Zonnevylle v Secretary, Department of Education

[2021] NSWCATAD 361

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

26 October 2020 (submissions closed 14 December 2020)

Date of orders:

3 December 2021

Decision date:

03 December 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member

Decision:

The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

Catchwords:

PRACTICE AND PROCEDURE – summary dismissal of proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 – whether the applicant’s administrative review proceedings are vexatious as they are predominantly being maintained for a collateral purpose

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Attorney-General v Wentworth (1988) 14 NSWLR 481

BDK v Department of Education and Communities [2015] NSWCATAP 129

Williams v Spautz (1992) 174 CLR 509

Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 49

Zonnevylle v Department of Justice [2018] NSWCATAD 96

Zonnevylle v Minister for Education [2019] NSWCATAD 28

Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108

Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274

Zonnevylle v Secretary, Department of Education [2020] NSWCATAD 110

Zonnevylle v Secretary, Department of Education (No 2) [2020] NSWCATAD 298

Category:

Procedural rulings

Parties:

Peter Zonnevylle (Applicant)
Secretary, Department of Education

Representation:

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00045500

REASONS FOR DECISION

1. This decision relates to the application of the respondent, the Secretary, Department of Education, made on 19 October 2020, seeking an order that the Tribunal dismiss the applicant’s administrative review application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act),

2. That section 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—

(a) …,

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

3. It is accepted that a reasonably broad connotation should be given to the meaning of the categories of conduct in s 55(1), including s 55(1)(b): BDK v Department of Education and Communities [2015] NSWCATAP 129 (BDK) at [66].

4. It is the contention of the respondent that the applicant’s administrative review application is vexatious, because the applicant is predominantly maintaining these proceedings for a collateral purpose, namely to re-litigate allegations of corruption, illegality and lack of good faith on the part of specifically named senior officers of the respondent department, and to urge the Tribunal to make findings which it has no power to make.

5. The applicant, Peter Zonnevylle, denies that there is any predominant or improper collateral purpose in pursuing his administrative review application and asserts that the allegations he makes directly relate to the matters in issue in that application.

6. The applicant lodged his administrative review application with the Tribunal on 12 February 2020. That application arose from the access request the applicant had emailed to the respondent, on 22 December 2019, seeking access to government information under s 41 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). There were 10 specific categories of information for which he sought access. These categories related to the GIPA access requests the applicant had made to the respondent, between 2012 and December 2019, and for which he had lodged an external review application.

7. In his application for administrative review, the applicant identified the administratively reviewable decision for which he sought review as a deemed decision of the respondent to refuse to deal with his access request because the respondent had failed to determine his access request within the prescribed 20 working days after receipt of that request: GIPA Act, ss 57 and 63.

8. The applicant’s administrative review application first came before the Tribunal on 17 March 2020, where the respondent tendered a letter, dated 13 January 2020, addressed to the applicant, in which he was advised, by the R/Manager Information Access (Manager for Information Access) of the respondent department, of her decisions that his access request was invalid, because it had not been sent by ordinary post. The applicant denies having received the letter and has questioned its validity and whether it was in fact sent.

9. On 17 March 2020, the Tribunal made an order, under s 65 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), remitting the decision of the respondent for reconsideration. That decision was made on 8 July 2020. It was a new decision in that the respondent decided to set aside the 13 January 2020 decision and substituted it with a new decision to refuse to deal with the applicant’s access request, because dealing with that request would require an unreasonable and substantial diversion of the respondent’s resources: GIPA Act s 60(1)(a).

10. Set out below is a detailed history of the proceedings before the Tribunal.

26 October 2020 dismissal hearing

11. The respondent’s dismissal application was heard before me on Monday, 26 October 2020. Also, before me on that day was the applicant’s substantive application and two interlocutory applications of the applicant.

12. Due to the COVID-19 restrictions, on 26 October 2020, both parties appeared by telephone.

13. At the commencement of the hearing, I dealt with the applicant’s interlocutory applications that had been made, by email, the previous Thursday (22 October 2020) and Friday (23 October 2020). In the first email the applicant said that he “required” the hearing set down for the following Monday to be vacated as he had not been given sufficient time to respond to the respondent’s dismissal application.

