The Tribunal refused Mr Salmon's application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to a two page letter with three attachments (Record 1). The preliminary issue is whether the Appeal Panel should extend the time for Mr Salmon to lodge an appeal from that decision. An appeal must be lodged within 28 days from the date on which the appellant was notified of the decision: Civil and Administrative Tribunal Rules 2014, cl 25. Mr Salmon lodged the appeal 13 months late because he was trying to find evidence to prove that the Tribunal made findings of fact which were incorrect. Balancing all the considerations, including the poor prospects of success of the appeal, we have decided not to extend time. The appeal is dismissed.
[2]
Background
Police had applied, on behalf of Mr Salmon, for an Apprehended Domestic Violence order against the husband of Mr Salmon's former partner. The application was dismissed and Mr Salmon was ordered to pay the new husband's costs.
Following the hearing, Mr Riviere, the solicitor for the husband, wrote to the Parole Board concerning Mr Salmon's parole. Mr Riviere describes the background to the writing of that letter in correspondence to a costs assessor following the order for costs against Mr Salmon:
Also you will see that there were several contacts with the New South Wales Police Force and the Parole Board. Contact with police was necessary to ensure the first AVO application brought by police on behalf of Mr Salmon was appropriately investigated. This correspondence resulted in that application being withdrawn and the children revealing at interview that they had been pressured into making the allegations by Mr Salmon.
Given Mr Salmon's proclivity to complain and lodge formal complaints in the Family Court, Local Court, Legal Services Commissioner (complaint dismissed) and police realms, we were instructed to write to the Parole Board in an attempt to have Mr Salmon's parole revoked due to his failure to comply with the normal rules of society.
Mr Salmon applied to the Department of Justice, under the GIPA Act, for access to the information in Mr Riviere's letter and in the attachments to that letter. The Department refused to provide him with access to the information. Mr Salmon sought review of the Department's decision.
The Tribunal decided that disclosure "could reasonably be expected to have" the effect of "reveal[ing] an individual's personal information" within cl 3(a) of the table to s 14, and that this, taken with the applicant's motives for making the application (GIPA Act, s 55), had the result that the public interest considerations against disclosure outweighed the factors in favour of disclosure: Salmon v Department of Justice (Corrective Services New South Wales) [2014] NSWCATAD 160 at [70]. Accordingly, it affirmed the Department's decision.
The Tribunal handed down its decision on 1 October 2014. Mr Salmon had until 29 October 2014 to lodge an appeal. He did not do so until 3 December 2015, more than a year later.
[3]
Principles for extending time
The Appeal Panel may extend the time in which to lodge an appeal even if the relevant period has expired: Civil and Administrative Tribunal Act 2013 (NSW), (NCAT Act), s 41. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] the Appeal Panel set out the principles which govern the granting of an extension of time to appeal:
The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
[4]
Length of the delay and reasons for delay
The delay in this case is 13 months. That is a considerable period of time given that the primary rule is that an appeal must be lodged within 28 days. Mr Salmon says he has spent many months locating evidence that would show "how wrong the senior member was in his 'fact' finding." He thought he had to disprove the "misstatements" and "fabrications" made in the first hearing. Mr Salmon believes that he has been discredited on the basis of false evidence and that several facts found by the Tribunal are plainly wrong.
The new evidence which Mr Salmon sought to tender included a National Police Certificate, correspondence between Mr Riviere and costs assessor John McIntyre and a letter from the Registrar of the Family Court of Australia. Mr Salmon said it took eight months to obtain documents from the Supreme Court in the costs assessment file and many months to request and view documents held by the Family Court.
[5]
Prejudice to the respondent
The Department acknowledged that it has not suffered any significant prejudice as a result of the delay, other than needing to allocate resources to the appeal.
[6]
Prospects of success
Mr Salmon is entitled to appeal on a "question of law" but must obtain the Appeal Panel's permission before appealing on any other ground: NCAT Act, s 80(2)(b).
Mr Salmon appealed on 19 grounds. Those grounds were not all framed as grounds of appeal. Some, such as grounds 3 and 19, were essentially submissions. Some raised more than one objection. Apart from grounds relating to actual or apprehended bias, none of Mr Salmon's grounds of appeal clearly identify a question of law. Many of the grounds relate to factual assertions which Mr Salmon says are incorrect and findings of the Tribunal which he maintains are against the weight of the evidence. The Appeal Panel will only give permission for Mr Salmon to appeal in relation to a finding of fact that the Tribunal made or failed to make if that ground comes within the principles outlined in Collins v Urban [2014] NSWCATAP 17.
