Joseph v Kiama Municipal Council

[2022] NSWCATAD 392

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Joseph v Kiama Municipal Council [2022] NSWCATAD 392

Hearing dates:

11 November 2022

Date of orders:

9 December 2022

Decision date:

09 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

The Tribunal refuses the application for summary dismissal.

Catchwords:

ADMINISTRATIVE LAW- summary dismissal-freedom of information- government information public access- whether application is frivolous, vexatious, misconceived or lacking in substance-Government Information (Public Access) Act 2009 (NSW)

Legislation Cited:

Administrative Decisions Review Act (NSW) 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009

Cases Cited:

Choi v University of Technology Sydney [2019] NSWCATAD 176

Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 361

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

Department of Communities and Justice v Tebb [2020] NSWCATAP 179

Miriani v Transport for NSW [2021] NSWCATAD 16

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Michael Joseph (Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel
R Coffey (Respondent)

Applicant (Self-represented)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2022/00236000, 2022/00235607, 2022/00251353

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. This is an application for summary dismissal of proceedings. Kiama Municipal Council (the Respondent)) seeks the summary dismissal of three applications for administrative review made by Mr Joseph (the Applicant). Those applications relate to three decisions made by the Respondent which refused access requests made by the Applicant under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

2. This matter arises out of a property and planning dispute between neighbours in the Council area. There is an extensive history of related litigation before the Courts. It is described by the parties as a “long and exhausting history”.

Respondent’s submissions

3. The Respondent submits the applications are:

1. Frivolous and or vexatious as they have been instituted with the intention of annoying, harassing or embarrassing the Spencers [neighbours of the Applicant],

2. Vexatious as they are seeking to relitigate and / or reagitate matters which were the subject of the earlier Land and Environment Court proceedings which were resolved by agreement,

3. Motivated by unsupported allegations of bias and or collusion between the Respondent (and its employees and or agents) and the Spencers, as evidenced by the Applicant's submissions attached to the Tribunal applications, and

4. Misconceived or lacking in substance to the extent that they seek information which has already been provided to the Applicant.

4. In written submissions, the Respondent states, under the heading Evidence, at paragraph 52 et seq:

In the substantive proceedings, the Applicant has filed an affidavit which is 151 pages in length and comprises of 527 paragraphs. The affidavit annexes four lever arch folders of material... At [14] of his affidavit, the Applicant has cast a very wide net in respect to the complaints about the access decisions and conduct of the Respondents officers. To deal with it will involve substantial resources, which is unjustified having regard to the improper purpose for which the proceedings are brought. The scope of the Applicant’s complaints as expressed in his affidavit can be summarised as:

(a) a lack of reasonable searches,

(b) “unexplained” third party consultation,

(c) failure to evaluate the reliability of third party information,

(d) denial of procedural fairness to the Applicant to respond to the third party consultation in formation in respect to the assessment or possibility that it could be false and misleading,

(e) lack of consideration of the Applicants personal factors (section 55), including whether there has been compliance with the terms of settlement from earlier court proceedings,

(f) misapplication of the test provided by section 14(3),

(g) inadequate reasons section 61,

(h) insufficient consideration or weight to the “presumption in favour of disclosure”,

(i) refusal to consider the first two 2022 access applications despite the recommendation of the IPC,

(j) the decisions were irrational and perverse, and

(k) an intention to cover up the process of the 2021 DA being withdrawn.

Many of these are without proper foundation. For example, the complaints about third party consultation overlooks the statutory obligation in section 54 of the GIPA act. It must be rejected. The complaint that the Applicant was denied procedural fairness to make submissions or consider the information provided during third party consultation is also without foundation. There is no requirement to provide that opportunity. That complaint should therefore also be rejected.

5. The Respondent submits, [at 67], “Importantly, the substantive applications and the s109 application must be understood in the context set out above of a longstanding dispute between neighbours and allegations against officers, employees, and agents of the Respondent… the dispute has a long and exhausting history. The Respondent does not suggest that the Applicant is not entitled to object to the DA's, to seek access to government information for the purpose of considering decision making, to ensure transparency and integrity, or to commence litigation to enforce or protect his various legal rights. However, the Applicant's approach is combative and involves many baseless and scurrilous allegations against officers, employees, and agents of the Respondent and the Spencers. Further, the mere fact that a person is entitled to commence litigation to enforce their legal rights does not prevent a finding that the manner in which such litigation is approached could or does amount to harassment or intimidation.”

