Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AT v Commissioner of Police, New South Wales Police [2011] NSWADT 214 Hearing dates: On the papers Decision date: 06 September 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The application is dismissed. Catchwords: Privacy - external review application - review of conduct alleged to be a breach of an information protection principle - review application lodged two years after internal review determination - whether application for external review lodged within a 'reasonable time' Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 (Repealed) Limitation Act 1969 Privacy and Personal Information Protection Act 1998 Cases Cited: AT v Commissioner of Police [2010] NSWCA 131 AT v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 1 AT v Commissioner of Police, (Unpublished extempore decision, 14 December 2007, S Higgins Judicial Member - file number 073195) Category: Interlocutory applications Parties: AT (Applicant) Commissioner of Police, New South Wales (Respondent) Representation: Counsel M Hutchings (Respondent) Capital Lawyers (Applicant) File Number(s): 103145 Publication restriction: ADT Publication, Anonymisation and Suppression: Guideline applies to this decision REasons for decision Introduction 1GENERAL DIVISION (S Higgins, Deputy President): The applicant, seeks review of conduct of the respondent, the Commissioner of Police, that she alleges to have been conduct that contravened the retention and disclosure information protection principle in sections 12 and 18 of the Privacy Personal Information Protection Act 1998 (the Privacy Act). The alleged contravening conduct occurred in the latter part of 2004 in the course of the respondent dealing with the applicant's request for access to documents under the Freedom of Information Act 1989. 2In March 2005, pursuant to section 53 of the Privacy Act, the applicant made an application to the respondent seeking an internal review of the alleged contravening conduct. 3The respondent made a determination on the applicant's internal review application on 5 June 2005. The respondent determined that the conduct complained of did not amount to a breach of the retention information protection principle. However, it was determined that the conduct complained of 'may have breached section 18' of the Privacy Act. 4On 20 June 2007, the applicant, being aggrieved by the respondent's determination, lodged an application, with the Tribunal, for external review of the alleged contravening conduct under section 55 of the Privacy Act. 5When the matter first came before the Tribunal, the respondent made an application that the applicant's application be dismissed on the grounds that the application was not lodged within the prescribed time. The respondent also contended that time for the lodgement of that applicant's application should not be extended under section 57 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), as the applicant had failed to provide a satisfactory explanation for her delay in lodging her application. 6On 14 December 2007, after hearing submissions from the legal representatives of the parties, I dismissed the applicant's application and gave brief reasons for decision: see AT v Commissioner of Police, New South Wales Police (Unpublished extempore decision, 14 December 2007: file number 073195). In dismissing the applicant's application I made certain findings on the construction of the review provisions of the Privacy Act (section 53 and 55) and section 55 of the ADT Act in so far as they related to the time within which an application for external review under the Privacy Act was to be lodged. 7The applicant appealed my extempore decision to the Appeal Panel of the Tribunal. Although her appeal was dismissed, the Appeal Panel found that I had erred in my construction of the provisions of the Privacy Act and the ADT Act: see AT v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADT AP 1 at [34] ( AT [2009]). Instead, the Appeal Panel found that section 55 of the Privacy Act should be read as being subject to a 'reasonable time limitation'. That is, an application for external review under that section was required to be lodged within a reasonable time. 8The applicant subsequently successfully appealed the decision of the Appeal Panel to the Court of Appeal: see AT v Commissioner of Police, NSW [2010] NSWCA 131. The applicant's appeal succeeded on grounds of procedural fairness arising from findings of the Appeal Panel and not the Appeal Panel's construction as to the time limit for lodging an application for external review under section 55 of the Privacy Act. The Court of Appeal set aside the order of the Appeal Panel affirming the extempore decision under appeal. In substitution of the orders made by the Appeal Panel, the Court of Appeal set aside the extempore decision of 14 December 2007 and directed that the Tribunal further consider the applicant's external review application according to law. 9As a result of the orders of the Court of Appeal, the applicant's application came before me at a planning meeting on 21 October 2010. At the request of the applicant's solicitor, the matter was adjourned for 2 months. Orders were nevertheless agreed to so that the matter could proceed. A further planning meeting was held on 21 December 2010. At this planning meeting counsel for the respondent advised that it pressed its application for dismissal as the applicant's application had not been lodged within a 'reasonable time'. Accordingly, orders were made for the filing and serving of evidence and submissions in regard to that application. I also indicated to the parties that I was inclined to the view that the matters in issue for determination in regard to this preliminary issue could adequately be determined on the papers and in the absence of the parties pursuant to section 76 of the ADT Act. In this regard I made an order that the parties were to inform the Tribunal, by 18 February 2011, if they had any objections to the matter being determined on the papers. Subsequent to this date, the respondent filed and served his submissions. At the conclusion of the submissions the respondent said that it would be appropriate for the Tribunal to hear oral argument in relation to the 'applicant's application'. 