Under ground 5, Mr Salmon sought to adduce further evidence. Parties are generally bound by the manner in which the proceedings were conducted at first instance: Rowe v Australian Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1 per Isaacs J at 24. Further evidence may be received in limited circumstances: Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 (12 March 2008) at [52] to [57]. Mr Salmon's attempts to gather evidence to vindicate his position, while understandable, were at best peripheral to any grounds of appeal on questions of law. It is unlikely that leave would be granted for Mr Salmon to adduce that evidence.
In our view the grounds of appeal that relate to procedural and evidentiary matters (grounds 1, 7, 8 and 18) have little prospect of success. Similarly, grounds 2 and 15 which are objections to factual assertions and findings by the Tribunal are weak. Some were entirely peripheral to the decision and would have made no difference to the result. Leave would be needed and is unlikely to be granted.
Ground 14 expresses disagreement with assertions made by Mr Riviere. Mr Salmon is not entitled to appeal against those assertions. He may only appeal from a "decision" of the Tribunal: NCAT Act, s 80.
Grounds 9, 10 and 11 relate to the weight given to certain statutory provisions. No question of law is identified.
The grounds relating to actual or apprehended bias (grounds 4, 13, and 17) relate to certain factual findings that the Tribunal made. Mr Salmon reasoned that the Tribunal must have been biased to have made such findings. It is doubtful that the Appeal Panel would find that making what Mr Salmon regards as incorrect factual findings would constitute apprehended or actual bias.
The Appeal Panel raised two potential grounds of appeal and received submissions from the parties on those grounds. The first question the Appeal Panel asked the parties was:
In view of s 54(5) and other relevant provisions of the GIPA Act, was it an error of law for the Tribunal to take into account the fact that a certificate under s 194 of the Crimes (Administration of Sentences) Act 1999 had been issued by a judicial member of the State Parole Authority?
Section 54(5) of the GIPA Act states:
The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.
Section 194(1)(b) and (c) of the Crimes (Administration of Sentences) Act 1999 states that nothing in that Act requires a person to be provided with a copy of any document "if its provision to the person may, in the opinion of a judicial member endanger the person or any other person or jeopardise the conduct of any lawful investigation." At [58] of the reasons the Tribunal noted that the State Parole Authority "has explicitly stated that it has real concerns about the release of the records to the applicant."
The Department submitted that it was not an error for the Tribunal to take into account the s 194 certification as that certification appeared on the face of Record 1 and was relevant to whether there was an overriding public interest against disclosure. It was said to be relevant because the grounds on which Record 1 was certified under s194 related to several factors weighing against disclosure under s 14 of the GIPA Act.
This potential ground of appeal is unlikely to succeed because the s194 certificate can be regarded as an objection to disclosure and was relevant to the question of whether there was an overriding public interest against disclosure of Record 1. In addition, contrary to Mr Salmon's submission, the Appeal Panel cannot look behind the s194 certificate and determine its validity.
We note that s194 of the Crimes (Administration of Sentences) Act is now listed as an "overriding secrecy law": GIPA Act, Sch 1, cl 1. That provision was not in force in September 2014 when the hearing in this matter took place. The Department submitted that it was nonetheless arguable that, at the time of the hearing, s194 was a secrecy provision to which cl 6 of the Table to s14 of the GIPA Act applied. As the Department did not raise that issue before the Tribunal it has no effect on the likelihood of the appeal succeeding.
The second question the Tribunal asked the parties to address was:
In view of s 55(3), was it an error of law for the Tribunal to refer to the personal factors in s 55 of the GIPA Act as factors against providing access without addressing the question of whether those factors were relevant to the consideration of whether the disclosure of the information could reasonably be expected to reveal an individual's personal information?
The "personal factors" include "the applicant's identity and relationship with any other person and the applicant's motivation for making the access application." Under s55(3) those factors "can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14."
The Tribunal did not expressly relate the personal factors of the application to the factors weighing against disclosure in clauses 2-5 of the Table to s14. However, the Tribunal referred to the personal factors at [59] and concluded at [70] that "the s55 factors, including the applicant's motives for bringing the application" weighed against disclosure. Despite that omission, it is arguable that the Tribunal considered the s55(3) factors as part of the Tribunal's overall consideration of s 55. It is also arguable that the Tribunal's reasons reached a "minimum acceptable level" and were not inadequate: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48].
Having considered the parties' submissions on the potential grounds of appeal raised by the Appeal Panel, we have concluded that the prospect of the appeal succeeding on either of those grounds is weak.
[7]
Conclusion
The discretion to extend time can only be exercised upon proof that strict compliance with the rules will work an injustice upon the appellant: Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]. As the Department emphasised, it has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision: Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39].
Thirteen months is a considerable period of time. That factor weighs heavily against accepting the appeal. While there is no prejudice to the Department, the appeal has poor prospects of success. In all the circumstances, we refuse to extend time to lodge the appeal.
[8]
Orders
1. The application to extend time to lodge the notice of appeal is refused.
2. The appeal is dismissed.
[9]
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: 08 June 2016