On 23 April 2013 the applicant applied to the NSW Police Force under the Government Information (Public Access) Act 2009 for access to 10 categories of documents concerning his employment, stretching over three pages of the access application. The respondent released some documents in full, refused to disclose some documents in full, decided that some documents were not held by the agency and that the applicant's personnel file was otherwise available to the applicant free of charge.
On 9 June 2013 the applicant applied for an internal review without paying the fee: s85(1) GIPA Act. Section 86(1) requires an agency to make its internal decision within 15 working days. The respondent took no action on the internal review as the fee had not been paid. If an internal review decision is not made within 15 working days, the agency is deemed to have made the original decision again, and the applicant is entitled to a refund: s86(5).
More than a year later and outside the 40 working days statutory time period allowed, the applicant filed an application for administrative review on 27 October 2014 ("review application") seeking an extension of time.
The applicant's excuses for the delay were "medical reasons" and that the respondent had not notified him within the allowed 40 day time period that it did not intend to take action on the internal review because of the non-payment of the fee. The applicant's excuses did not explain the long delay in making the application after the agency was deemed to have made its internal decision and given the deeming provision, the neglect of his statutory right.
The respondent did not contest the jurisdiction of the Tribunal on any basis. The Tribunal granted the applicant an extension of the time period in which to make the application.
The issues raised by the applicant included the inaccuracy of information in documents disclosed to him, provision of a document in a form he could not use for a specific purpose, the non-disclosure of documents such as the NSW Coroner's Report into deaths in custody/police operations for the year 2012 (which he had obtained from another source) and certain records relating to a police officer whom the applicant alleges failed to disclose convictions on his application for re-entry into the police force. This latter issue has been investigated by the NSW Ombudsman who was unable to locate the records sought by the applicant.
Planning meetings at which the applicant attended by phone occurred on 16 December 2014, 10 February 2015, and 17 March 2015 at which the matter was remitted to the respondent to make a Supplementary Decision.
On 14 April 2015 a Supplementary Decision was made. A further planning meeting which the applicant attended by telephone occurred on 21 April 2015. The parties agreed that one document remained in issue. The parties agreed to a further planning meeting on 26 May 2015 to enable the applicant to obtain legal advice.
On 26 May 2015 the applicant failed to appear.
By letter dated 29 May 2015 the Registry notified the parties that the matter had been adjourned for directions to 30 June 2015 at 1.30pm.
On 30 June 2015 the applicant failed to appear at the directions hearing and the review application was dismissed: s 55 (1)(c) of the Civil and Administrative Tribunal Act 2013.
By letter dated 2 July 2015 the Registry notified the parties of the dismissal decision.
On Saturday 4 July 2015 the applicant received the notice of decision to dismiss. (Application to set aside.)
On 20 July 2015 the applicant filed an application in the Registry of the Administrative and Equal Opportunity Division of NCAT to set aside or vary a tribunal decision under cl 9(b) of the Civil and Administrative Tribunal Regulation. (Reinstatement application)
On 25 August 2015 the reinstatement application was heard. (Reinstatement hearing)
[2]
Relevant law
The power contained in cl 9 (b) of the Regulation under which the applicant applied to set aside a Tribunal decision pertains to proceedings where the substantive issues have been decided. As the review application had not been substantially determined, the regulation provides no power to consider an application for the reinstatement of dismissed proceedings. The power to reinstate the proceedings is contained in s55(2) of the Civil and Administrative Tribunal Act 2013.
The Tribunal may reinstate proceedings that have been dismissed for a failure to appear if the Tribunal considers there is a reasonable explanation for that failure: s55(2) CAT Act.
Rule 36 of the Civil and Administrative Rules 2014 provides that applications to reinstate proceedings pursuant to s55(2) must be made within 7 days after the Tribunal dismissed the proceedings.
[3]
Parties' contentions
In his reinstatment application and at the reinstatement hearing, the applicant contended the proceedings should be reinstated because:
1. He was not aware of either the planning meeting held on 26 May 2015 or the Directions Hearing on 30 June 2015.
2. He was unable to attend the planning meeting on 26 May 2015 as his wife had been ill since November 2014 and had been admitted to hospital a number of times. His wife's and his own health compounded matters generally.
3. The Tribunal should extend the time in which to make the re-instatement application because "delays in receiving correspondence from NCAT registry has meant I didn't receive correspondence/notifications within timeframes." (Set Aside or Vary Tribunal Decision Application Form, Application Form)
The respondent opposes the application for re-instatement because:
1. The application was made out of time.
2. The applicant has not provided a reasonable explanation of his failure to attend on two consecutive occasions.
3. The applicant has had the opportunity to adequately put his case to the tribunal.
[4]
Application for an extension of time to make the reinstatement application- reason for the delay in making the application
The applicant submits the reason for the delay in making his application is that he did not receive correspondence "within time frames". (Application Form) It was submitted that the reason for this was that his nominated address for service was the home address of his 95 year old mother and that due to her age and health issues, he experienced lengthy delays receiving correspondence/mail. No evidence was provided to establish these facts.