10As the issue for determination is a preliminary issue and both parties have filed and served written submissions, I remain of the view that the issues in regard to this preliminary issue can adequately be dealt with in the absence of hearing oral submissions. In this regard I note that the respondent has addressed the issues raised in the applicant's submissions. Issues 11The primary matter in issue in this application of the respondent is whether the applicant has lodged, or filed her application for external review under section 55 of the Privacy Act within a 'reasonable time'. 12In the event it is found that the applicant did not lodge her application for review within a reasonable time, there is an issue as to whether subsection 57(1) of the ADT applies (extension of time) and if it does apply whether the applicant has provided a reasonable explanation for the delay in lodging her application. 13For the reasons set out below, I have found that the applicant did not lodge her application for external review within a reasonable time. I have also found that the applicant has failed to provide a reasonable explanation for her delay. Applicable law 14As I have already mentioned, in AT [2009], the Appeal Panel found that section 55 of the Privacy Act is to be read as requiring an application to be lodged within a 'reasonable time'. 15Since the decision of the Appeal Panel, section 55 of the ADT Act has been amended (see clause 7 of Schedule 1 of the Administrative Decisions Tribunal Amendment Act 2008). The effect of this amendment appears to override the decision of the Appeal Panel as to when an application for external review is to be lodged. It is unnecessary for the Tribunal to make any finding in this regard as the applicable law, for this application, is the law as it applied when the applicant lodged her application with the Tribunal. So far as it is relevant, the applicable law is that set out by the Appeal Panel. 16In calculating what is a reasonable time, at [36] and [37] in its decision the Appeal Panel said the following: '36 ... - [what] is a 'reasonable time'. This will, we think, depend on the circumstances of the case. But given that s 53(8) speaks of a notice been given of the right to apply to the Tribunal for a review in respect of the findings and the 'proposed' action, this would suggest that time should run from the time the applicant did, or should reasonably have, become aware of the notice. 37 In our view, using the guide provided by the FOI Act, 60 days should be regarded as the ordinary outer limit of a reasonable time. There may be extenuating circumstances which justify a longer time being allowed. ...' The evidence 17In support of her contention that she had lodged her application within a reasonable time, the applicant relied on a tender bundle of documents and a proof of evidence, signed by her and dated 14 January 2011. 18The applicant's tender bundle included hospital records of AT's attendance at a number of hospital emergency departments and also her admissions into a hospital mental health unit. These records covered a period between May 2005 and 7 February 2006. They appear to be the same records that had been filed with the Tribunal in 2007. As noted in my unpublished extempore decision, these records clearly indicated that during this period AT was 'suffering from serious mental health issues'. 19The applicant's proof of evidence is comprehensive. To the extent that evidence is relevant to the matter in issue in this interlocutory application, there is no dispute as to the following sequence of events: (a)in 2001, the applicant was the victim of a violent aggravated sexual assault; (b)in October 2004, the applicant made her FOI request to the respondent, seeking access to documents relating to the 2001 violent aggravated sexual assault; (c)on 14 December 2004, the respondent determined to release a number of documents to the applicant. After several telephone enquiries, on 20 January 2005, the applicant received by registered post a package containing the documents the respondent had agreed to release to her. In a subsequent conversation with an officer of the respondent, the applicant asserts that she was informed that her personal records had been inadvertently placed into an incorrect envelope and mailed out to another person. It is this conduct for which the applicant sought an internal review; (d)on 8 March 2005, the applicant made her internal review application under section 53 of the Privacy Act; (e)the applicant received the respondent's internal review determination on 8 June 2005. In that determination the respondent informed her that she had a right to seek review of the respondent's conduct by the Tribunal. The determination did not give any time within which that application to the Tribunal was to be made; (f)on 23 June 2005, the applicant received a letter of apology from the respondent, dated 16 June 2005; (g)the applicant first consulted a solicitor, Mr Steiner, on 22 May 2007; and (h)on 5 June 2007 the applicant's solicitor lodged this application for external review. 