Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BKW v Department of Family and Community Services [2015] NSWCATAP 232 Hearing dates: 21 August 2015 Date of orders: 28 October 2015 Decision date: 28 October 2015 Jurisdiction: Appeal Panel Before: Acting Judge K P O'Connor, AM, Deputy President, Appeals Dr J Lucy, Senior Member Decision: 1. Leave to appeal granted. 2. Decision to refuse to extend time set aside. 3. Order that the review application be dismissed. Catchwords: ADMINISTRATIVE REVIEW – Community Services Review Jurisdiction – Practice and Procedure – Late Review Application – Refusal of extension of time –Interlocutory appeal – Leave granted - Relevant Provisions – Relevant Considerations – Appeal allowed – No utility in further consideration of matter – Review application dismissed, Community Services (Complaints, Reviews and Monitoring Act) 1993, s 29(3). Legislation Cited: Administrative Decisions Tribunal Act 1997 Administrative Review Act 1997 Children and Young Persons (Care and Protection Act) 1998 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Community Services (Complaints, Reviews and Monitoring Act) 1993 Cases Cited: Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 BDK v Department of Education and Communities [2015] NSWCATAP 129 Bromley v Dawes (1983) 34 SASR 73). Brownells Ltd v Ironmongers' Wages Board (1950) 81 CLR 108 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police New South Wales Police Force v Fine and Independent Liquor and Gaming Authority [2014] NSWCATAP 24 Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 House v R [1936] HCA 40; (1936) 55 CLR 499 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 Olsen v Lee [2015] NSWCATAP 17 Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 Category: Principal judgment Parties: BKW (Appellant) Department of Family and Community Services (Respondent) Representation: Counsel: P. Batley (Appellant) Solicitors: Patrick Latham, Legal Aid Commission of NSW (Appellant) R. McLachlan, Care Legal (Respondent) File Number(s): AP 15/00044 Publication restriction: Pursuant to s 65(1)(b) of the Civil and Administrative Tribunal Act 2013 the name, or any other identifying information, of the applicant and the children the subject of the appellant's application are not to be published. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2014] NSWCATAD 205 Date of Decision: 25 November 2014 Before: S Higgins, Principal Member File Number(s): 1410425 REASONS FOR DECISION Introduction 1. This appeal arises out of the Tribunal's administrative review jurisdiction in relation to community services decisions. The Tribunal has declined to entertain a review application lodged by the appellant out of time. This appeal seeks to have that decision set aside. 2. The appellant is aboriginal. She was for many years an authorised kinship carer under the Children and Young Persons (Care and Protection Act) 1998 (Care Act). As at 13 November 2013 she was responsible for the care of two children, for whom the Minister, Family and Community Services had parental responsibility. The appellant is the paternal aunt of both children. On that day the respondent, exercising delegated authority, removed the children from her care, and gave her short written reasons for its decision. The children were aged seven and six at time of their removal. They had been in the appellant's care since 2008 and 2009, respectively. 3. Such a decision is administratively reviewable: Care Act, s 245(1)(c). Belatedly, the appellant applied for internal review of the decision on 20 March 2014, pursuant to s 53 of the Administrative Review Act 1997 (ADR Act). An application for internal review is to be made within 28 days of notification of the administrative decision or 'by such later date as the administrator may allow': ADR Act, s 53(2). The respondent did not object to the lateness of the application for internal review. It notified her formally of the outcome of its review, confirming its original decision, by letter dated 9 May 2014. The letter included short written reasons. The reply was provided beyond the 21 day time limit set by the ADR Act, but it may be (the matter is unclear from the material before us) that, as permitted, the parties agreed on a further period for completion of that task: see s 53(6). 4. The appellant sought legal advice. The appellant's proceeded to ask the respondent for clarification of some aspects of the reasons. The respondent issued a revised version of the reasons on 20 June 2014. It did not alter its decision. 5. As permitted by s 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring Act) 1993 (the CS Review Act), the appellant exercised her right to apply to the Tribunal for administrative review of the decision. The appellant's solicitor filed an administrative review application in the form required by s 55 of the ADR Act on 29 July 2014. After consideration of the appropriate filing fee and its payment, the application was formally received by the Registry on 8 August 2014. The applicable law (ADR Act s 55(2) (see ADR Act, s 53(9); and Civil and Administrative Tribunal Rules 2014, r 24(3)(b), (4)(a), made pursuant to s 40 of the Civil and Administrative Tribunal Act 2013 (NCAT Act)) requires an administrative review application to be lodged not later than 28 days after the applicant receives notification of the internal review decision. There are separate provisions dealing with failures to reply to an internal review application, at all or in time. Those provisions were not raised in these proceedings. 