Hariz v Commissioner of Police

NCAT Administrative and Equal Opportunity|2020-11-25

reasons for decision

On 10 September 2020, the respondent, the Commissioner of Police, NSW Police Force (the Commissioner), filed and served an application seeking an order for the dismissal of six external review applications made by the applicant, Raed Hariz (Mr Hariz). The Commissioner seeks dismissal of each application under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) (i.e. dismissal on the grounds of being misconceived or lacking in substance), or alternatively under s 55(1)(d) of that Act (i.e. dismissal on the grounds of want of prosecution).
Mr Hariz's external review applications were lodged with the Tribunal on 25 and 26 February 2020. Each external review application sought review of a decision of the Commissioner, made under s 58(1)(d) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), to refuse Mr Hariz access to the government information he had sought access to. However, each external review application was lodged outside of the time prescribed in s 101(1) of the GIPA Act. That section relevantly provides as follows: 101 Time for applying for NCAT administrative review (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) … (3) … (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.

Mr Hariz's application for adjournment of the 25 November 2020 hearing of the Commissioner's dismissal application

Background

At 10:05 pm, on Thursday 19 November 2020, Mr Hariz sent an email to the Tribunal seeking an adjournment, on the grounds of exceptional circumstances, of all matters he had before the Tribunal. Attached to Mr Hariz's email was: 1. a letter from his general practitioner, Dr Harry Johnson (Dr Johnson), dated 16 November 2020; 2. a letter from his psychologist, Mina Candalepas (Ms Candalepas), dated 18 November 2020; and 3. a statutory declaration, dated 19 November 2020, declared by his former wife and mother of his children, Alba Ramli (Ms Ramli).
At 11.41 am, on Tuesday 24 November 2020, the Tribunal Registry sent an email to Mr Hariz requesting that he confirm that the Commissioner was aware of his adjournment application. A copy of the Tribunal's standard form letter concerning an application for adjournment was also forwarded to Mr Hariz and the legal representative of the Commissioner. That letter expressly states that the Tribunal may consider the application for adjournment on the papers. Mr Hariz was also advised that: 'The next listing date remains in place unless you are advised otherwise.'
At my request, Mr Hariz, was also advised that in the event he sought to rely on the letters of Dr Johnson and Ms Candalepas in support of his adjournment application he was to ensure that they would be available to be contacted, by the Tribunal, by telephone, at the commencement of the hearing listed for the following day.
Later that afternoon, Ms K Mattes, solicitor for the Commissioner sent an email to the Tribunal advising that she had not received any adjournment application from Mr Hariz. She also advised that the Commissioner opposed any further adjournment and that the matter should proceed the following day.
At 10.32 pm that night (24 November 2020), Mr Hariz sent an email to the Tribunal. In that email Mr Hariz said: Dear Ms Mattes, I have cc'd Dr Johnson and Mina Candalepas on this email to be available as per directions by the Registrar, please see attached. I seek an adjournment as I am unwell, please see attached medical certificates. I have requested to adjourn the matters till Feb next year in light of exceptional circumstances related to my current situation. The hearing should not be dispensed with pursuant to s 50(2) of the civil (sic) and Administrative Tribunal Act 2013.
Attached to Mr Hariz's email was a copy of the two letters sent to him that day by the Registry and a copy of the 16 November 2020 letter from Dr Johnson.
As I have noted above, there was no appearance by Mr Hariz at the hearing on the following day (i.e. at 9.30am on 25 November 2020). Due to the COVID 19 restrictions, all hearings before the Tribunal have been conducted by telephone or AVL, if necessary. In this case, Mr Hariz and the Commissioner had been advised that the hearing would be by telephone and on the day before the hearing they were each given details of the conference call number they were to call the following day. As I have noted, Ms Mattes called that number but Mr Hariz failed to do so.

Relevant law and legal principles

Section 51 of the NCAT Act gives the Tribunal the power to adjourn proceedings. It is a discretionary power that enables the Tribunal to 'adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).
At [30] to [37] of my earlier adjournment decision, I set out the relevant legal principles that apply to the Tribunal's exercise of its discretionary power to grant or refuse an application for adjournment. These principles equally apply to Mr Hariz's adjournment application of 19 November 2020.

