Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CFA v Department of Family and Community Services [2016] NSWCATAD 32 Hearing dates: On the papers Date of orders: 18 February 2016 Decision date: 18 February 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: 1. Matter to be determined on the papers. 2. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 the Tribunal, of its own motion, prohibits the disclosure of the applicant's name. 3. Applicant's application for an extension of time to make her application to the Tribunal, to 14 October 2015, is granted. 4. Matter listed for directions on 1 March 2016, 9.30 AM. Catchwords: PRIVACY APPLICATION – Application for extension of time to lodge application – Relevant principles – application granted. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Administrative Decisions Review Act 1997 (NSW) Interpretation Act 1987 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: CFZ v Department of Education [2015] NSWCATAD 231 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Ministry of Transport v Kharbanda [2006] NSWADTAP 61 Category: Procedural and other rulings Parties: CFA (Applicant) Department of Family and Community Services (Respondent) Representation: Solicitors: Legal Aid NSW (Applicant) Department of Family and Community Services, Legal Services(Respondent) File Number(s): 1510640 Publication restriction: The disclosure of the name of the applicant is prohibited. REASONS FOR DECISION 1. This is an application for an extension of time to apply for review of conduct pursuant to the Privacy and Personal Information Protection Act 1998 (NSW) ("Privacy Act"). For the reasons which follow, I have decided to grant that application. Factual Background 1. The applicant is an Aboriginal woman who lives in Bourke. 2. In 2014, the applicant was employed as an Aboriginal health worker at a health agency. 3. In February 2014, the health agency received a report of alleged abuse by the applicant against her child. 4. In March 2014, the health agency made a request to the respondent ("FACS") under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act") for information about the applicant, the child protection history of her child and other relevant information to assist the health agency in assessing the risks the applicant may pose to children. 5. In April 2014, FACS provided information about the applicant to the health agency, including a summary of risk of harm reports and a copy of secondary assessments and decisions regarding her children. The material was supplied to the health agency under a cover letter. The information identified the applicant as a person associated with causing risk to children. In responding to the health agency's request for information, FACS created a summary document, which it sent to the health agency. 6. In September 2014, the applicant's employment with the health agency was terminated. According to the applicant, the investigation report of the health agency relied upon material provided to it by FACS. 7. On 2 February 2015, the applicant applied for a review of FACS' conduct in providing the health agency with her personal information, pursuant to s 53 of the Privacy Act. The applicant referred in the application to information about her being inaccurate. 8. On 9 July 2015, FACS sent the applicant its internal review. FACS acknowledged that it had breached s 16 of the Privacy Act in that it had used the applicant's personal information without taking such steps as were reasonable in the circumstances to ensure that the information was relevant, accurate, up to date, complete and not misleading. FACS apologised to the applicant for FACS's failure to comply with s 16. 9. The internal review found that FACS had not breached ss 17 or 18 of the Privacy Act, because it could rely upon the exemption in s 25 of the Privacy Act. That is, FACS found that it was authorised or permitted not to comply with ss 17 and 18 under Ch 16A of the Care Act. 10. The internal review advised the applicant of her right to apply to this Tribunal for a review. 11. The applicant gave sworn evidence that she received the internal review some time after 9 July 2015 and before 16 July 2015. 12. The applicant's evidence is that she found the internal review decision difficult to understand. On 16 July 2015, she attended Maranguka Aboriginal Community Hub in Bourke and spoke with a solicitor for Legal Aid NSW. The solicitor looked at the internal review, but did not have any legislation or a computer to consult about privacy law. The solicitor did not advise the applicant that the Tribunal had a power to award compensation. 13. On 21 September 2015, the applicant emailed the internal review to the solicitor. On 12 October 2015, the solicitor telephoned the applicant to advise her that she could seek compensation in the Tribunal, but that it would be necessary to seek an extension of time to apply to the Tribunal. The applicant immediately instructed Legal Aid to file an application on her behalf. 14. The application for review of FACS's conduct was filed on 14 October 2015. The application states that the date the applicant was notified about the decision was 9 July 2015, and that it was received "on or around 9 July 2015". Determination on the papers 1. The parties have filed and served evidence and submissions. They both consent to the application for an extension of time being determined on the papers. 