ANQ v Department of Attorney General and Justice, Corrective Services
[2012] NSWADT 271
•17 December 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 Hearing dates: On the papers Decision date: 17 December 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The time for the filing of the application for review is extended to 15 October 2012
Catchwords: Out of time - leave for an extension of the time Legislation Cited: Administrative Decisions Tribunal Act 1997 Cases Cited: Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212
Edwards v Department of Family and Community Services [2012] NSWADT 60
Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4
Hunter Valley Developments Ply Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Re Ljubo Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244Category: Interlocutory applications Parties: ANQ (Applicant)
Department of Attorney General and Justice, Corrective Services (Respondent)Representation: Greg Walsh & Co (Applicant)
Department of Corrective Services (Respondent)
File Number(s): 123294
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant seeks external review by the Tribunal of the Respondent's decision under the Government Information (Public Access) Act 2009 ("the GIPA Act").
Applications for review of reviewable decisions by this Tribunal under the GIPA Act must be lodged within 8 weeks after notice of the decision is given to the applicant: section 101 of the GIPA Act. It is common ground that the application for external review is out of time. The Applicant seeks, pursuant to section 57 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), and section 101(4) of the GIPA Act, an extension of time for lodging her application for review.
The matter came before me for a planning meeting on 13 November 2012. At the planning meeting the Respondent submitted that the reasons provided by the Applicant in the application for review did not constitute a "reasonable excuse for the delay" for the purpose of the Tribunal exercising its discretion to grant an extension of time, pursuant to section 101(4) of the GIPA Act.
For the purposes of this interlocutory application each of the parties made submissions. They were not required to file evidence.
Background
Ms Singer has provided a summary of the background to the application to the Tribunal. I do not understand there to be any dispute in relation to that background.
On 4 June 2012, the Respondent received from the Applicant a formal access application under Part 4 of the GIPA Act. The Applicant sought access to:
"A copy of all information held in the case file of my husband (name), currently at Long Bay Correctional Centre:
Relating to myself, ANQ and my children ...
All information regarding the date and time of an AVO purported to be made by the children against (name), which has been noted in his case file.
I am also requesting a copy of all communications, records and information held in the files of the Child Protection Coordination and Support Unit of the Department of Corrective Services NSW:
Relating to myself ANQ and my children ...
In relation to all communications between officers of the unit with all courts of law, viz. Rene Boyd and Judge Finnane (relating to an accusation that (name) abused his stepson, ... made during a conversation between Rene and the Honourable Judge Finnane).
· All conversations between Rene Van Aaken A/Coordinator, Sue Forster Social Worker at Silverwater and officers of the Department and myself (between the time span November 30, 2010 and April 2011)."
On 22 June 2012 the Respondent wrote to the Applicant extending the period for dealing with the application, by 10 days, to allow third party consultation under Division. 3 of Part 4 of the GIPA Act.
By correspondence dated 9 July 2012 and sent 10 July 2012, the Respondent gave notice of its decision to the Applicant granting partial access to some information and refusing access to other information.
On 11 September 2012, the Applicant applied to the Office of the Information Commissioner for a review of the Respondent's decision pursuant to section 89 of the GIPA Act.
On 14 September 2012 the Office of the Information Commissioner responded refusing to accept the request for review on the basis that it was outside the required time frame.
There is no evidence regarding when the Applicant received notification of the decision. However, pursuant to section 126 of the GIPA Act, notice is deemed given when it is posted by the agency to the Applicant at the postal address provided for correspondence i.e. 10 July 2012.
The application to Tribunal for a review of the Respondent's decision was filed on 15 October 2012 i.e. more than four weeks after the date provided for by the GIPA Act.
Relevant legislation
Section 100 of the GIPA Act provides:
100 Review of decision by ADT
A person who is aggrieved by a reviewable decision of an agency may apply to the ADT for a review of the decision (referred to in this Division as ADT review).