Mr Hariz's application and evidence

As noted above, in his 19 November 2020 adjournment application, Mr Hariz sought an adjournment of all the administrative review applications he had lodged with the Tribunal prior to that date and in respect of which orders had been made on 20 October 2020. In total, at that time, there were 11 administrative review applications by Mr Hariz before the Tribunal, which included the six out of time administrative review applications the subject of this dismissal application of the Commissioner. Of the remaining administrative review applications, three were applications seeking review of another three decisions of the Commissioner made under the GIPA Act, an application seeking review of a decision by the Secretary of the Department of Communities and Justice made under the GIPA Act and an application seeking review of conduct of the Department of Education under the Privacy and Personal Information Protection Act 1998 (NSW).
The letter of Dr Johnson is in similar terms to the letter he wrote (dated 14 October 2020) in support of Mr Hariz's earlier adjournment application (see my earlier adjournment decision, at [40]). Again, the letter is addressed to the Tribunal without any mention of the out of time administrative review applications the subject of the Commissioner's dismissal application, or the orders I made in regard to those applications on 10 November 2020. Instead, Dr Johnson reiterates his concerns about the 'horrible toll' that the Children's Court proceedings were having on Mr Hariz. Those proceedings are unrelated to these proceedings, but it is Dr Johnson's opinion that the Children's Court proceedings nevertheless give rise to 'exceptional circumstances' and, not until those proceedings are resolved, will Mr Hariz be in a better state of mind to attend to the matters before the Tribunal. Hence, in his opinion, an extension of time was justified.
The letter of Ms Candalepas is addressed to the 'Register'. In her letter, Ms Candalepas also made no mention of the administrative review applications the subject of the Commissioner's dismissal application, or the orders I made in regard to those applications on 10 November 2020. Instead, her letter is in similar terms to the letter she wrote on 24 July 2020, in support of Mr Hariz's further application for adjournment. That is, she again noted that, in her opinion, the legal proceedings surrounding Mr Hariz's children and managing those proceedings were causing him significant distress and, until those proceedings were resolved and Mr Hariz regained access to his children, he will have significant difficulty in concentrating on any other matters. On this basis, Ms Candalepas again requested that consideration be given to adjourning the current NCAT proceedings.
In her statutory declaration, Ms Ramli said that she had seen and heard how distressed Mr Hariz was in the proceedings before the Children's Court. She said that she has seen how significantly this has impacted on his ability to properly attend the NCAT matters, which would make them unfair. She asked the Tribunal to grant him an adjournment 'due to the court orders limiting his ability to provide evidence as suggested by the Tribunal member, which is not his fault'. Ms Ramli went on to refer to the evidence needed for Mr Hariz's privacy application before the Tribunal, which has no relationship with the administrative review applications that are the subject of this dismissal application of the Commissioner.
Ms Ramli, also reiterated her earlier remarks that Mr Hariz is unable to 'attend to the NCAT matters because of the current s 90A orders put in place at the Children's Court forbidding him from having contact with me and my children.' How those orders prevented Mr Hariz from complying with the orders I made in my earlier adjournment decision was not explained.

