Gad v Commissioner of Police, NSW Police Force

Extension of time

1. A person is entitled to apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of a decision to refuse to issue a firearms licence to the person (Firearms Act 1996 (NSW), s 75(1)(a)).
2. An application to the Tribunal is to be made in the time and manner prescribed by the procedural rules (Administrative Decisions Review Act, s 55(2)). Unless the Tribunal grants an extension under s 41 of the NCAT Act, an application must be made by the end of the "default application period" (Civil and Administrative Tribunal Rules 2014 (NSW) ("NCAT Rules"), r 24(3)(b)). The "default application period" is defined to mean, relevantly, the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of the Administrative Decisions Review Act (NCAT Rules, r 24(4)(a)).
3. The internal review of the decision to refuse to renew Mr Gad's licence was taken to have been finalised on or about 23 October 2021, being 21 days after the internal review application was made (Administrative Decisions Review Act, s 53(9)(b)). The period of 28 days referred to in r 24(4)(a) of the NCAT Rules expired on 20 November 2021. This was about three months before the applicant applied to the Tribunal.
4. The applicant did not apply for an extension of time when filing his application, but instead checked the box indicating that the application was filed within time. It was only after the application had been filed that Mr Gad came to accept that it was filed out of time. In his submissions on his application for an extension of time, Mr Gad stated that he was "under the incorrect apprehension on when I was required to file my review application."
5. The Commissioner objected to the Tribunal granting Mr Gad an extension of time to apply to the Tribunal.

Relevant law

1. Section 41 of the NCAT Act confers an unfettered discretion on the Tribunal to extend the time for the making of an application to it. However, this discretion must be exercised judicially: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 ("Jackson") at [18].
2. The principles applicable to extending time in administrative review proceedings were considered by Molony SM in CFZ v Department of Education [2015] NSWCATAD 231. The Senior Member said (at [8]) that the principles to be applied by an Appeal Panel on applications for an extension of time, as discussed in Jackson, were equally applicable to an administrative review application, with appropriate adaptation.
3. In Jackson, the Appeal Panel said at [22]: "The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) 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 appellant -Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision …. (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her 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]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
4. The Court of Appeal (Bell P, Macfarlan and Brereton JJA agreeing) referred with approval to the principles set out in Jackson in EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 at [17].
5. In CFZ v Department of Education [2015] NSWCATAD 231, Molony SM also referred to some considerations which are relevant in administrative review applications: "In administrative review applications, there is a public interest component to the evaluation, in that the public interest in accepting a late application is a matter to be considered in the exercise of the discretion: see ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 and Edwards v Department of Family and Community Services [2012] NSWADT 60. So too is timeliness or delay in the antecedent administrative processes: see Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212. Those matters are necessary adaptions to the consideration of an extension of time in the context of an administrative review."
6. Whilst it is important to remember that the Tribunal has a broad discretion concerning the grant of an extension of time, the cases referred to above establish that the following factors are relevant: 1. The length of the delay; 2. The reason for the delay; 3. The applicant's prospects of success (usually whether the applicant has a fairly arguable case); 4. Any prejudice suffered by the respondent; 5. Public interest considerations; 6. Timeliness or delay in antecedent administrative processes; 7. Whether strict compliance with the rules will work an injustice upon the applicant.