Note. A reviewable decision does not have to be internally reviewed or reviewed by the Information Commissioner before it can be the subject of ADT review.
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.
Section 126 of the GIPA Act provides:
126 Requirements for notices given by agencies
...
(1A) A notice or notification under this Act that an agency is required or permitted to give a person may be given by:
(a) posting the notice to the person at the postal address provided by the person for correspondence in connection with the matter concerned, or
(b) such other method as may be agreed by the agency and the person.
(2) A notice or notification under this Act that is given by an agency to a person by being posted to the person at the postal address provided by the person for correspondence in connection with the matter concerned is considered to have been given to the person when it is posted by the agency.
Section 57 of the ADT Act is in similar terms to section 101(4) of the GIPA Act. It provides:
57Late 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.
The Applicant's explanation for the delay
It is for the Applicant to provide a reasonable explanation for the delay in making the application. Written submissions were provided on her behalf. The submissions provided an outline of the factual circumstances leading to her request under the GIPA Act as well as an explanation for the delay. She relies upon the following facts, matters and circumstances so as to provide a reasonable explanation for her delay:
1. Her personal circumstances, including inter alia her need to care for her children whilst also providing support to Mr (name);
2. Her lack of financial resources and her need to provide considerable assistance to legal representatives so as to ensure (name) receives due process of the law;
3. That she was not legally represented when making the requests for information and did not seek legal advice as to the process and considerations for same until about 10 October 2012;
4. Two requests for information were pursued simultaneously - one to the Respondent and one to NSW Family and Community Services ("Community Services"). She firmly believed that she would be most assisted by complete information before advancing and/or appealing further requests. In this sense, she is still awaiting production of documents from Community Services and lodged the application to the Tribunal notwithstanding her belief that it will be necessary to obtain documents from both the Respondent and Community Services.
The following further considerations are offered in support of the Applicant's assertion that as to the reasonableness of her delay:
1.The Applicant played a large part in preparing Court of Criminal Appeal documents at the offices of her solicitors throughout September 2012.
2.The appeal to the Court of Criminal Appeal was filed on about 9 October 2012. The documents were significant and filled about eight binder folders.
3.During September 2012, the Applicant informally sought advice of her solicitors in relation to the application to the Tribunal. Having regard to the significant amount of work undertaken on a pro bona basis, her solicitors were not able to receive formal instructions from the Applicant in relation to the application to the Tribunal until 10 October 2012.
The Respondent's position
The Respondent contends that the time for making the application to Tribunal for a review of the Respondent's decision ran from 10 July 2012, the date the notice was posted. The relevant date by which the application ought to have been filed was 4 September 2012.
Ms Singer referred to the factors that the Applicant relies on to explain the delay in making the application to Tribunal. That is, her personal circumstances, including her need to care for her children, whilst also providing support to her husband; her lack of financial resources; her need to provide assistance to legal representatives to ensure her husband receives due process of law; her lack of legal representation when making her application; and that she was awaiting the outcome of a GIPAA application to Community Services. She noted that the Applicant did not seek legal advice as to the application to Tribunal until about 10 October 2012.
The Respondent submits that it is difficult to see how these factors would constitute a reasonable explanation for the delay in filing this application when they have not prevented her from actively participating in her husband's appeal.
The Applicant had ongoing contact with her legal representative during September 2012 for the purpose of preparing the Court of Criminal Appeal proceedings and she acknowledges that she sought advice informally about the application for external review. The Respondent submits that it is not clear why she could not have sought advice about the timely making of an application to the Tribunal.
Further, the Respondent submits that the Applicant applied for review of the decision to the Office of the Information Commissioner on 12 September 2012. It is therefore apparent that the GIPAA application was exercising the Applicant's mind during that period.
The Respondent further contends that no reasonable explanation is provided for the delay between the Commissioner's rejection of the application on 14 September 2012 and the filing of these proceedings on 15 October 2012.
