Posted on July 4, 2022 by 2

When is an application for administrative review unreasonably out of time?

The NSW Civil & Administrative Tribunal has handed down two decisions recently which illustrate when an application for administrative review will be thrown out for being unreasonably out of time.

The cases illustrate the importance of calculating limitation periods both for people looking to apply for administrative review and for decision-makers who have been served an application to the NCAT and are determining how to respond.

Time limits for applying for administrative review

The time limits for applying for administrative review are set out in various pieces of legislation, namely:

• the Administrative Decisions Review Act 1997 (‘ADR Act‘),
• the Civil and Administrative Tribunal Act 2013 (‘CAT Act‘), and
• the Civil and Administrative Tribunal Rules 2014 (‘Procedural Rules‘).

The ADR Act provides essentially two forms of review: internal review (s 53), conducted by the decision-maker, and administrative review, conducted by the NCAT (s 55).

An administrative review generally cannot occur without an internal review happening first if the person making the application was entitled to seek an internal review (ADR Act s 55(3)).

The time limits which apply are as follows:

• A person has 28 days to apply for internal review after they have either received a notice of the decision or they have received a response to a request they made for reasons for the decision (ADR Act s 53(2)).
• The internal review has 21 days until it is ‘taken to be finalised‘ (ADR Act s 53(9)).
• A person may then apply to the NCAT for administrative review within 28 days (ADR Act s 55(2); CAT Act s 40; Procedural Rules r 24(3)-(4)).

Unfortunately, we have seen a few applicants caught out recently by the deemed finalisation period which applied to their request for internal review. These applicants have gone to the NCAT months after the limitation period of their right to apply.

However, the NCAT has the power, on its own motion or on application by any person, to extend the time limit for making an administrative review application (CAT Act s 41). By this power the NCAT can accept a late application and proceed as if it had been filed on time.

Previous cases have set a precedent that the following factors will be relevant when the NCAT decides whether to grant a late application:

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, and
7. whether strict compliance with the rules will work an injustice upon the applicant.

(see especially CFZ v Department of Education [2015] NSWCATAD 231)

While this process is perhaps more common, there is another pathway to administrative review. In exceptional circumstances, the NCAT can deal with an application even though an applicant has not ‘duly applied‘ for internal review—for example, where the internal review application has been unreasonably refused and the applicant has made an application to the Tribunal within ‘a reasonable time‘ (s 55(4)). In those circumstances, when determining the late application, the NCAT must have regard to the time when the applicant became aware of the making of the decision, the time limit for lodging an application for internal review (if applicable), and such other matters as it considers relevant (s 55(5)).

Recent decisions of the NCAT

Cramp & Cramp v Commissioner of Police, NSW Police Force [2022] NSWCATAD 189

This was a decision of Senior Member Dinnen in the NCAT about late applications received in two related firearms licensing matters.

The first applicant, Mr Cramp, had applied for internal review of the Police Commissioner’s refusal on 27 October 2021 of his category G firearms licence application on 4 November 2021. The second applicant, Mrs Cramp, had applied for internal review of the Police Commissioner’s refusal on 27 September 2021 of her category G firearms licence application on the same day. The Police Commissioner had not actually finalised the internal reviews in either case.

The applications for administrative review in both matters were then filed in the NCAT on 7 March 2022. Given the deemed finalisation of the internal reviews within 21 days, Mr Cramp’s application was 10.5 weeks out of time and Mrs Cramp’s was 16 weeks out of time.

At the first directions hearing of the matters, the Police Commissioner pressed the issue of the lateness of the applications. The parties were ordered to give evidence and make submissions.

The Senior Member considered the evidence and submissions and the factors in CFZ above. She held:

1. The length of delay for both applications was unreasonable. This was especially so in circumstances where the applicants have not provided any reason for the delay and were represented by solicitors who were experienced in firearms licensing matters. The applicants were specifically provided with the opportunity by the orders to file any evidence relevant to their extension of time application and failed to do so. (at [22])
2. The applicants had low prospects of success even if the extensions of time were granted. Mr Cramp had a criminal history of convictions for offences including firearms offences, and he had made a previous firearms licence application which had been refused by the Police Commissioner. Mrs Cramp had previously applied to the NCAT in relation to a firearms dealers licence application which was refused, and there was no evidence in these proceedings to suggest that the factual circumstances leading to refusal in the prior proceedings had changed. (at [23]-[24])
3. The Police Commissioner would suffer prejudice if the applications were granted, given the unreasonable delay and her opposition to the late applications. (at [26])
4. It was against the public interest for the late applications to be granted, having regard to the ‘just, quick and cheap‘ principle which guides NCAT proceedings under section 36 of the CAT Act. (at [26])
5. While the Police Commissioner had not finalised the internal review, the whole point of the deemed refusal provision in the ADR Act is to allow an applicant access to timely review of the decision in which they are interested. The applicants’ delay therefore cannot be blamed on the Police Commissioner’s failure to provide an internal review decision. (at [27])
6. Strict compliance with the rules would not be unjust to the applicants in these matters. The delay was caused entirely by the applicants, and the NCAT’s refusal of these applications would not derogate their rights to re-apply for the firearms licences and seek review of those applications, if refused, within the time limits specified by legislation.

On those bases, the Senior Member rejected the late applications.

Barden v Commissioner of Police [2022] NSWCATAD 149

This was a decision of Senior Member Isenberg about a late application received by the NCAT, again in relation to a firearms decision.

On 20 September 2021, the Police Commissioner refused the applicant’s application for a category AB firearms licence. The applicant sought internal review on 23 December 2021, which was rejected for being out of time. On 1 March 2022, the applicant for an application with the NCAT, where again the Police Commissioner pressed the issue of it being out of time.

Senior Member Isenberg held:

1. Although the applicant may not have received notice of the decision made on 20 September until 25 October, this does not change the fact that his request for internal review was out of time. The applicant had not ‘duly applied‘ for internal review. (at [9])
2. The late application had not been made ‘within a reasonable time‘ within the meaning of section 55(5) of the ADR Act. The application for review was not lodged until five months after the decision to refuse, four months after the applicant was (on his evidence) given notice of the decision and spoken with his lawyers, and two months after the application for internal review was rejected. The Senior Member considered the solicitor’s explanation of ‘workloads, delegations and confirming instructions‘ was unsatisfactory and inadequate to explain the delay, and there was no other evidence to explain the delay. (at [14])

The Senior Member therefore refused the late application.

The decisions can be accessed on the NSW Caselaw website by following these links:

• Cramp & Cramp
• Barden

If you have any questions about this post, please contact us on (02) 8235 9700 or leave a comment below.