Choi v University of Technology Sydney

[2019] NSWCATAD 176

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Choi v University of Technology Sydney [2019] NSWCATAD 176

Hearing dates:

On the papers

Date of orders:

27 August 2019

Decision date:

27 August 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

1. Under s 50(4) of the Civil and Administrative Tribunal Act 2013 the Tribunal determines that a hearing is not necessary in this matter.

 

2. Under s 109 of the Government Information (Public Access) Act 2009 the Tribunal refuses to deal further with Ms Choi’s review application because it is frivolous, vexatious, misconceived and lacking in substance.

 

3. The review application is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 because it is frivolous, vexatious, misconceived and lacking in substance.

 

4. Any application for costs, with supporting submissions, is to be filed with the Tribunal and served on the other party within 21 days of this decision and is to include a genuine estimate of the quantum of costs sought.

 5. In the event that such an application is made, submissions in reply on the issue of costs are to be filed with the Tribunal and served on the other party within a further 21 days

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information – application for Tribunal to refuse to deal with review application under s 109 of the Government Information (Public Access) Act 2009 – application for summary dismissal of review application – Tribunal refused to deal with and dismissed review application

Legislation Cited:

Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009

Cases Cited:

Alchin v Rail Corporation NSW [2012] NSWADT 142
Assal v Department of Health Housing and Community Services, (1992) EOC 92-409
Attorney-General [2011] NSWADT 59
Attorney-General v Wentworth (1988) 14 NSWLR 481
Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478
BDK v Department of Education and Communities [2015] NSWCATAP 129
Gauci v Kennedy [2006] FCA 869
Keogh v Higgins (Civil Claims) [2014] VCAT 1256
Kyriakidis v State of Victoria (Human Rights List) [2014] VCAT 1039
Margan v University of Technology, Sydney [2003] NSWADTAP 65
McDonald v Central Coast Community Legal Centre [2008] NSWADT 96
Rana v University of South Australia [2004] FCA 559
Stanborough v Woolworths Ltd [2005] NSWADT 203
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

Walker v Pittwater Council [2016] NSWCATAD 78

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
A Flecknoe-Brown (Respondent)

  Solicitors:
Applicant in person
Barry.Nilsson Lawyers (Respondent)

File Number(s):

2019/00078842

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The University of Technology Sydney (UTS) has applied for the Tribunal to refuse to deal with, and dismiss, the application made against it under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) by Jae Hee Choi, a former student at UTS. There is a recent history of considerable litigation in the Tribunal between Ms Choi and UTS.

2. UTS says that the present application should be dismissed because it is misconceived, lacking in substance, frivolous and vexatious. In so arguing UTS relies on s 109 of the GIPA Act, which provides:

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. …

3. Section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) provides the Tribunal with a power to summarily dismiss applications:

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …

4. At a directions hearing held on 17 April 2019 the Tribunal made orders requiring the parties to file and serve submissions and materials they wished to rely on with respect to the application. They have since done so.

5. The Tribunal also ordered that:

Subject to any objections and submissions of the parties, the respondent’s application for dismissal is to be determined on the papers after 31 May 2019.

6. The application has been referred to me to determine, without a hearing, on the papers.

Material before the Tribunal

7. I have had regard to the following material when considering this matter:

1. From UTS:

1. Respondent’s submissions on summary dismissal; and

2. affidavit of Simon Black dated 10 May 2019 with exhibits (totalling 173 pages).

2. From Ms Choi:

1. administrative review application filed 11 March 2019 with two attached review reports from the Office of the Information Commissioner, both dated 22 January 2019;

2. “Choi’s reply regarding UTS’s dismissal application”;

3. Affidavit of Jae Hee Choi dated 16 May 2016 with exhibits (totalling 86 pages).

3. The Tribunal’s orders made on 17 April 2019.

The background relating to the present application

8. On 2 November 2018 Ms Choi made an access application to UTS under the GIPA Act (the initial access application). Relevantly, it said:

Re: an access application under the Government Information (Public Access) Act 2009

1. I was raped. I reported it to the Dee Why police station. One police officer called University of Technology Sydney in October or November 2016. One police officer decided to cease the investigation by the impact of what UTS had said, which one female police officer told me. I need to access any emails/documents/minutes regarding the police officer's phone call and this relevant matter.

