Hutchison v NSW Department of Education

[2018] NSWCATAD 100

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Hutchison v NSW Department of Education [2018] NSWCATAD 100
Hearing dates:	On the papers
Date of orders:	14 May 2018
Decision date:	14 May 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1) The hearing of the respondent’s application for dismissal is dispensed with and a determination of that application is made on the papers.  (2) The applicant’s application is dismissed.
Catchwords:	ADMINISTRATIVE REVIEW – respondent made an application for the dismissal of the applicant’s review application on the basis that the application was misconceived as no further issues arose – whether a hearing of the respondent’s dismissal application should be dispensed with and a determination of the application be dealt with on the papers
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Government Information (Public Access) Act 2009 (NSW)
Category:	Principal judgment
Parties:	Jeffrey John Hutchison (Applicant) NSW Department of Education (Respondent)
Representation:	In Person (Applicant) E Stathis (Respondent)
File Number(s):	2017/00297392

reasons for decision

Introduction

1. The respondent, the NSW Department of Education, has made an application, under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), seeking dismissal of the external administrative review application of the applicant, Jeffrey John Hutchison. The applicant’s external review application concerns a decision of the respondent, made pursuant to s 58 of the Government Information (Public Access) Act 2009 (GIPA Act), concerning his application for access to specific information about him that was held by the respondent. Of concern to the applicant was obtaining a copy of the electronic recordings of two meetings he had with officers of the respondent’s Employee Performance and Conduct Directorate (EPAC) during 2011.

2. Section 55 of the NCAT Act relevantly provides as follows:

“55   Dismissal of proceedings

(1)  The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

…

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

…,”

3. The respondent formally made its dismissal application on 8 February 2018, in accordance with orders made by the Tribunal, constituted by Dr Lucy Senior Member, at a case conference, on 19 December 2017. The Tribunal’s records indicate that the applicant and the respondent were present at the call-over. The orders made by the Tribunal were as follows:

“1. NSW Department of Education is to give to the Tribunal and the other party the following material: application for summary dismissal and evidence and submissions in support on or before 09 February 2018. The submissions should address whether the application should be determined on the papers.

2. Jeffrey John Hutchison is to give to the Tribunal and the other party the following material: submissions and evidence in reply on or before 23 February 2018. The submissions should address whether the application for summary dismissal should be determined on the papers (that is, without an oral hearing).

3. The Tribunal will thereafter determine whether the matter can be determined on the papers and, if so, the decision will be reserved.”

4. On 8 February 2018, also in compliance with the abovementioned orders, the respondent filed:

1. a statement of Jason Kennedy-Davidson, Manager Support Services, of EPAC. The statement is dated 7 February 2018 and sets out searches Mr Kennedy-Davidson conducted to identify records of meetings, in 2011, between the applicant and officers of EPAC; and

2. written submissions by Elissa Stathis, Manager Information Access Unit, in which it was submitted that the applicant’s review application should be dismissed, under s 55(1)(b) of the NCAT Act, as the evidence was that the respondent had conducted reasonable searches for the specific information requested by the applicant and no additional records had been located. It was also submitted that: “the Tribunal should determine this application on the papers.”

5. The respondent forwarded a copy of the abovementioned statement and written submissions to the applicant, by express post, under the cover of a short letter. These were sent around the same time as the material was filed with the Tribunal.

6. No evidence or submissions have been filed or served by the applicant.

7. Having regard to the material filed in these proceedings and the relevant provisions of the GIPA Act, I am satisfied that the issues for determination in the respondent’s dismissal application can be adequately determined in the absence of the parties by considering the material that has been lodged with the Tribunal. Hence I have made an order under s 50 of the NCAT Act dispensing with a hearing of the respondent’s application.

