This is an application for summary dismissal of proceedings. The proceedings in question relate to a government information public access request for information held by the Respondent. The Respondent seeks dismissal of the proceedings, partly on the basis that the application is out of time and the Tribunal does not have jurisdiction.
[2]
Background
On 22 September 2021, Mr Mansfield, the Applicant, submitted an online Right to Information (GIPA) Form Application to the Respondent. He requested the following information: "Information from JIRT in 2012 regarding...Any documents surrounding this and the evidence used to make false allegations of sexual abuse". On 14 January 2022, the Respondent issued its Notice of Decision in relation to that access application, the decision allowed partial access to some information and refused access to other information.
On 18 February 2022, the Applicant requested an internal review of the Notice of Decision. On 25 March 2022, the Respondent issued the Notice of Internal Review Decision which effectively affirmed the original decision. On 26 August 2022, the Applicant applied to this Tribunal for administrative review of the decision to refuse access to information.
On 19 September 22, the Tribunal made the following orders:
1. The Respondent is to file and serve a strike out application... On or before 17 October 2022.
2. The Applicant is to file and serve his material in reply... On or before 21 October 2022
3. The Respondent is to file and serve a reply (if any) on or before 28 October 2022
4. The proceeding is listed for interim order hearing on 31 October 2022...
Mansfield v Secretary, Department of Communities and Justice [2022] NSWCATAD 367 | Case summary | Zoe
The Respondent complied with Order 1. Nothing was received rom the Applicant in compliance with Order 2.
On 24 October 2022 the Tribunal received a letter from Higgins Lawyers stating, in part, "we have been instructed to act on behalf of Jonathan Mansfield... We should be pleased, given the time constraints before the hearing, and after having received our instructions and a copy of the material filed to date, if NCAT would be minded to vacate the hearing listed for 31 October 2022 for a period of 28 days...
On 28 October 2022 the Tribunal advised the parties that: "The request for an extension of time is not granted. It is unclear what further documents the Applicant wants to provide and why they were not provided earlier. The Tribunal will consider any further requests for adjournment at the outset of the hearing".
The matter came on for hearing on 31 October 2022. The Respondent appeared at the hearing, however there was no appearance by either the Applicant or his legal representative. The Tribunal has received no further communications, either by telephone or electronically, from the Applicant as of 14 November 2022. In these circumstances, I consider it appropriate to proceed to make a decision on the application to dismiss.
[3]
Respondent's submissions
The Respondent submits, in part: "the GIPA Act provides that an application for administrative review must be made within 40 working days after notice is given. Notice is deemed to have been given on the day the determination is received by the Applicant... On 25 March 2022, the Applicant was served with the internal review notice of decision by email... The Applicant acknowledged receipt of the internal review decision and correspondence the same day. The Applicant had until 25 May 2022 to file his application for external review with the Tribunal. His application was registered with the Tribunal on 26 August 2022, being received by the Tribunal approximately 3 months out of time. Section 101(4) gives the Tribunal power to extend the time for making of an application "if the Tribunal is of the opinion that the person has provided a reasonable excuse for the delay in making the application"… the reasons provided by the Applicant for filing out of time were: "I was fighting 1) family law case 2) industrial law case 3) property law case = massive distraction + stress". The Respondent submits that is not a reasonable excuse for the delay in submitting the Administrative review application.
[4]
Applicant's submissions
The Applicant did not appear at the Tribunal hearing and has not made written submissions.
[5]
Legislation
Section 101(4) of the Government Information (Public Access) Act 2009 (GIPA Act) 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) 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 55 of the NCAT Act 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) if the Applicant or appellant (or, if there is more than one Applicant or appellant, each Applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the Applicant or appellant (or, if there is more than one Applicant or appellant, each Applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.
[6]
Consideration and findings
The decision for the Tribunal in this application for summary dismissal turns principally upon the delay by the Applicant in submitting his application for review of the Respondent's decision. The delay was in the order of three months. The Tribunal must consider whether or not the Applicant had a reasonable excuse for this delay.
The Applicant's reasons for the delay were that he was involved in litigation which had caused him massive distraction and stress.
The Tribunal notes that the Notice of Internal Review Decision letter informing the Applicant of the decision contains, under the bold heading Review rights, an explanation of how and where to obtain review of the decision and a specific reference to the time limits for lodging a review application.
In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Tribunal said:
Time limits, including the specification of the time within which an appeal from an internally appealable decision…must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, …and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require.
In Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4, [at 18} the Appeal Panel said: "Because providing a "reasonable explanation" or a "reasonable excuse" is all that the Tribunal has to form an opinion about, other considerations such as the merits of the application for review, any prejudice to either party or the public interest are not relevant".
I do not accept that "massive distraction and stress" is a reasonable excuse for a three-month delay. It is understandable that litigation, particularly, concurrent litigation in several matters could be a source of stress for the Applicant but he has not explained how that stress has caused such an extended delay or how it has affected his ability to deal with this application in time. That is to say, there is no evidence before the Tribunal to indicate that an exception should be made in the interests of justice.
In all the circumstances, I am satisfied the application for review of the Respondent's decision is misconceived and/or lacking in substance.
I find the application should be summarily dismissed.
[7]
Order
The Tribunal summarily dismisses the application for review.
[8]
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: 16 November 2022