FlyBlue Management Pty Ltd v NSW Crown Lands Department

NCAT Administrative and Equal Opportunity|2021-08-05

Introduction

On 26 April 2021 FlyBlue Management Pty Ltd (the applicant company) made an application for administrative review of a number of decisions made by NSW Crown Lands Department (the Agency) under the Government Information (Public Access) Act 2009 (the GIPA Act). The applicant company accepts that its administrative review application was made outside the time prescribed by s 101 of the GIPA Act. That section provides: (1) An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review). (2) If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review. (3) If an application for NCAT administrative review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner's review is to end. (4) NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application. (5) An application to extend the time for the making of an application for NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case. (6) The time for making an application for NCAT administrative review may be extended under this section even if that time has expired.
On 31 May 2021 the Tribunal made orders to the effect that the extension of time issue would be determined without a hearing in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). It was also agreed that, if within time, the scope of the administrative review would be that under s 80(e) of the GIPA Act, namely, that relevant government information is not held by the Agency.

Background.

The administrative review application sought to review decisions made by the Agency with respect to two access applications made by Mills Oakley, Solicitors "on behalf of their clients Floyd and Derek Larsen and their businesses FlyBlue Management Pty Ltd and FlyBlue Aviation Pty Ltd."
The first access application was made on 20 January 2020, but its scope was narrowed following consultation on 19 February 2020. The decision was made in two parts. The first, made on 6 March 2020, related to information that did not require third-party consultations. The second, made 27 March 2020, related to information that did require consultations. In both, partial access to the information sought was granted. Both decisions advised the applicants of their right to seek external review of the decisions under Part 5 of the GIPA Act from either the Information Commissioner or NCAT and of the 40 working day time limit for making such an application. The decision was accompanied by a fact sheet from the IPC entitled, Your review right under the GIPA Act. This included a detailed explanation of the time limits for seeking external review.
The applicant company is of the view that those decisions did not consider all relevant information held by the Agency.
The second access application was made on 4 June 2020. Following negotiations between the Agency and Mills Oakley, the access applicants' lawyers, the scope of the application was reduced on 31 August 2020. On 24 September 2020 the Agency made a decision granting partial access to the information sought in the second access application (the September decision). That decision advised the applicants of their right to seek external review of the decisions under Part 5 of the GIPA Act from either the Information Commissioner or NCAT and of the 40 working day time limit for making such an application. Once again, the decision was accompanied by the fact sheet from the IPC entitled, Your review right under the GIPA Act.
On 9 November 2020 Mills Oakley, on behalf of their named clients, applied for external review by the Information Commissioner of the September decision.
On 1 March 2021 the Information Commissioner completed its review of the September decision and decided it was justified. The Information Commissioners decision advised of the applicants right to seek an NCAT review and such an application, "can be made up to 20 working days from the date of this report."
On 7 March 2021 Floyd and Derek Larsen, directors of the applicant company, electronically lodged a complaint with the Information Commissioner about the Agency's handling of the access applications due to an alleged conflict of interest in decision making (the complaint). The alleged conflict of interest concerned a person named in their request, conducting searches for relevant information. In their submissions to the Tribunal, they wrote: Following a conversation with an IPC Regulatory Officer on 3 March 2021, on 8 March we reported our new concern to the Information Commissioner, i.e., what we perceived to be a significant conflict of interest
It is important to understand that the complaint was made under the Government Information (Information Commissioner) Act 2009 ( the GIIC Act) not the GIPA Act. A print out from the OPC website, provided by the Agency, bearing the heading How to lodge a complaint about the actions of NSW government agencies in regard to an Information Act, draws a clear distinction between the making of such a complaint and seeking a review of the decision made under the GIPA Act by the Information Commissioner. Among other things, the webpage advises: A complaint about the actions of an agency is different to requesting a review. A complaint will generally be about the way in which an agency carried out its functions under the law, and not with regard to a particular refusal or request for information. If you want to request a review of the decision about access application (also known as a formal application) please see Reviews by the Information Commissioner.
On 20 April 2021 Floyd and Derek Larsen were advised by email that information Commissioner was of the view that: … The agency is not precluded from requesting a person identified in the scope of annexures application to conduct searches for the relevant information.
They were later advised by the Agency, in an email dated 18 March 2021, that "as outlined in the external review report", they could seek a NCAT review of the Agency's reviewable decision within working 20 days of the OPC external review report. Their time to seek such a review had already expired (on 29 March 2021) when that email was written, as the email noted.
On 26 April 2021 the applicant company filed the present application for administrative review, seeking an extension of time in which to review both the March 2020 decisions made by the Agency, and the September decision which had been the subject of review by the information Commissioner completed on 7 March 2021.
The attempts to review the March decisions are a year or more out of time. The attempt to review the September decision is nineteen working days out of time.