14. In the second email, the applicant reiterated his earlier email in that he “required” Monday’s hearing to be vacated so that he could “provide a substantial response to the respondent’s submissions”. In this regard, he said he required “a minimum 6 weeks”.

15. I refused the applicant’s application for an adjournment of the hearing of the respondent’s dismissal application. At the same time, I indicated to the applicant that he would be given an opportunity to provide further written submissions in response to the respondent’s submissions, including any oral submissions that were made during the course of the hearing.

16. At the conclusion of the hearing:

1. I reserved my decision in regard to the respondent’s dismissal application, subject to the applicant providing written submissions in reply by 13 November 2020. I also directed that the applicant’s submissions in reply were not to exceed 13 pages in length; and

2. stood over the applicant’s substantive administrative review proceedings pending determination of the respondent’s dismissal application.

17. On 22 November 2020, the applicant sent an email to the Tribunal stating that he had been unable to respond to the respondent’s submissions due to “significant time constraints”. Attached to the email were a number of documents including:

1. a list, prepared by the applicant, specifying a number of “Interim” and “Miscellaneous Orders for the Tribunal” and “Grounds for Orders”. The orders sought by the applicant included orders, under ss 111 and 112 of the GIPA Act, in regard to alleged misconduct by a number of senior officers of the respondent department;

2. a list, prepared by the applicant of alleged “Fundamental GIPA Act rights” that are provided to the public under the GIPA Act;

3. a copy of a letter, sent to the applicant, by email, on 16 March 2020, from the solicitor of the respondent; and

4. a copy of a letter, dated 23 January 2020, sent to the applicant, by the respondent in which he was notified of the respondent’s decision that an earlier access request (i.e. ‘GIPA–19–439’), was invalid.

18. On 14 December 2020, the applicant provided his written submissions in reply to the respondent’s dismissal application. The respondent has not provided any further submissions.

Matters in issue in the respondent’s dismissal application

19. The main issue for determination in this application of the respondent is whether the proceedings are vexatious and if so, whether the Tribunal should exercise its discretion under s 55(1)(b) of the NCAT Act and dismiss the applicant’s application for administrative review.

20. In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, Roden J provided an explanation of the term “vexatious” as it appears in provisions such as s 55(1)(b) to include - proceedings that are found to be maintained “for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise”.

21. It is accepted that the collateral purpose must be the predominant purpose and does not need to be the only purpose: Williams v Spautz (1992) 174 CLR 509. Furthermore, the intention of the applicant must be determined objectively, and not subjectively.

22. Proceedings may be vexatious even if they invoke an available legal right: BDK at [72].

23. Hence, in this application, the onus is on the respondent to establish, on the balance of probabilities, that:

1. the proceedings are vexatious because the applicant is maintaining his administrative review proceedings for a collateral purpose, to be determined objectively, and that purpose is the predominant purpose of the proceeding; and

2. in the circumstances, the Tribunal should exercise its discretion and dismiss the applicant’s administrative proceedings on the grounds that they are vexatious.

24. For the reasons that follow, I am satisfied that the respondent has established each of the abovementioned matters in issue and that it is appropriate that an order be made dismissing the applicant’s administrative review application under s 55(1)(b) of the NCAT Act.

The Tribunal’s administrative review jurisdiction of an administratively reviewable decision of an agency under the GIPA Act

25. It is convenient to first set out the relevant provisions of the GIPA Act and the ADR Act.

GIPA Act

26. The object of the GIPA Act is to provide public access to government information in the interests of advancing a system of responsible and representative democratic Government that is open, accountable, fair and effective: GIPA Act, s 3(1).

