Turner v Corrective Services NSW

NCAT Administrative and Equal Opportunity|2014-03-31

J McDonnell, M Hill, Crown Solicitors Office (Respondent) File Number(s): 133144

reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).

Applicable Legislation 9Section 55 of the ADT Act provides the time period for lodging an application for review of a reviewable decision: 55 When can an application for a review be made? (1) A person may apply to the Tribunal for a review of a reviewable decision only if: (a) the application is made by an interested person, and (b) where the person was entitled to seek an internal review of the decision-the person has duly applied for such a review and the review is taken to have been finalised under section 53 (9), and (c) the application is made in the manner prescribed by the rules of the Tribunal, and (d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, by the end of the default application period for the decision. Note. 1 Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be). 2 Section 53 (9) provides that an internal review is taken to be finalised if: (a) the applicant for the review is notified of the outcome of the review, or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on). 3 A person may not have an entitlement to seek an internal review because such an entitlement has been excluded by regulations made for the purposes of section 53 (11) or by an enactment. (2) The default application period for a reviewable decision is: (a) in the case where the applicant has duly applied for an internal review of the reviewable decision-the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9), or (b) in any other case-the period of 28 days after: (i) if the applicant has requested reasons under section 49 for the reviewable decision-the day on which the applicant was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or (ii) if the applicant has not requested reasons under section 49-the day on which the applicant was notified of the making of the reviewable decision. (3) The Tribunal may deal with an application for the review of a reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned. (4) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (3), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (3) (a) applies-the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. (5) The Tribunal may deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests. 10Section 57 of the ADT Act enables the Tribunal to extend the time for making an application: 57 Late applications to Tribunal (1) Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (1A) An application by an interested person under subsection (1) must be in writing unless the Tribunal dispenses with the requirement. (2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. (3) In this section, late application means an application not made within the period or time referred to in section 55 (1) (d). 11A similar power to consider late applications is conferred on the Tribunal by section 101 of the GIPA Act. Section 101 of the GIPA Act provides: 101 Time for applying for ADT review (1) An application for ADT 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 ADT review). (2) If the decision is the subject of review by the Information Commissioner, an application for ADT 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) If an application for ADT review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner's review is to end. (4) The ADT may, on application by a person wanting to make an application for ADT review out of time, extend the time for the making of such an application by the person if the ADT 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 ADT review must be in writing unless the ADT dispenses with the requirement in a particular case. (6) The time for making an application for ADT review may be extended under this section even if that time has expired.

12I considered the question of what factors are to be taken into account in considering a request for the extension of the time to file an application for review in Turner v Commissioner of Police NSW Police Force [2013] NSWADT 157. The relevant considerations are: (a)the reasonableness of the Applicant's explanation for failing to file the application in time; (b)the prejudice to the Applicant or the Respondent should the Tribunal refuse the late application; (c)the timeliness and delay in the antecedent administrative process; (d)the length of delay in bringing the late application; (e)he apparent merits of the case; and (f)the public interest in accepting the late application.

The Applicant's case 13The Applicant filed written submissions in support of his submission that the time to file his application for review should be extended. Much of the information that he provided is concerned with issues relevant to the substantive matter. I understand this information is directed towards the apparent merits of his case; the public interest in accepting the late application; and the prejudice to him should the Tribunal refuse the late application. 14The explanation that he provided in relation to the cause of his delay is essentially the same as that which I considered in an earlier application to the ADT in Turner v Commissioner of Police NSW Police Force. I outlined the argument in my reasons for the decision to grant an extension. The Commissioner of Police successfully appealed that decision. The Appeal Panel's reasons are recorded as Turner v Commissioner of Police NSW Police Force [2014] NSWCATAP 4. 15In summary, the Applicant submitted that he did not have full access to his legal files while held in prison because of several internal and external transfers between correctional facilities and/or because he was in the Protection Section. He had also experienced assaults and intimidation by other inmates. He did not have access to a library for some of the time and he did not have access to paper. 16The Applicant contends that in the past two and a half years he has been transferred no less than 14 times. He further asserts that he has been transferred to different locations within the various prisons, each of which caused additional disruption to his access to legal materials. He stated that over a four and a half year period he has been given a total of five hours access to law books and legal portals. He further stated that throughout his period of incarceration there has been tampering with and withholding of his legal mail.