Length of the delay

1. The length of the delay is about three months. That is not an insubstantial delay.

Reasons for the delay

1. Mr Gad is a solicitor. His explanation for the delay in applying to the Tribunal was that, in all the jurisdictions in which he practises, a written or oral judgment is given by the decision-making body before the timeframe for an appeal commences. He said that this is why he was under a misapprehension as to when the "appeal" had to be lodged.
2. Mr Gad's evidence was that, as a result of contracting COVID-19 in January 2022, he spent most of that month resting. He did not check the GIPA documents when received due to his illness and that of his family (which caused him great concern in respect of particular family members). He explained in his submissions that, with his sickness and the delay in returning to the office, "the NCAT matter escaped my mind." He stated that he was reminded of the GIPA documents by another matter, then checked them and drafted an application to the Tribunal, which he sent by express post on 18 February 2022.
3. The Commissioner submissions as to Mr Gad's explanation for the delay included the following: 1. The notice of refusal dated 21 September 2021 "is completely transparent and informative about the rights of review" and the "Registry's communications regarding review rights and applicable time limits could hardly be clearer"; 2. The applicant's statement on 18 October 2021 that he was considering making an application to the Tribunal indicates that he understood the advice the registry gave him by email on 2 October 2021; 3. It is "inexplicable" as to why a legal practitioner would be unable to inform himself correctly as to the correct time limits; 4. The GIPA application was a "cavalier move" because "potentially the documentation sought by the Applicant would not be provided until after the expiry of the period available to apply to the Tribunal" and the non-availability of those documents was not a bar to applying to the Tribunal; 5. The applicant's failure to turn his mind to the GIPA documents until 18 February 2022 "constitutes neglect and indifference on behalf of the Applicant"; 6. Whilst the applicant says he had lingering symptoms of COVID, "none are described as being debilitating and severe enough to render him disabled from completing a simple NCAT Application form." Further, as he was not mindful of the appeal, his physical state of health is "irrelevant to the actual reason for him failing to act in a timely manner."
4. I do not accept the Commissioner's submission that the Firearms Registry's communications about Mr Gad's review rights could not have been clearer. Whilst the automated email from the registry on 2 October 2021 made it plain that Mr Gad could apply to the Tribunal for review after 21 days if the internal review was not completed, it did not specify that the application for review had to be made within 28 days after that. Nor did the refusal decision inform Mr Gad that he would have 28 days to apply to the Tribunal after receiving an internal review or after an internal review was deemed to have been finalised.
5. The statement in the automated email response of 2 October 2021 that the Firearms Registry "will continue to process your internal review request, even though it is taken to be finalised, until you make an application to the Tribunal" could be seen to encourage Mr Gad to wait for the internal review. It suggested that he had an ongoing entitlement to make an application to the Tribunal whilst the internal review application was being "processed."
6. Mr Gad's evidence that he was considering making an application to the Tribunal on about 18 October 2021 does not establish that he was aware of the limitation period. It is consistent with his evidence that he considered he was entitled to make such an application whilst the Firearms Registry was dealing with his internal review application.
7. As a solicitor, Mr Gad was in a better position than most to inform himself as to the applicable time limits and did not do so. However, I am satisfied that, although he was aware that he could apply to the Tribunal after 21 days, he was not aware that he was under any time constraint until the Firearms Registry provided him with an internal review. The correspondence from the Firearms Registry, whilst alerting him to his entitlement to apply for review, did not alert him to the 28-day time limit. In my view, it suggested that Mr Gad had an ongoing entitlement to apply for administrative review, whilst the internal review was being "processed."
8. Mr Gad could have applied to the Tribunal for review of the refusal decision without waiting for his GIPA application to be processed. However, the GIPA application was not a "cavalier move" in circumstances where Mr Gad was unaware of the time limit in which he had to make an application to the Tribunal and the Commissioner had not informed him of this. Whilst it would have been preferable for Mr Gad to consider the GIPA documents when he received them in January 2022, his concerns for his family at that time and the ongoing effects of COVID-19 provide at least some explanation for why he did not do so.
9. The Commissioner did not dispute that Mr Gad contracted COVID-19 and it is likely that this affected both his mental and physical wellbeing. Mr Gad's evidence, which I accept, is that he was still feeling fatigued when he returned to the office in February 2022.
10. There was some lack of attentiveness on Mr Gad's part to the requirements for applying to the Tribunal, particularly when he first received the automated response to his internal review application in October 2021 and in the first half of February 2022 after he had returned to work. He could have taken more active steps to inform himself of the time limits for applying to the Tribunal in October 2021. However, I consider that the correspondence from the Firearms Registry conveyed the misleading impression that it was open to Mr Gad to apply to the Tribunal at any time whilst his internal review application was being dealt with. In these circumstances, I consider his explanation for the delay to be reasonable.

Does the applicant have a fairly arguable case?