Material before the Tribunal.

In considering this application I have had regard to the following materials provided to the Tribunal: 1. application for administrative review filed 26 April 2021 with attachments; 2. applicant company's document entitled Extension Time Application dated 14 June 2021, with attachments marked A2, 3 and 4; 3. section 58 documents; 4. the Agency's submissions 29 June 2021; 5. submissions from the Information Commissioner; 6. the Tribunal's orders made 31 May 2021; 7. applicant company's evidence in reply dated 6 July 2021 which was accompanied by: 1. email dated 29 March 2001 to the Agency regarding Critical Juncture; 2. letter from the applicant company to the Agency dated 28 January 2020; 3. chronological history of GIPA applications to 21 April 2021; and 4. email from the Agency to the applicant company's solicitor dated 2 December 2020.

The applicable law

The law to be applied when determining whether or not to grant an extension of time with respect to an application for review under the GIPA Act has been considered in a number of cases.
Thomson v Sydney Trains [2015] NSWCATAD 257 was concerned with a reviewable decision was made on 23 April 2013 which allowed the access applicant view CCTV footage. The access applicant subsequently considered that there was more footage available and made a complaint to the Information Commissioner under the CIIC Act. The access applicant did not seek external review by the Tribunal until 25 May 2015. The access applicant provided a number of explanations for the delay, including that he did not know of the Tribunal and the demands of caring for his failing mother, who has since died. An extension of time was required to make the administrative review application. In considering whether time should be extended the Tribunal said: 28 As indicated earlier, the Tribunal may extend time for the making of an application to it under s 101(4) of the GIPA Act if it is of the opinion that the applicant "has provided a reasonable excuse for the delay in making the application." The question of whether the applicant has provided a reasonable excuse of the delay is the key question the Tribunal has to form an opinion about: Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [18]. Other questions, such as the merits of the application for review, any prejudice to either party or the public interest are not relevant, except, possibly, to the exercise of the Tribunal's discretion if it does find that the applicant has provided a reasonable excuse for the delay: see Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [18] and Neary v Commissioner of Police, NSW Police Force [2015] NSWCATAD 223 at [25].
The Tribunal also noted that s 41 of the NCAT Act gives the Tribunal an unfettered discretion to extend time, despite anything to the contrary in the GIPA Act. Senior Member Lucy found that s 101(4) of the GIPA Act applied: 36 In my preliminary view, the effect of these provisions is that an application to extend time to apply to the Tribunal for review of a decision made under the GIPA Act is to be determined in accordance with s 101(4) of the GIPA Act. If I am wrong, and the Tribunal may exercise an unfettered discretion to extend time under s 41 of the NCAT Act, I would refuse the application to extend time.
In CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 32 Deputy President Hennessy, at [10] agreed with that preliminary view, but added that she would not extend time under s 41 of the NCAT in any case. With respect to the discretion to extend time under s 101[4] of the GIPA Act the Deputy President agreed, at [8] that the Tribunal may extend the time to apply for an administrative review if it "is of the opinion that the person has provided a reasonable excuse for the delay in making the application."
In Saleam v Sydney Local Health District [2020] NSWCATAD 77 Senior Member Goodman took the same view. He explained: 19 Section 101(4) provides a discretion to extend time, however that discretion is enlivened only "… if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application". 20 In other words, the formation of the opinion by the Tribunal that there is a reasonable excuse for the delay is a necessary pre-condition to any exercise of the Tribunal's discretion to extend time: see also Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [16]-[18]. 21 In considering where there is a reasonable excuse for the delay, other considerations such as the merits of the application for review, any prejudice to either party and the public interest, are not relevant: Turner at [18]. Such considerations may become relevant to the exercise of the discretion if and when the Tribunal forms the opinion that there is a reasonable excuse: Thomson v Sydney Trains [2015] NSWCATAD 257 at [28].
With respect to the application of section 41 of the NCAT Act the Senior Member said: 43 The proposition that s 41 NCAT Act prevails, such that the discretion is at large, is supported by the text of s 41 which provides that it operates "despite anything to the contrary" in the GIPA Act. 44 The contrary proposition, that s 101(4) prevails, such that the discretion is enlivened only when the Tribunal forms the opinion that the applicant has provided a reasonable excuse, is supported by: (a) s 35 NCAT Act, which provides that Part 4 of that Act (including s 41) operates subject to enabling legislation (including the GIPA Act); and (b) s 112A of the GIPA Act, which provides that the provisions of Division 4 of Part 5 of the GIPA Act (including s 101(4)) are intended to prevail to the extent of any inconsistency with the provisions of the NCAT Act. 45 In Thomson v Sydney Trains [2015] NSWCATAD 257 at [34]-[36] and CGU Workers Compensation (NSW) Pty Ltd v Department of Planning and Environment [2018] NSWCATAD 32 at [9] and [10], the Tribunal expressed the preliminary view that s 101(4) prevailed. I agree with that view. In particular, the effect of s 35 of the NCAT Act is that s 41 of that Act, including the phrase "despite anything to the contrary" operates subject to the GIPA Act. 46 In any event, I would have reached the same conclusion if s 41 prevailed.
In submissions both the Agency and the Information Commissioner submitted that section 101(4) should be applied. Given the consistency with which the Tribunal has held that extensions of time for administrative reviews under the GIPA Act should be considered under section 101(4) of that Act, comity requires that I follow those decisions.