6. The Tribunal directed the parties to make submissions as to whether it should receive the review application out of time. The Tribunal heard the matter on the papers, and issued its decision on 25 November 2014. This appeal was lodged on 23 December 2014 (in time), and it has proceeded slowly. In accordance with directions given on 12 in March 2015, the parties filed submissions, and the matter was fixed for hearing on 16 April 2015. The appellant did not wish to proceed on that day, and the matter was eventually refixed for hearing on 21 August 2015. 7. An appeal against a decision to refuse to extend time is an interlocutory appeal for the purposes of the NCAT Act see s 4 (definition of 'interlocutory decision') and the right to appeal against such a decision is governed by s 80(2)(a). Accordingly the appeal requires leave to proceed, regardless of whether the grounds raise questions of law or go to matters that do not involve questions of law. Material before the Appeal Panel 1. At hearing, the Appeal Panel had before it the notice of appeal dated 23 December 2014, the respondent's reply dated 12 March 2015, the appellant's written outline of submissions dated 23 March 2015, and the respondent's submissions in reply dated 1 April 2015. The respondent filed the following factual material: a bundle, filed 20 March 2015 comprising the ADR s 58 documents filed at first instance (pages 1-363), documents filed in connection with the appeal (363-392) and a regional map relevant to the placement of the children (393); and an extensive affidavit from the responsible regional director of the respondent, filed 2 April 2015, containing numerous annexures relating to the circumstances giving rise to the decision and the assessments made by the respondent's officers. 2. Mr Paul Batley appeared for the appellant, and Mr Robert McLachlan for the respondent. Leave to Appeal 1. While the respondent had not opposed at first instance the grant by the Tribunal of an extension of time for dealing with the review application, it did oppose the grant of leave to proceed with the appeal. 2. The respondent pointed to the long time that had passed since the initial decision, noted that the appellant had ceased to hold authorisation as a kinship carer on 24 June 2014, and said that the children were now well settled elsewhere. In these circumstances, Mr McLachlan submitted that there was nothing to be achieved by the Tribunal continuing to deal with the matter. Even if the appellant's review of the merits proved to be successful, the children could not be returned to her. 3. The Appeal Panel's discretion in relation to leave is unfettered. The respondent suggested in its written submissions that guidance as to the considerations relevant to the exercise of the discretion might by drawn from the Appeal Panel decisions in Olsen v Lee [2015] NSWCATAP 17 at [17], and Collins v Urban [2014] NSWCATAP 17 at [71]-[79]. These decisions concern the interpretation of the more restrictive leave provisions that apply to appeals from the Consumer and Commercial Division (see NCAT Act, Sched 4, cl 12) and the way the leave discretion in relation to appeals against final decisions is to be exercised (s 80(20(b)) if an extension of the appeal beyond questions of law to other grounds is sought. They are not directly relevant to the discretion the Appeal Panel is exercising here. 4. A decision not to extend time at first instance results in the termination of proceedings without any hearing on the merits. Most interlocutory decisions are not as brutal. Interlocutory decisions typically concern rulings and directions during the progress of case, and the case still proceeds to the making of a final, substantive determination. Appeal courts and appeal tribunals are, rightly, circumspect in entertaining interlocutory appeals against rulings in running. Appeals of that kind are inherently disruptive of the trial. Further, the final, substantive decision may be such that a party disappointed by a ruling in running has no continuing concern given the overall result, and any wish to appeal evaporates. But the position is plainly different in a case of the present type, where the interlocutory decision deprives the applicant of any hearing at all independent of the administrator. Arguably, therefore, there should be a less reluctance to entertain an appeal against an interlocutory decision of the present kind (see, for example, BDK v Department of Education and Communities [2015] NSWCATAP 129 at [3]). 5. The appellant's representative, Mr Batley, submitted that the appeal raised issues as to the proper interpretation of the relevant legislation which should receive the attention of the Appeal Panel. He acknowledged, and his client accepted, that she could no longer be given care of the children. She retained, however, an interest in having the merits of the decision reviewed, and in particular having addressed the criticisms made of her that formed part of the respondent's reasons for removing the children from her care. If the Appeal Panel chose to grant leave, Mr Batley asked that he be heard on what further order was sought in the matter. 6. In our view there are issues of principle raised by this case that warrant consideration. These include the law that governs the exercise of the discretion in matters that arise in the Tribunal's community services administrative review jurisdiction, and whether the Tribunal failed to have regard to considerations particular to that jurisdiction. 