Turitsyna v Chief Commissioner of State Revenue

Case •

[2023] NSWCATAD 320

•

13 December 2023

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Turitsyna v Chief Commissioner of State Revenue [2023] NSWCATAD 320
Hearing dates: 12 November 2021, 10 February 2022 and 14 November 2022
Date of orders: 13 December 2023
Decision date: 13 December 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: J Gatland, Senior Member
Decision:

Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b), the application is dismissed.

Catchwords:

ADMINISTRATIVE LAW — Reviewability — Jurisdiction — no identified enabling legislation – dismissal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Anti-Discrimination Act 1997 (NSW)

Biosecurity Act 2015 (Cth), s 108

Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b)

Health Services Act 1997 (NSW), ss 69, 70

Police Act 1990 (NSW), s 208, 211C

Public Health Act 2010 (NSW), s 7

Public Health (Covid-19 Air Transport Quarantine) Order 2020

Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2020

Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2020

Public Health (COVID-19 Air Transportation Quarantine) Order (No 4) 2020

State Debt Recovery Act (NSW), ss 64, 65, 66

Cases Cited:

Alchin v Rail Corporation NSW [2012] NSWADT 142

Braiding v Charles Sturt University [2015] NSWCATAD 242

Budd v State of New South Wales (Attorney-General’s Department) [2008] NSWADT 239

Davis v Minister for Health [2021] NSWCATAD 312

Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19; [2020] NSWCA 327

Edway Training Pty Ltd v SafeWork NSW [2021] NSWCATAD 152

Fox v Commissioner of Police, NSW [2016] NSWCATAD 77

Imielska v Northern Sydney Local Health District [2013] NSWADT 100

Long v Metromix Pty Ltd [2019] NSWCATAP 198

Newman v Minister of Health & Aged Care [2021] FCA 517; (2021) 173 ALD 88

Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2016] NSWCATAD 37

The Owners Corporation - Strata Plan No 21367 v Letchford [2021] NSWCATCD 112

Turitsyna v Chief Commissioner of State Revenue [2022] NSWCATAP 263

White v Sutherland Shire Council [2019] NSWCATAD 100

Xu v Sydney West Area Health Service [2006] NSWADT 3

Zhang v Transport for NSW [2022] NSWCATAD 248

Texts Cited:

None cited

Category:Principal judgment
Parties: Tatiana Turitsyna (Applicant)
Chief Commissioner of State Revenue (Respondent)
Representation:

J Helmer (Applicant’s Agent)

Solicitors:
Crown Solicitor (Respondent)
File Number(s): 2021/00206957
Publication restriction: None

REASONS FOR DECISION

Introduction

  1. By her application dated 19 July 2021, filed in the Tribunal on 20 July 2021, the Applicant has asked the Tribunal to review a decision of the Respondent, the Chief Commissioner of State Revenue.

  2. In her application, the Applicant stated that the decision or decisions in respect to which she sought review were notified to her in two letters from a delegate or authorised officer of the Chief Commissioner; both letters are dated 15 July 2021. However, later in submissions, the number of decisions sought to be reviewed was increased.

The issue to be determined by the Tribunal

  1. The question to be determined in this application is whether the Tribunal has jurisdiction to review the Chief Commissioner’s decisions as they are identified by the Applicant.

What happened

  1. In mid-December 2020, the Applicant arrived in NSW from a place outside of Australia. Arising from laws and regulations connected with the management of the COVID-19 pandemic, she, like thousands of others, was required to stay in quarantine accommodation for a period of 14 days. The Applicant was quarantined in a hotel between about 14 and 29 December 2020.

  2. The requirement to stay in quarantine was mandatory and arose pursuant to an order made under the Public Health Act 2010(NSW), s 7. At the date of her entry into quarantine, the order in force was the Public Health (COVID-19 Air Transport Quarantine) Order (No. 4) 2020 (Order No. 4).

  3. On 21 January 2021, and arising from her stay in quarantine, the Chief Commissioner issued the Applicant with an invoice requiring her to pay a mandatory quarantine service fee of $3,000. Liability to pay this fee arises under the Health Services Act 1997 (NSW), s 70.

  4. The Applicant objects to the payment of this fee. By her representatives, she says the fee is unlawful.

  5. As noted in the introduction, the application was filed on 20 July 2021. The application was lodged by the Applicant’s then-solicitor.

  6. The grounds for review stated by the Applicant and that accompany her original application are as follows:

(1) Jurisdiction of the NCAT and standing of the Appellant are provided by Administrative Decisions Review Act 1997, Ch 3, Sect 49, 53; Public Health Act 2010, Sect 64, 65 and 66; Sched 1 (Covid-19); and State Debt Recovery Act 2018, Sect 44, 45.

(2) Claim to charge quarantine fee is unlawful and in violation of Biosecurity Act 2015 (Cwth), as ruled by Thawley J in Newman v Minister of Health & Aged Care [2021] FCA 517 – Sect 108 applies.

(3) Orders and regulations, and amendments to the Health Services Act and State Debt Recovery Act, on which the Commissioner of State Revenue relies in his decision are unlawful and in violation of the Legislation Review Act 1987 (NSW), Sect 9; and the Subordinate Legislation Act 1989 (NSW), Sect 5.

