Edwards v Department of Family and Community Services

[2012] NSWADT 60

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Edwards v Department of Family and Community Services [2012] NSWADT 60
Hearing dates:	On the papers
Decision date:	05 April 2012
Jurisdiction:	General Division
Before:	N Isenberg, Judicial member
Decision:	The Tribunal grants an extension of time for the filing of the application for review to 27 January 2012.
Legislation Cited:	Government Information (Public Access) Act 2009
Category:	Interlocutory applications
Parties:	Patricia Edwards (Applicant) Department of Family and Community Services, Housing NSW
Representation:	Legal Aid NSW (Applicant) Department of Family and Community Services (Respondent)
File Number(s):	123025

Reasons for decision

1. Applications for review of reviewable decisions by this Tribunal under the Government Information (Public Access) Act 2009 (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. The applicant seeks, pursuant to section 57 of the Administrative Decisions Tribunal Act 1997, and S101(4) of the GIPA Act, an extension of time for lodging her application for review in relation to a reviewable decision made by the respondent.

Background

1. The Applicant has been an ongoing tenant of properties managed by the respondent since 1 July 1996.

1. She lodged an application under GIPA Act seeking:

• Correspondence to the Minister from neighbours
• Complaints from neighbours
• Why Ms Edwards was declined the property at 2 Trinity Drive, Kelso

1. A decision was made on 1 August 2011. As far as I can ascertain she may have been provided with some complete documents, but was provided with some with redactions. Some other documents were not provided at all, on the basis of claimed exemptions.

1. On 30 August 2011, on her behalf, a solicitor from Dubbo Legal Aid (the solicitor) lodged an application for internal review of the decision.

1. On 20 September 2011 the respondent sent its internal review decision to the applicant.

1. On 27 January 2012 the solicitor, on behalf of the applicant, filed an application for review of the respondent's internal review decision, some 10 weeks out of time.

Law

1. The Tribunal may extend the time for the making of an application for review if the Tribunal is of the opinion that the person has provided a 'reasonable excuse' for the delay in making the application: S101(4)GIPA Act or a 'reasonable explanation' for the delay: S57(1) ADT Act.

Consideration

1. For the purposes of this interlocutory application the parties made submissions and were not required to file evidence. From the submissions it appears:

• On 31 August 2011 the respondent raised with the solicitor that it held no authority from the applicant authorising the solicitor to act on her behalf. The solicitor agreed to have such an authority provided within a week, but this did not occur for some time.
• Because of the statutory time constrains the respondent undertook the review and informed the applicant on 20 September 2011 although the applicant was unclear as to the exact date in September she received the internal review decision.
• The respondent did not notify the solicitor of the result of the internal review and did not forward any documentation relating to the internal review decision to the solicitor, apparently because the solicitor had not provided the authority to act on behalf of the applicant.
• In mid October the applicant and her family moved house.
• On 24 October 2011, when the solicitor enquired of the respondent as to the outcome of the internal review he was informed that it had been finalised on 20 September 2011 and the findings sent directly to the applicant.
• The applicant has given the solicitor a copy of a general consent and authority to act as her agent with respect to the respondent dated 23 September 2011, although it appears not to have been provided to the respondent until mid November by the applicant's friend.
• The applicant assumed that because the solicitor had lodged the application for internal review and because she had completed the general consent and authority form, the respondent would correspond with the solicitor direct.
• On 12 October 2011, the solicitor contacted the applicant's friend in relation to another matter for the applicant. Sometime between that date and 11 November 2011 he was told by either the applicant or her friend that a response to the internal review request had been received. On 11 November 2011 the solicitor emailed the applicant's friend to ask her to send him the response to the internal review. On 16 November, 2011 the friend emailed him that she would fax it to him the following day, but did not do so. On 6 December, 2011 the solicitor emailed the friend again. The friend had been ill and away and it was not until 9 December, 2011 that the solicitor received an emailed copy of the review.
• The solicitor assumed that he then had 8 weeks to lodge the application for review to the Tribunal. He went on 3 weeks leave over Christmas and sent the application to the Tribunal on 20 January 2012 although it was not received by the Tribunal until 27 January 2012.
• The applicant had limited education and has difficulty in reading and writing. She has been a victim of domestic violence. She has been diagnosed with depression and is medicated. She suffers poor memory. She has the full time care of her grandchildren and has a disabled son.
• The applicant resides in Kelso, some 200 kms from the solicitor's base. She does not have a home or mobile phone. If she wants to communicate with him she calls telephones him, either from Kelso Neighbourhood Centre, Bathurst ALS or her friend's home in Bathurst. He is not always in the office or available to speak with her when she calls. He communicates with her by sending her letters or by phoning or emailing her friend or calling the Kelso Neighbourhood Centre to leave a message for the next time they see her. On occasions he has had problems in contacting her and experienced delays in both communicating with her and receiving documents from her.

