Act and entitled, under section 22 of the Act, to refuse to continue to deal with the application if the advance deposit was not paid. 16 After finding that the University had no power to request an advance deposit on internal review, the Tribunal went on to say, at [13]: Accordingly, the University lacked the power to refuse to continue to deal with the internal review application and therefore there has been a deemed refusal of that application. Mr McGuirk is entitled to have the deemed refusal of the internal review application reviewed by this Tribunal. 17 Was the Tribunal's order irrelevant? Part of the Tribunal's task when hearing and determining an application to review a decision, is to identify the decision and ensure that it has jurisdiction to review that decision. If the University had power to request an advance deposit on internal review, then arguably the clock would have stopped running when it made that request on 1 March 2005: s 21(6). When Mr McGuirk failed to pay the deposit within the time specified by the University, the University would have become entitled, in accordance with s 22, to refuse to continue to deal with Mr McGuirk's application. On the other hand, if the University did not have power to request an advance deposit on internal review, then arguably the clock would not have stopped running when it made that request. Instead, the 14 day time limit for determining an application for internal review would have continued to run and the University would have been deemed to have made a determination refusing access to the Report on 2 March 2005. 18 Appeal Panel's conclusion. This analysis establishes that the question of whether or not the University had power to request an advance deposit on internal review was relevant to an issue the Tribunal had to decide. That issue was which of the two decisions it should review. Contrary to the University's submission, the Tribunal's finding was not a purely academic inquiry into the functions and powers of the University, nor was it entirely irrelevant to the Tribunal's functions. It was a means of determining which of the competing submissions of the parties it should accept. It follows that we do not accept the University's argument that the Tribunal made a jurisdictional, or any other, error of law by determining this preliminary question. 19 Change in University's position. We note that the University now concedes that the Tribunal does have jurisdiction to review its deemed decision to refuse to give Mr McGuirk access to the Report. Although the issue of which decision the Tribunal should review is no longer in dispute, it was in dispute before the Tribunal and the Tribunal was right to determine that issue as a preliminary matter. Were orders outside the Tribunal's power to make? 20 The order of the Tribunal in the first matter was: Section 21 of the Freedom of Information Act 1989 operates only in relation to an original application and not in relation to an internal review application. Accordingly, it does not authorise an agency to request an advanced deposit in relation to an internal review application. 21 The University submitted that the Tribunal does not have power to make such an order. Unlike the Supreme Court, which has inherent powers to make declaratory orders, the Tribunal's powers are confined to those conferred by statute. (Grassby v The Queen (1989) 168 CLR 1 at 16-17; R v Mosley (1992) 28 NSWLR 735 at 738- 739.) Examples of the powers conferred by the Administrative Decisions Tribunal Act 1997 (ADT Act) are those in s 63 which give the Tribunal power to affirm, vary or set aside a reviewable decision. 22 While we agree that the Tribunal does not have power to make declarations in the way that the Supreme Court does, the Tribunal in this case was not making or purporting to make a declaration. It was merely making a finding on a preliminary issue which it needed to address to determine which decision to review. That conclusion is supported by the fact that the content of the "orders" are recorded at the end of the Tribunal's reasons under the heading "Finding". The cover sheet is a standard template used to record the outcome of the proceedings so that readers can quickly and easily see what the Tribunal has decided. In this case, because of the nature of the preliminary matter the Tribunal was determining, there was no relevant order that the Tribunal could make. For example, it had not reached the stage where it was affirming, varying or setting aside a decision. Rather than leave the space on the cover sheet blank, the Tribunal recorded its finding under the heading "orders". Contrary to the University's submission, that does not mean that the Tribunal was making or purporting to make a declaration. It was merely recording its finding in the place on the template that was most relevant for that purpose. It follows that we do not accept the University's submission that the Tribunal's "order" should be set aside as being beyond its power to make. Should the appeal be accepted out of time? 23 Late appeal. We now turn to the first preliminary issue. The appeal was lodged three days out of time. The Tribunal may accept a late appeal but Mr McGuirk submitted that we should not accept it and relied, among other things, on the Appeal Panel's decision in Lupevo Pty Ltd t/as Ampol Nabiac v Bree [2002] NSWADTAP 9. That decision lists several factors that the Appeal Panel should take into account when considering whether or not to extend the time for an appeal beyond 28 days from the date the party receives the written reasons: s 113(3) ADT Act. The appeal was filed the day after the Tribunal handed down its reasons in the second matter. As both matters raised substantially the same issue, the University decided to appeal against both decisions. Given that the delay in filing the appeal was a mere three days and that there is very little if any prejudice to the applicant in granting leave, we extend the time for filing the appeal in the first matter until 26 August 2005. Were decisions interlocutory and should leave be granted? 