Choi v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 191

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Choi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 191
Hearing dates:	On the papers
Date of orders:	11 September 2019
Decision date:	11 September 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	The application made by Ms Choi to NCAT seeking that the decision made by the Tribunal on 15 August 2019 be set aside under reg 9 of the Civil and Administrative Tribunal Regulation 2013 is refused.
Catchwords:	PRACTICE AND PROCEDURE – power to set aside decision – whether party's absence resulted in the party's case not being adequately put to the Tribunal
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NCAT Act) Civil and Administrative Tribunal Regulation 2013 (NSW) Government Information (Public Access) Act 2009
Cases Cited:	None cited
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Jae Hee Choi (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: Applicant (Self Represented)
File Number(s):	2019/00078831
Publication restriction:	Nil

REASONS FOR DECISION

1. Ms Jae Hee Choi applies to NCAT seeking that the decision made by the Tribunal (SM Molony) on 14 August 2019 (the subject decision) be set aside under reg 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW).

2. Reg 9 states:

9   Additional power to set aside or vary decision determining proceedings

(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:

(a)   if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,

(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.

3. For the reasons that follow, I have decided not to set aside the subject decision.

The subject decision

4. The subject decision was made on 14 August 2019 (corrected on 15 August 2019 under s 63 of the Civil and Administrative Tribunal Act 2013 (NCAT Act)). In that decision, the Tribunal acceded to a request made by the Commissioner of Police, NSW Police Force (the Commissioner) to extend the time for complying with orders made by a differently constituted Tribunal on 17 April 2019.

5. To put the application to set aside the subject decision in context it is necessary to set out some background facts.

6. In her initiating application to NCAT, Ms Choi sought review of a decision made by the respondent Commissioner in respect of her access application made under the Government Information (Public Access) Act 2009 (the Application).

7. In a directions hearing on 17 April 2019, the Tribunal directed Ms Choi to notify the Commissioner by 13 May 2019 if she proposed to continue or withdraw the Application: Order 1. In the event the Commissioner was notified by Ms Choi that she intended to continue with the Application, the Commissioner was directed to file and serve specified material by 11 June 2019: Order 2. In addition, the Tribunal directed the Commissioner to file by 11 June 2019, on a confidential basis, several specified documents: Order 3. Finally, the Tribunal invited Ms Choi to provide any material in reply by 25 May 2019: Order 4.

8. In the subject decision, the Tribunal extended the time for compliance with Orders 2 and 3 to 21 August 2019, and the time for compliance with Order 4 to 6 September 2019.

Is the subject decision a decision the Tribunal has made that “determines proceedings”?

9. The power to vary or set aside a decision under reg 9, can only be exercised in respect of a “decision [the Tribunal] has made that determines proceedings”. In my view, the subject decision could not be properly characterised as a decision that “determines proceedings”. However, in the absence of considered submissions on this issue I will assume that the subject decision is a decision that determines proceedings.

Can the power to set aside or vary the subject decision be exercised?

10. The discretion to set aside or vary the subject decision can only be exercised if para (a) or (b) of reg 9(1) is satisfied. Ms Choi relies on par (b) of reg 9(1).

11. In her set aside application, Ms Choi asserts that in reaching its decision the Tribunal relied on “an incorrect fact”; that the Commissioner’s failure to file submissions in accordance with the April directions was “excessive” and that the Tribunal’s decision to grant the extension of time was inconsistent with the guiding principle of the NCAT Act. In addition, she asserts that the subject decision will “leave a historic stigma in NCAT’s decisions”.

12. To exercise the discretion conferred by reg 9(1)(b) I must be satisfied that Ms Choi’s absence resulted in her “case”, relevantly her objection to the Commissioner’s application to extend time to comply with the April directions, “not being adequately put to the Tribunal”.

13. In an email sent on 31 July 2019, the solicitor for the Commissioner advised Ms Choi that “due to an oversight within our office, we did not receive correspondence from you indicating your intention to continue”. The solicitor foreshadowed her intention to approach the Tribunal and seek a variation of the timetable made on 17 April 2019 and invited Ms Choi to comment.

14. Ms Choi replied:

“My answer is no. Time has passed so much.

Why can't you just release all my relevant documents, admit to have destroyed, altered and concealed my documents volunterily?

I would prepare for the case of being prosecuted if I would be on your shoe.”

15. In an email sent on 7 August 2019 seeking a variation to the timetable, the Commissioner forwarded Ms Choi’s response to the Tribunal.

16. In its reasons for acceding to the Commissioner’s application, the Tribunal wrote:

The respondent has not filed materials and submissions in accordance with the Tribunal's orders made 17 April 2019. That delay is considerable, the respondent’s material was due 11 June 2019.

The respondent now seeks an extension of time to allow it to comply with those orders, some two months later. The respondent says (by way of explanation) that it did not receive the applicant’s advice that she was proceeding with her application (see para 2 of the orders of 17 April 2019).

The applicant objects to any extension of time and presses her application for release of information under the GIPA Act. In her objection, the applicant did not address whether or not she had provided the respondent with advice that she wished to proceed.

17. In assessing whether a party’s absence resulted in their case “not being adequately put to the Tribunal”, regard must be had to the nature of the “case” and the type of opportunity afforded to the party to put their case. Here, the decision made by the Tribunal was a straightforward procedural application to extend time. Ms Choi was invited to, and did, respond to the Commissioner’s application to extend the time to comply with the procedural directions made on 17 April 2019. Her response was unambiguous: she opposed the Commissioner’s application.

18. In determining whether the opportunity afforded to a party was adequate, regard must be had to the statutory instruction that in matters of practice and procedure the Tribunal must facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36 of the NCAT Act.

19. In her set aside application, Ms Choi has not identified any prejudice she has suffered by the way in which the Tribunal determined the Commissioner’s application. Nor has she identified what more the Tribunal could or should have done to afford her the opportunity to put her case. Her submissions opposing the set aside application are in effect a challenge to the merits of the subject decision.

20. In my view, Ms Choi was given an adequate opportunity to put her case about the Commissioner’s application for an extension of time. It follows that the power to set aside that decision cannot be exercised.

Orders

1. The application made by Ms Choi to NCAT seeking that the decision made by the Tribunal on 15 August 2019 be set aside under reg 9 of the Civil and Administrative Tribunal Regulation 2013 is refused.

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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

Decision last updated: 11 September 2019