2. I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering written submissions and other documents or material lodged with or provided to the Tribunal. I order that a hearing be dispensed with in relation to the extension of time application: Civil and Administrative Tribunal Act 2013 (NSW), s 50(2). Non-Disclosure Order 1. It is the Tribunal's policy to anonymise the name of the applicant in proceedings under the Privacy Act: see NCAT Administrative and Equal Opportunity Division Procedural Direction 9: Publication, Anonymisation and Suppression, cl 4.2(b). This is to ensure that the proceedings do not, themselves, have an adverse effect upon the applicant's privacy, a circumstance which might discourage applicants from seeking review in the Tribunal. 2. Having regard to this policy, and the factual circumstances of this case, I am satisfied that it is desirable to make an own-motion order prohibiting the disclosure of the name of the applicant, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act. I accordingly make such an order. Relevant Legislation 1. Section 40 of the Civil and Administrative Tribunal Act provides: "40 Making of applications and appeals An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules." 1. Section 55(2) of the Administrative Decisions Review Act 1997 (NSW) provides: "(2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules." 1. The enabling legislation, that is the Privacy Act, does not provide a time limit for the making of an application to the Tribunal. 2. The Civil and Administrative Tribunal Rules 2014 (NSW), which are "procedural rules" (see Administrative Decisions Review Act, s 4(1); Civil and Administrative Tribunal Act, s 4(1)), provide, relevantly, in r 24(3) and (4): "(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made: (a) in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or (b) in any other case—by the end of the default application period. (4) The default application period for the purposes of subrule (3)(b) is: … (a1) in the case of an administrative review application under section 55 of the Privacy and Personal Information Protection Act 1998—the period of 28 days after: (i) if an internal review under section 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned—the day on which the applicant was notified of the result of the internal review, or (ii) if an internal review under section 53 of that Act is not completed within that 60-day period—the day on which the 60-day period expires or the day on which the applicant was notified of the result of the internal review (whichever is the later), or…" 1. Section 41 of the Civil and Administrative Tribunal Act 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." Consideration 1. Section 41 of the Civil and Administrative Tribunal Act confers an unfettered discretion on the Tribunal to extend the time for the making of an application to it. However, this discretion must be exercised judicially: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]. 2. The principles applicable to extending time in administrative review proceedings were considered by Molony SM in CFZ v Department of Education [2015] NSWCATAD 231. The Senior Member said (at [8]) that the principles to be applied by an Appeal Panel on applications for an extension of time, as discussed in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, were equally applicable to an administrative review application, with appropriate adaptation. 3. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel said at [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 …. (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. In CFZ v Department of Education [2015] NSWCATAD 231, Molony SM also referred to some considerations which are relevant in administrative review applications: "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." 1. Whilst it is important to remember that the Tribunal has a broad discretion concerning the grant of an extension of time, the cases referred to above establish that the following factors are relevant: 1. The length of the delay; 2. The reason for the delay; 3. The applicant's prospects of success; 4. Any prejudice suffered by the respondent; 5. Public interest considerations; 6. Timeliness or delay in antecedent administrative processes; 7. Whether strict compliance with the rules will work an injustice upon the applicant. Length of the delay 1. As the parties agreed, the applicant was required to apply to the Tribunal within 28 days of having been notified of the result of the internal review (see Civil and Administrative Tribunal Rules, r 24(4)(a1)(ii)). 2. The applicant's solicitor has estimated the delay as being two months and nine days, or 70 days, on the basis that the internal review was received on 9 July 2015. The respondent also relied upon 9 July 2015 as the date time started to run. It is not explained why this date was chosen when the applicant claims in her affidavit to have received the internal review between 9 and 16 July 2016. 3. In any event, the delay is clearly more than two months. 4. This delay is substantial without being excessive. Reason for the delay 1. The applicant's explanation for the delay was, in summary, that she found the internal review difficult to understand and that she "didn't know exactly what it was trying to say or what it actually meant for me". In addition, although she knew she could apply to the Tribunal, she did not know what that could achieve and, in particular, she did not know that the Tribunal could order FACS to provide her with compensation. 2. The internal review is a fifteen-page document, containing eleven substantive pages and four pages of legislation. It contains a thoughtful analysis of the application of the provisions of the Privacy Act to the applicant's circumstances. It refers to case law on provisions of the Privacy Act and agencies' powers and obligations under Ch 16A of the Care Act. The language is in places technical. 3. Without making any criticism of the author of the internal review, who has provided a detailed and careful analysis of the relevant provisions, I accept that the applicant had difficulty understanding a document of this kind and length. 