CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment

NCAT Administrative and Equal Opportunity|2018-01-30

Overview

CGU Workers Compensation (NSW) Ltd applied to the Tribunal for a review of a decision made by the Department of Planning and Environment under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The Department submitted that the application was out of time and the Tribunal should not accept it. CGU submitted either that the application was not late or, that if it was, the Tribunal should accept it because there was a reasonable excuse for the delay. I have decided to accept the application even though it was lodged nearly 12 weeks late.
Time limits for applying to the Tribunal for administrative review of a decision made under the GIPA Act are set out in s 101. The Tribunal also has power under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to extend time "despite anything to the contrary" under the GIPA Act. The issues and the conclusions I have reached, are: 1. Did the Department make more than one reviewable decision? (No, it only made one reviewable decision on 12 May 2017.) 2. If the Department only made one reviewable decision, when should CGU have applied to the Tribunal for the decision to be reviewed? (CGU should have applied by 31 August 2017.) 3. If CGU applied late, what is the applicable test - the reasonable excuse test in the GIPA Act or the broader power in s 41 of the NCAT Act? (The applicable test is the reasonable excuse test, but even if that is not correct, I would have extended time under either test.) 4. Applying the reasonable excuse test to the facts in this case, should the time for the lodging of the application be extended? (Yes, time should be extended to 21 November 2017.)

Did the Department make more than one reviewable decision?

CGU applied to the Department for access to certain information on 7 April 2017 (the access application). By Notice of Decision dated 12 May 2017, the Department responded to that application providing access to some documents and refusing access to others. That decision is reviewable by the Tribunal. It is "a decision to provide access or to refuse to provide access to information in response to an access application": GIPA Act, s 80.
After receiving the Notice of Decision, CGU sought external review from the Information Commissioner. On 3 August 2017 the Information Commissioner concluded that the Department's decision was not justified and recommended that it make a new decision. The Department decided not to follow the Information Commissioner's recommendation. CGU wrote to the Department seeking clarification of the Department's reasoning. The parties also communicated by telephone and email. On 10 October 2017 the Department wrote to CGU setting out the reason for not following the Information Commissioner's recommendation.
CGU can apply to the Tribunal for an administrative review if it is "aggrieved by a reviewable decision": GIPA Act, s 100. A "reviewable decision" is a decision "of an agency in respect of an access application": GIPA Act, s 80. The meaning of the term "in respect of" was addressed recently by the Tribunal in Manning v Bathurst Regional Council (19 January 2018) [2018] NSWCATAD 18 at [27]: The phrase "in respect of," which is used in s 80 of the GIPA Act and many other statutory provisions, "may appropriately be afforded a 'wide meaning'" but the ambit of the words "in respect of" "must yield both to the particular statutory provision in which they find expression and to the context of that provision within the statute being considered" (The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249 at [36]).
The context in this case is that the GIPA Act gives a person a right to administrative review of certain decisions by an agency "in respect of an access application": GIPA Act, s 80. One of those decisions is "a decision to provide access or to refuse to provide access to information in response to an access application". GCU made an access application and the Department responded on 12 May 2017. In the administrative review application form filed in the Tribunal on 21 November 2017, CGU characterised its application as seeking "a review of the agency's decision to refuse to provide access to information in response to an access application". The delay in making the application was said to be caused, in part, by "the agency declining to undertake an internal review, as recommended by the Information Commissioner" and "the applicant seeking clarification of the agency's position (which was received on 10 October 2017)". It is apparent from this explanation that CGU did not apply1 for a review of any decision other than the Department's original decision made on 12 May 2017.
Even if CGU had expressly applied to the Tribunal for a review of the Department's 10 October 2017 decision, that decision was not a decision made "in respect of" an access application. While the phrase "in respect of" should be given a wide meaning, the statutory context and the facts of this case support the conclusion that the later decision is not a reviewable decision. CGU is aggrieved by the Department's decision to refuse access to certain information. The Department did not change its 12 May 2017 decision. The 10 October 2017 decision merely clarified the Department's reasons for not following the Information Commissioner's recommendation. In determining whether that was the "correct and preferable" decision, the Tribunal will take into account the Department's reasons for not following the Information Commissioner's recommendations.

When should CGU have applied to the Tribunal for the decision to be reviewed?

