McGuirk v University of New South Wales [2007] NSWADT 183

CITATION: McGuirk v University of New South Wales [2007] NSWADT 183

DIVISION: General Division

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

FILE NUMBER: 053164

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 9 August 2007

DATE OF DECISION: 13 August 2007

BEFORE: Higgins S - Judicial Member

CATCHWORDS: access to documents - advance deposit and fees and charges - Costs - Freedom of Information Act - access to documents - advance deposit and fees and charges

MATTER FOR DECISION: Principal matter

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

McGuirk v University of New South Wales (GD) [2006] NSWADT AP 40 CASES CITED: McGuirk v University of New South Wales (No.2) [2006] NSWADT 178 McGuirk v University of New South Wales [2005] NSWADT 201 University of New South Wales v McGuirk (No.2) (GD) [2005] NSWADT AP 66

APPLICANT In person REPRESENTATION: RESPONDENT P Singleton, barrister

ORDERS: The applicant's application for costs is dismissed

REASONS FOR DECISION 1 On 9 May 2005, Mr McGuirk ('the applicant') lodged an application with the tribunal seeking review of a decision of the University of New South Wales ('the respondent') to refuse him access to documents that he had requested pursuant to the Freedom of Information Act 1989 ('the FOI Act'). The applicant had made his FOI request on 21 January 2005 and when the respondent failed to make a determination within the period described in s.24(2) of the FOI Act (i.e. 21 days), on 15 February 2005, he sought an internal review pursuant to s.34(6) of the FOI Act. The respondent replied on 1 March 2005 requesting that the applicant pay an advance deposit if he wished the respondent to proceed with his application. This request was made pursuant to s.21 of the FOI Act. The parties engaged in further correspondence after this date and prior to the filing of this application. It is unnecessary to repeat the contents of these letters other than to say that the respondent continued to seek payment of the advanced deposit before it would deal with the applicant's FOI request. 2 When the matter first came before the tribunal, a preliminary issue arose; namely whether having failed to determine the applicant's FOI request within the prescribed period of time under s.24(2) of the FOI Act entitled the respondent to make a request for the payment of an advanced deposit pursuant to s.21 of that Act. This issue was determined on 25 August 2005 by Judicial Member S. Montgomery: see McGuirk v University of New South Wales [2005] NSWADT 201. In that decision Judicial Member Montgomery made orders including orders that the respondent was not entitled to refuse to continue to deal with the applicant's FOI request and that the respondent was deemed, by reason of s.24(2) of the FOI Act, to have made a determination not to provide the applicant with access to the documents for which he had sought access to. 3 The respondent appealed the decision of Judicial Member Montgomery. That appeal was determined on 8 December 2005: see McGuirk v University of New South Wales (No.2)(GD) [2005] NSWADTAP 66. The Appeal Panel affirmed the decision of Judicial Member Montgomery. The matter then came back before Judicial Member Montgomery and a further dispute arose between the parties in respect to the issue of a summons by the tribunal at the request of the applicant. Judicial Member Montgomery determined this issue on 9 May 2006: see McGuirk v University of New South Wales (No.2) [2006] NSWADT 178. The applicant appealed that decision and on 22 August 2006 the Appeal Panel published its decision: see McGuirk v University of New South Wales (GD) [2006] NSWADTAP 40. 4 The application then came back before the tribunal on several occasions at directions hearings. The matter was then listed for hearing on 20 February 2007 before me. On that day I made orders as follows: (a) The respondent's determination of 5 May 2005 to refuse to deal with the applicant's application was invalid. (b) Pursuant to s.56 of the Freedom of Information Act, an order that the respondent be given 21 days from the date of the order in which to determine paragraph [1] to [4] of Mr McGuirk's FOI request of 21 January 2005. (c) Mr McGuirk's application is otherwise dismissed. 5 At the hearing the applicant also made an application for costs in respect to his application before the tribunal. In light of this application I made orders, by consent, for the filing and serving of written submissions in respect to costs and that the application in respect of costs was to be determined on the papers subject to the parties making an application that the matter be restored for hearing. In this regard the orders provided that the applicant was to file and serve his submissions by 27 April 2007 and the respondent was to reply by 18 May 2007. 6 On 13 May 2007, the applicant sent a facsimile to the registry in which he stated the following: '…[I] note that I have been unable – due to an overwhelming workload (amongst other reasons) – to comply with direction 4 [i.e. that he file and serve submissions on or before 27 April 2007]. I intend to pursue my costs from the University in regard to this matter. I would prefer that the University simply consent to a cost order being made against it rather than wasting more public money on litigation, but given the history of the conduct of the University and its officers, this would appear to be a faint hope. …by way of this facsimile, I am requesting an extension until 30 June 2007 to file my submissions re costs – assuming always that the University does not consent to costs orders being made against them (Which, as I note above, would appear to be necessary if the University were acting as a "model litigant" concerned to ensure the most efficient use of public moneys). …' 7 At my request, the Registry forwarded a copy of the applicant's facsimile to the respondent. The respondent replied on 18 May 2007. The respondent advised the Registry that it had no objection to an extension of time to 30 June 2007 for the applicant to file and service his submissions in respect of costs. The respondent also requested that in the event an extension is granted to the applicant, it also be granted an extension of time within which it was to file and serve its submissions in reply. 8 On 24 May 2007, at my request, the Registry wrote to the parties advising them that I had made directions as follows: (a) On or before 30 June 2007 the applicant is to file and serve submissions in respect of costs; (b) On or before 23 July 2007 the respondent is to file and serve submissions in reply; and (c) Costs to be determined on the papers subject to the parties making application that the matter be restored for hearing. 9 There is no record of the Tribunal having received any submissions from the applicant or the respondent nor has either party made an application to restore the matter for hearing or further directions. Accordingly, I find that there has been a failure by the applicant to comply with the abovementioned orders as varied and that there has been no further application or explanation by the applicant in regard to his cost application. For these reasons, it is appropriate to order that the applicant's application for costs be dismissed.