Department of Education and Training v GA, GB, GC, GD & GE (No.2) (GD) [2004] NSWADTAP 36

Appeal Panel - Internal

CITATION: Department of Education and Training v GA, GB, GC, GD & GE (No.2) (GD) [2004] NSWADTAP 36 APPELLANT PARTIES: Department of Education and Training RESPONDENTS GA, GB, GC, GD & GE FILE NUMBER: 049024 HEARING DATES: On the papers SUBMISSIONS CLOSED: 07/19/2004 DATE OF DECISION: 09/02/2004

Oral decision made 11 June 2003 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Needham J - Judicial Member; Mapperson K - Non Judicial Member CATCHWORDS: leave to appeal out of time MATTER FOR DECISION: Preliminary matter FILE NUMBER UNDER APPEAL: 023250 DATE OF DECISION UNDER APPEAL: 06/11/2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 GA & Ors v Department of Education Training and NSW Police [2004] NSWADT 2 CASES CITED: Department of Education and Training v GA, GB, GC, GD & GE (GD) [2004] NSWADTAP 34 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 APPELLANT REPRESENTATION: A Johnson RESPONDENT In person ORDERS: Appellants allowed until 21 June 2004 to file an appeal against oral decision of the Tribunal made on 11 June 2003.

REASONS FOR DECISION Introduction 1 On 21 June 2004, the Department of Education and Training (the appellant) lodged an appeal against a decision of the Tribunal handed down on 11 June 2003. Section 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act) requires an appeal to be lodged within 28 days of the Tribunal furnishing the party with written reasons or within such further time as the Appeal Panel may allow. In Department of Education and Training v GA, GB, GC, GD & GE (GD) [2004] NSWADTAP 34 (the first decision) the Appeal Panel decided to allow the Appellants until 21 June 2004 to file the appeal. 2 The Appeal Panel made the first decision without taking into account written submissions provided by GA. The Appeal Panel did not take those submissions into account because they were mistakenly filed on the wrong file. The Appeal Panel decided the out of time issue "on the papers" under s 76 of ADT Act so GA's submissions were not brought to our attention until after the first decision was handed down. After explaining to the appellant's legal representative that GA's submissions had not been taken into account, they agreed to the Appeal Panel reconsidering their application for the appeal to be accepted out of time. This decision replaces the Appeal Panel's first decision. History of the proceedings 3 The decision under appeal was given orally by the Tribunal on 11 June 2003. That decision was that the Tribunal had jurisdiction to review the appellant's conduct in relation to the collection of certain personal information under the Privacy and Personal Information Protection Act 1998 (PPIP Act). The appellant, who was the respondent before the Tribunal, had submitted to the Tribunal that since the issue of collection was not raised in GA's review application it could not be dealt with by the Tribunal. 4 The Tribunal handed down its written decision on 12 January 2004 (GA & Ors v Department of Education Training and NSW Police [2004] NSWADT 2). At [23] of that decision the Tribunal gave a ruling on the collection issue contrary to its oral decision. In its written reasons the Tribunal decided that it did not have jurisdiction in relation to the collection of personal information by the appellant. GA appealed against that finding. In the course of considering that appeal in (GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18) it came to the Appeal Panel's attention that the Tribunal had made a contrary decision on the collection issue in its oral reasons. After examining the history of the matter, the Appeal Panel concluded at [21] that: This analysis leads us to conclude that the Tribunal's decision in relation to jurisdiction in its written reasons at [23] is invalid. The operative decision is the Tribunal's oral decision that it has jurisdiction to review the conduct of the first respondent in relation to collection of personal information. None of the parties has appealed against that decision and the Appeal Panel makes no orders in relation to it. It is nevertheless open to the first respondent to lodge a late Notice of Appeal against the Tribunal's oral decision on jurisdiction. The Appeal Panel would then decide, pursuant to s 113(3) of the ADT Act, whether to allow further time than the usual 28 days for the appeal to be made. Legal principles 5 Under s 113(2), (3) an appeal must be made: (a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or (b) within such further time as the Appeal Panel may allow. 6 The factors relevant to a consideration of whether to allow further time were set out by the Appeal Panel in Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9 at [5] to [9]: The section invokes a broad discretion in the Panel to extend the time for the lodgement of the appeal. In that respect, it is on all fours with s 29(7) of the Administrative Appeals Tribunal Act 1975 (Clth) (the AAT Act), albeit that provision refers to the time within which application may be made to the Commonwealth Administrative Appeals Tribunal (the AAT) for a review of an administrative decision. Section 29(7) of the AAT Act has been the subject of a number of AAT decisions, which are helpful in the present context. In Meschino and Secretary, Department of Family and Community Services [2001] AATA 342 the AAT referred to Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77 in reliance upon a number of factors relevant to the exercise of the discretion, which may be re-stated as follows:- - the reason for the failure to lodge the appeal. - the length of the delay in lodging the appeal. - the