The Department's decision was the subject of review by the Information Commissioner. In those circumstances, the time for making the application to the Tribunal for administrative review is "20 working days after the applicant is notified of the completion of the Information Commissioner's review": GIPA Act, s 101(2). The Information Commissioner completed her review on 3 August 2017 and CGU nominated that date as the date time began to run. Twenty working days from 3 August 2017 is 31 August 2017. The Department made its application to the Tribunal on 21 November 2017, eleven weeks and three days late.

What is the relevant test?

Under s 101(4) of the GIPA Act, the Tribunal may extend the time to apply for an administrative review if it "is of the opinion that the person has provided a reasonable excuse for the delay in making the application": The Civil and Administrative Tribunal Act gives the Tribunal a broad discretion to extend time "for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary" under that legislation: NCAT Act, s 41. I am aware of only one case where the relationship between these two provisions has been discussed. In Thomson v Sydney Trains [2015] NSWCATAD 257 at [34] - [36], after referring to the relevant provisions, the Tribunal expressed the preliminary view that an application to extend time is to be determined in accordance with s 101(4) of the GIPA Act. 34.Neither party raised the question of whether s 41 of the NCAT Act gives the Tribunal an unfettered discretion to extend time, notwithstanding the terms of s 101(4) of the GIPA Act. Section 41(1) provides that: "The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation." 35. The provisions of Part 4 of the NCAT Act, including s 41, are expressed to be "subject to enabling legislation" (NCAT Act, s 35). The GIPA Act also provides for the relationship with the NCAT Act. It provides that the provisions of Division 4 of Part 5 of the GIPA Act "are intended to prevail to the extent of any inconsistency with provisions of … the NCAT Act" (GIPA Act, s 112A). 36. In my preliminary view, the effect of these provisions is that an application to extend time to apply to the Tribunal for review of a decision made under the GIPA Act is to be determined in accordance with s 101(4) of the GIPA Act. …
I share the preliminary view expressed by the Tribunal in this decision. It is not necessary to come to a concluded view because I would have decided to extend time on the basis of either test.

Should the Tribunal extend the time to lodge the application?

The Tribunal must determine whether it is "of the opinion" that CGU "has provided a reasonable excuse for the delay in making the application". The application should have been made in 20 working days which is approximately 4 weeks. It was made nearly 12 weeks late. I am satisfied that there is a reasonable excuse for the delay in making the application between 3 August (the date the Information Commissioner made her decision) and 10 October 2017 (the date the Department clarified its reasons for not following the Information Commissioner's recommendations). That finding is based on the evidence of Mr Ethan Brawn, a solicitor with Holman Webb Lawyers. In his affidavit dated 29 January 2018, he set out the sequence of events during that period. He was communicating with the Department's representative by letter, email and telephone to clarify the Department's reasons for not following the Information Commissioner's recommendation.
Mr Brawn's evidence was that he was under the impression that the Department was re-considering the reasons it gave for not following the Information Commissioner's recommendation. Based on the communications attached to his affidavit, my impression is that CGU was seeking to persuade the Department to change its mind. Either way, in the circumstances of this case, the fact that the parties were communicating about the decision not to follow the Information Commissioner's recommendation is a "reasonable excuse" for the delay until 10 October 2017.
CGU did not provide an explanation for the delay from 11 October 2017 to 21 November 2017. No doubt Holman Webb Lawyers would have been seeking instructions from CGU. It is also apparent from the Tribunal's file that CGU emailed the administrative review application form to the Tribunal, together with the required fee, on 10 November 2017. A Registry officer advised CGU that the application is not considered to be filed until a hard copy is received. CGU provided a hard copy on 20 November 2017 and the application was stamped as having been filed on 21 November 2017. These circumstances provide a reasonable excuse for the delay from 10 October 2017 to 21 November 2017.

Orders and directions

The time for applying to the Tribunal for an administrative review of the decision made on 12 May 2017 is extended to 21 November 2017.
By 6 March 2018, the Department of Planning and Environment is to give to the Tribunal the documents under review on a confidential basis in a sealed envelope marked 'non-disclosure documents'.
By 6 March 2018, the Department of Planning and Environment is to give to the Tribunal and CGU Workers Compensation (NSW) Ltd: any evidence and submissions on which it relies.
By 3 April 2018 CGU Workers Compensation (NSW) Ltd is to give to the Tribunal and the Department of Planning and Environment: any evidence in reply and submissions on which it relies.
The application is listed for hearing on 16 April 2018 at 10 am for 1 day.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 08 February 2018

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