27. Section 41 of the GIPA Act sets out how an access application is to be made. That section relevantly provides as follows:

41   How to make an access application

(1)  An application or other request for government information is not a valid access application unless it complies with the following requirements (the formal requirements) for access applications—

(a)  it must be in writing sent by post to or lodged at an office of the agency concerned or made in the manner approved by the agency under subsection (2),

(b)  it must clearly indicate that it is an access application made under this Act,

(c)  it must be accompanied by a fee of $30,

(d)  it must state the name of the applicant and a postal or email address as the address for correspondence in connection with the application,

(e)  it must include such information as is reasonably necessary to enable the government information applied for to be identified.

Note—

See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application. See also section 52 (3) concerning assistance to be afforded by an agency to an access applicant.

(1A)  …

(2)  An agency may approve additional facilities for the making of an access application or the payment of an application fee.

28. Section 51 of the GIPA Act provides that once a government agency receives an application for access, it must decide and notify the access applicant, within five working days from the date of receipt, whether the access application is valid or not valid.

29. Section 52(3) provides that and agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application.

30. Where the agency determines that the access request is a valid request, s 57(1) of the GIPA Act provides that an agency must decide and notify an access applicant of its decision within 20 working days after receipt of the access application. Provision is also made for extending that time in consultation with the access applicant: GIPA Act s 57(2) and (3).

31. Where an agency fails to make a decision within the prescribed time, s 63 of the GIPA Act provides that the agency is deemed to have decided to refuse to deal with the access application and any application fee paid by the applicant is to be refunded.

32. Otherwise, s 58(1) and (2) of the GIPA Act provides that the following decision, or decisions can be made in regard to the information sought by the access applicant:

1. deciding to provide access to the information, or

2. deciding that the information is not held by the agency, or

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

4. deciding to refuse to provide access to the information because there is “an overriding public interest” against disclosure of the information. The public interest test is set out in s 13, which provides that: “There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure”; or

5. deciding to refuse to deal with the application on the grounds that dealing with the application would require an unreasonable and substantial diversion of the agency’s resources, or the agency has already decided a previous application for the information sought: GIPA Act, s 60(1); or

6. 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.

33. Section 60 of the GIPA Act relevantly provides:

60   Decision to refuse to deal with application

(1)  An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)—

(a)  dealing with the application would require an unreasonable and substantial diversion of the agency’s resources,

(b)  …

(2)  …

(3)  In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.

(3A)  In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency may, without limitation, take into account the following considerations—

(a)  the estimated volume of information involved in the request,

(b)  the agency’s size and resources,

(c)  the decision period under section 57.

(3B)  Any consideration under subsection (3A) must, on balance, outweigh—

(a)  the general public interest in favour of the disclosure of government information, and

(b)  the demonstrable importance of the information to the applicant, including whether the information—

(i)  is personal information that relates to the applicant, or

(ii)  could assist the applicant in exercising any rights under any Act or law.

(4)  Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency’s resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. …

34. Part 5 of the GIPA Act makes provision for the review of specified decisions (i.e. reviewable decisions) made by an agency in regard to an access application. Such decisions are reviewable:

1. internally by the agency – GIPA Act, s 82, or;

2. externally by the information Commissioner – GIPA Act, s 89, or; and

3. externally by the Tribunal – GIPA Act, s 100. In this regard s 100(1) relevantly provides:

100   Administrative review of decision by NCAT

(1)  A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review).

35. Section 80 of the GIPA Act, prescribes which decisions are reviewable decisions of an agency made under that Act, which includes a decision by the agency that the access request is not a valid access request and a decision to refuse to deal with an access application, including a decision to refuse to deal with an access application (including such a decision that is deemed to have been made): GIPA Act, s 80(a) and (c).

36. Where an access applicant seeks external review by the Tribunal, s 105(1) of the GIPA Act provides that the burden of establishing that the decision, the subject of review, is justified lies on the agency.

NCAT Act and ADR Act

37. An application brought under s 100 of the GIPA Act is brought in the Tribunal’s administrative review jurisdiction: NCAT Act, s 30 and ADR Act, s 7, 8, and 9.

