Posted on February 15, 2018 by

A “reasonable excuse” for delay in bringing an application for GIPA Act review

In a recent decision of the NSW Civil and Administrative Tribunal (NCAT), an application for review of an agency’s decision to refuse access to documents requested under the Government Information (Public Acccess) Act 2009 (GIPA Act) which was lodged out of time was nevertheless allowed by NCAT because it determined that the applicant for review (CGU) had a “reasonable excuse” for the late lodgement of its application.

Whilst each case will turn on its own facts, this case provides some guidance on the test  that the NCAT will apply when determining whether to allow a late application and the circumstances in which such a late application may in fact be allowed.

CGU’s GIPA Act Application

On 7 April 2017, CGU applied to the Department of Planning and Environment (DPE) for access to certain documents under the GIPA Act.

The DPE issued a Notice of Decision on 12 May 2017 providing access to some of the requested documents and refusing access to others. That decision was a “reviewable decision” under section 80 of the GIPA Act.

After receiving the Notice of Decision, CGU sought an external review from the Information Commissioner.

On 3 August 2017, the Information Commissioner concluded that the DPE’s decision was not justified and recommended that it make a new decision.

Under s101(2) of the GIPA Act, CGU could lodge an application for review of the “reviewable decision” to NCAT within 20 working days of being notified of completion of the Information Commissioner’s  review, that is, by 31 August 2017.

Reasons for delay in bringing a review of the DPE’s reviewable decision

However, CGU’s application to NCAT was not made until 21 November 2017, that is almost 12 weeks late.

The reasons for CGU’s delay in lodging an application for review of the DPE’s “reviewable decision” were that:

• the DPE decided not to follow the Information Commissioner’s recommendation;
• CGU communicated with the DPE by letter, email and telephone seeking clarification of the Department’s reasoning in not following the Information Commissioner’s recommendation (and presumably trying to persuade the DPE to change its position); and
• on 10 October 2017 the DPE wrote to CGU setting out its reasons for not following the Information Commissioner’s recommendation.

The delay during the period 11 October 2017 – 10 November 2017 was not explained by CGU but NCAT concluded that CGU’s solicitors were likely seeking instructions during this period.

The further delay from 11 November – 21 November 2017 was a result of an electronic copy of CGU’s application being sent to NCAT by email on 10 November 2017 but it was not able to be officially filed until a hard copy was provided with the required fee on 21 November 2017.

Test to be applied to late applications

Having observed that CGU’s application had been made out of time, NCAT had to determine the relevant test to be applied regarding whether it could extend the time for CGU to lodge its application for review of the DPE’s “reviewable decision” to the date that that application was actually lodged.

The two tests that NCAT considered which may have applied were:

• the test in s101(4) of the GIPA Act which provides that NCAT may extend the time to apply for a review if it “is of the opinion that the person has provided a reasonable excuse for the delay in making the application”; and
• the broad discretion under s41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) to “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.”

NCAT did not form a concluded view on the test to be applied but instead relied on the preliminary view expressed in Thomson v Sydney Trains [2015] NSWCATAD 257 at  [34] – [36] and decided that the extension of time was to be determined in accordance with the test in s101(4) of the GIPA Act.

On the basis of this test, NCAT found that the circumstances set out above surrounding the delay in making CGU’s application provided a “reasonable excuse” which justified the time for the application to be made to be extended.

NCAT did not form a concluded view on which test should apply because it found that it would also have extended the time to bring the appeal using its discretion under s41 of the NCAT Act.

Lessons to be learned 

This decision provides some guidance as to the circumstances (either on their own or in combination) that the NCAT considers are a “reasonable excuse” sufficient to enable the NCAT to allow an otherwise late application. Having said that, each matter will involve a consideration of all of the circumstances of the matter.

In this matter the NCAT found that the following circumstances provided a “reasonable excuse” for the delay in making an application for review:

• communications between the agency that makes a “reviewable decision” and the access applicant, regarding the reasons the agency did not make a new decision (contrary to the recommendations of the Information Commissioner);
• periods in which the access applicant’s solicitors are seeking instructions from the access applicant regarding whether to make an application for review of the agency’s decision; and
• periods in which lodgement of an application to NCAT for review are delayed due to administrative errors.

To read the full decision of CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 32 click here.

Lindsay Taylor Lawyers regularly provide advice to local and state government agencies regarding GIPA Act related issues. Should you wish to discuss this blog or the GIPA Act in general, please contact Carlo Zoppo, Partner on 8235 9705 or carlo.zoppo@lindsaytaylorlawyers.com.au