The applicant, known as FFY, applied for an extension of time to seek review of a decision of the Children's Guardian to refuse his application for a working with children check clearance.
The application was made more than two and a half years out of time and the applicant did not provide a reasonable explanation for the delay. Accordingly, I dismissed his application for an extension of time and dismissed the proceedings.
[2]
Background
On 14 March 2019, the Director of the Office of the Children's Guardian wrote to FFY, refusing his application for a working with children check clearance. The Director advised that he had a right to apply to the Tribunal for review of the decision within 28 days of receipt of the notice. He also advised that, unless there is a change of circumstances as set out in s 13A of the Child Protection (Working with Children) Act 2012 (NSW), FFY would not be entitled to make a further application for a clearance without the permission of the Children's Guardian for five years.
On 14 April 2021, FFY requested the Children's Guardian to give him permission to make a further early working with children check application. This was refused on 10 May 2021. On 28 May 2021, FFY sent the Children's Guardian further information. The Children's Guardian responded to FFY some time after 28 May 2021 in a letter incorrectly dated 10 May 2021, stating that the request to make a further early application was refused.
On 22 November 2021, FFY lodged with the Tribunal an administrative review application form which annexed the Director's letter of 14 March 2019 and the 2021 correspondence concerning his request for permission to make an early application. It was not clear from the application form whether FFY was seeking review of the Children's Guardian's refusal of his working with children check clearance on 14 March 2019, or her refusal to grant him permission to make an early application in 2021.
On 13 December 2021, the Crown Solicitor wrote to FFY, stating that it was not clear to the Children's Guardian whether he sought review of the decision of 14 May 2019 or that of 10 May 2021. The Crown Solicitor said in the letter that the decision not to grant an early application under s 13A of the Child Protection (Working with Children) Act was not a reviewable decision.
At a directions hearing on 16 December 2021, the Tribunal raised this issue with FFY and made an appointment for FFY to see a duty solicitor.
On 17 March 2022, FFY indicated to the Tribunal at a directions hearing that his application was for a review of the decision to refuse his application for a working with children check clearance on 14 March 2019. On the same day, the Tribunal directed FFY to file and serve any application for an extension of time, with supporting submissions and evidence.
On 17 March 2022, FFY provided a document to the Crown Solicitor (later provided to the Tribunal) which relevantly stated:
"The explanation for delay for application for extension of time: due to circumstances beyond my control
As you appreciated that we have all special circumstances due to covid 19 restriction and guidelines. Wherever I seek help regarding my application related to appeal and review I had some delay due to circumstance of people to help, and the person either isolated or infected, and or being close contact sometimes. And the same applied for me.
Due to my English communication in regrading [sic] to response to your correspondence, my financial circumstance (as I am unable to work) is very hard to find paid assistance like lawyer. So I have to really [sic] on support and assistance from others. And all have their circumstances.
Besides I feel that I need to be careful in responding in such important decision to my future."
On 14 April 2022, the Tribunal directed the Children's Guardian to provide any evidence and submissions in response to FFY's application for an extension of time and listed the application for hearing on 28 April 2022. The Children's Guardian filed material in accordance with that direction opposing FFY's application for an extension of time.
The hearing on 28 April 2022 proceeded by telephone, in accordance with the Tribunal's current practice due to COVID-19. English is not FFY's first language. FFY was assisted by an Arabic interpreter at the hearing.
At the hearing, I asked FFY about the extent of his difficulties in understanding English in general and the letter of 14 March 2019 in particular. FFY told the Tribunal (through the Arabic interpreter) that his difficulty was with reading and writing, and that he had a visual impairment. He stated that he did not understand the letter of 14 March 2019. FFY told the Tribunal that he normally relied upon close friends to assist him with reading but that this was a personal matter which he could not give to a friend. There was only one friend he could trust, being a dentist.
FFY said that he showed the letter of 14 March 2019 to the dentist but could not recall when he did so. He said that the dentist was a busy person.
I asked FFY whether he understood that his application for a working with children check clearance had been refused when he received the Children's Guardian's letter. He said that when he received the letter he spoke to a female officer of the Children's Guardian on the telephone who told him that his clearance had been declined. He asked her to refund his application fees. FFY stated that the lady did not say that he could appeal.