38. Division 3 of Part 3 of the ADR Act sets out the powers of the Tribunal on administrative review.

39. Section 65(1) of the ADR Act provides that, at any stage of the administrative review proceedings before it, the Tribunal may remit the administratively reviewable decision before it to the administrator (i.e. the agency) for reconsideration. If so remitted, the agency may affirm the decision, vary the decision or set the decision aside and make a new decision in substitution for the decision set aside: ADR Act, s 65(2).

40. Where, after reconsidering the administratively reviewable decision, the agency varies the decision or sets the decision aside and makes a new decision, s 65(3)(a) and (4)(a) provides that the decision of the agency as varied or the new decision of the agency is taken to be the decision the subject of review in the proceedings before the Tribunal.

41. Where the agency varies the decision or sets the decision aside and makes a new decision, s 65(3)(b) and 4(b) provides that the person who made the administrative review application (i.e. the applicant) can either:

1. proceed with his or her application for review of the decision as varied, or the new decision; or

2. withdraw the application.

42. The role of the Tribunal on administrative review of an administratively reviewable decision is to decide the correct and preferable decision having regard to any relevant factual material and any applicable law: ADR Act, s 63(1). For this purpose, the Tribunal sits in the shoes of the agency and decides the matter afresh: ADR Act s 63(2) and (3) and s 66.

Other GIPA Act provisions

43. Section 111 of the GIPA Act makes provision for the Tribunal to refer systemic issues to the Information Commissioner as follows:

111   Referral of systemic issues to Information Commissioner

NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.

44. Section 112 of the GIPA Act makes provision for the report of improper conduct as follows:

112   Report on improper conduct

If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of—

(a)  the Minister who appears to NCAT to have responsibility for the agency, or

(b)  if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner.

45. Sections 116 to 120 of the GIPA Act create a number of offences, proceedings for which can only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.

The applicant’s administrative review application (lodged 12 February 2020)

46. Attached to the applicant’s administrative review application were two documents, the first was four pages in length and the second was 23 pages in length.

47. In the first document the applicant began by setting out the relevant dates on which his access application was received by the respondent and when a decision was to be made by the respondent in response to that request. The applicant also set out the relevant provisions of the GIPA Act which gave him the right to make his application for administrative review. The applicant then went on to identify “Relevant associated issues” and “Possible further offences under the Act”.

48. In regard to the former, the applicant said that, as a consequence of a breach of multiple sections of the GIPA Act (including s 116) and the statutory obligation to promote the objects of that Act, he was making a formal complaint under ss 111 and 112 of the GIPA Act.

49. In regard to “possible further offences” the applicant alleged the Deputy Secretary, Corporate Services of the respondent department (Deputy Secretary) and the former Chief Procurement Office of the respondent department had engaged in corrupt conduct.

50. The second document attached to the applicant’s administrative review application is headed “Alleged serious systematic misconduct/corruption conduct complaint against Senior NSW Education officers … “. In this document the applicant particularised a number of past and ongoing allegations of misconduct and corrupt conduct he has made and continues to make against a number of named senior officers of the respondent department. The allegations are said to have originally arisen, some years ago, in the context of the applicant’s commercial dealings with the respondent department. The applicant asserts that alleged misconduct and corruption has been ongoing, including in the context of decisions the respondent has made in dealing with the GIPA access requests he has made since 2014. He sought orders be made against the officers.

The proceedings before the Tribunal

51. In accordance with the procedures of the Tribunal in regard to applications for administrative review of a decision of a government agency under the GIPA Act, the applicant’s application was first listed for a one hour case conference, on 17 March 2020, before the Tribunal Member allocated to preside over the case conferences listed that day. As a general rule, each application for administrative review is listed for one or two case conferences. In this case, there were four case conferences and a number of subsequent directions hearings in regard to the applicant’s administrative review application. I presided over the third case conference and a number of the subsequent directions hearings prior to hearing the respondent’s dismissal application.

