2. The Respondent should not be unduly prejudiced if the time is extended.

3. The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.

11. The Applicant provided the explanation summarised above with his application. In addition he provided an affidavit dated 5 April 2001 (Exhibit A1). The new points made in that affidavit are:

• On 21 March 2001 he received from the Tribunal a copy of a letter from the Respondent to the Tribunal opposing the application for an extension of time. Attached to that letter were the two letters from the Respondent to MO dated 30 March 2000 and 11 May 2000, described in the history of the application, above. "At no time prior to 21 March 2001 did I receive, or was shown, or informed in any manner whatsoever by any person, whether from Mills Oakley or the Respondent's office, of the existence of the letters".
• The Applicant understands that Mr Petroulias was arrested on 24 March 2000 as a result of a joint operation involving officers working for the Respondent and Australian Federal Police ("AFP") officers. He was charged with defrauding the Commonwealth.
• On 24 March 2000, the Applicant believes, the AFP executed search warrants at MO in respect of matters and files associated with Mr Petroulias. He does not know if his FOI file was seized.
• Shortly after 24 March 2000, the Applicant believes, Mr Petroulias was expelled from the MO partnership. MO commenced civil proceedings against him.

12. At a Tribunal hearing Mr Bonnell gave evidence. New material relevant to the explanation for delay was :

• On 24 March 2000 the Applicant's own office was searched by the AFP pursuant to a warrant. This raid was connected with the Petroulias operation. The AFP took Mr Bonnell's documents and files on controlling interest superannuation arrangements, including client files.
• On about 27 March 2000 Mr Bonnell contacted MO. He had communication difficulties with a new tax partner and he and MO commenced a dispute as to the fees he should pay MO. That dispute has never been resolved. The Applicant has never instructed MO to withdraw the FOI request. He has in fact never withdrawn instructions formally. He paid MO $3,000 in December 1999.
• The AFP returned his files to Mr Bonnell on 2 November 2000. Between March and October 2000 Mr Bonnell had no access to his papers on the FOI request. At best he had possession of a draft of the original request.
• The Applicant asked Ms Abbott-Raymonde to telephone Ms Tripodi because of increased publicity about controlling interest superannuation but no apparent action by MO. He started the process of seeing what was happening by seeking just the FOI request from Ms Tripodi. This was not provided until 1 December 2000. He formed suspicions that the Respondent had taken no action on his request at this time. Mr Bonnell chose Ms Tripodi as the Tax Office contact to approach because she seemed to be responsible for his file. She was administering the service of, and compliance with, a s 264 notice issued against Mr Bonnell requiring the provision of information.
• In cross-examination Mr Bonnell agreed that Mr D Symons of MO had been involved in his FOI matter alongside Mr Petroulias. The inference was that Mr Symons remained at MO and could have been Mr Bonnell's contact.
• Mr Bonnell agreed that he had had contact with MO in at least the first month after 24 March 2000. This was contact regarding fees issues. In fact MO wrote to Mr Bonnell about fees in April and June 2000 and Mr Bonnell responded in April 2000. There was little, if any, contact other than that until MO began again to send monthly statements in September or October 2000. Mr Bonnell agreed that he had not telephoned MO to advance the matter. He was preoccupied with other matters at the time, eg the raid on his office. It was not something that he was thinking about. It was a climate of investigation by the AFP and of rumour and innuendo. The Applicant considered that MO were not interested in talking with him because of the outstanding fees question. He did, however, think that MO would act professionally if there were any developments with the FOI matter. He would have expected MO to pass on to him letters such as those to MO from the Respondent dated 30 March 2000 and 11 May 2000 or to contact the Respondent and say they were no longer acting for him.
• Mr Bonnell agreed that he did not notify the Respondent that he had changed his legal representation. The Applicant rejected a suggestion that he must have thought it strange that the ATO had not contacted him about his FOI request. He considered this not surprising based on his other dealings with the Tax Office.
• Mr Bonnell agreed that he took no steps to contact the Respondent about his FOI request after 24 March 2000 until October that year.
• The Respondent suggested to Mr Bonnell that his only interest in the FOI request is to obtain documents for another matter he has in the Federal Court.

13. Ms K J Abbott-Raymonde gave oral evidence corroborating aspects of Mr Bonnell's evidence. These aspects relate to the witness's contacts with Ms Tripodi on 2 October 2000, 30 November 2000 and 19 or 20 February 2000. Essentially, apart from provision of a copy of the original FOI request and documents on another matter (Exhibit A2 is the fax cover sheet evidencing this material), Ms Tripodi seemed ignorant of the fate of the FOI request and, in general, not especially helpful in finding out more or in suggesting where Ms Abbot-Raymonde might be directed to find out more about the handling of the FOI request.

