Cianfrano v NSW Premier's Department [2007] NSWADT 206

CITATION: Cianfrano v NSW Premier's Department [2007] NSWADT 206

DIVISION: General Division

APPLICANT PARTIES: Robert Cianfrano RESPONDENT NSW Premier's Department

FILE NUMBER: 073014

HEARING DATES: 7 August 2007 and 28 August 2007

SUBMISSIONS CLOSED: 28 August 2007

DATE OF DECISION: 6 September 2007

BEFORE: Wilson R - Judicial Member

CATCHWORDS: access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Freedom of Information Act 1989

APPLICANT In person on 7 August 2007 REPRESENTATION: In person with C Saggers, agent on 28 August 2007

RESPONDENT J Brown, solicitor

ORDERS: 1. The application for summary dismissal is dismissed; 2. The substantive application before the Tribunal is listed for hearing on 5 December 2007

REASONS FOR DECISION 1 These proceedings are brought by way of application pursuant to the Freedom of Information Act 1989 whereby the applicant is seeking review of a determination made by the respondent under that Act. This is the substantive application, the matter in issue being sufficiency of search. During the course of interlocutory steps the respondent raised a preliminary issue which, it was said, concerned the jurisdiction of the Tribunal to entertain these proceedings. The respondent sought to have this issue determined in a preliminary hearing, a course which was consented to by the applicant. The parties agreed that the evidence relevant to this issue could be succinctly adduced independently of evidence relevant to the substantive issues and therefore a preliminary hearing would be an efficient way of proceeding. 2 This jurisdictional issue then came on for hearing on 07 August 2007, relevant evidence and submissions having been filed beforehand. Some additional materials were also filed on the day by consent. 3 Much of the evidence adduced is not in dispute and there is much common ground between the parties as to the relevant circumstances and factual findings that the Tribunal should make on this evidence. These circumstances and findings are essentially as follows. On 31 October 2006 the applicant lodged an application with the respondent agency under the Freedom of Information Act 1989. On 15 December 2006 the respondent made a determination in relation to this application. The applicant did not receive notification of this determination until 28 December 2006. Prior to receiving that notification the applicant, on 19 December 2006, prepared an application for internal review in the belief that no determination had in fact been made within the prescribed time allowed. The parties agree that at this stage the applicant was entitled to seek internal review, whether by way of deemed refusal following effluxion of time or by reason of the determination that in fact was made on 15 December 2006. 4 On 19 December 2006 the applicant sent this application for internal review to the respondent in two ways. He firstly sent a facsimile transmission of the application to the respondent using a receiving number of (029) 2284 421, a number that he had used in the past to communicate with the respondent agency. He also forwarded a copy of this application to the respondent by way of post addressed to "NSW Premier's Department, GPO Box 5431, Sydney NSW 2001" (see document shown as annexure "G" to the applicant's submissions exhibit A1). A cheque to meet the requisite application fee was enclosed with this letter. 5 The fate of the facsimile transmission is unknown, as there is no direct evidence indicating that it was ever received. The copy document (annexure G) itself does not bear any transmission indicia and the agreed fact that the transmission report notes that the document was sent on 19 December 2006 at 22:45 hours based, as it was, on perusal of the applicant's transmission report only proves, directly, the actions at the sender's end. The inference is of course open that this transmission was in fact received at the receiver's number shortly after sending, but the Tribunal is not persuaded that this inference should be drawn without some evidence showing that this was more likely than not. Consequently, no findings ought to be made as to the fate of this facsimile transmission. Further, the Tribunal is satisfied that the letter placed in the post that same day was, in any event, intended by the applicant to be the application for internal review as it was the letter, rather than the facsimile, that was accompanied by the requisite fee (s.34(2)(b) of the Act). The better view is that the facsimile was advance notice that the application was being sent. 6 The postal communication, or a copy thereof, is in evidence as annexure "G" (as mentioned above, this being the copy retained by the applicant) and as annexure "A" to the respondent's submissions (exhibit R2). As unfolded during the course of argument, annexure "G" has upon it a post office sticker and the applicant's hand written notes concerning the cheque sent with the letter in the post. Annexure "A" has impressed upon it an ink stamp noting "RECEIVED, 22 DEC 2006, PREMIER'S OFFICE" and bears a handwritten notation in relation to the cheque that accompanied the original letter. Clearly, the original letter was received as that stamp notation records. The handwritten notation records details of the cheque consistently with the applicant's notations on annexure "G", appears to be signed and bears the handwritten date "09/01/07". These details are confirmed by an issued receipt which is annexure "I" to exhibit "A1". 