Ms Chapko, for the Children's Guardian, told the Tribunal that FFY's right to appeal had been explained to him on 14 March 2019 on the telephone and FFY said that he understood. The Children's Guardian's evidence contains a record headed "WWCC Display file Notes". An entry dated 14 March 2019 at 10.13am states:
"Duty officer made call to [FFY] to advise outcome of assessment - decision to reject application. Explained his rights to appeal decision and that letter would be sent out to him today by express post. [FFY] was cordial and indicated he understood."
When I asked FFY about this, he said he did not remember anyone explaining to him that he had a right of appeal and that, if he knew, he would have appealed.
[3]
Consideration
Subsection 27(1) of the Child Protection (Working with Children) Act provides: "A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person."
Under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), the Tribunal may "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."
The Tribunal has a broad discretion when deciding whether to extend time for the lodging of an application for review of an administratively reviewable decision. However, relevant factors include:
1. The length of the delay;
2. The reason for the delay;
3. The applicant's prospects of success, that is usually whether the applicant has a fairly arguable case;
4. The extent of any prejudice suffered by the respondent;
5. Public interest considerations; and
6. Whether strict compliance with the rules will work an injustice upon the applicant,
(see CFZ v Department of Education [2015] NSWCATAD 231 at [8]-[9], citing Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]; Lonergan v Commissioner for Fair Trading [2017] NSWCATAD 187 at [7]; CFA v Department of Family and Community Services [2016] NSWCATAD 32 at [29]).
Length of the delay. FFY's application to the Tribunal was about two years and seven months out of time.
In William Alan Hull v Commissioner of Police [2022] NSWCATAD 6 at [43], the Tribunal considered that a delay of ten months was "a factor weighing strongly against a grant of an extension of time." In CFA v Department of Family and Community Services [2016] NSWCATAD 32 at [33], I described a delay of more than two months as "substantial without being excessive."
A delay of over two and a half years is exceptionally long. That factor weighs heavily against a grant of an extension of time.
Explanation for the delay. FFY's explanation for the delay did not provide a persuasive reason for extending time.
The COVID-19 restrictions, to which he referred, could not have affected him until 2020, at least nine months after being informed of the refusal of his application for a working with children check clearance.
The Tribunal accepts that FFY may have some difficulty reading English, and may not have fully understood the letter of 14 March 2019, even though there is no evidence of him suffering from a visual impairment. Even if he could not understand the letter of 14 March 2019 without assistance, his own evidence is that his friend, the dentist, was generally willing to assist him with reading such correspondence. There is no evidence to suggest that the dentist was unavailable to do this throughout 2019 or that FFY requested him to assist at that time.
I accept the documentary evidence, provided by the Children's Guardian, which stated that a person from the Office of the Children's Guardian had explained to FFY that his application had been refused, and that he could apply to the Tribunal for review of this decision, on 14 March 2019. I find, on the balance of probabilities, that FFY has forgotten this conversation. He stated at the hearing that he could not remember everything about the letter as there had been too much correspondence. It is now over three years ago that the conversation occurred; making it less likely that his memory is accurate. Whilst there is a possibility that he did not understand what was said to him on the telephone, he has communicated with the Tribunal in English at directions hearings held by telephone reasonably effectively. I find that, as recorded in the file note, FFY told the officer from the Office of the Children's Guardian that he did understand what had been said.
I do not consider that FFY's inability to afford a lawyer is a reason in favour of the grant of an extension of time. His application was filed late without legal representation. The Tribunal is intended to be accessible (see NCAT Act, s 3(c)) and many applicants are self-represented.
Public interest. The public interest supports the refusal of an extension of time. Time limits 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, and achieving finality in litigation (see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]). Further, the legislature has evinced an intention, in s 13A of the Child Protection (Working with Children) Act that a person who has been refused a clearance should not be entitled to apply again for a further five years. The review of a refusal decision over two and a half years after the decision has been made may have a tendency to undermine that legislative purpose.
Conclusion. It is not necessary to consider the other factors relevant to the grant of an extension of time. Even if I were to find that there was no prejudice to the respondent, and that the applicant had a fairly arguable case, I would not grant an extension of time. Having regard to the length of the delay and FFY's explanation for it, I am not satisfied that an extension of time should be granted. Strict compliance with the rules would not work an injustice upon FFY, given that he was told about his right to apply to the Tribunal orally on 14 March 2019 and has not demonstrated that he could not have sought assistance with reading the refusal letter, which explained his right to apply to the Tribunal, around this time (see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]).
[4]
Order
For these reasons, I make the following orders:
1. The applicant's application for an extension of time to lodge his application is refused.
2. The proceedings are dismissed.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
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Decision last updated: 05 May 2022