Consideration

At the hearing, on 25 November 2020, the issue for determination was whether the letters of Dr Johnson and Ms Candalepas and the statutory declaration of Ms Ramli were such that they identified 'exceptional circumstances' warranting an adjournment of the hearing of the Commissioner's dismissal application.
As noted at [10] above, at the hearing of the Commissioner's dismissal application, I was satisfied on the material before me, that Mr Hariz was fully aware of the Commissioner's dismissal application and that he had every opportunity to respond to it.
In this regard, I note that an application of this kind was first foreshadowed, on 30 June 2020, when, in granting Mr Hariz with his third extension of time to comply with orders made at the April 2020 case conference, the Tribunal noted that: …[the] applicant has requested extensions on 7 May 2020, 2 June 2020 and 24 June 2020 and that any further request for an extension by the applicant may result in the proceedings being dismissed.
On 28 July 2020, the Tribunal, in granting Mr Hariz with a further extension of time to comply with orders made at the April 2020 case conference, the Tribunal again noted in its orders that Mr Hariz, 'is on notice that if he fails to comply with the amended timetable the respondent may seek to have the applications dismissed.'
As noted above, having failed to comply with the orders made on 28 July 2020, on 10 September 2020, the Commissioner filed and served his dismissal application. On the following day (11 September 2020), the Tribunal made an order that by 23 September 2020, Mr Hariz was to file and serve any written submissions he wished to make in regard to the Commissioner's dismissal application and an order dispensing with a hearing and determining the Commissioner's application on the papers (NCAT Act, s 50(2)). The Tribunal also made an order that the Commissioner file and serve any submissions in reply by 30 September 2020
On the same day (11 September 2020), Mr Hariz made another application for adjournment, which also came before me on 20 October 2020 and is the subject of my earlier adjournment decision. Mr Hariz did not appeal that decision or comply with the orders that I made, which included listing the Commissioner's dismissal application for hearing on 25 November 2020.
As I noted in my earlier adjournment decision, at [46] and [47], I accept that Mr Hariz has found the Children's Court proceedings stressful and a number of conditions have been placed on him in regard to contacting his children and his former wife. Those proceedings, however, are unrelated to these proceedings, which are not complex and have a risen as a result of Mr Hariz's failure to comply with orders made in April 2020 to file and serve an application for an extension of time.
It is evident from the contents of the letters from Dr Johnson and Ms Candalepas and the statutory declaration of Ms Ramli that they are unaware of the limited nature of Mr Hariz's administrative review proceedings, or the Commissioner's dismissal application: see my earlier adjournment decision at [23] to [28].
For the reasons set out, [48] to [54], of my earlier adjournment decision, I was not satisfied that on the material before me on 20 October 2020, Mr Hariz had established a basis on which to grant an adjournment of the Commissioner's dismissal application.
In the absence of Mr Hariz, Dr Johnson, Ms Candalepas, or Ms Ramli having explained how circumstances had changed between 20 October 2020 and 24 November 2020 so as to prejudice Mr Hariz in defending the dismissal application of the Commissioner, I was not satisfied that Mr Hariz had established any circumstances justifying a departure from my earlier order of refusing his application for an adjournment

