Choi v NSW Department of Justice

Does Ms Choi have a reasonable excuse for the delay?

1. Before proceeding to deal with the submissions of both parties on this issue, I formally find that Ms Choi was given notice of the decision when it was emailed to her on 4 July 2019 (see Choi v University of Technology Sydney [2017] NSWCATAD 198). Her application to the Tribunal was received on 24 September 2019 which is well outside the 40 working day time limit. Ms Choi currently lives in Korea and her application to the Tribunal was dated 16 September 2019 and posted on 18 September 2019.
2. In Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [18] the Appeal Panel held that the question of whether the applicant has provided a reasonable excuse for the delay is the key question the Tribunal has to form an opinion about. Other questions, such as the merits of the application for review, any prejudice to either party or the public interest are not relevant. Although, these matters may be relevant to the exercise of the Tribunal's discretion if it does find that the applicant has provided a reasonable excuse for the delay (Thomson v Sydney Trains [2015] NSWCATAD 257 at [28]).
3. Ms Choi accepts that her application was in fact made out of time. Ms Choi has provided several reasons for why her application was made out of time. First, she states that she has difficulties as a widowed single mother looking after a 7 year old boy in Korea. As a result, she was too distracted to keep the issue of the filing of her application in the forefront of her mind. Secondly, Ms Choi states that her lack of financial resources has impeded the amount of time she has to access the internet and states this is part of the reason why her application was out of time. Thirdly, Ms Choi states that she has been unable to obtain legal advice from organisations such as Law Access, Legal Aid, the Law Society or a Community Legal Centre as she is currently residing overseas. Fourthly, Ms Choi states that around the relevant time she was involved in other proceedings before the Tribunal and therefore was unable to concentrate on this application. She refers in her submissions to proceedings before the Appeal Panel as well as other matters currently before the Tribunal and matters concerning applications for costs which have been awarded against her in other proceedings.
4. Ms Choi states that the length of the delay has been relatively short. While she notes in her submissions that she received the decision by email on 4 July 2019, she states that she posted her review application to the Tribunal within a few days of writing to the Department on 13 September 2019 acknowledging she had received the decision. Ms Choi also states that she did not deliberately delay making the application. She states that she has been a victim of sexual assault which has caused her great trauma and emotional and mental suffering which still affects her today. For that reason, her cognitive function is impaired and she may have simply skipped over or forgotten the notice of decision emailed to her on 4 July 2019.
5. The Department states that when the notice of decision was emailed to Ms Choi on 4 July 2019, she also received a fact sheet outlining her review rights. The Department states that Ms Choi has shown that she is proficient at using email and has done so consistently in relation to this current application which was first made to the Department in December 2018. The Department states that the delay is more than just a few days and in fact is a period of some 16 working days.
6. The Department refers to previous proceedings in the Tribunal and states that there are significant similarities between those proceedings concerning an extension of time and the current matter. In Choi v University of Technology Sydney [2017] NSWCATAD 198 the Tribunal was required to consider whether Ms Choi had provided a reasonable excuse for a four week delay in making the application. In that matter, the Tribunal found that Ms Choi's failure to open or read attachments through inadvertence or otherwise did not amount to a reasonable excuse for any delay. Accordingly, her application to extend time for the making of an application to the Tribunal for administrative review was dismissed.
7. Both parties have also made detailed submissions on the merits of Ms Choi's substantive application and any prejudice that may flow to the Department if an extension of time is granted. At this stage of my assessment there is no need to refer to these matters further.
8. Ms Choi is very experienced in dealing with matters before the Tribunal and has had numerous applications over the years. A perusal of the contents of the Tribunal's file in this application shows that she is very adept at formulating her arguments and using email systems to communicate. While I understand that matters such as looking after her young son and dealing with the other numerous proceedings Ms Choi has before the Tribunal may have consumed a good deal of her time, I do not consider that these matters would necessarily have prevented her from making her application for review within the required time. The information Ms Choi received with the notice of decision made clear any application for review was to be filed within 40 days. Furthermore, Ms Choi was well aware of the time requirements as this had been the subject of earlier proceedings in Choi v University of Technology Sydney referred to above where similar issues had arisen.
9. Ms Choi was not required to seek legal advice in relation to this application and indeed does not appear to be legally represented in other matters before the Tribunal. It is therefore difficult to understand how the fact that her inability to access free legal assistance in Australia because she is currently resident in Korea prevented her from making her application for review within time.
10. I accept that Ms Choi feels that she has suffered significant trauma. However, I am not satisfied that the effects of that trauma may have prevented her from making her application in a timely manner. In making directions in this matter on 29 October 2019, the Tribunal noted that Ms Choi had stated at the case conference that the email of 4 July 2019 went into her junk email box but then said that it may not have. She said she had been very busy and had proceedings with other agencies. She also said she forgot to open the attachment to the email (that is, the notice of decision). It is apparent from her statements made at the case conference that the primary reason the application was made out of time was either because she was busy with her other matters before the Tribunal or because she forgot to open the attachment to the email or a combination of the two. In my view these matters do not amount to a reasonable excuse for any delay. Contrary to Ms Choi's statement at the hearing, the delay was not merely a matter of a few days but extended over several weeks.
11. In these circumstances, I am not satisfied that Ms Choi has provided a reasonable excuse for the delay in making the application. Accordingly, I decline to extend the time for the making of that application pursuant to s 101(4) of the GIPA Act.
12. Ms Choi's application is therefore out of time and the Tribunal has no jurisdiction to deal with it. In these circumstances, the appropriate order is to dismiss the application.

Orders 1. The applicant's application to extend time for the lodging of the application is dismissed. 2. The applicant's application to the Tribunal for administrative review of the respondent's decision is also dismissed.

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: 05 December 2019