Choi v Secretary, Department of Communities and Justice

NCAT Administrative and Equal Opportunity|2020-03-20

Introduction

The applicant filed an application in the Tribunal on 13 January 2020 for administrative review of a decision of which she was notified on 5 December 2019.
The only decision made on 5 December 2019 which relates to the present application is a decision of this Tribunal involving the same parties in matter number 2019/305164: Choi v NSW Department of Justice [2019] NSWCATAD 248.
That decision dealt with an application filed on 24 September 2019 by the applicant for external review of a notice of decision made by the respondent dated 4 July 2019 (notice of decision) under the Government Information (Public Access) Act 2009 (GIPA Act). The hearing of that application was on 26 November 2019.
The decision of the Tribunal on 5 December 2019 found that under section 101 (1) of the GIPA Act, the applicant was required to file her application by 29 August 2019 and was therefore filed out of time. The Tribunal described the issue for determination as to "whether Miss Choi should be granted an extension of time within which to make her application to the Tribunal." (at 2)
The Tribunal dismissed the application to extend time for filing the application for review and also dismissed the application for review.
At a case conference on 11 February 2020, orders were made for a preliminary hearing to determine whether the applicant should be granted leave to extend time for the filing of her present application under section 41 of the Civil and Administrative Tribunal Act 2013 ('"CAT Act"). The preliminary hearing was ordered on the basis of the applicant's assertion that "she could only consider any administrative review to the Tribunal after receipt of the information in December 2019 that arose from the decision of 4 July 2019".
The parties were directed to file and serve material to be relied upon in the present interim hearing and the applicant was granted leave to appear at the hearing on 20 March 2020 by telephone.

Background

In the respondent's notice of decision, the applicant was required to pay a (reduced) processing fee of $155, and upon proof of payment, the records identified for release would be provided to the applicant.
It was not until the Tribunal published its decision on 5 December 2019 that the applicant paid the $155 processing fee. On that same day too, the respondent emailed to the applicant 849 pages identified for release in its notice of decision.
The present application seeks a review on the following grounds: 'On 14 February, 27 March 2019, 4 July 2019 and on 26 November 2019 at the hearing, the Respondent said it would provide me with approximately 195 pages under the condition that I pay the extra money $155 for the labour fee to redact some information. Thus, on 5 December 2019, I paid the $155. However, the Respondent emailed me only 849 pages. Also, the information the Respondent provided is not congruent with the reasons it said in the past two Notice of Decision.'
The applicant confirmed at the hearing that the reference to "195 pages" should in fact be "950 pages." This had been corrected in a further copy of the application emailed to the Tribunal on 6 January 20120 with a handwritten notation referring to "950 pages".
Also, there were handwritten additions to the application emailed on 6 January 2020 which added two further grounds as follows: "In addition, the public considerations applied are not necessary. Confusingly, the information was released in bulk not under the sub-points."

Statutory Basis for the Preliminary Hearing

The present hearing is confined to the question of whether the applicant should be granted an extension of time under Section 41 of the CAT Act to file her application.
Section 41 of the CAT Act provides: (1) 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. (2) Such an application may be made even though the relevant period of time has expired.

Applicant's Submissions

The applicant filed a substantial volume of material in support of her submissions to extend time.
At the hearing at which the applicant participated by telephone and was assisted by an interpreter, the applicant identified four separate grounds in support of her application for review and for which she sought an extension of time under section 41 of the CAT Act to bring her application. These included the two handwritten additions to the "grounds of application".
In summary, the four grounds are: 1. First, on 5 December 2019 the applicant paid the processing fee of $155 to access 950 pages of documents to be released by the respondent under the notice of decision. The application stated that those documents had been offered to her upon payment of the processing fee on 14 February, 27 March, 4 July and 26 November 2019. On 5 December 2019, the respondent only produced 849 pages of documents (first ground of review); 2. Secondly, the "information" which the respondent provided "is not congruent with the reasons it said in the past two notices of decision". (second ground of review). The applicant explained this at the hearing to mean that the documents did not have "anything to do with the notices of decision". I take that to mean the respondent's original notice of decision dated 27 March 2019 and the further notice of decision dated 4 July 2019; 3. Thirdly, the application stated that the respondent's reliance on "public considerations ... are not necessary" (third ground of review). By this, the applicant appeared to be referring to the respondent's reliance on section 58 (1) (d) of the GIPA Act to refuse to provide access to some of the information because there was an overriding public interest against its disclosure; and 4. Fourthly, the information was received in a confusing form because it was released "in bulk" and "not under the sub-points" (fourth ground of review). Presumably this is a reference to the numbered Schedule of Documents in the notice of decision dated 4 July 2019.