2. Any emails/documents/rninutes/payment slip/bank transaction receipt regarding my previous counsel [name] between June 2016 and December 2017.

3.[Worker Name] (who worked for the Student Services Unit in May 2015) duration of working for UTS.

4. [Worker Name] working hour of 12 May 2015 and the payment slip of that date.

5. [Name](Counsellor)'s working hour of 17 April 2015 and the payment slip of that date.

If my request requires your resources too much, please let me know. Thank you.

9. Ms Choi received the following reply from UTS, dated 9 November 2018, advising that the initial access application was, in its present form, invalid (the invalidity decision):

RE: Invalid application to access information

We acknowledge receipt of your request to access information held by UTS under the Government Information (Public Access) Act to (GIPA Act) dated 2 November 2018.

We require further details to assist with locating the information requested before we can accept your application as valid.

In particular, further details about the following requests are necessary to enable us to identify relevant areas to conduct searches:

•   The name of the Police Officer who contacted UTS (and/or an investigation number) and which area at UTS they would have contacted (or name of staff member with whom they spoke); and

•   What information do you seek in relation to "payment slips" pertaining to [name] and {name]?

More generally, we wish to remind you that the GIPA Act provides for rights to access government information, meaning information contained in a record held by UTS, not simply the records themselves. Thus, for example, you are not entitled to specify individual documents such as "payment slips", although you may request information contained in payment slips. Accordingly, subject to the clarifications requested above, we interpret your requests as follows:

1. All information pertaining to any telephone contact between the Police Officer referred to above and the area or staff member of UTS with whom they spoke;

2. All information pertaining to whether UTS made any payments to your former counsel, [name] between June 2016 and December 2017 (please note that the author of this letter is unaware of whether any such payments have ever been made — this is merely our understanding of the information you seek, if it exists).

3. The duration for which [name] has worked for UTS;

4. The hours which [name] worked for UTS on 12 May 2015;

5. The hours which [name] worked for UTS on 17 April 2015.

Please advise whether you agree that this is an accurate understanding of the scope of the information you are requesting, subject to the clarifications requested above.

If you wish to proceed with this access application, please provide clarification for the items above. We will not process payment for this application until we receive sufficient detail to accept the application as valid.

Rights of review

If you do not agree that your application is invalid, you may seek a review of this decision. Information about your review rights can be found at I have also included a copy of a right to information fact sheet.

In summary, you have 20 working days from the date of this letter to apply for an internal review directly with UTS, or 40 working days to apply for an external review by either the NSW Information Commissioner or the NSW Civil and Administrative Tribunal.

Contact

If you have any queries about this letter or wish to address the issues raised above, please refer all written communication to Simon Black at Barry Nilsson Lawyers (via [email protected]) as per existing contact arrangements.

10. On that day, 9 November 2018, a Friday, Ms Choi says:

1. she emailed UTS’ lawyers (at the nominated email address) as follows:

Referring to your letter "...you are not entitled to specify individual documents such as "payment slips"   , one of the reasons why my application is invalid is I requested the two staffs payment slips.

You could hide some private information such as the amount of payment.

Ms [name] and Ms [name] are alleged not be involved in my NCAT matter on that day.

I need to check it out. Please advise me the way that I could access to the information.

2. she emailed the Information Commissioner requesting an urgent review of the invalidity decision.

11. There is no reference to the email to the lawyers in the original materials filed by UTS. Ms Choi says she received no response to it from either UTS or its lawyers. It is to be noted that the email made no mention of the fact that she was requesting a review by the Information Commissioner.