7. In Commissioner of Police New South Wales Police Force v Fine and Independent Liquor and Gaming Authority [2014] NSWCATAP 24 (subsequently set aside, but not on this point, Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327), the Appeal Panel said at [21] in giving leave to hear an appeal against an interlocutory decision to refuse to join a party: the appeal can legitimately been seen as raising questions or matters of administration or procedure which are likely to have general application in proceedings of this type. 1. In our view this case has similar features. Our decision is to grant leave to allow the issues raised by the notice of appeal to be considered. We will deal with the question of any further order at the end of these reasons. The Tribunal's Decision 1. The Tribunal found that the application had not been lodged within 28 days of the date of finalisation of the internal review determination, as required. It also found that the start date for calculating the period of delay was 9 May 2014 (the date of the internal review decision in its first form), and not 26 June 2014, as submitted by the appellant, being the date on which she was notified of the revised internal review decision of 20 June 2014. The Tribunal accepted that the date of lodgment should be treated as 29 July 2014, not the date when the application was formally stamped after resolution of the appropriate filing fee and its payment, 8 August 2014. 2. Consequently the Tribunal proceeded on the basis (though it did not spell this out expressly in its reasons) that the last date for filing of the application of review was 7 June 2014 (28 clear days after 9 May 2014).Therefore the filing was 51 days out of time. Had the Tribunal found that time commenced to run from the date of notification of the revised internal review determination, the gap would have been 6 days. (This conclusion is one of the issues in the appeal.) 3. The Tribunal referred to s 41 of the NCAT Act as the source of its discretion in relation to the extension of time. (This choice is one of the issues in the appeal.) Section 41 provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. In refusing to extend time, the Tribunal had regard to the following matters: the length of the delay as it calculated it; the adequacy of the appellant's explanation for the delay; the likelihood or otherwise that the decision the subject of the review application might be altered if the application proceeded to hearing; the protective character of the decision, and the need therefore for any action to alter it to be taken promptly; and the delays that had occurred in the internal review process. 2. We will set out at this point the grounds of appeal as stated in the notice of appeal: 1. Failing to correctly consider and apply the principles relating to an application for an extension of time 2. Failing to consider the question of the injustice to the appellant in circumstances where the respondent did not oppose an extension of time and did not claim that delay caused it any prejudice or injustice. 3. Failing to distinguish between principles relevant to an application for an extension of time and the principles relevant for an extension of time for administrative review 4. Taking into account irrelevant considerations, namely delay by the appellant in seeking internal review under the ADR Act, and delay by the respondent in undertaking the internal review. 5. Failing to accord the appellant procedural fairness by failing to consider the appellant's argument that an extension of time may not have been necessary because the appellant's application for administrative review was lodged within 28 days after the respondent provided written reasons for its internal review decision. 6. Implicitly treating the Tribunal's decision to refuse an extension of time as determining the proceedings when, on a proper construction of s 53 of the ADR Act, the appellant's application or administrative review was lodged within time. 1. It will be seen that the grounds of appeal put in issue the following matters: the Tribunal's finding that the review application was out of time, and therefore could only proceed if the Tribunal granted an extension of time; the Tribunal's decision as to the applicable law; and, finally, the considerations to which the Tribunal had regard. We will deal with the grounds of appeal in that order. Grounds (e) and (f) 1. A detailed 'sequence of events' up to the point of official lodgement of the application with the Registry of the Tribunal is given at para [22] of the Tribunal's reasons. There is additional information given as to the sequence of events in the respondent's submissions filed in these proceedings at paras [10]-[34]. 2. We note that in the appellant's submissions at first instance, the author (Mr Latham, solicitor) did argue that time for lodgment of the appeal only commenced to run when he made a request for a statement of reasons on 22 July 2014, this request being made under s 49 of the ADR Act because the reasons, as provided, were, he considered, inadequate. That argument was not pursued on appeal. It appears to be the only basis for the above grounds of appeal. 