1. Mr Gad submits that his application has high prospects of success. He says that the GIPA documents show that the allegation that he was suffering from mental health had not basis and that there was never any evidence prepared in relation to the provisional ADVO in 2019. He also points to the three years which have passed since that time.
2. The Commissioner submits that Mr Gad's explanation for the delay is not satisfactory and that it is relevant whether he can show that his case has more substantial merit than merely being fairly arguable (relying upon Jackson at 22). She also submits that Mr Gad's prospects are uncertain and only arguable at best.
3. It is not the role of the Tribunal, when deciding an application for an extension of time, to make a finding as to whether the applicant is likely to be successful in the proceedings. The test of whether an applicant has a fairly arguable case is designed to avoid such speculation. I note that in an application for merits review, where the Tribunal is required to determine the correct and preferable decision at the time of the hearing (Administrative Decisions Review Act, s 63(1)), it is generally easier to conclude that an applicant has a fairly arguable case than in proceedings where a party has to demonstrate error.
4. As Mr Gad submitted, three years have passed since the provisional ADVO was made. The ADVO was withdrawn at an early stage. There is no evidence before the Tribunal, at this stage, that Mr Gad suffers from mental health issues or that he harassed his former partner. The Firearms Registry itself considered, in 2019 after the ADVO had been withdrawn, that he should be allowed to have a firearms licence. The Commissioner has not, at this stage of the proceedings, provided any evidence to support her current position that the 2019 decision was erroneous.
5. For these reasons, on the information available to the Tribunal, I am satisfied that Mr Gad has a fairly arguable case. I do not accept the Commissioner's suggestion that Mr Gad needs to demonstrate, in the circumstances of these proceedings, that his case has more substantial merit than merely being fairly arguable.

Prejudice to respondent

1. The Commissioner acknowledged that she had not suffered any prejudice as a result of the delay. However, she relied upon the comment of Levine SM in Hull v Commissioner of Police [2022] NSWCATAD 6 at [55] that, in the circumstances of that case, "little weight" was to be given to that factor. In a passage quoted by the Commissioner, Levine SM cited (at [55]) a decision of Refshauge J in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTA 56 at [20]-[21]. In that case, which concerned a late application for judicial review, Refshauge J referred (at [21]) to the principle that the mere absence of prejudice is not enough to justify the extension of time.
2. It may be accepted that that principle applies with equal force to a late application for merits review in the Tribunal. However, it does not support the Commissioner's submission that the Tribunal should give little weight to the circumstance that the Commissioner is not prejudiced by an extension of time. The lack of prejudice to the Commissioner is a factor which supports Mr Gad's application for an extension of time to which I give some weight.

