Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 Hearing dates: 4 November 2013 Decision date: 03 March 2014 Jurisdiction: Appeal Panel Before: Magistrate N Hennessy, Deputy President Decision: 1. The appeal is extended to the merits of the Tribunal's decision of 7 May 2013. 2. The Tribunal's decision of 7 May 2013 extending time for the filing of the application to 14 November 2012 is set aside. 3. In substitution for that decision, the following decision is made: The time for the filing of the application for review is not extended. 4. The application for review is dismissed. Catchwords: APPEAL - Appeal on question of law - procedural fairness - appeal on merits of Tribunal's decision - application for review out of time - whether reasonable explanation for the delay Legislation Cited: Government Information (Public Access) Act 2009 Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Cases Cited: Turner v Commissioner of Police, NSW Police Force [2013] NSWADT 157 Turner v Corrective Services NSW [2013] NSWADT 39 Saleam v Registrar, Registry of Births, Deaths & Marriages [2011] NSWADT 254 Category: Principal judgment Parties: Donovan Turner (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel J Lucy (Respondent) D Turner (Appellant in person) Sparke Helmore Lawyers (Respondent) File Number(s): 139028 Decision under appeal Citation: [2013] NSWADT 157 Date of Decision: 2013-05-07 00:00:00 Before: General Division File Number(s): 123328 reasons for decision Introduction 1The Commissioner of Police has appealed against a decision of the Tribunal granting Mr Turner an extension of time to lodge an application for review under the Government Information (Public Access) Act 2009 (GIPA Act). Because that decision is an interlocutory decision, the Commissioner requires leave before the appeal can go ahead. The Appeal Panel granted leave on 18 September 2013. 2The questions on the appeal are whether the Tribunal made an error of law when deciding to extend time and whether leave should be granted for the Appeal Panel to re-consider the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 (ADT Act) s 113(2). 3I have decided that the Tribunal denied the Commissioner procedural fairness and misconstrued the provision relating to the extension of time. In those circumstances, I have extended the appeal to the merits of the Tribunal's decision and re-considered the decision. My decision is to refuse to extend time for Mr Turner to apply for a review of the Commissioner's decision because he has not provided a "reasonable excuse" for the delay. 4On 1 January 2014, the Administrative Decisions Tribunal was abolished and its jurisdiction was taken over by the Civil and Administrative Tribunal (NCAT). In accordance with the Civil and Administrative Tribunal Act 2013 (NCAT Act), these proceedings are part-heard proceedings and are to be determined under the Administrative Decisions Tribunal Act 1997 (ADT Act): NCAT Act, Schedule 1, cl 7(3). 5This matter was heard on 4 November 2013, with Mr Turner appearing by phone. The material on which the Commissioner relied included a written submission dated 12 September 2013, a statement of Grace Thangasamy, solicitor, Sparke Helmore, Lawyers dated 1 November 2013 and a statement of Darren Brand, Co-ordinator Information Access and Subpoena Unit with NSW Police Force. The lawyer for the Commissioner provided written submissions and cross-examined Mr Turner. 6Although no directions were made for the filing of further evidence or submissions at the hearing on 4 November 2013, Mr Turner filed a twenty-five page submission with the Tribunal on 15 November 2013. He said in that submission that he had not received the faxed copy of the Commissioner's submissions and evidence before the hearing concluded on 4 November 2013. I have taken Mr Turner's further submissions into account. Brief History 7Mr Turner is in prison. On 22 July 2011 he applied to the Commissioner for access to certain information under the GIPA Act. The Commissioner identified 230 pages of information as falling within the scope of that application. On 17 April 2012 the Commissioner made a determination to grant access to the majority of the information but to refuse to release parts of the information. 8Section 101(1) of the GIPA Act gives Mr Turner 40 working days to apply to the Tribunal for a review of the Commissioner's decision. Notice is deemed to have been given on the day the determination is posted: s 126(2). Mr Turner's evidence was that he in fact received the determination on 27 April 2012 but he now does not recall the exact date. Regardless of the date Mr Turner actually received the notice, the 40 working days runs from the date of postage which, according to Mr Brand's undisputed evidence, was 17 April 2012. Mr Turner had until 15 June 2012 to file his application with the Tribunal. His application was registered on 14 November 2012, approximately 5 months out of time. 9Following receipt of his application, the Tribunal held a planning meeting on 29 January 2013. The Tribunal directed the parties to file and serve submissions and evidence by 5 March 2013. No directions were made in relation to the out of time issue. On 15 March 2013 the Commissioner filed written submissions noting that Mr Turner had not sought leave in writing for an extension of time as required by s 101(5) of the GIPA Act. The Commissioner expressly reserved his right to make further submissions if the Applicant did make such an application. 