Kippers v Transport for New South Wales

[2015] NSWCATAD 212

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Kippers v Transport for New South Wales [2015] NSWCATAD 212
Hearing dates:	7 August 2015
Date of orders:	15 October 2015
Decision date:	15 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior member
Decision:	(1)   Dispense with the requirement for the application to extend time to be in writing. (2)   The Tribunal declines to extend time for the applicant to make his application. (3)   Leave to proceed out of time is refused.
Catchwords:	LEAVE to proceed out of time – whether applicant has provided reasonable excuse – whether merits applicable -
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009
Cases Cited:	Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 377 ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271. Hawke v Chief Executive Officer, Workcover NSW [2008] NSWADT Turner v Commissioner of Police NSW Police Force [2014] NSWCATAP AT v Commissioner of Police, New South Wales Police [2011] NSWADT 214
Category:	Principal judgment
Parties:	Eduard Anthonious Kippers (Applicant) Transport for NSW (Respondent)
Representation:	Solicitors: E Kippers (Applicant) B Johnstone (Respondent)
File Number(s):	1410721

REASONS FOR decision

Background

1. The applicant Mr Kippers lodged an application for administrative review with the Tribunal on 18 December 2014. That review concerned an application by the applicant for documents which were sought from the respondent agency under the provisions of the Government Information (Public Access) Act 2009 (the GIPA Act).

2. The decision in respect of access to the documents was made on 14 November 2012 where the respondent agency decided that in respect of some of the documents sought, they were to be released to the applicant. In respect of the rest of the documents / material sought by the applicant, the agency decided that they did not hold those documents.

3. The applicant subsequently sought an external review by the NSW Information Commissioner as provided for under Part 5 Division 3 of the GIPA Act. That review was completed by the Information Commissioner on 17 May 2013. The applicant refers to this (Information Commissioner) review in his application and attaches a copy of the 17 May 2013 review report to his application to the Tribunal.

4. Section 101 of the GIPA Act provides for the time to seek an external review by the Tribunal. The section deals with the situation of when an applicant seeks a review by the Information Commissioner, and also when there is no Information Commissioner review, where the application to the Tribunal follows the agency decision. The import of these differences (in respect of section 101 and a review by the Tribunal), is that the GIPA Act provides different timeframes as to when an application must be lodged with the Tribunal.

5. Section 101 provides:

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.

6. The Civil and Administrative Tribunal Act 2013 also provides for an extension of time for a party to bring an application.

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.

7. In calculating the time to apply to the Tribunal, under section 101 (1) of the GIPA Act the last date for lodgement is calculated to be 4 October 2012 (allowing for service in accordance with the Evidence Act 1995). If time was to be calculated under section 101 (2) of the GIPA Act, the last date for lodgement (and noting the date the applicant nominates as having received the Notice of Decision) is calculated to be 13 June 2013.

8. Whilst the application form attaches the Information Commissioner’s Review Report, and the applicant refers to the decision number subject to review as ‘IPC12 / R00278’ (being the Information Commissioner’s Review Report reference), the Tribunal does not have jurisdiction to review an Information Commissioner review. As the applicant’s application to the Information Commissioner under section 89 was within the time specified under section 90 if the GIPA Act (40 working days), then his application to the Tribunal is brought under section 101 (2) of the GIPA Act. The decision under review however is the decision of the respondent dated 14 November 2012.

9. The application is therefore approximately 18 months outside the time provided by section 101 (2) of the GIPA Act. Section 101 (4) of the GIPA Act provides that the Tribunal may extend the time for making the application if the Tribunal is of the opinion that the applicant has provided a reasonable excuse for the delay.

History of matter before Tribunal.

10. As set out above, the application was received by the Tribunal on 18 December 2014. It appears however from material attached to the application that there were earlier communications between the Applicant and the Tribunal Registry concerning his application or proposed application.

