The issue before the Tribunal is whether the Tribunal should extend time for the making of an application to the Tribunal for administrative review.
On 2 July 2019, Mr Saleam (applicant) made an access application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to the Sydney Local Health District (agency) for access to medical records relating to a particular person. In these reasons I refer to that person as Ms XY.
The access application was in the following form (names and dates have been de-identified):
I seek access to such medico-psychological reports as may exist of a person [Ms XY] (date of birth [XXX], although these records may say [XXX]). These records should be held in the name of the Royal Prince Alfred Hospital.
I am not related to this person. Further, [Ms XY] is deceased (May 2007) …
The applicant seeks access to these records because he seeks to use information as to Ms XY's mental health to undermine evidence she gave which led to him being convicted of several offences, as a step toward having those convictions overturned.
On 21 August 2019, the agency made a decision on the access application (agency's decision). The agency's decision was to refuse access under s 58(1)(d) of the GIPA Act on the basis that there was an overriding public interest against disclosure of the information sought because of the operation of items 3(a) and 3(b) in the Table to s 14 of the GIPA Act, which provide:
3. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) reveal an individual's personal information,
(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.
The agency, by letter dated 21 August 2019, notified the applicant of its decision.
The agency's 21 August 2019 letter also described the applicant's rights of review with respect to the agency's decision, including that if the applicant wished to apply to the Tribunal for a review of the agency's decision, he had 40 working days from the date of the letter in which to do so.
The agency's decision was a "reviewable decision" of the agency: s 80(d) GIPA Act. As a person aggrieved by that reviewable decision, the applicant was entitled to apply to the Tribunal for administrative review of that decision: s 100 GIPA Act.
However, s 101 of the GIPA Act sets time restrictions on the making of applications for NCAT administrative review. In so far as is presently relevant, it 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 …
As noted above, and as acknowledged by the applicant in his application for review, the applicant was notified of the decision on 21 August 2019. Thus, s 101(1) required that the application for administrative review be made within 40 working days of that date.
"Working day" is defined in Schedule 4, clause 1 of the GIPA Act as follows:
working day means any day that is not a Saturday, Sunday, public holiday or any day during the period declared by the Premier as the Christmas closedown period.
Thus the period of 40 working days from 21 August 2019 does not include Saturdays or Sundays. It also does not include 7 October 2019, which was a public holiday.
Further, where an Act prescribes or allows a period of time, dating from a particular event, the day of that event is excluded from the calculation of the prescribed or allowed period of time: s 36(1) Interpretation Act 1987 (NSW). In the present case the day of the event is 21 August 2019 so that day is also excluded from the calculation.
Thus, in the calculation of the 40 working day period, it is necessary to exclude 21 August 2019, Saturdays, Sundays and 7 October 2019. With the exclusion of those days, the 40-day period expired on 17 October 2019.
The application was not made by 17 October 2019 and was not made until 4 November 2019.
On 15 December 2019, the applicant applied for an extension of time for the making of his application for administrative review. The fact that the application for an extension of time was made after 17 October 2019 is not an impediment to the granting of an extension of time: s 101(6) GIPA Act.
As noted above, the issue for the Tribunal is whether it should extend time.
[2]
Applicable legal principles on an extension application
Section 101(4) of the GIPA Act provides:
(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.
Section 101(4) provides a discretion to extend time, however that discretion is enlivened only "… if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application".
In other words, the formation of the opinion by the Tribunal that there is a reasonable excuse for the delay is a necessary pre-condition to any exercise of the Tribunal's discretion to extend time: see also Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [16]-[18].
In considering where there is a reasonable excuse for the delay, other considerations such as the merits of the application for review, any prejudice to either party and the public interest, are not relevant: Turner at [18]. Such considerations may become relevant to the exercise of the discretion if and when the Tribunal forms the opinion that there is a reasonable excuse: Thomson v Sydney Trains [2015] NSWCATAD 257 at [28].
[3]
Factual Background
The parties' submissions on this issue are to be considered against the following factual background.
On 2 July 2019, the applicant made the access application.
On 16 July 2019, the agency sent an email to the applicant in the following terms:
Do you have a copy of the formal GIPA Application form for this request? We need that before we can proceed this claim under GIPA.
If you could please scan and send a copy of the GIPA Application form and also 2 x certified copy of your identifications.
On 29 July 2019, the agency sent an email to the applicant in the following terms:
Upon reviewing your request, we advise that we need a written consent from the executor of the estate to release any information as stated on the Health Records and Information Privacy Act 2002.
…
On 1 August 2019, the agency sent an email to the applicant in the following terms:
As per our conversation over the phone, we did not refuse the access of the requested information but it was your implications on your email 29th of July.