8. Furthermore, on the material before the Tribunal, I am satisfied that the respondent has proven that there was only one meeting, between the applicant and officers of EPAC, which was electronically recorded. That meeting, an interview, occurred on 16 March 2011 and the respondent has now, during the course of these proceedings, provided the applicant with a CD that contains a copy of that recording. Hence, there are no remaining issues outstanding in regard to the applicant’s access application and on this basis it is appropriate to dismiss the applicant’s application and to otherwise affirm the decision of the respondent as being the correct and preferred decision.

Relevant legislation

Civil and Administrative Tribunal Act 2013

9. Section 50 of the Civil and Administrative Tribunal Act 2013, sets out the circumstances in which a hearing is requires for proceedings before the Tribunal and the circumstances in which it may not be required. That section is in the following terms:

“50   When hearings are required

(1)  A hearing is required for proceedings in the Tribunal except:

(a)  in proceedings for the granting of leave for an external or internal appeal, or

(b)  in connection with the use of any resolution processes in proceedings, or

(c)  if the Tribunal makes an order under this section dispensing with a hearing, or

(d)  in such other circumstances as may be prescribed by the procedural rules.

(2)  The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)  The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a)  afforded the parties an opportunity to make submissions about the proposed order, and

(b)  taken any such submissions into account.

(4)  The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5)  This section does not prevent the Tribunal from holding a hearing even if it is not required.”

Government Information (Public Access) Act 2009

10. Part 4 of the GIPA Act makes provision for how a person can make an application to a government agency for access to government information it holds, how and when the government agency is process and determine a person’s access application, and the form in which the government agency is to provide access if it is determined that there is not an overriding public interest against the disclosure of that information: see GIPA Act ss 12, 13 and 14.

11. The term “government information” is defined in s 4(1) of the GIPA Act to mean “information contained in a record held by an agency”. The word “record” is broadly defined in Sch 4 of the GIPA Act to mean: “any document or other source of information complied, recorded or stored in written form or by electronic process, or in any other manner or by any other means” or a copy thereof.

12. Section 53 of the GIPA Act provides that a government agency is to undertake reasonable searches for the government information access is applied for. That section relevantly provides as follows:

“53   Searches for information held by agency

(1)  …

(2)  An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3)  The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5)  …”

13. Section 58 of the GIPA Act sets out how an access request is to be determined by an agency. That section relevantly provides as follows:

“58   How applications are decided

(1)  An agency decides an access application for government information by:

(a)  deciding to provide access to the information, or

(b)  deciding that the information is not held by the agency, or

(c)  deciding that the information is already available to the applicant (see section 59), or

(d)  deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e)  deciding to refuse to deal with the application (see section 60), or

(f)  deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note.

These decisions are reviewable under Part 5.

(2)  More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3)  If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.”

14. As indicated in the note to s 58, Part 5 of the GIPA Act makes provision for a person, who is aggrieved by a decision of an agency made under that section, the right to seek review of that decision: see GIPA Act, s 80 which prescribes which decisions of an agency under Part 4 are “reviewable decisions.” There are three forms of review, internal review by an agency (s 82), review by the Information Commissioner (s 89) and review by the Tribunal (s 100).

15. Where the aggrieved person seeks review by the Tribunal, s102 of the GIPA Act provides that an application to the Tribunal can be made even if the person did not first seek an internal review by the agency. Section 101 provides that, subject to the Tribunal extending time, an application for review to the Tribunal must be made within 40 working days after the person was given notice of the decision the subject of review.

16. Section 105 of the GIPA Act prescribes on whom the onus rests in regard to a review application lodged with the Tribunal. For the purpose of this application that section relevantly provides as follows:

“105   Onus on agency to justify decisions

(1)  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.

(2)  ..”

