BKW v Department of Family and Community Services
[2014] NSWCATAD 205
•25 November 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BKW v Department of Family and Community Services [2014] NSWCATAD 205 Hearing dates: On the papers Decision date: 25 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The applicant's application for an extension of time within which to lodge her application for review is refused.
Catchwords: ADMINISTRATIVE REVIEW - review of decision to remove child from the applicant an authorised out-of-home carer - application to extend time in which to lodge the application for review Legislation Cited: Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Tribunal Act 2013
Community Services (Complaints, Reviews and Monitoring) Act 1993Cases Cited: Jackson v Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: BKW (Applicant)
Department of Family and Community Services (Respondent)Representation: Legal Aid ( Applicant)
A Vassallo (Respondent)
File Number(s): 1410425 Publication restriction: Pursuant to s 65(1)(b) of the Civil and Administrative Tribunal Act 2013 the name of the applicant and the children the subject of this application are not to be published or broadcasted.
reasons for decision
The applicant 'BKW' is an authorised kinship carer under the Children and Young Persons (Care and Protection) Act 1998. On 13 November 2013, the respondent wrote to the applicant to inform her that it had decided to remove the two children placed into her care in 2009. The children were aged seven and six at the time of their removal.
On 24 March 2014, the applicant made an application, to the respondent, seeking internal review of the respondent's decision. While that application was out of time (see subsection 53(2) of the Administrative Decisions Review Act 1997), the respondent accepted the application out of time and made an internal review determination.
The applicant seeks external review of the internal review determination of the respondent dated 20 June 2014.
There is no dispute that the decision for which the applicant seeks review is a decision that is reviewable by the Tribunal (see subsection 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, subsection 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 (the enabling legislation), section 30 of the Civil and Administrative Tribunal Act 2013 and sections 7 to 9 of the Administrative Decisions Review Act 1997).
The Tribunal's jurisdiction to hear and determine an application for review a reviewable decision is governed by the requirements set out in section 55 of the Administrative Decisions Review Act 1997 (ADR Act). That section relevantly provides as follows:
55 Making of applications
(1) ...
(2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules.
The term 'procedural rules' is defined to have the same meaning as in the Civil and Administrative Tribunal Act 2013 (NCAT Act). These are defined in section 4 of that Act to mean the Tribunal rules (i.e. the Civil and Administrative Tribunal Rules 2014) and the regulations made under that Act.
In this case, the Tribunal rules apply, as the enabling legislation does not prescribe a time within which an application for review is to be made.
Clause 24 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) relevantly provides that 'unless the Tribunal grants an extension under section 41 of the Act' an application for review of an administratively reviewable decision is to be made within 28 days after the day on which the 'internal review is taken to have been finalised'. I have dealt with this provision in more detail below.
In her application for review, the applicant said she was notified of the 20 June 2014 internal review decision on 26 June 2014. Her application for external review is recorded as having been lodged with the Tribunal on 8 August 2014, which is two weeks outside the prescribed time limit. The applicant sought an extension of time within which to file and serve her application for review.
The application first came before me at a directions hearing on 11 September 2014. Mr P Latham, of Legal Aid, appeared on behalf of the applicant and Mr A Vassallo appeared on behalf of the respondent.
Mr Vassallo did not object to the Tribunal extending the time within which the applicant was to file and serve her application. I did not deal with this issue as Mr Latham sought an adjournment to obtain clarification from the applicant as to whether she sought to press her application to have the respondent's decision set aside and the children returned to her care. I granted this adjournment as Mr Latham had indicated the applicant accepted that a return of the children to her care was unlikely, given the passage of time since their removal.
The matter next came before me at directions hearing, on 25 September 2014. On this occasion, Mr Latham advised the applicant did press her application for review and the return of the children. On this basis, by consent, I made orders for the filing and serving of evidence and submissions as to whether time should be extended for the applicant to file and serve her application for review. I also made an order, by consent, pursuant to subsection 50(2) of the Civil and Administrative Tribunal Act that the applicant's extension of time application is to be determined on the papers.
The applicant filed and served her material on 17 October. The respondent has not filed any material in reply.
I have now considered all the material filed and served by the applicant and for the reasons set out below I have determined to refuse the applicant's application for an extension of time to lodge her application for review.
Section 41 Extension of Time
Section 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) is in the following terms:
41 Extensions of time
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.
As can be seen from the terms of the abovementioned provision, it gives the Tribunal a wide discretionary power to grant an extension of time in which to file and serve an application for external review of an administrative decision.
In Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [18] the Appeal Panel noted that the discretion in section 41 is to be exercised judicially and having regard to the guiding principles in section 36 of the NCAT Act (i.e. the need 'to facilitate the just, quick and cheap resolution of the real issue in the proceedings').
That is, the grant of an extension of time is not automatic. Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. And for these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted.
In Jackson v Land and Housing Corporation at [22], the Appeal Panel set out the relevant considerations in deciding whether to grant an extension of time in which to lodge a Notice of Appeal.