17 March 2020 case conference (first case conference)

52. The day before the first case conference, the respondent’s solicitor sent an email to the applicant to which he attached a copy of the letter, dated 13 January 2020, the respondent said it had sent to the applicant. The letter does not state that it was sent by email. Instead, the letter is addressed to the applicant at a specified street address.

53. The 13 January 2020 letter is from the Manager for Information Access of the respondent department. In that letter the Manager Information Access said:

Your application is invalid because you have not posted it.

41 How to make an access application

(1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the formal requirements for access applications):
(a) it must be in writing sent by post to or lodged at an office of the agency concerned or made in the manner approved by the agency under subsection (2)

…

(2) an agency may approve additional facilities for the making of access application or the payment of application fee.
(3) …

Because of the confusion with you using several email addresses for the one matter which caused you not receive (sic) notices the department does not agree to approve the email facility to correspond with you to receive your applications therefore you must post this application and future applications to the following address: …

54. As I have already noted, the applicant has always said that he did not receive this letter.

55. Again, as noted above, on 17 March 2020, the Tribunal, at the request of the respondent, remitted “the decision of the respondent that the applicant’s access application is not a valid access application” for reconsideration. The Tribunal also made the following orders:

4 By 31 March 2020 (or such earlier date as is possible), the respondent’s solicitor is to write to the applicant to clarify matters relating to the access application (including matters relating to validity and the form of lodgement of access applications by the applicant).

5 By 14 April 2020, the applicant to provide any further information the applicant wishes to provide to the respondent’s solicitor in response to clarifications and other matters that are identified by the respondent’s solicitor by the 31 March 2020 date noted in the previous order.

56. During the course of the 17 March 2020 case conference, the applicant made an application that the Tribunal Member recuse himself on the grounds of bias. That application was refused and, subsequent to the case conference, the applicant made a request for written reasons for that refusal: NCAT Act s 62.

57. In its written reasons for decision, Zonnevylle v Secretary, Department of Education [2020] NSWCATAD 110, published on 21 April 2020, the Tribunal said (italics, at [4] added):

3 During the case conference the respondent identified that a letter had been sent from the respondent to the applicant notifying the applicant that the respondent had determined the access application was invalid because it had been made to the respondent by way of email not by post. There was some discussion between the applicant and the respondent as to whether the respondent accepted access applications by email (for example whether emails were an approved “additional facility for the making of an access application” as set out in s 41(3) of the GIPA Act).

4 The applicant advised that he did not receive the letter from the respondent and wished the matter be set down for a hearing as soon as possible. The applicant indicated it was important to him that he gets access to the information sought in the access application on the basis that he required the information for another matter. Despite this position, the applicant offered to withdraw his application for review by the Tribunal if the respondent produced a document confirming that the applicant was unable to make access applications by email. The respondent stated that it was [not] possible to produce such a document because the respondent considered no such document existed.

5 The respondent proposed that the decision be remitted to the respondent for reconsideration under s 65 of the Administrative Decisions Review Act 1997 (NSW). The respondent proposed to clarify a number of issues the respondent saw with the validity of the access application in a letter as a means of providing assistance to the applicant and pursuant to s 16(1) of the GIPA Act.

6 The respondent requested two weeks to enable it to prepare a letter setting out the issues it considered there were with the validity of the access application. The respondent had previously identified there were a number of issues that needed to be addressed in the proposed letter. The respondent’s solicitor also identified his current workload as a further reason for the two week period requested. The applicant requested one week and indicated (and I summarise) that the respondent was well resourced and remunerated to carry out work of this kind and that one week was sufficient in circumstances where the applicant required the information to assist him in relation to a separate matter.

7 I identified that I would make orders that: …

8 The respondent immediately requested that I recuse myself. When I asked the applicant why he considered I should recuse myself he stated that I was “blatantly biased in favour of the respondent” and that he had “enforceable legal rights” under the GIPA Act and that I was denying him those rights. I understood the application to be that I was either actually biased and/or there was a reasonable apprehension of bias.