To ensure his statutory right to make an application for reinstatement the applicant needed to lodge an application by 7 July 2015. His application was filed thirteen days after this.
According to his reinstatement application, the applicant received the formal notice dated 2 July 2015 of the dismissal decision on Saturday, 4 July 2015. It is apparent that, contrary to his claim that he did not receive correspondence 'within time frames', he received correspondence within the ordinary course of the mail at his address for service and without delay.
The information provided by the applicant contradicts his claim that he experienced lengthy delays receiving correspondence/mail because he used his mother's home address for service.
The applicant's letter to the Tribunal dated 3 July 2015, but not filed on the respondent, evidences the fact that the applicant was aware on 30 June 2015, the day of the directions hearing that his application for administrative review had been dismissed.
It follows that the applicant has no explanation for the delay in making the application for re-instatement out of time.
[5]
Application for an extension of time to make the reinstatement application- prospects of success of the reinstatement application
The prospects of success of the reinstatement application lie in whether there is a reasonable explanation for the failure to appear: s55(2) CAT Act.
At the reinstatement hearing on 24 August 2015 the applicant claimed he was unaware of the planning meeting scheduled for 26 May 2015. He had however participated in the planning meeting when it was scheduled and he agreed to the date and time. He had previously participated in a number of other planning meetings and reliably appeared at each one. I do not accept the claim made by the applicant.
The applicant also claimed that he did not attend the planning meeting on 26 May 2015 because his wife had been ill since November 2014 and admitted to hospital on a number of times. The respondent submitted that no medical evidence was adduced of his wife's illness. At the reinstatement hearing, the applicant was unable to say whether his wife was hospitalised at the time of the planning meeting or give any detail to explain the impost on him. No reasonable explanation was provided as to why his wife's long term ill health prevented him from participating in the May planning meeting by telephone.
It is perhaps relevant to note that the applicant lodged his review application out of time in October 2014, prior to his wife's illness. Additionally, his wife's illness did not affect his ability to appear at the four planning meetings before the May 2015 planning meeting.
In his application the applicant claimed he was unaware of the directions hearing on 30 June 2015 and claimed there were delays in the receipt of mail from his address for service. At hearing he said that if he was aware of the day of the directions hearing, he was unaware of the time of the hearing. As the notice of hearing includes both details, this statement appears to be inherently inconsistent. The respondent submits that the Tribunal should not be concerned with the adequacy of mail procedures used by the applicant to manage his affairs.
Under Rule 13 of the Civil and Administrative Tribunal Rules 2014 notice may be served on or given to a person by posting a copy of the notice addressed to the person to the person's address for service. Unless the contrary is proved, the time at which a notice that is posted is taken to be served is at the end of the fourth working day after the date on which the notice was posted to the person.
The Tribunal's notice to the applicant of the date and time of the 30 June 2015 directions hearing was given by letter dated 29 May 2015 addressed to the applicant at his nominated address for service. In accordance with the Rules, the date the notice is taken to have been served is 4 June 2015, unless the contrary is proved.
The applicant has adduced no evidence to the contrary. His claim that his nominated address for service was ineffective because his mother was elderly is merely that. In fact, he has stated in his application for reinstatement that on another occasion, service was effected at the address for service within 3 business days, contrary to his claim of lengthy delays.
The applicant was an experienced police officer. As such, he is familiar with the requirements of service and the implications of providing an effective address for service.
At the 24 August 2015 reinstatement hearing, the applicant claimed that his wife's illness precluded him from being in attendance at the 30th June directions hearing. When pressed, he was unable to say whether his wife was in hospital at that time or how her illness interfered with his ability to participate in the hearing. The applicant produced no medical evidence with respect to his wife. I am not satisfied that his wife's illness affected his ability to appear at the hearing. His letter of complaint to the President dated 26 June 2015 evidences the fact that he was not so incapacitated by his wife's illness that he could not work on and progress a complaint around that time.
I am satisfied that there is no reasonable explanation for the non-appearances at the 26 May 2015 planning meeting and the 30 June directions hearing and that there is no credible explanation or evidence as to how his wife's or his own health issues impeded his ability to appear by telephone on either occasion.
It follows that I consider the applicant's prospects of success in the reinstatement application to be remote.
[6]
Application for an extension of time to make the reinstatement application- injustice upon the applicant
The respondent submitted that the factors to take into account when considering whether to exercise the discretion to grant an extension are considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Those factors include that the discretion can only be exercised in favour of the applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.