Respondent's Submissions

The respondent filed written submissions that included a copy of the respondent's notice of decision dated 4 July 2019 and the applicant's written submissions in support of her application determined by the Tribunal on 5 December 2019.
The respondent advanced four grounds to submit that the request to extend time should be refused and the application dismissed: 1. First, the respondent did not make a reviewable decision, nor did it notify the applicant of a reviewable decision on 5 December 2019. The last notice of decision made by the respondent was on 4 July 2019. The decision of the Tribunal dated 5 December 2019 is not a "reviewable decision" under section 80 of the GIPA Act; 2. Secondly, "the Tribunal's decision is spent". The application seeks the same review of the respondent's notice of decision that was dismissed by the Tribunal in its decision of 5 December 2019. The applicant did not seek to appeal that decision. The application is a re-litigation of the same issues previously determined by the Tribunal on 5 December 2019; 3. Thirdly, the application is out of time and the applicant has not provided a reasonable excuse for the delay in making the application for review; and 4. Fourthly, the application is misconceived and lacking in substance: relying on the principles set out in Alchin v Rail Corporation NSW [2012] NSWADT 142.

The Application

On its face, and having regard to specific parts of the application, it is apparent that the applicant is purporting to seek a review of the Tribunal's decision dated 5 December 2019.
There are two reasons for this.
First, the date on which the applicant stated she was notified about the "decision for review" in Section 2 of her application was 5 December 2019. That was the Tribunal's decision after the hearing held on 26 November 2019. There was no evidence of any other decision made by either the respondent or the Tribunal and/or notified to the applicant on 5 December 2019.
Secondly, the applicant stated in Section 5 of her application that "[t]he application is lodged within time allowed under the relevant legislation".
For that statement to be correct, it cannot be a reference to the notice of decision dated 4 July 2019.
The applicant must be taken to be aware that the application is not correct in that respect. At the hearing, the applicant agreed that she was outside the 40 business days under section 101 (1) GIPA Act within which to file a review in the Tribunal in relation to the notice of decision of 4 July 2019.
There can be no mistake about the applicable legislation (and none was contended by the applicant). She had already sought and been denied an extension under section 101 (4) of the GIPA Act by the Tribunal's decision of 5 December 2019.
The notice of decision also expressly stated under the sub-heading "Review Rights" at paragraphs 97-100: "97. If you disagree with any of the decisions in this notice that are reviewable, you may seek a review under Part 5 of the GIPA Act. Before you do so, I encourage you to contact me to discuss your concerns. My contact details are set out below. 98. You have the following review options: • external review by the Information Commissioner, or • external review by the NSW Civil and Administrative Tribunal (NCAT). 99. You have 40 working days from the date of this Notice to apply for a review by the Information Commissioner or the NCAT. 100. To assist you, I have enclosed a fact sheet published by the Information and Privacy Commission (IPC), entitled Your review rights under the GIPA Act ... ".
Given the disconnect between the actual wording of the application and its apparent intent or purpose, and doing my best to understand the applicant's submissions, it appears that: 1. The application stated that the applicant was seeking a review of the Tribunal's decision of 5 December 2019 but that is not actually the "reviewable decision" for the purposes of section 100 (1) of the GIPA Act. At the hearing, the applicant seemed to accept that the Tribunal's decision of 5 December 2019 was not the "reviewable decision". 2. It was only when the Tribunal made its decision on 5 December 2019 dismissing her application to extend time to review the notice of decision of 4 July 2019, that the applicant paid the processing fee of $155 for the release of the documents under the notice of decision. Apparently, with no avenues of review or challenge left to the applicant, she was in effect compelled to pay the processing fee to obtain the documents to be released. 3. Having paid the processing fee and obtaining the documents on 5 December 2019, the applicant now contends that she then became aware that the documents released to her did not meet the description in the notice of decision as described in the four reasons for review set out in her application.

