Murdoch v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-03-22

Reasons for decision

This is an application by Gillian Murdoch (applicant) seeking an extension of time within which to lodge her application for administrative review of the decision of the respondent, the Commissioner of Police, NSW Police Force, made under s 58(1)(e) of the Government Information Public Access Act 2009 (NSW) (GIPA Act).
There is no dispute that the decision of the respondent is an administratively reviewable decision by the Tribunal: GIPA Act ss 80(e) and 100(1). However, the applicant's Administrative Review Application was not lodged within the time prescribed in s 101(2) of the GIPA Act.
The applicant's application first came before me, on 29 January 2024, at a case conference, where I made orders for the filing and serving of evidence and submissions regarding the applicant's extension of time application. Included in those orders was an order that each party indicate, in their respective submissions, whether the extension of time application could be adequately determined by considering the written submissions and other documents provided by the parties: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 52(2). The applicant and the respondent both indicated in their submissions that the applicant's extension of time application is suitable to be determined on the papers.
Having considered the material provided by the applicant and the respondent, I am satisfied that the issues for determination in this application can be adequately determined in the absence of the applicant and the respondent by considering the material before the Tribunal, and I make an order accordingly.
For the reasons set out below, I have decided not to extend the time within which the applicant is to lodge this application. While this decision disposes of the applicant's application, for abundant caution I have also vacated the 8 April 2024 case conference.

Material before the Tribunal

In addition to her application for review, the applicant provided the following material in support of her extension of time application: 1. an email sent on 2 February 2024, in which the applicant said that, when she was advised that the Tribunal would not accept an e-filling of her administrative review application, she arranged to have the application sent by post through NZ Post. She said it was posted within ample time, but instead of 2-3 days it took 20 days; and 2. written submissions, in reply to the 9 February 2024 written submissions of the respondent. The applicant's written submissions were received by the Tribunal on 19 February 2024.
The respondent provided the following material in response to the applicant's extension of time application: 1. written submissions dated 9 February 2024; and 2. an affidavit affirmed, on 9 February 2024, by Ian Steptoe (Mr Steptoe) a Senior Advisory Officer with the Infolink Unit of the NSW Police Force.