10On 19 March 2013 Mr Turner wrote to the Tribunal saying in part, "[T]he applicant now requests an extension of time for reviewable decision be granted" and "[I]f it is deemed necessary by the ADT for applicant to apply for an extension of time the applicant will do so." Mr Turner also set out the reasons for filing the application out of time. 11On 7 May 2013 at the second planning meeting, the Judicial Member said that he had considered the parties' written submissions and had decided to allow Mr Turner's application for an extension of time. The Judicial Member provided ex tempore reasons and made further directions in relation to the progress of the matter. 12On 14 May 2013, the Commissioner requested written reasons for the Tribunal's decision and the Tribunal provided those reasons on 10 July 2013: Turner v Commissioner of Police, NSW Police Force [2013] NSWADT 157. Question of law 13The Commissioner submitted that the Tribunal did not afford him procedural fairness when determining the out of time issue. I am satisfied that the Tribunal breached the rules of procedural fairness by extending time to lodge the application without giving the Commissioner an opportunity to respond to the Applicant's evidence or submissions. Although the Commissioner had filed submissions concerning an anticipated application, the Commissioner had expressly reserved the right to make further submissions if an application was made. Until an application for an extension of time had been made, the Commissioner did not know what evidence Mr Turner would rely on or what submissions he would make in support of the application. Nor was the Commissioner on notice that the Tribunal was going to determine the out of time issue at the planning meeting. 14With respect, what the Tribunal should have done when it was clear that the Commissioner opposed Mr Turner's application for an extension of time, was to give the Commissioner an opportunity to file evidence and submissions in response to his application and set the matter down for a preliminary hearing on that point. 15The Commissioner also submitted that the Tribunal had misconstrued the provision relating to extensions of time. Section 101 provides that: (1) An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review). (2) If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review. (3) If an application for NCAT administrative review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner's review is to end. (4) NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application. (5) An application to extend the time for the making of an application for NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case. (6) The time for making an application for NCAT administrative review may be extended under this section even if that time has expired. 16Section 101(1) sets out the general rule that an application for administrative review must be made with 40 working days after notice is given. Sub-section (4) gives the Tribunal power to extend the time for the making of an application, "if the Tribunal is of the opinion that the person has provided a reasonable excuse for the delay in making the application." 17Relying on the decision in Saleam v Registrar, Registry of Births, Deaths & Marriages [2011] NSWADT 254, the Tribunal set out the factors that it considered relevant in determining whether to accept an application out of time. As well as whether there was a 'reasonable excuse for the delay', those factors included any prejudice to the parties, the merits of the case and the public interest. The relevant provision in Saleam was s 57 of the ADT Act. That provision is in similar terms to s 101(4) of the GIPA Act except that it uses the term "reasonable explanation" rather than "reasonable excuse". "57 Late applications to Tribunal (1) 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. 18Because providing a "reasonable explanation" or a 'reasonable excuse" is all that the Tribunal has to form an opinion about, other considerations such as the merits of the application for review, any prejudice to either party or the public interest are not relevant. The Tribunal made an error of law by taking these other matters into account in reaching its decision. 