Further, it is the Respondent's submission that the Applicant did not need legal advice as to the time limit for filing her application for external review. The Respondent had put the Applicant on notice of the time for review of its decision.
With respect to the explanation that she was awaiting the outcome of a related application under the GIPAA to another agency, it is the Respondent's submission that there is no reason why the Applicant could not have commenced proceedings in the Tribunal and then sought to adjourn them until the GIPAA application to Community Services was finalised.
The Respondent does not argue that it will suffer prejudice if the application is allowed. However, the Respondent notes that "mere absence of prejudice is not enough to justify the grant of an extension": Hunter Valley Developments Ply Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348 (per Wilson 3); Re Ljubo Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244 at [13].
It is the Respondent's submission that the Applicant has not provided a reasonable excuse for the delay in making the application and that the Tribunal should not exercise its discretion to grant an extension of time to the Applicant.
Consideration
The provisions of section 57 of the ADT Act have been considered in a number of matters. Ms Singer has provided a reasonable summary of a number of decisions.
Relevant factors in determining whether the Tribunal should extend the time for the making of an application include: the Applicant's explanation for failing to file in time, the reasonableness of the Applicant's explanation for failing to file the application in time, the prejudice to the Applicant or the Respondent should the Tribunal refuse the late application, the timeliness and delay in the antecedent administrative process, the length of delay in bringing the late application, the apparent merits of the case, and the public interest in accepting the late application: Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4 at [23]; Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212.
The particular factors to be taken into account by the Tribunal will depend on the circumstances of each case.
In my view, for the purposes of the exercise of the discretion the expressions 'reasonable excuse' and 'reasonable explanation' are comparable expressions. It is also my view that the factors referred to above, while they were established in matters determined under the Freedom of Information Act 1989, are equally applicable to the exercise of the Tribunal's discretion under section 101(4) of the GIPA Act.
Section 57 of the ADT Act and section 101(4) of the GIPA Act were considered in Edwards v Department of Family and Community Services [2012] NSWADT 60. In Edwards the application for review of the respondent's decision was some 10 weeks out of time. Judicial member Isenberg granted an extension of time for the filing of the application. It appears that the reason for delay was primarily related to communication difficulties between the applicant and her solicitor.
The applicant in Edwards also submitted that the respondent would not suffer any prejudice if leave were granted to extend the time for the application for review to be filed. On the other hand, it was submitted, the applicant would suffer prejudice. The Judicial Member observed at paragraph [14]:
Contrasting the relative prejudices in denying the application for extension of time, it seems that there is little, if any prejudice to the respondent compared to the applicant.
The Judicial Member concluded at paragraph [19]:
Taking into to account all the circumstances of the matter, I have come to the view that there was a 'reasonable excuse' and a 'reasonable explanation' for the delay in making the application.
I have considered the relevant factors insofar as is possible at this early stage in the proceedings. Only limited material has been placed before me at this point, however as I understand the matter there is a real issue to be addressed.
I am not aware of any public interest issues that warrant refusal of the exercise of the Tribunal's discretion in favour of the applicant.
In my view, the other factors referred to above favour the view that the matter should be permitted to remain in the Tribunal.
It seems to me that the explanation for delay that has been provided on behalf of the Applicant is plausible. The Applicant did not seek legal advice as to the application to Tribunal until about 10 October 2012 and the application was brought within a very short time after she received the advice. I am not of the view that she has deliberately delayed bringing the application or that her explanation is not genuine. While I accept that the explanation is not as strong as was the case in Edwards, when all the circumstances of the matter are taken into account, it is clear that the Respondent would not suffer any prejudice if leave were granted to extend the time for the application for review to be filed. On the other hand, the Applicant would suffer prejudice.
On balance, I am satisfied that the Applicant has provided a reasonable excuse for the delay in the application. That being the case, it is my view that the time for the filing of the application for review should be extended to the date on which it was filed i.e. 15 October 2012
Order
The time for the filing of the application for review is extended to 15 October 2012
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Decision last updated: 18 December 2012
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