Giann v Commissioner of Police

[2022] NSWCATAD 206

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Giann v Commissioner of Police [2022] NSWCATAD 206

Hearing dates:

7 March 2022, 12 April 2022

Date of orders:

20 June 2022

Decision date:

20 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

The Tribunal summarily dismisses the application.

Catchwords:

ADMINISTRATIVE LAW- summary dismissal-freedom of information- government information public access-no reasonable excuse for delay- Government Information (Public Access) Act 2009 (NSW)

Legislation Cited:

Administrative Decisions Review Act (NSW) 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Harry Giann (applicant)
NSW Commissioner of Police (respondent)

Representation:

Solicitors:
Applicant (self-represented)
McCullough Robertson Lawyers (respondent)

File Number(s):

2021/00333095

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. This is an application for summary dismissal of proceedings.

2. On 1 October 2020, the respondent refused the applicant’s request for release to him of a full copy of the Body Worn Camera and CCTV footage of an incident that occurred on 18 May 2019, at which time the applicant was in the vicinity of public polling booths for an election in which he was handing out leaflets as a supporter of a political party.

3. In its 1 October 2020 decision the respondent noted the applicant was granted viewing access to the footage under supervision and that the applicant had attended Bankstown police station for that purpose. The Police decision also noted the release to the applicant of an edited copy of the CCTV footage capturing “the part that includes the alleged offence” for which the applicant had been arrested.

4. On 28 October 2021, that is some 12 months after the original decision, the Information and Privacy Commissioner (IPC) received a request from the applicant for review of that original decision. On 5 November 2021, the IPC advised the applicant that because the application for review had been made more than 40 days after the NSW Police decision, it was outside the time frame for IPC review provided by section 90 of the Government Information (Public Access) Act 2009 (the GIPA Act).

5. On 22 November 2021 the applicant filed an Administrative Review Application with this Tribunal. On 28 January 2022, the respondent sought an order dismissing the proceedings, as “frivolous or vexatious or otherwise misconceived or lacking in substance”, pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

6. The matter initially came on for hearing on 7 March 2022 however, the applicant stated that he had not received the respondent’s written submissions (that had been received at the Tribunal on 28 January 2022) and was not in a position to proceed with the hearing. The matter was adjourned to enable the provision of the written materials to the applicant and time for the applicant to prepare a response.

7. The hearing subsequently resumed with the agreement of the parties on 12 April 2022.

Background

8. The administrative review application form submitted by the applicant to this Tribunal, named the IPC as the respondent and sought “an extension of time under section 101(4) GIPA for the IPC to review my GIPA application”.

9. Attached to the form was, amongst some other documents, a statement by the applicant describing the events of the incident in question. It states that the applicant was at a polling booth at Bankstown North High School handing out leaflets. He was representing the United Australia Party. There were several other persons present engaged in the same actitvity for other parties. It states “During this time I attempted to fix my shirt into my trousers because half had come out and I did not look good to the public…the police arrived they went to talk to the three girls from the ALP…The police asked me questions and I told them that they (the girls from the ALP) are lying, their response was they are three of them [sic] and you are one – pack up and go…I received the fine of $500 from the police and immediately I elected to have this matter contested in court…someone from the police office rang me back and with cheerful voice telling me the police will not proceed in court because they had the video and they had seen clearly that I was doing nothing wrong”.

10. The other documents attached to the form include: an undated letter from Mr Giann to his local member of parliament Wendy Lindsay, a letter dated 9 December 2020 from Wendy Lindsay MP addressed to the Minister for Police enclosing the applicant’s letter to her and an undated letter to Wendy Lindsay MP from Melanie Gibbons MP Parliamentary Secretary to the Attorney General referencing “your letter to the Attorney General, Mark Speakman, received 18 August 2021, on behalf of [the applicant], about his court matter and request to NSW Police for documents under the GIPA Act”.

11. No written submissions or other documentary material aside from the application for review documents have been provided by the applicant. He made oral submissions at the hearing. The respondent put on written submissions and made oral submissions at the hearing.

Respondents submissions

12. The respondent submits “the Application appears to have been prepared by the Applicant on the erroneous understanding that he could obtain from the Tribunal an extension of time for the IPC to review the NSW Police decision…the Respondent submits that the Tribunal should not exercise its discretion to recharacterise the Application as being against the Respondent and regarding the NSW Police decision, as to do so would go beyond curing an ordinary defect in an Application such as a misnomer or misdescription”.