19The appropriate course is to grant leave to extend the appeal to the merits of the Tribunal's decision: ADT Act, s 113(2). The other option would have been to remit the matter to the Tribunal for further determination. It is quicker and more efficient to determine the issue myself. The only prejudice to Mr Turner of not remitting the matter is that he will be denied the opportunity to appeal to the Appeal Panel against a further decision of the Tribunal. While that is arguably a disadvantage to him, avoiding further delay outweighs that consideration. The question for me to determine is whether Mr Turner has provided a "reasonable excuse for the delay". Reasonable excuse for the delay? Summary of reasons given 20The reasons Mr Turner gave in his application for review, for filing a late application were as follows: The applicant had the need is 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. 21Mr Turner also relies on a 588 page submission that he filed in these proceedings as setting out further reasons for the delay. He also filed two documents which were admitted into evidence. The first was filed on 23 October 2013 and the second on 4 November 2013. These documents are a mixture of evidence and submissions. On the basis of these documents, the oral evidence Mr Turner gave at the hearing and his later written submissions, the excuses he gave for the delay can be summarised as follows: he filed an application with the ADT together with an application for a fee waiver and submissions on 1 September 2012 but this material was sent back to him; and other matters in the Tribunal were taking up his time; he did not have full access to his "legals" because of several internal and external transfers between correctional facilities and/or because he was in the Protection Section; he did not have access to a library for some of the time; he did not have access to paper; and he has been assaulted and intimidated. Delays in the Tribunal 22In his submission lodged on 12 November 2013, Mr Turner states that he lodged an application for review, a fee waiver application and a 588 page submission with the Tribunal on 1 September 2012. He says the documents were returned to him without an explanation as to why his material had been rejected. Mr Turner says he contacted the Independent Commission Against Corruption (ICAC) and NSW Ombudsman to lodge a complaint about the Tribunal's conduct in returning his application. In subsequent weeks, ICAC told him that their jurisdiction did not include matters concerning the Tribunal. After that Mr Turner says he telephoned the Tribunal and was told that his application for review and fee waiver had been denied. 23The 588 page submission which Mr Turner says he sent to the Tribunal is dated 1 September 2012 and refers to the "decision to be reviewed" as the decision made on 17 April 2012 by NSW Police. The first page of the document also contains the following information: Regarding: Request for Review of a reviewable Decision by the Administrative Decisions Tribunal Decision to be reviewed: NSW Policy reply Application No 111488:LT Dated: 17 April 2012 Inclusive: additional NSW Police replies applications and attachments - in addition to complaints from period 2010 to 2012. 24On the basis of the following letter from the Registry dated 31 October 2012, no application for review or application for fee waiver was lodged with the 588 page document. The application form and fee waiver were not lodged until 30 October 2012. Dear Mr Turner Application for waiver of fee for an application for review of a reviewable decision Turner v Commissioner of Police, NSW Police Force I refer to your application for review of a reviewable decision and application for waiver of fee received by the Tribunal on 30 October 2012. The application for waiver of fee has been referred to the Registrar, Ms P Green, for consideration. The registrar has refused your application. The reason given is that previous fees have been waived. Returned herewith is your application for review of a reviewable decision and attachments. If you wish to proceed please provide the original plus 2 copies of your application (including attachments), and the filing fee of $75. If you have any further enquiries please consult the tribunal website www.lawlink.nsw.gov.au/adt or telephone the tribunal registry on ph (02) 93775711. Yours faithfully Registrar 25It appears that Mr Turner intended to file the 588 page, not only in relation to this matter but in relation to another matter that were before the Appeal Panel. That is the inference that can be drawn from the note under the heading 'Inclusive' on the front cover of his submission. It can also be inferred from the following passage from an Appeal Panel decision in Turner v Director of Public Prosecutions (GD) [2013] NSWADTAP 27 (20 May 2013) at [14] - [15]: Mr 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. I have not considered that document in providing these written reasons. 26In the Tribunal's reasons in this matter at first instance, the Judicial Member referred to the Appeal Panel's decision and made the following observation at [20]: 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. 