12. The first response to Ms Choi’s request for a review of the invalidity decision from the Information Commissioner is dated 18 December 2018 and says:

On 18 December the Information and Privacy Commissioner (IPC) received your request to review a decision made by The university of Technology Sydney under the Government Information (Public Access) Act 2009 dated 9 November 2018.

13. The variance in dates between when Ms Choi says she requested the review by the Information Commissioner (9 November 2018), and receipt of that request by the Information Commissioner (18 December 2018), is to be noted.

14. On 13 November 2018, the Tuesday following Friday 9 November, Ms Choi wrote to UTS amending the initial access application as follows (the amended access application):

My access application under the GIPA Act lodged on 2 November 2018

1. After receiving your letter "Invalid application" on 9 November 2018, I decided to amend the scope. I want to access to only one item in relation to "the Police Officer". I will lodge another separate access application for other items.

2. I want to access to the below information.

(1) On/around 7 November 2016, one police officer from the Dee Why Police Station or other Police Station called UTS. The Police Officer's name can be "[name]" or "[name]”. The investigation number is E540486091.

(2) I want to access to UTS's staff name who spoke with a police officer on the phone regarding me "Jae Hee Choi" on/around 7 November 2016.

(3) This UTS's staff made a report or a note regarding the matter. I want to access to the report or note.

(4) This UTS's staff emailed other UTS's staff including [7 names] regarding the matter. I want to access to the emails.

(5) The other UTS's staff emailed other UTS's staff regarding the matter. I want to access to the email.

(6) The conversation contents between this UTS's staff and the police officer.

(7) All the information/ documents /minutes/ emails/ correspondence/reports/Lex documents regarding the above (1) or (2) or (3) or (4) or (5) or (6).

3. You are requesting me to amend the other items. For the urgency and the importance, I will lodge a new access application including what you are requesting.

Why she did this, when she had sought a review by the Information Commissioner, is not explained.

15. UTS replied on 16 November 2018 acknowledging the amended access application. That letter relevantly said:

RE: Your application to access information

I acknowledge receipt of your response to my letter dated 9th November 2018 about your recent invalid access application under the Government Information (Public Access) Act 2009 (GIPA Act), on 13th November 2018. Your access application is now considered valid as of the 13th November 2018.

Your access application is due to be decided by 11th December 2018. This date may be extended for third party consultation required by the GIPA Act if information is identified. If third party consultation is required, you will be advised in writing.

If your access application is not decided by the due date it is taken by the GIPA Act to have been refused. If this occurs you are entitled to a refund of your application fee and you may seek a review of this decision (see the enclosed Fact Sheet which details your review rights).

Information requested

Following your amendments of 13th November 2018, you are now requesting access to:

1. All inforrnation/documents/minutes/emails/correspondence/reports/LEX content, regarding a NSW Police Officer phone call to UTS regarding a rape reported by you in October/November 2016, including:

a. the name of the UTS staff member who spoke with a police officer from the Dee Why Police Station (or other Police Station), on the phone regarding me "Jae Hee Choi" on/around 7 November 2016 regarding this matter.

The Police Officer's name can be "[name]" or "[name]”. The investigation number is E540486091.

b. the report or note created by this staff member (from point a above) regarding this matter.

c. content of the conversation between this staff member (from point a above) and the police officer.

d. emails sent by this staff member (from point a above) to other UTS staff about this matter, including [7 names].

e. emails sent by these other staff (i.e. those named under point c above) to other UTS staff.

I also acknowledge, following your amendments of 13th November 2018, that this access application no longer includes information relating to:

2. Any emails/documents/minutes/payment slip/bank transaction receipt regarding my previous counsel David Burwood between June 2016 and December 2017.

3. [Name] (who worked for the Student Services Unit in May 2015)'s duration of working for UTS.