(4) Decisions by the Commissioner to impose quarantine fee, waive quarantine fee, enforce and non-enforce collection of fee, are discriminatory and in violation of the Anti-Discrimination Act 1977 (NSW) – Division 3.

  1. Shortly after the application was lodged, the Applicant’s representation changed; she was granted leave to be represented by a person who was not a lawyer, Professor John Helmer, who is identified in the documents before the Tribunal as the Applicant’s spouse. Prof Helmer represented the Applicant at all times since that grant of leave.

  2. The first directions hearing took place on 30 August 2021. In response to queries from the Tribunal on that date, the Applicant, by her agent, provided 14 pages of documents which are referred to as the “decision series”, parts one and two.

  1. Part one of the decision series contained;

  1. a letter which was said to be notice of an order issued under the signature of the (then) Commissioner of Police to “all returning passengers arriving by air into New South Wales from 17 August 2020 to 30 November 2020”, known as the Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2020 made under the Public Health Act, s 7 (Order No. 2). The notice advises that Order No. 2 required travellers arriving from any country other than Australia by air into New South Wales in the designated period to be quarantined in a hotel or medical facility for 14 days. The notice also indicated to the recipient that Revenue NSW, on behalf of the Sydney Local Health District, was going to charge a “mandatory quarantine fee” for quarantine accommodation. The notice further stated that the NSW Police Force, having collected information about the traveller for the purpose of enforcing Order No 2, was going to provide Revenue NSW with information about each traveller “so they can arrange payment of the quarantine fee”. In submissions, the Applicant pointed out that Order No. 2, of which she was given notice, had expired before she was required to enter into quarantine on 14 December 2020. Order No. 2 commenced on 25 June 2020 and was repealed by Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2020 from 21 September 2020. As noted above and having regard to the date of the Applicant’s entry into quarantine, the order that was in force at the date of the Applicant’s entry into quarantine was Public Health (COVID-19 Air Transportation Quarantine) Order (No 4) 2020 (Order No. 4). Order No. 4 commenced at the beginning of 14 December 2020.

  2. another letter, again signed by the Commissioner of Police, titled “Confirmation – Completion of Quarantine Period”, and then ‘completed’ by a Police Sergeant on 26 December 2020. The confirmation notice certified that the Applicant had completed a period of 14 days quarantine at the Novotel Hotel in Sydney Central by 4 PM on 28 December 2020. Prof Helmer states in his January 2021 memorandum that the Applicant was also briefly sent to the Adina Hotel in Mascot – for which she was not charged,

  3. a medical certification dated 27 December 2020 that refers to the Public Health (Covid-19 Air Transport Quarantine) Order 2020, which had been repealed by Order No. 2 from 25 June 2020, stating that the Applicant had been tested on day ten of her quarantine, being, apparently, 24 December 2020 and clinically assessed on 27 December 2020 before leaving quarantine and that she had no symptoms and had not returned a positive test for COVID-19.

  4. an information sheet concerning the COVID-19 Quarantine fee.

  5. the Quarantine Service Fee Invoice dated 21 January 2021 sent to the Applicant which required payment of a fee of $3,000 by 21 February 2021. The invoice stated that Revenue NSW was acting on behalf of the Sydney Local Health District to recover fees related to mandatory quarantine services. The invoice stated that, according to the records obtained by Revenue NSW, the Applicant had stayed in quarantine accommodation from 14 December 2020 to 29 December 2020.

  1. Part two of the decision series contained seven pieces of correspondence;

  1. A letter sent on behalf of the Chief Commissioner dated 4 March 2021 referring to correspondence received from Prof Helmer on the Applicant’s behalf (which included a memorandum of Prof Helmer dated 24 January 2021, a copy of which was provided by the Respondent in its bundle) advising that the “matter has been placed on hold whilst the details of your feedback are referred to the Sydney Local Health District”. The correspondence initiating this letter was not provided by the Applicant; however, the following correspondence describes the contents.

  2. A letter dated 30 April 2021 sent from another officer within Revenue NSW which appears to be a further response to the “feedback” letter, i.e. the 24 January 2021 memorandum. That letter:

  1. refers to “a range of public health orders” having been made by the NSW Minister for Health and Medical Research;

  2. addressed a contention, presumably in the initiating correspondence, that, under the Biosecurity Act 2015 (Cth), s 108, the Commonwealth is liable to pay for reasonable expenses incurred by an individual. The letter stated that, as the quarantine was not made under the Biosecurity Act, there would be no relief from payment. Pausing there, it is unclear the basis of why, if the Applicant considered she was entitled to reimbursement of reasonable expenses under a Commonwealth legislation, she would apply for reimbursement from a State government unless there had been a specific delegation of that power made to the State of New South Wales;

  3. went on to state that the public health orders required people arriving from another country to go into quarantine and that, under the Health Services Act 1997, (NSW), s 70, they were also liable to pay the quarantine accommodation fee;

  4. advised that claims against payment of the quarantine fee are reviewed in accordance with the State Debt Recovery Act, s 64;

  5. to avoid further costs and enforcement orders, the Applicant should either pay the amount in full, arrange a payment plan or lodge a hardship application if she had difficulty paying the fee.

