The applicant has made two applications to the Tribunal for review of decisions of the respondent ("the Commissioner") made under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). These applications were made out of time.
The applicant has applied to the Tribunal to extend the time for the making of his applications. This decision concerns that application.
[2]
BACKGROUND
On 4 December 2013, the applicant made an application to the Commissioner for access to information under the GIPA Act which was given the reference number 122235 (the "first GIPA application"). The application was deemed to have been refused and, on 24 February 2014, the applicant applied for an internal review of the decision. On 4 August 2014, an officer of the Commissioner determined the internal review application ("the first internal review determination").
On 15 January 2014, the applicant made another application to the Commissioner for access to information under the GIPA Act which was given the reference number 122708 (the "second GIPA application"). The Commissioner determined this application on 6 March 2014 and, on 2 April 2014, the applicant applied for internal review of the determination. On 6 August 2014, an officer of the Commissioner determined the internal review application ("the second internal review determination").
On 3 July 2015, the applicant applied to this Tribunal for review of the first and second internal review determinations (see GIPA Act, s 100).
In respect of the first GIPA application, an officer of the Commissioner failed to complete the internal review within the period of fifteen working days (see GIPA Act, s 86(1)). That period ended around 12 March 2014. From about that date, the Commissioner was deemed to have made that decision by making the original decision again (GIPA Act, s 86(5)). For the same reasons, the Commissioner was deemed to have re-made its original decision in relation to the second GIPA application on about 18 April 2014.
[3]
RELEVANT LEGISLATIVE PROVISIONS
Section 40 of the Civil and Administrative Tribunal Act 2013 (NSW), provides that an application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules.
Section 55(2) of the Administrative Decisions Review Act 1997 (NSW) provides that, subject to enabling legislation, an application to the Tribunal is to be made in the time and manner prescribed by the procedural rules.
The "enabling legislation" is defined in both the Civil and Administrative Tribunal Act and the Administrative Decisions Review Act as, relevantly, the legislation which provides for applications to be made to the Tribunal with respect to a specified matter or class of matters (Civil and Administrative Tribunal Act, s 4(1); Administrative Decisions Review Act, s 4(1)). The "procedural rules" include the rules of the Tribunal, being the Civil and Administrative Tribunal Rules 2014 (Civil and Administrative Tribunal Act, s 4(1); Administrative Decisions Review Act, s 4(1)).
Subsections 101(1), (4) and (6) of the GIPA Act provide:
"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).
…
(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.
…
(6) The time for making an application for NCAT administrative review may be extended under this section even if that time has expired."
[4]
APPLICATION
The applicant was directed to file and serve an application for these proceedings to be filed out of time, together with relevant submissions and evidence, by 7 September 2015. He did not file anything in proceedings 1510380 or 1510381. He did, however, file a document in different proceedings he has brought against the Commissioner which states that it relates to those proceedings and which is described as a request for the leave of NCAT to lodge an out of time review. The Commissioner responded to this document in his submissions.
Having reviewed the applicant's document, I am satisfied from its contents that it relates to the GIPA applications the subject of these proceedings, notwithstanding that it refers to a file number which relates to different proceedings. I have accordingly treated it as the applicant's application and submissions for the purposes of proceedings 1510380 and 1510381.
The applicant's explanation for the delay in filing the application is that he was incarcerated until 27 January 2015. He says he then made an application to the Tribunal for review of six GIPA applications including a request for a fee waiver. The application for a fee waiver was denied. The applicant says he then applied, on 14 April 2015, for one review to be conducted, as that was all he could afford at the time. Following a planning meeting in relation to that matter which was held at the Tribunal on 16 June 2015, the applicant then lodged the two applications to which this decision relates.
The applicant says that he believed that it was impractical to attempt to pursue Tribunal review whilst he was in custody for the reasons identified in Shalala v R [2012] NSWSC 351.
The applicant also provided substantive reasons why the applications should proceed, which mostly went to the merits of the applications and their significance for him.
[5]
HOW LATE WERE THE APPLICATIONS?
