Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thomson v Sydney Trains [2015] NSWCATAD 257 Hearing dates: On the papers Date of orders: 07 December 2015 Decision date: 07 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J Lucy, Senior Member Decision: 1. Applicant's application to extend time for the making of his application to the Tribunal is refused. 2. Application for review of a decision under the Government Information (Public Access) Act 2009 (NSW) is dismissed. Catchwords: GOVERNMENT INFORMATION – Application to Tribunal for review of agency's decision two years after making of reviewable decision – Application to extend time for the making of the application – Principles to be applied – Whether applicant provided a reasonable excuse for the delay in making the application – Excuse not reasonable Legislation Cited: Government Information (Public Access) Act 2009 (NSW) Transport Administration (General) Regulation 2005 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Government Information (Information Commissioner) Act 2009 (NSW) Cases Cited: Turner v Commissioner of Police, NSW Police Force [2013] NSWADT 157 Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 Neary v Commissioner of Police, NSW Police Force [2015] NSWCATAD 223 Category: Procedural and other rulings Parties: Ian Thomson (Applicant) Sydney Trains (Respondent) Representation: Counsel: Solicitors: I Thomson (Applicant in person) Henry Davis York Lawyers (Respondent) File Number(s): 1510284 REASONS FOR DECISION 1. On 26 March 2013, the applicant applied to the Rail Corporation of New South Wales ("RailCorp") for access to information under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). The information he sought comprised copies of closed circuit television and other video recordings on and adjacent to a platform at Penrith Railway Station on 26 June 2011 between 3.15pm and 6.00pm. 2. On 24 April 2013, RailCorp wrote to the applicant providing him with a Notice of Decision. The Notice of Decision stated that RailCorp refused to provide the applicant with a copy of the footage but had decided to provide access to the footage by according the applicant an opportunity to view it pursuant to s 72(1)(c) of the GIPA Act. The Notice of Decision also stated that the applicant could seek internal review within 20 working days or external review from the Information Commissioner or Administrative Decisions Tribunal within 40 working days. 3. On 7 May 2013, the applicant provided RailCorp with a written undertaking setting out conditions with which he agreed to comply if provided with a copy of the CCTV footage. On 14 May 2013, in reliance on the undertaking, RailCorp informally released the CCTV footage to the applicant under s 8 of the GIPA Act. 4. Sydney Trains was established as a body corporate on 7 December 2012 and was given some of the functions of RailCorp (Transport Administration (General) Regulation 2005 (NSW), cl 9B and 9C). It commenced operations on 1 July 2013. 5. On 6 August 2013, the applicant telephoned Sydney Trains to inform it that he was of the view that 14 minutes of footage was missing from the CCTV footage which had been provided to him by RailCorp. 6. On 10 December 2013, Sydney Trains wrote to the applicant informing him that it did not hold any additional CCTV footage and that all relevant footage had been provided to him. 7. The applicant also complained to the Information Commissioner about the alleged failure of RailCorp to provide him with all the footage requested. The Information Commissioner treated this as a complaint which it dealt with under s 18(1) of the Government Information (Information Commissioner) Act 2009 (NSW). 8. The applicant applied to the Tribunal on 25 May 2015 for a review of the decision of RailCorp (naming the respondent as Sydney Trains). In a letter addressed to the Tribunal and annexed to his application, the applicant alleges that the footage provided to him has been edited and that some footage is missing. 9. The matter came before me for a planning meeting. With the parties' consent, I directed the applicant to file an application for leave to extend the time for the filing of his application to the Tribunal, and directed the parties to file and serve evidence and submissions concerning the application for an extension of time. RELEVANT LEGISLATION 1. Section 100 of the GIPA Act confers upon a person who is aggrieved by a reviewable decision of an agency a right to apply to this Tribunal for a review of the decision. 2. Section 101 of the GIPA Act provides: "101 Time for applying for NCAT administrative review (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." 1. The Tribunal's functions when determining an administrative review are set out in s 63(1) of the Administrative Decisions Review Act 1997 (NSW). Section 63(1) provides: "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law." DETERMINATION OF MATTER ON THE PAPERS 1. The respondent consented to my determining the matter on the papers. The applicant requested an oral hearing, saying it would give him a better opportunity to put forward his evidence and supporting documents. 2. Having considered the parties' submissions on this matter and having reviewed their written material, I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material provided to the Tribunal. The applicant's evidence as to the incident which occurred on 26 June 2011 is not relevant to his application for an extension of time and the Tribunal has before it adequate evidence about the reasons for the delay in lodging the review application. Accordingly, I make an order dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). PARTIES' EVIDENCE AND SUBMISSIONS 1. The applicant relied on the substance and merits of his claim as factors in favour of extending time. He provided the Tribunal with a letter outlining the events he said occurred on 26 June 2011 in the parts of the CCTV footage he claims have been edited out. The applicant alleges that, during the periods of time which are not included in the footage, transit officers sexually assaulted him and gave him water to drink which was laced with drugs. He says that, although he had a loss of memory following the incident of 26 June 2011, nine days after it he could recall having been sexually assaulted. He states that his focus in making this application is bringing those men to account. 