24 Leave for interlocutory appeals. The University must obtain the Appeal Panel's permission to appeal against any interlocutory decision of the Tribunal: s 113(2A) of the ADT Act. The second preliminary issue we need to determine is whether or not the Tribunal's decision was an interlocutory decision and if so, whether we should grant leave for the appeal to proceed. Section 24A of the ADT Act defines an "interlocutory function" to mean "the making of any order or other decision by the Tribunal (including an Appeal Panel of the Tribunal) in proceedings in respect of ... summary dismissal of proceedings" and "any other interlocutory issue before the Tribunal." In Licul v Corney (1976) 180 CLR 213 at 225 Gibbs J said that the test for determining whether or not a matter is interlocutory is: "Does the judgment or order, as made, finally dispose of the rights of the parties?" It is clear from our findings that the Tribunal was not making a judgment or order that finally disposed of the rights of the parties. It was making a preliminary finding in order to identify the decision it should review. Consequently it was an interlocutory decision and the Appeal Panel's leave is required. 25 Should leave be given? The strongest argument against leave being given is that the University now concedes that the Tribunal has jurisdiction to review the decision which Mr McGuirk has submitted is the reviewable decision. Although that was not always its position, there is arguably no point in the Appeal Panel determining whether the Tribunal made an error of law in reaching its decision because that issue is no longer relevant to the proceedings. While that is a strong argument against granting leave, the appeal raises important issues relating to the Tribunal's powers and the statutory interpretation of the FOI Act which we are persuaded should be addressed. Consequently we grant leave to the University to appeal against the Tribunal's interlocutory decision. Tribunal's conclusions were wrong. 26 Utility of determining this ground of appeal. Finally, the University said that even if the Tribunal's order was relevant to an issue it needed to determine, the Tribunal's finding was wrong. There is arguably no need to determine that issue because the University now agrees that the Tribunal has jurisdiction to review the deemed refusal decision. It has abandoned its earlier submission that the reviewable decision was the uncommunicated decision to refuse to continue to deal with the application. Nevertheless the University urged the Appeal Panel to determine the question because it disagrees with the Tribunal's finding and unless set aside, that finding will remain on the record. In our view the question of whether an agency may request an advance deposit on internal review is an important one and it should be determined. 27 Tribunal's reasoning. The Tribunal's reasoning for its finding can be found in [12] of the decision: If the legislature had intended that agencies should have the power to levy these amounts in relation to an internal review application it would have been expressly set out in the legislation. In section 21 the legislature has clearly set out this power insofar as it relates to the original application. It has not done so in relation to an internal review application. In the absence of an express provision in the FOI Act I do not think agencies have that power. 28 Relevant provisions. Under s 16 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 agency must determine whether access is to be given or refused: s 24. A person who is aggrieved by a determination is entitled to an internal review of the determination: s 34. The agency has 14 days to deal with an application for internal review: 34(6). Agencies are permitted to request an advance deposit to cover the estimated cost of dealing with an application: s 21. Alternatively, after it has dealt with the application, an agency may charge an applicant for the cost incurred in dealing with the application: s 24(1)(a). Section 61 of the FOI Act provides that the burden of establishing that a determination is justified lies on the agency. 29 Advance deposit. The provisions that are relevant to determining whether or not the University is entitled to require an advance deposit on internal review include s 21, s 22 and s 34. Section 21(1) states that: If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the amount of the application fee, the agency may request the applicant to pay to it such amount, by way of advance deposit, as the agency may determine. 30 Section 22 allows an agency to refuse to continue to deal with an application if the advance deposit is not paid within the period specified by the agency. Section 34 allows an applicant to apply for internal review in certain circumstances. Central to the University's case is s 34(4) which states that: An application under this section shall be dealt with in accordance with this Part as if it were an application under section 17. 31 Section 17 sets out the manner in which a person is to apply for access to an agency's documents. Sections 21 and 22 are in the same Part as s 34. 32 University's submissions. The University submitted that because applications for internal review are to be dealt with as if they were applications under s 17, s 21 and s 22 relating to advance deposits, apply to internal reviews. According to the University, it follows that it may request the payment of an advance deposit either when the applicant first applies for access to documents or on internal review. 