Is there a reasonable excuse for the delay in seeking administrative review of the first decision?

It will be remembered that the first decision came in two parts, the first dated 6 March 2020 and the second 27 March 2020. The application for administrative review by the Tribunal was lodged on 26 April 2021, at least a year out of time.
In the interim, the September access application had been made and determined, with the applicants seeking external review by the information Commissioner and, when that was unsuccessful, then making an unsuccessful complaint to the Information Commissioner under the CIIC Act. Only then, was administrative review sought.
In the request for an extension of time the applicant company wrote: We seek consideration of our request for an extension of time (EOT) on the basis that we understood that the relevant date of the reviewable decision was the date when the information Commissioner indicated that the review of the decision in our GIPA request (20/1186) had concluded. At that time we receive the Information Commissioner's Initial Review Request report on 1 March 2021, we discovered new information that we believe highlighted the inadequacy of the execution of both of our GIPA requests. We subsequently raise these new concerns again with the information Commissioner and then lodged a second IPC submission. This resulted in delays to our ultimate NCAT application. We were advised by the IPC that the new issues of concern should be addressed via at NCAT application and not directed to the Information Commissioner. Unfortunately, our lack of familiarity with the 'process' resulted in time delays, hence our request to seek an extension of time. That submission is signed Derek and Floyd Larsen as directors of the applicant company.
The Agency submits that the applicant company has not provided a reasonable excuse for the year long delay in seeking administrative review of the first decision. The access application with respect to the first decision was entirely managed on the applicant's behalf by Mills Oakley solicitors. The two separate decisions, which together comprise that the first decision, both contained advice to the effect that the access applicants had 40 working days from receipt of the decisions to seek review by either the Information Commissioner or NCAT. Both were accompanied by fact sheets which highlighted the limited time for seeking further review. This is something that the solicitors would have been well aware of. The Agency submits that because the applicants were legally represented throughout that time, "the threshold for establishing a reasonable excuse for the delay is greater than if the applicant was not legally represented at all material times."
Rather than seek an external review the applicant company, who was still legally represented, chose to make a further access application. No attempt was made to review the first decision at all. Yet, it is the decision of 1 March 2020 that the applicant company says lead them to discover, "information that we believe highlighted the inadequacy of the execution of both of our GIPA requests." This cannot be correct. The second access application was not made until 4 June 2020, some two or more months after the decisions that make up the first decision had been received, and after the time for seeking external review of those decisions have expired. This was pointed out to the applicant's solicitor in an email from the Agency dated 16 March 2020.
According to the applicant company's evidence in reply, Mills Oakley remained involved in the matters until the application for IPC review of the second decision was made on 9 November 2020.
Contrary to the assertions made by the applicant company quoted above, the applicant company at no time in the year 2020 sought review by either the information Commissioner or NCAT of the first decision. The only review application relating to the first decision is the present administrative review application which was filed on 26 April 2021.
In my opinion the applicant company has not proffered a reasonable excuse for the delay in seeking administrative review of the first decision. In my assessment the applicants chose to make a second application access application, rather than pursue their rights to seek review of the first decision. They did so with the benefit of legal advice. They did so knowing of the 40 working day time limit to which the decisions themselves referred.
I would add that in the circumstances, I would also refuse an extension of time under section 41 of the NCAT Act given the length of the delay and the lack of any real explanation for it.
An extension of time with respect to the first decision is refused.