11. The final page of his application documents consists of a copy of correspondence from the Tribunal Registry dated 12 August 2014. That correspondence indicates that the Tribunal received an initial application on 6 June 2013 in which the incorrect form was used. In addition the amount of the filing fee provided by the applicant was incorrect. The fee was provided by a money order which was in excess of three times the required fee. The Registry letter contains a copy of the money order photocopied across the bottom of the 12 August 2014 copy letter. That money order is in the excess amount referred to in the Registry’s letter, and was purchased at a Post Office on 3 June 2013.

12. The 12 August 2014 letter indicates that in June 2013 the original application and money order were returned by ordinary pre-paid post to the applicant. However it appears that over 12 months later the documents and money order were sent back to the Tribunal as unclaimed mail. The Tribunal officer then telephoned the applicant on 12 August 2014 and spoke with him. The letter states:

It appears that you did not receive this as Australia Post has returned the mail to the Tribunal advising ‘left address/Unknown’ on 11 August 2014.

13. Therefore sometime after 12 August 2014 the applicant received his documents, money order and Registry advice / letter at his new address. The matter was then lodged just over four months later with the correct from and fee.

14. When the matter was lodged it was allocated a Planning Meeting on 24 February 2015. At the Planning Meeting the applicant appeared in person and legal representatives of the respondent were also present. A number of matters relating to the documents, and the fact that their provenance was approximately 2002 and 2003, was discussed. The issue of lateness and the application being out of time was also raised and discussed. The respondent provided a chronology which set out it’s understanding of the applicant’s requests for information concerning an incident involving a State Transit (NSW Government Bus) hitting the applicant as a pedestrian in December 2002.

15. It became apparent during the Planning Meeting that there were previous GIPA requests for documents relating to the 2002 incident, those request being directed at NSW Police and the State Transit Authority. A previous GIPA application had been lodged with the Administrative Decisions Tribunal (ADT) in 2012 arising out of the State Transit application. The respondent advised the Tribunal verbally in respect of its position on the claim generally, and also indicated that it wished to press the issue of the current application to the Tribunal being out of time.

16. The matter was adjourned to a further Planning Meeting on 5 May 2015 and the file indicates that the following directions were made:

Mr Kippers to write a brief signed statement or statutory declaration etc. outlining the delay between Nov 2013 and June 2014 in lodging the application to the Tribunal for review.

Mr Kippers will also look into taking matters relating to his personal injury claim up with his current or former lawyers.

Note that the respondents position is that there are no documents held as no formal investigation was conducted. Issue of leave is opposed by the respondent.

17. The applicant subsequently wrote to the Tribunal seeking clarification as to what was required of him concerning setting out the delay. The Divisional Registrar wrote to the applicant on 4 March 2015 in general terms setting out information which might assist the applicant in understanding how to comply fully with the direction. The letter sets out examples of the sorts of matters which might constitute a reasonable excuse for delay (without prescribing any as sound or relevant in the current case).

18. Prior to the next Planning Meeting the applicant responded with a large amount of material including written submissions and covering correspondence that in part takes issue with the terms of the letter of 4 March 2015. A view was expressed about myself in that the applicant believed that I had made inappropriate assertions or held inappropriate views about him and his case.

19. At the adjourned Planning Meeting on 5 May 2015 the applicant attended but for some reason the respondent did not attend. The Tribunal located the respondent’s representative by telephone and due to time constraints they appeared by telephone. At the commencement of the Planning Meeting I addressed the issue of the applicant’s comments or concerns about my hearing of the case. In short I provided a breakdown of my understanding of the 4 March 2015 letter and that they examples were (in my opinion) objective observations of examples rather than factual views about the applicant. The applicant was asked if he wished to make an application for me to recuse myself. He advised that he no longer wished to make such an application after having the 4 March 2015 letter explained. The respondent witnessed this conformation via audio.

