University of New South Wales v McGuirk (No 3) (GD) [2005] NSWADTAP 67

Appeal Panel - Internal

CITATION: University of New South Wales v McGuirk (No 3) (GD) [2005] NSWADTAP 67 APPELLANT PARTIES: University of New South Wales RESPONDENT Gerard McGuirk FILE NUMBER: 059058 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 255 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: leave to appeal interlocutory decision - orders - irrelevant and/or outside the Tribunal's power to make MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053107 DATE OF DECISION UNDER APPEAL: 04/14/2005 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Commissioner of Police v Mercer [2005] NSWADTAP 55 CASES CITED: Grassby v The Queen (1989) 168 CLR 1 Licul v Corney (1976) 180 CLR 213 R v Mosley (1992) 28 NSWLR 735 APPELLANT REPRESENTATION: P Singleton, barrister RESPONDENT In person ORDERS: 1. The decision of the Tribunal is affirmed; 2. The appeal is dismissed

REASONS FOR DECISION Background 1 This decision is related to the Appeal Panel's decision in University of New South Wales v McGuirk (No 2) [2005] NSWADTAP 66 and should be read in conjunction with it. 2 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. 3 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. 4 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. 5 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 whether the Tribunal was reviewing a "deemed" decision of the University to refuse to give access to the Report because of the expiry of the time for an internal review or whether the Tribunal was reviewing 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. 6 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 internal review application. The University appealed against that decision to the Appeal Panel (the "first" matter). This appeal is from the Tribunal's decision in relation to the other categories of documents requested by Mr McGuirk in January 2005. 7 In relation to the third category of documents, the University requested an advance deposit of $2,272. Mr McGuirk did not pay that amount and the University did not make a determination in relation to it. In relation to the first, second and fourth categories of documents, the total amount requested by way of advance deposit was $75.00. On 31 March 2005, Mr McGuirk decided to pay the $75.00 under protest. However the University still did not determine the application within the 14 day time limit. On 17 April 2005, three days after the Tribunal had decided that the University was not entitled to request an advance deposit in relation to the first matter, Mr McGuirk asked the University to return the $75.00. The University returned the money and told Mr McGuirk that it had decided to refuse to continue to deal with his application on the basis that it considered that he had not paid the advance deposit required. 8 On 9 May 2005 Mr McGuirk applied to the Tribunal for an external review of the University's decision in relation to the documents in categories 1 to 4. On 25 August 2005 the Tribunal made the following orders: 1.The University was not entitled to refuse to continue to deal with Mr McGuirk's application; 2.The University is deemed to have made a determination not to provide Mr McGuirk with access to the documents that he was seeking under Parts 1, 2 and 4 of his application; 3.The matter is to be listed for a further planning meeting at the earliest convenient date. 9 The Tribunal did not refer to Mr McGuirk's application in relation to the third category of documents. Preliminary issues 10 A preliminary issue arose. The issue was 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? 11 Paradoxically, before this issue 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 issue. Were the orders irrelevant and/or outside the Tribunal's power to make? 12 The University's first ground of appeal was that the first 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. 13 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. 14 Tribunal's decision. The Tribunal's decision was made "on the papers" pursuant to s 74 of the Administrative Decisions Tribunal Act 1997 (ADT Act) after receiving detailed written submissions from both parties. Those submissions focused on the question of whether the University was entitled to require Mr McGuirk to pay an advance deposit pursuant to s 21 of the Act and whether, if he did not do so, the University could lawfully make a determination under s 22 to refuse to continue to deal with the application for internal review. 15 The Tribunal correctly identified the preliminary issues that it needed to determine at [2] of its decision: The preliminary issues before the Tribunal are 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 That issue was exactly the same issue that the Tribunal said it had to determine in relation to the first matter. The facts are similar to the first matter except that Mr McGuirk paid the $75 by way of advance deposit in relation to the documents in categories 1, 2 and 4 on 31 March 2005. As we have said, Mr McGuirk later asked for a refund of that amount. On 5 May 2005, the University refunded the money and advised Mr McGuirk of its decision to refuse to continue to deal with the internal review application. The University submitted to the Tribunal that it was entitled to refuse to proceed further with the application if the advance deposit was withdrawn. Mr McGuirk submitted to the Tribunal that the University's failure to make a decision within time meant that it was taken to have refused his application for access to the documents. 17 The Tribunal decided that it did not need to deal with the first preliminary issue, namely whether or not the University was entitled to require payment of an advance deposit on internal review. That was because Mr McGuirk had paid the deposit as requested by the specified date - 31 March 2005. The University then had 14 days to determine the application, otherwise it was deemed to have refused access to the documents: s 34(6). Once Mr McGuirk had paid the deposit, the University was obliged to determine his application by no later than 14 April 2005. The Tribunal concluded at [40] that: It follows, in my view, that even if there was power under the Act for the University to request an advance deposit when dealing with an application for an internal review, the University had no authority to refuse to deal with Mr McGuirk's application on the basis of failure to pay an advance deposit after 31 March 2005. Given that the University has not disputed that Mr McGuirk paid the advanced deposit as requested, I am at a loss to understand why the University has adopted the approach it has in this matter. 18 We agree with the Tribunal's reasoning. Regardless of whether it had power to request an advance deposit on internal review, it was not open to the University to refuse to continue to deal with the application in this case. That is because Mr McGuirk had paid the deposit within the specified time and the University had failed to make a determination within a further 14 days. At that point s 34(6) deemed the University to have made a determination refusing access to the documents. It was not necessary for the Tribunal to decide whether or not the University had power to request an advance deposit on internal review and it did not do so. All the Tribunal decided was that in the factual circumstances of this case, the University was not entitled to refuse to continue to deal with the application and that the reviewable decision was the deemed decision to refuse to give Mr McGuirk access to the documents. It follows that we do not accept the University's submission 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 documents. Were orders outside the Tribunal's power to make? 20 The order which the University submitted that the Tribunal did not have power to make was the first order that: The University was not entitled to refuse to continue to deal with Mr McGuirk's 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 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. 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. Were decisions interlocutory and should leave be granted? 23 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. We need to determine 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. That finding was merely a step towards identifying the decision under review. Consequently it was an interlocutory decision and the Appeal Panel's leave is required. 24 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. 25 The University's final ground of appeal was that the Tribunal's finding that the University was not entitled to continue to deal with the application was wrong. When the University made that decision, the time for dealing with the application had expired and Mr McGuirk was entitled to apply to the Tribunal for an external review of the University's deemed refusal to give him access to the documents. In those circumstances we do not agree that the Tribunal's conclusion was wrong. Third category of documents. 26 The Tribunal did not refer to Mr McGuirk's application in relation to the third category of documents. As we have said, the University requested an advance deposit of $2,272 in relation to that category of documents. Mr McGuirk did not pay that amount and, as far as we are aware, the University did not make a substantive (as opposed to a deemed) determination in relation to it. In University of New South Wales v McGuirk (No 2) [2005] NSWADTAP 66 the Appeal Panel decided that the Tribunal had not made an error in finding that the University lacks power to request an advance deposit at the internal review stage. Consequently, as with the other categories of documents, it appears that the reviewable decision in relation to the third category of documents is the deemed decision to refuse to give access to those documents. The Tribunal will have to make a determination in relation to this matter if it is in dispute. We note that the University may apply to the Tribunal for an order allowing further time to deal with the access application: s 56(2). Reporting improper conduct. 27 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. 28 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.