These proceedings are administrative review proceedings (merits review proceedings) where role of the Tribunal is to determine the correct and preferable decision, at the time of the hearing, having regard to the applicable law and the relevant facts: see subsection 63(1) of the ADR Act. In determining an application for review the Tribunal can (affirm the decision, vary the decision or set it aside and make a decision in substitution thereof: see subsection 63(3) of the ADR Act.
While these proceedings differ to appeals, in my view, the principles set out in Jackson are also applicable with some modification. In summary, these can be described as follows:
(a) the length of the delay;
(b) the reason for delay;
(c) the nature of the decision the subject of review and whether there is an arguable case that the decision the subject of review is not the correct and preferred decision and should be set aside or varied; and
(d) prejudice to the respondent and any other interested person if strict compliance with the rules is applied.
(see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 and [18] and following)
Consideration
The sequence of events, as evidenced in the material filed by the applicant is as follows:
(a) the decision of the respondent to remove the children from the applicant's care was made on 13 November 2013. The applicant was notified, in writing, of that decision. In that notification the applicant was given brief reasons for the decision to remove the children. This included the applicant's then health condition, reports of the children being unsupervised while in her care and a report that the older child was being cared for by the applicant's son and her sister. The written notification advised the applicant that she could make an application, to the respondent, for internal review within 28 days after receipt of the written notice;
(b) the children were removed from the applicant's care on 13 November 2013;
(c) on 24 March 2014, the applicant made an application for internal review;
(d) on 9 May 2014, the respondent issued a 'Notice of Outcome of Internal Review' to the applicant. The outcome was that the decision of the respondent was affirmed. In its Notice the respondent provided brief written reasons for its decision and advised the applicant that section 149E provided that she could apply to the 'Administrative Decisions Tribunal for a review of this decision within 21 days'. The reasons for decision were stated to be assessments had substantiated that the children were at risk of harm while in the applicant's care and that the applicant had failed to make significant changes to address the risk concerns did not occur;
(e) during the week of 12 May 2014, the applicant sought advice from a Legal Aid solicitor who was in attendance, in Bourke, during that week, which was Law Week;
(f) on 20 June 2014, the respondent issued a further 'Notice of Outcome of Internal Review' to the applicant. This Notice also affirmed the original decision and set-out, in more detail, the grounds on which the decision had been made. On this occasion, the respondent advised the applicant she could apply to the Civil and Administrative Tribunal for a review of the decision within 28 days;
(g) on 3 July 2014, Ms Cantrall, solicitor from the Legal Aid office wrote to the respondent seeking copies of the letters sent to the applicant in regard to her internal review request;
(h) on 9 July 2014, Mr Latham wrote to the respondent seeking urgent clarification in regard to the contents of its letters dated 9 May and 20 June 2014. Clarification was sought on the period of time within which an application for external review was to be made and the Tribunal to which it was to be made;
(i) the respondent replied to Mr Latham's letter on 16 July 2014. In that reply the respondent acknowledged that in its 9 May letter it had incorrectly referred to the Administrative Decisions Tribunal and section 149 E;
(j) on 29 July 2014, Mr Latham sent to the Tribunal, by facsimile, on behalf of the applicant, an application for review of the respondent's decision to remove the children from the applicant's care and an application for the waiver of the lodgment fees;
(k) on 31 July 2014, the Tribunal Registry wrote to Mr Latham to advise that a reduced fee of $25.00 applied to applicants who are eligible pensioners; and
(l) on 5 August 2014, Mr Latham forwarded to the Tribunal Registry a cheque for the amount of $25.00. On 8 August 2014, the Tribunal Registry wrote to Mr Latham, returning the cheque and advising that no fee was payable for applications under the Community Services (Complaints, Reviews and Monitoring) Act and as I have noted above, the applicant's application was recorded as having been lodged on 8 August 2014.
It is Mr Latham's contention that the applicant's application should be considered as having been lodged on 30 July 2014, which he asserted to be six days outside the prescribed time limit. Mr Latham also submitted that in the interests of justice time should be extended because (a) the applicant is an unsophisticated Aboriginal woman residing in Far Western New South Wales with little, if any, access to legal advice and representation in matters such as these and (b) the respondent will not suffer any prejudice if time is extended.
On the basis of the material filed I find that the applicant's application for review was in fact lodged with the Tribunal on 29 July 2014, as this was the date on which it was received and as no fee was payable it should have been recorded as being lodged that day.
In regard to the length of delay, in my opinion it is appropriate to view the applicant's conduct in the context of the internal and external review provisions in the ADR Act.
Subsection 53(2)(d) of the ADR Act provides that an internal review is to be made within 28 days after the person has received notification of the reviewable decision, or if reasons for decision are sought under section 49, 28 days after receipt of the reasons for decision (this includes a notification by the agency, under section 50, that it refuses to provide reasons).
In this case, as the respondent made its determination to remove the children on 13 November 2013, to comply with the prescribed time period for making an internal review application, the applicant should have made that before 15 or 16 December 2013. Instead she made her internal review application more than three months outside the prescribed time. No reason for that delay has been provided.