  1. A letter, also from Revenue NSW, dated 31 May 2021, which refers to an email from Prof Helmer dated 9 May 2021 (a copy of that email was provided by the Respondent in its bundle, there was also a further memorandum sent by Prof Helmer dated 23 May 2021 which further set out some consideration of the decision in Newman v Minister of Health & Aged Care [2021] FCA 517). That letter, in effect, refused to cancel the Applicant’s quarantine fee and advised that “should you wish to dispute the matter further, you may choose to have it heard in court where you can present the legal issues John Helmer has raised, to a magistrate.” The letter also stated that disputed debts, such as quarantine fees, were required by legislation to be heard in the Small Claims Division of the Local Court. The Applicant was advised that, if this was her chosen course, she could advise Revenue NSW, who would then commence proceedings by filing and serving on her a Statement of Claim to which she could file a pleaded defence.

  2. A further letter dated 18 June 2021 from Revenue NSW addressing paragraphs 11 and 12 of an email from Prof Helmer dated 6 June 2021 that was not provided to the Tribunal. This letter referred the Applicant to the State Debt Recovery Act 2018 (NSW), s 44, concerning the election of a debtor to argue against payment of a debt in court and advised, in general terms of the procedure that would occur if the Applicant elected to have the matter dealt with by a court. The letter sought a response by 30 July 2021 about the court election and otherwise indicated that Revenue NSW considered the complaint closed.

  3. A letter dated 21 June from Revenue NSW, this time addressed to Mr Kozlowski, solicitor for the Applicant, in response to Mr Kozlowski’s letter dated 9 June 2021 (a copy of which was included in the Respondent’s bundle, in which Mr Kozlowski had requested that Revenue NSW identify “those Acts, including specific sections, as well as regulations, orders and other statutory instruments upon which you rely”). This letter also referred to Order No. 2 and provided more detailed information regarding the basis for how the quarantine fee was payable.

  4. A letter dated 15 July 2021 from Revenue NSW to Mr Kozlowski in response to a letter (a copy of which was provided by the Respondent in its bundle) dated 2 July 2021. The 15 July 2021 letter notes that the Applicant disagrees with Revenue NSW’s earlier advice and stated that the appropriate channel was the court “where a magistrate or assessor will determine liability”. The letter again asked the Applicant to make her election concerning court action, allowing her until 30 July 2021 to do so.

  5. A second letter dated 15 July 2021 from Revenue NSW addressed to the Applicant and Prof Helmer responding to an email dated 2 July 2021 (a copy of which was provided by the Respondent in its bundle) noting a request for statistics regarding quarantine fees and referring them to an application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) and otherwise referring to all the correspondence described above and against asking the Applicant to make her decision concerning court action by 30 July 2021.

  1. The matter was listed for a second directions hearing on 14 September 2021, at which time, the Tribunal set down a timetable for the filing of an application by the Respondent for dismissal and any submissions and evidence in reply. The matter was listed for a hearing of a dismissal application on 12 November 2021.

  2. On 1 October 2021, the Respondent filed an application for miscellaneous matters. The Respondent sought that the application be dismissed under the Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b). The Respondent’s stated ground for the application was:

The application for administrative review is misconceived, as the Tribunal does not have jurisdiction to review the respondent’s decision. See Respondent’s submissions filed with application.

  1. In submissions accompanying the application for dismissal, the Respondent submitted that:

  1. The Applicant was subject to Order No.4, being a public health order made under the Public Health Act, s 7.

  2. The liability to pay the quarantine fee arises under the Public Health Act, s 70, which provides that any person who receives any health service from a public health organisation is liable to contribute towards the funds of the organisation. The contribution sum is calculated by reference to the scale of fees fixed under the Public Health Act, s 69. In this case, the fees are those gazetted on 17 July 2020 and, relevantly, the sum of $3000 was payable by the Applicant pursuant to those provisions.

  3. The Respondent may declare a fee, such as that levied on the Applicant, to be a “referable debt” under the State Debt Recovery Act, s 7(2). Consequently, on 24 July 2020, that is what he did. Specifically, the Respondent declared the following were referable debts:

Fees payable under Chapter 7 of the Health Services Act 1997 in respect of quarantine services provided to persons subject to a quarantine facility or medical facility under an order made under section 7 of the Public Health Act 2010

  1. On 7 August 2021, the Respondent entered into an agreement with the Sydney Local Health District, a public authority, under the State Debt Recovery Act, s 20, for the taking of debt recovery action in respect of the quarantine charges that were payable to the Sydney Local Health District.

  2. Internal review of a referable debt by the Chief Commissioner under the State Debt Recovery Act, Part 3, Div 4.

  3. A person or debtor served with a debt recovery notice for a referable debt may elect to have the debt dealt with by a court under the State Debt Recovery Act, Part 5.

  1. The Commissioner’s submission, he says, is a short one:

… it is the Applicant has not identified any statutory provision conferring jurisdiction on the Tribunal to review a decision of the Respondent.

  1. On 4 November 2021, the Applicant filed the following material in opposition to the Respondent’s dismissal application:

  1. Evidence Memorandum dated 4 November 2021;

  2. Attachments 1 – 4 and 8 – 11 comprise material obtained by the Applicant under a request made by her under the GIPA Act. Attachments 4, 5 and 6 were summarised in the 4 November 2021 Memorandum.