27I find on the basis all the evidence that Mr Turner sent the 588 page document to the Tribunal on 1 September 2012 or shortly thereafter. Because there was no fee paid or fee waiver application included, the Tribunal returned the documents to Mr Turner, apparently without explanation. Mr Turner then made a complaint to ICAC about the Tribunal's conduct. After being told that ICAC did not have jurisdiction, Mr Turner finally lodged an application for review, an application for fee waiver and the 588 page submission on 30 October 2012. The application for fee waiver was rejected. Mr Turner then paid the filing fee and successfully lodged his application on 14 November 2012. 28Although Mr Turner did not lodge an application in the correct form on 1 September 2012, I am satisfied that it was his intention to apply to the Tribunal for a review of the Commissioner's decision on that date. The Tribunal returned that document without explanation. I am of the opinion that for the purpose of determining the out of time issue, Mr Turner has a reasonable excuse for the delay after 1 September 2012. Additional matters in the Tribunal 29One of the reasons Mr Turner gave for applying late was that he had other matters on foot in the Tribunal at the time. On 13 March 2012 Mr Turner participated in a planning meeting by phone in the matter of Turner v Director of Public Prosecutions (file number 12 3013). At that planning meeting the Judicial Member directed Mr Turner to file and serve certain material by 30 April 2012. On 24 September 2012 the Tribunal made a decision in relation to that matter: Turner v Director of Public Prosecutions [2012] NSWADT 198. At [22] of that decision the Tribunal notes that the applicant made "detailed submissions." 30Mr Turner was also involved in a second matter in the Tribunal against Corrective Services at the time. Mr Turner did not appear at the initial planning meeting of that matter but directions were made for him to file and serve material by 31 May 2012. In the reasons for decision the Tribunal noted that Mr Turner had filed written submissions in support of his application. The Tribunal added at [41] that, "those submissions extend to some 230 pages of mostly handwritten material." Turner v Corrective Services NSW [2013] NSWADT 39. 31I am satisfied that Mr Turner was engaged with two other matters in the Tribunal in April and May 2012 and that those matters would have taken up a significant amount of his time. Any application for review in this matter was due on 15 June 2012 less than two weeks after the date for the completion of his submissions at the end of May. Mr Turner had a reasonable excuse for not filing an application at least until the end of May 2012. It remains to be determined whether he has a reasonable excuse for the three months of June, July and August 2012. Access to 'legals' 32Mr Turner repeatedly emphasised that he is in custody and has been denied access to his legal files. He said he was transferred between 10 different correctional centres in 2012 and was denied access to his files for certain unidentified periods. During inmate transfers, legal property is held at prison reception at which time there is no access to legal files. He added that, "It is simply not permitted, on most occasions." 33The Commissioner's response to these submissions was twofold. Firstly, Mr Turner admitted under cross-examination that it would take him approximately 10 minutes to complete an application for review to the Tribunal. The Commissioner also submitted that when Mr Turner did apply, his application for review was very simple. He gave the following grounds for review: serious offences were committed by police investigators during investigations in 30 May 2008; unlawful concealing/destroying of government information by New South Wales police force; appeal to the Court of Criminal Appeal by applicant needing requested material plus ICAC investigation request. 34Mr Turner said that he was under the impression that he needed to file submissions at the time of lodging his application for review. That appears to have been Mr Turner's practice in relation to other matters and it is what he ultimately did in these proceedings. I accept that that was his understanding. 35It is unsurprising that Mr Turner has not kept a record of the dates when his legal files were not available to him, but that makes it difficult to determine whether lack of access to his files provides a reasonable excuse for the delay in filing. I am satisfied that lack of access to his files was a reasonable excuse for some unknown but relatively short period between June and August. Access to library and paper 36Mr Turner asserts that he was forced into the Protection Section (non-association) soon after receiving the 17 April 2012 decision. He says that "non-association" inmates do not receive library access and phone calls are limited. Mr Turner did not say when or for how long he was in the Protection Section. 37Being in the Protection Section in April or May 2012 did not prevent Mr Turner from writing submissions in relation to other matters at about that time. It does not provide a reasonable explanation for the delay from June to August 2012. 