Howard v Department of Communities and Justice - Housing [2023] NSWCATAD 187

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Howard v Department of Communities and Justice - Housing [2023] NSWCATAD 187 Hearing dates: 7 June 2023 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: P French, Senior Member Decision: The Agency's decision that the applicant's 'application' dated 24 March 2023 is not a valid access application is affirmed. Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – administrative review of a reviewable decision – decision that an 'application' is not a valid application because it is not accompanied by an application fee – distinction between application fee and processing charges Legislation Cited: Administrative Decisions Review Act 1997 (NSW) – ss 9, 55 Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 Texts Cited: Nil Category: Principal judgment Parties: Morgan Howard (Applicant) Department of Communities and Justice – Housing (Respondent) Representation: Solicitors: Applicant (Self-represented) Z Dunford (Respondent) File Number(s): 2023/00120084 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This is an application by Morgan Howard (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for an administrative review of a decision of the agency made on 20 March 2023 that an application she made to the agency on 13 March 2023 was not a valid access application. This application was made to the Tribunal on 23 March 2023 (the application). 2. For the reasons set out following, I have decided to affirm the agency's decision as the correct and preferrable decision. It is mandatory that an access application is accompanied by an application fee. Unless there is a prior waiver of the application fee before an access application is made, an 'application' cannot constitute an access application without payment of the application fee. Such an application therefore cannot attract the operation of the GIPA Act. The GIPA Act legislative scheme draws a fundamental distinction between 'an application fee' and 'processing charges'. The potential for the application fee to later be applied to processing charges in limited circumstances does not convert it to a payment in respect of processing charges at the time it is required to be paid.