McGuirk v University of New South Wales (GD) [2007] NSWADTAP 31

Appeal Panel - Internal

CITATION: McGuirk v University of New South Wales (GD) [2007] NSWADTAP 31

APPELLANT PARTIES: (Gerard) Michael McGuirk RESPONDENT University of New South Wales

FILE NUMBER: 069073

HEARING DATES: 7 March 2007

SUBMISSIONS CLOSED: 30 May 2007

DATE OF DECISION: 21 June 2007

BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; O'Neill A - Non Judicial Member

CATCHWORDS: Administrative Decisions Tribunal Act - jurisdiction of Appeal Panel - whether appellable decision made - if so, whether appeal can be made out of time

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 053169

DATE OF DECISION UNDER APPEAL: 08/08/2005

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

APPELLANT In person REPRESENTATION: RESPONDENT P Singleton, barrister

ORDERS: Appeal dismissed

REASONS FOR DECISION Introduction 1 On 29 November 2006, Mr McGuirk lodged an appeal against a decision he said the Tribunal made orally on 8 August 2005. Mr McGuirk says that the decision, as recorded in the transcript of the proceedings on that day, was that the Tribunal did not have jurisdiction to hear his application for external review under the Freedom of Information Act 1989 (FOI Act). He says he withdrew his application after the Tribunal had made that decision. 2 The University of New South Wales (the University) says that the Tribunal did not make a decision about jurisdiction in relation to Mr McGuirk's application, either on 8 August 2005 or at any other time. According to the University, Mr McGuirk withdrew his application on 8 August 2005 and the Tribunal dismissed it on that basis. 3 An appeal can only be made to the Appeal Panel from an "appealable decision": Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. The first issue for the Appeal Panel is whether the Tribunal made an appealable decision in relation to jurisdiction on 8 August 2005. If it did, then the second issue is whether the Appeal Panel should accept an appeal against that decision even though it was made approximately 14 months out of time. The law 4 Section 113 of the ADT Act gives a party to proceedings the right to appeal to the Appeal Panel against an "appealable decision". An "appealable decision" is defined in s 112 as follows: (1) For the purposes of this Part, an "appealable decision" of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for: (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or (b) a review of a reviewable decision. (2) Without limiting subsection (1), the following decisions are also appealable decisions: (a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or (b) an order of the Tribunal under section 71 (2) that the parties to proceedings before it may not be represented by an agent of a particular class, or (c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal. (3) A decision of an Appeal Panel (including any such decision made in relation to an external appeal) is not an appealable decision for the purposes of this Part. 5 Mr McGuirk says that the Tribunal made a decision on 8 August 2005 and that that decision is the review of a reviewable decision within s 112(1)(b) of the ADT Act. Mr McGuirk also says that although he did not appeal against the decision until 29 November 2006, more than 15 months after the decision was purportedly made, the Appeal Panel should accept the appeal out of time. Section 113(3) of the ADT Act provides that an appeal is to be made within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision or within such further time as the Appeal Panel may allow. Background to the appeal 6 The background to this appeal was that Mr McGuirk applied to the University under the FOI Act for certain documents. On 17 March 2005, the University made a determination releasing some of the documents but refusing access to others including a memorandum by the University's solicitor, Ms Carol Kirby to the then Vice Chancellor, Wyatt Hume, dated 8 December 2003 (the Kirby memorandum). By letter dated 19 April 2005, Mr McGuirk applied to the Vice-Chancellor, Professor Mark Wainwright for an internal review of the University's determination. The cheque which Mr McGuirk attached to his application was not signed, but the University did not immediately alert Mr McGuirk to that fact. Assuming that he had lodged a valid application for internal review and finding that the University had not responded to that application within the statutory 14 day period, Mr McGuirk applied to the Tribunal for an external review of the University's "deemed refusal" of his application. 7 After Mr McGuirk had lodged his application with the Tribunal, the University's freedom of information officer, Ms Osborn, wrote asking him to forward a signed cheque if he wished to proceed with his application for internal review. Mr McGuirk did so promptly. On 3 June 2005, Mr Mullen, the University's Assistant Solicitor, wrote to Mr McGuirk inviting him to discontinue the application before the Tribunal and telling him that if he did not do so, he intended to rely on the letter in support of an application for costs against him. On 22 June 2005, the University wrote to Mr McGuirk again requesting that he discontinue his application to the Tribunal. The reason the University asked Mr McGuirk to withdraw his application was that, in their view, the Tribunal had no jurisdiction to hear it because given that the cheque was unsigned, he had not made a valid application for internal review. 