Background

At all relevant times, the applicant has been and continues to be a resident of New Zealand.
In August 2015, the applicant made an application to the respondent for access to 'all documents and personal information held on me by the NSW Police Force, as collected during a period of covert surveillance at my residence in Sydney … Palm Beach 2108.' The applicant went on to specify the type of document she was seeking access to. It is the contention of the applicant that, other than being informed that her application was a valid application, she did not receive any decision from the respondent concerning that application.
It is the evidence of Mr Steptoe that the records of the NSW Police Force show that the applicant's 2015 access application was determined by the respondent in late August 2015, in which the respondent found that no information of the kind sought by the applicant were held by the respondent. Mr Steptoe went on to say that, on the same day the determination was made, the applicant was sent written notification of the determination. He said notification was sent by email to the applicant's nominated email address and the applicant's nominated postal address in New Zealand and London. Mr Steptoe said that the records of the NSW Police Force also record the applicant having made a request for internal review of the respondent's August 2015 decision, and that this application was determined in September 2015 by confirming the earlier decision. Again, the records of the NSW Police record the applicant having been notified of this determination, by mail and email, to her nominated email address and her nominated postal address in New Zealand and London.
On 26 July 2023, the respondent received an access application from the applicant in which she sought access to the following information: Any and all digital files, documents and information in the possession of NSW police relating to myself (...) and my family address in Palm Beach, Sydney (...) *Copy of any search warrants created for... Palm Beach, Sydney 2018 (sic) *Start and finish times of any police operations carried out in 2015 or at any other time at this address *Unedited and edited versions of video files from search and drone footage from 2015 or at any other time at this address *Police reports and emails relating to and all of the above information
On 27 July 2023, the respondent sent an email to the applicant to advise that her access application had been received and searches for the information sought had begun. The respondent went on to note that no information had been located relating to the applicant's name, her date of birth or the address she had specified. The applicant was asked whether she could provide more details about what had occurred at the specified address and why she thought the respondent held the information sought, or whether she would like to withdraw her application and be refunded the application fee.
On 31 July 2023, the applicant sent an email in response to the questions asked of her by the respondent. In that email the applicant provided an explanation as to what had occurred at the specified address, why she thought the respondent would hold the information sought and the terms of the inform for which she sought access that related to her and the specified address. Regarding the information sought, the applicant said: - Incident reports and/or all police statements or intelligence reports - Police notebooks - Duty books detailing when surveillance shifts began and ended - Call records and transcripts - COPS events (which according to the attached would record offences, attendances, investigations and charging) - A search DVD and edited and unedited versions of the digital information/ visual images that were taken from my laptop, digital camera and mobile phone - The various parts of the NSW Evidence Act are accessible online - documents are generally defined as any record of information - I can see that many people have requested NSW Police Records on subjects ranging from alcohol related violence to ice/methamphetamine dealing, trafficking, use and supply of police brutality - I assume therefore you do have sufficient experience in researching your organisation's records to routinely provide evidence files for various cases when they are requested
Attached to the applicant's 31 July 2023 response was an eight (8) page Schedule ('Timeline') listing events that had occurred from '04.13.15' and another fifty five (55) pages of copies of documents, mobile phone messages and some photographs.
On 2 August 2023, the respondent determined the applicant's access application by deciding that she did not hold the information for which the applicant sought access. The applicant was notified of the respondent's decision, by email, on the same day. In the notice of decision, the respondent advised the applicant of her review rights.
Six working days later, on 10 August 2023, as she was entitled to do, the applicant made an application to the Information Commissioner seeking review of the respondent's 2 August 2023 decision: see GIPA Act ss 80 and 89.
The Information Commissioner completed her review on 16 October 2023. In her report of that review, the Information Commissioner concluded that the decision of the respondent, that she did not hold the information sought by the applicant in her 2023 access application, was justified. In her application for administrative review by the Tribunal, the applicant said she received notification of the Information Commissioner's report on the same day (16 October 2023).
In her report, the Information Commissioner advised the applicant that if she remained aggrieved by the 2 August 2023 decision of the respondent, she had the right to seek external review of that decision by the Tribunal. The applicant was also advised that: 'an application for review by NCAT can be made up to 20 working days from the date of this report.'
The applicant's administrative review application is marked as having been 'lodged' with the Tribunal on 29 November 2023. On page 1 of her Administrative Review Application Form (Application Form), the applicant said that the decision for which she sought review was the decision of the respondent, made on 2 August 2023, a copy of which she said she received the same day. Attached to the Application Form is a copy of the respondent's letter of 26 July 2023, the 2 August 2023 decision of the respondent, 16 October 2023 review report of the Information Commissioner.
Under the heading 'Late Applications' the applicant ticked the box that indicated her application was 'lodged' within the time prescribed under the relevant legislation.
On page two of her Application Form, under the heading 'Contact Details' the applicant provided her email details and in the spaces for telephone numbers the applicant inserted "Withheld'. The applicant ticked the box to indicate that she wanted to have notices and correspondence sent to her at her nominated email address. Under that box the following is included as part of the Form: Please note NCAT does not accept filing of applications, submissions or evidence by email. Parties must give a hard copy of documents to the Registry.
The applicant did not sign the Form but, indicated that she had digitally signed the Form on 20 October 2023.
Attached at the end of the applicant's Application Form is an eighteen (18) page page document, dated 9 November 2023 (9 November 2023 document). The applicant described the document as being 'points of fact and law' that she seeks to bring to the attention of the Tribunal. Included in these 'points of fact and law' is a reference to the applicant's 2015 access application. Attached to that document were copies of some further documents.