4. The applicant's evidence, which I accept, is that the Legal Aid NSW solicitor did not advise her that the Tribunal could provide her with compensation. In the absence of a copy of the legislation, or any case law or commentary on that legislation, the solicitor was not in a position to properly advise the applicant at their meeting of 16 July 2015 about her rights. 5. FACS submitted, relying upon Ministry of Transport v Kharbanda [2006] NSWADTAP 61, that ignorance of the law does not constitute a reasonable explanation. I do not accept that that case stands for that proposition. The case was concerned with an application by an agency for an extension of time to appeal in circumstances where the agency had solicitors acting for it. The application was refused as the explanation for the delay was not considered acceptable. It was contemplated in that case that different principles may apply in respect of an application by a government agency and an application by an individual (at [11] and [27]). The Appeal Panel noted (at [27]) that "[e]ven in the case of a sophisticated litigant (such as a government department) it may be unduly harsh to visit upon it an omission on the part of its legal adviser." 6. The question of whether the applicant has provided a "reasonable explanation" for the delay is a question of fact, to be determined on a case by case basis by the Tribunal. 7. It is relevant that, according to the submissions made by Legal Aid on the applicant's behalf, Legal Aid did not agree to represent the applicant until 12 October 2015. Although this information is not contained in the applicant's affidavit, I regard it as relevant factual information to which I may have regard: see Administrative Decisions Review Act, s 63(1)(a). Thus, the applicant had the benefit of a meeting of limited scope with a solicitor on 16 July 2015, but was not represented until much later. 8. In my view, the applicant has provided a reasonable explanation for the delay. Although she was aware of her right to apply to the Tribunal, she did not know what this right entailed or what such proceedings could offer her. As her evidence indicates, she lived in a remote community where it was difficult to access legal advice. 9. Once the applicant had been informed by a solicitor that she could apply to the Tribunal to seek compensation, she promptly did so. I accept her evidence that, had she realized she could apply for compensation when she first met with a Legal Aid solicitor, she would have done so at that time. Prospects of success 1. The applicant's application to the Tribunal seeks review of the conduct of FACS on the grounds that the applicant is not satisfied with: 1. the internal review finding that the information supplied by FACS to the health agency was not the cause of the applicant's dismissal by the health agency; and 2. the action taken by FACS in that it did not award monetary compensation to the applicant. 1. In assessing whether the applicant has reasonable prospects of success, the test is usually whether the applicant has a fairly arguable case: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. 2. FACS submits that the applicant's case is without merit because FACS has taken action to amend her personal information, provide up-to-date information about her to the health agency concerned and apologise to her for the breach of s 16 of the Privacy Act. It also says that she has no entitlement to monetary compensation because s 245G of the Care Act provides immunity from civil and other liability for a person providing information in accordance with Ch 16A of that Act. 3. Chapter 16A of the Care Act authorises the exchange of information by "prescribed bodies" (including FACS) for specified purposes including to conduct an investigation or make a decision relating to the safety, welfare or well-being of a child or young person. Section 245G of the Care Act, which forms part of Ch 16A, provides: "245G Protection from liability for providing information (1) This section applies if a person, acting in good faith, provides any information in accordance with this Chapter. (2) Any such person is not liable to any civil or criminal action, or any disciplinary action, for providing the information. (3) In providing the information, the person cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct." 1. The respondent contends that the word "person" in s 245G applies to FACS because, pursuant to s 8(d) of the Interpretation Act 1987 (NSW), the word "person" in legislation is to be interpreted to include both individuals and organisations. It also argues that, prior to the enactment of s 245CA of the Care Act in 2005, the immunity from civil and other liability only applied to organisations and that it is "against logic" to argue that s 245G, enacted in 2009, is only applicable to individuals. 2. The other reason why FACS says that the applicant is not entitled to compensation is that there is no causal link between FACS' conduct and the applicant's loss of employment. This is because, it is submitted, FACS is not liable for the disclosure of information (due to s 25 of the Privacy Act), and FACS is protected under s 245G of the Care Act. 3. The applicant submits that s 245G does not apply to FACS as it only applies to individuals. It follows, in the applicant's submission, that s 245G is no bar to the applicant being awarded compensation under the Privacy Act. 4. The applicant also disputes that the causal link between FACS's conduct and her dismissal has been broken. She says that there are authorities to the effect that s 16 extends to the disclosure of information but, even if it does not, her personal information was compiled before it was disclosed. The compiling of the information and the preparation of a letter to the health agency constituted a "use" of information. The health agency then relied upon the information to terminate the applicant's employment. 