8 On 20 July 2005, the matter was listed to hear an application by the University that Mr McGuirk's application for review be struck out on the basis that the Tribunal did not have jurisdiction to hear it. The Tribunal heard that application on that day and reserved its decision. On the same day, Mr McGuirk lodged a second application for review of the University's refusal to give him access to the Kirby memorandum. Both matters were listed again on 8 August 2005 for a directions hearing. Another unrelated matter was also listed for hearing on that day. Did the Tribunal make an appealable decision in relation to jurisdiction? 9 Evidence. The evidence before the Appeal Panel on this question is the transcript of proceedings on 8 August 2005 and the material that was before the Tribunal at first instance. The University also tendered a bundle of documents which constituted the procedural history of Mr McGuirk's application to the Tribunal under the FOI Act. The Appeal Panel gave Mr McGuirk until 30 May to file any further evidence if the bundle of documents tendered by the University was not a complete record of the procedural history of the application. Mr McGuirk was also given until 30 May to file any submissions in reply. No evidence or submissions were received by the due date. 10 Transcript of hearing. We set out in full below the transcript of the directions hearing relating to both the first and second applications for the Tribunal to review the University's decision in relation to the Kirby memorandum. The critical passages are underlined. MONTGOMERY: So we're here for a few different matters today between Mr McGuirk and the University. What I'd like to do before we get onto the matter that's in for substantive hearing is to deal with the two directions matters. These are the matters that were heard on the dismissal application - or one of them was a dismissal application, the Kirby memorandum. Mr Mullen told your representatives at the planning meeting when you weren't here that I'd decided that and I know neither of you have got the decision yet. I wanted to discuss it with you in terms of where we go with the two matters because we've got two applications in the Tribunal for the identical document and presumably they can't both proceed. The decision that I have done in the matter that we've heard was that the University was correct in deciding that there was no internal review application and therefore there could be no deemed refusal of an internal review. What I had then decided that I would deal with it under the ADT Act and proceed to determine it anyway. So that's how the two end up overlapping. On reflection, while I still think that was an appropriate way to go it's probably not without debate whether or not the Tribunal has got the power to deal with it under the ADT Act and this is your call, Mr McGuirk, that at the end of the day there could be an appeal on that point and since I'm aware no debate about the jurisdiction under the other one it may be a better way to proceed if that one, the first one, was withdrawn - but it's your call. But I've got two applications for the same document. APPLICANT: You'll recall, Mr Montgomery, that I declined to make a submission-- MONTGOMERY: Yes, I know. APPLICANT: --because as far as I was concerned the whole thing was fruitless, there was no point behind it and I would prefer to make an election which makes things as simple as possible for the Tribunal and expedites matters and if the election, therefore, that I withdraw the first one and stand by the second one, if that is preferable from the Tribunal's point of view and does expedite things then I would rather do that. MONTGOMERY: One of them has to fall by the wayside, I would have thought, and that one - the first one leaves scope at this point for appeal, purely because of the ADT Act provision. While I think that I'm right it may not be the case, and it would be a shame to get to the end of that matter and have an appeal point on that issue when it's not dealing with the substantive issue. APPLICANT: As I said, the issue for me is totally irrelevant, I've got no interest in having that matter decided, so I would rather then to withdraw the first one. If it's possible, and I don't know what the procedure for this is, I'd like to have the material submitted, transferred across, or maybe it's simply a matter of simply resubmitting the material that's already been-- MONTGOMERY: I would have no difficulty in just changing - subject to what your opponents have to say just changing the file numbers on any material that either of you have filed, just to save money and time, but I will hear what the others have to say. APPLICANT: I'm happy to hear what Mr Mullen says on that. MONTGOMERY: In light of what you just said, what I will do is publish the decision on the point of the dismissal just going as far as the decision that there was no internal review application and leave off the part to deal with it under the ADT Act. That may be a point that is worth having published. Do you want to comment on-- SINGLETON: Our first comment is that it's entirely a matter for Mr McGuirk what he does at this point. Either he withdraws his application entirely, in which case it can simply be dismissed, or he might withdraw that part of his application which is an application under the ADT Act to have you proceed with it anyway, but press the balance of the application which would produce the result you just suggested, that you would deliver a judgment that because he had no internal review the Tribunal is without jurisdiction, there would be a dismissal with a judgment on one of the issues or he can press ahead in its entirety and with respect demand both halves of your judgment and in that case we'll have a case still before the Tribunal. But apart from attempting to clarify the three options in that way, it's not for us to make a comment at this stage. Once he's made his decision, the Tribunal will make an appropriate ruling and then we will make such application as we see fit after that. APPLICANT: If I withdraw that application the thing which I would, at the same time, be withdrawing, which I would have some regret about, is the fact that I submitted that the application by the University in this case was misconceived and vexatious and has incurred costs to both myself, the University and the Tribunal, which were entirely unnecessary, and as part of my application I have, in fact, applied for costs in the amount of $1 and the reason for that was, as is quite clear, simply to make the point that the resources of this Tribunal are public resources and are not to be wasted, in exactly the same way the resource of the University are public resources are not to be wasted in this manner. In the overall balance of things I would like to state very clearly, my interest is in the substantive issue, in the first instance. I am concerned that as a result of this application, and I'm talking about the Kirby memorandum and a number of other applications, the University's track record in dealing with FOI matters is becoming clear and that suggests that it is not - and I've submitted this on previous occasions - but it is not-- MONTGOMERY: I hesitate to cut you off but I've heard this submission and it is in your written submissions-- APPLICANT: And it will come back for submission before this Tribunal, yes. I think my interest is that I really want to get to the substantive issues, I don't want to waste this Tribunal's time, nor the University's, nor my own, in which case I say - and I'm happy to put on the record with this - that I will withdraw that application and I will then write formally to the Tribunal confirming that and transfer the matter across, and if it requires refiling that also does not fuss me because all of the material is there, I just need to present it again and re-serve it on the University, I'm happy to do that. MONTGOMERY: Do you have a view one way or the other about transferring material from the original file to the second file? SINGLETON: I'll just get some instruction. APPLICANT: Mr Montgomery, I'd like to actually withdraw that, I will refile. To remove any doubt of the material I will refile. SINGLETON: And I'm saved having to answer. MONTGOMERY: I'll mark the original application as withdrawn and-- APPLICANT: I'll confirm that in writing. MONTGOMERY: Yes. SINGLETON: It should be withdrawn and dismissed with respect. MONTGOMERY: Withdrawn and dismissed, yes. Definition of appealable decision 11 Our task is firstly to make a finding as to whether the Tribunal made an appealable decision on 8 August 2005 and, if so, to identify that decision. An appealable decision is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for a review of a reviewable decision: ADT Act, s 112. Section 112(2)(a) goes on to clarify that an appealable decision includes "a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision." If the Tribunal made a decision that it either did or did not have jurisdiction to review a reviewable decision, then that decision would be an appealable decision. 12 Section 89 describes the procedure the Tribunal must follow when determining an application for the review of a reviewable decision: Tribunal to give decision determining application (1) If the Tribunal makes an original decision or determines an application for the review of a reviewable decision, the Tribunal is to cause a copy of its decision to be served on each party to the proceedings for the decision. (2) The Tribunal may give reasons either orally or in writing for its decision. (3) If the Tribunal does not give reasons in writing for its decision: (a) a party to the proceedings may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to give the party a statement in writing of the reasons of the Tribunal for its decision, and (b) the Tribunal must, within 