As per your verbal statement, you can get a copy of the will and who will be the executor of the estate to support your application. As my response, if the executor of the will allows you to access the information then we have to follow. This must be in writing with signature and certified copies of their identifications as well as yours.
I will wait till I receive your supporting documentations such as the certified copies of the will, identifications and consent to release the information.
On 8 August 2019, the applicant wrote the Office of the Public Trustee and Guardian (Public Trustee) in the following terms:
I would bring to you an unusual matter which has arisen from your role as the last 'person' to have control over the affairs of [Ms XY], date of birth [XXX] (or [XXX]). Your office was the Executor of her Estate.
As the attached papers reveal (highlighted), I have applied for her psychiatric records when she was a patient at Royal Prince Alfred Hospital in 1988. I have sought this material to establish that she was mentally ill at all times relevant to two convictions won against me by her perjury in 1987.
The GIPA and Privacy officers who have received my application for [Ms XY's] records say that they will consider releasing the material - with your consent.
The New South Wales Government Information (Public Access) Act 2009 at Section 55 allows the situation of an applicant for information to be considered and an assessment can be made of the motive of the applicant in applying for information and the likely limited use of the information sought by an applicant. In this case, there is a clear public interest in the righting of the wrongful conviction. The material is for the interest of the Attorney-General and the Supreme Court of New South Wales. I have no interest in its broadcast.
There is no real reason for your consent not to be given.
On 21 August 2019, the agency notified the applicant of the agency's decision and his rights of review.
On 19 September 2019, the applicant wrote to the Public Trustee in the following terms:
After submitting the letter of August 2 2019, I received no reply. I then attended your office some four weeks ago, and was advised to apply for a copy of the Will and related documents from the Supreme Court per the [Ms XY] Estate. This was done. Previously, there were some uncertainties at your office that you had actually managed this Estate. This question is now solved. I would now make two requests:
My letter of August 2 2019 refers to your authority in respect of a file held by the Royal Prince Alfred Hospital. I would now request you act in the terms advised by the GIPA officer and permit me access to the file.
…
I await your attention to this letter.
(It appears that the reference to the letter of 2 August 2019 is an error and the correct date is 8 August 2019).
In October 2019, Permanent Trustee informed the applicant that it refused to provide the permission sought. The precise date of that refusal is unknown. No written refusal has been provided.
[4]
Applicant's submissions
The applicant has submitted that there is a reasonable excuse for the delay for the following reasons:
1. he was told by the agency that the executor of Ms XY's estate could give permission to release the records sought;
2. after telling the agency that he believed Ms XY had died intestate he discovered that she had not and applied to the Public Trustee to obtain that permission;
3. he told the agency that he had sought that permission;
4. the agency's decision was notified while he was trying to obtain permission from the Public Trustee;
5. if the Public Trustee were to have granted permission it would have followed that there could have been no overriding public interest consideration against disclosure;
6. the agency's decision was merely technical because it had not received notification from the Public Trustee and any decision by the agency would be void;
7. the agency had "passed the matter" and had "acceded control of the papers" to the Public Trustee; and
8. the Tribunal stands in the shoes of both the agency and the Public Trustee and can decide to make a decision on behalf of either of them.
[5]
Agency's submissions
The agency's primary submission is that the matters put forward by the applicant do not demonstrate a reasonable excuse for the delay.
[6]
Consideration
I am not satisfied that there is a reasonable excuse for the delay for the following reasons.
The only decision for which review has been sought is the agency's decision made and notified on 21 August 2019.
As at 21 August 2019, the applicant was aware of both the agency's decision to refuse access and his rights of review, including that any application he wished to make to the Tribunal had to be made within 40 working days.
The applicant does not suggest that he did not understand that the application for review had to be made within the specified time. The applicant should have been well aware of the time limit. In addition to this being set out in clear terms in the 21 August 2019 letter the applicant, as he stated in his application for review, has a history before the Tribunal. I infer from that history - including the decision in Saleam v Registrar, Registry of Births, Deaths & Marriages [2011] NSWADT 254 which involved the applicant and in which the Tribunal dismissed an application for an extension of time to file an application for review - that the applicant was well aware of the need to file applications for review within the time specified.
After 21 August 2019, nothing occurred which changed the position described above. The applicant remained aware that the decision had been made and of his rights of review.