3. We consider that the Tribunal's finding that the application for review was out of time is unassailable. On the view of the facts most favourable to the appellant, the application for review by the Tribunal was filed on 29 July 2014 (the date that it was received by the Registry, and before the lodgment fee issue was resolved), and the date of finalisation of the internal review was 26 June 2014, the date on which the appellant stated that she received notice of the revised internal review determination issued by the respondent on 20 June 2014 (see ADR Act, s 53(9)). Therefore, at the least, the review application was six days out of time. These grounds were not, in our opinion, actively pressed at the appeal hearing. They are rejected. Grounds (a), (b), (c), (d) 1. These grounds raise several issues. We will deal with them in order. 2. Source of Power: The question of whether the Tribunal identified correctly s 41 of the NCAT Act as the source of its discretion in relation to the extension of time received close attention in the appellant's submissions. The submissions referred to two other provisions as proper source of the power: s 57 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) and s 29(3) of the CS Review Act. 3. Section 57, ADT Act: The ADT's jurisdiction transferred to NCAT on the date of NCAT's foundation, 1 January 2014. The argument was that the appellant had an 'unexpired right' to apply for review under the ADT Act as at 31 December 2014 which fell subject to the transitional provisions of the NCAT Act. Section 57 dealt with late applications for review and only required the ADT to inquire into the reasonableness of the applicant's explanation for being late. Section 57 was repealed, and did not form part of the ADT Act as renamed, the ADR Act, as from 1 January 2014. 4. An 'unexercised application right' within the meaning of the transitional provisions of the NCAT Act is a right 'available to be exercised immediately before the establishment day' (1 January 2014: see NCAT Act, s 7), and 'had not yet been exercised before that day' (see NCAT Act, Sched 1, cl 6). Therefore the transitional provision at cl 9 of Sched 1 applied, which, it was said, made applicable the law in force as at 31 December 2014. Clause 9(1) and (2) provide: 9 Certain unexercised rights to make applications or appeals to existing tribunals may continue to be exercised in NCAT (1) This clause applies to each of the following unexercised rights (an existing unexercised application or appeal right): (a) an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter, (b) an unexercised right to apply to an existing tribunal for a review of a decision of another person or body, (c) an unexercised right to appeal to an existing tribunal against a decision of another person or body. (2) A person who has an existing unexercised application or appeal right may apply or appeal to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished. Note. An application or appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for making the application or appeal will continue to apply to applications or appeals under this clause. See subclause (3). 1. In our view the appellant did not have an 'unexercised right' to apply for review by the Tribunal as at 1 January 2014. At that time she had yet to exercise her right to apply for internal review. Her right to apply to the Tribunal only arose once she had received an internal review decision. Accordingly, s 57 of the ADT Act was not preserved in relation to this review application. Our conclusion is that s 57 is not applicable to this case. 2. Section 29(3) CS Review Act: The other source of power relied upon by the appellant is s 29 of the CS Review Act. It is one of a series or provisions, ss 28-32, belonging to Part 5 of that Act. Part 5 is headed 'Administrative Review by Tribunal of Decisions'. The provisions in Part 5 deal with several matters. 3. We will set out s 29 of the CS Review Act in full: 29 Who may apply to the Tribunal? (1) An application may be made to the Tribunal by any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject-matter of the decision concerned. (2) Without limiting the generality of subsection (1), an application may be made by any person who is responsible for, is a next friend of or is appointed by the Tribunal to represent the person to whom the application relates. (3) The Tribunal may, on application, grant leave to apply for a review of a decision to any person who was entitled to, but did not, apply for a review of the decision within the time allowed for an application. (4) A person found by the Tribunal to be unjustifiably interfering in a matter is not entitled to apply to the Tribunal for a review in relation to the matter. (5) In determining whether a person is unjustifiably interfering in a matter, the Tribunal is to take into account, to the extent that it is practicable to do so, the wishes and interests of any other persons who have an interest in the matter. (6) This section applies despite any contrary provisions of the Civil and Administrative Tribunal Act 2013 or the Administrative Decisions Review Act 1997 1. At the time the ADT was in existence, s 29(6) provided: (6) This section applies despite any contrary provisions of the Administrative Decisions Tribunal Act 1997. 