28 days after receiving the request, give the party such a statement. (4) For the purposes of compliance with subsection (3), it is sufficient if the Tribunal gives the party a copy of a transcript of oral reasons previously delivered that complies with subsection (5). (5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. Reasoning and conclusion 13 The Tribunal formed the view, following the hearing on 8 July 2005, that despite the fact that there had been no valid application for an internal review (because the cheque had not been signed) the Tribunal nevertheless had jurisdiction to hear and determine the matter because of certain provisions in the ADT Act. We understand from the transcript of proceedings on that day that the Tribunal had drafted at least a preliminary decision to that effect in relation to jurisdiction. The transcript makes sense in that context because it talks of "the decision that I have done in the matter". However the Tribunal did not deliver a decision or give reasons, either orally or in writing, for that view. 14 Mr McGuirk did not contend that the Tribunal's view expressed at the beginning of the hearing was an appealable decision. Even if he had made that submission, we find that it was not an "appealable decision" because it was not a final decision and it was not accompanied by either oral or written reasons; nor did either party request reasons. Rather, it was a view that the Tribunal had formed after the hearing on 8 July 2005. Since that time, Mr McGuirk had lodged another application for external review in relation to the same documents. The purpose of the hearing on 8 August 2005 was to resolve how each of the applications in respect of the same matter should be dealt with. 15 The Tribunal indicated to Mr McGuirk that the view that the Tribunal did have jurisdiction to hear and determine the application was not without doubt and that, if a determination was made to that effect, it may be the subject of an appeal. 16 Mr McGuirk then indicated that he would withdraw the application. In light of what Mr McGuirk had said, the Tribunal decided that it would publish a decision concluding that the Tribunal did not have jurisdiction because there had been no valid application for internal review. This was a reversal of the Tribunal's original view that it did have jurisdiction. The second decision is the decision that Mr McGuirk says was an appealable decision. 17 In our view, the second decision was not an appealable decision because it was not a final decision, but merely an expression of intention as to what the Tribunal would do in the future, that is publish a decision expressing a particular conclusion. The intention was expressed in the context of discussing how each of the applications for the same document should proceed. It was not accompanied by either oral or written reasons, nor did either party request reasons. Mr McGuirk said that he should have requested reasons for the decision and that it was an error of judgment on his part not to do so. Even if we accept that assertion, it makes no difference to our conclusion. 18 Mr Singleton clarified the three options that Mr McGuirk had at the point where the Tribunal expressed an intention to publish reasons concluding that the Tribunal did not have jurisdiction. Those options were: a) withdrawing the application entirely, in which case it could simply be dismissed; b) withdrawing that part of his application which is an application under the ADT Act to have the Tribunal proceed with it despite the fact that there was no internal review, which would mean that the Tribunal would hand down a decision that the Tribunal has no jurisdiction because there had been no application for internal review; c) decline to withdraw any part of the application in which case the Tribunal would hand down a decision on both questions that related to the Tribunal's jurisdiction and conclude that the Tribunal did have jurisdiction to proceed. 19 Mr McGuirk selected the first option and withdrew his application in its entirety. The Tribunal noted that the application had been withdrawn and dismissed it. Our conclusion that the decision that the Tribunal did not have jurisdiction was not an appealable decision is supported by the Result Sheet signed by the judicial member, Mr Montgomery, and dated 8 August 2005. There is a tick in the box headed "Application withdrawn – dismissed." There is no reference on the result sheet to a decision having been made about jurisdiction. 20 Our conclusion that Mr McGuirk has not identified an appealable decision makes it unnecessary to consider whether we should extend time for the lodgement of the appeal. Even if we had decided that the Tribunal had made an appealable decision, we would not have been persuaded to extend time for the lodgement of an appeal. There are two main reasons for that conclusion. The first is the fact that Mr McGuirk lodged the appeal more than 14 months after the time had expired for him to do so. The second reason is that Mr McGuirk had already lodged another application to the Tribunal for the same documents. Order Appeal dismissed.