The Respondent's case 17The Respondent submits that section 101(2) of the GIPA Act does not apply in this case because the decision was not the subject of review by the Information Commissioner. Therefore it is submitted that the period of 40 days concluded on 20 July 2012 and the ADT application was received 293 days after the end of that period. 18Alternatively, the Respondent submits that if section 101(2) does apply in this case, the ADT application could have been made up to 20 working days after the Applicant was notified of the completion of the Information Commissioner's review. If the Applicant was notified of the completion of the Information Commissioner's review on 14 September 20121, then the 20 day period concluded on 12 October 2012. The application was received 209 days after the end of that period. 19Further, the Respondent submits that the Applicant has litigated several proceedings before the Tribunal and can be considered as being aware of the Tribunal's procedural requirements. 20In relation to the Applicant's request and the reasons provided, the Respondent submitted (citations removed): (I) The Applicant's Explanation For Failing To File In Time The Applicant has given two distinct explanations for why the application was not filed in time. First, according to the application, the Applicant did not have the funds to pay the filing fee. Secondly, according to the 23 October letter, three factors had contributed to the delay: (a) "the Applicant has suffered constant transit replacement", (b) "photocopying is almost non-existent in prison", and (c) "the Applicant has also received intimidation, death threats and been assaulted by the Respondent's officers". The Respondent submits that these assertions do not amount to a reasonable explanation for failing to file the application in time. Funds The Applicant, in answer to the request for an explanation of the delay included in the Tribunal's form, asserts: "Nil funds available for $75 fee - I had asked A.D.T. for Waiver of Fees although was denied". The Respondent submits that this is not a reasonable explanation for a delay of nearly seven months (between the 23 October letter and the filing of the application), let alone a delay of nine months (between expiration of time for filing and the filing of the application). It was open to the Applicant to make further applications to the Tribunal for this filing fee to be waived. (A) Constant Transit The Applicant asserts that the application was lodged out of time because he had been continuously relocated during the relevant period. During the first planning meeting, the Applicant asserted that he had been transferred to 12 different prisons during the relevant period. The Respondent submits that this assertion is incorrect. The Respondent's records show that the Applicant was transferred on two occasions between 25 May 2012 and 9 May 2013. The Applicant was transferred from Junee Correctional Centre (where he had been held since 20 May 2012) to Bathurst Correctional Centre on 2 January 2013. The Applicant was then transferred from Bathurst Correctional Centre to Lithgow Correctional Centre on 13 May 2013. The Applicant has been confined to cells, as the penalty for intimidation, for periods of seven days, on three occasions between 25 May 2012 and 9 May 2013, though the first of these was approximately one month after the 23 October letter was written. (B) Photocopying The Applicant asserts that "photocopying is almost non-existent in prison" and submits that delays result from the fact that inmates have to write out copies. The Respondent submits that the Applicant has not shown how this general assertion is relevant to the delay in filing this application. The Respondent further submits that the Applicant was able to write and send three letters to the Information Commissioner. The timeliness of this correspondence does not appear to have been hampered by the non-existence of photocopying (although the original request for a review was out of time). (C) Intimidation, Threats, Assaults by the Respondent's Officers The Applicant alleges that he has been intimidated, threatened, and assaulted by officers of the Respondent. The Applicant also alleges that he has been intimidated and assaulted by other inmates when he has been working on legal tasks. The Applicant asserts that he has reported these incidents to the New South Wales Police Force. The Applicant records six occasions when police officers attended him in prison to take a report. It is not apparent that any of these incidents occurred during the Applicant's incarceration in Bathurst Correctional Centre, since the police officers who attended the Applicant attended from Nowra, Maroubra, and Kempsey Stations. The Applicant refers to one attendance by officers stationed in Bathurst, though states this occurred in 2010. Further, the mere fact that the Applicant was attended by police officers does not substantiate the Applicant's allegations. The Applicant has not provided details of the incidents on which he seeks to rely, including whether there was further investigation of his accusations or whether charges were laid against Corrective Services officers or other inmates, let alone whether, and if so how, the alleged conduct affected his capacity to make an application. Prior Consideration of the Applicant's Explanation The Respondent submits that the explanation provided by the Applicant is substantially similar to that provided in Tribunal Proceedings 123328 and 139016. In the former case, Judicial Member Montgomery considered an application for a review of a determination by the Commissioner of Police in relation to an application under the GIPA Act. The relevant application was lodged 211 days after the relevant decision was made, and approximately 155 days out of time. In that application, Montgomery JM accepted uncontested evidence that the Applicant's legal papers had been confiscated, that the Applicant had been denied access to library facilities and had not been given writing material, that Corrective Services had tampered with the Applicant's mail, and that the Applicant had been moved between correctional facilities on a regular basis. The Judicial Member accepted that those conditions had "impacted on [the Applicant's] ability to prepare his application and contributed to his delay in filing his application". Judicial Member Montgomery's decision to grant an extension is inconsistent with the decision of President O'Connor in the latter case. President O'Connor considered an application for leave to appeal a decision made by the Tribunal in respect of an application for a review of a decision made by the Director of Public Prosecutions refusing applications under the GIPA Act: Turner v Director of Public Prosecutions [2013] NSWADTAP 27. The President's primary reason for rejecting the application was that it "was many months out of time". The President observed that: "This was not a case of a delay of a few days where some tolerance may be given. In explanation of his delay, Mr Turner referred to the conditions of his imprisonment and asserted that he had been denied access to his 'legals'. The President concluded that he had "no evidence in relation to Mr Turner's claim that he was denied access to his legal materials to such an extent that the first reasonable opportunity he had to file is appeal was on or about 17 April 2013" and did not accept that explanation. The Respondent submits that the President's approach should be adopted in this case. The Applicant has provided no evidence of his allegations regarding intimidation, threats or assaults. The Applicant has not shown that he was deprived of access to his legal materials to such an extent that the first reasonable opportunity he had to file his application was about May 2013. The document filed with the Tribunal suggests that the Applicant could have lodged this application on several occasions prior to 9 May 2013. (II) Prejudice The Respondent submits that the prejudice it suffers where an application is made an unreasonably long time after the time for filing an application for review has expired, can be greater than in any other matter where review is sought. The Respondent submits that its administrative processes and allocation of resources rely on a presumption that a decision is final once the time for filing of an application for review is finalised, subject to any reasonably explainable delays. Further, the Respondent submits that the Applicant has not shown that he would suffer any prejudice by an extension not being granted. Submissions in Earlier Proceedings The Applicant has sought to adopt submissions filed in previous proceedings before the Tribunal in this application. The Respondent submits that these submissions should not be accepted. The Applicant has not explained how these submissions are relevant to issues currently before the Tribunal. Further, the Applicant has sought to rely on a bundle of some 588 pages in two other proceedings. In Turner v Director of Public Prosecutions [2013] NSWADTAP 27, the President did not consider that bundle. Conclusion The Respondent submits that the Applicant has not provided a reasonable explanation for why the application was filed at least 209 days out of time. The Applicant's request for an unreasonable extension should be rejected. The Respondent reserves the right to file a reply to the Applicant's further submissions and to file submissions in respect of the substantive application for review if the application for an extension is determined in the Applicant's favour.