1. The appellant submitted that the Tribunal should have applied s 29(3) of the CS Review Act to the question before it, not s 41 of the NCAT Act. Had it done so, the Tribunal would have been more likely to inform its understanding by reference to surrounding provisions of the CS Review Act and importantly also the objects and principles of the CS Review Act, as set out in s 3: 3 Objects and principles (1) The objects of this Act are as follows: (a) to foster, in community services and programs, and in related services and programs, an atmosphere in which complaints and independent monitoring are viewed positively as ways of enhancing the delivery of those services and programs, (b) to provide for the resolution of complaints about community services and programs, especially complaints by persons who are eligible to receive, or receive, those services, by families and by persons advocating on behalf of such persons or families, (c) to encourage, wherever reasonable and practicable, the resolution of complaints at a local level, (d) to encourage, wherever reasonable and practicable, the resolution of complaints through alternative dispute resolution, (e) to provide independent and accessible mechanisms for the resolution of complaints, for the review of administrative decisions and for the monitoring of services, programs and complaint procedures, (f) to encourage compliance with, and facilitate awareness of, the objects, principles and provisions of the community welfare legislation, including by education, (g) to provide for independent monitoring of community services and programs, both generally and in particular cases. (2) The following principles must be observed in exercising functions under this Act: (a) the paramount consideration in providing a service for a person must be the best interests of the person, (b) a person who is eligible to receive, or receives, a community service is also to receive an adequate explanation of the service, is to be heard in relation to the service and may question decisions or actions that affect the person in relation to the service, (c) a service provider is to promote and respect the legal and human rights of a person who receives a community service and must respect any need for privacy or confidentiality, (d) a service provider is, to the best of his or her ability, to provide such information about the service as may enable an appropriate decision to be made by the person for whom the service is, or is to be, provided, (e) a service provider is to enable a complaint about the service to be dealt with fairly, informally and quickly and at a place convenient to the complainant, (f) a complaint about the provision of a service is to be dealt with even if it is made by another person on behalf of the person eligible to receive, or receiving, the service. 1. As can be seen, s 3(2) of the CS Review Act requires persons exercising functions under that Act to observe certain principles. These relate to 'services' (which include statutory or other functions: CS Review Act, s 4(1)) and 'service providers' (which include authorised carers: CS Review Act, s 4(1)). Functions are exercised by the Tribunal under this Act. Accordingly, the provisions of s 3 must be taken into account. 2. Was it open to the Tribunal to treat s 41(1) of the NCAT Act as the source of its power and to disregard 29(3) of the CS Review Act when determining whether to extend time? It will be seen that s 41 gives the power to extend time 'under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation'. Putting to one side s 29(4), which has no application in the circumstances of this case, s 29 of the CS Review Act is not a 'contrary' provision in that sense. The ordinary meanings of 'contrary' include 'opposite in nature or character' (meaning 1), 'opposite in direction or position' (meaning 2); 'being the opposite one of two' (meaning 3): Macquarie Dictionary (4th ed. 2005). Similarly s 29(6) of the CS Review Act, which was amended when the NCAT Act was enacted, provides that s 29 applies 'despite any contrary provisions' of the NCAT Act or the ADR Act. NCAT Act's s 41 is not a contrary provision, for the same reasons. 3. There is a presumption that where different statutes may be seen as addressing the same subject matter, 'Parliament normally intends two statutes to work harmoniously together, so that each operates within its respective field of application' (see, for example, Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, per Gummow and Hayne JJ at [116]). To similar effect, Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 at 293-294 esp at 294 C-D, per Kirby P, with whom Clarke and Handley JJA agreed: '[I]n the absence of express repeal of earlier or other statutory provisions, it will normally be presumed that Parliament intended the two statutes to work harmoniously together so that each operates within its respective field of application.' 1. While s 29(3) of the CS Review Act confers a broad discretion, like s 41 of the NCAT Act, s 29(3) is a more specific provision, and applies in terms to cases of the present kind. As Lord Wilberforce noted in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553-554: '[E]ven where the earlier statute deals with a particular subject matter which is included within the general subject matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact, or is superseded[.]' 1. See also Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 esp per Gleeson CJ at 571-2. 