Choi v University of Technology Sydney

NCAT Administrative and Equal Opportunity|2017-06-21|Before: Dr J

Solicitors: Applicant in person Barry Nilsson Lawyers (Respondent) File Number(s): 201700022726

REASONS FOR DECISION

The main issues in these proceedings are: 1. whether the applicant has applied to the Tribunal within the statutory time frame for a review of a decision made by the University of Technology Sydney ("the University") under the Government Information (Public Access) Act 2009 ("GIPA Act"); and 2. if she has not, whether the Tribunal should extend time for the making of her application.
I have found that the application is out of time and the applicant has not provided a reasonable excuse for the delay such that the Tribunal should extend time.

Relevant law

An agency may decide an access application for government information by deciding to provide access to the information (GIPA Act, s 58(1)(a)).
Notice of an agency's decision to provide access to information must state whether any processing charges will be payable for access to the information and indicate how those charges have been calculated (GIPA Act, s 62). Access to government information may be made conditional on payment of any processing charge imposed for dealing with the application (GIPA Act, s 64(4)).
An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the applicant is suffering financial hardship (GIPA Act, s 65(1)).
A decision to impose a processing charge is a reviewable decision (GIPA Act, s 80(j)).
A person aggrieved by a reviewable decision of an agency is entitled to a review of the decision by the agency that made the decision (GIPA Act, s 82(1)). However, internal review of a decision cannot be applied for more than 20 working days after notice of the decision is given to the access applicant (GIPA Act, s 83(1)).
A person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for an administrative review of the decision (GIPA Act, s 100). Where the applicant has not sought review of the decision by the Information Commissioner, an application to the Tribunal must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (GIPA Act, s 101(1)). The Tribunal may, on application by a person wanting to make an application to the Tribunal out of time, extend the time for the making of such an application by the person if it is of the opinion that the person has provided a reasonable excuse for the delay in making the application (GIPA Act, s 101(4)).

