Choi v University of Technology Sydney

[2020] NSWCATAD 238

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Choi v University of Technology Sydney [2020] NSWCATAD 238

Hearing dates:

On the papers

Date of orders:

24 September 2020

Decision date:

24 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

Approval to bring the access application is refused.

Catchwords:

ADMINISTRATIVE LAW - Government Information (Public Access) Act 2009 (Access to Information) s110 Government Information (Public Access) Act 2009 - restraint order of unmeritorious access application - application seeking leave to make a Government information public access application where restraint is in place

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013,

Freedom of Information Act 1982 (Cth)

Government Information (Public Access) Act 2009

Cases Cited:

Assal v Department of Health Housing and Community Services, (1992) EOC 92-409

Gauci v Kennedy [2006] FCA 869

Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 87 ALJR 618

Margan v University of Technology, Sydney [2003] NSWADTAP 65.

Minister for Immigration and Citizenship v Li [2013] HCA 18

R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45

Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344

Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396; 14 ALR 1.

State Electricity Commission (Vic) v Rabel [1998] 1 VR 102

Walker v Pittwater Council (2015) NSWCATAD 198 Walker v Pittwater Council (2015) NSWCATAD 222

Walker v Pittwater Council (2016) NSWCATAD 78

Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21

Category:

Principal judgment

Parties:

Jae Hee Choi (Applicant)
University of Technology Sydney (Respondent)

Representation:

Counsel:
A Flecknoe-Brown (Respondent)

Solicitors:
Applicant (Self Represented)
Barry & Nilsson Lawyers (Respondent)

File Number(s):

2019/00138891

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The applicant (Ms Choi) seeks approval of this Tribunal to issue an access application on the respondent (University of Technology Sydney) in circumstances where she is restrained from bringing that application pursuant to s110(1) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The respondent opposes the application and submits that approval ought not be granted by the Tribunal as the application has no merit or substance. The respondent further submits that it would be a waste of public resources, to no material benefit for Ms Choi or the public interest for approval to be given.

Disposal of a Hearing

2. On 28 April 2020, the Tribunal made an order pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) that the matter is to be determined without the need for a hearing. In these circumstances the matter is to be determined on the papers.

The Statutory Scheme

3. The application arises under the implied power of the Tribunal pursuant to s110(1) of the GIPA Act to grant approval to Ms Choi, who is the subject of a restraint order under that section, to make a further access application, despite the order.

4. S110(1) provides:

1. NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a ‘restraint order’) if NCAT is satisfied that:

   (a)   at least three access applications (to one or more agencies) in the previous two years have been made that lack merits, and

   (b)   the applications were made by the same person or by any other person acting in concert with the person.

2. An access application is to be regarded as lacking merit if:

   (a)   the agency decided the application by refusing to deal with the application in its entirety, or

   (b)   the agency decided the application by deciding that none of the information applied for is held by the agency, or

   (c)   the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).

…

1. A person who is subject to a restraint order cannot apply to NCAT for approval to the making of an access application by the person without first serving a notice of the application for approval on the agency concerned and the Information Commissioner.

2. An application for a restraint order against a person may be made by an agency that receives an access application from the person whether or not the agency has decided the application or by the Minister or the Information Commissioner.

(5A)   In deciding whether to approve the making of an access application by a person the subject of a restraint order, NCAT is to consider, without limitation, any of the following:

(a)   whether the proposed application is lacking in merit,

(b)   whether the proposed application is frivolous, vexatious, misconceived or lacking in substance,

(c)   whether the applicant has engaged in conduct designed to harass, to cause delay or detriment, or to achieve another wrongful purpose.

1. NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance.

2. While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application.”

   5. The specific order made by the Tribunal on 18 December 2018 was:

“By consent, pursuant to s110 of the Government Insurance (Public Access) Act 2009 [pseudonym used] is not permitted to make an access application to the University of Sydney without first obtaining the approval of the Tribunal.”

6. Applications for approval have been previously considered by the Tribunal (see Walker v Pittwater Council (2015) NSWCATAD 198; Walker v Pittwater Council (2015) NSWCATAD 222 and in Walker v Pittwater Council (2016) NSWCATAD 78).

7. In Walker v Pittwater Council (2016) NSWCATAD 78 (at [9] [25]) Deputy President Hennessy set out an instructive analysis of the legal framework pertaining to an application under s110 which I repeat below:

1. When determining whether to approve or not to approve the making of an access application, the Tribunal is exercising discretionary power in its general jurisdiction: Civil and Administrative Tribunal Act 2013 (NSW), s 29. While that discretionary power is not expressly conferred in the GIPA Act, it is implied by s 110(1):

   (1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT if NCAT is satisfied that the person has made at least 3 access applications (to one or more agencies) in the previous 2 years that lack merit. Such an order is a "restraint order".