Administrative Decisions Review Act 1997

17. Section 63 of the ADR Act sets out how the Tribunal is to determine an application for administrative review generally. That section is in the following terms:

“63   Determination of administrative review by Tribunal

(1)  In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)  In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

Background

18. The applicant’s access request to the respondent was dated 22 June 2017. According to the records of the respondent, that application was received on l5 July 2017. In his formal access request the applicant sought assess to the following information:

1. a copy of the letter/correspondence to Ms V Firth, MP, the then Minister for Education that Mr Riordan states was “inappropriate” and therefore the reason for his dismissal as a teacher;

2. a copy of all written and or recorded information regarding the two meetings with the Department and himself at the Glenfield Office; and

3. Mr Riordan’s “collected” statements re the Investigation.

19. On 11 July 2017, the respondent wrote to the applicant informing him that his application for access was valid and that his application would be decided within 20 working days, namely by 2 August 2017: see GIPA Act, ss 51 and 57.

20. On 20 July 2017, the respondent wrote to the applicant and advised him of the searches that had been undertaken to locate the information he sought access to, the number of pages identified as being relevant to his access application and its decision about whether access to the identified pages was to be granted or refused. In this case, the respondent advised that 134 pages had been identified as being relevant to his access request and that it had been determined that they would be released to him in full under s 58(1)(a) of the GIPA Act. The respondent also noted that the 134 pages had been received from EPAC.

21. Included in the 134 pages was a transcript of a taped interview with the applicant on 16 March 2011. In its reasons for decision, the respondent noted that a transcript had been provided as the applicant had previously indicated he wanted a transcript rather than a copy of the recording.

22. On 9 August 2017, the applicant re-submitted his 22 June 2017, GIPA access application. On 16 August 2017, the respondent wrote to the applicant informing him:

1. his application was not valid because he had not paid an application fee;

2. the respondent was not required to provide access to the information sought as the respondent had already decided to make this information available to him: see GIP Act, s 59;

3. the respondent was unable to identify any further records it held containing information falling within his access application;

4. in the event the applicant would like to request a review of the decision of the respondent made on 20 July 2017, “or have further searches undertaken” he may do so by exercising his review rights (internal review by the respondent or external review by the Information Commissioner or the Tribunal); and

5. in the event the applicant did not agree that his re-submitted access application was invalid, he could seek review of that decision.

23. The applicant’s application for external review was lodged with the Tribunal until 26 September 2017. The applicant lodged several application forms with the Tribunal concerning the same decision of the respondent.

24. The applicant’s review application first came before the Tribunal, at a case conference, on 21 November 2017. The records of the Tribunal indicate that the applicant and a representative of the respondent were in attendance at the call-over that day. At the conclusion of the call-over, the Tribunal, constituted by Senior Member McAteer, made the following orders:

“1. The proceeding is listed for case conference on 19 December 2017 …

2. By consent the NSW Department of Education is to locate the C.D.s relating to Item 2 in the scope of application with a view to releasing them in an “de-encrypted” form on or before 12 December 2017.”

25. Senior Member McAteer also made the following notations:

“The Tribunal notes that the respondent will identify that material for release (C.D.s of two meetings) on the basis of the applicant’s assertions that the transcripts provided are incomplete, and the CD’s fall within the scope of the material as referred to in item 2 of the scope.”

And

“On the next occasion the matter will either be withdrawn or given a hearing date.”

Material before the Tribunal

26. In his applications lodged with the Tribunal, the applicant said he was seeking review of the respondent’s decision because the respondent did not have any evidence of his “supposed misconduct”. He said, there had been “no trial” or “justice” and referred to “CDs of two meetings”.

27. The applicant also indicated on his applications to the Tribunal that they had been lodged outside the time allowed and the reason for this was said to be the condition of his health and a fear of intimidation. He said, “please listen to my story”.

28. On 9 November 2017, the respondent filed a completed Tribunal response to the applicant’s application for review. That response included a copy of the applicant’s original application for access and a copy of the respondent’s notice of decision.

