Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fuchs v Commissioner of Police, NSW Police Force (No 2) [2017] NSWCATAD 92 Hearing dates: On the papers Date of orders: 29 March 2017 Decision date: 29 March 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Renwick SC, Senior Member Decision: The application for an extension of time to set aside or vary the Tribunal's decision of 31 August 2016 in [2016] NSWCATAD 198 is refused and the application is otherwise dismissed. Catchwords: Civil and Administrative Tribunal – Government Information (Public Access) Act 2009 – Decision made reviewing respondent's decision under review – matter decided on papers with consent of both parties – application to vary or set aside Tribunal decision made out of time – no reasonable prospects of success – decision to extend time refused Legislation Cited: Government Information (Public Access) Act 2009 Category: Principal judgment Parties: Alexander Michael Fuchs (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: P Baigent (Applicant) (with leave) Henry Davis York (Respondent) File Number(s): 1510285/2016/00378465 Reasons Background 1. This matter has a very extended procedural history which is noted in the substantive decision I made on 31 August 2016 (see [2016] NSWCATAD 198] to affirm the decision under review (as amended) of the Respondent, the Commissioner of Police, NSW Police Force, in relation to an application made under the Government Information (Public Access) Act 2009 by the Applicant, Mr Alexander Michael Fuchs. 2. The following matters referred to in the earlier decision may here be noted: 1. No later than 27 January 2016 at a planning meeting the Tribunal accepted that the letter sent by the then legal representative of the Applicant on 17 December 2015 would be treated as narrowing the scope of the application. That decision to treat the application as narrowed is one with which the Applicant's lay representative, Dr P Baigent, continues to contest. However, there was no appeal from that decision, the decision was confirmed by a different member of the Tribunal at a planning meeting on 15 February 2016 and as indicated in paragraph [10] of my earlier reasons I did not intend to alter those earlier decisions. It follows that the Applicant's continued complaint about the narrowing of the application is misconceived. 2. The application was heard on the papers with the knowledge and agreement of both parties as is set out in my decision and in the Respondent's submissions of 1 December 2016. 3. My reasons were delivered on 31 August 2016 and set out, as is obvious from their face, the reasons in full for my decision. 4. No appeal has been brought from that decision and an appeal would now be out of time. 1. Rather than appeal, on 25 October 2016, the Applicant filed an application to set aside or vary my decision on the grounds that the decision was made in his absence resulting in the case not being adequately put to the Tribunal within the meaning of reg 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013 which provides: 1. In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: 2. …(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. Section 50 of the Civil and Administrative Tribunal Act 2013 provides as follows: (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. Regulation 9(8) of the Civil and Administrative Tribunal Regulation 2013 provides that 'Proceedings for the purposes of this clause [namely for an application to set aside or vary proceedings] are prescribed for the purposes of section 50(1)(d) of the Act'. 2. Regulation 9(3) provides 'Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made'. 3. It follows therefore that: 1. This application does not require a hearing, rather it may be, and I have decided that it shall be, determined on the papers. 2. Unless an extension of time is granted, there is no right to seek to set aside or vary a decision when an application is made more than 7 days after the decision concerned was made. Rather, leave must be obtained. 3. In deciding whether or not to permit the application to be entertained out of time I prose to consider whether: 1. the application is arguable; and 2. there is any prejudice to the Respondent; 3. for any other reason the extension of time should not be granted. 1. I accept the submissions made by the Respondent that it would suffer prejudice if the decision was set aside. The Respondent has evidently expended significant time and money preparing its submissions to the Tribunal, including in respect of the current application. The Respondent is entitled to rely on the principle of finality and indeed the guiding principle of the Tribunal under s 36 of the Civil and Administrative Tribunal Act 2013, namely, that I am required to facilitate the just, quick and cheap resolution of the real issues in the proceedings and that the practice and procedure of the Tribunal is to be implemented to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings. 2. Second, I consider that the application has no prospects of success, and is thus not arguable. 3. In those circumstances, I propose to deal with the matter shortly. 4. First, reg 9(1)(b) is not engaged because that provision is referring to a decision made in the absence of a party, but does not include the circumstance where the party has agreed to the proceedings being determined on the papers and has had full opportunity to put on its submissions. That is not this case. 5. Further, even if the absence referred to reg 9(1)(b) could possibly extend to a situation such as occurred here, it cannot be said that as a result or consequence of such absence the Applicant's case was not adequately put. To the contrary, all of the Applicant's submissions were considered and the Applicant had every opportunity to file the submissions that he wished. 6. Third, there is no arguable basis that a different decision would have been reached by me in any event. The reasons in the principal decision fully deal with the submissions put on behalf of the Applicant. 7. Fourth, I adopt the submissions set out by the Respondent in its submissions of 1 December 2016, paras [1]-[42], the submissions as to the need for hearing in [43]-[46] I have dealt with above: namely, by operation of cl 9(8) of the regulation I need not and have decided not to have a hearing. 8. It is evident, as noted above, that the Applicant wishes to re-contest the decision made early in these proceedings by two other Tribunal members to treat a letter from his then solicitor narrowing the scope of his application as being effective. No appeal was made from that decision made by one member, affirmed by another, and in circumstances where I indicated I did not propose to alter those earlier decisions. The guiding principle under the Act is a strong reason not to have altered that approach. 9. In those circumstances: 1. The application to set aside or vary the decision has no prospects of success and for that reason alone I would not grant an extension of time under reg 9(3); 2. There is no sufficient or satisfactory explanation of the delay and; 3. in any event I find that the Respondent would suffer prejudice. 1. In the circumstances, I decline to extend time in which to bring the application under reg 9 and I otherwise dismiss the application. 2. This leaves the question of costs. 3. I have seriously considered an award of costs to the Respondent but essentially because neither the Applicant, nor his advisor are legally represented, I have decided, in my discretion, that there are not special circumstances warranting an award of costs. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar and Director ********** 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: 29 March 2017