Eggleton v Secretary, Department of Communities and Justice - [2022] NSWCATAD 67 - NSWCATAD 2022 case summary — Zoe

NSWNSWCATAD

Eggleton v Secretary, Department of Communities and Justice

[2022] NSWCATAD 67

NCAT Administrative and Equal Opportunity|2022-03-01

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Court

NCAT Administrative and Equal Opportunity

Decision date

2022-03-01

Source

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Judgment (4 paragraphs)

[1]

REASONS FOR DECISION

The applicant, Rickie Eggleton, applied to the Tribunal on 26 April 2021 for review of a decision made by the respondent, the Secretary, Department of Communities and Justice (the Department), under the Government Information (Public Access) Act 2009 (the GIPA Act). The decision under review was made on 28 August 2019 and posted to Mr Eggleton that day. Under s 101(1) of the GIPA Act Mr Eggleton was required to make his application to the Tribunal within 40 working days after he was given notice of the decision. At the time, Mr Eggleton was in custody under the supervision of Corrective Services NSW and remains so. There is agreement that Mr Eggleton was provided with the decision on 30 August 2019 but that he had no further access to it until 20 April 2020.
The issue that I must decide is whether Mr Eggleton should be granted an extension of time within which to make his application to the Tribunal. Under section 101(4) of the GIPA Act the Tribunal can, on the application of a person wanting to make an application, extend the time for the making of an application if it "is of the opinion that the person has provided a reasonable excuse for the delay in making the application". Both Mr Eggleton and the Department have made written submissions about whether Mr Eggleton has provided a reasonable excuse for delay in making the application. The parties also appeared before the Tribunal at a hearing on 6 October 2021.

[2]

Does Mr Eggleton have a reasonable excuse for the delay?

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]).
Mr Eggleton accepts that his application was made out of time. He submits, however, that there were several reasons for the delay:

he had no access to legal resources and computers for the entirety of the relevant period;
he was repeatedly denied, hindered and obstructed in his access to legal resources; and
he was housed in clinical and observation cells for the entirety of the relevant period and under management by Statewide Disability Services.