2. As with all discretionary powers, the power implied under s 110(1) to approve or not approve an access application, must be exercised reasonably and in accordance with the subject matter, scope and purpose of the statute: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 per Dixon J; [1947] HCA 21; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49; [1979] HCA 62; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26]; Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 87 ALJR 618 at [9].

3. The object of the GIPA Act is to “open government information to the public”: GIPA Act, s 3(1). That object is achieved by various means including giving members of the public an enforceable right to access government information: GIPA Act, s 3(1)(b) and (c). The discretions conferred by the Act are to “be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information”: GIPA Act, s 3(2)(b).

4. But there are limits on a person’s right to access government information. For example, information does not have to be provided if there is an overriding public interest against disclosure or the information is not held by the agency: GIPA Act, s 58(1)(b) and (d). Five grounds on which an agency may refuse to deal with an application are set out in s 60:

   (1)   An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

   (a)   dealing with the application would require an unreasonable and substantial diversion of the agency’s resources,

   (b)   the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

   (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 ,

   (c)   the applicant has failed to pay an advance deposit that is payable in connection with the application,

   Note : See section 70.

   (d)   the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order.

5. These proceedings relate to the restrictions on a person’s right to access government information when a restraint order has been made. The Tribunal may make a restraint order if a person has made at least three applications in the previous two years which “lack merit”: GIPA Act, s 110(1). Under s 110(2) an application lacks merit if:

   (a)   the agency decided the application by refusing to deal with the application in its entirety, or

   (b)   the agency decided the application by deciding that none of the information applied for is held by the agency, or

   (c)   the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).

6. A restraint order may apply to all access applications made by the person or may be limited by reference to particular kinds of information or particular agencies: s 110(3).

7. If the Tribunal is satisfied that a person “has repeatedly made applications for approval that are lacking in substance”, the Tribunal may order that the person is not permitted to apply to NCAT for approval to make an access application: GIPA Act, s 110(6). The restraint order would then permanently prevent a person from making access applications to a particular agency or generally unless the Tribunal imposed a condition as to the period for which the restraint order was to operate: NCAT Act, s 58.

8. On the basis of the subject matter scope and purpose of the GIPA Act one basis for refusing to approve an access application is where the Tribunal is satisfied that an application is “lacking in substance.” Repeatedly making such applications is the test in s 110(6) for determining whether to grant a permanent restraint order. It is logical to treat the substance of an application as a relevant factor when considering whether to approve a specific application.

9. It is significant when determining the scope of the discretion in s 110(1) to approve an access application, that s 110(6) does not refer to applications which are frivolous, vexatious or misconceived. The power to dismiss applications or complaints when they are “frivolous, vexatious, misconceived or lacking in substance” exists in several statutes. For example, s 109 of the GIPA Act states that:

   NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance.

10. Similarly, under s 55(1)(b) of the NCAT Act, the Tribunal may dismiss proceedings “if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.” Another example is the Anti-Discrimination Act 1977 (NSW); s 92(1)(a)(i).

11. The fact that a discretion is to be exercised according to particular considerations does not mean that if a separate discretion in the same statute does not list those considerations, they are irrelevant. In R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 (27 November 1979) the High Court rejected a submission that where a decision maker was obliged by a statutory provision to take into account the public interest, that factor could not be taken into account when exercising another unconfined discretion. It could be argued that the fact that the terms frivolous, vexatious or misconceived are relevant when exercising the discretion under s 109 that does not mean that they are irrelevant when exercising the unconfined discretion under s 110(1).

12. But there is an additional factor in these proceedings that distinguishes them from the statutory framework in R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd [1979] HCA 62; (1979) 144 CLR 45. Under the GIPA Act the legislature has set out a different test for the making of a permanent restraint order from the test for dismissing or refusing to deal further with an application. That difference should be regarded as having some significance because of the maxim that an express reference to one matter indicates that other matters are excluded: Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396; 14 ALR 1. The inclusion of frivolous, vexatious and misconceived in s 109 and the absence of those terms from s 110(6), suggests that they should be excluded from consideration under s 110(6).

13. That conclusion is supported by the fact that the focus when considering whether to make a restraint order is on the frequency and merits of the application, rather than on the motivation or intention of the applicant: GIPA Act, s 110(2). That situation may be contrasted with the statutory regime under s 89K of the Freedom of Information Act1982 (Cth) which gives the Information Commissioner power to declare a person to be a vexatious applicant. Because the federal statutory scheme is different in this respect from the scheme in NSW, the federal case law and guidelines are of limited relevance. (I note that this view is different from the view I expressed in Walker v Pittwater Council [2015] NSWCATAD 222 (13 October 2015)).