20In regard to her right to seek external review after receiving the respondent's internal review determination, the applicant said: 'I knew that I had the right to have the internal review reviewed by a court or tribunal but I did not know that there was a time limit for doing this because the internal review document I received just said that I had the right to have the findings and proposed action reviewed by the Administrative Decisions Tribunal but it did not say that there was a time limit for doing this. In the meantime my life was spiralling out of control.' 21The respondent does not dispute the fact of the applicant having attended a hospital emergency department a number of times, or the fact of her hospitalisation. From 8 June 2005, when the respondent made his internal review determination, these occurred in June 2005 and 22 January 2006. On 14 June 2005, the applicant also attempted suicide and was admitted into the hospital mental health unit for 10 days. On the other days the applicant had sought treatment for self-harming following a psychotic episode. These were of not the first time the applicant had psychotic episodes and required treatment or hospitalisation. 22The applicant went on to say that in January 2006, she was voluntarily admitted into the mental health unit of a local hospital. The records filed by the applicant state that she was discharged from the hospital on 7 February 2006. In her proof of evidence the applicant said: 'On 17 February 2006, I moved to [name of town], NSW to be closer to my paternal father. I also wanted to try and 'start again' and to try to stabilise my life with a new beginning. When I arrived in [name of town], I secured employment in the childcare industry and I tied to forget about the sexual assault and what happened with NSW Police. My state of mind slowly improved over the next twelve months to the point where I could again cope with the usual stressors in life such as this application and holding down employment.' The applicant's argument 23In his submissions, Mr Steiner, solicitor for the applicant, argued that in the circumstances the applicant had lodged her application within reasonable time. He also argued that if it were to be found that she had not lodged her application within a reasonable time, she had provided a reasonable explanation for the delay in making her application and time for lodging her application should be extended pursuant to section 57 of the ADT Act. 24In support of his argument Mr Steiner relied on a number of matters including the following: a) the applicant was at no time advised of a time limit within which she was required to lodge her application; b) the applicant's ongoing mental health issues, which affected her ability to attend to her usual activities of daily living; c) the Privacy Act is beneficial legislation with an intention to compensate people for damages and losses sustained by a breach of that Act and it would be inconsistent with the purpose of that legislation to deny an applicant an extension of time for claiming compensation; d) the applicant's application is essentially an application for compensation for personal injury in the form of psychiatric injury - accordingly the limitation period of 3 to 12 years as set out in Division 6 of the Limitation Act 1969 should be applied; and e) the respondent had not identified any prejudice if the matter were to proceed. The respondent's argument 25The essence of the respondent's argument is that in the absence of the applicant providing any medical report or other evidence that explains her delay in commencing proceedings, it cannot be found that she lodged her application within reasonable time or that an extension of time was warranted. While the respondent did not dispute the applicant's account of her attendance at the hospital emergency departments, or her periods of hospitalisation in a mental health unit, it was noted that there were large gaps of time between these attendances and the periods of hospitalisation when proceedings could have been commenced. Consideration 26As I have already indicated, in AT [2010], the Court of Appeal did not set aside the Appeal Panel's construction of section 55 of the Privacy Act in so far as it related to the time within which an application for external review of conduct was required to be lodged. The time period being 'a reasonable time' from the time the applicant has received notice of the agency's internal review determination under section 53 of that Act. The test of 'a reasonable time' is an objective test. As a guide, the Appeal Panel held that 60 days from the date on which the applicant received notification of the respondent's internal review determination should be regarded as the outer limit of what is a reasonable time. However, the Appeal Panel also held that 'extenuating circumstances' may justify a longer time being allowed. 