20. The Planning Meeting concluded with a number of directions concerning the filing and serving of material and submissions. The leave to proceed out of time would either be determined on the papers or dealt with at a hearing, depending on what arose in the submitted material. In addition a direction was made that all future conduct of the proceedings would be on record. The applicant was also given a copy of a handwritten note (original on file), which I prepared, setting out his obligations in respect of the directions.

21. When all of the material had been received I made a decision that the matter was to be listed for hearing. This decision was made on the basis of the nature of some of the material that had been filed and served and the preliminary view that I formed which was that the applicant may need to give evidence before the Tribunal in order to ensure that the basis of his delay was clearly understood. In addition some of the recent material filed by the applicant caused me to form the view that I needed to again consider whether there was a need or basis to recuse myself from hearing the case. In some aspects the submissions filed 31 July 2015 re-ventilated various aspects of the applicant’s prior inference that I should recuse myself, and in part consisted of publicly available information about aspects of my career and professional associations.

22. The matter was heard on 7 August 2015. I dealt with the issue in respect of the recusal issue first. The applicant made various submissions, and the Tribunal went through the material. I addressed all of the issues raised by the applicant, both orally and by reference to the documents provided by the applicant. After a significant hearing on that issue I delivered an oral decision, whereby I declined to recuse myself from hearing the matter. Without reproducing the reasons for decision in these reasons, it is relevant to note that in my view the principles espoused in the case of Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 377 were applicable and adopted in the reasons.

Leave to proceed out of time

23. Both parties filed written submissions and material in respect of the application concerning leave. However much of the applicants written material focused on the perceived bias issue (dealt with as the recusal application), and matters relating to the substantive grievance / problem which motivated the GIPA Act request, which was the 2002 Bus Incident and matters arising. For this reason it was necessary to take evidence from the applicant at the hearing.

The applicant’s case

24. In submissions dated 1 June 2015 the applicant submitted the following:

• There was a postal problem arising from the applicant’s change of address.

• The actual moving changing of residence was problematic in that it was disruptive.

• The applicant suffered personal health issues which were caused by the bus accident, medical issues and post- traumatic stress disorder (PTSD).

25. The applicant submitted that the 13 years of problems and delays in dealing with his substantive ‘case’ were causing anxiety. Reference was made to ‘constant delays by the IPC’, as were matters concerning various disputes and requests of the IPC relating to his GIPA matters. In addition the applicant summarised his previous attempts to get some resolution of his case, and the lack of appropriate medical treatment arising from the incident.

26. It was also clear from the submissions that the applicant had been seeking legal representation and assistance, and this had been unsuccessful.

27. In addition within submissions dated 30 July 2015 the applicant submitted that a delay of a year was to be considered in the context of the overall 13 and a half year delay between the incident / accident and the present.

The applicant’s evidence

28. The Tribunal decided that it was necessary to have the applicant give evidence about the delay (as indicated in paragraph 21 above).

29. The applicant was asked about the preparation of his application to the Tribunal. He advised that as soon as he had received the documents and money order back from the Registry (after the phone call on 12 August 2014) he went straight to the Post Office to redeem the order and draw a new money order in the correct amount. The applicant gave evidence that he was seeking an IPC review by the ADT in 2013 in respect of their statement of reasons (which he disagreed with). The applicant gave evidence that he was advised that he had submitted the wrong form. He was seeking a statement of reasons from the IPC. His opinion was that the IPC Report was not a great report and he took issue with the detail and conclusions.

30. The applicant gave evidence that he did in fact receive the IPC report on 17 May 2013 (the date of the report) and the date nominated by him on the initial application to the ADT. Evidence was given that there were delays as he needed time to compile the material in support of his application. The Tribunal questioned the applicant at some length in order to understand aspects of his evidence. The applicant was unable to recall exactly how long he took preparing his application, but clarified in his evidence that his concern was about the IPC decision and how they came to their decision process etc.

