Seven Network v Commissioner of Police, NSW Police Force

No power to reinstate or renew the proceedings

1. The Tribunal has no power to reinstate proceedings 1510017.
2. Subsection 55(1) provides a number of bases upon which the Tribunal may dismiss proceedings. Section 55(2) provides that the Tribunal may reinstate proceedings that have been dismissed under subsection 55(1)(c) if it considers that there is a reasonable explanation for that failure. Subsection 55(1)(c) permits the Tribunal to dismiss proceedings where the applicant fails to appear in the proceedings.
3. The circumstance that s 55(2) provides for the reinstatement of proceedings only where the proceedings were dismissed under s 55(1)(c) indicates that the power of reinstatement does not apply where proceedings were dismissed due to the applicant's withdrawal of the proceedings under s 55(1)(a).
4. There is a power to renew proceedings where an order is not complied with, in cl 9 of Sch 4 to the NCAT Act. However, this only applies to proceedings in the Consumer and Commercial Division. As proceedings under the GIPA Act are allocated to the Administrative and Equal Opportunity Division (see NCAT Act, Sch 3, cl 1(a)), the renewal power under cl 9 of Sch 4 is not available in respect of these proceedings.
5. There is an additional power to set aside or vary a Tribunal decision determining proceedings conferred by cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW). This may be exercised if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. Neither of these circumstances pertains in the present case.
6. Accordingly, the Tribunal does not have power to set aside or vary its decision in proceedings 1510017.

No power to review decision the subject of the dismissed proceedings

1. In Seven's application to the Tribunal and its subsequent submissions, Seven asked the Tribunal to extend time for making its second application. It referred to its application as a "new application" to "open a file that has already been before NCAT". Seven submits that permitting an extension of time would be consistent with the objects of the NCAT Act, including ensuring that the Tribunal is accessible to users (NCAT Act, s 3(c)).
2. This raises the question as to whether the Tribunal has jurisdiction to review a decision under the GIPA Act which has already been the subject of a review by the Tribunal. For the reasons which follow, I accept the Commissioner's submission that it does not. Accordingly, the issue of an extension of time does not arise.
3. As the High Court observed in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7], "as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances." Neither the NCAT Act, the Administrative Decisions Review Act nor the GIPA Act, expressly or by implication, permits a revisiting of the Tribunal's decision in reviews of decisions under the GIPA Act, because there has been a change of circumstances, with some very limited exceptions which do not apply: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7] and [53]. The NCAT Act only permits the revisiting of the Tribunal's decision in accordance with s 55(2), and in some other limited circumstances (see, for example, NCAT Act, s 63 ("Power to correct errors")). If it were otherwise, reviews of the same decision could continue indefinitely and there would be no finality in decision-making (see Johnson v Veterans' Review Board (2005) 88 ALD 652; [2005] FCA 1136 at [55]). This could not have been intended by the legislature.
4. Once the Tribunal made its determination in proceedings 1510017, it was functus officio; that is, it had "used up all of its powers because it [had] been given the task of reviewing a decision and, having done that, it [had] completed its task": see Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83 at [12] (concerning the powers of the Administrative Appeals Tribunal); see also Johnson v Veterans' Review Board (2005) 88 ALD 652; [2005] FCA 1136.
5. For these reasons, the Tribunal does not have jurisdiction to hear or determine Seven's application. The proceedings must therefore be dismissed pursuant to s 55(1)(b) of the NCAT Act.

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: 13 January 2017