Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CFZ v Department of Education [2015] NSWCATAD 231 Hearing dates: On the papers Decision date: 12 November 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: (1) Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 the Tribunal, of its own motion, prohibits the disclosure or publication of the applicant's name and of other identifying information with respect to her. (2) Extension of time refused. (3) Application dismissed. (4) Liberty to both parties to apply within 14 days of the publication of these reasons with respect to order (1). Catchwords: Administrative review - application for extension of time in which to seek administrative review - factors relevant to the exercise of that discretion in the administrative review context - extension of time refused Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Teacher Accreditation Act 2004 Cases Cited: BKZ v The Children's Guardian [2014] NSWCATAD 23 Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212 Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Procedural and other rulings Parties: CFZ (Applicant) Department of Education (Respondent) Representation: Solicitors: In person (Applicant) Director, Legal Service, Department of Education (Respondent) File Number(s): 1510450 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 the Tribunal, of its own motion, prohibits the disclosure or publication of the applicant's name and of other identifying information relating to her. REASONS FOR DECISIOn Introduction 1. CFZ is a teacher who applied to the accreditation authority, the Secretary of the Department of Education (the respondent), for accreditation of her professional leadership under the Teachers Accreditation Act 2004. 2. Her application was refused on 5 January 2015. She then sought an internal review of that decision in an email dated 14 January 2015. 3. In an undated letter received by the applicant in April 2015 the decision was confirmed on internal review. That letter contained a passage advising CFZ of her right to seek external review at NCAT and warned that: You should note that a NCAT application has to be lodged within 28 days from when you are notified of an internal government agency decision. If you do not apply within the relevant time, NCAT may not be able to consider your case. 1. On 31 July 2005 CFZ made an application to the Tribunal to review the decision to refuse her professional leadership accreditation. She acknowledged that the application was lodged outside the 28 day period, after she received notification of the internal review decisions, set by r 24(4)(b) of the Civil and Administrative Tribunal Rules 2014. She explained the delay in writing ; I work full time and am time poor. Also being emotionally exhausted from the review argument. It is difficult to navigate a foreign area i.e. NCAT site. The process is overwhelming, complex and confusing. I required more than 28 days to understand the necessities. 1. As a consequence of her application for administrative review being lodged more than 28 days after she was notified of the decision, CFZ requires an extension of time in which to make her application, in order for it to proceed. The Tribunal has power to grant such an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (the CAT Act): (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. CFZ's application was first listed for directions on 1 September 2009 when the respondent opposed CFZ being granted an extension of time. The matter was adjourned so that CFZ could obtain a medical report going to that issue on which she wished to rely. 2. The application was again listed for directions on 29 September 2015 when the Tribunal ordered the respondent to file and serve submission as to why the application should not be accepted out of time by 20 October 2015. That issue was then to be determined by the Tribunal on the papers. 3. That decision on the papers has been allocated to me. As required by s 50(2) of the CAT Act I am satisfied that the issue can be adequately determined in the absence of the parties by considering the written submissions and the other material provided to the Tribunal by the parties. Principles applicable to a request for an extension of time The principles to be applied by an Appeal Panel on applications for an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel relevantly said: 18. Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". … 21. Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. Those principles, with appropriate adaption to the fact that here the Tribunal is dealing with an administrative review application, are equally applicable to CFZ's request for an extension of time in which to bring that application: see for example BKZ v The Children's Guardian [2014] NSWCATAD 23. In administrative review applications, there is a public interest component to the evaluation, in that the public interest in accepting a late application is a matter to be considered in the exercise of the discretion: see ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 and Edwards v Department of Family and Community Services [2012] NSWADT 60. So too is timeliness or delay in the antecedent administrative processes: see Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212. Those matters are necessary adaptions to the consideration of an extension of time in the context of an administrative review. 2. In Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4 Judicial Member Montgomery identified the following five factors as applicable to the exercise of the discretion to extend time in which to seek administrative review under s 55 of the then Administrative Decisions Tribunal Act 1997: Explanation for Failing to File in Time Prejudice Timeliness and Delay in the Antecedent Administrative Process Apparent Merits of the Case Public Interest: 1. I think those factors equally applicable to a consideration of an application for an extension of time in which to make an application for administrative review under the s 41 of the CAT Act. So too, of course, is the length of the delay. Consideration 1. In considering CFZ's application for an extension of time I have considered and taken into account all the material filed by her, and the respondent's written submissions. Because some of that material contains sensitive and personal health information relating to CFZ I have decided, of my own motion, to order pursuant to s 64 of the CAT Act that her name not be published or disclosed. As a result I have referred to her throughout these reasons as CFZ. I will grant liberty to both parties to apply within 14 days of the publication of these reasons with respect to that order. 