7 The applicant's initial application under the Freedom of Information Act 1989 is dated 31 October 2006 and it appears as the second last document in exhibit R1. This copy document bears an ink impression "PREMIER'S DEPARTMENT, RECEIVED, 7 NOV 2006, MINISTERIAL AND PARLIAMENTARY SERVICES". The format of this ink stamp is quite different to that of the inked impression on annexure A (exhibit R2 above). This suggests that there is some difference between the way that annexure A was received when compared with the way in which the original application was received. Officers with the responsibility of recording the date of receipt of incoming communications have used quite different stamps. 8 On 11 January 2007 a letter (annexure B exhibit R2) is sent to the applicant under the letterhead of "NSW Premier's Department" advising that annexure A was received in the "Premier's Office" on 22 December 2006 and that it was then forwarded to the "Premier's Department" on 09 January 2007. The critical question for present purposes then becomes whether the receipt of annexure A on 22 December 2006 in the "Premier's Office" was, or was not, the relevant act of receiving (by the agency in question) the applicant's application for internal review for the purpose of s.34(6) of the Act. If it was, then the 14 day period specifies in s.34(6) starts to run on this date: and it follows that the application to the tribunal on 18 January 2007 was competent so as to confer jurisdiction upon the Tribunal. However, if the relevant date for determining when the relevant Agency received the internal review application was 09 January 2007, that is, when annexure A reached the Premier's Department, then the 14 day period had not expired by the time of the application to the Tribunal. If this be the case then the application was not competent and, it is argued by the respondent, the Tribunal does not have jurisdiction to entertain the application that the applicant has brought. The answer to this question depends upon whether the relationship between the "Premier's Office" and the "Premier's Department" is such that the receipt of annexure A by the former on 22 December 2006 constitutes the receipt by the agency of the relevant application for internal review. 9 At the conclusion of the hearing on 07 August 2007 the parties expressed a wish for further time to enable them to file further submissions should they be so advised. For this purpose the proceedings were stood over to 28 August 2007 by which time the respondent has informed the applicant that the jurisdictional point would no longer be pressed. At the hearing on 28 August 2007 the respondent confirmed that this was still the position. Whilst the respondent was content to deal with the dismissal of the jurisdictional issue informally the applicant sought a formal determination of this point. 10 It was during the course of their preparation of the respondent's case that the respondent's legal advisors first noticed the jurisdictional point. They promptly raised it in the proceedings. Whilst preparing the additional submissions a different view was formed and the respondent again raised the matter promptly. Consequently the jurisdictional argument is no longer at issue between the parties and they both consent to its dismissal. The proper way to do this is by way of a direction that it be so dismissed. This leaves the proceedings free to continue to a substantive hearing. 11 As the parties are in agreement with this course the Tribunal has no need to reach a determination as to the jurisdictional argument on the merits. 12 The applicant has not sought an order for costs thrown away but has indicated that he wishes to seek an order pursuant to s.58 of the Tribunal's enabling legislation. An allegation of this nature is a serious matter and should not be dealt with without notice and without a full exposition of the factual basis upon which it is made. After discussion it was agreed between the parties that the appropriate time to do this would be at the substantive hearing of the application, as this would remove avoidable delay. 13 At the conclusion of the hearing on 28 August 2007 the Tribunal made directions for the filing and service of evidence and submissions in relation to the substantive hearing, including the applicant's s.58 application and set the matter down for hearing on 05 December 2007. The directions made are noted on the Tribunal's file. 14 The orders made are as appear above.