6. The Respondent submits [at 75], “throughout the Applicant's affidavit and the material submitted in support of the access applications, the Applicant makes numerous personal remarks about and allegations against the Spencers. The Applicant variously describes Jennifer Spencer as corrupt, provocative, petty, spiteful, vengeful and manipulative. The Applicant also raises trivial and personal matters regarding the Spencer's which are entirely irrelevant to the access decisions under review. The raising of these matters reveals that the Applicant’s commencement and conduct of the proceedings is predominantly motivated by personal animosity towards the Spencers, rather than the legitimate pursuit of his rights under the GIPA act.” Specific examples of this are given [at 76-79].

7. The Respondent submits, [at 81],”the review of an access determination is not the appropriate forum for the making of allegations of bias in the making of decisions beyond the access determinations themselves. That is however what the Applicant is seeking to do. In the proceedings, the Applicant asserts that the Spencers gave support to counsellors during the 2021 council elections which was not disclosed. This is irrelevant to the access applications.” Similarly [at 84] allegations of bias are submitted to be not relevant to the access application decisions. The Respondent submits that these and other allegations of bias are not supported by evidence and as such, indicate that the proceedings are vexatious and or frivolous.

8. The Respondent refers to comments in a decision of the Tribunal in Choi v University of Technology Sydney [2019] NSWCATAD 176 (27 August 2019) at [59] that the Applicant’s conduct “was 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”. The Respondent submits, “the various matters traversed in the Applicants evidence and submissions disclose a genuinely held sense of grievance which has spiralled out of control and the Tribunal should not allow its processes to be used by the Applicant in this manner”.

9. The Respondent submits, [at 90 et seq], “the Applicant has disclosed that one of the motives of the access applications is to determine whether the Terms of Settlement which led to the resolution of the LEC proceedings have been complied with… The assessment of the DA has proceeded in accordance with the process envisaged by those Terms, culminating in the development application being recommended for refusal (as desired by the Applicant), and the DA subsequently being withdrawn. That should be the end of the matter. Through these proceedings, the Applicant seeks to relitigate and reagitate his grievances regarding the assessment of the 2021 DA... These proceedings are not a legitimate vehicle through which allegations of unlawful conduct of Council staff or the Spencers regarding the 2021DA should be ventilated”.

10. The Respondent refers to the Tribunal decision of Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 361 and submits these proceedings have been instituted for the collateral purpose of relitigating the LEC matters and should therefore be dismissed. This is said to be “evidenced by the voluminous material the Applicant has filed in support of the review applications which are not relevant to the real issues the subject of proceedings, but instead seek to advance these claims of fraudulent or unlawful conduct”.

11. The Applicant sought to issue summons in this matter, for production and attendance, and the Respondent submits this is “illustrative of the Applicant using these proceedings for the ulterior purpose of advancing his allegations against Council and the Spencers…is frivolous and vexatious and provides further support for an order that the proceedings should be dismissed under s 109”.

12. The Respondent tendered the affidavit of the Applicant. This was done by consent. A witness, Ms Critcher, was called by the Respondent and made available for cross-examination.

Applicant’s submissions

13. The Applicant submits, in part, that:

1. the three determinations under review contained errors of fact and law as identified in his written submissions for review and/or in the determinations by the Information Commissioner recommending the reconsideration of each determination by the Respondent.

2. the applications for review have arguable merit,

3. the failure by KMC to act in accordance with the model litigant code

4. unexplained and unjustified delay in bringing the application

5. the delay was inconsistent with Section 3(2)(b) of the GIPA Act

6. acting inconsistently with the asserted grounds of application

7. failure to assert new grounds identified in general application in a timely manner

8. unreasonable delay in filing the application

9. failure to provide necessary particulars requested

10. proceedings are not vexatious having regard to determinations made by the Information Privacy Commission

11. the acceptance by the Respondent of the need to reconsider the third determination of 8 June 2022.

12. …

14. The Applicant submitted the LEC matters were settled and are not being relitigated as they were not subject to a hearing or decided in litigation. He submits he is not foreclosed from seeking review of the related matters. He submits this dismissal application is being used to set up a s 14 harassment and intimidation argument to defeat his right of administrative review. He submits the tender of his affidavit, which was done without qualification, must be accepted as being for the truth of its contents and not for the limited purpose of showing bias for s 109. That qualification was raised by the Respondent in reply submissions.

