Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48

CITATION: Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48 DIVISION: General Division APPLICANT PARTIES: Rowan Hutchinson RESPONDENT Director General, Roads and Traffic Authority FILE NUMBER: 033180 HEARING DATES: 14/11/2003 SUBMISSIONS CLOSED: 02/04/2004 DATE OF DECISION: 03/10/2004

BEFORE: Higgins S - Judicial Member APPLICATION: Jurisdiction MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT R Banks, solicitor ORDERS: The Tribunal has no jurisdiction to hear and determine Mr Hutchinson's application

BACKGROUND 1 On 7 July 2003, Mr Hutchinson filed an application to review a decision of a delegate of the General Manager of the Roads and Transport Authority ("the RTA") concerning his application for access to documents under the Freedom of Information Act, 1989 ("FOI Act"). The decision of the RTA related to the estimated costs of dealing with Mr Hutchinson's FOI application, which had originally been made on 30 November 2002 ("initial FOI application"). Mr Hutchinson's initial FOI application sought access to fourteen differently described categories of documents. These were as follows: - his application to the Government and Related Employees Appeal Tribunal; - the RTA's costs in respect of such an appeal; - information held about him by specified RTA officers; - investigations and outcomes into the waste of public money on roadworks by the RTA; - all convictions, judgments and infringements by the RTA under the Occupation Health and Safety Act; - the costs of a "rest area" on the Hume Highway at Gunning Gap; - the concrete pavement failures and rectification works on the F3 freeway; - means by which the RTA would meet its stated objectives of having the safest roads in the world by 2010; - the statistics on driver licence suspension and motor vehicle registration cancellation due to the non payment of fines; - road pavement designs and their location on the Pacific Highway; - design and cost of concrete pavement repairs to the Hume Highway at Gundagai; - justification for a new bridge construction at Mittagong on the Hume Highway; - ICAC investigations into the RTA. 2 After receiving Mr Hutchinson's initial FOI application, on 13 December 2002, the RTA advised Mr Hutchinson that it estimated that the costs involved in processing his FOI application would be $354,000. This cost was calculated on the basis of $30 per hour for approximately 11,800 hours. On the basis of these calculations the RTA refused to give access to the documents sought by Mr Hutchinson under s.25(1)(a1) of the FOI Act in that the work involved in dealing with his application, if carried out, would substantially and unreasonably divert the RTA's resources away from their use by the RTA in the exercise of its function. In accordance with s.25(5) of the FOI Act the RTA invited Mr Hutchinson to modify his request and request a review of the RTA's decision. 3 On 8 January 2003, Mr Hutchinson modified the terms of his initial FOI application and requested a review of the abovementioned decision of the RTA. In response to that modification, on 20 January 2003, the RTA wrote to Mr Hutchinson advising him it had revised its estimate of costs in dealing with his FOI application. The revised costs were $5,700, which was calculated on the basis of $30 per hour for approximately 190 hours. The RTA again refused access to the documents sought on the basis of s.25(1)(a1) of the FOI Act and invited him to further modify his request. 4 On 28 January 2003, Mr Hutchinson sought an internal review of the RTA's determination of 20 January 2003. Mr Hutchinson also further modified his FOI application on 1 February 2003. The RTA conducted an internal review on the basis of Mr Hutchinson's further modified FOI application. The internal review was finalised on 12 February 2003 and the RTA revised its estimate of costs to be $1,710. The fee was calculated on the basis of $30 per hour for approximately 57 hours. The internal review also appears to request the payment of a deposit of $760 before the RTA would commence processing the FOI application. 5 On 24 February 2003, Mr Hutchinson filed an application with the Tribunal seeking review of the abovementioned RTA internal review decision ("the first external review application")(File No 033049). On 28 March 2003, at a planning meeting for the first external review application, the parties agreed that Mr Hutchinson would indicate the priority in which the RTA was to process his modified FOI application of 1 February 2003. That list was provided on 5 April 2003 and Mr Hutchinson offered to pay $500 for the costs of dealing with his modified FOI application. 6 On 14 May 2003, at a further planning meeting, Mr Hutchinson again modified the terms of his FOI application. At the same planning meeting, by consent, Judicial Member, M. Robinson, set aside the internal review decision of the RTA and remitted the matter back to the RTA for reconsideration pursuant to s.63(3)(d) of the Administrative Decisions Tribunal Act, 1997 ("ADT Act"). 