Relevant law

Section 101 of the GIPA Act sets out the time within which a person must lodge his or her application for administrative review by the Tribunal. That section relevantly provides as follows (bold added in s 101(2) and (4)): 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) … (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.
Rule 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) sets out how and when an administrative review application is made. That section relevantly provides as follows: 24 Administrative review applications (1) An administrative review application must be - (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the application. (2) An administrative review application need not specify the Division of the Tribunal to which the function of determining the application is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the application form accordingly. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - by the end of the default application period.
NCAT Procedural Direction 1 'Service and Giving Notice' makes provision for how a document may be lodged with the Tribunal as follows: 9. A document can be lodged with the Tribunal by: (a) leaving it at a registry of the Tribunal; (b) sending it by post to a registry of the Tribunal; and (c) sending it by electronic means to the Tribunal if the Tribunal has made electronic lodgment available for that type of document and in the type of proceedings concerned. 10. If a person sends material by email or other electronic means when lodgment by these means is not available, the document will not be taken to have been lodged.
During the COVID-19 pandemic, in accordance with cl 9(c) of NCAT Procedural Direction 1, NCAT Procedural Direction 6 permitted the lodging of applications by email. However, on 1 May 2023, Procedural Direction 6 was revoked and from that date, Administrative Review Application Forms were again required to be lodged by leaving the Form at the Registry or sending it by post.

The applicant's case

In her written submissions of 2 February 2024, the applicant said that she had every expectation that the NZ Post international courier would deliver her Application Form and attachment to the Tribunal Registry within 1-3 days. Instead, it took 20 days. Her evidence is that: 1. on 20 October 2023, she completed her Application Form and Payment Authorisation Form (Payment Authorisation) and emailed it to the Tribunal Registry; 2. when she received no response from the Tribunal Registry, she contacted the Registry and was provided with the postal address of the Tribunal; 3. after being informed that she needed to post her Application Form and her Payment Authorisation to the Tribunal Registry, she undertook some further research and prepared the eighteen (18) page 9 November 2023 document. She placed this document into the same envelope that she had placed her Application Form and Payment Authorisation into an envelope; 4. on Thursday, 9 November 2023, she attended a New Zealand Post Office and posted her envelope containing her Application Form, Payment Authorisation, and the 9 November 2023 document; and 5. the online tracking information she provided shows that her envelope was collected on the same day. It was processed on the following day but, was not in transit with the airline until late in the evening of 22 November 2023. The online tracking information shows that her envelope did not arrive in Australia until 26 November 2023, and it took another three days before it was delivered to the Tribunal Registry.
In support of her expectation that her envelope would be delivered within 1-3 days the applicant provided the NZ Online tracking information of the access application she made to the respondent, in 2015. That tracking information records the item having been posted 3 August 2015 and was in transit on 5 August 2015.
The applicant's 19 February 2024 written submissions in reply are lengthy. In summary, the applicant submits: 1. it is her preference that the Tribunal address 'the real issues' in her application and that it does so 'quickly' and 'cheaply' as possible pursuant to the 'guiding principle' in s 36 of the NCAT Act; 2. the issue of 'reasonableness' is effectively a non-issue in light of the order I made, on 29 January 2024, that the applicant was granted leave to provide her evidence and submission by email. This order, she explained removed the possibility of international courier delays impacting deadlines for Tribunal filings; and 3. the parties have already spent several days 'on this topic, solely at the behest of the defendant' and it was suggested that the 'defendant' waive her 'ideas regarding the plaintiff's need to request retrospective extensions of time for an already-listed Tribunal case is a reasonable suggestion under the circumstances; as a "slow" and "expensive" resolution of "the real issues" of this case in any forum is not in anyone's best interest.

The respondent's case

The respondent has approached the applicant's Application for review as an application for review of her decision concerning the July 2023 access application her August 2015 access application.
In this regard, the respondent neither consents to nor opposes the applicant being given an extension of time to lodge her administrative review application to the extent it relates to her July 2023 access application.
However, the respondent objects to the applicant being given an extension of time to lodge her administrative review application to the extent it relates to her August 2015 access application, because the applicant has failed to provide a reasonable excuse for the delay in seeking administrative review of the decisions that were made concerning her 2015 access application. In this regard, the respondent relies on its records that note that the original decision and the internal review decision had been posted to the applicant, in 2015, to the addresses that she had provided.