It is arguable that the applicant had a right to apply to the Tribunal for review of the deemed internal review decision made in relation to the first GIPA application from the date it was made (about 12 March 2014). Similarly, it is arguable that the applicant had a right to apply to the Tribunal for a review of the deemed internal review decision in relation to the second GIPA application from 18 April 2014. However, s 101(1) of the GIPA Act requires an application to the Tribunal to be made "within 40 working days after notice of the decision to which the review relates is given to the applicant". Further, the respondent has submitted that the 40 day period starts from the date that its notices of internal review decision were provided to the applicant. Accordingly, for the purposes of these proceedings, I will assume that that is the case.
I accept the Commissioner's submission that the first GIPA application should have been filed by 29 September 2014 and was filed 277 days or 192 working days late. I also accept the Commissioner's submission that the second GIPA application should have been filed by 1 October 2014 and was filed 275 days or 190 working days late. Both applications were about nine months late.
[6]
CONSIDERATION
The "enabling legislation" referred to in s 40 of the Civil and Administrative Tribunal Act and s 55(2) of the 55(2) of the Administrative Decisions Review Act is, in this case, the GIPA Act, as this is the Act which makes provision for applications to be made to the Tribunal with respect to reviewable decisions under the GIPA Act.
Section 55(2) requires an application to the Tribunal to be made within the time provided for in the GIPA Act (see Civil and Administrative Tribunal Rules, r 24(3)(a); GIPA Act, s 101).
I accept the respondent's submission that the relevant question the Tribunal is required to ask itself is whether the Tribunal is of the opinion that the applicant has provided a reasonable excuse for the delay in making the application (GIPA Act, s 101(4); Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [18]).
I am not satisfied that being incarcerated is a "reasonable excuse" for the applicant's failure to file the applications prior to his release from custody on 27 January 2015. As the respondent submitted, the case upon which the applicant relied, Shalala v R [2012] NSWSC 351, does not support the applicant's claim that incarceration is, of itself, a reasonable excuse. In that case, the court granted the accused bail because the evidence established that the accused was "effectively being prevented from [preparing his case] whilst in custody" (at [22]-[23]). That evidence included that the accused has been moved nine times whilst in custody and had been denied access to a library and computer. In this case, the applicant has not put forward any evidence to indicate that he was prevented from lodging the applications whilst in custody or that he was prevented from preparing his applications to this Tribunal. Rather, his evidence is that he believed that pursuing Tribunal review in these circumstances was impracticable. That is not sufficient to establish a reasonable excuse for not filing the applications within the required time.
Even if, contrary to my view, the applicant's incarceration provided a reasonable excuse for the delay in applying to the Tribunal, I am not of the opinion that the applicant has a reasonable excuse for failing to file the applications in the first five months after his release from prison.
The applicant has not provided sufficient evidence for me to be satisfied that he was unable to make those applications for financial reasons. As the respondent has pointed out, one of the matters which is considered by the Tribunal when deciding whether to grant a fee waiver is whether the payment of the fee will cause the applicant undue hardship. It may be that the applicant did not provide sufficient evidence to persuade the Tribunal Registry that this applied to him. In any event, he has not provided sufficient evidence in his application for an extension of time to satisfy me that he could not afford to pay the fees for filing the late applications.
For these reasons, I am not of the opinion that the applicant has provided a reasonable excuse for the delay in making the application in proceedings 1510380 or the application in proceedings 1510381.
In these circumstances, the submissions provided by the applicant about the merits of the applications and other matters which do not constitute an excuse for the delay, are not relevant. Such submissions might be relevant to the exercise of the Tribunal's discretion to extend time in circumstances where it had found that an applicant had provided a reasonable excuse for a delay in making an application to the Tribunal.
As the applicant has not made his applications within time, and the Tribunal has declined to extend time, it does not have jurisdiction to hear or determine those applications (Civil and Administrative Tribunal Act, s 30(1); Administrative Decisions Review Act, s 9(1) and (2) and 55(2)).
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: 23 October 2015