NZ v Commissioner of Police, NSW Police (GD) [2007] NSWADTAP 30

Appeal Panel - Internal

CITATION: NZ v Commissioner of Police, NSW Police (GD) [2007] NSWADTAP 30

APPELLANT PARTIES: NZ RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 079021

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 5 June 2007

DATE OF DECISION: 20 June 2007

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: leave to appeal out of time

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 063279

DATE OF DECISION UNDER APPEAL: 11/24/2006

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998

CASES CITED: Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9

APPELLANT In person REPRESENTATION: RESPONDENT W Pisani, solicitor

ORDERS: Leavel to appeal out of time refused

REASONS FOR DECISION Introduction 1 On 3 May 2007, NZ (the appellant) lodged an appeal against a decision of the Tribunal handed down on 24 November 2006. 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. The preliminary issue is whether or not to allow NZ further time to appeal. The Commissioner opposes leave being granted. 2 NZ suffers from anxiety based social phobia and agoraphobia. She rarely leaves her home and is unable to attend hearings in person. I agreed to her request to have this appeal determined 'on the papers' pursuant to s 76 of the ADT Act. History of the proceedings 3 On 19 February 2003 NZ applied to NSW Police for documents under the Freedom of Information Act 1989 (FOI Act). NZ sought access to documents relating to a theft at the Maroubra Junction Nursing Home between January 1996 and September 1997, and documents specifically relating to "the surname of a man known as 'Adam'." In response to this application, a delegate of the Commissioner, Mr M Daikan, made a determination dated 26 March 2003, releasing in full 9 documents provided by the Eastern Beaches Local Area Command, but otherwise finding "no record containing the surname of the person "Adam" and "no record concerning the 1996 incident." NZ applied for an internal review of this decision on 7 January 2006. In the letter applying for an internal review of this decision, NZ referred to "other FOI required for my internal review" and listed a further 35 documents to which she sought access. 4 The internal review decision dealt with two issues. The first related to the original documents requested regarding the man with the first name 'Adam'. In relation to that application it was determined that "no record or document, as described by the Applicant in her original application, exists". The second issue dealt with by the internal review decision was the subsequent request for a further 35 documents. In relation to those documents, the delegate of the Commissioner determined that he was not required to deal with the request as those documents had not been requested in the initial application. 5 On 24 July 2006 NZ lodged an application for external review with the Tribunal. She submitted that she had been denied her legal rights because none of the 35 documents listed had been provided to her. She disputed the submission from the representative for the Commissioner, Mr Pisani, that the jurisdiction of the Tribunal was limited to the documents requested in her original FOI application. 6 The Tribunal affirmed the decision of the Commissioner in relation to the original application and the request for a further 35 documents. In relation to the original FOI application, the Tribunal found that the lack of success in locating any documents, other than the 9 pages produced in full, was a reviewable decision. In relation to the 35 additional documents, the Tribunal found that it was not empowered to review that part of the internal review decision that determined that the additional 35 documents were outside the scope of the internal review. However, the Tribunal noted that NZ had made a fresh FOI application for those documents and if she was aggrieved by the determination of that application, she could apply to the Tribunal for external review. NZ appealed to the Appeal Panel against the Tribunal's decision on 3 May 2007. Legal principles in relation to out of time appeals 7 Under s 113(3) of the ADT Act, 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. 8 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 9 NZ submitted that she was psychologically incapable of meeting the deadline for lodging an appeal because she was "unable to tolerate too much distress of court." Mr Pisani, representing the Commissioner noted that NZ had not provided any medical evidence to support that assertion and that she has participated in at least one other matter before the Tribunal, by phone, in the intervening period. 10 NZ also submitted that extenuating personal circumstances prevented her from lodging her appeal within the required time period. Those circumstances include that her resources are limited, she has massive debts and that she relies on a pension to meet ongoing therapy costs. Length of the delay and diligence 11 NZ lodged her appeal approximately five months after receiving the Tribunal's decision. In circumstances where an appeal is expected to be lodged within one month, the delay is a relatively long one. NZ did not suggest that she was unaware of the time limit for lodging an appeal. Possible prejudice to the respondent to the appeal 12 The Commissioner submitted that as a result of the resources that this matter has already consumed in terms of the searches conducted for documents that do not exist, the Commissioner would be disadvantaged further if leave to appeal were granted. Merits of the appeal 13 NZ submitted that when searching for the documents, the Commissioner was not searching for documents created in the relevant time period and that is why no records of the documents were found. She also said that the Tribunal erred in law by refusing to review the Commissioner's decision not to deal with her application for a further 35 documents. The Commissioner's response was that the Tribunal made the correct decision and had regard to the material before it. Conclusion 14 NZ has had the fees for this appeal waived so lack of financial resources did not contribute to the delay in filing the appeal. While NZ's disability may have been a factor contributing to the delay, she did not write to or telephone the Tribunal to indicate that she wished to appeal but was having difficulty complying with the time limit. Furthermore she was conducting other proceedings in the Tribunal during that time. While there is no tangible prejudice to the Commissioner if the appeal proceeds, in my view the delay is relatively lengthy and, more significantly, the appeal lacks merit. NZ has not identified any question of law, nor has she articulated a reason that would justify an appeal being extended to the merits of the Tribunal's decision: ADT Act, s 113(2). NZ reapplied for the 35 documents, so there is no permanent disadvantage to her if leave to extend time is refused. In relation to the original request for documents, there is no support for NZ's submission that the Commissioner was not looking for documents relating to the correct time period. In those circumstances, I decline to allow NZ further time to appeal. Order Leave to appeal out of time refused.