2. We consider, that given the specificity of the provision in s 29(3) of the CS Review Act, and its place in a wider set of provisions dealing with the Tribunal's community services review jurisdiction (ss 28-32 making up Part 5), the legislature intended that only that provision is to apply when the Tribunal is determining whether to grant leave to allow a person to apply out of time for a review of a decision made reviewable by that legislation. In our view Part 5 supersedes the general provisions of the NCAT Act in the specific matters with which it deals. The provisions of Part 5, and in this instance, s 29(3), should therefore be interpreted and applied in a way that has regard to the objects of the Act in which the provisions are found (Brownells Ltd v Ironmongers' Wages Board (1950) 81 CLR 108; Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, Latham CJ at 68, Dixon J at 82; Bromley v Dawes (1983) 34 SASR 73). 3. Because the Tribunal regarded itself as bound to apply s 41 of the NCAT Act saw itself as statutorily bound (see s 36(2)), to apply that Act's 'guiding principles' as set out in s 36. The position was not as strict as that. The proper source of power was, in our opinion, s 29(3) of the CS Review Act, and the exercise of discretion was to be in informed by the principles of that Act (as provided in s 3(2)). We accept, as discussed further later in these reasons, that many of the matters to which the guiding principles refer involve considerations that are relevant to the exercise of procedural discretions in Tribunals. They are simply not mandatory considerationsin a case of the present kind, and they give way to the principles set out in s 3 if there is a real conflict. Further, we note that sub-section (5) of s 36 itself recognises the need to take heed of any special provisions in enabling legislation, and provides: (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 1. Conclusion: Our conclusion therefore is that the appellant's submission is correct. The Tribunal wrongly referred to s 41 of the NCAT Act as the source of its power, when s 29(3) of the CS Review Act governed its power to extend time in a case of the present kind, an application for review made in the Tribunal's community services review jurisdiction. 2. It follows that exercises of discretion to extend time in the community services review jurisdiction should not merely be informed by well-known general considerations adopted by courts and tribunals in considering that question (as to which see the discussion in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22), but also pay particular heed to any special considerations that derive from the enabling legislation. 3. In the present instance, had the Tribunal recognised that the source of power to extend time was s 29 of the CS Review Act, it would, we consider, have had regard to the particular objectives spelt out in s 3(1) of that Act as to the objectives of dispute resolution, and to the principles in s 3(2) , as submitted by the appellant. We accept that there was a reference in the decision to care and protection considerations, in particular the best interests of children, and to that extent there was an acknowledgment of a special feature of this jurisdiction. 4. The provisions of Part 5 of the CS Review Act, and the objects provisions to which we have already referred show, we consider, a particular concern with maintaining good relations between persons in dispute, and supporting the role of service providers. For example, s 29(1) gives the right to apply for review of a reviewable decision to persons with a 'genuine concern' in the subject matter. Section 29(2) allow for best friends and representatives to appear, while s 29(3) bars disruptive persons from the right to apply. Section 31 deals with alternatives that the Tribunal should explore to resolve the matter by way of 'amicable agreement' and s 32 confers a broad discretion on the Tribunal not to proceed to determine the matter for various reasons. In our view, these provisions all point to the promotion of understanding between parties in dispute. The respondent's own toleration in relation to the lateness of the internal review application, its preparedness to issue a revised internal review application and its non-opposition to the grant of an extension of time at first instance, and the extensive material it filed in support of its decision, all, it seems to us, reflected the spirit of co-operation to which the provisions of the CS Review Act give special emphasis. 5. Considerations taken into account by Tribunal: While it is not necessary to proceed to deal with the grounds of appeal in relation to these matters, given the conclusion we have reached as to the proper source of power, we will deal with the points raised. 6. The Tribunal referred to the following as considerations relevant to the exercise of its discretion: * the length of the delay in bringing the review application; * the reason for the delay; * the nature of the decision the subject of the review and whether there is an arguable case that the decision the subject of review is not the correct and preferable decision and should be set aside and varied; and * prejudice to the respondent and any other interested person if strict compliance with the rules is applied. 1. We accept that each of these matters is relevant to the exercise of a discretion to extend time. 2. An exercise of discretion is difficult to disturb on error of law grounds. The principles stated by Dixon, Evatt and McTiernan JJ in House v R (1936) 55 CLR 499 at 504-505 are applicable: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 1. Our principal difficulty with the Tribunal's reasons relates to its (implicit) conclusion that the length of the delay in filing the review application was 51 days not 6 days. (We note that the respondent made no written submissions at first istance on the preliminary question. As noted previously, it had no opposed a grant of extension of time. The only submissions were those of the appellant which pressed the view that the delay, at most, was one of about six days. The Tribunal made a finding that the start date for the effluxion of time was 9 May 2014, though there was no submission before it to that effect.) 