The Tribunal's power to dismiss an application

Section 55 of the NCAT Act gives the Tribunal the power to dismiss any proceedings before it. It is a discretionary power and relevantly provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) …, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) …, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
The Tribunal's power to dismiss and application under s 55 is discretionary.
In Braiding v Charles Sturt University [2016] NSWCATAD 90, Deputy President Hennessy LCM (as she then was) considered the exercise of the discretion to dismiss an application under s 55(1)(b) and (d). In regard to the term 'lacking in substance' in s 55(1)(b) of the NCAT Act, at [27] Deputy President Hennessy LMC said: 27. The term "lacking in substance" has a slightly wider meaning. In Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 45 the Court of Appeal interpreted the phrase in the context of the informal investigative powers in the Strata Schemes Management Act 1996 (NSW). The Court concluded at [45] that, "It would be inappropriate given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than "not reasonably arguable". Although the legislative context here is different, that interpretation is also apt given that the power to summarily dismiss a complaint should be used sparingly and only where there is a high degree of certainty that the complaint will not succeed: AB v State New South Wales [2014] NSWSC 81 at [50] quoting Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
In regard to s 55(1)(d), at [18] to [20], Deputy President Hennessy LMC said: 18. The Tribunal has power to dismiss a complaint "if the Tribunal considers that there has been a want of prosecution of the proceedings": NCAT Act, s 55(1)(d). The Tribunal's power to dismiss proceedings for want of prosecution is similar to the power in the Uniform Civil Procedure Rules 2005 (NSW), r 12.7 to dismiss proceedings if a plaintiff does not prosecute the proceedings with due despatch. 19. Historically, courts have been reluctant to dismiss proceedings unless there had been either an intentional and contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297at 318 cited in Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 at [26]. The stringency of that principle has been diminished with the enactment of the "overriding purpose" in legislation: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] (Basten JA). That purpose is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005(NSW), s 56. 20. The "overriding purpose" in the Civil Procedure Act is identical to the "guiding principle" in s 36 of the NCAT Act. The scope of the Tribunal's power in s 55(1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. There are no rigid rules. the Tribunal should undertake a "balancing exercise, in the course of which a variety of factors may be considered": Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412. Relevant considerations include the length of the delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party: Hoser v Hartcher [1999] NSWSC 527, per Simpson J at [19]-[30].
In Braiding, the application that was before Deputy President Hennessy LCM as an application made in the general jurisdiction of the Tribunal (NCAT Act, s 29) (i.e. an application made under the Anti-Discrimination Act 1977 (NSW)). These principles have also been equally applied in applications falling within the Tribunal's administrative review jurisdiction(NCAT Act, s 30), including an application for administrative review under s 100 of the GIPA Act: see DVG v Western Sydney Local Health District [2019] NSWCATAD 237 and Miriani v W Police Force [2012] NSWADT 78.
In Bousgas v H.D. Constructions (Aust) Pty Ltd [2017] NSWCATAP 122, the Appeal Panel (M Harrowell, Principal Member (as he then was) and A Boxall, Senior Member) made similar observations as to the principles that apply to the Tribunal's discretion to dismiss proceedings under s 55(1)(d) of the NCAT Act. At [31] to [34] the Tribunal noted the following: 31. … [in] State of New South Wales v Plaintiff A [2012] NSWCA 248, Basten JA said at [17]-[18]: 17. Although there is authority for the proposition that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits absent intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible - see Birkett v James [1978] AC 297 at 318 - the stringency of that principle has been diminished by the enactment of ss 56-60 of the Civil Procedure Act. Further, a proceeding will involve an abuse of process in circumstances where the objective effect of the lapse of time since the cause of action arose is to render a fair trial impossible, despite the absence of any moral delinquency, oppressive conduct or misconduct on the part of the plaintiff: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [69]-[70]. 18. Despite the fact that misconduct on the part of a plaintiff is not a precondition to a finding of abuse of process, the reasons for any delay are relevant considerations. Thus, it would be a rare case in which a defendant could complain of unfairness where the delay was in large part due to the defendant's own behaviour. By parity of reasoning, a court is likely more readily to find an abuse of process where there is culpable misconduct on the part of a plaintiff. 32. As is clear from these comments, the requirements of s56 of the CP Act is itself a matter to be taken account of in determining whether proceedings should be dismissed for want of prosecution. 33. Similarly, s36(1), (3) and (4) and s38(5)(c) of the NCAT Act impose obligations on the Tribunal and the parties which must be taken account of in considering whether to make an order to dismiss proceedings for want of prosecution under s55(1)(d) of the NCAT Act. 34. It is in the context of these principles that the decision of the Tribunal must be evaluated.
The principles cited in Bougas were recently followed by the Appeal Panel (Armstrong J, President and L Pearson, Principal Member) in Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63.
For completeness, I note: 1. section 36(1) of the NCAT Act provides that the guiding principle for that Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. As noted above, this provision is in similar terms to that of s 56(1) of the CP Act; 2. section 36(3) of the NCAT Act provides that a party to proceedings in the Tribunal is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, participate in the processes of the Tribunal and comply with directions and orders of the Tribunal. Section 56(3) of the CP Act is also in similar terms; 3. section 36(4) of the NCAT Act provides: (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. 1. section 38(4) and (5) of the NCAT Act provides: (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

