Malliate v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2021-03-12

Background

These reasons concern whether the applicant, Mr Malliate, should be granted an extension of time in relation to his application for administrative review. He seeks review of a decision made by the Commissioner of Police on his application for access to information pursuant to the Government Information (Public Access) Act 2013 (the GIPA Act).
The respondent made its original decision on 10 October 2019. Mr Malliate requested a review of the decision by the Information and Privacy Commission. The Information Commissioner issued a decision on 28 February 2020 in which it recommended that the respondent make a new decision by way of internal review.
On 4 March 2020 the respondent made its internal review decision which refused access to the information sought on the basis of a number of public interest considerations against disclosure under the GIPA Act.
The applicant again sought review of this decision and the Information Commissioner issued a decision on 22 June 2020 recommending that the respondent make a new decision by way of internal review.
On 25 June 2020 an officer of the respondent emailed Mr Malliate and informed him that the respondent did not accept the recommendation of the Information Commissioner and would not be making a new decision.
On 28 October 2020 Mr Malliate filed an application for administrative review of the decision.
On 18 January 2021 Senior Member Higgins made directions that if Mr Malliate wished to press his application for review, he should provide a written application for an extension of time in which to file the application. On 1 February 2001 the parties were directed to indicate in written submissions whether it was appropriate for the Tribunal to dispense with a hearing when determining that issue.

Legislative context

Section 101 of the GIPA Act provides: "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) 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."
Section 50 of the Civil and Administrative Tribunal Act 2013 provides: "50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required."

The applicant's case

Mr Malliate's application for review by the Tribunal was filed on 28 October 2020. It appears that the Tribunal received it on 6 October 2020 but it was not accompanied by the filing fee, which delayed filing.
The period in which an application may be made is within 20 working days after the date on which the applicant is notified of the completion of the Information Commissioner's review (s 101(2)).
Mr Malliate provided the Tribunal with his application for an extension of time in which to file the application for review on 8 February 2021. In the statement accompanying that application, Mr Malliate stated: 1. He "completely lost my focus and attention to the time allocated for me to proceed with my review application". 2. He had suffered a workplace injury and had to deal with "ongoing mental health issues". The dates and nature of the workplace injury and the mental health issues are not specified. 3. In April 2019 he moved to Melbourne and cared for his grandson with his wife because their grandson's mother had mental health issues and had attempted to self harm. 4. He was studying for a Certificate IV in Government Agencies Investigation which took him 2 years to complete. 5. He needs access to the information to "vindicate my good name" and to have his firearms licences reinstated.
Mr Malliate has not provided any independent evidence to support his statements such as medical certificates or reports, or witness statements. He said he would need further time to obtain documents to support his claim. However he had already been granted an extension of time on from 25 January to 8 February 2021 in which to provide his material. There were a number of documents attached to his application for review, and I have considered these. They included: 1. An email from Mr Malliate to a lawyer, copied to the Information and Privacy Commission, the GIPA officer of the respondent and various other persons dated 28 July 2020 which referred to the removal of his firearms and complaining about the time and money wasted through GIPA actions. 2. Correspondence between Mr Malliate and a lawyer on 3 August 2020 about applying for a firearms licence in Victoria 3. Mr Malliate's email to the Minister for Police dated 2 October 2020.
He also copied to the Tribunal an email to the respondent's legal representative in which he stated that he made several attempts for an "internal review" and was guided to several government departments. He wished to continue with the proceedings. He stated that he had been living in NSW since the borders with Victoria reopened.
His submissions stated that he understood the Tribunal would make an order without a final hearing.