Is there a reasonable excuse for the delay in seeking administrative review of the second decision?

With respect to the second access application, I am satisfied that the applicants were legally represented at the time that access application was made. Notice of the decision with respect to that access application was given to the applicants' solicitor on 24 September by email. That email advised of the time limit for seeking review. It was accompanied by a fact sheet that explained the applicable time limits.
I am also satisfied that the applicants were legally represented when they sought external review of that decision by the Information Commissioner on 9 November 2020. The Information Commissioner's decision with respect to that review is dated 1 March 2021 shows the applicant as Mills Oakley, on behalf of named clients, including the applicant company. It clearly advised that the access applicants had 20 working days in which to seek NCAT review.
Rather than seeking NCAT review, the directors of the applicant company lodged a complaint about the agency's handling of the access applications with the information Commissioner under the ICCI Act on 7 March 2021. They allege that the first and second decision were affected by a conflict of interest. In submissions they explained: [i]t was our understanding that although the initial decision from the IPC was received on 1 March 2021, because the IPC process it did not conclude until 21 April 2021, this was the relevant date for the purpose of the timeframe in which to submit at NCAT application commenced from that date.
The Agency does not dispute that the directors of the applicant company genuinely held that belief. It submits that their understanding does not constitute a reasonable belief. This is so because the applicants were legally represented until at least 9 November 2020, they had been advised of the applicable time limits, and they should have known that a complaint to the Information Commissioner (as opposed to a requested review) would not extend time for seeking an NCAT review.
I do not accept that argument. I accept that the applicant company remained legally represented until 9 November 2020, when the second access application was made. It seems clear that the applicant company was not legally represented when its directors made the complaint to the Information Commissioner under the GIIC Act on 7 March 2021. If they genuinely held the belief that, following that application, that time for making an NCAT application flowed from the date of the Information Commissioner's decision on the complaint, namely 20 April 2021 - as is accepted by the agency - then, the applicant company has a reasonable excuse for the delay in making the application for NCAT review.
As a result, I will extend time for the making of the application for administrative review to 26 April 2021, with the result that the application was made in time.
I note that the delay in making the application was relatively short (19 working days) and has not resulted in any prejudice to the Agency. I accept that the applicant company has a reasonable explanation for the delay. If I were considering an application for an extension of time under s 41 of the NCAT Act, I would extend time.

Orders

The Tribunal makes the following orders: 1. The application for an extension of time in which to seek administrative review of the Agency's first decision (20-1054) is refused. 2. The application for an extension of time in which to seek administrative review of the Agency's September decision (20-1186) is granted. 3. Time is extended for the making of the application for administrative review of the Agency's September decision (20-1186) to 26 April 2021, with the result that the application was made in time. 4. It is noted that matter is listed for case conference by telephone on 16 August 2021 at 09:30am. 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 August 2021

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Judgment (7 paragraphs)

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