4. [Name] working hour of 12 May 2015 and the payment slip of that date.

5. [Name] (Counsellor)'s working hour of 17 April 2015 and the payment slip of that date. The above 4 requests will no longer be considered as part of this access application.

…

16. On 11 December 2018 UTS sent Ms Choi a notice of decision with respect to the amended access application. After searching, UTS could not locate any information that matched Ms Choi’s request. As a result, UTS decided that the information she requested was not held by it (the not held decision).

17. On the same day,11 December 2018, Ms Choi applied for external review by the Information Commissioner of the not held decision. A week later, on 18 December 2018, the Information Commissioner says it received the application for external review of the invalidity decision. Ms Choi, it will be remembered, says this was sent on 9 November 2018.

18. On 22 January 2019 the Office of the Information Commissioner issued two review reports. The first report (IPC18/R000680) was in respect of a review of the invalidity decision (the invalidity report). It found that the initial access application was a valid application as it identified the information she was seeking access to, and that she was under no obligation to:

…provide information as is reasonably necessary to allow the information being applied for to be searched for efficiently.

As a consequence the Information Commissioner recommended under s 93 of the GIPA Act that the agency make a new decision by way of internal review.

19. The second report (IPC18/R000660) was in respect of a review of the not held decision (the not held report). It found, after consultation with UTS, that UTS had undertaken reasonable searches for the information Ms Choi requested in the amended access application, and that UTS was justified in making the not held decision.

20. Only the invalidity report required further action from UTS. On 6 February 2019 the Director of the Governance Support Unit at UTS wrote to the Office of the Information Commissioner, with a copy to Ms Choi, advising that:

I refer to the IPC review report dated 22 January 2019 in response to an appeal of a decision by UTS that Access Application GIPA2017/08 was invalid. In the review report the IPC recommends that UTS undertake an internal review of that decision under s.93 of the Government Information (Public Access) Act 2009 (GIPA Act).

You have requested we inform the IPC and the applicant by 6th February 2019 of what action UTS intends to take regarding the IPC recommendation.

I advise that UTS will not be conducting an internal review of this decision. Access Application GIPA2018/07 was subsequently made valid and completed. The applicant had amended the scope of her application, reducing the information requested before it was processed. The information removed from the scope of information requested was ultimately not considered. No further action will be taken.

21. On 11 March 2019 Ms Choi lodged an application for administrative review with NCAT. Attached to the application were full copies of both the invalidity report and the not held report from the Office of the Information Commissioner. No correspondence between Ms Choi and UTS (or its lawyers) or the Office of the Information Commissioner was attached to the application. In the application, under the heading “Grounds for Application” Ms Choi wrote:

(1) Although the Information and Privacy Commissioner recommended the respondents release the information I was seeking, the Respondent has not released the information (IPC/R000660)

(2) I believe the Respondent has not released the relevant information although the Respondent is keeping the information (IPC/R000680)

22. It will be remembered that:

1. the not held report (IPC/R000660) found that UTS had made reasonable searches for the information sought by Ms Choi in the amended access application; and.

2. the invalidity report (IPC/R000680) found that Ms Choi’s initial access application was valid and had asked UTS to reconsider the invalidity decision. UTS had declined to follow that recommendation because Ms Choi had amended her access application, and the amended application had resulted in the not held decision, which was endorsed on review by the not held report.

23. Ms Choi’s written grounds for seeking a review by the Tribunal therefore do not make any sense. No information had been identified and no recommendations for release had been made by the Information Commissioner.

24. UTS understood Ms Choi’s application as seeking administrative review of the decisions underlying the Information Commissioner’s reports, namely the invalidity decision and the not held decision. On my initial reading of the application that was also my understanding.

What does Ms Choi’s application actually seek in her review application?

25. On further reading and consideration, however, it became apparent that the only decision Ms Choi addressed in her submissions is the invalidity decision. That understanding follows a reading of a letter she wrote to the Tribunal regarding “an amendment” dated 9 April 2019, and of her submissions.