Four Grounds of Review

The first ground of review in the application stated that the applicant only received 849 and not 950 pages of documents upon payment of the processing fee. There is no evidence that the respondent agreed to release 950 pages of documents in its notice of decision.
Mr Long on behalf of the respondent explained that the figure of 950 was referrable to a statement made to the Tribunal on behalf of the respondent at the hearing on 26 November 2019 to provide a context to the number of documents available to be released. The Tribunal was actually informed that the number of documents was about 900-950 pages. This was conveyed as an approximate indication only and not an exact representation as to the volume of material to be released.
The applicant did not challenge Mr Long's explanation.
I find that in respect of the applicant's first ground of review, since it concerns the number of documents released, it could only relate to the notice of decision of 4 July 2019.
As to the second ground of review, the applicant did not demonstrate how the material she received was "not congruent" with the reasons in the previous "two notices of decision". This ground expressly relates to the respondent's two notices of decision, the last in time being dated 4 July 2019.
As to the third ground of review and which refers to the "public considerations applied" by the respondent, that is most likely a reference to the "public interest considerations" in section 58 (1) (d) of the GIPA Act referred to in the notice of decision of 4 July 2019. This conclusion is reinforced by the applicant's previous submissions in support of her application for an extension of time dated 8 November 2019 to review the notice of decision and which was determined by the Tribunal on 5 December 2019. The submissions contained the following contentions by her: 1. "the Respondent scheduled [sic] to redact the numerous information, applying to [sic] the public interests considerations unnecessarily…" (paragraph 11); and 2. "the Respondent applied public interests considerations without 'a demonstration of the detriment or disadvantage that would occur by the disclosure of the information'" (paragraph 12)
The fourth ground of review refers to the release of the information in "bulk". Even though the documents were released on 5 December 2019, that was not pursuant to the decision of the Tribunal on that date. The access to the material on that date was due to the applicant then paying the outstanding process fee required under the notice of decision dated 4 July 2019. This was presumably paid at that time as a consequence of the Tribunal's decision dismissing her application to extend time to review the respondent's notice of decision.
On the most generous characterisation of the application and the four grounds of review explained above, the applicant intended to convey that after being notified of the Tribunal's decision on 5 December 2019, which caused her to decide to pay the processing fee of $155 on that same date, she obtained the documents about which she now complains.
I find that despite the application declaring that the applicant first became aware of the decision to be reviewed on 5 December 2019, that is not a correct statement either factually or legally. The Tribunal's decision of 5 December 2019 has no relevance or connection to any of the four grounds of review.

The "reviewable decision"

The respondent's notice of decision of 4 July 2019 was a "reviewable decision" of the agency under sections 80 (c) and 80 (j) of the GIPA Act. As a person aggrieved, the applicant was entitled to apply to the Tribunal for an administrative review of that decision under 100 (1) of the GIPA Act.
Under section 64 (4) of the GIPA Act, the respondent made the release of documents conditional on the payment of a processing fee. On 5 December 2019 the applicant paid $155 and was provided with 849 pages of documents identified for release.
The payment related to and was made pursuant to the respondent's notice of decision of 4 July 2019. The applicant's payment of the processing charge on 5 December 2019 did not give rise to further review rights under the GIPA Act.
The Tribunal's decision of 5 December 2019 is not a "reviewable decision" under section 80 of the GIPA Act. The applicant is in effect claiming that the release of the documents on that date did not meet the intent of the notice of decision. The applicant is claiming to be entitled to a review of the notice of decision by challenging the adequacy and the nature of production of the documents by the respondent on 5 December 2019.
I have approached the present application for an extension under section 41 of the CAT Act on that understanding of the applicant's position.
For the reasons that follow, the application to extend time fails and must be dismissed. The grounds set out in the present application have nothing to do with the Tribunal's decision of which the applicant became aware on 5 December 2019 and everything to do with the respondent's notice of decision dated 4 July 2019.
The decision of the Tribunal and of which the applicant became aware on 5 December 2019 had dismissed the applicant's request to extend time to review the notice of decision dated 4 July 2019. That notice of decision is the only "reviewable decision" within the meaning of section 80 of the GIPA Act and which may be administratively reviewed by the Tribunal under section 100 (1) of the GIPA Act.