Public interest considerations and delay in antecedent administrative processes

1. The Commissioner had not completed the requested internal review when Mr Gad's application to the Tribunal was lodged on 23 February 2022. That is a period of about four months and three weeks after Mr Gad applied for internal review.
2. There are some indications that the failure of the Firearms Registry to complete an internal review within the statutory time frame is not an isolated incident. The automated email Mr Gad received when he lodged his application for internal review on 2 October 2021 suggests that all applicants were, at that time at least, being informed that there may be a delay in finalising the applicant's case. Mr Gad received another identical automated reply email when he emailed the Firearms Registry on 18 October 2021.
3. An administrator is required to inform an internal review applicant of certain matters within 21 days of the internal review application being lodged. Section 53(6) of the Administrative Decisions Review Act provides as follows: (6) Notice of result of review and appeal rights Within 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of: (a) the outcome of the internal review, and (b) the reasons for the decision in the internal review, and (c) the right of the person to have the decision reviewed by the Tribunal.
4. The word "must" indicates that the administrator (here, the Commissioner) has a statutory obligation to notify an internal review applicant of the outcome of the internal review, the reasons for decision and the applicant's right to Tribunal review within 21 days of lodgement of the internal review application. Notification of these matters is mandatory.
5. The provision of an entitlement to internal review is a significant part of an administrative review scheme. A statutory entitlement to reasons for an administrative decision overcomes the common law rule that a person has no entitlement to obtain reasons for a decision of a government agency (Public Service Board of New South Wales v Osmond (1986) 159 CLR 656).
6. The introduction of a right of internal review at Commonwealth level was part of the suite of Commonwealth administrative law reforms which were introduced in the 1970s and 1980s. The Administrative Review Council Report to the Minister for Justice, Better decisions: Review of Commonwealth Merits Review Tribunals (Commonwealth of Australia, 1995) considered the benefits and disadvantages of internal review and included the following observation: "6.43. Internal review can affect external review in a number of ways. For example, it has the potential to quickly and cheaply satisfy the concerns of a significant proportion of applicants who would otherwise seek more expensive review by an external tribunal, and, like external merits review, it can help to achieve improvements in the quality of agency decision making. On the other hand, internal review can act as a barrier to access, because it adds another layer to the review process. It is therefore important that internal review processes are carefully designed."
7. The Council identified delay as a potential disadvantage of internal review and recommended that time limits be introduced for the conduct of an internal review (at [6.55]-[6.57]). That is of course something which the New South Wales Parliament has chosen to do.
8. When the Administrative Decisions Tribunal Bill 1997 (NSW) was introduced, the Explanatory Note provided that one of its objects was "to provide a preliminary process for the internal review of decisions of administrators before the review of such decisions by that Tribunal." In the second reading speech to that bill (Legislative Assembly Hansard, 29 May 1997), the Minister for Police, Mr Whelan, said: "The procedures for dealing with the review of a reviewable decision are set out in chapter 5 of the bill. It involves a number of preliminary steps prior to a matter being put before the tribunal. The three most important of these are the creation of a statutory duty to give reasons for administrative decisions, the process of internal review, and the arrangement for cross referral of matters between the tribunal and the ombudsman. An essential element of good administration is the need to ensure that reasons are given for administrative decisions. The supply of reasons for decisions will give people dealing with government departments and agencies an assurance that decisions are made rationally, taking into account only the relevant considerations. This will ensure that decisions can be seen to have been lawfully made and also reduce the likelihood of appeals on the merits of the decision. The obligation to provide reasons for decisions reached in the exercise of public powers is essential to ensuring accountability. It is likely to cause a decision maker to consider carefully the grounds upon which a decision is made and ensure that proper process and policies are applied. However, the most important result of requiring reasons to be given for decisions is that it allows an individual affected by a decision to understand the reasons for that decision and therefore arms the individual with the information necessary to seek review and remedies to ensure administrative justice. The system of internal review will ensure that a government official or body which has made a decision is required to review such a decision when a person affected by the decision is dissatisfied with the outcome. This will allow wrongly made decisions to be corrected simply and cheaply. The person conducting the review of the decision is intended to be independent of the original decision maker and will be able to consider further relevant material submitted by the applicant. The internal reviewer will be required to supply a statement of reasons for his or her decision."
9. The second reading speech indicates that the reasons which are required in an internal review are an aspect of good administration as they show individuals that decisions were made rationally; internal review reduces the likelihood of appeals on the merits of a decision; the provision of reasons ensures accountability; and it arms the individual with the information necessary to seek review and remedies to ensure administrative justice. That is, internal review was introduced to fulfil several important functions.
10. The Administrative Decisions Tribunal Act 1997 was re-named the Administrative Decisions Review Act 1997 when this Tribunal was established. The requirements for internal review were preserved in the re-named Act.
11. The Commissioner's submissions demonstrated no understanding of the significance of the Commissioner's failure to complete the internal review as required, within 21 days, and the Commissioner's ongoing failure to complete the internal review nearly five months after the application for internal review was lodged. Notwithstanding this patent non-compliance with the statutory obligation in s 53(6) of the Administrative Decisions Review Act, the Commissioner submitted that the Firearms Registry "acted in a timely and efficient manner in the 'administrative' process in that it responded to both of the applicant's emails on the [sic] either the same day or the day following of transmission to the FR."
12. The Firearms Registry did not act in a timely and efficient manner in the administrative process. The sending of an automated email to an applicant for internal review is a poor substitute for conducting the internal review within time and providing the applicant with a considered review decision.
13. The Firearms Registry assured Mr Gad, in its automated email, that it would "continue to process your internal review request, even though it is taken to be finalised, until you make an application to the Tribunal." There is no evidence that it even started to process that request. In Hull v Commissioner of Police [2022] NSWCATAD 6 at [63], the Tribunal stated that the Commissioner had taken over a year to process the internal review application of Ms Hull (and had not done so when Ms Hull applied to the Tribunal). By informing Mr Gad that the Firearms Registry would continue to process his internal review request, even if it did not complete the internal review within the statutory time frame, the Registry created an expectation that the internal review would be completed within a reasonable time. At no point did the Registry warn Mr Gad that the internal review may not be completed until months after the due date.
14. On one view, where an internal review is taken to be finalised because the administrator has failed to conduct an internal review within 21 days, but the administrator subsequently completes the internal review, the time for applying to the Tribunal starts to run again. That is because the internal review is "taken to have been finalised" again (see Administrative Decisions Review Act, s 53(9)). If that is the correct construction of the provisions, it would be harsh for the Tribunal to refuse an applicant an extension of time to apply to the Tribunal in circumstances where the applicant had been waiting for a late internal review.
15. On the other hand, if time for applying to the Tribunal does not start to run again upon provision of a late internal review to an applicant, the refusal of an extension of time would be unfair (in the circumstances of this case) for a different reason. That is because the Firearms Registry's representation that it would continue to process the internal review application suggested that a reasonable option for Mr Gad was to wait for that to be completed, without making it clear that this would cause him to lose his entitlement to apply to the Tribunal for review.
16. Mr Gad submitted that "if the tribunal were to refuse the extension, then the tribunal could potentially be opening up an underhand delaying tactic by which the appeals process may be frustrated." There is no evidence as to why the Firearms Registry took so long to process the applicant's internal review application. I do not accept that it was an "underhand delaying tactic." However, there is some merit in the submission that a refusal of an extension of time would allow the merits review process for which Parliament has provided to be frustrated at least in part by the Commissioner's unsatisfactory approach to dealing with her obligations in respect of internal review applications.
17. The Commissioner relied upon the comments of the Appeal Tribunal of the ACT Civil and Administrative Tribunal in Commissioner for Social Housing v Williams (Appeal) [2017] ACAT 53. In that case, President Neate made the following comments, at [57], when refusing an application for an extension of time for an appeal: "The publication of decisions in relation to applications such as this, including the criteria taken into account by this Tribunal when dealing with those applications, should provide guidance to other parties. In particular, it should send a message that parties and their representatives should routinely comply with rules, practice directions and orders of the Tribunal. If that happens, applications such as this, which consume the resources of the parties and divert resources of the Tribunal from dealing with other substantive matters, will be less frequent and perhaps become a thing of the past." (footnote omitted)
18. The "message" to which President Neate referred, that parties should comply with rules and orders of the Tribunal, does not translate in an uncomplicated way to the circumstances of the present case. It could be said that the Commissioner should have complied with her statutory obligation to complete an internal review within 21 days and Mr Gad should have complied with his obligation to file any application for review within 28 days after that. Whilst there is a public interest in persons complying with statutory time frames, the Tribunal's discretion to extend time is not to be exercised in every case with a view to sending a message to the parties.
19. The Commissioner submits, in reliance upon Williams, that it is not in the public interest that the Tribunal should entertain dealing with applications lodged grossly out of time when the applicant could reapply to the Firearms Registry for a firearms licence. I would not describe the application as being "grossly" out of time and, whilst the applicant's entitlement to reapply for a firearms licence has some relevance, it is not determinative. Further, I do not consider that the decision in Williams is directly relevant to the determination of Mr Gad's application.
20. For the reasons given above, I consider that the public interest favours the grant of Mr Gad's application for an extension of time.