Consideration

As I have already noted, there is no dispute that a decision of a government agency, made under s 58(1)(e) of the GIPA Act, that it does not hold the information sought by an access applicant is an administratively reviewable decision that is reviewable by the Tribunal: see GIPA Act s 80(e) and s 101(1).
However, an access applicant's right of review is subject to the access applicant lodging his/her application for review with the Tribunal within the applicable time frame prescribed in s 101(1) or s 101(2) of the GIPA Act or a later time, where, on the application of the access applicant, the Tribunal is of the opinion that the access applicant has provided a 'reasonable excuse' for the delay in making the application: GIPA Act s 101(4).
In my opinion, a proper reading of the Administrative Review Application Form of the applicant, it is only the 2 August 2023 decision of the respondent for which the applicant seeks review and I make a finding accordingly.
In my opinion, the applicant's reference to her 2015 access application in the 9 November 2023 document, cannot be construed as being an application for administrative review of the determination the respondent made regarding that request, and I make a finding accordingly. In my view, as noted by the applicant, the reference to her 2015 access application is by way of background that may be relevant to the issues in her substantive application if time is extended. In the event I am wrong, for the reasons I have given below, I am not of the opinion that the applicant has provided any reasonable excuse for the delay in seeking external review by the Tribunal of the respondent's decisions concerning her 2015 access application. In this regard I note that, where a government agency fails to make a determination within the time prescribed in the GIPA Act, that Act also contains strict time limits within which an access applicant to seek internal or external review of such a failure: GIPA Act s 63.
This leaves the applicant's 2023 access application. On the material before the Tribunal, the evidence is that the applicant was notified of the findings of the Information Commissioner on Monday 16 October 2023 and it was not until 29 August 2023 I formerly find that the applicant's administrative review application was lodged 12 working days out of time. I make this finding because, on the material before the Tribunal, it was not until Wednesday 29 November 2023, that the applicant's application was lodged with the Tribunal. That is, 29 November 2023 was the day when the requisite application fee was paid after the Tribunal Registry had received, by post, the applicant's Application Form (including Attachments) and Payment Authorisation: see NCAT Rules r 24(1). This was 32 working days after the applicant had been notified of the findings of the Information Commissioner following her review. In other words, the applicant's administrative review application was lodged with the Tribunal 12 days later that the time prescribed in s 101(2) of the GIPA Act.
Without the Tribunal extending the time within which the applicant can lodge her administrative review application, the applicant has no standing to bring this application. Nor does the Tribunal have any jurisdiction to hear and determine the applicant's administrative review application.
While the applicant did not seek an extension of time in her Administrative Review Application Form, I accept that her submissions, provided on 2 and 9 February 2024, satisfy the requirements of s 101(5) of the GIPA Act.
Hence, the question is whether time should be extended under s 101(4) of the GIPA Act.
As noted by In Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [18], Deputy President, Magistrate Hennessy (as she then was), said that, on its proper construction, the only issue for determination under a 101(4) of the GIPA Act is whether the person seeking an extension of time under that subsection is whether that person has provided a 'reasonable excuse' for the delay. Deputy President, Magistrate Hennessy went on the say that considerations such as the merits of the application for review, any prejudice to either party or the public interest are not relevant to the question as to whether the applicant has provided a 'reasonable excuse' for the delay.
While 12 days might not be very long, this delay should be considered in the context of the very strict time frames Parliament has provided in the GIPA Act for decisions to be made by government agencies regarding an access application and the time within an access applicant is to make an application for review of decision of a government agency. For example, generally, a government agency is given 20 days within which to decide an access application: GIPA Act s 57(1).
An access applicant dissatisfied with the decision of the government agency is then given several avenues for making an application for review of that decision. Again, there are time limits within which an application for review is brought and determined by the relevant government agency. For example, a government agency is required to determine an access application it received within 20 working days and an application for internal review must be made within 20 days of being notified of the decision of the government agency: GIPA Act ss 57 and 83. An application for external review by the Information Commissioner, or directly to the Tribunal must be made within 40 working days of being notified of the decision (including internal review decision) of the government agency: GIPA Act ss 90 and 101(1). However, where the person has already sought external review by the Information Commissioner, that person has 20 working days within which to lodge an application for review by the Tribunal.