2. The applicant put forward a number of reasons for the delay in lodging his application for review. He said that he was not aware of the existence of this Tribunal until May 2015, a week before he lodged his application. He also said that he had been a full time carer for his mother, who has been diagnosed with severe Alzheimer's disease, from 2009 until her death in October 2014. He describes himself as being "under constant strain and torment" during the last few years of his mother's life. 3. The applicant also explained that, instead of approaching this Tribunal, he had sought help from members of parliament and others. The applicant provided the Tribunal with copies of letters he had received from the Deputy Director of Public Prosecutions, the Police Integrity Commission and the Information Commissioner in response to his requests for assistance in relation to his allegations about the conduct of the transit officers. He also complained to the Ombudsman about the missing footage and obtained a forensic report concerning the CCTV footage provided to him. 4. The applicant provided a letter in support of his application from his treating psychologist, Mr Mayr. Mr Mayr stated in the letter that, during his regular home visits to the applicant, the applicant was active in pursuit of justice in relation to the alleged incident of 26 June 2011, that the applicant was his mother's carer until her recent death and that the applicant's care for his mother was exhausting and complete. Mr Mayr expressed the view that the applicant suffers from significant psychological conditions and symptomology and that this prevented him from approaching the Tribunal earlier. 5. The respondent submitted that the applicant had not provided "a reasonable excuse for the delay in making the application" to the Tribunal, within s 101(4) of the GIPA Act. It said that this was particularly so given the length of the delay and the fact that the Notice of Decision informed the applicant of his rights for review and the requirement to file an application for external review within 40 working days. 6. The respondent submitted that Mr Mayr had not provided any evidence for his claim that the applicant "continued his pursuit of justice … in a regular consistent manner." The respondent also submitted that there was no evidence that the applicant's endeavours to obtain justice were such that they had slowed him down to the extent that he filed his application two years out of time. Further, in the respondent's submission, the applicant's carer responsibilities did not provide a reasonable excuse for a two year delay in filing his application. As for the applicant's psychological condition, the respondent submitted that there is no evidence of any causal connection between the condition and the two year delay. 7. The respondent submitted that the relevant factors to be taken into account in considering a request for an extension of time are those set out in Turner v Commissioner of Police, NSW Police Force [2013] NSWADT 157 (including the applicant's explanation for failing to file in time, prejudice to the respondent, timeliness and delay in the antecedent administrative process, merits of the case and public interest). 8. The respondent denies that any transit officers sexually assaulted the applicant or laced his drink with drugs, and also denies that the CCTV footage was edited. It says that the applicant's application is bound to fail in that he is seeking information that does not exist. CONSIDERATION 1. The decision in response to the applicant's GIPA application was made on 24 April 2013 and the application for review was made on 25 May 2015. The applicant therefore took over two years to lodge an application for review of this decision with the Tribunal. Reviewable decision by which applicant is aggrieved 1. The decision of 24 April 2013 was, as indicated above, to provide access to the information in the CCTV footage, but to do so without providing a copy of that footage to the applicant. On one view, he is not now aggrieved by that decision, but is rather aggrieved by the decision of 14 May 2013, insofar as he claims not to have been provided with a copy of all of the information he sought. His right to apply to the Tribunal for review depends upon him being "aggrieved" by a reviewable decision (GIPA Act, s 100). 2. The decision to provide a copy of the footage to the applicant on 14 May 2013 was made under s 8 of the GIPA Act. It is not a reviewable decision (see GIPA Act, s 80). 3. On the construction of the circumstances most favourable to the applicant, he is aggrieved by the decision of 24 April 2013 (the only reviewable decision), in that he was not provided with all of the information he claims is held by Sydney Trains. That is, even though the agency's decision was to provide him with access to the information in the CCTV footage, it did not, in his view, provide access to all of that information. Thus, it could be said that the agency made an implicit "decision that government information is not held by the agency" (GIPA Act, s 80(e)). For the purposes of this application for an extension of time, I will proceed on the basis that the applicant is aggrieved by RailCorp's decision of 24 April 2013 because he claims that the agency held information to which it did not give him access (in any form). 