Turner v Commissioner of Police, NSW Police Force

[2013] NSWADT 157

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Turner v Commissioner of Police, NSW Police Force [2013] NSWADT 157

Hearing dates:

7 May 2013

Decision date:

07 May 2013

Jurisdiction:

General Division

Before:

S Montgomery, Judicial Member

Decision:

1. The time for filing of the application is extended to 14 November 2012.

2. The matter is listed for a further planning meeting at 9.30am on 16 July 2013

Catchwords:

Out of time - leave for an extension of the time for filing of the application - explanation for delay

Legislation Cited:

Administrative Decisions Tribunal Act 1997

Cases Cited:

Re Ljubo Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244
Saleam v Registrar, Registry of Births, Deaths & Marriages [2011] NSWADT 254
Turner v Director of Public Prosecutions (GD) [2013] NSWADTAP 27

Category:

Interlocutory applications

Parties:

Donovan Turner (Applicant)
Commissioner of Police, NSW Police Force
(Respondent)

Representation:

D Turner (Applicant in person)
Sparke Helmore Lawyers (Respondent)

File Number(s):

123328

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant has applied to the Tribunal for review of a determination by the Respondent in relation to an application ("the access application") for access to information held by the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The access application sought information by reference to an earlier application that he had made. By reference to the Applicant's request dated 22 July 2011 the Respondent interpreted the access application as a request for:

1.All correspondence to the Information Access & Subpoena Unit from Mr Turner

2.All correspondence to Mr Turner from the Information Access & Subpoena Unit

3.Brief of Evidence (provided in part in lAU 100725)

4.Transcript of telephone calls to Crime Stoppers

5. Certificate of Disclosure:

1. The Respondent identified 230 pages of information as falling within the scope of the access application. On 17 April 2012 the Respondent determined to grant access to the majority of that information.

1. By an application dated 1 September 2012 the Applicant applied to the Tribunal for review of the Respondent's determination. The Tribunal accepted the application as filed on 14 November 2012. The delay between 1 September 2012 and 14 November 2012 is not explained. The Applicant notified the Respondent of his application for review on 7 December 2012.

1. Section 100 of the GIPA Act provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for a review of the decision.

1. Section 101 of the GIPA Act provides that an application to the Tribunal for review must be made within 40 working days after a notice of determination is given to the applicant.

1. Clearly, the application was lodged well outside the time limit prescribed by section 101 of the GIPA Act.

1. If an application for review is out of time, the Tribunal may extend the time for the making of such an application if the Tribunal is of the opinion that the person has provided a reasonable excuse or explanation for the delay in making an application: section 101(4) of the GIPA Act. An application to extend the time for the making of an application for review must be in writing unless the Tribunal dispenses with the requirement: section 101(5) of the GIPA Act.

1. Section 57 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") is in similar terms to section 101(4) of the GIPA Act. It provides that the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making of the application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

1. The Respondent has opposed any extension of the time for the making of the application to the Tribunal and seeks to have the matter dismissed. Ms Rose filed detailed submissions in support of that application.

1. I dealt with the out-of-time issue on 7 May 2013 and determined to extend the time for the making of the application. The Respondent has sought written reasons in relation to that determination and these reasons are given in response to that request.

1. Neither section 101(4) of the GIPA Act nor section 57(1) of the ADT Act set out any criteria by reference to which the Tribunal's discretion to extend time for an application for review is to be exercised. The particular factors to be taken into account by the Tribunal will depend on the circumstances of each case.

1. The Respondent submits that the factors to be considered in determining whether the Tribunal should extend the time for the making of an application include:

(a)the reasonableness of the Applicant's explanation for failing to file the application in time;

(b)the prejudice to the Applicant or the Respondent should the Tribunal refuse the late application;

(c)the timeliness and delay in the antecedent administrative process;

(d)the length of delay in bringing the late application;

(e)the apparent merits of the case; and

(f)the public interest in accepting the late application.

