Miriani v Transport for NSW - [2021] NSWCATAD 16

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Miriani v Transport for NSW [2021] NSWCATAD 16
Hearing dates: On the papers
Date of orders: 28 January 2021
Decision date: 28 January 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: P H Molony, Senior Member
Decision:
(1) The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013.
(2) The respondent’s application for summary dismissal of the applicant’s review application under section 55(1)(b) is dismissed.
(3) The applicant’s review application is to be listed for further case conference at a date and time to be fixed by the Registrar.

Catchwords:
ADMINISTRATIVE LAW — Freedom of information - Independent merits review – decision that information not held under Government Information (Public Access) Act 2010 - onus of proof on agency.
CIVIL PROCEDURE — Summary disposal application under s55(1)(b) of the Civil and Administrative Tribunal Act 2013 - dismissed - proceedings not frivolous or vexatious or otherwise misconceived or lacking in substance.

Legislation Cited:
Civil and Administrative Tribunal Act 2013
Freedom of Information Act 1989 (Repealed)
Government Information (Public Access) Act 2010

Cases Cited:
Attorney-General v Wentworth (1988) 14 NSWLR 481
ABA v Department of Human Services, Community Services [2012] NSWADT 117
ARC v Northern NSW Local Health District [2014] NSWCATAD 109
Choi v University of Technology Sydney [2019] NSWCATAD 176
Crewdson v Central Sydney AHS [2002] NSWCA 345
GA v, The University of Sydney (GD) [2010] NSWADTAP 31
Miriani v Commissioner of Police, New South Wales Police Force [2005] NSWADT 187
Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286
Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317
Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464
VZ v University of Newcastle (No 2) [2012] NSWADT 167
Wojciechowska v Commissioner of Police [2020] NSWCATAP 257
Wojciechowska v Commissioner of Police [2020] NSWCATAP 173
Worldwide Enterprises Proprietary Limited v Westpac Banking Corporation [2010] VCAT 1125
Zonneyvylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186.

Texts Cited:
None

Category: Procedural rulings
Parties: Joe Miriani (Applicant)
Transport for NSW (Respondent)
Representation: Solicitors:
Applicant (Self-Represented)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2020/00163242
Publication restriction: None

REASONS FOR DECISION

Introduction.

Transport for NSW has applied to the Tribunal to summarily dismiss a review application made against it under the Government Information (Public Access) Act (NSW) (the GIPA Act) by Joe Miriani. The dismissal application is made under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) which 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, …

At a directions hearing held on 8 December 2020 the Tribunal made orders requiring Mr Miriani to file and serve submissions and materials he wished to rely on with respect to the summary dismissal application. Those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCATAD 16
Decision Date: 28 January 2021

CaseChat Overview and Summary

The case of Miriani v Transport for NSW involved the applicant seeking review of a decision by the respondent, Transport for NSW, that certain information was not held under the Government Information (Public Access) Act 2010. The dispute was brought before the Civil and Administrative Tribunal of New South Wales. The applicant, Miriani, sought to challenge the respondent's determination that specific documents were not accessible under the freedom of information provisions, arguing that the information was, in fact, held by the respondent.

The primary legal issue the court had to address was whether the Tribunal should summarily dismiss the applicant's review application, as sought by the respondent, under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013. This section allows for summary disposal of proceedings that are considered frivolous, vexatious, or lacking in substance. The court also had to consider the onus of proof concerning the information held under the public access act.

In dismissing the respondent's application for summary dismissal, the Tribunal found that the applicant's proceedings were neither frivolous nor vexatious. The court determined that the application contained sufficient substance to warrant further examination and that the onus of proof was appropriately placed on the respondent to demonstrate that the information was not held as claimed by the applicant. The Tribunal further held that the application did not meet the criteria for summary dismissal and ordered that the matter proceed to a further case conference to facilitate the continuation of the review process.

Orders

Orders of the court

(1) The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) The respondent’s application for summary dismissal of the applicant’s review application under section 55(1)(b) is dismissed.

(3) The applicant’s review application is to be listed for further case conference at a date and time to be fixed by the Registrar.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Miriani v Transport for NSW [2021] NSWCATAD 16
Hearing dates:	On the papers
Date of orders:	28 January 2021
Decision date:	28 January 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P H Molony, Senior Member
Decision:	(1) The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013. (2) The respondent’s application for summary dismissal of the applicant’s review application under section 55(1)(b) is dismissed. (3) The applicant’s review application is to be listed for further case conference at a date and time to be fixed by the Registrar.
Catchwords:	ADMINISTRATIVE LAW — Freedom of information - Independent merits review – decision that information not held under Government Information (Public Access) Act 2010 - onus of proof on agency. CIVIL PROCEDURE — Summary disposal application under s55(1)(b) of the Civil and Administrative Tribunal Act 2013 - dismissed - proceedings not frivolous or vexatious or otherwise misconceived or lacking in substance.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 (Repealed) Government Information (Public Access) Act 2010
Cases Cited:	Attorney-General v Wentworth (1988) 14 NSWLR 481 ABA v Department of Human Services, Community Services [2012] NSWADT 117 ARC v Northern NSW Local Health District [2014] NSWCATAD 109 Choi v University of Technology Sydney [2019] NSWCATAD 176 Crewdson v Central Sydney AHS [2002] NSWCA 345 GA v, The University of Sydney (GD) [2010] NSWADTAP 31 Miriani v Commissioner of Police, New South Wales Police Force [2005] NSWADT 187 Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286 Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 VZ v University of Newcastle (No 2) [2012] NSWADT 167 Wojciechowska v Commissioner of Police [2020] NSWCATAP 257 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Worldwide Enterprises Proprietary Limited v Westpac Banking Corporation [2010] VCAT 1125 Zonneyvylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186.
Texts Cited:	None
Category:	Procedural rulings
Parties:	Joe Miriani (Applicant) Transport for NSW (Respondent)
Representation:	Solicitors: Applicant (Self-Represented) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2020/00163242
Publication restriction:	None