4. For the purposes of the application to extend time, I will also proceed on the basis that the applicant has correctly named the respondent as Sydney Trains. Whilst the respondent referred me to the establishment of Sydney Trains by regulation, and the fact that it became responsible for some functions previously exercised by RailCorp in 2013, no submission was put to me as to why the correct respondent is not RailCorp. Whether time for making of application should be extended 1. As indicated earlier, the Tribunal may extend time for the making of an application to it under s 101(4) of the GIPA Act if it is of the opinion that the applicant "has provided a reasonable excuse for the delay in making the application." The question of whether the applicant has provided a reasonable excuse of the delay is the key question the Tribunal has to form an opinion about: Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [18]. Other questions, such as the merits of the application for review, any prejudice to either party or the public interest are not relevant, except, possibly, to the exercise of the Tribunal's discretion if it does find that the applicant has provided a reasonable excuse for the delay: see Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [18] and Neary v Commissioner of Police, NSW Police Force [2015] NSWCATAD 223 at [25]. 2. I accept that the applicant was the sole carer for his mother who had Alzheimer's disease from 2009 until her death in October 2014. This would have made it more difficult for him to find time to apply to the Tribunal. However, he has not explained why he did not apply to the Tribunal between her death and May 2015. Further, I accept the respondent's submission that the applicant's carer responsibilities do not provide a reasonable excuse for a delay in filing of about two years. 3. I also accept Mr Mayr's evidence that the applicant suffered from psychological conditions of an unspecified nature. However, during the two year period between receiving the Notice of Decision and making his application to this Tribunal, the applicant, according to his own evidence, wrote to a variety of people and agencies in relation to his allegations concerning the transit officers. These include the Information Commissioner, members of parliament, the Deputy Director of Public Prosecutions and the Police Integrity Commission. Mr Mayr's evidence that the applicant "continued his pursuit of justice … in a regular consistent manner" is consistent with the applicant's own evidence that he took a variety of steps to pursue his allegations concerning the transit officers and the allegedly missing CCTV footage. This indicates that, notwithstanding the obstacles of his mother's illness and his own psychological conditions, he was able to pursue his case, as he saw it, during the two year period. 4. I note Mr Mayr's evidence that the applicant suffered from significant psychological conditions and symptomology that this prevented him from approaching the Tribunal earlier. However, I accept the respondent's submission that there is no evidence of any causal connection between the applicant's condition and the two year delay. Without any evidence of what the applicant's psychological condition is, and how it affects him, I do not accept that it prevented him from lodging his application, especially considering the other active steps he took to pursue his rights. 5. The applicant's lack of awareness of his right to apply to the Tribunal is not a reasonable excuse for the delay, given that the respondent informed him of his right to apply to the former Administrative Decisions Tribunal in April 2013. The Notice of Decision of 24 April 2013 also informed him that he had 40 working days to make that application. His evidence that he only discovered the existence of this Tribunal in 2015 does not explain why he did not make an application to the Administrative Decisions Tribunal in 2013. 6. For these reasons, I am not of the opinion that the applicant has provided a reasonable excuse for the delay in making his application to the Tribunal. In these circumstances, I have no power to extend the time for the making the application under s 101 of the GIPA Act. 7. Neither party raised the question of whether s 41 of the NCAT Act gives the Tribunal an unfettered discretion to extend time, notwithstanding the terms of s 101(4) of the GIPA Act. Section 41(1) provides that: "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." 1. The provisions of Part 4 of the NCAT Act, including s 41, are expressed to be "subject to enabling legislation" (NCAT Act, s 35). The GIPA Act also provides for the relationship with the NCAT Act. It provides that the provisions of Division 4 of Part 5 of the GIPA Act "are intended to prevail to the extent of any inconsistency with provisions of … the NCAT Act" (GIPA Act, s 112A). 2. In my preliminary view, the effect of these provisions is that an application to extend time to apply to the Tribunal for review of a decision made under the GIPA Act is to be determined in accordance with s 101(4) of the GIPA Act. If I am wrong, and the Tribunal may exercise an unfettered discretion to extend time under s 41 of the NCAT Act, I would refuse the application to extend time. My reasons for doing so include to the length of the delay, the notification to the applicant of his right of review in April 2013 and the evidence that the applicant was actively engaged in otherwise pursuing his rights in the period between April 2013 and May 2015. 3. As the applicant has not made his application for review within time, and the Tribunal has refused his application to extend time for the making of the review application, it does not have jurisdiction to hear or determine his application for review (NCAT Act, s 30(1); Administrative Decisions Review Act, s 9(1) and (2) and 55(2); GIPA Act, s 101). Accordingly, his application for review is 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: 07 December 2015