The respondent's case

The respondent filed the s 58 documents relevant to the decision, a witness statement of Michael James Winram, and submissions.
Mr Winram states that the Information Commissioner's report dated 20 June stated that an application for review by this Tribunal could be made up to 20 working days from the date of the report.
When the Commissioner's GIPA officer emailed Mr Malliate on 25 June 2020 to advise him that the respondent would not be making a new decision, he attached an email from the Information Commissioner stating that an application for review could be made within 20 days of the date of the Information Commissioner's email (22 June 2020), which is Annexure A to Mr Winram's statement.
Mr Winram also annexed to his statement copies of correspondence from Mr Malliate including: 1. An email dated 2 July 2020 in which he stated "I now have 20 working days to seek administrative review by the NSW Civil and Administrative Tribunal (NCAT) and am seeking legal advice about this process…" and went on to request information concerning his firearms licences and the name and contact details for the Minister of Police. 2. An email dated 10 August 2020 to the Information and Privacy Commission asking why he was not provided with the information he sought, how he found out if he was a "prohibited person" and whether the Commission thought the Tribunal would be helpful. 3. An email from the Information and Privacy Commission dated 11 August 2020 stating that the matter was now closed and could not be reviewed again. He was advised that his review rights lay with the Tribunal and "NCAT would be the next step." 4. On 2 October 2020 Mr Malliate emailed the Minister for Police asking for assistance with his "struggle with the Firearms Registry, GIPA and their review process".
The respondent stated it was content for a hearing of the preliminary issue to be dispensed with.

Consideration

As neither party objected to a hearing being dispensed with, I make that order and I have determined the matter on the material filed with the Tribunal.
The case law indicates that s 101 of the GIPA Act, rather than s 41 of the Civil and Administrative Act 2013 is the relevant provision under which an extension of time may be granted for an application for review of a decision under the GIPA Act (Saleam v Sydney Local Health District [2020] NSWCATAD 77 at [39-46].).
In Turner v Commissioner of Police [2014] NSWCATAP 4 the Appeal Panel considered the meaning of s 101(4) of the GIPA Act which provides that the Tribunal may extend the time in which to file the application if it is of the opinion that the applicant has provided a reasonable excuse for the delay. The Appeal Panel stated that other considerations such as the merits of the application for review, any prejudice to either party or the public interest are not relevant to forming an opinion about whether the applicant has a reasonable excuse.
Those other matters may possibly be relevant to the exercise of the Tribunal's discretion if it does find that the applicant has provided a reasonable excuse for the delay (Neary v Commissioner of Police, NSW Police Force [2015] NSWCATAD 223 at [25]; Thomson v Sydney Trains [2015] NSWCATAD 257 at [28]).
It is not clear from the evidence when Mr Malliate received notification of the Information Commissioner's decision. He did however receive notification of it no later than 25 June 2020, when the respondent notified him by email that it would not be amending its decision. 20 working days from that date fell on 23 July 2020.
Mr Malliate did not lodge his application with the Tribunal until 6 October 2020, more than ten weeks later after the filing period expired, and he did not attend to either paying the filing fee or seeking a waiver of the filing fee until some days later.
I am satisfied on the basis of the documentary evidence that on 2 July 2020 he knew that he had 20 days in which to file his application for review. He has admitted he did not pay attention to the time.
I accept his evidence that he has ongoing mental health issues. In the period after 25 June 2020, however, the applicant, according to evidence provided by both him and the respondent, wrote to a variety of people and agencies in relation to what he saw as issues relevant to the proceedings, including the Information Commissioner, the Minister for Police, a lawyer, and the Commissioner's GIPA officer. This illustrates that notwithstanding issues affecting his mental health, he had the capacity to pursue other avenues. Without any evidence of what the applicant's psychological condition is, and how it affects him, I do not accept that it prevented him from lodging his application, especially considering the other active steps he took to pursue the issues.
He moved to Melbourne in 2019 so I am not satisfied that this move and the attendant caring duties which were shared with his wife, prevented him from making his application on time. Moreover his evidence indicates he returned to NSW some time in 2020. His studies were completed over 2 years so this does not provide a reasonable excuse for the delay.

Conclusion

For the reasons stated above I am not of the opinion that Mr Malliate has provided a reasonable excuse for the delay in making the application. Accordingly, I decline to extend the time for the making of that application pursuant to s 101(4) of the GIPA Act.
Ms Malliate's application is therefore out of time and the Tribunal has no jurisdiction to deal with it. In these circumstances, the appropriate order is to dismiss the application.

Orders

The requirement for a hearing of the application for an extension of time to file the application for review is dispensed with under s. 50(2) of the Civil and Administrative Tribunal Act 2013.
The applicant's application to extend time for the lodging of the application is dismissed.
The applicant's application to the Tribunal for administrative review of the respondent's decision is also dismissed.

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

Amendments 17 March 2021 - Typographical error on coversheet and paragraphs 16, 17, 18 and 19 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: 17 March 2021

Government Information (Public Access) Act 2013(NSW)

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