In this case, the applicant exercised her right to seek review, by the Information Commissioner, of the respondent's 2 August 2023 decision well within time, namely within five (5) working days after being notified of the respondent's decision.
On the material before the Tribunal, this was not the first application the applicant had made an application for access and she appears to be well aware of the strict time frames for making applications for review.
I can understand the applicant's frustration in the time it took for her Application Form and Payment Authorisation to reach the Tribunal Registry and for her administrative review application to be lodged with the Tribunal. However, in my view, it is the applicant's significant delay in posting her Application Form (including attachments) and Payment Authorisation which is of significant concern. This is especially so when in her Application Form, the applicant said she had digitally signed the Form on 20 October 2023, four (4) working days after being notified of the Information Commissioner's review report. The Application Form, as I have noted above, specifically said that the Tribunal did not accept Applications that were filed (sent) by email and the Form also included the postal address of the Tribunal Registry postal address.
Yet it was not until Thursday, 9 November 2023, eighteen (18) days after the applicant had been notified of the decision of the Information Commissioner, that the applicant posted her Application Form and Payment Authorisation. This was two (2) working days before the applicant's application for administrative review needed to be lodged with the Tribunal so that it was lodged within the prescribed time of 20 working days.
In my view, given this late posting date, the applicant cannot rely on the delays in the delivery to the Tribunal of her Applicant Form and Payment Authorisation. Even on her own evidence of posting her 2015 access application, her 9 November 2023 envelope containing her Application Form and Payment Authorisation would, at best, be in transit.
Accordingly, I find that the delay in lodging her application for administrative review was of the applicant's own making, for which she has, in my view, failed to provide a reasonable explanation or excuse.
At all times, the applicant was on notice that she was required to lodge her administrative review application with the Tribunal within 20 working days. Other than to say that she decided to undertake some research and prepare her 9 November 2023 document, the applicant has failed to explain why that research and document were necessary before she posted her Application Form (with a copy of the respondent's 2 August 2023 decision for which review was sought and the 16 October 2023 review report of the Information Commissioner attached) together with her Payment Authorisation. It was these Forms and documents and not the 9 November 2023 document which, if lodged within the prescribed time (20 working days), would have given the applicant standing to bring her application for administrative review and the Tribunal jurisdiction to hear and determine her application.

Conclusion

For the reasons set out above, I do not accept the applicant's assertion that the delay in the lodgement of her administrative review application was due to the delay in NZ Post having delivered her Application Form and Payment Authority. Instead, I have found that the delay was primarily due to the applicant's very late posting of her Application Form and Payment Authority and that she has not provided a reasonable excuse for that delay.
Based on my finding, the appropriate order is to refuse the applicant's application to extend the time within which she is to lodge her administrative review application.
As I have noted above, this decision disposes of the applicant's administrative review application. Hence, the scheduled 8 April 2024 case conference should be vacated, and I order accordingly.
Finally, the Tribunal's administrative review jurisdiction is generally non-adversarial where the concepts of a 'plaintiff' and a 'defendant' do not apply as the role of the Tribunal is to determine the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable law: Administrative Decisions Review Act 1997 (NSW) s 63(1).

Orders

For the reasons set out above, I make the following orders: 1. A hearing of the applicant's extension of time application is dispensed with. 2. The decision for which the applicant seeks review is the decision of the respondent made on 2 August 2023. 3. The applicant's application to extend time within which to lodge her administrative review application is refused. 4. The 8 April 2024 case conference is vacated.

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: 22 March 2024

Government Information Public Access Act 2009(NSW)

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