2. A central difficulty that confronts CFZ is that her written explanation for the delay in making her application for administrative review as, set out in her application (and quoted at par 3 above), is not convincing. Each of the matters she there relies on, namely that she was busy, stressed, and that the Tribunal's processes are foreign to her and complex, face every unrepresented applicant to the Tribunal. There are many thousands such applicants. The lead busy lives and operate under numerous pressures, and the vast majority of them file their Tribunal applications in time. 3. That CFZ was notified of the applicable time limit in the internal review decision is not in question. Because that decision was undated, but received by the applicant at some time in April 2015, her delay in making the application is significant. The application was made 90 days or more after CFZ received the internal review, resulting in the application being made 62 days or more out of time. This is a significant delay. 4. CFZ had filed two medical reports apparently in support of her application for an extension of time. In a letter written to the Tribunal on 2 September 2015 seeking time to file those reports CFZ explained – A tribunal directions appointment was held on Tuesday 1.9.2015 with NCAT. This was a teleconference including myself, NCAT tribunal officer (sic) Stephen Montgomery, and the solicitor for DoE Christopher Miles. The result of the discussion was that I lodged my application to NCAT outside of the 28 days given and my reason of working 12 hour days Monday – Friday, as well as emotional challenges at home, was said not to be enough to proceed with the case. I asked what would be a valid enough reason and was informed that a medical issue may be supported. I asked for time to obtain a letter from my psychiatrist and it was agreed … that 4 weeks would be sufficient time. I have since contacted my psychiatrist 'the following day' and have been advised that he is away for two weeks … . I am requesting an extension of at least wo weeks … to submit medical reasons for my late lodgement to NCAT. 1. On 17 September 2015 CFZ provided two short medical reports from her psychiatrist. 1. The first is a copy of a report addressed to CFZ's GP and dated 7 January 2015, well before the internal review. It read: Thankyou for referring this 48 year old woman whose children I have seen some years ago. [CFZ]. reports that she used Dexamphetamine when she was studying teaching at university 10 years ago but stopped this as she didn't feel that she needed it for her teaching career. In the last four years, in an executive role, she has really struggled to deal with distraction and spends a lot of time at home doing schoolwork where it is quiet. She is becoming quite frustrated about the distractions and has been using Zoloft medication to ease some of that anxiety and frustration. In the last month, she tried her daughter's Ritalin tablet and noticed a significant improvement at school and was requesting her own prescription as an adult with ADHD. Her longitudinal history is consistent with ADD where she struggled in primary-school but there was no hyperactivity or behavioural disturbance. She left in year 10 because she struggled at school and went on to become a mother, going to uni, as I said, to years ago. She has troubles with concentration, organisation, struggles to read a book but sleeps well and has a reasonable appetite. She is otherwise physically healthy. I have suggested that [CFZ] commence on Ritalin medication and we spent some time talking about how to use it throughout the day and various doses for levels of concentration required, I have suggested that she could probably come off her Zoloft and gave her a withdrawal program. I am optimistic of a good response and I am reviewing her in six months' time for a repeat prescription at which stage, I can hand over prescribing to you for ongoing prescriptions. 1. The second is a hand written letter from her psychiatrist dated 16 September 2015. It says: This patient has a very long history of ADD. She recommenced medication in the form of Ritalin in late 2014 with good response. Prior to this she had struggled to undertake her duties due to feeling overwhelmed, disgruntled and lack of hours. 1. From those letters I can only conclude that CFZ has experienced an improvement in her condition since taking Ritalin. Given the relevant timescale, on the balance of probabilities, that change was evident by the time she received the internal review in April 2015. The psychiatrist reports a "good response" in late 2014. I am not persuaded that CFZ's medical condition would have prevented her from complying with the 28 day time limit for making an application for administrative review. He excuses are not convincing. 2. There is no suggestion that the applicant has suffered any active disadvantage as a result of the decision. She remains in her job in a government school. While the decision may affect her plans for advancement, she will not suffer any significant prejudice if an extension of time is refused. Similarly, the respondent points to no disadvantage it might suffer if an extension of time were granted. Additionally, CFZ should understand that there is nothing preventing her making a fresh application for accreditation now or in the future. 3. With respect to the issue of delays it is to be noted that under s 53(6) of the Administrative Decisions Review Act 1997 an internal review decision is to be completed with 21 days of receipt of the request for internal review. The internal review decision in CFZ's case is around two months late at minimum, inviting comparisons with CFZ's own delay. Neither party is pristine when it comes to delay. 4. Given the paucity of information relating to the merits or otherwise of CFZ's claim for accreditation it is not possible to assess the merits of her case. With respect to the public interest, while I accept that there is a public interest in ensuring the proper operation of the teacher accreditation system, there is nothing before me that points to this case necessarily raising such concerns. 5. When all these factors are taken into account it is my view that this is not a case in which the application of the 28 day time limit set by r 24(4)(b) of the Civil and Administrative Tribunal Rules 2014 will result in an injustice to CFZ. The rule has a valid purpose in ensuring orderly and timely Tribunal processes, which in these circumstances should prevail. I therefore decline to extend the time in which CFZ could made an application for administrative review. As a consequence her application was made out of time and must be dismissed. Orders 1. The Tribunal makes the following orders; 1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 the Tribunal, of its own motion, prohibits the disclosure or publication of the applicant's name and of other identifying information relating to her. 2. Extension of time refused. 3. Application dismissed. 4. Liberty to both parties to apply within 14 days of the publication of these reasons with respect to order (1). 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: 12 November 2015