25. In the amendment letter she sought to amend ground (2) of her Grounds of Application by inserting the Information Commissioner’s reference number for the invalidity report, so that grounds read (the amended grounds):

(2) I believe the Respondent has not released the relevant information although the Respondent is keeping the information (IPC Reference: IPC/R000680 and IPC/R000660)

27. In submissions Ms Choi wrote:

2. On 2 November 2018, I lodged an access application to UTS under the Government Information (Public Access) Act 2009 ("GIPA Act"). On 9 November 2018, UTS emailed that my access application is "invalid". On the same day, I enquired Barry.Nilsson about its decision and requested the Information and Privacy Commissioner ("IPC") to review the decision under the GIPA Act. On 22 January 2019, the IPC recommended UTS make a new decision within 10 days (IPC18/R000680). On 6 February 2019, UTS refused to make a new decision because the IPC's recommendation is not binding. Being dissatisfied with the decision by UTS dated 9 November 2018, I have made an application to the Tribunal to review the decision by UTS on 9 November 2018 under the GIPA Act (my affidavit paras 10-12 and Exhibit JCHOI-7 pp13-22).

Summary

3. UTS's breaching s52 of the GIPA Act caused me to amend my initial access application. UTS did not respond to my inquiry about the decision by UTS on 9 November 2018, which is a breach of s52 of the GIPA Act. Hence, I had to amend my initial access application. My review application to the IPC on 9 November 2018 supports my objection to the decision by UTS on 9 November 2018. Consequently, I did not amend my initial access application "voluntarily" as UTS asserts.

4. UTS's dismissal application is based on its assumption that I requested NCAT to review the notice of decision. However, (1) My review application does not include any words "I request NCAT to review the notice of decision" (2) I did not attach a copy of the notice of decision to my review application (3) I put down (IPC18/R000660) as a reference at the end.

5. My review application is not misconceived, lacking in substance, frivolous and vexatious. Due to my poor English and a lack of legal knowledge, my review application may not show my clear grounds and the scope. However, at least, my review application shows that;

(1) I am dissatisfied with the decision by UTS on 9 November 2018

(2) I request NCAT to review the decision by UTS on 9 November 2018.

28. At paragraph 22 of her submission Ms Choi reasserts that the focus of her application is on the invalidity decision of 9 November 2018 alone. She makes no express mention of the not held decision and gives no indication that she seeks to have it reviewed.

29. The reality is that Ms Choi:

1. did attach a copy of both the invalidity report and the not held report to her application and referred to both in her grounds of application;

2. included both IPC reference numbers in her grounds for appeal; and

3. did not expressly ask the Tribunal to review the decisions underlying those reports in her application, although that was what UTS (and I) assumed from the very nature of their attachment to the application for administrative review.

30. Ms Choi’s amendment letter of 9 April 2019 does not provide any clarity about what she is actually seeking, despite her submissions to the contrary. While she blames language difficulties for any confusion, the clarity and specificity that she demonstrates in her affidavit and submission, albeit they were created with the assistance of translation software, is at odds with the confusion and lack of clarity evident in the grounds and the amended grounds.

31. In order to address the confusion as to what Ms Choi was seeking, on 31 July 2019 the Registrar wrote to the parties advising them that:

This matter has been referred to Senior Member Molony for a decision on the papers.

Having read all the materials, Mr Molony understands that Ms Choi only wants the Tribunal to review the decision that her access application was invalid, made by UTS on 9 November 2018.

Ms Choi is asked to confirm whether that is correct? A yes or no answer is requested.

If Ms Choi answers yes, then Mr Molony will proceed on the basis that Ms Choi is not now seeking a review of UTS's decision that it does not hold certain information, made on 11 December 2018. If she answers no, he will proceed on the basis that Ms Choi seeks review of both decisions.