Discussion 21As noted above, the Applicant has previously raised the same or similar grounds as reasons for his a late application to the Tribunal. As also note, my decision to allow the extension of the time to lodge an application was successfully appealed: Turner v Commissioner of Police NSW Police Force [2014] NSWCATAP 4. In that decision, the Appeal Panel stated at paragraphs [46] - [47]: 46. Throughout his written and oral submissions Mr Turner gives an extensive history of his treatment prior to the decision of the Commissioner on 17 April 2012 and propounds the merits of his application for review. Neither of those matters is relevant to the question of whether he had a reasonable excuse for the delay in filing the application and the fee or fee waiver application. 47. Mr Turner had 40 working days to lodge his appeal after 17 April 2012. It was due on 15 June. He did not lodge it for 4 ½ months after that time on 14 November 2012. He has a reasonable excuse for the delay up until the end of May because he was preparing lengthy submissions in other proceedings. He also has a reasonable excuse for the delay after 1 September 2012 because that is that date on which he attempted to file an application even though he did not complete the application form or pay the required fee. That leaves a period of three months from June to August 2012. Mr Turner submits that lack of access to his files, to paper and to the library during this period prevented him from making an application. While those matters provided a reasonable excuse for some unknown but relatively short periods of time, they do not provide a reasonable excuse for the entire three month period. 22In this matter, the Applicant has relied on the same arguments. In this matter the Respondent has provided material to refute those arguments. 23As noted, the Respondent's determination was dated 25 May 2012. I am inclined to agree with the Respondent's submission that section 101(2) of the GIPA Act does not apply in this case because the decision was not the subject of review by the Information Commissioner. If that is correct, the application to the ADT was received 293 days out of time. It is not necessary that I decide this issue. 24On the most favourable position to the Applicant, his application to the ADT should have been lodged by 12 October 2012 and is 209 days out of time. 25The Respondent's material includes an Inmate Profile Document in relation to the Applicant. That document identifies the Applicant's internal and external transfers in the period following the date of the Respondent's determination in respect of the Applicant's the GIPA Act access application. 26In that period there does not appear to have been any significant external relocation of the Applicant. However, he does appear to have raised personal safety issues. This has lead to some internal relocation. 27The Applicant initially contacted the ADT in relation to his application on 23 October 2012 but his application to the Tribunal was not lodged until 9 May 2013. The Inmate Profile Document identifies that the Applicant apparently raised personal safety issues during that time. However, the issues that are identified do not explain a delay of over 200 days. 28If the reasoning of the Appeal Panel is applied, the inevitable conclusion is that while those matters "provided a reasonable excuse for some unknown but relatively short periods of time, they do not provide a reasonable excuse for the entire" 209 days delay in filing the application. 29While I accept that there is prejudice to the Applicant should the Tribunal refuse the late application, and the apparent merits of the case, in my view these are outweighed by the prejudice to the Respondent that is the result of the length of delay in bringing the late application. 30In my view, the Respondent has correctly assessed the situation in the argument that I have set out above. 31In the circumstances, I agree with the Respondent that the Applicant's request for an unreasonable extension should be rejected and the application for review should be dismissed.

Orders

The time for the filing of the application for review is not extended.
The application for review is dismissed. 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: 31 March 2014

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