29. On 13 December 2017, the respondent filed a copy of a letter, dated 8 November 2017, that it had sent to the applicant. In the letter to the applicant, the respondent noted the orders made by Senior Member McAteer on 21 November 2017. In regard to order 2 concerning the CDs, the respondent noted the applicant had only sought access to “two meetings with DET” and himself at Glenfield. In the letter the respondent noted that the records of the respondent indicated that there had been three meetings, in 2011, between the applicant and EPAC officers at Glenfield. These occurred on 16 March, 28 June and 18 July 2011. Of these meetings only one meeting was electronically recorded and this was the meeting of 16 March 2011. The letter to the applicant said that a CD containing the electronic audio recording of the meeting was enclosed. The recording, it was noted was an interview lasting 1 hour and 45 minutes, a transcription of which had been provided to the applicant in response to his access request.

30. Also attached to the respondent’s letter to the applicant was a copy of two letters, dated 18 July 2011 and 24 October 2011, addressed to him from EPAC. These letters made reference to the other two meetings the applicant had with EPAC officers in 2011. They were also letters the applicant had previously been provided with a copy of.

31. These meetings, the respondent said were not electronically recorded. The respondent concluded its letter to the applicant by saying: “It may help the proceedings if you can listen to the CD recording before the case conference so that you can let the Tribunal Senior Member know whether or not” the respondent had provided all records relevant to his access request and whether the transcript was an accurate transcription of the electronic record of the meeting.

26. Attached to the respondent’s letter to the Tribunal was a copy of the abovementioned letters to the applicant, together with a copy of the 134 pages the applicant had been given access to.

27. As I have noted, on 8 February 2018, the respondent filed and served written submissions and an affidavit of Mr Kennedy-Davidson. In his affidavit, Mr Kennedy-Davidson explained that EPAC is a specific and unique directorate whose functions primarily include investigative, advisory and policy work in relation to the performance and conduct of employees of the respondent. EPAC, he said, was situated within one of the State offices of the respondent Department. Mr Kennedy-Davidson explained what searches he made in response to the request of the respondent’s Information Access Unit concerning the applicant’s 2017 access application. He said that according to records held by EPAC, there were three meetings, held at the Glenfield Office in 2011, between the applicant and officers of EPAC. He confirmed that these had occurred on 16 March, 28 June and 18 July 2011. He said the records indicated that the purpose of the 28 June and 18 July meetings was to facilitate the personal delivery of written material to the applicant. The purpose of the other meeting (16 March 2011) was to interview the applicant. He confirmed that it was only this meeting that was electronically recorded. He said a transcript of that recording was provided to the Information Access Unit and that he had subsequently forwarded a CD copy of that recording to the Information Access Unit subsequently.

28. Mr Kennedy-Davidson said EPAC had no other records that indicated there were any further meetings between the applicant and officers of EPAC at the Glenfield in 2011.

29. I have dealt with the respondent’s submissions below.

Consideration

36. There are three matters for determination in this matter. They are:

1. what are the matters in issue in the respondent’s dismissal application?

2. can these issues be adequately determined in the absence of the applicant and the respondent by considering the material that has been lodged with the Tribunal? (i.e can the issues be adequately determined on the papers?) and

3. in the event it is found that the issues can be adequately determined on the papers, is it appropriate to deal with these issues and determine respondent’s dismissal application?

37. While not raised by the respondent, based on the information before the Tribunal, in my opinion there is a possible threshold issue, namely whether the applicant has filed his application within time, or is time to be extended.

Is an extension of time needed?

38. As I have noted, under the GIPA Act, there are 40 working days within which a review application is to be lodged with the Tribunal. In this case, the respondent informed the applicant of its decision by mail. The applicant did not indicate when he received that mail. However, I note under cl 13(4)(a) of the Civil and Administrative Tribunal Rules 2014, where documents are served by post, the time at which that document was served is at the end of the fourth working day after the date on which the document was posted, unless there is evidence to the contrary.

39. If it is accepted that cl 13(4)(a) applies, the applicant’s application for review was lodged within time and I have proceeded with this application accordingly.