Mr Molony is anxious to avoid any confusion about this issue, however caused.

Ms Choi should answer yes or no by 6 August 2019, with a copy of her answer to UTS's legal representative.

UTS will then have until 10 August 2019 to make any comment or submission about her answer, with a copy to be sent to Ms Choi.

Mr Molony hopes to be in a position to provide a written decision shortly after receiving your responses.

32. Ms Choi answered “Yes”. UTS made no further comment.

33. As a result. I have proceeded on the basis that Ms Choi only seeks to review the invalidity decision This does not reflect my original understanding on reading her review application and attachments. UTS understandably addressed both the invalidity and the not held decisions in its submissions and evidence, as they were filed before Ms Choi’s evidence and submissions.

Can UTS’s dismissal application be determined without a hearing?

34. Having clarified what is in dispute and considered all the materials relied on by the parties I am satisfied that:

1. neither Ms Choi nor UTS have objected to the application being determined on the papers; and,

2. that the issues for determination in this can be adequately determined in the absence of the parties based upon a consideration of the materials relied on by the parties.

35. As a consequence under s 50(4) of the NCAT Act I determine that a hearing is not necessary in this matter.

Should the Tribunal refuse to deal with the application under s 109 of the GIPA Act and/or dismiss it under s55(1)(b) of the CAT Act?

36. If a review under the GIPA Act is “frivolous, vexatious, misconceived or lacking in substance” then the Tribunal may refuse to deal with it under s 109. Under s 55(1)(b) of the CAT Act the Tribunal may dismiss proceedings that are, “frivolous or vexatious or otherwise misconceived or lacking in substance”. In the present case UTS is asking the Tribunal to exercise its powers under both sections with respect to Ms Choi’s application.

37. The words “frivolous, vexatious, misconceived or lacking in substance” are well recognised legal terms that can be found in a broad spectrum of statutes dealing with summary dismissal in a wide variety of forums. In each case, it is important that the legal and legislative context in which those proceedings arise be taken into consideration.

38. Examples of these were discussed BDK v Department of Education and Communities [2015] NSWCATAP 129 at [59-62] in the context of an appeal against a summary dismissal of anti-discrimination proceedings on the grounds that they were vexatious under s 55 (1)(b) of the CAT Act . The Appeal Panel wrote :

63   In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of ‘misconceived’ and ‘lacking in substance’, he said:

25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:

"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...

26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].

64   In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

65 It will be seen that Roden J’s first category covers conduct that falls within the meaning of ‘frivolous’, while his third category embraces the kind of cases to which the expressions ‘misconceived’ and ‘lacking in substance’ are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action).

66 In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While ‘misconceived’ and ‘lacking in substance’ may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ‘frivolous’ or ‘vexatious’, conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings

39. In The Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22 Principal Member Rosser noted with respect to the word misconceived that:

33 The meaning of “misconceived” in an equivalent provision to s 55(1)(b): s 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 has been considered in a number of cases by the Victorian Civil and Administrative Tribunal (VCAT).

34   For example, in Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478, VCAT stated at [32] that “misconceived” in the context of s 75(1)(a) means “obviously untenable or groundless …. or means that the applicant has brought an incorrect type of application”. In Kyriakidis v State of Victoria (Human Rights List) [2014] VCAT 1039 (21 August 2014), VCAT characterised as misconceived an application in which the complaint as articulated was not capable as a matter of law of enlivening VCAT’s power to make the order sought. This conclusion was also reached in Keogh v Higgins(Civil Claims) [2014] VCAT 1256 (3 October 2014).