Despite the delay, the respondent accepted the internal review application, but failed to determine that application within the time prescribed in subsection 53(6) of the ADR Act. That subsection is in the following terms:
53(6) Notice of result of review and appeal rightsWithin 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of:
(a) the outcome of the internal review, and
(b) the reasons for the decision in the internal review, and
(c) the right of the person to have the decision reviewed by the Tribunal.
On the day after the expiry of the abovementioned prescribed 21 days gave the applicant a right to make an application for external review to the Tribunal (i.e. this being the time an internal review is taken to have been finalised: see s 53(9) of the ADR Act and clause 24 of the NCAT Rules).
The internal review determination was however, made three weeks later, on 9 May 2014. There is no dispute that the applicant received notification of this decision. While the notification contained errors in regard to the name of the Tribunal and the applicable section, in my view, it was nevertheless a notification of the respondent's internal review determination. The applicant has not said when she received this notification. However, on the basis of her approach to the Legal Aid officer in the week of 11 May 2014, the inference is that she had obtained the notification by that time.
On the basis of my finding that the notification of 9 May was the respondent's internal review determination, the applicant's right to make an application for external review to the Tribunal was again enlivened. Yet she took no action and has provided no explanation for this delay, even though the children had been out of her care for six months at that time.
Why a further notice of the internal review determination was issued, on 20 June 2014, has not been explained. The decision in the latter notification was the same and they were both signed by Sharryn Wheeler, Acting Director Community Services Western NSW District. The only substantive difference between the two notifications was that the latter notification contained more information about the grounds on which the decision to remove the children had been made and the correct reference was made to the applicant's external review rights to the Tribunal.
On the basis of my finding that the applicant's application for review was lodged with the Tribunal on 29 July 2014, there is a delay of five days from the date the applicant asserts she received notification of the respondent's internal review decision of 20 June 2014. However, for the reasons set out above, in my view the delay in bringing these proceedings is in fact substantially longer. On the basis of the applicant having received the 9 May 2014 notification of internal review determination in the week of 11 May, her application for external review was in fact lodged more than six weeks outside the prescribed time.
In my view, this is a substantial delay having regard to the nature of these proceedings.
In regard to the reasons for the delay I accept the applicant is unsophisticated and resides in a town that is relatively remote. However, I do not accept that this is sufficient, on its own to exercise the discretion to extend time.
As I have noted the applicant has not provided any explanation as to why she delayed in making an internal review applicant and then delayed making this application for external review when she received notification of the respondent's internal review determination in early May 2014. The only explanation provided in her application is that a grant of legal aid was not made until the date on which Mr Latham lodged the applicant's application for external review. In my view, this does not satisfactorily explain the reasons for the applicant's delay in lodging her application for external review, as the lodgement of an application for review is not dependent on a grant for legal aid.
The nature of the decision the subject of review is protective of children. In this regard subsection 9(1) of the Children and Young Person (Care and Protection) Act provides that the:
... Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
The Tribunal is bound by this provision as was the respondent at the time it determined to remove the children from the applicant's care. This occurred almost 12 months ago and if time is extended, the Tribunal will be required to make its determination as to the correct and preferred decision as at the hearing. Since their removal from the applicant, the childrens' circumstances have changed and the respondent contends that its decision remains the correct and preferred decision.
In her application for review the applicant asserts that the decision was not fair and reasonable and not supported by the facts. She also asserts she was discriminated against and that it was not in the best interest of the children to have been removed. Other than having been in her long term care, the applicant has not put forward any arguments or material to support a finding that the decision of the respondent to remove the children from her care, as at the date hearing, is not the correct and preferred decision and should be set aside and the children be returned to her care.
I note the applicant has retained her authorisation as a carer and it remains a matter entirely for the respondent to determine whether the applicant has any ongoing involvement with the children removed from her care, or whether she has any other children placed into her care. Should the respondent cancel the applicant's authorisation, she has a right to seek review (internal and external) of that decision under subsection 245(1)(a) of the Children and Young Person (Care and Protection) Act.
Finally, as I have noted the respondent does not object to an extension of time. The respondent has not raised any issue in regard to prejudice should time be extended. However, its position remains the same in that the decision to remove the children from the applicant's care remains the correct and preferred decision. The respondent has also filed and served the material it considers relevant to the determination of this application, which it asserts to support its decision as being the correct and preferred decision (see section 58 of the ADR Act).
As I have noted above, in the interest of children in out of home care, applications for internal and external review of decisions to remove a child from the day to day care of an authorized carer should be brought promptly. This is particularly so where the children have been in the day to day care of the authorized carer for a long time.
The respondent should also ensure that authorsied carers are informed, at the time a decision is made to remove a child from that person's care, of their right to seek external as well as internal review (see subsection 55(6) of the ADR Act which gives the Tribunal jurisdiction to hear and determine an application for review without an internal review having been applied for, where the tribunal is satisfied that it is necessary to deal with the application in order to protect the applicant's interests). Furthermore, internal review applications should be dealt with within the prescribed time.
Conclusions and orders
For the reasons set out above, I am not satisfied that it is appropriate to extend the time within which the applicant is to file and serve this application. Accordingly, her application should be refused.
The Tribunal orders:
The applicant's application for an extension of time within which to lodge her application for review is refused.
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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
Decision last updated: 25 November 2014
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