14. Mr Young, counsel for Mr Bonnell, summarised on this issue:

• The seizure of his papers, and their unavailability between 24 March and 2 November 2000 was a key factor in explaining Mr Bonnell's delay.
• The second contributor to the delay was the conduct of MO. The Applicant never terminated his retainer. MO had tortious and ethical responsibility to the Applicant which they would appear not to have observed. In March 2000 MO would have been in disarray after Mr Petroulias's arrest and the raid on their offices. That was when the Respondent sent the first letter querying the continuation of the FOI request.
• The third contributing factor was the conduct of the officer in the Respondent organisation who wrote the letters to MO in March and May 2000. Mr Young argued that he had no power to tell MO that he intended to treat the FOI request as withdrawn. He wrote those letters, he said in evidence, without seeking legal advice. There is no power in the FOI Act permitting an agency to treat a FOI request as withdrawn. The common law decision in Felthouse v Bindley (1862) 142 ER 1037 means that one party cannot foist a contract on a second party as a result of the second party's failure to respond. The officer made no follow up telephone call to MO or to Mr Bonnell. He said in evidence that he wanted to run this matter in writing because it was a high profile, sensitive case.
• The Respondent had suggested in a letter to the Tribunal that the Applicant had no good reason for any delay in seeking review after early October 2000. Mr Young called attention to Mr Bonnell's actions from that time. He contacted Ms Tripodi on 2 October and 30 November. She was not notably responsive. She then supplied only an incomplete set of the FOI request materials. He followed up on 19 February, realised that nothing had been done and promptly issued an application for review. Even then he was still unaware of the purported withdrawal of the FOI request.
• Mr Young referred to the well known decision in Comcare v Ahern [1993] FCA 498; (1993) 45 FCR 441 as authority for the proposition that the deficiencies of a solicitor should not be visited on the client. He saw this as applying to Mr Bonnell in that he should not have to bear the brunt of MO's lack of action on the March and May letters.
• Mr Young referred to authorities such as Commonwealth v Verwayen (1990) 170 CLR 394 and Larratt v Bankers & Traders Insurance (1941) 41 SR(NSW) 215 which deal with waiver of rights. Some rights, such as rights of access under the FOI Act (argued Mr Young) probably cannot be waived or surrendered at all. Others may be but only after unequivocal election and giving up of the right. There was no such conduct by the Applicant.
• Ms Gatland for the Respondent pressed that Mr Bonnell had made no attempt to tell the Respondent that MO were no longer acting for him. His first contact with the Respondent was on 2 October 2000. That and subsequent contact was minimal. The matter appeared in abeyance to the Respondent for good reason. He had done nothing after March 2000 to contact MO on the substantive FOI issue. He had not tried to progress the request. He could have dealt with Mr Symons at MO. Mr Symons had been involved from the earliest days and he could have been called to give evidence at the hearing.

15. In oral evidence the Applicant explained that the FOI request was but one of several legal proceedings he had instigated with the Tax Office. The others were:

• A request under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") for reasons for certain decisions. This was finalised by Ms Tripodi and was provided directly to Mr Bonnell.
• Negotiations for a test case on controlling interest superannuation funds, to be financed by the Respondent, had been commenced by Mr Bonnell. Mr Bonnell brought Mr Petroulias onto the scene before a decision was made. This case did not proceed. The Respondent refused to fund it. The Respondent communicated that to MO.
• At the date of the hearing the Applicant was in the Federal Court on behalf of himself and his clients on the opposition side to the Respondent. In November 2000 the Applicant took action in the Federal Court for a mandamus to force the Commissioner of Taxation to make a private binding ruling. The Commissioner had refused to do this in July 2000. On 28 December 2000 the Applicant lodged objections on behalf of some of his clients to assessments issued in December 2000. The objections are not yet determined but will be appealed if not upheld. There was another Federal Court action commenced on 14 March 2001 on the question of delays in the payment of taxation as assessed. This has been settled. The Applicant agreed that he had processes running there to try and obtain access to the same sorts of documents as are caught by the FOI request. However, the FOI process promises to be faster than the Federal Court. This was largely why the Applicant wished to proceed on the request in play here rather than lodge a fresh FOI request.

16. The fax cover sheet (Exhibit A2) concerning documents provided by Ms Tripodi to Mr Bonnell shows that she sent him material on the s 264 notices, the ADJR Act request for reasons and the FOI request.

17. Mr Young pressed that this constellation of proceedings and applications show that Mr Bonnell was agitating his FOI request in other proceedings.

18. The Applicant suggested that there is no prejudice to the Respondent involved in extending time other than that the Respondent will have to act to defend the Tribunal proceedings. The Respondent largely agreed with this. This was an appropriate concession in the Tribunal's view.

19. The Applicant suggested that, on the contrary, there would be considerable prejudice to the Applicant if the extension is refused. He would lose the chance of obtaining crucial documents in a timely way.

20. Neither party had a great deal to say about this matter. In the Applicant's view he has a case worth arguing for access to the requested material. The Respondent did not really deny this.

