Saleam v Registrar, Registry of Births, Deaths & Marriages

[2011] NSWADT 254

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Saleam v Registrar, Registry of Births, Deaths & Marriages [2011] NSWADT 254

Hearing dates:

On the papers

Decision date:

08 November 2011

Jurisdiction:

General Division

Before:

S Montgomery, Judicial Member

Decision:

1. The application for an extension of the time for bringing of the application to the Tribunal is refused.

2. The application is dismissed

Catchwords:

Out of time - leave for an extension of the time - refused

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Births Deaths and Marriages Registration Act 1995

Cases Cited:

Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212
Hawke v Chief Executive Officer, Workcover NSW [2008] NSWADT 4
In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61
Re Ljubo Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244
Saleam v Registrar of Births, Deaths & Marriages [2003] NSWADT 79
Saleam v Registry of Births Deaths and Marriages 30 November 2010, Unreported

Category:

Interlocutory applications

Parties:

James Saleam (Applicant)
Registrar, Registry of Births, Deaths & Marriages (Respondent)

Representation:

J Saleam (Applicant)
Crown Solicitor (Respondent)

File Number(s):

113176

REasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The applicant has applied to the Tribunal for review of a decision of the Registrar, Registry of Births, Deaths & Marriages Review ("the Registrar") in relation to a request for a copy of a marriage certificate of a named individual ("Ms A").

1. It is common ground that the application to the Tribunal was not brought within the time allowed by the applicable legislation. A preliminary issue has arisen in regard to whether the time for bringing of the application to the Tribunal should be extended to permit the application.

Background

1. The request to the Registrar was made in December 2010 pursuant to section 47 of the Births Deaths and Marriages Registration Act 1995 ("the BDMR Act").

1. This request was declined by way of letter dated 20 December 2010. The applicant applied for a review of that decision in May 2011. By way of a letter dated 13 May 2011 the Assistant Registrar, Client Services Division advised the applicant:

"I refer to your fax of 3 May 2011 requesting a review of the decision to deny your application for access to the marriage certificate of [Ms A].

After reviewing your request and the decision made on 20 December 2011, I advise that your application to be issued with a marriage certificate of [Ms A] is denied.

The following factors were considered in making this decision:

the relationship (if any) between yourself and the person to whom the information relates, and

the age of the entry, and

the contents of the entry, and

other relevant factors"

1. The applicant filed his application for review by the Tribunal on 7 July 2011.

Applicable Legislation

1. Section 56 of the BDMR Act provides:

"A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Administrative Decisions Tribunal for a review of the decision."

1. Section 56 of the BDMR Act does not specify a time in which an application to the Tribunal is to be brought.

1. Section 55 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides:

55 When can an application for a review be made?

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

...

(d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, by the end of the default application period for the decision.

...

(2) The default application period for a reviewable decision is:

(a) in the case where the applicant has duly applied for an internal review of the reviewable decision-the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9), or

(b) in any other case-the period of 28 days after:

(i) if the applicant has requested reasons under section 49 for the reviewable decision-the day on which the applicant was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or

(ii) if the applicant has not requested reasons under section 49-the day on which the applicant was notified of the making of the reviewable decision.

...

1. Section 53 (9) of the ADT Act provides:

(9) When an internal review is finalised

An internal review is taken to be finalised if:

(a) the applicant is notified of the outcome of the review under subsection (6), or

(b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

1. It is conceded that the notice provided to the applicant by letter dated 13 May 2011, which is referred to above, did not comply with section 53 (6) of the ADT Act. Section 53 (6) provides:

"(6) Notice of result of review and appeal rights

Within 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."

1. Accordingly, pursuant to section 53(9)(b) of the ADT Act, the internal review is taken to have been finalised 21 days after the applicant lodged the application for review. The application for review was lodged on 3 May 2011 and therefore, the internal review is taken to have been finalised on 24 May 2011.

1. Pursuant to section 55(2)(a) of the ADT Act, the default application period for bringing the application to the Tribunal will have expired on 21 June 2011.

1. The applicant filed his application for review on 7 July 2011.

Power of the Tribunal to consider a late application

1. Section 57 of the ADT Act provides:

"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.

(1A) An application by an interested person under subsection (1) must be in writing unless the Tribunal dispenses with the requirement.

(2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired.

(3) In this section, late application means an application not made within the period or time referred to in section 55 (1) (d)."

1. It is my understanding that the parties have agreed that this issue is to be determined on the basis of written submissions without the need for hearing.

The applicant's submissions

1. The applicant has provided a written request to the Tribunal, seeking an order to extend the time for the making of the application. He submitted:

"1. This action has been filed out of time and I must now show why leave to initiate the proceedings should be granted.

2. When I filed in this matter, I was of the view that I was allowed some 60 days from May 13 2011 - the time when an internal review of the primary decision was made (or just after I received the notice). I did not know that the time allowed was only 28 days. I cannot explain why I thought it was 60 days. It may be that I had read something previously to this effect from a source and if such that I had formed an erroneous view.