27In this application the question is whether there are such extenuating circumstances from which it can be found that the applicant has nevertheless lodged her application within a reasonable time. As I have indicated this must be assessed objectively. In doing so, in my view, the provisions of the Limitation Act 1969 are of no relevance to the Privacy Act. They each have completely different purposes and while the Privacy Act includes a provision for compensation, the right to seek compensation is limited to that prescribed under that Act and is not akin to a common law cause action for personal injury. Furthermore, it is one of a number of discretionary actions that may be taken under section 55 of the Privacy Act. 28Having regard to the agreed sequence of events, I am satisfied that there were extenuating circumstances in this application, which justified a longer period of time within which the applicant was required to lodge her application for external review. These circumstances were the applicant's hospitalisation and treatment for her ongoing mental health issues during 2005 and early 2006. In making this finding I do not make any finding as to the cause of these ongoing mental health issues. These are matters for determination in the substantive application, should it proceed. 29On the material before the Tribunal, I am not satisfied that these extenuating circumstances extended to May 2007, when the applicant sought advice from her solicitor, Mr Steiner. I accept the evidence of the applicant that in 2006 she moved to be closer to her father in an endeavour to 'start again' and stabilise her life and her health. This, on her own evidence, she appears to have been able to achieve within the 14 months after she moved. However, what the applicant has failed to show is that during this 14 month period the circumstances of her health continued to be of such a nature that she was unable to seek advice in regard to her application for external review. On the material before the Tribunal the inference is such that, during the 14 month period from leaving hospital and up until May 2007, the applicant had no further psychotic episodes or periods of hospitalisation due to her mental health. That is, her mental health remained sufficiently stable during this time and the extenuating circumstances that existed prior to this had ceased to operate. 30By her own evidence the applicant also acknowledged that she was at all times aware of her right to seek external review of the respondent's determination by the Tribunal. The fact that she was not informed about the time within which she should lodge that application, in my view is of no assistance to her. The fact that the applicant had exercised her rights under the FOI Act (which provide statutory time limits in regard to an agency dealing with an FOI request) and the Privacy Act (which provides a statutory time limit within which an application for internal review under that Act can be brought), suggests that the applicant was aware that her right to seek external review was not indefinite. That is, by inference she was aware that a time limit did apply. However, there is no evidence that she made any enquiry in this regard, even after she was released from hospital in February 2006. 31Accordingly, while I agree with the applicant's submissions that the period during which the applicant was hospitalised or sought treatment for self-harm in 2005 and early 2006, were extenuating circumstances and should be taken into account in determining 'a reasonable time' within which to lodge her application that time did not extend beyond 1 May 2006. This is more than 60 days after the period of extenuating circumstances. 32This leaves the issue as to whether time should be extended under subsection 57(1) of the ADT Act. That subsection provides: ' 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.' As pointed out by the Appeal Panel in AT [2009] at [14], at the relevant time, 'section 55(1)(d)' of the ADT Act required an application for external review to be lodged within such period as 'prescribed by the Tribunal following the date on which the internal review is taken to have been finalised under section 53(9).' As I have already mentioned, paragraph 55(1)(d) of the ADT Act has been amended since that time. 33Nevertheless it is the paragraph as it applied at the date the applicant lodged her application for review, which is relevant to these proceedings. While the Appeal Panel found, at [27], that sections 55 and 57 could not be read into the Privacy Act in the way suggested in the decision below, it made no findings as to the applicability of section 57 to applications for external review pursuant to the Privacy Act. 34In my view it is unnecessary for me to make any finding in this regard as even on the basis that the section does apply, in my view the applicant has failed to provide a reasonable explanation for her more than 12 month delay (i.e. from May 2006 to June 2007) in lodging her application for external review. As I have indicated, the applicant's evidence is that during this period she forgot about the sexual assault and what had happened with the NSW Police. She said her state of mind also improved during this period. I am not at all critical of the applicant's evidence or the approach she took. The difficulty I have with her evidence is that it does not provide a reasonable explanation for her 12 month delay in lodging her application for external review. Forgetting about her right to seek external review cannot of itself be a reasonable explanation for the delay. Nor is there any evidence of her having any further psychotic events, further hospitalisation, or any other condition, which prevented her from seeking advice much earlier about her right to seek external review. 35On the basis of my findings that the applicant failed to lodge her application for external review within a reasonable time and that I am not satisfied that the applicant has provided a reasonable explanation for her delay in lodging her application. On the basis of these findings, the appropriate order is that the application is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2011