  1. The central point of the Applicant’s 4 November 2021 memorandum and attachments was summarised in paragraph 6 of that document:

… from the beginning of the quarantine fee scheme, NSW state government officials, including Commissioner Johnston personally, knew that the quarantine hotel order imposed on the Applicant was a police operation, paid for out of the NSW state budget for the police “Stronger Communities Cluster”; explicitly acknowledged to be, and to have been, a police operation by the Board of the Sydney Local Health District, Meeting 112, on July 19, 2021; and to have been an unlawful application of Section 69 of the Health Services Act by a scheme of subterfuge set out by the implementing senior state government officials in their “Workplan for Implementation of charging for quarantine services provided by NSW Health”, dated July 12, 2020, classified confidential and privileged – until released on October 28, 2021

  1. The attachments to the 4 November 2021 included the Workplan referred to above.

  2. On 7 November 2021, the Applicant filed the following material in opposition to the Respondent’s dismissal application

  1. Evidence Memorandum dated 7 November 2021; and

  2. Data Tables 1, 2, 3 and 4, which contained information obtained by the Applicant under a GIPA Act request concerning various statistics, including;

  1. “Paying Passenger Arrivals”: showing, among other things, the number of passengers arriving in New South Wales from outside Australia;

  2. “Travellers billed a quarantine fee or issued a quarantine fee waiver”: showing, among other things, the number of travellers issued with a quarantine fee, those given a waiver of the fee, those who had paid the fee, those who had not paid the fee;

  3. “Quarantine fee payors, non-payors and debt recovering orders” showing, among other things, the number of debt recovery orders made; and

  4. “Money paid, waived and claimed by Revenue NSW”, which included the total of fees collected, waived and claimed by Revenue NSW under the quarantine scheme.

  1. The Applicant, in the 7 November 2021 Evidence Memorandum, by reference to the data tables accompanying it, drew the following conclusions by way of submission:

  1. One in three travellers who are subject to quarantine “are missing from Revenue NSW’s data report … They are unaccounted for and unexplained by Revenue NSW”;

  2. One in ten travellers to whom a quarantine fee invoice has been issued “have disappeared from the records; they neither paid nor are recorded as not paying”;

  3. More than one in three travellers who have been subject to a quarantine invoice fee and have not paid have not been issued with a debt recovery order; and

  4. Of the $309.4 million collected, waived and claimed by Revenue NSW, 20% have “been conceded by Revenue NSW to be lawfully unrecoverable; 45% “would be subject to repayment to travellers if the scheme were judged to be unlawful”; and nearly half “would be required to be withdrawn”.

  1. On 12 November 2021, the first day of hearing of the Respondent’s application for summary dismissal, Prof Helmer addressed the Tribunal at length; however, he was not able to inform the Tribunal of the following:

  1. what the administratively reviewable decision was that this application sought to review; and

  2. what enabling legislation gave the Tribunal the power to review a decision, assuming a decision was identified.

  1. The Applicant, by her agent, explained that she could not provide further submissions on these questions until she had reviewed material returnable on summons from the Chief Commissioner. Considering the fact that a summons was returnable shortly after the hearing of 12 November 2021, the Applicant was directed to provide to the Tribunal and the Chief Commissioner a set of grounds, no longer than two pages, which identified the administratively reviewable decision and the enabling legislation upon which her application is made. The matter was then adjourned to a further date.

  2. On 3 December 2022, in compliance with the Tribunal’s orders, the Applicant provided a memorandum in which she set out a list of the administratively reviewable decisions (3 December 2021 Memorandum). The 3 December 2021 Memorandum stressed that the list would be read as an aide-memoire or thumbnail, not a correction or an argument of fact or law. The Applicant also submitted that the list incorporated the argument on the papers and in the hearings to date and included:

evidence of fact, newly revealed, of the sequence of decisions and the process of decision-making by the Chief Commissioner of State Revenue for the scheme of “detention: and “police hotel operation” which the Respondent signed his name to as the plan for quarantine, for charge and collection of quarantine fees, and for the administration of the fee waiver criteria with the decided purposes “to mitigate risk of challenge” and to “reduce opportunity for members of the public to dispute the application of the charging regime.”

  1. The Applicant noted that the quoted phrase had been taken from the cross-agency Work Plan dated 12 July 2020 that she had obtained under a request made under the GIPA Act; a copy of the Work Plan had been filed in the Tribunal on 7 November 2021.

  2. The Applicant submitted in the 3 December 2021 Memorandum, that significant proportions of international travellers had either not been accounted for, and consequently not charged a quarantine fee; issued a quarantine fee invoice but ‘have disappeared from the records’; and the nearly 37% of travellers who have been charged a quarantine fee have not been the subject of an enforcement process and have also “disappeared from the records”. The Applicant submitted this was “prima facie evidence of the Respondent’s violation of the lawfulness of the fee imposed upon the Applicant”. By that submission, the Applicant accepted that the fee imposed on her was lawful, and it is the Respondent’s conduct with regard to the collection of other fees that is a point of violation – though this is not a submission she pressed in other parts of her submissions before the Tribunal.