3. My action in the Tribunal is only a few weeks out of time and it does not constitute any real abuse of process if leave is granted.

4. If leave is not granted, I say I will start again and not make the same mistake. That causes time to be lost and further expense on all sides to be incurred.

5. I apologise that I have made this mistake but I cannot see why the respondent would seek to advance the argument that leave should not be granted. There is certainly a public interest in all procedural rules being followed, but there is also a public interest in saving State agencies from unnecessary burdens (financial and otherwise), particularly if the error is unintentional and arose in a way that was not unreasonable.

6. The interests of justice would suggest that leave be granted and the case pursued with expedition."

The respondent's submissions

1. Mr McDonnell provided written submissions on behalf of the respondent. He submitted that the factors to be considered in determining whether the Tribunal should extend the time for the making of an application include 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. He referred to discussions of those issues in the decisions in Hawke v Chief Executive Officer, Workcover NSW [2008] NSWADT 4 at [23] and Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212.

1. In Hawke v Chief Executive Officer, Workcover NSW I considered earlier decisions that had dealt with the issue and stated:

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

1. I formed the view that the Stapleton factors were relevant to the application in Hawke. In my view, those factors are also applicable in the circumstances of this matter.

1. Mr McDonnell has submitted that the time for bringing the application to the Tribunal should not be extended.

Explanation for Failing to File in Time

1. The respondent submits that the applicant has not provided a reasonable explanation for the late filing of his application. Mr McDonnell submitted that the applicant has experience in the Tribunal and a history of filing late applications or appeals.

1. In support of that submission Mr McDonnell outlined a history of applications by the applicant to the Tribunal. He submits that the applicant's history in the Tribunal suggests that he is very familiar with the procedures of the Tribunal. Furthermore, he asserts that that in two relatively recent proceedings the applicant filed late applications or appeals and the out of time issue was raised in those matters. He argues that this suggests that the applicant knew that he only had 28 days to file an application.

1. Mr McDonnell further submitted that the Tribunal has previously considered that an oversight or ignorance of the limitation period generally will not constitute a "reasonable explanation". In Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61, leave to allow a notice of appeal filed 28 days out of time was refused. At paragraph [27] the Tribunal's President stated:

"27 A more generous approach to the acceptance of an explanation for late filing may be appropriate in the case of 'one-time' participants in the processes of the Tribunal, especially if they are unrepresented or have special disabilities. Even in the case of a sophisticated litigant (such as a government department) it may be unduly harsh to visit upon it an omission on the part of its legal adviser".

1. His Honour distinguished the case of Stapleton. At paragraph [25] he stated:

"25 In the Stapleton case, I did grant leave despite the oversight of the agency's legal officers. That case involved the first filing in a new statutory jurisdiction. The oversight was one committed by officers unfamiliar with the new jurisdiction. Ultimately in that case, the factor that tipped the balance in favour of the grant of leave was the public interest in allowing the disciplinary action to proceed in circumstances where there had been admissions by the respondent which gave rise to a serious question as to whether professional misconduct had occurred."

1. The respondent submits that the applicant in this matter is experienced in the practice and procedure and of the Tribunal and, therefore, does not have a reasonable explanation for filing out of time. The failure of the applicant to provide a reasonable explanation for the delay in filing his application should be given considerable weight in determining whether to allow the applicant to file the application out of time.

Merits

1. The respondent submits that the applicant's case is without merit. Mr McDonnell submitted that the applicant seeks to re-litigate an issue which has previously been determined adversely against him by the Tribunal. He further submitted that the applicant has not identified any relevant new considerations that may persuade the Tribunal to make a different decision.

1. The respondent submits that this application is substantially the same as that before the Tribunal's Deputy President Magistrate Hennessy in Saleam v Registrar of Births, Deaths & Marriages [2003] NSWADT 79 ("the 2003 case"). It contends that in both the present case and the 2003 case, the Registrar refused the applicant's application to search the register for an entry concerning the marriage of a woman. The applicant claimed that the woman was a friend of the Crown's key witness. He considered that the woman could provide evidence that would go to credit. The applicant could not contact the friend as she had remarried and the applicant did not know her married name. The respondent submits that the applicant incorrectly claims that his present application is a new application because, inter alia, he previously did not seek information regarding the woman's husband's full name. However, the respondent contends that the applicant also sought the husband's name in his previous application. Therefore, the application is substantively the same.