31. The applicant’s evidence on the record was that he moved from the earlier address to his current address about a year ago. (Mid 2014) His oral evidence was that he had arranged for his mail to be re-directed. He attempted to get legal advice; he went to his Local Member of Parliament and Law Access. In seeking legal assistance, he was only referred to lawyers who practised in family law or immigration law. The applicant also reiterated in his oral evidence that he was suffering from PTSD during the period in dispute.

The respondent’s case

32. The respondent opposed the granting of leave to proceed out of time. In detailed written submissions the respondent focused on matters relating to the merits of the cause of action / application to the Tribunal. The focus being that in the agency’s view after conducting reasonable searches and re-examining their records, the respondent was unable to locate any further documents that fell within the scope of the GIPA Act application, in that the documents were not held by the respondent.

33. As there had been more than one GIPA Act application for essentially the same material, and those applications had been directed at different entities (e.g.: the State Transit Authority – STA, and Transport for NSW), then it was apparent that the records sought by the applicant did not exist. At paragraph 38 of their written submissions the respondent submitted that:

TfNSW considers there to be no reasonable grounds to believe that any further information exists in respect of the Incident and conforms that in the event that such records did exist, they would not be held by TfNSW.

34. The submissions therefore argued that there was no utility in granting leave as there was no practical consequence of any administrative review of the application, when the factual issues were taken into account.

35. In oral submission the respondent relied on the case of ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271. Reliance was placed on paragraph 30 of that case.

30.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.

36. In Hawke v Chief Executive Officer, Workcover NSW [2008] NSWADT 4 at paragraph 22 the Tribunal found the following:

22 The Tribunal has, in several matters, considered the issue of the approach to be taken in considering whether to grant an extension of time to lodge an application. See for example Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61; Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212.

23 In Stapleton the Tribunal’s President referred to Commonwealth cases which have considered a similar provision to that in section 57: see for example Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42. The President identified the following factors as relevant to the exercise of the discretion to grant leave for an application to proceed out of time:

Explanation for Failing to File in Time

Prejudice

Timeliness and Delay in the Antecedent Administrative Process

Apparent Merits of the Case

Public Interest

24 In my view, those factors are also applicable in the circumstances of this matter.

25 Mr Hawke provided certificates in an effort to address the first of these factors but in my view he has failed to do so sufficiently. I accept that for much of the period in issue Mr Hawke suffered health problems and that at times these were debilitating. However, he continued to work despite experiencing those health problems. A period of some two and a half years passed before his application. In my view, the problems would not have prevented him from lodging an application far earlier than he did.

Consideration

37. The applicant is in a somewhat similar situation to that referred to in Hawke. There are a number of reasons provided for the delay, legal, health, relocation and missing postal communications, as well as the need to have time to prepare his application.

38. In the case of Turner v Commissioner of Police NSW Police Force [2014] NSWCATAP on appeal the Tribunal considered whether the applicant had provided a reasonable excuse for the delay. Whilst the governing legislation in that case used the term 'reasonable excuse' which is similar to this case, the Tribunal addresses the issue of the similarity between the terms 'reasonable excuse' and 'reasonable explanation'. The case refers to the correct approach when considering what the Tribunal is required to take into account. At paragraph 17 the following is provided:

"57 Late 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.

Because providing a "reasonable explanation" or a 'reasonable excuse" is all that the Tribunal has to form an opinion about, other considerations such as the merits of the application for review, any prejudice to either party or the public interest are not relevant. The Tribunal made an error of law by taking these other matters into account in reaching its decision.

The appropriate course is to grant leave to extend the appeal to the merits of the Tribunal's decision: ADT Act, s 113(2). The other option would have been to remit the matter to the Tribunal for further determination. It is quicker and more efficient to determine the issue myself. The only prejudice to Mr Turner of not remitting the matter is that he will be denied the opportunity to appeal to the Appeal Panel against a further decision of the Tribunal. While that is arguably a disadvantage to him, avoiding further delay outweighs that consideration. The question for me to determine is whether Mr Turner has provided a "reasonable excuse for the delay".