2. We referred earlier in our reasons to the sequence of events set out in the Tribunal's reasons at [22]. We noted that there was a more elaborate statement of those events found in the respondent's submissions on appeal, and in the appellant's original submissions of 17 October 2014. 3. The material shows that the duty solicitors to whom the appellant turned for advice after receiving the determination of 9 May 2014 took steps to obtain clarification of the reasons (they went beyond those recounted in the Tribunal's reasons), and questioned the adequacy of the reasons as issued. The respondent's notice of decision 13 November 2013 gave only a summary account of the respondent's reasons for taking action. The same approach is seen in the notice of internal review issued 9 May 2014. It was not, as we see it, unreasonable of the solicitors to ask for some additional detail. 4. In our view it is dubious that either the first notice of decision or the internal review of 9 May constituted an 'adequate' statement in the way required by s 49 of the ADR Act (for primary decisions) or s 53(7) (for internal review decisions). The appellant's solicitor sought a more detailed explanation of the four grounds, listed as short bullet points, found in the internal review notice of 9 May. The appellant's solicitor also sought correction of some (minor) factual and legal errors. The respondent took those concerns under notice, and issued on 20 June 2014 a letter headed, like the 9 May one, 'Notice of outcome of internal review – decision to change placement'. The amplifications are not lengthy, but they do include a reference to an additional consideration. They seek to give a more detailed explanation of the four matters identified in the earlier notice. The first notice (9 May) was one page in length, and the second (20 June) two pages in length. 5. It is plain from the documents filed with the Tribunal by the respondent, pursuant to its obligation under s 58 of the ADR Act, that the respondent had engaged in a very careful, and detailed consideration of the case before making its decision. The bundle was refiled, with a few pages of additions, as part of the respondent's material for the Appeal Panel. In its updated form it was 393 pages in length. 6. We mention this to give a sense of the scale of the deliberations that went into making the decision to remove the children. The internal review letters were cursory by comparison, and in our view it is understandable that the lawyer consulted by the appellant tried to obtain a fuller set of reasons. The ADR Act, s 52(3) provides that an initial statement of reasons is adequate 'only if' it sets out the matters referred to in s 49(3) (findings on material questions of fact; understanding of the applicable law; and, most importantly, the reasoning process that led the administrator to the conclusions the administrator has made). Similar standards apply to the statement of reasons for an internal review determination: s 53(7). Emphasising the importance of adequacy of reasons, there is a right to apply to the Tribunal for an order that the administrator supply an adequate statement of reasons, at least in relation to original sets of reasons (see s 52(2)). 7. The respondent dealt in a spirit of co-operation with this request. It proceeded to issue a revised determination. 8. In those circumstances, it was, in our view, both reasonable and fair to treat the later revised determination as the commencement point for the exercise of any external review rights, even if, as a strict matter of legal interpretation, it might be said that the first internal review determination was the operative one, and the second one was not an effective exercise of that power. If an administrator is prepared to revisit the contents of an internal review determination in a spirit of co-operation and the review applicant waits for the outcome of the process before proceeding to apply to the Tribunal, it is unjust for the review applicant later to have that delay held against her or him in calculating time to exercise the right of external review. 9. Accordingly, the Tribunal, in fairness, should have treated as the relevant date for the commencement of the running time the date of the revised determination, adjusted by reference to the date when the appellant was 'notified' of the decision. That was 26 June 2015. Had that occurred, the delay would have been a very short one, not the very long one on which the Tribunal focussed. This may well have altered in a significant way its calculus in relation to the appropriate exercise of discretion. Its exercise of discretion miscarried to the extent that it had regard to a long delay after the internal review determination in bringing the review application to the Tribunal. We uphold the appeal in this respect. 