15. The Applicant tendered a video of a Council meeting. The Applicant submitted [at 24 et seq] that contrary to the Respondent’s submissions about an ongoing dispute between the Applicant and the Spencers, “the two major applications did not centre on any dispute with the Spencers. I was investigating the conduct of KMC, its management and councillors as the resolutions involved in DA 2021. Tangentially, the conduct of the Spencers was relevant as to whether their conduct influenced KMC conduct. While this had been a relevant consideration in the past, the applications lodged in 2022 were not directed to any past dispute”.

16. The Applicant notes the submissions of the Respondent about his motivation and refers to comments of the Tribunal in Miriani v Transport for NSW [2021] NSWCATAD 16 [at 25] that “The GIPA Act establishes a presumption in favour of disclosure of government information and does not require that access applicants disclose their motivations for seeking access to government information, or the uses to which they wish to put that information once obtained”.

17. The Applicant notes that he is subject to “an implied undertaking” in regard to some of the material he seeks which was made available under subpoena in the LEC and to which he does not now have access. The Applicant states he has not caused delay in this matter and all his documentation has been in possession of the Respondent since August 2022. The Applicant states the use of s 60 GIPA to refuse access on the grounds of unreasonable and substantial diversion of resources was not previously raised and should not be raised at this late juncture.

Legislation

18. Section 109 GIPA Act provides as follows:

109 NCAT may refuse to review decision

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.

19. Section 55 of the NCAT Act 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,

…

Consideration and findings

20. The principles as to the Tribunal’s power to dismiss proceedings under s55(1)(b) of the CAT Act and the similar provisions in s 109 of the GIPA Act are well known. A complaint or part of a complaint can be dismissed if it is ”so clearly untenable that it cannot possibly succeed”, General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130. In a dismissal application, the Applicant’s case in the substantive proceedings is taken at its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act, Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. The onus of proving that a complaint ought to be summarily dismissed lies on the person seeking such an order, Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53]. The onus is on the Respondent to establish that the administrative review application is wholly misconceived, lacking in substance, frivolous or vexatious. That is, either that there is no legitimate request by the Applicant or, if there is, it is vexatious for being brought for a collateral purpose: see, Zonnevylle v NSW Department of Justice [2021] NSWCAT 175 at [39].

21. The Respondent submits the Applicant’s administrative review applications are frivolous and / or vexatious, as they have been instituted with the intention of annoying, harassing or embarrassing the Spencers. That may be the effect that the applications have on the Spencers but on the evidence before me, I am not satisfied they were instituted for that purpose alone.

22. The Respondent submits the applications are vexatious as they are seeking to relitigate and / or reagitate matters which were the subject of the earlier Land and Environment Court proceedings which were resolved by agreement. It may be that review of these matters will involve consideration of material that was before the LEC and the implementation of the Terms of Settlement but on the evidence before me, I am not satisfied that will amount to relitigating or reagitation (whatever that latter term may mean).

23. The Respondent submits the Applicant is motivated by unsupported allegations of bias and / or collusion between the Respondent (and its employees and or agents) and the Spencers, as evidenced by the Applicant's submissions attached to the Tribunal applications. It is apparent the Applicant suspects some bad faith actions on the part of some Council staff and councillors. However, I am not satisfied on the evidence before me that such concerns alone are sufficient to strike out an application before it is fully ventilated at hearing.

24. The Respondent submits the applications are misconceived or lacking in substance to the extent that they seek information which has already been provided to the Applicant. Some material has been provided to the Applicant. Access to other material has been refused. I note the Information Commissioner, in regard to all three applications, recommended that the Council reconsider its decision. A delegate of the Respondent decided not to reconsider the decision in each of the first two matters. On the third matter a delegate advised the Applicant that the decision would be reconsidered as recommended. Subsequently, another delegate made a decision to refuse access. I am not satisfied on the evidence that the applications are so lacking in substance or misconceived that they can be summarily dismissed.

25. In all the circumstances, I find the applications for administrative review should not be summarily dismissed.

Order

1. The Tribunal refuses the application for summary dismissal.

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

Amendments

12 December 2022 - Coversheet

Decision last updated: 12 December 2022