Consideration

The applicant applied for an extension of time to make her application to the Tribunal on the basis that her internal review application, lodged on 22 December 2016, was not a late application. She said that she noticed the processing fee invoice of $1,755 on 21 December 2016 and sought internal review the following day.
The applicant said that the invoice for $1,755 was attached to an email of 25 October 2016, but she did not notice the attachment at the time. She submitted that the University had failed to instruct her to open the attachment. She said that the University had only discussed with her the processing fee of $2,637 and that nobody mentioned the changed fee of $1,755. Further, the applicant stated that the University did not post her a hard copy of the invoice, even though it had posted her other important documents.
The applicant's submissions focused upon her reasons for contending that her internal review application was not late. If her internal review application was made within time then, assuming that the "decision to which the review relates" in s 101(1) of the GIPA Act may refer to an internal review decision, the 40 working day period for seeking Tribunal review would start to run when that decision was made or deemed to have been made. This would mean that the application to the Tribunal was made within time.
However, I do not accept the applicant's submission that the internal review application was made within time.
Even accepting the applicant's statement that she did not see the relevant attachment to the University's email until 21 December 2016, notice of the decision was "given to" her within s 83(1) of the GIPA Act when it was emailed to her on 25 October 2016. The words "given to" have their ordinary meaning of "delivered" or "handed over" (see Melville v Townsville City Council [2004] 1 Qd R 530 at [27]). It is not necessary that that the applicant reads the contents of the decision or is aware of the contents for a decision to have been given to her.
In Melville v Townsville City Council [2004] 1 Qd R 530, the Queensland Court of Appeal considered the meaning of a statutory provision requiring service of a notice of appeal to be effected "within 42 days after the Court's decision is given to the party". The Court of Appeal rejected the argument that the decision was "given" to a party when it appeared on the internet and said that the phrase "contemplates the party being in receipt of the material necessary to enable that party to decide whether or not to appeal" (at [28]). It also noted (at [29]) that "where the decision is 'given to' a party by post, i.e. served by posting the document as a letter, service is taken to be effected at the time when the letter would be delivered in the ordinary course of the post, unless the contrary is proved."
Melville was relied upon by the Appeal Panel of this Tribunal in ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19, when considering the meaning of r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) which, relevantly, require an appeal to be lodged "within 28 days from the day on which the appellant was … given reasons for the decision …" The Appeal Panel found (at [9]) that the appellant was deemed to have been "given" those reasons on the day on which service was taken to have been effected by post. It was immaterial that she claimed not to have received the reasons (at [10]).
I find that the applicant was "given" the University's notice of decision, including the invoice for the processing fee, when she received them by email on 25 October 2016.
It follows that the internal review application was out of time, being made more than 20 working days after notice of the decision was given to the applicant. This means that there was no internal review decision. The "decision to which the [Tribunal] review relates" (within s 101(1) of the GIPA Act) is thus the University's decision of 25 October 2016.
On the most favourable interpretation to the applicant, the applicant's application to the Tribunal was required to be made within 40 working days from the date of 25 October 2016, when the revised decision about the amount of the processing charges was given to the applicant; that is, by about 20 December 2016. It was in fact lodged about four weeks after that time. (A less favourable interpretation to the applicant would require the application to be made within 40 working days of 29 September 2016; however, I have adopted the most favourable interpretation to the applicant for present purposes).
The Tribunal has to consider whether it is satisfied that the applicant has provided a reasonable excuse for the four-week delay in making the application, such that the Tribunal is prepared to extend time for the making of the application (GIPA Act, s 101(4)).
The applicant's excuse for the delay focused on her lack of awareness that there was an attachment to the email she received from the University on 25 October 2016. She replied to the email on the same day, so there was no dispute that she received the email.
The applicant had been informed on 29 September 2016 that she had 40 working days to seek Tribunal review of the processing charge decision and 20 working days to seek internal review of the decision. The University's decision to reduce that processing charge, on 25 October 2016, arguably meant that the time started again at that point. However, the Tribunal is satisfied that the applicant was made aware of the time frames for seeking review on 29 September 2016, and could have sought review of the University's decision to impose a processing charge of $2,637 from that time.
The Tribunal also notes that the applicant was made aware, on 29 September 2016, that the University was endeavouring to process the application by 26 October 2016 and she would then be provided with an invoice. This should have put her on notice of the need to carefully check for attachments, when she received the email of 25 October 2016 from the University.
The email sent to the applicant on 25 October 2016 referred to an attached invoice. That invoice stated the amount of the processing charges. The circumstance that the applicant failed to open or read the attachment, through inadvertence or otherwise, does not amount to a "reasonable excuse" for any delay, in the circumstances.
If I am wrong and the applicant had a reasonable excuse for the delay until she received the University's rejection of her internal review application, and was put on notice that she was out of time, there is still a period of approximately three weeks between this event and her application to the Tribunal.
The applicant has not provided any excuse for the delay between receiving the University's letter of 23 December 2016 and applying to the Tribunal on 17 January 2017.
In these circumstances, I am not satisfied that the applicant has provided a reasonable excuse for the delay in making the application to the Tribunal. Accordingly, I decline to extend the time for the making of that application, pursuant to s 101(4) of the GIPA Act.
The applicant's application is therefore out of time and the Tribunal has no jurisdiction to entertain it. In these circumstances, the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, within s 55(1)(b) of the Civil and Administrative Tribunal Act and should be dismissed pursuant to that provision.
I note the University's submission that the application to review its decision to impose a processing charge should be refused, pursuant to s 109 of the GIPA Act. That provision allows the Tribunal to "refuse to review or to deal further with a review of a decision of an agency if [it] is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance." In circumstances where the Tribunal does not have jurisdiction to entertain the application, because it is out of time and the statutory criteria for extending time are not met, there is no application before it to review and it is more appropriate order to make an order under s 55 of the Civil and Administrative Tribunal Act.
For abundance of caution, I note that if s 41 of the Civil and Administrative Tribunal Act permits the Tribunal to extend time in circumstances where the applicant has not provided a reasonable excuse for the delay in making his or her application, I would decline to do so, in the exercise of my discretion.

Orders

For the reasons given above, I make the following orders: 1. The applicant's application to extend time for the making of an application to the Tribunal for administrative review of the respondent's decision or decisions under the Government Information (Public Access) Act 2009 is dismissed. 2. The applicant's application to the Tribunal for administrative review of the respondent's decision or decisions under the Government Information (Public Access) Act 2009 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: 21 June 2017

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Cited By (8)