Van Akker v Commissioner of Police NSW Police Force [2015] NSWCATAD 209

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Van Akker v Commissioner of Police NSW Police Force [2015] NSWCATAD 209 Hearing dates: 25 August 2015 Decision date: 14 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J Kinross Senior Member Decision: The extension of time application in relation to an application to reinstate proceedings is refused. Catchwords: ADMINISTRATIVE REVIEW - access to information- application to reinstate dismissed proceedings-application out of time Legislation Cited: Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Act 2013 Civil and Administrative Rules 2014 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Thomas Van Akker (Applicant) Commissioner of Police NSW Police Force (Respondent) Representation: Solicitors: A James (Respondent) File Number(s): 1410604

REASONS FOR DECISION

Background 1. On 23 April 2013 the applicant applied to the NSW Police Force under the Government Information (Public Access) Act 2009 for access to 10 categories of documents concerning his employment, stretching over three pages of the access application. The respondent released some documents in full, refused to disclose some documents in full, decided that some documents were not held by the agency and that the applicant's personnel file was otherwise available to the applicant free of charge. 2. On 9 June 2013 the applicant applied for an internal review without paying the fee: s85(1) GIPA Act. Section 86(1) requires an agency to make its internal decision within 15 working days. The respondent took no action on the internal review as the fee had not been paid. If an internal review decision is not made within 15 working days, the agency is deemed to have made the original decision again, and the applicant is entitled to a refund: s86(5). 3. More than a year later and outside the 40 working days statutory time period allowed, the applicant filed an application for administrative review on 27 October 2014 ("review application") seeking an extension of time. 4. The applicant's excuses for the delay were "medical reasons" and that the respondent had not notified him within the allowed 40 day time period that it did not intend to take action on the internal review because of the non-payment of the fee. The applicant's excuses did not explain the long delay in making the application after the agency was deemed to have made its internal decision and given the deeming provision, the neglect of his statutory right. 5. The respondent did not contest the jurisdiction of the Tribunal on any basis. The Tribunal granted the applicant an extension of the time period in which to make the application. 6. The issues raised by the applicant included the inaccuracy of information in documents disclosed to him, provision of a document in a form he could not use for a specific purpose, the non-disclosure of documents such as the NSW Coroner's Report into deaths in custody/police operations for the year 2012 (which he had obtained from another source) and certain records relating to a police officer whom the applicant alleges failed to disclose convictions on his application for re-entry into the police force. This latter issue has been investigated by the NSW Ombudsman who was unable to locate the records sought by the applicant. 7. Planning meetings at which the applicant attended by phone occurred on 16 December 2014, 10 February 2015, and 17 March 2015 at which the matter was remitted to the respondent to make a Supplementary Decision. 8. On 14 April 2015 a Supplementary Decision was made. A further planning meeting which the applicant attended by telephone occurred on 21 April 2015. The parties agreed that one document remained in issue. The parties agreed to a further planning meeting on 26 May 2015 to enable the applicant to obtain legal advice. 9. On 26 May 2015 the applicant failed to appear. 10. By letter dated 29 May 2015 the Registry notified the parties that the matter had been adjourned for directions to 30 June 2015 at 1.30pm. 11. On 30 June 2015 the applicant failed to appear at the directions hearing and the review application was dismissed: s 55 (1)(c) of the Civil and Administrative Tribunal Act 2013. 12. By letter dated 2 July 2015 the Registry notified the parties of the dismissal decision. 13. On Saturday 4 July 2015 the applicant received the notice of decision to dismiss. (Application to set aside.) 14. On 20 July 2015 the applicant filed an application in the Registry of the Administrative and Equal Opportunity Division of NCAT to set aside or vary a tribunal decision under cl 9(b) of the Civil and Administrative Tribunal Regulation. (Reinstatement application) 15. On 25 August 2015 the reinstatement application was heard. (Reinstatement hearing)