7 Following the planning meeting there was some more correspondence between the parties where the RTA sought clarification from Mr Hutchinson. As a result of this Mr Hutchinson again modified his FOI application, this being his fourth modification. As a result of this fourth modification the RTA also revised its costs. These were contained in a letter, dated 16 June 2003, to be $3,285. The costs were calculated on the basis of $30 per hour for 73 hours and the RTA required an advance deposit of $2,190. 8 In a letter, dated 4 July 2003, Mr Hutchinson requested the RTA to process his fourth modified FOI application in a particular order and he paid $540 towards the RTA's costs. In that letter he also indicated that he would again seek external review of the RTA's decision of 16 June 2003 (see [7] above), as in his opinion the costs calculated were excessive. Mr Hutchinson made that application on 7 July 2003, which is the application to which these proceedings relate. 9 This external review application came before me on 26 August 2003 at a planning meeting. At this planning meeting the parties gave a brief outline of the history of the matter and informed me that Judicial Member, M Robinson had merely referred Mr Hutchinson's FOI application back to the RTA to enable the parties to discuss their differences and if those differences could not be resolved to bring the matter back before the Tribunal. 10 Between 4 July 2003 and 26 August 2003, the RTA began processing Mr Hutchinson's fourth modified FOI application in the order requested by him. The application was processed until such time as the RTA estimated it had expended the $540 that had been advanced by Mr Hutchinson. As a result of this Mr Hutchinson was given access to some of the documents he had requested. The RTA also advised Mr Hutchinson on 15 August 2003, details of how the $540 had been expended in dealing with his application. 11 At the planning meeting of 26 August 2003 no questions were raised as to the Tribunal's jurisdiction to hear Mr Hutchinson's application and the matter was set down for hearing on 14 November 2003. The parties also agreed that there were only two matters in dispute. These were: a) the reasonableness of the RTA's costs estimate of 12 February 2003 (at [7] above) in respect of five categories of Mr Hutchinson's fourth modified FOI application; and b) whether the documents relating to the investigations and outcomes into the waste of public money on roadworks by the RTA were exempt on the basis the documents belonged to the Audit Office. The RTA had advised Mr Hutchinson of this position in their letter of 15 August 2003. HEARING 12 A few weeks prior to the hearing, the solicitors for the RTA, raised a jurisdictional issue for the first time in their written submissions. The essence of these submissions were that the RTA's decision, as set out in the letter of 16 June 2003 (at [7] above) was not a decision that was reviewable by the Tribunal. That is, it was a decision under s.21 of the FOI Act and not s.24 of that Act. However, the submission went on to state that the RTA's internal review decision of 12 February 2003 (at [4] above), that was the subject of the first external review application by Mr Hutchinson, was a reviewable decision. It was also submitted that the parties and the Tribunal had not intended the first external review application to be dismissed, despite what had been recorded in the Tribunal's records. That is, it was submitted that at all times it was the intention of the parties and Judicial Member, M Robinson that Mr Hutchinson's application be dealt with pursuant to s.65(1) of the ADT Act and not s.63(3)(d) of the ADT Act. The submission went on to state that this error could be rectified by virtue of s.87 of the ADT Act (the slip rule). 13 As a copy of the orders made by Judicial Member M Robinson were not available when the hearing commenced on 14 November 2003 and the parties were in agreement that the matter proceed subject to the rectification of the Tribunal's record of the orders made in the first external review application (matter No 033049), the Tribunal heard evidence on the two matters that remained in dispute between the parties. 14 Subsequent to the hearing, on 10 December 2003, the parties, by consent, filed an application with the Tribunal, pursuant to s.55(2)(c) of the ADT Act, that this external review application be dealt with by the Tribunal in order to protect the Mr Hutchinson's interests. That is, the parties made an application that the Tribunal hear and determine Mr Hutchinson's application for the review of the RTA's decision of 16 June 2003, notwithstanding the fact that an internal review had not been requested or conducted. 15 The Tribunal notes that the orders made in the first external review application have not been amended. Accordingly, that application remains dismissed. JURISDICTION ISSUES 16 In light of the fact that the decision of the Tribunal in the first external review application have not been amended, the question of whether the Tribunal has jurisdiction to hear Mr Hutchinson's current application remains a live issue. For the reasons that follow, the Tribunal is of the opinion that it does not have jurisdiction to hear and determine this application. RELEVANT LEGISLATION 17 The FOI Act gives every person a legally enforceable right to be given access to an agency's documents, subject to an agency's right to refuse access to a document in certain specified circumstances (see s.16 and s.25, FOI Act). 