5. In my view, the applicant has a fairly arguable case that the Care Act does not preclude an award of compensation under the Privacy Act. 6. The respondent's reliance on s 8(d) of the Interpretation Act does not advance its case. Section 8(d) is concerned with the question of whether a reference to a person includes a reference to a corporation. FACS is not a corporation. 7. Section 21 of the Interpretation Act is a more relevant provision. Unless the contrary intention appears in the Care Act, "person" includes a body politic (such as FACS) (Interpretation Act, ss 5(2) and 21). 8. As the applicant has submitted, references in s 245G of the Care Act to "disciplinary action," the breach of "any code of professional etiquette or ethics" and departure from "any accepted standards of professional conduct" support the applicant's argument that "person" in s 245G means only "individual." I am not persuaded by the respondent's argument that, prior to the enactment of s 245CA of the Care Act, the immunity from civil and other liability in s 245G only applied to organisations. As the applicant submitted, it was clearly intended to apply to natural persons within those organisations. 9. It is not necessary for me to determine whether s 245G applies only to individuals; it suffices that I am of the view that the applicant has established an arguable case that s 245G of the Care Act evinces an intention that it applies only to individuals. 10. I also find that the applicant has established an arguable case as to causation. The respondent accepted in the internal review that it wrote a letter to the health agency and provided a summary of information. Both of these activities is a "use" of information. FACS has conceded in its internal review that its use of information contravened s 16 of the Privacy Act. 11. There is limited material before me about the health agency's decision to terminate the applicant's employment but the applicant asserts that it only had one other source of information on which it relied to terminate the applicant's employment. In these circumstances, it is arguable that "the applicant has suffered financial loss, … because of the conduct of" FACS (Privacy Act, s 55(4)(b)). 12. Other considerations, such as whether Ch 16A, taken as a whole, is inconsistent with the statutory regime authorising a review of conduct under the Privacy Act (including under s 16), where personal information is used in order to be exchanged under Ch 16A, were not canvassed by the parties. These may ultimately be relevant to the determination of the applicant's application for review. However, as neither party developed such arguments in any detail, I have not considered such issues for the purposes of the application for an extension of time. Prejudice 1. FACS does not claim that it will suffer any prejudice if the extension of time is granted. Public interest considerations 1. FACS submits that there is a public interest in not expending funds to allow an application which is misconceived and lacking in merit. 2. For reasons given above, I am not of the view that the application is misconceived and lacking in merit. 3. There are public interest considerations in favour of the application proceeding. As the applicant pointed out, the internal review refers to FACS's conduct pointing to systemic failures to ensure that timely records about a child's safety are recorded in its database and to ensure that a determination that the applicant was a "person associated with causing risk" was amended once it became inaccurate. I accept the applicant's submission that there is a public value in the determination of this matter given the indication in the internal review that FACS has systemic failures in its record keeping systems. Timeliness or delay in antecedent administrative processes 1. The applicant stated, in her submissions, that the response to her internal review request was split into two separate decisions, the determination and the internal review decision. Whilst the determination was issued within 60 days, according to the applicant, the internal review decision was received 97 days after the expiry of the statutory processing period. 2. The Tribunal does not have a copy of the determination. However, it does have the internal review and notes that this was provided to the applicant significantly later than is contemplated by s 53(6) of the Privacy Act. 3. This is a factor in favour of extending the applicant's time to apply to the Tribunal. Whether strict compliance with the rules will work an injustice upon the applicant 1. Taking into account the applicant's lack of understanding of the internal review, and of the functions of the Tribunal, until after the period for applying to the Tribunal had expired, it is my view that strict compliance with the rules would work an injustice upon the applicant. As an Aboriginal woman in a remote community without ready access to legal advice, she would be unfairly disadvantaged by an approach requiring strict compliance. Nor would such an approach be consistent with the object of the Civil and Administrative Tribunal Act "to ensure that the Tribunal is accessible and responsive to the needs of all of its users" (s 3(c)). Conclusion 1. For the reasons given above, I have formed the view that the applicant's application for an extension of time to lodge her application should be granted. 2. The matter is to be listed for directions so that a timetable may be made to prepare the case for hearing. 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: 18 February 2016