In the reinstatement application and at the reinstatement hearing, the applicant submitted that his letter dated 26 June 2015 to the President of the Tribunal (Applicant's letter), date stamped as received on 30 June 2015, the day of the directions hearing, indicated his desire to continue on with the application for administrative review. The correspondence was not filed and served on the respondent. The respondent had not seen the correspondence; nor was it before the Tribunal at the directions hearing.
The applicant's desire to continue on with an administrative review application is not a relevant factor in considering whether to grant an extension of time, whether there is a reasonable explanation for failure to appear or whether an injustice might occur without reinstatement. The applicant however also claimed in the correspondence that the respondent had deliberately obstructed release of information. In that respect there is a question of whether refusal to exercise the discretion to grant an extension of time may visit an injustice upon the applicant.
I considered the applicant's letter too voluminous for the respondent to be given a fair opportunity to view it during a short adjournment of the reinstatement hearing. The parties' views were sought on the appropriate way to deal with the correspondence. The applicant wished to rely upon it to show that he wished to continue on with the matter. The respondent submitted that the complaint merely reflected the applicant's position in the matter and, in the case the applicant was able to locate documents from sources other than the respondent, that merely went to the sufficiency of the respondent's searches, nothing more and the applicant had had a reasonable opportunity to pursue those issues.
The applicant's letter is clearly marked "Complaint of improper conduct". It is addressed to the President of the Tribunal at a different address to the address the applicant had been using in relation to the administrative review. In the letter the applicant states that no further progress would be achieved in the administrative review by proceeding to a court (tribunal) hearing. (A tribunal hearing of the application was the next step in the application if the applicant decided not to withdraw his application.) The letter goes on to state that the applicant believes he should be compensated by the respondent on a finding of Improper Conduct and he asks the President of the Tribunal to make such a determination.
As no such remedies are available under an administrative review of a GIPA decision, I am satisfied that the letter evidences the applicant's desire to initiate a new process to continue on a grievance he has held against the respondent since 2001.
The applicant's letter however purports to be a complaint under s112 of GIPA Act. Section 112 provides no avenue of complaint, no power for the Tribunal to make finding of improper conduct and no power to make orders for compensation.
Section 112 provides a discretionary procedure for a tribunal member to refer issues to the relevant Minister if a tribunal member forms an opinion, as a result of an administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by the GIPA Act. Prior to the dismissal of the proceedings on 30 June 2015, the discretion to refer a matter to the relevant Minister had not been exercised.
The applicant's letter points to documents the applicant has obtained from other sources, that he believes should have been located and disclosed by the respondent. According to the applicant the location of the documents from other sources evidences Improper Conduct on that part of the respondent. The respondent submits at its highest, this goes to the adequacy of searches, not misconduct.
I agree with the respondent's submission. Additionally, a question as to the existence of a documents and the sufficiency of searches does not necessarily mean improper conduct has occurred not does it persuade me to form the requisite opinion that would lead me to consider exercising the discretion under s112.
The applicant claims in his reinstatement application that the respondent should not be allowed to deliberately obstruct the disclosure of information. If that were the case, an injustice might be visited upon the applicant.
I have considered the list of documents in the reinstatement application claimed by the applicant "to support his complaint of workplace harassment" and the "unreasonably obstructed access to benefit the organisation with declining my workers compensation claim." The list primarily concerns information about a named police officer and includes documents such as "Copy of application for promotion (of the named officer)", "Report from (a police officer) concerning (the named officer)", "conviction records (for the named officer)".
In considering the list of documents in the reinstatement application, I formed the view that even if the respondent had been able to locate the documents, it would have been able to raise public interest consideration arguments against disclosure of the documents to the applicant during the administrative review. In my view, the respondent's prospects of success in making those arguments were reasonable, had the documents been located. That being the case, the fact that the applicant was able to obtain certain documents from another source tends not to support the applicant's allegations of improper conduct by the respondent.
On this basis I am satisfied that no injustice will occur to the applicant by refusing to accept an out of time application for reinstatement.
Being satisfied that the applicant has no acceptable explanation for the delay in making the reinstatement application, that his prospects of success in the reinstatement were very remote in that there was no reasonable explanation for his failure to appear, and that no injustice would occur by not reinstating the proceedings, I am satisfied that the application to grant an extension of time to make a reinstatement application should be refused.
The respondent submitted that it would suffer a prejudice if the application to reinstate proceedings succeeded. I accept those submissions. Being satisfied on other grounds, it has not been necessary to take account of the prejudice in reaching a decision.
[7]
Order
For the reasons set out above, I make the following orders:
1. The application seeking an extension of time to apply for the re-instatement of the proceedings is refused.
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: 14 October 2015