CITATION: Canobolas Heritage Railway Society Inc v General Manager, Bathurst Regional Council [2005] NSWADT 61 DIVISION: General Division APPLICANT PARTIES: Canobolas Heritage Railway Society RESPONDENT General Manager, Bathurst Regional Council FILE NUMBER: 043029 HEARING DATES: 22/02/2005 SUBMISSIONS CLOSED: 03/22/2005 DATE OF DECISION: 03/21/2005 BEFORE: O'Connor K - DCJ (President) APPLICATION: Jurisdiction MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: APPLICANT REPRESENTATION: R Cianfrano, agent RESPONDENT J Clague, FOI Officer ORDERS: 1. The application for review is dismissed for want of jurisdiction in so far as it relates to the access application made 3 September 2003; 2. The application is within jurisdiction in relation to the access application made either 11 September 2003 or 14 October 2003, and the subject of an agency determination dated 20 October 2003; 3. Further planning meeting to be convened REASONS FOR DECISION 1 The Tribunal has had before it the applicant's application for review of determinations said by it to have been made by the respondent under the Freedom of Information Act 1989 (the FOI Act). (The parties will be referred to as the Society and the Council in these reasons.) As a result of a planning meeting held on 19 October 2004 the Tribunal decided to make a decision on the papers on two issues: (i) whether certain documents are exempt documents on the ground of legal professional privilege; and (ii) the advance deposit issue. 2 The review application has its origins in the Society's access application to the Council dated 2 September 2003. The application requested all documents held by the Council: (i) covering the period November 1988 to September 2003 in connection with the Central Western Railway Preservation Society Inc and the Society; and (ii) covering the period November 1988 to December 1991 in connection with 'the purchase' by those two organisations of a steam engine, known as the Ben Chifley Steam Engine, and five FS Class locomotive carriages and (iii) including in respect of (ii) all documents concerning 'Steam Locomotive spare parts which were removed from …[the Society's] Louvre Van at the time of the removal of the Ben Chifley (5112) Steam Engine'. 3 This is referred to as the 'primary request' in these reasons. 4 In a letter dated 14 October 2003 the Society stated that an additional request that it had made in a further letter, dated 11 September 2003, was a 'second Freedom of Information application'. The Council actioned this request as a separate request. This is referred to as the 'second request' in these reasons. 5 The Society's application for external review by the Tribunal lodged on 6 February 2004 had attached to it a letter dated 12 September 2003 from Mr Clague, the Council's Freedom of Information officer. The Society referred to that as the determination of which it was seeking review. For reasons which appear below it clearly was not a determination of any kind. 6 The parties participated in planning meetings at the Tribunal on 9 March 2004, 8 June 2004, 28 July 2004 and 15 September 2004. During that process the Council identified many of the documents relating to the primary request. There was some reduction by the Society in its demands. As a result at the next planning meeting held on 19 October 2004 the Tribunal decided to deal with the issues referred to in para [1] above. The planning meetings had proceeded without any objection to jurisdiction, and without the Tribunal considering the point. In the course of preparing its decision on these matters, the Tribunal formed the provisional view that the application for review may have been filed out of time, with the result that the Tribunal was without jurisdiction. The Tribunal asked the parties to make submissions. 7 On 22 February 2005 the Tribunal held a telephone conference with the parties. The following information, not disputed by the applicant, has been given to the Tribunal by Mr Clague: 2 September 2003 – access application lodged with Council (the primary request) 12 September 2003 – Council requests advance deposit in respect of the primary request 17 September 2003 – Applicant lodges 'second' FOI application (the second request) 21 October 2003 – Council issued a formal determination in relation to the second request (see letter dated 21 October 2003 from Mr Clague attaching determination dated 20 October 2003). Continued to await payment of advance deposit in respect of the primary request (see letter dated 20 October 2003 from Mr Clague) 3 November 2003 – Internal review application lodged with Council – No response to internal review application. 6 February 2004 – Application for review lodged with Tribunal. 8 The Primary Request. Advance Deposit Disputes. Jurisdiction. An agency is permitted to refuse to continue to deal with an access application if it has requested payment of an advance deposit and the deposit is not paid in the time specified in the request for the advance deposit: FOI Act, s 22(1). The letter of 12 September 2004 sent by Mr Clague contained a request for an advance deposit, though it did not set a time period. The matter had certainly not reached the point of a refusal to continue to deal with the access application. Such a refusal is taken to be a determination for the purposes of the FOI Act. It is subject to internal review and external review: see s 22(5). 9 The time for dealing with an access application (21 days) is suspended when a request for an advance deposit is issued: s 21(6). The FOI Act does not deal with a situation where an access applicant objects outright to paying an advance deposit, and then the agency does not go ahead and issue a notice to refuse to continue to deal with the application. 10 The FOI Act has a strict regime in relation to the path that an access application must follow before proceedings can be taken against an agency in the Tribunal. There must be an original determination by the agency (or a failure to determine the application giving rise to a deemed refusal (see s 24(2)); and then there must be an application for review by the access applicant, followed by an internal review determination (or a deemed refusal, see s 34(6)). 