13. The respondent submits that in considering the exercise of its discretion to amend under section 53(1) NCAT Act, the Tribunal should have regard to the fact the application was filed “some 51 weeks out of time and without any reasonable excuse for this delay” and “the lack of merit in the entire Application, as it is misconceived or lacking in substance”.

14. The respondent submits, “For the Application [for review] to proceed the Tribunal must first be satisfied for the purpose of section 101(4) of the GIPA Act that the Applicant has provided a reasonable excuse for the delay in filing the Application. It is only in those circumstances that the Tribunal may retrospectively extend the time available to the Applicant to seek review…”.

Applicant’s submissions

15. The applicant made oral submissions at the hearing on 12 April 2022. He confirmed the substance of the various documents attached to his written application for review and that there was no additional written documentation on which he relied. He said, in part, “I am not a legal person. I do whatever is possible”. He said he had relied upon the assistance of the staff in his local member of parliament’s office with his applications to the NSW Police, the IPC and the Tribunal.

16. I asked the applicant why his IPC application was made some 12 months after the Police decision. He repeated that he relied upon the assistance and advice of others and that he was not legally qualified or represented. I asked him why he waited so long to make the IPC application. He said “I was waiting for my local MP to tell me where to go. I don’t know the system”. He said he variously contacted the Police, his MP, the Independent Commission Against Corruption and the Police Integrity Commission seeking assistance.

17. He said the Police Area Command approved his attendance at the police station to view the CCTV footage. He said he went there but only stayed for half an hour and did not sit through the full 2 hours of video. He said the police would not allow him to rewind portions of it. He said he has never seen the Body Worn Camera footage.

Respondents submissions in reply

18. The respondent pointed out the Police decision letter included a detailed explanation of review rights including a specific reference to the time limit for seeking review. The respondent noted the applicant’s oral statement in the second hearing that he “did not notice” that part of the letter.

19. The respondent’s representative stated that during the period between the first hearing and the resumed hearing, the applicant had been offered a further opportunity to attend the police station and view the entire footage and had declined to do so. That was confirmed by the applicant who stated he wanted a copy of the video.

Legislation

20. Section 101(4) GIPA Act provides as follows:

101 Time for applying for NCAT administrative review

(1) An application for NCAT administrative 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 NCAT administrative review).

(2) If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative 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 NCAT administrative 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) NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT 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 NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case.

(6) The time for making an application for NCAT administrative review may be extended under this section even if that time has expired.

21. Section 55 of the NCAT Act provides as follows:

55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

Decision and findings

22. The decision for the Tribunal in this application for summary dismissal turns principally upon the delay by the applicant in submitting his application for review of the NSW Police decision. That Police decision was made on 1 October 2020. The applicant sought administrative review of that decision on 28 October 2021. The delay was in the order of 12 months. The Tribunal must consider whether or not the applicant had a reasonable excuse for this delay.

23. The applicant’s evidence is that he was relying upon the assistance of other people, mainly the staff of his local state MP and that he is not legally qualified, had no legal representation and “did not know the system”.

24. The Tribunal notes that the NSW Police decision letter informing the applicant of the decision contains, under the bold heading Review rights, an explanation of how and where to obtain review of the decision and a specific reference to the time limits for lodging a review application.

25. When directed to this section of the decision letter the applicant said, “we did not notice the time limit”. He did not say he didn’t understand it. He said he did not notice it.

26. 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, as stated in ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271.

27. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Tribunal said:

Time limits, including the specification of the time within which an appeal from an internally appealable decision…must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, …and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require.

28. In weighing these various factors, I note the delay in bringing the application was almost exactly 12 months. I note the excuse for this delay is reliance upon the advice of other people and ignorance of the law and procedures involved in seeking review.

29. I accept that language difficulty and lack of knowledge of review processes can be problematic for many people and could be a reasonable excuse for delay. However I do not accept that is the case in this particular set of circumstances. The applicant demonstrated competent English language ability in the hearings. On the day of the incident he was involved in political activity handing out documents to voters at the polling booth. I note he made no mention of difficulty in reading any of the relevant documents. He simply did not notice the time requirements specified in the Police decision letter. I do not consider that to be a reasonable excuse for the delay in lodging the application for review.

30. I note also the fact the applicant has had at least two opportunities to view the video and declined to do so, or left well before the video concluded. I note also that he has been provided with an edited copy of the relevant footage.

31. In all the circumstances, I am satisfied the application for review of the NSW Police decision is misconceived and/or lacking in substance.

32. I find the application should be summarily dismissed.

Order

The Tribunal summarily dismisses the application for review.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 20 June 2022