10. One of the appellant's other criticisms was that it was not open to the Tribunal to take account of prior delays in the prosecution of the matter by the appellant (in particular, the delay of four months in seeking internal review). he appellant's argument appears to be that, as the administrator ignored or waived those concerns (by proceeding to deal with the application out of time), the Tribunal should do likewise or at least that it should have regard to the circumstance that the administrator had no objection to the extension of time. 11. In our view, the Tribunal is not bound, in any way, by the way that the administrator might chose to enforce the procedural rules that govern its handling of a dispute that ultimately finds its way to the Tribunal. Similarly, if the applicant for review has been tardy in pursuing their rights of review by the administrator, this can be taken into account by the Tribunal when it is evaluating whether to grant an extension of time. 12. As we stated earlier in these reasons, it remains open to the Tribunal to have regard to the objectives of the NCAT Act, if they do not conflict with the objectives of the CS Review Act. 13. The NCAT Act encourages the Tribunal to deal in a timely, low cost and efficient way with cases wherever possible. In our view, it is clearly relevant to the exercise of case management discretions, including the discretion to extend time, to have regard to the effect of delays in the pre-Tribunal stages of the dispute's handling on the ability of the Tribunal to deal with the proceedings in a way that accords with the goals of the law setting up the Tribunal. In our view, that was what the Tribunal was seeking to do, at this point of its reasons. It was right, we think, to note that there had been a significant delay on the part of the appellant in getting the case started. 14. It was also appropriate to have regard to the overall time the matter had taken to reach the Tribunal, even though one of the delays (the additional time taken by the respondent to provide the first internal review decision) did not derive from any conduct of the appellant. The Tribunal did also take into account some factors personal to the appellant that were emphasised in the submissions (her personal circumstances, the difficulty of accessing legal representation and advice in remote areas of the State, and similar matters). 15. For the reasons given, we uphold the appellant's grounds of appeal as they relate to the Tribunal's identification of its source of power, the unfairness of treating 9 May as the start date for the purpose of calculating the extent of delay, and, as a result attaching a degree of significance to the lateness of filing that was inappropriate. Had the Tribunal approached the issue in the way we have commended there may well have been a different decision. Accordingly, we uphold the appeal. Disposal 1. At hearing we had a brief discussion with the parties' legal representatives over what course of action should ensue if we considered that there were errors in the approach taken by the Tribunal. One suggestion was that if we were minded to allow the appeal, we should reconvene to consider our further orders. The Appeal Panel has a wide power to make 'such orders as it considers appropriate in light of its decision on the appeal': NCAT Act, s 81. We have decided not to pursue that course, but to make a final order now. 2. It is plain that this matter has now been the subject of several delays. The most significant was the delay of four months in challenging the primary decision. In that regard we should note, in fairness to the appellant, that the material filed reveals that she was in active contact with the respondent's officers during that time, primarily in relation to the question of continuation of her authorised carer status. We also acknowledge that at least one of the delays that subsequently occurred was not attributable to the appellant (the extra time taken by the respondent to issue the first internal review determination) and that her representatives would argue that some of the later delays were attributable to inadequacy of the written reasons issued by the respondent at each stage. 3. The delays that occurred at first instance have now been compounded by the delays at the appeal stage. The appeal itself was lodged, in time, on 23 December 2014. But it has proceeded slowly. The first delay resides, arguably, with the Tribunal in that the matter did not proceed to directions until 12 March 2015. But as noted earlier, the appellant sought, and was granted, an adjournment when the appeal first came on for hearing on 16 April 2015. The purpose of the adjournment was to allow the appellant time to consider whether she wished to proceed with the appeal. Eventually the appellant decided to proceed, and the hearing took place on 21 August 2015. 4. The point has now been reached where it is almost two years since the decision that gave rise to these proceedings was made. In our view, it clearly would not be desirable to have the underlying decision revisited now by a merits hearing so long after the event, and in circumstances as noted earlier where the appellant no longer has authorised carer status. 5. Accordingly we will not make an order of remittal, which would be the usual order in a case of this kind, or, as we might, retain the matter and dispose of the merits. 6. We will enter an order of dismissal as our formal order disposing of the proceedings. Order 1. Leave to appeal granted. 2. Decision to refuse to extend time set aside. 3. Order that the review application be dismissed. ********** 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 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: 28 October 2015