18 When considering an application for access to a document, an agency is required to determine the following: a) whether access to the document is to be given or refused, and b) if access to the document is to be given – any charge payable in respect of the giving of access, and c) any charge payable for dealing with the application. (see s.24(1), FOI Act). 19 In respect of any charge being payable for dealing with an FOI application, s. 21 of the FOI Act enables an agency to request an FOI applicant to pay an advanced deposit where the agency has determined that its costs in dealing with the application exceeds the application fee. The request for a deposit is to be in the form of a notice that sets out the basis on which the costs have been calculated (s.21(4) FOI Act) and subsection 21(5) provides that the deposit is payable to the agency within the period specified in the notice. 20 Where an agency requests a deposit, s.22 of the FOI Act provides that an agency may refuse to continue to deal with an application where that deposit is not made within the time requested. That section, provides as follows: "22(3) An agency may refuse to continue dealing with an application if: (a) it is requested payment of an advance deposit in relation to the application, and (b) payment of the deposit has not been made within the period of time specified in the request. (4) If an agency refuses to continue dealing with an application under s(3): (a) it shall refund the applicant such part of the advance deposit as paid in respect of the application as exceeds the costs incurred by the agency in dealing with the application, and (b) it may retain the remainder of those deposits. (5) An agency that refuses to continue to deal with an application under this section must forthwith cause written notice of that fact to be given to the applicant. (6) 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". 21 Division 2 of Part 5 of the FOI Act makes provision for review of determinations ("decisions"), by an agency, under that Act to this Tribunal. Sub section 53 (1) provides that a person who is aggrieved by a decision made by an agency, inter alia, under s.24 may apply to the Tribunal for a review of the decision. That right of review is subject to the agency having carried out an internal review under Division 3 of Part 3 of the FOI Act. (see s.53(3)). 22 Paragraph 53(3)(a)(iv) of the FOI Act provides that a person is aggrieved by a decision if the decision is to the effect that access to a document is subject to a charge for dealing with the FOI application and the person considers the charge to be unreasonable. Paragraph 53(3)(a)(v) of the FOI Act provides that a person is aggrieved where the person has been charged for dealing with his/her FOI application and the person considers the charge to have been unreasonably incurred. 23 Section 67 of the FOI Act provides that the Minister may, by order published in the Gazette, establish guidelines in relation to the imposition, collection, remittal and waiver of fees and charges under the Act. Paragraph 67(3A)(a) of the FOI Act provides that the Tribunal is to take into account the guidelines which are in force under the section when reviewing a determination described in s.53(3)(a)(iv) or (v) of the Act. 24 An order was published pursuant to s.67 on 30 June 1989 and the contents of that order are not in dispute in this application. 25 Section 38(1) of the Administrative Decisions Tribunal Act, 1997 gives this Tribunal jurisdiction to review a decision of an administrator where the enactment provides that applications may be made to the Tribunal for review of any such decision. That section provides as follows: "s.38(1) 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 decisions (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 function of the administrator identified by the enactment". 26 Section 5 of the ADT Act defines the term "enactment" to mean, in relation to a reviewable decision, an Act or a statutory rule other than the ADT Act or the statutory rules made under the ADT Act. 27 Section 55 of the ADT Act sets out when an application for a review can be made. That section, so far as is relevant, provides as follows: "s.55(1) A person may apply to the Tribunal for a review of a reviewable decision only if (a) the application is made by an interested person, and (b) an internal review is taken to have been finalised under s.53(9), and (c) the application is made in the manner prescribed by the rules of the Tribunal, and (d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under s.53(9). (2) However, sub-section (1)(b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under s.53 if the Tribunal is satisfied that: (a) … (b) … (c) It is necessary for the Tribunal to deal with the application in order to protect the person's interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned". REASONS AND DECISION 28 The first matter for determination is whether the decision of the RTA that is the subject of this application, namely the decision contained in the letter of 16 June 2003 (at [7]) is a reviewable decision. In the opinion of the Tribunal there are two decisions contained in that letter, which were made pursuant to the FOI Act. The first decision is a decision under paragraphs 24(1)(a) and (b) of the FOI Act in that the RTA determined that a charge was payable in respect of Mr Hutchinson's fourth modified FOI application and that this charge was estimated to be $3,285. The second decision is the decision to request an advance deposit of $2,190. While that decision was made pursuant to s.21(4) of the FOI Act, in the opinion of the Tribunal, it was equally a decision made pursuant to paragraphs 24(1)(b) and (c) of the FOI Act. Having regard to the purpose and objectives of the Act there is no basis on which sections 21 and 24 should be construed as being mutually exclusive of each other. Indeed the contrary would appear to apply. 