1. The applicant sought leave to appeal the decision in the 2003 case. The appeal was brought almost seven and a half years out of time. Deputy President Patten considered whether a bona fide and arguable question of law could be identified which would warrant granting leave. He observed:

"The applicant sought review of that decision and it was that review which came before Magistrate Hennessy and was the subject of her decision on 26 May 2003. Her Honour refused the application giving lengthy reasons. As I have indicated it is from that decision that the applicant seeks leave in November 2010 to appeal. He asserted in the Notice of Appeal that the magistrate erred in law identifying the question of law in these terms: "An incorrect application of the law pertaining to the Criminal Appeal and Review Act to deciding access to a document." That statement of itself does not identify any question of law which I am able to decide. However, when pressed about the matter today Mr Saleam asserted as I understand it that Magistrate Hennessy misquoted the law in paragraphs 43 and 44 of her reasons for decision. Those paragraphs read as follows:

43.Mr Saleam's reason for requesting the information is a genuine one. He believes that Ms S's evidence may assist him to prove that he is innocent of offences for which he has been convicted. He has provided some evidence to support that belief. The respondent submitted that this reason is not adequate because all the Supreme Court need to be satisfied of under s 474D is that it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. The respondent says that a doubt or question would not have to be based on legally admissible evidence but could arise as a result of Mr Saleam's hearsay statements of his conversations with Ms S in 1988.

44.Proceedings under s 474D and 474E of the Crimes Act are not judicial proceedings. It must appear that there is a doubt or question as to the convicted person's guilt. As to any mitigating circumstances in the case or as to any part of the evidence in the case there is no requirement for legally admissible evidence to be the basis for an application. The applicant has no onus of proof and all the Supreme Court must do is consider the application and take the action it considers appropriate.

In my opinion those two paragraphs accurately set out the effect of the section of the Crimes Act then relevant to the inquiry as which the applicant sought and correctly state the law applicable to applications for such an inquiry. In my view they do not evidence an error of law which the Appeal Panel could be asked to correct.

1. Mr McDonnell submitted that the Tribunal has previously considered and dismissed the same application and therefore the applicant's present application lacks merit. In particular, the Tribunal has already expressly rejected the claim that the applicant relies upon in the current application regarding the Tribunal's purported error in its interpretation of sections 474D and 474E of the Crimes Act .

1. Mr McDonnell further submitted that it would seem unlikely that any of the information the applicant hopes to obtain would assist him in obtaining an inquiry into his convictions. He argues that the applicant's actual reason for wanting the information, which may also be characterised as the public interest in the administration of justice, is no more or less persuasive than it was before Magistrate Hennessy in the 2003 case. Therefore, he submits that the applicant's case lacks merit. The matter has previously been determined by the Tribunal and there are no new circumstances which suggest that the Tribunal should find in favour of the applicant.

Prejudice

1. The respondent does not seek to argue that it will suffer prejudice if the application is allowed. However, the respondent notes that "mere absence of prejudice is not enough to justify the grant of an extension": In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at paragraph [21] (per Wilcox J); Re Ljubo Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244 at [13]. Mr McDonnell further submitted that, given the history of the matter, including a previous application to the Tribunal for review of an application in the same terms as the present application, the applicant is unlikely to suffer prejudice in not having the opportunity to have the application considered by the Tribunal.

The length of the delay in bringing the application

1. Mr McDonnell submitted that, seen in the context of the history of the matter, as this application is made in substantially the same terms as the 2003 case this application has been brought eight years late. The Tribunal refused the applicant leave to file an appeal almost seven and half years out of time of the decision in the 2003 case. The respondent submits that this application constitutes an attempt to circumvent this decision.

Public interest

1. The respondent concedes that the applicant has the right under the BDMR Act to make another application to the Registrar, however it submits that this should not be considered to be a persuasive public interest consideration in determining whether to allow an application filed out of time. If is submitted that if the Tribunal were to find such a consideration to be persuasive, the 28 day limitation period would be rendered otiose. Any applicant with a right to make a further application to the original administrative decision-maker would effectively be entitled to ignore the limitation period.

1. Furthermore, the respondent submits that there is a public interest in not expending public funds which is lacking in merit and which seeks to re-litigate matters previously considered by the Tribunal.

1. In any event, the respondent submits that in the context of the applicant's history before the Tribunal, a delay of approximately two to three weeks in bringing the application for review is still a significant delay. Accordingly, the Tribunal should decline to exercise its jurisdiction under section 57 of the ADT Act.

Discussion

1. I agree with the respondent's submission in regard to the approach to be taken to determine this issue. In my view the Stapleton factors are relevant to the application.

1. I note that the applicant's explanation for the delay in lodging his application was his mistaken understanding that he had a period of 60 days from 13 May 2011 to lodge it. It is my view that the applicant should have been aware of the time period because of his previous dealing with the Tribunal. In his application for leave to appeal the decision in the 2003 case Deputy President Patten alerted him to the relevant time frames and refused his application for an extension of time.

1. I also note the applicant's assertion that if leave is not granted, he will start again and not make the same mistake and that this would merely cause time to be lost and further expense on all sides to be incurred. I agree with the respondent that this should not be considered to be a persuasive public interest consideration in determining whether to allow an application filed out of time.

1. For the reasons argued by the respondent, it is my view that the applicant has not made out a case for extending the time for lodging the application and accordingly leave for him to do so is refused.

Orders

1. The application for an extension of the time for bringing of the application to the Tribunal is refused.

2. The application is dismissed

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Decision last updated: 08 November 2011