Application is Out of Time

As I have found, the only reviewable decision that could be the subject of any application by the applicant is the respondent's notice of decision dated 4 July 2019.
It is possible to infer (although I make no finding about this) that to circumvent the fact that the applicant was significantly out of time to review the notice of decision dated 4 July 2019, and having been refused an extension of time to review it by the Tribunal's decision of which she was notified on 5 December 2019, the applicant has attempted to establish a "reviewable" link or some other connection between the documents she obtained on 5 December 2019 and the notice of decision.
The applicant has not established that there is any link or connection by her decision to pay the requisite processing fee of $155 when her application to extend time to review the notice of decision had been dismissed by the Tribunal on 5 December 2019.
I am satisfied that on a proper construction of the present application, and for the reasons discussed above, the applicant actually seeks a review of the notice of decision and not a decision (reviewable or otherwise) of which she became aware on 5 December 2019 as she has stated in her application.
Therefore, I find that the present application has been filed out of time as the time for the filing of her application is not to be calculated from 5 December 2019.

Exercise of Discretion under Section 41 CAT Act

An absence or lack of material providing an adequate explanation of delay weighs against granting an extension of time: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; for example at [103].
The Tribunal's discretion to extend time under section 41 of the CAT Act must be exercised judicially and having regard to the overriding principles to facilitate the just, quick and cheap resolution of the real issue in proceedings under section 36 of the CAT Act: Daoud v Chief Commissioner of State Revenue [2013] NSWCATAD 53 at [13]-[16]; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18].
The decision of the Tribunal in Jackson concerned an extension of time for an appeal but the principles under discussion are of general application in the context of section 41 of the CAT Act. The Tribunal (comprising the then President, Wright J and Deputy President Westgarth) held at [19]: "An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257 at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No. 2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871 at p872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524 ...It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion'."
The Tribunal in Jackson further held at [21]: "Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice."
In exercising its discretion, the Tribunal may also have regard to the prospects of success and the substantive merits underlying the application for review. As in the case for an extension of time to appeal, sometimes it may be relevant to show that a case has more substantial merit than merely being fairly arguable: Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]); Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
Generally however, that further matter for consideration only arises if the applicant has first satisfied the Tribunal that there was a reasonable excuse for the delay: Thomson v Sydney Trains [2015] NSWCATAD 257 at [28].
In opposing the present application, the respondent submitted "that the application is misconceived and lacking in substance, and should be dismissed under section 55 (1) (b) of the CAT Act": citing Alchin v Rail Corporation NSW [2012] NSWADT 142 which held at [26]: "...this approach of construing 'misconceived' as including a misunderstanding of legal principle and 'lacking in substance' as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50]".
I have considered that submission by the respondent. However, based on my findings in this decision, I need not determine that issue to reach my decision that the application should be dismissed.
Having regard to the above authorities and well-established principles, the applicant has not satisfied me that an extension of time under section 41 of the CAT Act is required to avoid an injustice. Even accepting at face value the assertions made in the present application for review, I am not satisfied that a refusal to extend time would constitute an "injustice" for the applicant.
There has been no reasonable excuse offered by the applicant to explain the delay. The cause of delay is said to be the applicant's belated and unexplained decision to not pay the processing fee from 4 July 2019 until 5 December 2019. That matter is irrelevant to the fact that the Tribunal has already made a decision to reject an application to extend time for her to review the respondent's notice of decision of 4 July 2019.