11 In reply to the letter of 12 September 2003, the Society objected to the request for payment of an advance deposit. This led to Mr Clague's letter dated 20 October 2004. It raised as an alternative for consideration that representatives of the Society attend the Council offices and inspect the documents sought, to the extent that they were not the subject of claims for exemption. Clearly at this stage the Council again had not made a final decision to refuse to continue with the access application. The Council has never issued a notice not to continue to deal with the request. 12 Here there has been no determination issued in respect of the advance deposit issue, so the first base has not been reached. It is probably open (though the Tribunal does not need to decide this question on this occasion) to argue that a failure to issue a notice to refuse to continue to deal with the application, after an advance deposit request has been made and declined, could amount to a refusal to deal with the access application itself, and the deemed refusal provision would apply. 13 Here it is clear that Mr Clague was seeking in the letter of 20 October 2003 genuinely to continue to find a way of resolving the advance deposit issue. It would not be fair to treat this as the point at which a deemed refusal could be said to have arisen. 14 In the instance, therefore, of the primary request, the position was never reached where an original determination issued (or a deemed refusal could be said to have occurred). 15 The document lodged by the Society on 3 November 2003 states that the applicant had been refused access to a document. At this point no such refusal had occurred in respect of the primary request. In the Tribunal's opinion, it is clear that this application related to the second request, for reasons given below. 16 Accordingly, the Tribunal has been without jurisdiction in respect of the primary request, albeit that it has been the subject of a number of planning meetings, and there has been some reduction in the scope of the dispute between the parties as a consequence of those meetings. 17 The Second Request. Jurisdiction. This access application was the subject of a formal determination, dated 20 October 2003 provided under cover of a letter dated 21 October 2003. The determination addressed the two categories of documents mentioned in the request – 'documents in relation to the meeting at Orange on 24 July 2003' and 'a list of steam parts and other items removed from the Society's premises at the time of removal of the Ben Chifley (5112) steam engine'. As to the first aspect, the determination stated that two of the four documents identified had already been provided directly, and a third document had been sent to the Society's solicitor. The fourth document was the subject of a claim for exemption. As to the second aspect (the list), the determination stated that no such document was held by the Council. 18 In his reply, Mr Clague provided the Society with a pamphlet headed 'Your rights to review and appeal'. It is the form in that document that the Society completed in making the internal review request already mentioned. It is clear, the Tribunal considers, that this request only related to the determination dated 20 October 2003. The Council did not make an internal review determination. The result, therefore, is that by 18 November the fourteen days in which an agency is required to deal with the request had passed, and that is the date of the deemed refusal. 19 So the time for lodging an application for external review with the Tribunal commenced to run at that point. The FOI Act allows 60 days for lodgment of an external review application: s 54(a). So the application as it relates to the second request needed to be with the Tribunal not later than 17 January 2004. It was late by 17 days. 20 The Tribunal does, I consider, have a discretion to give leave to deal with the application out of time in these circumstances. The FOI Act is not a complete code as to the Tribunal's powers in dealing with late applications for review of determinations. The Act disapplies only some of the provisions relating to the general procedures of the Tribunal found in the ADT Act. Relevantly to this case, the FOI Act at s 53(5) provides: 'The provisions of this Division [the Division deals with external reviews by the Tribunal] apply to a review application to the exclusion of s 55(1)(d) … of the Administrative Decisions Tribunal Act 1997 '. 21 Section 55 is the general provision dealing with the time requirements for making an application for review of a reviewable decision. Section 55(1)(d) provides: '(1) A person may apply to the Tribunal for a review of a reviewable decision only if: …(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 section 53(9).' 22 Notably the Act does not disapply s 57 of the ADT Act which deals with late applications for external review, and provides: ' 57 Late applications to Tribunal (1) Despite section 55 (1) (d), the Tribunal may, on application in writing by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. (3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).' 23 It is clear from the words in parenthesis in s 57(3) that the FOI Act's provisions are brought within the scope of s 57. 24 Therefore the Tribunal can decide to permit a late application in respect of the application for review as it relates to the second request. The applicant has made submissions going to this issue, and there has never been any objection by the Council to the Tribunal dealing with the matters in dispute. In fact, as already indicated, there has been some progress achieved in the planning meetings. The delay in making the application for external review was not a significant one. 25 The Tribunal is satisfied that there was a reasonable explanation for the delay, and leave is given for the application to continue to proceed in relation to the second request. 26 In light of this decision a further planning meeting will be held to consider what issues remain to be dealt with. Order 1. The application for review is dismissed for want of jurisdiction in so far as it relates to the access application made 3 September 2003. 2. The application is within jurisdiction in relation to the access application made either 11 September 2003 or 14 October 2003, and the subject of an agency determination dated 20 October 2003. 3. Further planning meeting to be convened. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.