1. 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. The factors identified by the Respondent have been found to be relevant considerations. See for example Saleam v Registrar, Registry of Births, Deaths & Marriages [2011] NSWADT 254 and cases that I referred to in that decision.

Explanation for Failing to File in Time

1. The Respondent submits that there is no reason why the Applicant could not have lodged his application for review in these proceedings and then sought an adjournment.

1. The Applicant did not formally seek leave in writing for an extension of time. However, he provided an explanation for the delay in his application to the Tribunal.

1. If it is necessary that I do so, I dispenses with the requirement that that application to extend the time for the making of an application be in writing.

1. The Tribunal's application form provides for an explanation for delay in the following terms:

If this application is lodged outside the prescribed time limit you must provide a reasonable explanation for the delay and be granted leave to proceed with the application. Please give your explanation:

1. In the space provided for under this part of the application form the Applicant wrote:

The applicant had needed necessary time period to argue all evidence by way of submissions. The applicant did not have full access to his legals while held in prison due to continuous transfer/relocation. The applicant experienced assaults, intimidation by inmates causing for protection location. The applicant had additional ADT Corrective Services and ODPP matters.

1. The Tribunal's President recently dealt with a similar application in Turner v Director of Public Prosecutions (GD) [2013] NSWADTAP 27. At paragraphs [12] - [18] of his reasons for refusing the application for an extension of time he stated:

12I refused to grant leave for two reasons.

13One, the application was many months out of time. This was not a case of a delay of a few days where some tolerance might be given. In explanation of his delay, Mr Turner referred to the conditions of his imprisonment, and asserted that he had been denied access to his 'legals'. Initially I misunderstood this to be a reference to being denied access to legal aid. But Mr Rees and Mr Turner corrected me, and explained that the claim was that he had been denied access by prison authorities to legal materials enabling him to prepare his appeal.

14Mr Turner also asked me whether I had before me a document he had filed with the Registry relating to his claim for access. I informed him that no document appeared on the file before me. I have since been advised by the Registry that such a document had been filed but placed on another file relating to different proceedings brought by Mr Turner. The document consists of 588 handwritten pages.

15I have not considered that document in providing these written reasons.

16I have no evidence in relation to Mr Turner's claim that he was denied access to legal materials to such an extent that the first reasonable opportunity he had to file his appeal was on or about 17 April 2013.

17In these circumstances I do not accept the explanation.

18If I am wrong in that regard, I rely on a second reason for denying leave. There is, in my opinion, no utility in the appeal.

1. The 588 handwritten pages referred to at paragraph [14] of the President's reasons have been filed in this matter. In that material the Applicant has expanded on the reasons that he gave for the late application. In this regard the circumstances of this matter differ from those before the President.

1. At the hearing of the application on 7 May 2013 the Applicant also gave evidence of actions by officers of the Corrective Services department that have impacted on his ability to prosecute this matter.

1. His evidence was that his legal papers have been confiscated; he has been prevented from having access to library facilities and has not been given writing material. He also asserted that Corrective Services have tampered with his mail. He has been moved between correctional facilities on a regular basis and on each occasion he has had his access to these materials further restricted.

1. The Respondent did not challenge this evidence. Nor was any evidence presented to contradict it.

1. I note that the factors outlined by the Applicant did not prevent him from compiling an enormous amount of material in support of his application to the Tribunal. However, I also note that much of that material is duplication of material presented in other matters and is not specific to this matter. Nevertheless, in the circumstances, I accept that conditions under which the Applicant has been held have impacted on his ability to prepare his application and contributed to his delay in filing his application in the Tribunal.

Prejudice

1. The Respondent has asserted that there would be actual prejudice to it if the application were allowed in that revisiting applications under the GIPA Act, where the applications for review are made significantly out of time, would involve an unnecessary further diversion of its resources.