40. Reviews under the GIPA Act are a good example of the nature of the proceedings, and applicable legislation, having a significant impact on whether proceedings are frivolous, misconceived or lacking in substance. This is so because the GIPA Act has among its objects the conferral on members of the public of a right to access government information; restricted only when there is an overriding public interest against disclosure: see s 3. In aid of that right s 105(1) of the GIPA Act provides:

In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

41. As a consequence, applications for summary dismissal based on an argument that review applications are without merit and destined to fail (and therefore frivolous, misconceived or lacking in substance) are unlikely to succeed, as the burden of justifying that the decision is correct lies with the respondent agency. Thus the submission by UTS in this case that Ms Choi’s attempt to review the not held decision (which it is now clear she is not pursuing) had “no prospect of success” because UTS “has already conducted reasonable searches” could not succeed. This is because the onus of proving that the searches were adequate falls on UTS.

42. In Walker v Pittwater Council [2016] NSWCATAD 78, Hennessy DP (as she then was) considered the provisions of s 110(5A)(b) of the GIPA Act. This provides that when considering whether to approve an access application being made by a person who is the subject of a restraint order the Tribunal may:

… have regard to whether the proposed application is frivolous, vexatious, misconceived or lacking in substance.

The Tribunal wrote:

22. 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.

23.   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.

24. 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).

43. UTS argues that Ms Choi’s application is misconceived, lacking in substance, frivolous and vexatious.

44. It points to the fact that the application was brought in the context of other litigation (6 applications) commenced by Ms Choi against UTS in the Tribunal, that were ultimately settled, withdrawn and dismissed, following the appointment by the Tribunal of a guardian ad litem for Ms Choi. There was also a restraint order under s 110 of the GIPA Act made preventing Ms Choi from making an access application to UTS without first obtaining the approval of the Tribunal.

45. That order was made after Ms Choi had made the access applications under consideration here. It has no impact on them.

46. UTS correctly points out that after it made the invalidity decision Ms Choi amended her access application, in writing, by providing further information about some of the information she wanted, and by deciding not to press other requests for information she had made. She had earlier, on 9 November 2018, suggested UTS redact private information in the staff payslips she had requested. Then on 13 November 2018 she wrote to UTS amending her access application. In doing so, she gave no indication that she felt under pressure to do so, and did not indicate that she was in any way dissatisfied with the invalidity decision. This was despite the fact that, on Ms Choi’s evidence, she had requested a review by the Information Commissioner on 9 November 2018.

47. She received an acknowledgement from UTS of her amended application dated 16 November 2018 and did nothing to indicate that it was in any way incorrect or that she felt she had been compelled to make the amendment.

48. It was only after UTS made the not held decision on 11 December 2018, in response to her amended access that application, that Ms Choi’s request for external review of the invalidity decision was received by the Information Commissioner on 18 December 2018. Receipt on that date by the Information Commissioner is impossible to reconcile with the email Ms Choi says she sent requesting that review on 9 November 2018 (see p 4 of JCHOI -7).

49. I have concluded that the more reliable date when determining when Ms Choi made her request for external review of the invalidity decision is the date the Information Commissioner says that request was received, namely 18 December 2018. I think it probable that that Ms Choi did not request review by the Information Commissioner of the invalidity decision until after 11 December 2018, and that the request was received on 18 December 2009. This was within the 40 working day time limit for requesting such a review : see s 91 of the GIPA Act.

50. In her submissions and affidavit Ms Choi says that she did not amend her access application voluntarily. She says she objected to the invalidity decision and emailed UTS’s legal representative on 9 November 2018 suggesting the UTS “hide private information”. UTS did not respond.

51. 9 November 2018 was a Friday. Ms Choi amended her application on the following Tuesday, 13 November 2019, before one might reasonable expect a reply to her email of 9 November 2018.

52. After Ms Choi amended her access application, any reply to her email of 9 November 2019 would have been redundant.

53. In her affidavit Ms Choi further explained:

8. I have a bad experience about the time period for requesting a review in Choi v University of Technology Sydney 120171 NSWCATAD 198 where NCAT refused to expand the time to review my application. Before I miss the time to cross-examine the Notice of Decision under the Government Information (Public Access) Act 2009 ("GIPA Act") by NSW Police, I wanted to access to the information as early as possible.