33 Appeal Panel's reasoning. The first question for the Appeal Panel is whether s 34(4) means that an agency is entitled to charge an advance deposit on internal review. One of the University's submissions was that since s 34 does not modify or qualify s 21 or s 22 those provisions continue to apply in relation to internal reviews. We accept that s 34(5) and s 34(6) modify the procedures for internal reviews compared with those for original applications. Section 34(5) provides that an application for internal review is not to be dealt with by the same person who dealt with the original application. Section 34(6) gives an agency 14 days to deal with an internal review application rather than the 21 days allowed for determining an original application. While there is no modification of s 21 or s 22 in s 34, Clause 5 of the Freedom of Information (Fees and Charges) Order 1989 does restrict the extent to which an agency may charge an applicant for dealing with an application for internal review. The relevant parts of that clause are set out below: (1) The charges - (a) for the giving of access to a document (being a charge determined under section 24(b) of the Act); and (b) for dealing with an application (being a charge determined under section 24(c) of the Act), are to be calculated on the basis of an hourly rate of $30 per hour. (2) Such a charge is not to be imposed in respect of -- (a) ... (b) any application under section 34 of the Act. 34 This provision prevents an agency from imposing certain charges for internal review applications. Those charges include charges for "dealing with an application" under s 24(c). The University submitted that Clause 5 does not apply to advance deposits because it is confined to charges levied after considering an application for access. It is correct that s 24(c) relates to charges payable after an application for access has been considered and that an advance deposit pursuant to s 21 is requested before dealing with an application. According to the University, that means that Clause 5 does not prevent an agency from charging an advance deposit on internal review. The University submitted that it would be absurd if it were prevented from charging an advance deposit for a very broad application for access to documents just because it had failed to make an initial determination within the 21 days allowed. 35 Under s 21(1), before requesting an advance deposit, an agency must estimate the costs of "dealing with an application". Clause 5 prevents an agency from imposing any charge determined under s 24, for "dealing with an application". It would defeat the purpose of Clause 5 if the agency were nevertheless permitted to estimate the cost of dealing with an application and charge the applicant an advance deposit for that cost. Although s 21 is not expressly mentioned in Clause 5, charges for "dealing with an application" under s 24(c) include requesting a deposit in advance to deal with the application. If that was not the case, the University could estimate the cost of dealing with an application and require an advance deposit to be paid to cover that cost but could not charge the applicant the same amount after considering the application. In our view, Clause 5 qualifies s 34(4) by preventing an agency from charging any fee for dealing with an internal review application, either before or after it has considered that application. 36 Section 21(6) also supports our view that advance deposits cannot be requested on internal review. That provision states that: The period of time between the making of a request under this section and the payment of an advance deposit in accordance with the request shall not be taken into account in calculating the period of 21 days within which the relevant application is required to be dealt with. 37 This sub-section cannot have been intended to apply to applications for internal review because the relevant time period for completing an internal review is 14 days, not 21 days. 38 The University also submitted that s 22(6) supports its interpretation of the legislation. That section provides that: A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those Parts apply accordingly. 39 According to the University because this sub-section expressly provides that a decision under s 22 can trigger an external review, the legislature must have intended that an agency could charge an advance deposit on internal review. We do not agree with that interpretation. Section 22(6) is consistent with our conclusion that an agency is not permitted to request an advance deposit on internal review. All s 22(6) does is allow an applicant to request an internal review of a decision to refuse to continue to deal with an application and, if that decision is not in their favour, to subsequently request an external review. For all the reasons given, the decision of the Tribunal at first instance was correct in law, although for different reasons than those relied on by the Tribunal. Reporting improper conduct 40 Mr McGuirk made allegations of contempt against the University and requested that the Appeal Panel report the University's improper conduct to the Minister. Section 58 of the FOI Act provides that: If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency. 41 The University submitted that the Tribunal is unable to take any measures under s 58 unless it has a separate application from the applicant identifying the conduct involved. According to the University, the Tribunal would then have to give the University an opportunity to make submissions on that point. There is no need for us to decide whether or not this is the correct approach. The Appeal Panel is not in the best position to determine whether s 58 should be applied. We have not had the advantage of closely examining the University's conduct in this matter and it is more appropriate for the Tribunal hearing the matter to determine whether or not to take any measures pursuant to that section. Orders 1. The decision of the Tribunal is affirmed. 2. The appeal is dismissed. 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.