Mr Hariz's external review applications

Each external review application the subject of the Commissioner's dismissal application was lodged by Mr Hariz by completing the Tribunal's proforma 'Administrative review application form'. Attached to each form was a copy of the decision of the Commissioner for which Mr Hariz said he sought review.
Four of Mr Hariz's administrative review application forms were lodged on 25 February 2020 (i.e. file numbers 2020/00062231 (62231), 2020/00062234 (62234), 2020/00062237 (62237) and 2020/00062239 (62239)). I note that the application forms, other than that which is file number 62237, appear to have been signed by Mr Hariz on 31 January 2020. The application form that is file number 62237 appears to have been signed by Mr Hariz on 25 February 2020.
The remaining administrative review application forms were lodged by Mr Hariz on the following day, 26 February 2020 (i.e. file number 2020/00062655 (62655) and 2020/00062677 (62677)). Each application appears to have been signed by Mr Hariz on the same day they were lodged with the Tribunal.
With the exception of the application that is file number 62677, the decision of the Commissioner the subject of review in each application of Mr Hariz is a decision to refuse him access to the entirety of the information he had sought on the grounds that there was an overriding public interest against disclosure of that information: GIPA Act, s 58(1)(d). The public interest considerations against disclosure relied on by the Commissioner were those set out in cl 2(b) (reasonably expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law) and cl 3(c) (reasonably expected to prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings) of the Table to s 14(2) of the GIPA Act.
The decision of the Commissioner the subject of review in the application that is file number 62677, is a decision to refuse Mr Hariz access, in part, to the information contained in the two documents for which he sought access. The decision to refuse access was based on there being an overriding public interest against disclosure. In this case, the public interest grounds relied on by the Commissioner were those set out in cl 3(a) (could reasonably be expected to reveal personal information of a person other than the applicant) and cl 3(b) (could reasonably be expected to contravene an information protection principle under the PPIP Act) of the Table to s 14(2) of the GIPA Act.
The decision that is the subject of review in file number 62239 is an internal review decision of the Commissioner: GIPA Act, s 82. The remaining decisions of the Commissioner attached to Mr Hariz's administrative review application form, are all original decisions.
In each administrative review application form, Mr Hariz acknowledged that notice of the decision of the Commissioner for which he sought review, was received by him on the same day as the decision was made. Set out below is a table which identifies the date of the Commissioner's decision the subject of Mr Hariz's applications as per each of his administrative review application form. File no. Date of decision 62231 8 November 2019 62234 23 October 2019 62237 23 October 2019 62239 27 October 2019 (i.e. the date of the Commissioner's internal review decision) 62655 28 May 2019 (in his written submissions, the Commissioner indicated that he had subsequently made an internal review decision on or about 26 October 2019) 62677 15 November 2019
In each administrative review application form, Mr Hariz : 1. noted, under the heading 'GROUNDS FOR APPLICATION', that the decision of the Commissioner was wrong; and 2. acknowledged that his application had been lodged outside the time allowed. The reason he gave for having lodged his application outside the time allowed was that he was 'unaware' of this 'service', 'agency' or 'path'. In his applications that are file number 62231 and 62239, Mr Hariz added 'until I was told by the Privacy Commissioner yesterday'.

Submissions of the Commissioner

It is the contention of the Commissioner that, despite having been given ample opportunities to make an application for an extension of time, it is Mr Hariz's failures to do so that warrants an order for the dismissal of his applications under s 55(1)(b) of the NCAT Act, because in the absence of an order by the Tribunal to extend time, the Tribunal does not have jurisdiction to hear and determine his substantive administrative review applications. It is on this basis that the Commissioner contends that Mr Hariz's substantive administrative review applications are misconceived or lacking in substance.
In his written submissions, the Commissioner acknowledged that when the six out of time administrative review applications first came before the Tribunal, on 14 April 2020, Mr Hariz requested that the Tribunal dispense with the need for a written application for an extension of time, as required under s 101(5) of the GIPA Act. That request he noted was refused and Mr Hariz was directed to make a written application for an extension of time, in accordance with s 101(4) of the GIPA Act, together with written submissions, by 28 April 2020.
In regard to the progress of Mr Hariz's six out of time administrative review applications the Commissioner noted the following: 1. between 13 May 2020 and 10 June 2020, Mr Hariz made three applications for time to be extended within which to comply with the Tribunal's orders made on 14 April 2020. On each occasion, without any objection by the Commissioner, the Tribunal extended time; 2. it was not until 24 June 2020, when Mr Hariz made his fourth request for an extension of time to comply with the 14 April 2020 orders, that he, the Commissioner, opposed any further extension of time; and 3. Mr Hariz, having been granted a fourth extension of time to comply with the 14 April 2020 orders, he again failed to comply with those orders and made his fifth application for an extension of time to comply with those orders. In support of that application Mr Hariz provided a letter from Dr Johnson, Ms Candalepas and his psychiatrist, Dr Reznik: see my earlier adjournment decision, at [40]. On 28 July 2020, at a directions hearing, the Tribunal granted Mr Hariz his fifth extension of time and it noted that it 'was unable to reach the applicant on the telephone number provided' and that the 'extension of time, opposed by the respondent, has been granted on the basis of the medical evidence provided to the Tribunal on 27 July 2020'.
Attached to the Commissioner's written submissions is a table that sets out the following information in respect of each of the six out of time administrative review applications of Mr Hariz: 1. the reference number the Commissioner gave to Mr Hariz's access that gave rise to the decision he made and for which Mr Hariz seeks review; 2. the date on which the Commissioner determined Mr Hariz's access request; 3. the date on which each application for administrative review was lodged by Mr Hariz; and 4. the number of working days that had elapsed between the date of the Commissioner's determination and the date on which Mr Hariz lodged his application for administrative review.
What is evident from the table is that Mr Hariz's applications for administrative review arise from three GIPA Act access requests he had made to the Commissioner as follows: Commissioner's ref NCAT File No Working days elapsed 2019-4859 62234 78 2019-4859 62237 78 2019-1862 62239 75 2019-1862 62655 76 ( as calculated from the date of the Commissioner's internal review decision) 2019-4767 62231 66 2019-4767 62677 61
Copies of Mr Hariz's access requests to the Commissioner are not before the Tribunal. In the absence of Mr Hariz having disputed what is contained in the Commissioner's table, in my view, nothing turns on these requests not being before the Tribunal.
Based on the abovementioned working days lapsed between the date on which Mr Hariz received notice of the Commissioner's decision and the date on which Mr Hariz lodged his six out of time administrative review applications, these applications were lodged between 21 and 38 days out of the time prescribed in s 101(1) of the GIPA Act.
Ms Mattes submitted that, under the GIPA Act, Mr Hariz was not prejudiced in having his external review applications dismissed as he was not prevented from making a fresh application for access at some later time. However, the Commissioner was prejudiced by Mr Hariz's ongoing failure to make his application for an extension of time.