Effect of the Tribunal's Decision dated 5 December 2019

The applicant has not appealed the Tribunal's decision under section 80 of the CAT Act and Rule 24 of Civil and Administrative Tribunal Regulations 2013 (CAT Regulations).
I generally accept the effect of the respondent's submission that "the Tribunal's jurisdiction is spent, as the same decision of the respondent was subject to prior proceedings and finalised in Choi v NSW Department of Justice [2019] NSWCATAD 248 ... [and] in the circumstance where an order has been made by the Tribunal, in the absence of any court order setting aside that decision, and where mechanisms are available to the applicant for the appeal, varying or setting aside of those orders, the Tribunal should not reconsider its own decision".
The respondent submitted that the application is a re-litigation of issues that have been determined in earlier proceedings before the Tribunal. The respondent submitted that the final orders of the Tribunal made on 5 December 2019 are effective until rescinded, altered, amended or reviewed "such as on appeal". I agree.
Although the Tribunal's decision of 5 December 2019 concerned an application to extend time under section 101 (4) of the GIPA Act, there is nothing relevantly or substantively different to the matters now for consideration under section 41 of the CAT Act to extend time. As discussed above, both proceedings concern applications to challenge the same reviewable decision and both applications were filed out of time.
Therefore the applicant effectively brings the same application to extend time to review the notice of decision of 4 July 2019, albeit for apparently different grounds and which she contends were not known to her before 5 December 2019.
The substantive issue in both proceedings before the Tribunal is the same; namely, should the Tribunal extend time for the applicant to review the notice of decision of 4 July 2019. Although the application purported to relate to a different decision for review, when properly construed, the grounds of review relied upon by the applicant do not in any way relate to a different decision. The decision of 5 December 2019, which was only a few weeks before the present application was filed, dismissed an application by the applicant that sought the same relief as the present application under consideration.
In my opinion it is not so much a matter of the Tribunal's jurisdiction being "spent" as the respondent submitted. Rather, the applicant cannot bring the same application to extend time which she has previously brought before the Tribunal.
The applicant's rights of review of the respondent's notice of decision dated 4 July 2019, merged with that earlier decision of the Tribunal: it did not, as I have explained above, create new rights for the applicant to seek a further administrative review of the reviewable decision.
The applicant's attempt to circumvent the legal effect of that earlier decision by contending that the documents received by her on 5 December 2019 have a particular significance or effect, does not derogate from the relevance and application of the above principles to the present case. Each of the four grounds relied upon by the applicant in her application relate directly to the notice of decision of 4 July 2019, which is the same reviewable decision which was the subject of the Tribunal's decision of 5 December 2019.
Therefore, in addition to the fact that the application has been filed out of time without explanation, I also decline to exercise the discretion under section 41 of the CAT Act to extend time. Allowing the present application to proceed would enable the applicant to re-litigate the same matters which have already been finally determined against her in a previous decision of this Tribunal. For the reasons explained above, this is impermissible.

Summary

The present application, which I have found seeks a review of the respondent's notice of decision dated 4 July 2019, has been filed out of time.
On 5 December 2019, the Tribunal gave reasons dismissing the applicant's application to extend time to review the respondent's notice of decision dated 4 July 2019.
That decision of the Tribunal is not a "reviewable decision" under section 100 (1) of the GIPA Act. To the extent that the application may seek to review that decision, the application is incompetent and should be dismissed.
The applicant appears to rely upon the timing of the Tribunal's decision on 5 December 2019 and the release of the documents on that same date, to contend that it gave her some form of further or new rights of review, which it does not.

Orders 1. The application to extend the limitation period under section 41 of the Civil and Administrative Tribunal Act 2013 is 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: 18 June 2020

Civil and Administrative Tribunal Regulations 2013(NSW)

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