  3. Paragraph 5 of the 3 December 2021 Memorandum, provided in compliance with directions, contains the Applicant’s list of the decisions that she asserts are reviewable by this Tribunal. The list was as follows:

– Decisions foreshadowed, discussed, communicated, drafted, decided, and coordinated by the Respondent in cross-agency groups on or about July 10-12, 2020, revealed by the Workplan of July 12, 2020, released as GIPR 21/429 Doc 4, and further recorded as implemented by Docs 1, 2, 3, 5, 6, 7, 8, 9 and 10 of GIPR 21/429, noting that Doc 2, the Variation Agreement changing the fee waiver criteria, signed by the Chief Commissioner was dated December 22, 2020, eight (8) days after Applicant was detained on December 14, 2020.

– Health Service Amendment (Quarantine Services) Regulation 2020 under Health Services Act 1997 inserting clause 29 to Health Services Regulation 2018 amending the Act, dated July 15, 2020, tabled in NSW Legislative Assembly July 28, 2020, and in Legislative Council on August 4, 2020.

– Health Services Act 1997 Order amending the Scale of Fees for Hospital and Other Health Services Pursuant to Section 69 of the Health Services Act 1997, signed by Elizabeth Koff, Secretary NSW Health, dated July 16, 2020.

– State Debt Recovery Act 2018 Referable Debt Order Pursuant to section 7(2) of the State Debt Recovery Act 2018, Declaration by Chief Commissioner Johnston signed July 24, 2020, published July 31, 2020, although it had expired on September 21, 2020, and was not in force – reference:

– On December 26, 2020, Applicant was served with a decision by NSW Police titled “Confirmation – Completion of Quarantine Period”.

– Quarantine Service Fee Invoice No. P40117 issued to Applicant by Revenue NSW on January 21, 2021.

– Decision letter of Respondent, signed Nabeel Qureshi, dated April 30, 2021.

– Decision letter of Respondent, signed Sanja Galic, dated May 31, 2021.

– Decision letter of Respondent, signed Sanja Galic, dated June 18, 2021.

– Decision letter of Respondent, signed Sanja Galic, dated June 26, 2021, expressly identifying reviewable authority of Public Health (Covid-19 Air Transport Quarantine) (No 2) Order 2020; gazetted scale of fees order by Koff of July 17, 2020; and Referable Debt Order By Chief Commissioner 202-443, July 24-31, 2020.

– Decision letter of Respondent, signed Sanja Galic, dated July 15, 2021.

– Decision letter of Respondent through CSO [Crown Solicitor’s Office], signed Suzanne Kendall, dated August 19, 2021.

  1. At paragraph 6 of the 3 December 2021 Memorandum, and in compliance with the directions, the Applicant provided a list of the legislative provisions said to give this Tribunal jurisdiction to review those decisions, which are as follows:

– Public Health Act 20210, Sections 7, 62(1)(b), 63, 64, 66, 135, including Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2020.

– Health Services Act 1997, Sections 7, 32, 69(1), 69(2), 70, 95, 140(f), including Health Services Regulation Section 29 (July 15, 2020), Health Services Amendment (Quarantine Services) Regulation 2020 (July 15, 2020), Order amending the scale of fees for hospital and other health services, 2020-153 (July 16, 2020) – NSW Government Gazette, page 3618

– State Debt Recovery Act 2018, Sections 7(2), 20, 44, 45, 100, including Referable Debt Order 2020-443, signed by Scot Johnston Chief Commissioner of State Revenue (July 24, 2020)

– Anti-Discrimination Act 1977, Sections 4, 49A, 49(B), 49(M), 88B, 93A, 103.

  1. On 18 January 2022, the Applicant, by her agent, sent further material that was relied upon “in substantiation of the final item on the list” attached material concerning a complaint made to the Anti-Discrimination Board. In that email, the Applicant was notified that a referral by the Board President to the Tribunal was pending.

  2. On 10 February 2022, the Tribunal reconvened. The subject of that hearing was not the dismissal application but rather a determination of whether the Applicant should be entitled to pursue a summons. The Tribunal dismissed the Applicant’s summons application. The Applicant requested written reasons which were delivered on 29 March 2022. The Applicant appealed that interlocutory decision. The Applicant informed the Tribunal in submissions dated 5 April 2022 that she did not want the summary dismissal hearing to proceed before the determination of her appeal against the interlocutory decision. That was a reasonable request to which the Tribunal acceded.

  3. The Applicant’s appeal against the interlocutory decision was dismissed by the Appeal Panel on 10 August 2022: Turitsyna v Chief Commissioner of State Revenue [2022] NSWCATAP 263.

  4. By directions issued on 23 August 2022, a timetable was arranged for any further or updated submissions to be filed by the parties, and a hearing date for the dismissal application was set at the next available date for the parties and the Tribunal as presently constituted.

  5. On 2 November 2022, in preparation for the hearing of the dismissal application, the Applicant filed and served:

  6. A memorandum dated 2 November 2022, in which the Applicant set out what she described as new evidence about the distinction between “police hotels” and “health hotels” and further that several officials, including the NSW Minister for Health, were;

  1. “aware that one-third of arrivals were avoiding Mr Hazzard’s order” and that “his knowledge of systematic evasion of the order is material to the Tribunal’s adjudication of its lawfulness”

  2. A police hotel, of which there were 17 in operation, as opposed to a health hotel, of which there were about 4, was a police service – not a health service.

  3. No health service was provided to the Applicant while she was quarantined in a “police hotel”, which was paid for by the NSW Police and then reimbursed under a cost recovery framework.