diligence shown by the Appellant in lodging the appeal after it came to his notice that there were circumstances justifying an appeal. - the nature of the decision below and the consequences of the decision upon the Appellant's rights. - the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and of the Appellant's entitlement to appeal. - the extent of the Appellant's knowledge of the relevant statutory provisions. - the possible prejudice to the Respondent to the appeal. The AAT also referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 with approval. The principles to be applied in the exercise of the discretion which were summarised by Wilcox J in Hunter Valley Developments were also applied in Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513. Those principles relevantly are:- - Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so. - It is relevant whether the Appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested. - Any prejudice to the Respondent that would be caused by granting an extension of time is relevant. - The merits of the appeal are relevant. - Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant. To the last-mentioned principle may be added general considerations of fairness and equity: Hunter Valley Developments, Maric v Comcare (1993) 40 FCR 244 at 249. Further to the provision of an explanation for the delay in lodging the appeal, an acceptable explanation will generally be expected in support of an application for extension of time, and a failure to provide such an explanation is also a relevant factor in the exercise of the discretion to extend the time: Comcare v A'Hearn (1993) 45 FCR 441 at 444. Reason for the delay 7 The appellant submitted that although the Tribunal decided in its oral reasons that it had jurisdiction to consider the issues of collection, when it handed down its written reasons, there was no adverse finding against the appellant. The appellant said that it chose not to appeal the jurisdictional decision at the time because it would have delayed the hearing of the substantive matter and the Tribunal's substantive finding on the collection issue may not have been against it. According to the appellant, if the substantive finding was against it, then consideration would have been given to appealing both the jurisdictional question and the substantive finding. Consequently, according to the appellant, the first time it was in a position where it was prejudiced by the decision of 11 June 2003 and where it was appropriate to appeal, was on delivery of the decision of the Appeal Panel in May 2004. 8 GA submitted that the appellant deliberately chose not to appeal against the oral decision of 11 June 2003 which was a final decision. The appellants have not suggested otherwise. In fact, their submissions state that they "chose not to appeal the jurisdictional issue". It is the reason that the appellants chose not to appeal that is significant. Rather than delay the proceedings by appealing against an interlocutory decision, they decided to wait for the Tribunal's final determination on the substantive question. There was no need to appeal because the decision was in their favour. Length of the delay and diligence 9 In this case, the delay is lengthy. The appellant appealed the decision of 11 June 2003 on 21 June 2004. However, when the Appeal Panel handed down its decision on 25 May 2004 re-instating the Tribunal's oral decision, and the appellant became aware that its interests were adversely affected, they lodged an appeal within 28 days. 10 Despite GA's submissions to the contrary, the appellant did not suggest that it did not understand the final decision on the collection issue, the implications of that decision or that its appeal rights would expire 28 days after 11 June 2003. There was no dispute that the appellants knew of their appeal rights and of the time limits for lodging an appeal when the Tribunal handed down its oral reasons. Possible prejudice to the respondent to the appeal. 11 The possible prejudice to GA if time is extended is that a decision in his favour in relation to the Tribunal's jurisdiction to consider the collection issue may be set aside. If the Appeal Panel does set aside the Tribunal's decision, GA and his co-applicants would not be entitled to any remedy as provided by s 55(2) of the PPIP Act, for the appellant's alleged breach of the Act in respect to the collection issue. While this constitutes a possible prejudice to GA and his co-appellants, it is not a matter which affects his livelihood or which has major financial implications. Merits of the appeal 12 If the appeal lacks merit, then that fact should be taken into account in determining whether to extend the time for the lodgement of an appeal. In this case, having perused the submissions from each party, it cannot be said that the appeal lacks merit. That is not to say that the appeal will be successful, merely that the appeal is not so lacking in merit that extending the time for its lodgement would be futile. Conclusion 13 Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted only if it is proper to do so. The factors against extending the time are the length of time since the original decision, the fact that the appellants knew of their right to appeal at that time and the relatively minor prejudice to GA and others if the time is extended. The factors in favour of extending the time are that the reason for not appealing within time was logical and sound and the appellant appealed promptly once it became apparent that their interests were adversely affected. Balancing these factors we allow the appellants until 21 June 2004 to file an appeal against oral decision of the Tribunal made on 11 June 2003.