39. Turner provides authority that a consideration of the merits of the substantive application should be given little weight when determining whether a reasonable explanation or reasonable excuse for the delay has been provided.

40. The case of AT v Commissioner of Police, New South Wales Police [2011] NSWADT 214 considered in the context of a privacy application, whether the applicant had provided a reasonable explanation for the delay. At paragraph 34 the following is stated.

34. In my view it is unnecessary for me to make any finding in this regard as even on the basis that the section does apply, in my view the applicant has failed to provide a reasonable explanation for her more than 12 month delay (i.e. from May 2006 to June 2007) in lodging her application for external review. As I have indicated, the applicant's evidence is that during this period she forgot about the sexual assault and what had happened with the NSW Police. She said her state of mind also improved during this period. I am not at all critical of the applicant's evidence or the approach she took. The difficulty I have with her evidence is that it does not provide a reasonable explanation for her 12 month delay in lodging her application for external review. Forgetting about her right to seek external review cannot of itself be a reasonable explanation for the delay. Nor is there any evidence of her having any further psychotic events, further hospitalisation, or any other condition, which prevented her from seeking advice much earlier about her right to seek external review.

35. On the basis of my findings that the applicant failed to lodge her application for external review within a reasonable time and that I am not satisfied that the applicant has provided a reasonable explanation for her delay in lodging her application. On the basis of these findings, the appropriate order is that the application is dismissed.

41. Having considered all of the material provided to the Tribunal on the issue of delay, it remains unclear as to what decision the applicant is actually seeking to be reviewed. From the evidence given at the hearing and referred to at paragraphs 29 and 30 (above) it appears clear that the applicant is seeking a review of the IPC decision. This view is supported by the contents of the application form and the annexure. (See paragraph 8 above). I reiterate that this Tribunal does not have jurisdiction to consider a review by the Information Commissioner, only a review of a GIPA (first instance) application made to the IPC.

42. The matters relating to the medical evidence supporting his oral evidence relate to the substantive medical matters arising from the 2002 incident. They do not focus on the applicant’s functioning or any level of impairment in either 2013 or more specifically late 2014.

43. In addition, even granting the applicant some leeway for the postal issues and the belated return of his 2013 application in August 2014, the delay of some 18 weeks and two days between 12 August 2014 and 18 December 2014 is not, in my view adequately supported by the available evidence.

44. The main evidence in support of this aspect of the delay was that the applicant needed time to compile and complete his application. However the material that was eventually filed on 18 December 2014 consisted of the two page completed application form, a copy of the IPC Report of 17 May 2013, and the final folio being a copy of the Tribunal correspondence of 12 August 2014.

45. Whilst the applicant’s evidence at the hearing was that he attended to matters immediately and got on to compiling his application straight away, bearing in mind that the material eventually filed was straightforward and in the main constituted copies of existing documents, the evidence in my view does not support a reasonable excuse for the delay.

Conclusion

46. No formal application to extend time was lodged by the applicant. However based on the fact that the out of time issue was pressed by the respondent on the first occasion, and noting that the applicant has provided written submissions addressing the issue, I dispense with the requirement that the application to extend time must be in writing in accordance with section 101 (5) of the GIPA Act.

47. I also note that after I had reserved on the leave issue and decided the recusal application, further material was received by the Tribunal from the applicant. That material comprises correspondence dated 7 August 2015 and received 12 August 2015 and attaches other material. As the evidence and submissions had closed on the matter and in addition it is unclear as to whether the respondent has seen that material, I have not considered that material in reaching this decision.

48. Having considered all the evidence and material provided by the parties, and noting the reasons outlined above, it follows that the correct and preferable decision is to refuse to give leave to proceed out of time.

Orders

1. I dispense with the requirement for the application to extend time to be in writing.

2. The Tribunal declines to extend time for the applicant to make his application.

3. Leave to proceed out of time is refused.

**********

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: 15 October 2015