Consideration

The question is whether Mr Hariz's ongoing failure to comply with the orders made by the Tribunal on 14 April 2020 warrants the dismissal of his six substantive administrative review applications that were lodged out of time.
In this regard, I re-iterate what I said, at [22] to [28] of my earlier adjournment decision as to the nature of the six out of time external review applications of Mr Hariz. In summary, they are each an application seeking administrative review of a decision of the Commissioner, made under the GIPA Act, to refuse Mr Hariz access to information he sought access to under that Act and which was held by the Commissioner as at the date he made his access request.
The role of the Tribunal, in reviewing a decision of the Commissioner (as it is for any other government agency having made an administratively reviewable decision under the GIPA Act), is to determine the correct and preferable decision. The onus is on the Commissioner to establish that his decision is justified in that the public interest test in s 13 of the GIPA Act is satisfied. That is, the onus is on the Commissioner and not Mr Hariz to establish that the public interest considerations against disclosure of the information (which are limited to those prescribed in s 14 of the GIPA Act), on balance, outweighs the public interest consideration in favour of disclosure of the information (which are not closed).

Dismissal - proceedings misconceived and lacking in substance s 55(1)(b)

I agree that, the Tribunal having rejected Mr Hariz's request to dispense with the need to make a written application for an extension of time under s 101(5) of the GIPA Act, or having made an order extending time under s 101(4), the Tribunal has no jurisdiction to hear and determine Mr Hariz's substantive administrative review applications. However, on the material before the Tribunal, I am not persuaded that the ongoing failure by Mr Hariz to comply with the orders made by the Tribunal on 14 April 2020 gives rise to his substantive administrative review applications being misconceived or lacking in substance.
An application for an extension of time to lodge an application for administrative review in the Tribunal is an application for which the applicant seeks an interlocutory decision by the Tribunal: see NCAT Act, s 4(1) definition of 'interlocutory decision'. It is well established that in determining whether to grant an extension of time, a factor that is to be taken into account is whether the applicant has an arguable case, or whether it is misconceived or lacking in substance: Di Salvo v Leung [2014] NSWCATAP 44, at [21].
In this case, Mr Hariz did acknowledge in each of his external review applications that they had been lodged out of time. What he has failed to do is make a written application for an extension of time and written submissions in support of that application within the time ordered. This alone, does not, in my view, mean that his substantive administrative review applications are misconceived or lacking in substance. However, for the reasons that follow, I am persuaded that Mr Hariz, in his ongoing failures to comply with the orders made by the Tribunal on 14 April 2020 amounts to a failure to prosecute and warrant the dismissal of his substantive administrative review application.