In order to understand the circumstances surrounding the late filing of the application, the following chronology, taken from both parties written and oral submissions, is set out: 1. The Department received Mr Eggleton's access application on 3 July 2019 (the 2019 GIPA application). 2. On 11 July 2019 Mr Eggleton was placed under Risk Intervention Team (RIT) management in a clinical cell. RIT management is implemented when an inmate is at risk of deliberate self-harm and, while on RIT, an inmate's access to property is severely restricted. 3. Mr Eggleton was transferred to Parklea Prison on 23 July 2019 and was assaulted in prison on 24 July 2019. He was then transferred to the South Coast Correctional Centre where he was again placed under RIT. 4. On 28 August 2019 the department finalised its decision in response to the 2019 GIPA application and the notice of decision and records released in response to the application were posted to the South Coast Correctional Centre. 5. Mr Eggleton received the package containing the decision and records on 30 August 2019 and was provided with view access to CCTV footage which he had sought. The package was then placed in a sealed canvassed bag and removed from his possession. 6. On 24 October 2019, the 40 working days to make an application to the Tribunal for review expired. 7. On 11 December 2019 Mr Eggleton was transferred to the Shortland Correctional Centre where he continued to remain under active RIT management. He was discharged from RIT management on 16 January 2020 and placed in protective custody with a non-association status. As a result, he was kept separate from other inmates for his safety and his ability to directly associate with other inmates, his movements within the correctional centre and access to facilities were restricted. Mr Eggleton remains in protective custody. 8. Mr Eggleton reported an assault in prison on 19 January 2020. 9. On 20 April 2020 Mr Eggleton received the package containing the decision and released records in response to his 2019 GIPA application (other than the CCTV footage which had been destroyed in accordance with the method of access set out on the decision). 10. On 16 June 2020 the Department received an access application from Mr Eggleton (the 2020 GIPA application) in relation to the assault which occurred on 19 January 2020. 11. On 23 September 2020 Mr Eggleton was transferred from Shortland Correctional Centre to Clarence Correctional Centre arriving there on 30 September 2019 after transiting through two other centres. 12. On 11 October 2020 Mr Eggleton received his property transferred from Shortland Correctional Centre which included the package containing the decision and records for the 2019 GIPA application. 13. On 7 January 2021 Mr Eggleton received access to a laptop at Clarence Correctional Centre. 14. On 2 February 2021 the Department received a third access application from Mr Eggleton (the 2021 GIPA application). 15. On 3 February 2021 the Tribunal received an application from Mr Eggleton seeking review in relation to the 2020 GIPA application which he had made on 16 June 2020. In that application Mr Eggleton also sought to raise review of the 2019 GIPA application and was advised during a case conference before a Tribunal Member on 3 March 2021 that he needed to lodge a separate application for review of the 2019 GIPA application decision. 16. Mr Eggleton states he attempted to lodge a review application for the 2019 GIPA application on 25 February 2020 and again on 10 and 26 March 2021 but it was not accepted by the Tribunal. This application was filed with the Tribunal on 26 April 2021.
The Department concedes that between 30 August 2019 and about 22 April 2020 Mr Eggleton would not have had access to the documents in relation to the 2019 GIPA application and would not have been in a position to make a review application to the Tribunal. It's also accepted that between 23 September 2020 when he was moved between Shortland Correctional Centre and Clarence Correctional Centre up to 10 October 2020 when he gained access to his property he would not have been in a position to consider an application to the Tribunal. The Department also accepts that Mr Eggleton attempted to lodge an application on 26 March 2021 and that there is a reasonable excuse for delay covering the period up until 26 April 2021. Mr Eggleton states that he also attempted to lodge an application on 10 March 2021 but received a letter from the tribunal dated 15 March 2021 rejecting that application. It seems that his attempt to lodge an application on 25 February 2021 actually related to an attempt to include this application is other review applications before the Tribunal.
I accept that during the periods where Mr Eggleton had no access to his property because he was under RIT management, he has a reasonable excuse for any delay in making the review application. At issue is whether Mr Eggleton has a reasonable excuse for any delay in lodging an application between about 23 April 2020 to 22 September 2020 and between 11 October 2020 to around 10 March 2021, a period in excess of 300 days. If I accept the 25 February 2021 date as the earliest attempt to lodge an application, the delay is still around 290 days.
Mr Eggleton's primary submission for why he was unable to lodge his application at an earlier time (other than in relation to when he was under RIT management) is because he was denied access to a computer and legal resources and did not have access to a laptop to undertake legal work until 7 January 2021. I accept that Mr Eggleton did not have personal access to a computer, and therefore legal resources in an electronic form, until 7 January 2021.
The Department submits, and I accept, that while access to a computer and electronic records may have been more convenient for Mr Eggleton to prepare an application, he could have obtained hard copy legal resources whilst in custody after being released from RIT. Mr Eggleton states that custodial officers chose not to give him access to legal resources during this period. It seems from the documents provided that his requests for materials usually related to computer access. He also states the fact that he was housed in a camera observation cell in protective custody affected his ability to make the application.
Mr Eggleton states that he needed access to legal resources, including being able to conduct research either on a computer or in a library, to determine whether he had a legal foundation for making a review application in relation to the 2019 GIPA application decision. He states that after he received the laptop on 7 January 2021 he took considerable steps to make his application.
The application ultimately made by Mr Eggleton on 26 April 2021 contained lengthy typed submissions largely in relation to the substantive issues in the application. It also attached other hand written and typed documents prepared between 30 June 2019 and 22 February 2021. Mr Eggleton said that he knew he would have to make submissions in relation to the application and did so when he filed it.
There is no requirement that an applicant to the Tribunal provide detailed written submissions in support of an application. It is sufficient that the application contain the parties names and contact details, the orders sought and the reasons why. The application may be brief. In addition, the Tribunal does not require an application to be typed and, indeed, the application form ultimately received by the Tribunal was handwritten by Mr Eggleton.
The Department submits that Mr Eggleton had access to phone calls and could have asked family or his attorney under a power of attorney to assist in making the application. Mr Eggleton said at the hearing that his phone calls with family were brief and that, because of Covid-19, his attorney could not support him at that time. The Department also stated that Mr Eggleton could have obtained legal assistance if he so chose. In response Mr Eggleton said that he has a legal right to represent himself.
Mr Eggleton also states that during the relevant period he was discouraged by psychologists assisting him at the prison from completing legal work. The Department, relying upon case notes prepared by psychologists following meetings with Mr Eggleton, submits that there was no attempt to dissuade him from pursuing an application to the Tribunal and that the comments in general related to issues Mr Eggleton has with correctional staff. Mr Eggleton states that during this period his mental health had deteriorated. He has provided an affidavit by Fiona Rush dated 23 August 2021 which stated that during the period he was at Shortland Correctional Centre Mr Eggleton's physical and mental health was of concern. I note that Ms Rush is not a medical professional.
In between gaining access to his papers relating to the 2019 GIPA application decision and lodging his application with the Tribunal, Mr Eggleton made two further GIPA applications to the Department. When asked why he therefore could not apply to the Tribunal for review, Mr Eggleton stated that the GIPA application process was familiar to him, whereas the Tribunal processes were not.
Mr Eggleton was aware from 30 August 2019 of the decision that had been made. While it is accepted that there was a considerable period where he did not have access to his papers, since about 20 April 2020 those documents have been in his possession except for a period between 23 September 2020 and 11 October 2020 when he was moved between correctional centres.
As Mr Eggleton himself has noted, he length of the delay in making the application is extensive. I accept that Mr Eggleton's mental health may have suffered during his time in prison and may have affected his ability, at least on some occasions, to address legal issues. I also accept that he had concerns for his safety. The fact that during the period in question Mr Eggleton was able to make other GIPA applications does not indicate that he was so debilitated as to not be able to address an application to the Tribunal for review. It is also apparent that Mr Eggleton could have sought the assistance of family members or his attorney during this time through telephone contact. As noted above, an application need not be detailed and does not require written submissions to be provided at the time it is lodged. While he may have been unfamiliar with the process, it was clearly open to him to seek assistance. The fact that a person may represent themselves before the Tribunal does not mean that timeframes do not apply or that they should not seek assistance if they require it.
In these circumstances, I am not satisfied that Mr Eggleton 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.
Mr Eggleton'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.