38Mr Turner made lengthy submission about being denied access to a library or material in the library. He said that, "At times such items as paper to write on had been denied - Library Portal Access denied - Law book access denied and so on." He does not provide any dates on which these materials or access were denied. 39The Commissioner's response to this submission was that Mr Turner had access to pen and paper in order to prepare submissions in other matters before the Tribunal. That assertion is clearly correct, at least until the end of May 2012 and in August 2012 when he was apparently preparing the 588 page submission. Any denial of access to paper is not a reasonable excuse for the delay from June to August 2012. 40Mr Turner's evidence about access to the library is vague. In response to this submission the Commissioner referred to the Corrective Services Operations and Procedures Manual which states at section 5.6.2, paragraph 4 that: All inmates are to be given equal access to the library facilities and services. This includes inmates in different classifications and on different management regimes (such as segregation special Management area placement (SMAP), protection limited association (PRLA) and protection non-association (PRNA)). 41Mr Turner referred to this and other policies about access to library facilities. While I am satisfied that Mr Turner did not have unlimited access to the library, it is not possible to determine the periods in which access was not available. 42I am satisfied that lack of access to the library was a reasonable excuse for some unknown but relatively short periods, between June and August. Being assaulted and intimidated 43Mr Turner says that he has filed a further application in the Tribunal seeking CCTV security video held by Corrective Services to substantiate his allegations that he was physically assaulted and his life was threatened. He wished to have the present proceedings adjourned so that the Tribunal could require Corrective Services to provide copies of all relevant information relating to the alleged assaults and intimidation. 44I refused the application for an adjournment because despite being asked several times, Mr Turner was unable to indicate a date or even a period of time during which these assaults were alleged to have occurred. I reminded him that it was only relevant to these proceedings if they had occurred, or if the effects were ongoing, between April and November 2012. Mr Turner responded by saying that he did not have a copy of his journal with him so he could not verify the dates. While I accept that Mr Turner is disadvantaged by not having his papers with him, he would be able to recall roughly when this assault was alleged to have occurred. Furthermore, he had an opportunity to check his journal prior to the hearing. 45In his subsequent written submissions Mr Turner makes various allegations against prison officers in relation to events around February 2010. In the absence of any specific allegation within the relevant period, I am not satisfied that Mr Turner was assaulted or intimidated during the relevant period or that, even if he was, that that affected his ability to lodge an application within time. Consequently any alleged assaults or intimidating behaviour provides no justification for the late application. Conclusion 46Throughout his written and oral submissions Mr Turner gives an extensive history of his treatment prior to the decision of the Commissioner on 17 April 2012 and propounds the merits of his application for review. Neither of those matters is relevant to the question of whether he had a reasonable excuse for the delay in filing the application and the fee or fee waiver application. 47Mr Turner had 40 working days to lodge his appeal after 17 April 2012. It was due on 15 June. He did not lodge it for 4 ½ months after that time on 14 November 2012. He has a reasonable excuse for the delay up until the end of May because he was preparing lengthy submissions in other proceedings. He also has a reasonable excuse for the delay after 1 September 2012 because that is that date on which he attempted to file an application even though he did not complete the application form or pay the required fee. That leaves a period of three months from June to August 2012. Mr Turner submits that lack of access to his files, to paper and to the library during this period prevented him from making an application. While those matters provided a reasonable excuse for some unknown but relatively short periods of time, they do not provide a reasonable excuse for the entire three month period. Orders 1. The Tribunal's decision to extend the time for filing of the application to 14 November 2012 is set aside. 2. The appeal is extended to the merits of the Tribunal's decision to grant an extension of time to file the application. 3. The Applicant's application to extend the time for filing to 14 November 2012 is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 13 June 2014 - typographical error, files should be library Amended paragraphs: Paragraph 42 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: 13 June 2014