29 Accordingly, the decisions of the RTA were decisions that came within the terms of sub section 53(1) of the FOI Act in that they were made under s. 24 of the FOI Act and Mr Hutchinson was a person aggrieved within the terms of paragraphs 53(3)(a)(iv) and (iv). 30 In the opinion of the Tribunal, sub section 22(6) of the FOI Act cannot be interpreted to limit the operation of sections 21 and 24. Section 22 gives an agency the power to refuse to continue to deal with an FOI application where the FOI applicant had failed to pay the requested advanced deposit within the time requested. Such a refusal is distinct from the refusals set out in s.25 of the FOI Act and in the opinion of the Tribunal, Parliament has inserted sub section 22(6) to make it expressly clear that a refusal under that section is equally a reviewable decision. 31 For the reasons stated above, the Tribunal finds that the decision of the RTA that is the subject of review in this external review application is a decision coming within the terms of sub section 53(1) of the FOI Act. However, sub section 53(2) of the Act qualifies sub section 53(1) in that an application for review cannot be made while the decision is subject to a right of internal review under s.34 (s.53(2)(a)), or where the decision was the subject to an internal review and no application for review was made during the time prescribed for such an application (s53(2)(b)). In this case, there is no dispute that an application for internal review was not requested and the time for such a request has long expired. This would appear to have arisen as a result of the parties misunderstanding as to the effect of the orders that were made in the first internal review application. 32 As the period for an application for an internal review has expired (see s.34(2)(e)(i) FOI Act) and no provision is made for the extension of that period, in this case, Mr Hutchinson's application for external review was made prematurely. 33 This leaves the parties' application under sub section 55(2) of the ADT Act and whether that sub section can be invoked to give the Tribunal jurisdiction to hear and determine this external review application. Given the history of this matter, this could be seen as being the most practical approach. However, the Tribunal cannot give itself jurisdiction to hear and determine an application for review on this basis. 34 The Tribunal's jurisdiction to review the decision of an administrator is found in sub section 38(1) of the ADT Act. That section only gives the Tribunal jurisdiction to review a decision of an administrator where an Act, other than the ADT Act, makes provision for the review of decisions made under that Act. That is, the Tribunal's jurisdiction to review a decision of an administrator must be found in an Act other than the ADT Act. In this case, the relevant Act is the FOI Act and while sub section 53(1) of that Act provides for applications to the Tribunal to review the decisions made by the RTA the subject of this external review application, such applications can only be made where an internal review has been requested pursuant to section 34 of the FOI Act. 35 The fact that sub section 55(2) of the ADT Act makes reference to the Tribunal being able to deal with an application notwithstanding the fact that an internal review has not taken place is of no assistance, as the "internal review" referred to in that section is the internal review mechanism contained in section 53 of the ADT Act. This section is of general application to all decisions that are reviewable by the Tribunal and is arguably a procedural step that must be taken before an applicant is able to make an application for review. However, the "internal review" requirement under sub section 55(2) of the FOI Act is a threshold that must be met before a decision under the FOI Act is reviewable by the Tribunal. That is, it goes directly to the question of the Tribunal's jurisdiction to hear and determine an application for review of a decision under that Act. If the FOI Act internal review requirement is not satisfied then the Tribunal has no jurisdiction to hear and determine an application for review. 36 Accordingly, as Mr Hutchinson failed to request an internal review of the RTA's decision of 16 June 2003, the Tribunal has no jurisdiction to hear and determine his application for review. 37 The Tribunal orders that the Tribunal has no jurisdiction to hear and determine Mr Hutchinson's application.