9. Hence, I did not amend my initial access application voluntarily as UTS asserts. I had no choice. I "had to" amend my initial access application.

54. I do not accept that this shows that Ms Choi did not voluntarily amend her access application. Form the date she received the invalidity decision she had 40 working days to request a review by the Information Commissioner (s 91) or by the Tribunal (s 101). There was no time pressure on her at the time she amended the access application on 13 November 2018. That pressure, were it real, was entirely self-inflicted and not the result of any conduct by UTS.

55. A consequence of that amendment was that UTS accepted the amended application as a valid access application and went on to decide that the information Ms Choi sought is not held by it. Ms Choi’s present attempt to review the invalidity decision, after the access application it is based on has been amended and processed by UTS, is clearly frivolous, misconceived and lacking in substance. I am also satisfied that the review application is so “obviously untenable or manifestly groundless as to be utterly hopeless” and is therefore vexatious in the third sense described by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491.

54. UTS also relied on the history of proceedings between it and Ms Choi to argue that the proceedings were commenced vexatiously. During the course of the proceedings concerning the appointment of a guardian ad litem and the subsequent settlement of six separate proceedings brought in the Tribunal by Ms Choi, she wrote a document labelled “without prejudice” and entitled :Fuck.you.pdf” which she sent to UTS’s solicitors and the Tribunal. UTS seeks to rely on the content of that document which it says does not have any proper connection with the settlement of proceedings relying on Field v Commissioner of Railways (NSW) (1957) CLR 285 at 292-293, Uniliver PLC v Prroacter & Gamble Co [1999] 2 All ER 691 and Trade Practices Commission v Arnott’s Ltd (1989) 88 ALR 69 at 70-74.

55. In her submissions Ms Choi did not address his letter or its admissibility in these proceedings.

56. I read the letter in order to determine whether it contained without prejudice communications. It does not. In short, it is a diatribe. It makes scandalous allegations against many people associated with Ms Choi’s dispute with the UTS from Lawyers, to Tribunal Members, to academics and UTS management. It is an unedifying document that says more about the author’s anguish, than anything else.

57. In her affidavit Ms Choi responded to a number of UTS allegations as to how past proceedings and the without prejudice letter demonstrate her vexatious intent. While I have read these passages closely they do not provide a coherent or cohesive explanation. They are reminiscent of a pattern, sometimes seen among repeat litigants, of a genuinely held sense of grievance spiralling out of control to encompass new individuals and organisations, who the litigant perceives as adding to, or subverting, their grievances in an escalating conspiracy. I am left with the impression that Ms Choi has a genuine sense of grievance, which grievance is so overwhelming that rational thought and analysis have been abandoned in her pursuit of vindication. Her present application, as pressed by her, was always untenable and therefore vexatious.

Orders:

60. The Tribunal orders that:

1. Under s 50(4) of the Civil and Administrative Tribunal Act 2013 the Tribunal determines that a hearing is not necessary in this matter.

2. Under s 109 of the Government Information (Public Access) Act 2009 the Tribunal refuses to deal further with Ms Choi’s review application because it is frivolous, vexatious, misconceived and lacking in substance.

3. The review application is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 because it is frivolous, vexatious, misconceived and lacking in substance.

4. Any application for costs, with supporting submissions, is to be filed with the Tribunal and served on the other party within 21 days of this decision and is to include a genuine estimate of the quantum of costs sought.

5. In the event that such an application is made, submissions in reply on the issue of costs are to be filed with the Tribunal and served on the other party within a further 21 days

6. refuse to deal further with Ms Choi review application under s 109 of the GIPA Act because it is frivolous, vexatious, misconceived and lacking in substance; and

7. dismiss it under s 55(1)(b) of the CAT Act because it is frivolous, vexatious, misconceived and lacking in substance.

**********

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: 27 August 2019