Whether strict compliance with the rules will work an injustice upon the applicant

1. In my opinion, strict compliance with the rules would work an injustice upon the applicant. That is for several reasons, including because the Firearms Registry failed to comply with its obligation to conduct an internal review within 21 days and remained non-complaint with this important statutory obligation three months later. In addition, the Firearms Registry failed to inform Mr Gad of the time limit for applying for external review and sent him an automated email which was capable of suggesting that he had an ongoing entitlement to apply for internal review whilst it dealt with his internal review application. It is just, in the circumstances, that Mr Gad be given an opportunity to have the Tribunal review the Commissioner's refusal decision.

Conclusion

1. On balance, the discretionary factors relevant to the application for an extension of time favour the grant of the application. The delay was not insubstantial and Mr Gad, as a solicitor, failed to make relevant enquiries to ascertain whether he was subject to a time limit after the Commissioner failed to provide him with an internal review within the 21-day period. Nevertheless, having regard to the terms of the automated email sent to him, the lack of reference to any time limit in that email, and his explanation for the delay, he was not aware of the time limit. In addition, he has a fairly arguable case and there is no prejudice to the Commissioner in extending time.
2. Accordingly, I have decided to extend time for the lodgement of Mr Gad's application to the Tribunal, pursuant to s 41 of the NCAT Act.

Orders

1. I make the following orders: 1. The time for the applicant to lodge an application with the Tribunal is extended to 23 February 2022. 2. Matter is listed for directions at 10:30am on 9 August 2022.

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: 06 July 2022