  4. That, if this were a police operation or service, such a service was expressly contemplated by the Police Act 1990 (NSW), s 208, which is a reviewable decision of the Tribunal under the Police Act, s 211C. While the Applicant’s oral submissions repeated this point, the written submission on this point concluded with the following:

Therefore, since this case appears to be the first one, and since the facts and the law make the case arguable – I repeat arguable – we reserve further argument until a merits hearing. We also say it is unlawful for you to apply the gag and rule for summary dismissal on this issue.

  1. Having regard to the number of reported cases of COVID-19 in the community and the number of infections detected in hotel quarantine, the risk of infections from travellers returning to New South Wales was either vastly over-stated or the number of travellers who were taken into quarantine had been concealed by officials, including the Respondent. The culmination of those submissions was:

The political explanation for this evidence becomes clear once the two sharp spikes of COVID-19 cases can be viewed as they hit New South Wales, the first pre-Delta variant of the virus in February and March of 2020, before there was mandatory quarantine, and then the second, the Omicron variant in December 2021, when the quarantine was still in force. In the first round, quarantine was the political remedy to justify the lockout of Australians trying to return from overseas; it failed to stop the contagion. In the second round, quarantine had no epidemiological benefit at all. It continued because it was politically expedient, and because it was very lucrative – for the state, that is, not its citizens. Out of the Health Ministry’s own mouth, statistically speaking, Berejiklian’s use-pay quarantine scheme ended with a minuscule number which had been buried under two years of weekly lies. The scheme, begun in secrecy, then covered up by state lawyers in court and by premier’s judges, had concluded in a grand extortion in which the state’s police chief, chief debt collector and health minister were the standover men.

  1. The 2 November 2022 memorandum had three attachments:

  1. a note from Health Care Australia, the third-party health care provider at the Applicant’s hotel, advising guests on various matters.

  2. a short email from someone in the Health Minister’s office to Prof Helmer, the body of which stated:

NSW Police managed the NSW Hotel Quarantine system. NSW Health partnered with Health Care Australia to meet workforce needs, and commercial arrangements are not disclosed.

  1. A notice of decision under the GIPA Act dated 10 October 2022 identifying the applicant, in that instance, as Prof Helmer.

  1. On 14 November 2022, the hearing of the dismissal application resumed. At the hearing, Prof Helmer made oral submissions on behalf of the Applicant. Those submissions elaborated and further analysed the written submissions contained in each of the Applicant’s memoranda. The oral submissions noted that:

  1. the application was concerned, not with everyday powers of the state, but with the legality of a law imposing quarantine fee and that the lawfulness of collecting such a sum was a matter of public importance;

  2. The Health Minister’s admissions (as set out above and in the 2 November 2022 memorandum) must be interpreted according to the Applicant’s interpretation of her case “at its highest”.

  3. Hours after the Premier of NSW announced the introduction of charges for quarantine, the bureaucrats met in secret, the intention being to avoid parliamentary review, and the result of those secret meetings was set out in the Workplan document.

  4. Accordingly, from 12 July to December 2020, they (the bureaucrats) would artificially create a police operation, not a health service (this submission being a further exposition of the written submissions).

  5. The Applicant also advised the Tribunal that the President of the Anti-Discrimination Board had referred her complaint on 17 March 2022 to the Tribunal and that those proceedings were the subject of a reserved decision by another member.

  1. The Applicant also referred the Tribunal to the following authorities and made the following submissions about them:

  1. The Owners Corporation - Strata Plan No 21367 v Letchford [2021] NSWCATCD 112, and in particular [38] of that decision, by contradistinction, the Applicant submitted that in this application there was evidence in admissible form on which the Tribunal could be assured that the matter should not be dismissed. However, that case was a matter considering whether an earlier application had already determined the issue in dispute and whether the second proceedings were, therefore, an abuse of process. That issue does not arise in this case.

  2. Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2016] NSWCATAD 37; after considering the well-known authorities concerning summary disposal at [7], the Tribunal in Seupule-Feau at [18] considered that one basis upon which dismissal should be considered is where the applicant “has not and cannot, articulate in writing a reasonable cause of action” – noting the specific context of that matter which concerned an anti-discrimination claim;

  3. Braiding v Charles Sturt University [2015] NSWCATAD 242, another anti-discrimination claim where the Tribunal noted that parts of the pleaded complaint were insufficient, though the complaint had been accepted by the President. That decision has limited relevance to this case; the Applicant has provided detailed submissions and has valiantly attempted to identify decisions and legislation to which she says the Tribunal’s jurisdiction to review is enlivened.

  4. Imielska v Northern Sydney Local Health District [2013] NSWADT 100, too, was an anti-discrimination matter, concerning an allegation of discrimination in the workplace. The matter was concerned with the investigative functions of the President of the Anti-discrimination Board, the caution exercised in such cases, as discussed at [17] of that decision, has a specific legislative context that is not persuasive in this case.

  5. Similarly, Budd v State of New South Wales (Attorney-General’s Department) [2008] NSWADT 239 which, at [13] cites Xu v Sydney West Area Health Service [2006] NSWADT 3 at [13] – [18] (and the authorities cited therein, including Langley v Niland [1981] 2 NSWLR 104 at 107) considers the term “lacking in substance” in the context of whether the asserted facts in an discrimination claim are sufficient to ground an action. As with the other decisions, these cases have limited application to the matters to be determined in this instance.