The applicants' submissions, summarised above, rely upon correspondence with and about the Public Trustee as providing a reasonable excuse for the delay. I do not accept that this correspondence provides a reasonable excuse. In particular:
1. the pre-21 August 2019 communications from the agency to the applicant concerning the Public Trustee were understood by the applicant as indicating that the consent of the Public Trustee would assist the application and be taken into account if it could be obtained. So much is clear from the applicant's 8 August 2019 letter to the Public Trustee in which he wrote: "The GIPA and Privacy officers who have received my application for [Ms XY's] records say that they will consider releasing the material - with your consent";
2. as noted above, the agency's 21 August 2019 letter made clear that the decision had been made and made no reference to the Public Trustee's consent remaining relevant;
3. after 21 August 2019, there was no communication from the agency to the applicant, let alone a communication suggesting that the Public Trustee's consent remained relevant;
4. it was not the case that had the Public Trustee given the consent sought there could have been no overriding public interest consideration against disclosure, or that the agency would have had been required to release the documents sought. The consent of Ms XY's executor would have been a matter for the agency to consider in deciding whether to provide the access sought, but would not have been determinative. Further, in weighing up the considerations for and against disclosure the agency would be expected to take into account the views of Ms XY's close relatives (s 54(3) GIPA Act);
5. the agency's decision was not technical, nor was there a transfer of the matter or the papers or (more fundamentally) the decision-making power from the agency to the Public Trustee;
6. there is no decision of the Public Trustee for which review has been sought.
[7]
Section 41 of the NCAT Act
The above analysis concerns an extension of time under s 101(4) of the GIPA Act. I note, however, that there is potentially another source of power to extend time to make an applicant for review under s 100 of the GIPA Act, namely s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
Section 41 of the NCAT Act provides:
41 Extensions of time
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.
Section 41, on its face, contains a considerably broader discretion as it does not require that the Tribunal form the opinion that the applicant has provided a reasonable excuse for the delay before the discretion is enlivened.
There is a tension in the applicable legislation as to which of s 101(4) GIPA Act and s 41 NCAT Act prevails.
The proposition that s 41 NCAT Act prevails, such that the discretion is at large, is supported by the text of s 41 which provides that it operates "despite anything to the contrary" in the GIPA Act.
The contrary proposition, that s 101(4) prevails, such that the discretion is enlivened only when the Tribunal forms the opinion that the applicant has provided a reasonable excuse, is supported by:
1. s 35 NCAT Act, which provides that Part 4 of that Act (including s 41) operates subject to enabling legislation (including the GIPA Act); and
2. s 112A of the GIPA Act, which provides that the provisions of Division 4 of Part 5 of the GIPA Act (including s 101(4)) are intended to prevail to the extent of any inconsistency with the provisions of the NCAT Act.
In Thomson v Sydney Trains [2015] NSWCATAD 257 at [34]-[36] and CGU Workers Compensation (NSW) Pty Ltd v Department of Planning and Environment [2018] NSWCATAD 32 at [9] and [10], the Tribunal expressed the preliminary view that s 101(4) prevailed. I agree with that view. In particular, the effect of s 35 of the NCAT Act is that s 41 of that Act, including the phrase "despite anything to the contrary" operates subject to the GIPA Act.
In any event, I would have reached the same conclusion if s 41 prevailed. This is principally because there is no adequate explanation for the delay.
[8]
Conclusion
For the reasons set out above, I refuse the application for an extension of time.
The Tribunal's jurisdiction to conduct an administrative review of the agency's decision is subject to a condition that the filing of the application for review has occurred within the period prescribed by s 101 GIPA (40 working days or as extended). As that condition has not been satisfied, the Tribunal does not have jurisdiction to conduct a review of the agency's decision: s 9 Administrative Decision Review Act 1997 (NSW). For that reason, the application for review of the agency's decision is dismissed.
As the agency has expressly reserved its position on costs, I will make orders for the provision of submissions on costs.
[9]
Orders
I make the following orders:
1. The application to extend the time for making of the application for review of the decision made by the respondent on 21 August 2019 under the Government Information (Public Access) Act 2009 (NSW) is refused.
2. The application for review of the decision made by the respondent on 21 August 2019 under the Government Information (Public Access) Act 2009 (NSW) is dismissed.
3. If the respondent wishes to apply for costs of these proceedings:
1. the respondent may, no later than 7 days after publication of these reasons, file with the Tribunal and serve on the applicant any submissions on costs and on whether the application for costs should be dealt with on the papers without an oral hearing;
2. (the applicant, if he wishes to oppose the application for costs may, no later than 14 days after publication of these reasons, file with the Tribunal and serve on the respondent any submission on costs and on whether the application should be dealt with on the papers without an oral hearing;
3. the respondent may, no later than 21 days after publication of these reasons, file with the Tribunal and serve on the applicant any submissions in reply;
4. any submission served pursuant to paragraphs (a) or (b) above shall be no more than 5 pages and any submission served
[10]
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: 06 March 2020