CWI v University of New South Wales

[2017] NSWCATAD 165

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CWI v University of New South Wales [2017] NSWCATAD 165
Hearing dates:	23 March 2017
Date of orders:	23 March 2017
Decision date:	23 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	Extension of time is granted
Catchwords:	PROCEDURAL – extension of time – exercise of a rational and informed choice - delay – length of delay - reasons for delay – prospects of success – extension granted
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Privacy and Personal Information Protection Act 1998
Cases Cited:	Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 SZQLD and Minister for Immigration [2011] FMCA 784
Category:	Procedural and other rulings
Parties:	CWI (Applicant) University of New South Wales (Respondent)
Representation:	Counsel: B Tronson (Respondent)   Solicitor: Applicant in person, via telephone UNSW Legal Office (Respondent)
File Number(s):	2016/00378509, 1610757
Publication restriction:	**** a pseudonym has been given to the Applicant in these proceedings

Extempore reasons for decision

1. This is an application to the Tribunal pursuant to the Privacy and Personal Information Protection Act 1998 (“the PIPP Act”) seeking review of a decision made by the Respondent dated 11 July 2016 and sent to the applicant on 22 July 2016.

2. The application to the Tribunal was made on 16 November 2016 and the Tribunal would otherwise have jurisdiction pursuant to s 55 of the PIPP Act, but the time limit for making such an application is 28 days from the date on which the applicant was notified of the decision in respect of the initiating application, according to the Civil and Administrative Tribunal Rules 2014. That 28 day period expired on 19 August 2016, so the applicant was nearly three months out of time to bring this application, and therefore requires an extension of time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013.

3. The principles relating to the grant of an extension of time have been considered by this Tribunal on numerous occasions and include those referred to in the decisions of Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 and Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70, both of the appeal panel in this Tribunal.

4. On the basis of those authorities the relevant considerations are that the grant of an extension of time is not automatic, whether there is proof that strict compliance with the Rules will work an injustice upon the applicant, the fact that the University can be thought of as having a vested right to retain the benefit of its decision on the initiating application where the right to seek review has passed, the length of the delay, the reasons for the delay and the applicant’s prospects of success on the substantive application and any prejudice to the University.

5. I have heard submissions and evidence in relation to each of those considerations, and the matters in issue which I need to determine on the basis of disputed evidence or contentions are: the length of the delay, the reasons for the delay and the applicant’s prospects of success on the substantive application.

6. I find that the length of the delay and the reasons for the delay have been adequately explained by the applicant in his evidence in relation to those tasks he was undertaking, and the circumstances in which he says he understood his rights to seek review.

7. The applicant specifically stated that he did not delineate between the substantive and procedural reviews that he was addressing with the respondent’s officers, and he did not think clearly enough to be able to determine the difference between substantive and procedural reviews in his communications. He stated that he definitely wanted a substantive review but he did not understand the system well enough to achieve that in his responses. I accept that evidence from the applicant.

8. The Applicant provided an explanation for the delay from 22 July 2016, being the date on which he was notified of the Respondent’s decision, until 12 October 2016, as being concerned and focussed on dealing with the complaints he had regarding the application that he made. Those complaints being the complaint made to the Ombudsman about the conduct of the officers involved and his rights and entitlements to seek internal review. I accept that his stated inability to think clearly to delineate the substantive and procedural reviews, with reference to those two processes and his entitlement to seek review in this Tribunal, caused that period of delay.

9. In the case of SZQLD and Minister for Immigration [2011] FMCA 784 at [20], which I was helpfully drawn to by the Respondent’s Counsel, it was stated that:

However, the exercise of a rational choice to pursue ministerial intervention in preference to the pursuit of a legal right of review on a question of law is not a persuasive reason for the grant of an extension of time, simply because the approach to the Minister was not successful. To put it bluntly, applicants who make a rational and informed choice are not entitled to have their cake and eat it, too.

10. What is significant in the circumstances of this matter is the issue of whether the applicant made a rational and informed choice. On the evidence available to me and the submissions that I have heard, it is my opinion that the choice made by the applicant to wait for the result of his Ombudsman complaint to pursue his rights in this Tribunal, was not rational and informed sufficiently to be considered a choice in the context of SZQLD.

11. The Applicant’s evidence was that he received correspondence on 12 October 2016 which made it clear to him that his Ombudsman claim was closed. Within a day, he attempted to make an application to this Tribunal for review, by express mail from Oman on 13 October, which was received on 27 October. The receipt of that application on 27 October was not in dispute, nor was the fact on 11 November 2016 the applicant received from the Tribunal a letter requesting that the application be resubmitted because of discrepancies in the credit card details provided by him which could not be used by the Tribunal. Shortly thereafter, on 15 November 2016 the application was resubmitted and that was received by the Tribunal by 16 November 2016.

12. The Respondent submitted that the fact that the applicant was able to express mail the application and have it arrive so quickly afterwards the second time that the application was made, demonstrates that if he really wanted to he could have put the application on earlier and quicker. I have heard that submission, but I accept the applicant’s response to this, which is that he had no knowledge or ability to control how long the post takes. In circumstances where the date of the application being sent on the first occasion and on second occasion is not in dispute, I will accept the applicant’s evidence and submissions on that point.

13. In the circumstances, I find that the delay from 12 October until the date that the application was received by the Tribunal on 16 November 2016 is also explicable and accordingly I find that there is an adequate basis for the length of the delay and the reasons for the delay provided by the applicant.

14. What remains for me to determine is whether the applicant’s prospects of success on the substantive application were sufficient to warrant the extension of time application in the context of the other considerations.

15. I find that the issues raised by the applicant in evidence and submissions today provide an arguable case for the applicant in the substantive proceedings, so as to warrant a finding that the applicant has some prospects of success on the substantive application in the circumstances of this extension of time application.

16. Accordingly, I grant the extension of time application.

Orders

17. Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013, the time for filing a review of the Respondent’s decision dated 11 July 2016 is extended from 22 August 2016 to 16 November 2016.

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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 May 2017