The matters in issue

40. The principal matter for determination in the respondent’s dismissal application is whether the applicant’s application for review is misconceived. The onus is on the respondent to establish its claim for dismissal. In my view, having regard to the matters in issue, the respondent’s application for dismissal is in effect an application to determine the applicant’s substantive review application in that the decision of the respondent is the correct and preferred decision and should be affirmed.

41. The respondent contends that the applicant’s review application is misconceived because there is nothing further to determine as the respondent has now given the applicant access to all the information for which he sought access, including a CD which contains a copy of the electronically recorded March 2011 meeting he had with officers of EPAC. The respondent’s contention was this was the only meeting the applicant had with officers of EPAC that was electronically recorded.

42. I appreciate the applicant has raised concerns more broadly about how the investigation of his alleged misconduct may have been conducted. He also appears to be concerned about the findings that were made as a result of that investigation. However, these are not matters relevant to his access application under the GIPA Act. His access application and review application only relates to the information for which he sought access and which is held by the respondent; namely the information concerning the 2011 EPAC investigation. His access application is not an opportunity to have that investigation and the findings thereof to be reviewed.

43. Nevertheless, as I have explained above, in this application the onus is on the respondent to prove that its decision was justified. Accordingly, the onus is on the respondent to prove that it does not hold an electronic record of another meeting between the applicant and EPAC officers, as requested by the applicant in his access application.

Can the issues be adequately determined on the papers?

44. In my opinion, I am satisfied that the issues for determination in this application can be adequately dealt with in the absence of the applicant and the respondent by considering the material that has been filed in these proceedings.

45. As I have noted, it is the respondent who bears the onus in its dismissal applicant and in the substantive review application of the applicant. Both parties have been given an opportunity to make submissions as to whether a hearing should be dispensed with and whether the matter can be determined on the papers. The respondent has filed submissions and evidence and supports the matter being determined on the papers, in the absence of a hearing. The applicant, who was present when orders were made at the second call-over hearing, has not filed any submissions, but has been given ample opportunity to do so.

46. Accordingly, in the absence of any objection from the applicant, I am satisfied, on the material filed, that there is nothing further that could be added in having a hearing and on this basis I make the order sought.

Is it appropriate to determine the matter?

47. As I have noted above, the only matter for determination in the respondent’s dismissal application and the applicant’s substantial review application is whether the respondent holds an electronic record of another meeting (i.e. other than the 16 March 2011 meeting) between the applicant and officers of EPAC. Having regard to the material filed, especially the affidavit evidence of Mr Kennedy-Davidson, I am satisfied that the respondent has undertaken reasonable searches to ascertain whether another meeting was electronically recorded and if it was so recorded, whether that record is held by the respondent. That is, I am satisfied, on the evidence of Mr Kennedy-Davidson that no such record exists.

48. Furthermore, the applicant has not contended otherwise, since he was provided with the evidenced of Mr Kennedy-Davidson.

49. On the basis of these findings and the “guiding principles” set out in s 36(1) of the Civil and Administrative Tribunal Act, I am satisfied that it is appropriate to also determine the respondent’s dismissal application. As I have noted above, this will in effect also determine the applicant’s substantive review application.

50. I have also taken into account 38 of the Civil and Administrative Tribunal Act in that I am satisfied the applicant has had a reasonable opportunity to be heard and to make submissions on the matters in issue in this application.

51. Accordingly, I accept the submissions of the respondent that it has now discharged its onus in that there is nothing further to determine in the applicant’s substantive application for review. In the ordinary course of events this would give rise to a finding by the Tribunal that the decision of the respondent is the correct and preferred decision and should be affirmed. However, as the respondent has made an application for dismissal on the grounds that the applicant’s application is misconceived, it is appropriate to make the order sought.

Orders

52. For the reasons set out above I make the following orders:

1. The hearing of the respondent’s application for dismissal is dispensed with and a determination of that application is made on the papers.

2. The applicant’s application is dismissed.

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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: 14 May 2018