Findings on material questions of fact and the evidence supporting those findings

21. In relation to there being a satisfactory explanation for the Applicant's delay in seeking a review, the Tribunal finds that the Applicant's explanation is satisfactory. The Tribunal notes and accepts evidence recited above to the following effect:

• The Applicant believed that MO, initially through Mr Petroulias, could be trusted to handle his request efficiently and expeditiously. The decision in Comcare v Ahern (supra) offers him some support in this regard. The Tribunal considers this a reasonable expectation.
• He had no access to his file at MO's office to ascertain progress.
• Ms Tripodi was unable to provide any substantial help when approached about progress with the FOI request.
• Mr Bonnell was unaware until 19 or 20 February 2001 that the Respondent had failed to make any decision on his request.
• Mr Bonnell had no way of knowing, and did not know, of the existence of the letters of March and May 2000 that led to his request being treated as withdrawn.

22. Mr Bonnell contributed to his state of ignorance by failing to take certain steps one would expect of a prudent solicitor genuinely interested in progressing his request. For example, he did not instruct the Respondent that MO were no longer acting for him. He did not contact directly the Taxation Office FOI Section to inquire about his request. Arguably he waited an excessive time before contacting Ms Tripodi and his follow up contact was not for two months after a largely frustrating first contact. He did not contact Mr Symons in MO to ascertain progress. However, the Tribunal is impressed by the dramatic context within which Mr Bonnell was operating after 24 March 2000. Being raided by the AFP and losing custody of client files must have been extremely upsetting. Mr Bonnell's concern to advance the cause in favour of the sustainability of controlling interest superannuation arrangements and so promote the interests of his clients, a group seriously compromised by the activity of the time, must have required considerable personal and urgent effort, especially as he had no files. His explanation that he had higher priorities than the FOI matter, assumed to be in good hands at the time, is believable. On balance the Tribunal finds that his own contribution to the delay in this matter should not be held against Mr Bonnell.

23. The Tribunal finds that Mr Bonnell acted to agitate the issues with the Respondent in other forums. Neither he nor his clients let matters lie. The Tribunal cites the evidence of an attempt to mount a test case, the seeking of reasons under the ADJR Act and the various Federal Court applications. The Respondent should have been on notice that Mr Bonnell and his clients were not surrendering.

24. A possible difficulty is that the subject matter under FOI is the provision of documents. The subject matter of the other actions was more the policies and decisions taken, or proposed, by the Respondent. The two are not synonymous. The Tribunal has decided, however, that the detailed nature of the FOI request attached it in its content inevitably to the same content as that involved in the collateral actions.

25. The Tribunal finds that there is no prejudice, in any relevant sense, to the Respondent if an extension of time is granted. The time delay is not all that long. There should be no problems of dimmed recollection or destroyed documents, the sorts of problems that can bedevil matters brought in an untimely fashion.

26. The Tribunal finds that there are serious questions to be tried in this matter if it proceeds to a hearing. These include the applicability of many of the exemptions in the FOI Act and the status of the request - has it been lawfully withdrawn? Preliminary consideration of the merits issues suggests that the case should be permitted to proceed.

27. The Applicant submitted that the Respondent should not have been heard in the hearing on the extension of time application. This was because of the following procedure:

• On 26 February 2001 the Tribunal Deputy Registrar wrote to the Respondent saying that the Applicant had applied for an extension of time in which to lodge an application for review of a decision. The application for review was attached. The final paragraph read:

"If you do not oppose the application for extension of time please complete the bottom part of this letter and return it to the Tribunal within 14 days. If you do not respond within this period the Tribunal may grant the extension of time. If you oppose the application for extension of time, please provide written reasons within this period."

• The Respondent did not respond until 21 March 2001. The Applicant submitted that the Respondent could not be heard in the matter. This was on the basis of s 29(10) of the Act.
• The Tribunal rejected that argument for the following reasons. Section 29(3) prescribes the period of 28 days as the time within which an application for review should be lodged. The time commences to run on the day when a decision is deemed to have been made. Section 29(7) permits the Tribunal, upon application in writing by a person, to extend the time for the person to make an application to the Tribunal for review of a decision. Section 29(9) reads:

"Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to serve notice of the application on a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application."

• Section 29(10) then states that:

"If a person on whom a notice is served under subsection (9), within the prescribed time after the notice is received by him, gives notice to the Tribunal, as prescribed, stating that he wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases."

• The period prescribed under the Tribunal Regulations is 14 days.

28. It was argued that, because the Respondent delayed well beyond 14 days in notifying its objection to the grant of an extension of time to the Applicant, the Respondent could not be heard. The Respondent argued in reply that the Tax Office had received the Tribunal's letter only on 19 March 2001. Its letter of objection to an extension of time was dated 21 March 2001. It had therefore responded within 14 days.

29. The Tribunal finds that the problem does not arise. Because the Tribunal sent the letter to the Respondent on 25 February 2001 the requirement in s 29(9) that the Applicant must serve notice of the application on a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application has not been met. Section 29(9) and (10) have not been invoked. There is no legal bar to the Respondent being heard in a hearing such as occurred in this case.

30. For the above reasons the Tribunal has concluded that the time within which the Applicant was able to lodge a valid application for review with the Tribunal should be extended to 23 February 2001.

31. The Tribunal extends to 23 February 2001 the time within which the Applicant was able legally to lodge an application with the Tribunal for review of the decision in question.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.

Signed: .....................................................................................