1. The unfortunate history of this matter highlights the difficulties faced by those in the community who do not have access to what have become basic communications and the effect that this has on those who must communicate with them. It also highlights difficulties experienced by country legal practitioners with practices covering large distances.

1. It seems to me that the solicitor assumed the respondent would take no issue with his lodgement of the application for internal review on behalf of the applicant. Perhaps it was in the interests of getting that application lodged within the statutory time limits - 20 days per S83 GIPA Act - that prevented the appropriate authorisation from the applicant being first obtained. The solicitor was invited by the respondent to provide the form but he did not arrange for it to be promptly lodged, and did not follow up on its lodgement. Sometime between 12 October and 11 November the solicitor found out that the review had been completed. He endeavoured to obtain the review from his client through the only reasonably available means of communication - her friend's email - finally obtaining a copy on 9 December. He could, at that time, have promptly lodged an application for review, but he did not. The solicitor then, for reasons which are unclear, assumed that he then had 8 weeks to lodge the application for review to the Tribunal, notwithstanding that he knew his client to have already had the review for some weeks. There was a strong suggestion that communication between the solicitor and the applicant was seriously hampered by the lack of proximity to each other and the very limited communication methods available to them. Further, it is clear that the applicant, a woman of limited education, relied on the solicitor to have the overall matter in hand. In those circumstances, she should not, in my view, be disadvantaged because her solicitor erroneously believed he had more time to file the application for review. To me, this provides, weighs heavily in my consideration of whether there was a 'reasonable excuse' for the delay in making the application and a 'reasonable explanation' for the delay.

1. The applicant also submitted that the respondent will not suffer any prejudice if leave is granted to extend the time for the application for review to be filed and there was no suggestion that the respondent no longer has all the documents and records relating to the GIPA application.

1. On the other hand, it was submitted, the applicant would suffer prejudice. I was informed that she has filed a complaint with HREOC alleging racial discrimination by the respondent. In those proceedings the respondent was said to have referred to matters of which the applicant was unaware and which did not feature in the documents released by the respondent in response to her GIPA application, which although not specifically claimed, may have come within the scope to of the GIPA application. I was informed that HREOC has stated that it is unable to require the respondent to provide information or documents.

1. 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.

1. As to the merits of the substantive matter raised by the application for review, the applicant submitted that the initial GIPA application saw a large amount of documents withheld completely and other documents released, albeit with large redactions. No additional documents or parts of documents were released on internal review. The applicant submitted that that on review by the Tribunal release of further documents or parts of documents was likely. Without the benefit of the documents it is difficult for me to form a view as to whether documents or parts of documents withheld to date are properly the subject of exemption from production. One aspect that is likely to be the subject of further scrutiny though is that respondent's expressed concerns about the risk of harm to others should information be released to the applicant, and on that basis had claimed exemption in relation to several of the relevant documents. The applicant claimed the concerns were overstated because she is not a violent person and is defending an AVO (which she claimed arose out of racial stereotyping) presently before Bathurst Local Court.

1. The solicitor noted that as the application involved residents in a specific street there was little doubt about the identity of the residents involved so the non-disclosure of their identity serves no purpose. The respondent contended that, in those circumstances, further review serves no purpose. Neither of these approaches is quite accurate; for example, this does not necessarily mean that the nature of the complaint is also exempt. It may be that redacted versions of the documents can be provided to the applicant, if the respondent looks again at the documents, or on consideration by the Tribunal.

1. It was submitted on behalf of the applicant that there is a strong public interest in revealing the process and procedures followed by the respondent in respect of the applicant. It was unclear to me whether this submission related to the treatment of the applicant in relation to her application or generally. I do not think consideration of this issue is required.

1. The applicant's overall concerns are whether the respondent's decisions regarding tenants are made fairly. It was submitted that there is a public interest in whether the respondent allows its tenants natural justice and procedural fairness and this also applies to how they deal with complaints made against tenants. The applicant contended that it was clear that residents in the street and officers of the respondent may have been influenced by race and there is a public interest to ensure that the processes surrounding the actions and decisions of the respondent have not been influenced by race. There was also, it was submitted, a suspicion that residents may have been guilty of committing the offence of racial vilification in their communication with the respondent. The respondent submitted, and I agree, that these are not matters for consideration by this Tribunal in the substantive matter.

CONCLUSION

1. 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.

DECISION

1. The Tribunal grants an extension of time for the filing of the application for review to 27 January 2012.

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Decision last updated: 10 April 2012