14. The term “lacking in substance” is not defined in the GIPA Act but has been interpreted in many cases including under the various federal and state anti-discrimination statutes: State Electricity Commission (Vic) v Rabel [1998] 1 VR 102 [31] – [45]; Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at [10]; Gauci v Kennedy [2006] FCA 869 at [32]; Margan v University of Technology, Sydney [2003] NSWADTAP 65. See the discussion of these cases in Rees Rice and Allen, Australian Anti-Discrimination Law (2nd ed 2014, The Federation Press) at 776 to 781. The most commonly quoted definition is that an application will be lacking in substance if it is based on “an untenable proposition of law or fact”: State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J.

15. Sir Ronald Wilson said in Assal v Department of Health Housing and Community Services, (1992) EOC 92-409, 78,897 at 78,900 that:

    ... it is unwise postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case.

16. In the context of the GIPA Act, if the Tribunal does not have jurisdiction or the application lacks merit because of a restriction or qualification on the applicant’s rights under the GIPA Act, then the application will be lacking in substance. For example, an application will be lacking in substance if it meets any of the tests in s 110(2), if there is an overriding public interest against disclosure or if the information is not held by the agency. But it must always be borne in mind that an applicant has an enforceable right to access government information and the discretions conferred by the Act are to “be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information”: GIPA Act, s 3(2)(b).

17. The number and frequency of access applications that a person has made may be relevant when determining whether to approve an application but those factors are less significant than the substance or merit of the application. That is because the Tribunal has a separate discretion under s 110(6) to order that a person who is the subject of a restraint order not be permitted to apply to NCAT for approval to make an access application. The test to be applied in that case is “if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance”. (Emphasis added.)

    8. The respondent does not take any issue about whether the applicant has complied with s110(4) in terms of the procedural requirements. Indeed, the respondent makes an appearance in these proceedings.

Factual Background

9. The Affidavit of Mr Simon Black sets out a substantial litigious background between the applicant and the respondent. I do not intend to set out each of the matters referred to. However, there have been 18 access related applications between the parties. When the Tribunal made the restraint order pursuant to s110 of the GIPA Act it did so on the basis that it was in the best interests of Ms Choi. In that regard the Tribunal had found that Ms Choi was unable to confine her written evidence and submissions to issues in dispute, instead making unfounded or irrelevant allegations, including claims of forgery and fraud amongst other things.

10. In this application Ms Choi seeks access to the following material:

1. a payslip for a UTS employee, AB, for a period including 12 May 2015;

2. a payslip for another UTS employee, CD, covering 17 April 2015;

3. Ms Choi’s attendance records for three of the subjects of her nursing degree (92319 Family and Children’s Nursing; 92323 Fundamentals of Mental Health Nursing; 92322 Medical Surgical Nursing); and

4. any records that ‘I took exams and tests for’ the second and third of those same three subjects.

11. On 20 May 2020 the applicant appears to have amended the scope of her application, which is contained at attachment 5 of her written submissions. The additional items include:

1. The workings hours and working time (from what time to what time) of AB for the period covering 12 May 2015 who is the same person of item 1.

2. The working hours and the working time (from what time to what time) of CD for the period covering 17 April 2015 who is the same person of item 2.

3. Information held by UTS that relates to a police enquiry made with it about my alleged sexual assault.”

Submissions of the parties

12. The applicant provides the following grounds for which she says the access application should be granted:

‘Ground 1’

13. UTS has breached ‘the policy’ or ‘the regulation’, however she does not identify which policy or regulation. She asserts that the respondent ‘had planned systematically and breached’ the unidentified regulation ‘to give me a hard time’.

14. There is no identification over what period this ‘systemic’ conduct occurred and no basis advanced for why the respondent (or a particular employee of the respondent) would have wanted to give the applicant ‘a hard time’. The respondent argues there is simply no intelligible content in this ‘ground’.

15. I accept with the respondent’s submission and find the ground lacks merit.

‘Ground 2’

16. The applicant speculates that she could ‘gain new evidence for appealing’ the decision in her very first privacy proceeding in this Tribunal, a decision which was handed down in March 2017.

17. The applicant seeks access to two payslips of employees of the respondent to prove that one of the employees, AB, does not exist. The applicant also seeks to establish from the production of CD’s payslip, who she says was a witness in the first privacy proceedings. The payslip will be adduced to establish the evidence in that proceeding was not the case. The proceeding was heard in 2016 with a decision handed down in March 2017.

16. The respondent submits ‘how the payslips of [AB] and [CD] have any probative connection with the fact is not stated - much less is any reason given for thinking the Tribunal would give leave to appeal the decision more than three years out of time, when the applicant could reasonably have sought such documents by summons when the matter was heard by the Tribunal in August 2016.’