  1. The Applicant was granted leave to provide and provided further short submissions addressing two authorities relied upon by the Respondent by 21 November 2022. The Applicant did so by 15 November 2022, and accordingly, both parties have fully complied with the orders and directions of the Tribunal to date.

  2. The further submissions of the Applicant addressed the two authorities seen by her agent before the hearing: Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19; [2020] NSWCA 327 at [45] and Edway Training Pty Ltd v SafeWork NSW [2021] NSWCATAD 152. The Applicant submits the decision in Dyldam supports her opposition to summary dismissal while Edway does not; she submits any application due to the facts having been presented to the Tribunal in error. The Applicant does, however, submit in paragraph 5 of those submissions that:

It is common ground that the Tribunal should determine whether it has jurisdiction and whether there is enabling legislation.

Legal Context

  1. The Tribunal has jurisdiction only in respect of those matters for which legislation, referred to in the Civil and Administrative Tribunal Act, s 4 as “enabling legislation”, has conferred such jurisdiction.

  2. The Civil and Administrative Tribunal Act expressly identifies some of the legislation to which jurisdiction is conferred, for example, Civil and Administrative Tribunal Act, Sch 3, cl 1(1) and 3(1)(a).

  3. The Tribunal has jurisdiction in respect of matters provided in the Civil and Administrative Tribunal Act or other enabling legislation; Civil and Administrative Tribunal Act, s 28. The Tribunal has four kinds of jurisdiction: general, administrative, appeal and enforcement. Each kind of jurisdiction is prescribed by legislation.

  4. The circumstances upon which the administrative review jurisdiction is conferred on the Tribunal is provided under the Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9, which provides, relevantly, that:

(1)     The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)     in the exercise of functions conferred or imposed by or under the legislation, or

(b)     in the exercise of any other functions of the administrator identified by the legislation.

…

  1. This ADR Act, s 7 defines an administratively reviewable decision as:

(1)     … a decision of an administrator over which the Tribunal has administrative review jurisdiction.

(2)     For the avoidance of doubt (and without limiting subsection (1) or section 6):

(a)     the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and

(b)     in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.

(Emphasis added)

  1. The effect of the ADR Act, ss 7 and 9 is that the Tribunal’s administrative review jurisdiction only arises on, and is exclusively concerned with, the exercise of specific functions imposed or conferred on an administrator by legislation and the decisions, conduct or refusal of an administrator to exercise the functions conferred on them under specific legislation.

  1. In proceedings for the exercise of its administrative review jurisdiction, the Tribunal also has jurisdiction to make ancillary decisions; Civil and Administrative Tribunal Act, s 30(2)(a).

  2. An ancillary decision of the Tribunal includes a preliminary decision made under legislation that is preliminary to a decision determining proceedings, including a decision concerning whether the Tribunal has jurisdiction to deal with a matter; Civil and Administrative Tribunal Act, s 4.

  3. The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; Civil and Administrative Tribunal Act, s 55(1)(b).

  4. In Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 at [26], the Tribunal, considering the meaning of the words of s 55(1)(b) observed that:

“…The term “misconceived” represents a claim that does not “disclose a cause of action”, while “lacking in substance” may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39].”

  1. Where an application is made for which the jurisdiction of the Tribunal is found to be wanting, such an application may be considered as misconceived or otherwise lacking in substance: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142 at [25]; Long v Metromix Pty Ltd [2019] NSWCATAP 198 at [77].

  2. In White v Sutherland Shire Council [2019] NSWCATAD 100 at [8], the Tribunal, referring to the Civil and Administrative Tribunal Act as the CAT Act, stated:

The CAT Act sets out the Tribunal’s jurisdiction. One of those jurisdictions is the “administrative review jurisdiction”: s 29(2)(b) CAT Act. The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act: s 30 CAT Act, and s 9 ADR Act. Section 30 of the CAT Act provides that, with respect to the Tribunal’s administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation.

  1. As the Tribunal observed in Zhang v Transport for NSW [2022] NSWCATAD 248 at [10],

It follows that if an application concerns a decision in respect of which the Tribunal does not have jurisdiction, the application may be considered as misconceived or otherwise lacking in substance for the purpose of s 55(1) of the NCAT Act.

  1. This does not mean the Applicant is not aggrieved by some form of governmental conduct; it simply means that the Tribunal has no power to intervene or review that conduct. As the Respondent correctly submitted, the Tribunal does not have a broader jurisdiction to review the lawfulness of State executive and legislative action.

  2. The 4 November 2021 Memorandum urged the Tribunal to consider the following passage from Alchin v Rail Corporation NSW [2012] NSWADT 142 at [20]-[21] in which the predecessor Tribunal stated:

The power to dismiss summarily a complaint or part of a complaint under s 102 should be exercised with extreme caution and the Tribunal must approach these applications on the basis that applicants should be given every reasonable opportunity to set out the content of their complaints and to produce evidence to support them - Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84]ff and Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [27] (although this decision deals with the previous provision corresponding to s 102, the principles are equally applicable to s 102).

As to the proper approach for the Tribunal to take, it was held in Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]:

28 In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant's version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant's assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence."