Dismissal - want of prosecution s 55(1)(d)

On the material before the Tribunal and having regard to the overriding principle in s 36(1) of the NCAT Act, the duty to comply with orders and directions made (s 36(3) of that Act) and the requirements of s 36(4) of that Act, I am satisfied that Mr Hariz has failed to expeditiously prosecute his six out of time administrative review applications for the following reasons: 1. as of 25 November 2020, it has been nine months since Mr Hariz lodged his six out of time administrative review applications seeking review of decisions made by the Commissioner, under the GIPA Act, in October and November 2019, 2. in each application for administrative review form Mr Hariz acknowledged that his application had not been lodged within the prescribed time. While he said he was unaware of his right to seek review by the Tribunal, in the absence of any further explanation, this is inconsistent with the notice of decision he said he received from the Commissioner. At the conclusion of each notice of decision, the Commissioner expressly set out Mr Hariz's external review rights which included the following: … [external] review of the decision by the Information Commissioner or the NSW Civil and Administrative Tribunal (NCAT) which must be lodged within 40 working days from the date of this notice.; 1. almost seven months have elapsed since Mr Hariz was directed to file and serve his application for an extension of time, together with his written submissions in support of that application. During that time, Mr Hariz made five applications (in writing, by email) for an extension of time within which to comply with the orders that were made seven months previously, which included the making of a written application for an extension of time was granted five extension of time within which to file and serve his application for an extension of time to lodge his substantive administrative review applications; 2. while I accept that the applicant has at all times been unrepresented, an application for an extension of time under s 101(4) of the GIPA Act does not involve any complexity, beyond that which applies to an application for an extension of time to comply with order that have been made. In this regard, written submissions as to the reason for the delay in lodging his six out of time administrative review applications (i.e. a delay of between 21 and 38 working days) are matters of which only Mr Hariz has knowledge; 3. I accept that the Children's Court proceedings involving his children has caused Mr Hariz considerable stress. However, those proceedings are unrelated to Mr Hariz's six out of time administrative review applications (these proceedings) and, other than mere assertion, there is no evidence that explains why Mr Hariz is, or has been prevented from complying with the orders and directions of the Tribunal these proceedings; 4. as early as 30 June 2020, Mr Hariz was on notice that a failure to comply with the orders of the Tribunal made on 14 April 2020, may result in his six administrative review applications being dismissed. Notwithstanding such notice, Mr Hariz has continued in his failure to file and serve his extension of time application and written submissions. He has also failed, without explanation, to respond to the Commissioner's dismissal application.
I am also satisfied that the Commissioner has been prejudiced by the manner in which Mr Hariz has failed to expeditiously prosecute his six out of time administrative review applications.
On the other hand, I am not satisfied that Mr Hariz would be unduly prejudiced if his six out of time review applications were to be dismissed.
As noted by the Commissioner, under s 41 of the GIPA Act, a person is not prevented from making a request for access to a government agency for the same information for which he or she had sought access to previously. Where such an application is made, the government agency is given a right to make a decision to refuse to deal with the access request under s 58(1)(e) of the GIPA Act on the grounds set out in s 60(1)(b) of that Act which provides as follows: 60(1)(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,
A decision to refuse to deal with an access request on such grounds is also a decision for which the access applicant can seek external review by the Tribunal under s 100 of the GIPA Act.
In this case, while the Commissioner's main grounds of refusal to grant the applicant access to the information he had sought were the overriding public interest considerations in cl 2(b) and 3(c) of the Table to s 14(2) of the GIPA Act in regard to prejudicing the prevention, detection or investigation or a contravention or possible contravention of the law, or prejudicing any court proceedings, it will be incumbent on the Commissioner to reassess those grounds as at the time any fresh application for access is made by Mr Hariz.
Accordingly, I am satisfied that Mr Hariz's ongoing failure to expeditiously prosecute his six out of time administrative review applications warrant a dismissal of those application for a want of prosecution under s 55(1)(d) of the NCAT Act.

Orders

For the reasons set out above, I make the following order: 1. The applications of Mr Hariz that are file number 2020/00062231, 2020/00062234, 2020/00062237, 2020/00062239, 2020/00062655 and 2020/00062677 are dismissed for want of prosecution.

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: 13 January 2021

Strata Schemes Management Act 1996(NSW)

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