17. I accept the respondent’s submissions. I find that this ground also lacks merit.

‘Ground 3’

20. The applicant asserts that her application, which was dismissed summarily on 27 August 2019, on the basis that it was frivolous, vexatious, misconceived and lacking in substance, may assist her in establishing how the previous proceedings in the Tribunal were resolved.

21. The respondent submits there is no conceivable or useful connection between the access application and the resolution of the other proceeding. Further, it is submitted that the best that can be said about any connection between the two proceedings is that the proposed access application, and this application for approval to issue it, is equally frivolous, misconceived and lacking in substance.

22. I accept the respondent’s submissions. I am satisfied that this matter has previously been determined by NCAT. The ground also is unmeritorious.

‘Ground 4’

23. The applicant makes four unconnected and entirely unsubstantiated assertions about different events which have occurred in the course of four years of litigation between herself and the respondent. Her submissions do not constitute a ground for granting approval to issue the proposed access application.

24. The respondent submits ‘None of those asserted facts, even if true, would have any conceivable connection with the information the applicant seeks to obtain.’

25. I again accept and agree with the respondent’s submissions. The ground lacks merit.

‘Ground 5’

26. The applicant raises an issue of ‘oppression of human rights’. The specifics concerning this submission are unclear. The applicant refers to a non-binding guideline of the Tribunal not being followed in making a previous decision to appoint a guardian ad litem in other access proceedings. Further, the applicant makes unfounded allegations that the guardian ad litem was ‘controlled by NCAT’. Her allegations in this regard are nonsensical and may border on a delusional belief that NCAT, or its members, in some way assert control or influence on the carrying out of the independent duty of a guardian ad litem.

27. I find this ground also lacks merit.

‘Ground 6’

28. The applicant asserts that she has lodged an appeal against a decision (by consent) to dismiss a number of her previous proceedings and to make the restraining order subject of these proceedings. That matter has been finalised and is irrelevant in my view to the proposed access application.

29. The ground lacks merit.

‘Ground 7’

30. The applicant claims that her proposed access application ‘would be compatible with the intention of the GIPA Act’ without any further elaboration.

31. The respondent submits that this ground is without merit and the function of a restraining order is to prevent repeated frivolous and wasteful applications to agencies, such as the respondent. The order made in respect of the applicant was, inter alia, because she has a history of making unmeritorious access applications.

32. I find that this ground also lacks merit for the reasons proposed by the respondent.

33. In further submissions filed by the applicant on 19 May 2020 she questions the standing of the respondent’s Counsel to make submissions and indeed the solicitors acting on behalf of the respondent. In doing so she states ‘accordingly, I will just identify the grounds why the Tribunal should permit me to lodge an access application to the respondent, without considering the respondent’s submissions.’

34. The additional submissions in relation to items 1 and 2 repeat the respondent’s previous submissions of 15 July 2019.

35. Further, the applicant submits: ‘I am a victim of domestic violence for 1 year. The police fabricated evidence to frame me for a false claim relying on UTS’ oral statement. The police did not investigate the complaint but created an information report (intelligence report). The Department of Home Affairs did not issue my son’s Passport, indicating my file stating a false claim. I wish to access the relevant information in this application. This must be in the public interest.’

36. The applicant seeks to distinguish her application from the facts as set out in Pittwater Council v Walker (2015) NSWCATAD 34 on the basis that the applicant in that case, Mr Walker, applied for 78 access applications and the applicant in this matter has only applied for 6. I am not satisfied that, on this submission alone, the applicant has established that the decision in Pittwater Council v Walker can be distinguished.

37. The applicants additional submissions do not advance her application for approval.

38. The respondent submits that the applicant has provided no valid reasons which seek to advance and explain why she should be permitted to issue the proposed access application. The respondent says that the application itself has no merit and the substance of the proposed access application is precisely the kind of repetitive and wasteful activity the restraining order is intended to prevent. As such the order of the Tribunal should be that the application be dismissed.

Exercise of the discretion in relation to the proposed application

39. A predominant factor the applicant seeks to obtain the information relates to her obtaining evidence to lodge an appeal against previously determined applications which she will be substantially out of time to do so. This is a persuasive factor in not granting approval to make the access application.

40. I find that each of the grounds upon which the applicant seeks to access information are lacking in substance and unmeritorious. The grounds as set out by the applicant are based on an untenable propositions of both law and fact.

41. I not satisfied that the proposed access information application will be prompt and it is unlikely to be at lowest reasonable cost for the respondent to comply with. For the respondent to deal with the application would in my view would require an unreasonable and substantial diversion of the agency’s resources given the current grounds relied upon by the applicant and largely irrelevant.

42. Approval to bring the access application 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: 24 September 2020