  1. The Tribunal in Alchin, which was concerned with dismissal under the Anti-Discrimination Act 1997 (NSW), s 102, went on to say at [22]

Put another way, the Tribunal's should ask, whether taking the applicant's case at its highest, there is enough material in the complaint to satisfy the Tribunal that there is a case to answer - Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].

  1. These passages are oft-cited and unchallenged.

  2. At the hearing of the application for dismissal, the Applicant’s agent, in oral submissions, urged the Tribunal to place ‘facts before law’. There is force in that submission as far as consideration of the existence of jurisdictional facts which inform whether the Tribunal’s jurisdiction arises by reference to whether, for example, a decision has been made under a provision of legislation which then gives rise to a reviewable decision of the Tribunal.

  3. Unlike Alchin, however, the question on this application does not concern a contest over the transactional facts; there was no dispute that the Applicant arrived in New South Wales from outside Australia on about 14 December 2020, nor is there any dispute that she was detained in quarantine, made to stay in a hotel until about 29 December 2020, was subjected to testing for COVID-19 while in quarantine, and had her information released to the Respondent.

  4. One possible jurisdictional fact raised by the Applicant in her submissions was whether the hotel in which she was quarantined was health service provided by the Sydney Local Health District or, as she contends, “this was a police scheme for which Revenue NSW is unlawfully attempting to charge and collect monies to which it is not entitled”.

Consideration of the Decisions and Enabling Provisions Identified by the Applicant

  1. In her original application, the 3 December 2021 Memorandum and the 2 November 2022 Memorandum, the Applicant asserted that she had standing (by which I have inferred, the right to apply to the Tribunal for review) under the decisions and legislative provisions which are noted above at paragraphs 9, 26, 27 and 33(4). I now consider each of the main legislative provisions she identified in those documents.

Public Health Act and the Health Services Act

  1. The Public Health Act, s 7 was considered in Davis v Minister for Health [2021] NSWCATAD 312. That provision does confer jurisdiction on the Tribunal to review a decision, but the jurisdiction is limited to actions and directions given by the Minister (in that case, a direction that unvaccinated healthcare workers were not to attend work). As the Respondent correctly submits, the provision does not extend jurisdiction to allow the Tribunal to review the conduct or decision of the Respondent. The provision does not extend to enliven in the Tribunal's jurisdiction to review the validity of Order No. 4.

  2. The Tribunal has limited review functions arising from the Public Health Act, ss 64 and 65. It is concerned only with a public health order that relates to an individual person given under the Public Health Act, s 62. This is not what occurred in this case; the Applicant submits she was the subject of Public Health Order No. 4.

  3. There is no provision in the Health Services Act that enlivens the Tribunal’s jurisdiction.

  4. Accordingly, the Tribunal’s jurisdiction is not enlivened with regard to those provisions.

State Debt Recovery Act

  1. The State Debt Recovery Act, ss 44 and 45 provide for the challenge of a referable debt. That challenge must be made before a court. The Tribunal is not a court for the purposes of that provision. Accordingly, the Tribunal’s jurisdiction is not enlivened with regard to those provisions.

Biosecurity Act 2015 (Cth)

  1. The Respondent submits, and the Tribunal agrees, that the Biosecurity Act is not a source of review jurisdiction for this Tribunal.

Anti-Discrimination Act

  1. As noted above, this aspect of the Applicant’s claim was the subject of separate proceedings. The Respondent informed the Tribunal at the hearing in November 2022 that leave had been refused to the Applicant, but those reasons were not, at that time, available.

Police Act

  1. The Police Act, s 211C provides:

A person aggrieved by a decision of the Commissioner under section 208 (1) as to the amount payable by the person under that subsection where no such amount is prescribed by the regulations may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.

  1. The Police Act, s 208(1), referred to by s 211C provides:

208   Charges payable for attendance at sporting events, escorts and other services

(1)  If a member of the NSW Police Force (whether or not in compliance with any law)—

(a)  attends a sporting or entertainment event, at the request of the person conducting or organising that event, for the purpose of maintaining order, or

(b)  provides, at the request of a person, an escort for a vehicle or trailer carrying a long or wide load, or

(c)  provides any information to a person, at the person’s request, in respect of a visa application,

the Commissioner is entitled to demand payment by the person of such amount as may be prescribed by the regulations or, if no amount is so prescribed, of such amount as the Commissioner thinks fit.

  1. The Applicant was not able to identify how it could be said that the NSW Police involved in hotel quarantine under, relevantly, Order No. 4 could be said to meet any of the criteria of action under s 208(1). It was not suggested by either party that hotel quarantine would meet the definition of a “sporting or entertainment event”. The Applicant was not a person who was conducting or organising an event, nor did she request police attend for the purpose of maintaining public order.

  2. There is no application of the Police Act, s 208(1) to the undisputed facts of these proceedings.

Conclusion

  1. The Applicant has been unable to show that the Tribunal has jurisdiction to review any of the decisions she has identified by reference to any enabling legislation.

  2. Having regard to the matters above, the Tribunal must dismiss the application on the basis that it is misconceived or lacking in substance; Civil and Administrative Tribunal Act, s 55(1)(b).

Order

  1. Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b), the application is dismissed.

**********

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: 13 December 2023

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Alchin v Rail Corporation NSW [2012] NSWADT 142
Braiding v Charles Sturt University [2015] NSWCATAD 242
Budd v State of New South Wales (Attorney General's Department) [2008] NSWADT 239