1. The Respondent submits that it should be able to rely on the finality of a decision once the time for the filing of an application for review has expired. Such finality is important in the context of the sheer volume of access applications and applications for internal review received by the Respondent.

1. Furthermore, the Respondent submits that the Tribunal should be wary of setting a precedent in this regard lest an agency like NSW Police, with public safety and security functions, is swamped with a potentially endless set of applications for extensions of time with spurious reasons.

1. The apparent prejudice to the Applicant is that if an extension of time is not allowed he would be unable to have the Respondent's determination externally reviewed.

1. I accept that some prejudice would flow to the Respondent if an extension of time were allowed. However, the prejudice is not significantly greater than in any other matter where an external review is sought. Nevertheless, mere absence of prejudice is not enough to justify the grant of an extension: Re Ljubo Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244 per O'Loughlin J at paragraph [13].

1. In the circumstances of this matter, the potential prejudice to the Applicant outweighs the potential prejudice to the Respondent. In contrast to the potential prejudice to the Respondent, the refusal to allow the extension would extinguish the Applicant's opportunity to have the determination reviewed. In light of my acceptance that Corrective Services officers contributed to the delay in filing the application I consider that such prejudice would be unreasonable.

Timeliness and Delay in the Antecedent Administrative Process

1. I have no evidence on which I can for a view in regard to the timeliness of the antecedent administrative process.

Apparent Merits of the Case

1. The Respondent notes that the Applicant has filed lengthy submissions in support of his Application. It further submits that those submissions are convoluted and excessive and do not disclose any substantial ground of review regarding the Respondent's determination. The Respondent therefore submits that the merits of the application are weak and that this is a factor that should be taken into account in determining whether or not an extension of time should be granted.

1. I agree that the Applicant's submissions are convoluted and excessive. However, in my view the Applicant material has raised some grounds for review. Put at its highest, it appears that the Applicant has an arguable case in regard to a number of aspects of the determination.

1. He has asserted that the Respondent has withheld information that falls within the scope of his access application and he has referred to specific documents that should be held by the Respondent but which have not been identified. This raises an issue of the sufficiency of the search undertaken.

1. The Applicant has also challenged the decision in regard to withholding those parts of some documents that have not been released. He has presented argument as to why the documents should be released in full.

1. I note that access to one of the documents identified was refused pursuant to section 60(1)(b) of the GIPA Act however no further reasons were given in relation to that part of the determination. Section 60(1)(b) provides that an agency may refuse to deal with an access application where the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application. In the absence of any reasons in regard to that part of the determination it is unclear how the Respondent determined that 'there are no reasonable grounds for believing that the agency would make a different decision on the application'. For example, it is not clear why the further information provided by the Applicant might not have lead to a different decision.

1. The Applicant has also asserted that some photocopies of photographs that have been released are of such poor quality that the contents are unrecognisable. If the Respondent has agreed to release photocopies of photographs it is arguable that the photocopies should be of a quality that makes the release meaningful.

1. In my view, it is not correct to say that there are no apparent merits to the Applicant's case. In this regard the circumstances of this matter differ from those before the President. I do not consider that there is no utility in the present application.

Public Interest

1. There is a public interest in procedural rules being followed. There is also a public interest in saving State agencies from unnecessary burdens.

1. It seems that the information that the Applicant has sought is to assist him in legal proceedings elsewhere. In circumstances where conduct of others has affected his ability to prepare his application, it is in the public interest that the Applicant has the opportunity to have his assertions considered.

1. In my view, the public interest in allowing the extension of time outweighs those against it.

Finding

1. In my view, the Applicant has provided a reasonable explanation for the delay in making the application. That being the case, the time for filing of the application should be extended to 14 November 2012 - the date on which it was filed in the Tribunal

Orders

1. The time for filing of the application is extended to 14 November 2012.

2. The matter is listed for a further planning meeting at 9.30am on 16 July 2013

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Decision last updated: 09 July 2013