McGuirk v University of New South Wales (GD) [2007] NSWADTAP 4

Pending Appeal :

Appeal Panel - Internal

CITATION: McGuirk v University of New South Wales (GD) [2007] NSWADTAP 4

APPELLANT PARTIES: Michael McGuirk RESPONDENT University of New South Wales

FILE NUMBER: 069018

HEARING DATES: 20/07/2006

SUBMISSIONS CLOSED: 20 July 2006

DATE OF DECISION: 10 January 2007

BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member

CATCHWORDS: jurisdiction - lack of internal review - effect of

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 053268

DATE OF DECISION UNDER APPEAL: 03/20/2006

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

CASES CITED: Druett v Director General, Department of Community Services [2003] NSWADT 127 Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48

APPELLANT In person REPRESENTATION: RESPONDENT P Singleton, Barrister

ORDERS: The Tribunal's decision is set aside on the ground that it had no jurisdiction to review the respondent's decision to refuse to continue to deal with the applicant's application.

REASONS FOR DECISION Introduction 1 On 19 April 2005, Mr McGuirk applied to the University of New South Wales for access to several documents and categories of documents under the Freedom of Information Act 1989 (FOI Act). The University requested an advance deposit of $510 by 11 May on the basis that the costs to the agency of dealing with the application were likely to exceed the $30 application fee: FOI Act, s 21. Mr McGuirk did not pay the advance deposit. Instead, he wrote to the University on 11 May 2005, requesting an internal review of the University's decision to refuse to continue to deal with his application unless he paid an advance deposit of $510. The University had not advised Mr McGuirk that it had made such a decision at that stage. However on the following day, 12 May 2005, the University wrote to Mr McGuirk advising him that it had decided to refuse to continue to deal with his application. 2 On 26 May 2005 the University responded to Mr Guirk's request of 11 May for an internal review of its decision. On review, the University varied its decision by decreasing the amount of the advance deposit to $382.50. The University requested that that amount be paid by 9 June and said that if it was not received by that date it may refuse to continue to deal with the application. Mr McGuirk did not pay the advance deposit and, on 24 June 2005, the University refused to continue to deal with his application. 3 Mr McGuirk applied to the Tribunal for a review of the University's decision of 27 April (to impose an advance deposit of $510) which he says, was confirmed on 12 May when the University decided to refuse to continue to deal with the application. The Tribunal found at [29], that the University was entitled to request the payment of an advance deposit and that the amount sought was not excessive. The Tribunal concluded that the University's decision to refuse to continue to deal with Mr McGuirk's application was the correct and preferable decision and should be affirmed. Mr McGuirk has appeal to the Appeal Panel against that decision. 4 The Tribunal has jurisdiction to review the decision of an agency to refuse to continue to deal with an application: s 22(6). The University's initial decision was made on 12 May 2005. Mr McGuirk requested an internal review of that decision before he had been notified that it had been made. The University conducted an internal review of the decision. However, because the University changed the amount it required Mr McGuirk to pay by way of advance deposit, it gave him a new time period in which pay. It was not until after the expiry of that time period that the University made a second decision to refuse to continue to deal with the application. Mr McGuirk did not apply for an internal review of that decision. 5 The reason this history is relevant is that s 53(2)(b) of the FOI Act prevents an applicant from applying to the Tribunal for external review of a decision if the applicant had a right of internal review but did not apply for internal review during the period in which he or she was entitled to do so. The provisions states that: (2) A review application may not be made: . . . (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, (Emphasis added.) 6 Section 34(2)(e)(i) of the FOI Act states that an applicant has 28 days from the date on which notice of the determination was given, to apply for internal review. Section 53(2)(b) raises the question as to whether Mr McGuirk made an application for an internal review of a reviewable decision "while it was subject to that right". If he did not do so, the second question is what are the consequences of non-compliance with that provision? Did Mr McGuirk apply for internal review while the determination was subject to that right? 7 There is no dispute that Mr McGuirk applied to the Tribunal for a review of the University's decision to refuse to continue to deal with his application because he had failed to pay an advance deposit within the specified period. The University made that decision twice, once on 12 May and again on 24 June 2005. The first determination was subject to a right of internal review under s 34. Section 34 sets out who is entitled to apply for an internal review and the form and content of the application. The University conducted an internal review of the 12 May decision in response to Mr McGuirk's letter of 11 May 2005. Despite the fact that an internal review was conducted, Mr McGuirk did not comply with s 53(2)(b) of the FOI Act because he did not apply for internal review of the decision to refuse to continue to deal with his application within 28 days of receiving notice of the determination: s 34(2)(e)(i). He applied for internal review the day before receiving notice of the determination. 8 If the 24 June decision was not an internal review decision, but a new decision, then Mr McGuirk had a right to ask for an internal review of that decision. He did not do so. It follows that Mr McGuirk did not comply with the requirements of s 53(2)(b) in relation to either decision. What are the consequences of non-compliance with s 53(2)(b)? 9 The ADT Act does not have an equivalent requirement to s 53(2)(b) of the FOI Act. The ADT Act merely prevents a person from applying for external review of a decision unless an internal review "is taken to have been finalised": s 55(1)(b). An internal review is taken to have been finalised if the applicant is notified of the outcome of the review or the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on): ADT Act, s 53(9). In this case, the internal review was finalised, but that does not overcome the fact that Mr McGuirk did not comply with s 53(2)(b) of the FOI Act. (We note that this conclusion is consistent with the conclusion reached by the Tribunal in Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48 at [35] but inconsistent with the conclusion reached in Druett v Director General, Department of Community Services [2003] NSWADT 127 at [9].) 10 Section 38 confers jurisdiction on the Tribunal to review reviewable decisions. Section 38(1) provides that: The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator: a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other functions of the administrator identified by the enactment. 11 The FOI Act gives the Tribunal jurisdiction to review certain decisions: s 53 and s 22(6). Section 38(3) of the ADT Act deals with preconditions for applications in enactments such as the FOI Act. That provision states that: If an enactment makes provision for applications to be made to the Tribunal in respect of a reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enactment only if those conditions are satisfied. 12 In our view, s 53(2)(b) of the FOI Act is a condition within the meaning of s 38(3) of the ADT Act. As that condition has not been satisfied in this case, the Tribunal did not have jurisdiction to conduct an external review. There is no power in the ADT Act to accept an application notwithstanding that the Tribunal has no jurisdiction. Section 73(3) of the ADT Act is of no assistance. That provision states that: The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 13 In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 at [34] and [35] Gummow J considered the equivalent provision of the Migration Act 1958 in the context of an appeal from a decision of the Refugee Review Tribunal. His Honour decided that that provision "does not delimit boundaries of jurisdiction". (See also Rees N, Procedure and evidence in 'court substitute' tribunals' (2006) 28 Australian Bar Review pp 59 –69.) We are acutely aware that our conclusion that the Tribunal did not have jurisdiction is based on what may be regarded as a legal technicality. Nevertheless we must apply the facts to the law as enacted by parliament. 14 Our conclusion makes it unnecessary to determine the substance of Mr McGuirk's appeal. Orders The Tribunal's decision is set aside on the ground that it had no jurisdiction to review the respondent's decision to refuse to continue to deal with the applicant's application.