9 I considered the application and refused to recuse myself. …

10 …

11 In this matter, the applicant’s request that I recuse myself appears to have arisen once I indicated I would make orders that reflected the course of action proposed by the respondent, rather than that proposed by the applicant.

12 During the case conference, I identified that the validity of the access application would be a key preliminary issue for the matter. After hearing from both parties, I formed the view that it would be appropriate to have the decision remitted to the respondent as this (along with the respondent clarifying other issues it considered there were with the access application) would be the most appropriate means to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” as required by s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW).

58. In accordance with the order 4 above, on 31 March 2020, the respondent’s solicitor wrote to the applicant in an endeavour to assist the applicant in narrowing the scope of his access application.

Case Conference 21 April 2020 (second case conference)

59. The applicant’s application was again listed for a case conference on 21 April 2020. On this occasion the Tribunal made a number of orders, including:

1 The applicant is to consider whether (in light of the advice he has received on 21 May 2020 – order (6) below if applicable), whether he seeks to narrow the scope of his GIPA request by modifying/amending the request. Any such advice is to be provided by the applicant to the respondent’s solicitor on or before 4 June 2020.

…

6 If the matter proceeds the respondent is to advise the applicant of their processing time/fees on or before 21 May 2020.

60. The Tribunal also made orders requiring the respondent and the applicant to communicate with each other about which officer within the respondent department would, on remittal, reconsider the 13 January 2020 decision of the respondent’s Manager for Information Access.

Case Conference 19 May 2020 (third case conference)

61. The applicant’s application came before me, on 19 May 2020, at a further case conference. On this occasion the applicant re-iterated his allegations that his GIPA Act right was being contravened through misconduct and illegality by the respondent and its senior officers. He objected to specified officers reconsidering and determining his access application and repeatedly made his offer to withdraw his application if the respondent provided the documentation that supported the decision of 13 January 2020. I indicated that it was a matter for the respondent to determine which officer was to reconsider and determine his access request, that the 13 January 202 decision was no longer the decision the subject of his review application and that the other matters he had raised were not matters the Tribunal had jurisdiction to hear or determine in this administrative review application.

62. After hearing from both parties, I made an order confirming order 1 and 6 made by the Tribunal on 21 April 2020. I also listed the application for a further case conference on 19 May 2020.

63. In the orders made that day, I also noted the following:

1. the applicant objected to:

1. the respondent’s Deputy Secretary being assigned to reconsider, on remittal, the decision of the respondent’s Manager for Information Access; and

2. the respondent’s Manager for Information Access being the person assigned by the respondent to instruct its solicitor in these proceedings;

2. the applicant alleged that the decision of 13 January 2020 was made in breach of s 116 of the GIPA Act and that the respondent’s Manager for Information Access and the respondent’s Deputy Secretary had and will fail to exercise in good faith a function conferred on them under the GIPA Act contrary to s 112 of the GIPA Act;

3. s 116 of the GIPA Act creates an offence, over which the Tribunal has no jurisdiction;

4. a report on improper conduct under s 112 of the GIPA Act, can only be made ‘on the completion of an NCAT administrative review’; and

5. what remained outstanding in the applicant’s external review application at that time was a decision of the respondent, on remittal, in accordance with order 1 and 6 made by the Tribunal on 21 April 2020.

64. In the absence of the applicant having agreed to narrow the scope of his access application (order 1), on 3 June 2020, in compliance with order 6, the respondent’s solicitor wrote the applicant advising him of the respondent’s estimated processing times for the items listed in his access application. The total estimated hours were said to be between 90 and 111 hours.

9 June 2020 Case Conference (fourth case conference)

65. On 9 June 2020, the Tribunal made an order giving the applicant a further opportunity to narrow the scope of his access request by 23 June 2020.

66. The Tribunal also made an order that, by 6 July 2020, the respondent was to provide to the Tribunal and the applicant its decision, on remittal. Orders were also made for the respondent and the applicant to file and serve their evidence and submissions and the applicant’s application was set down for hearing, by telephone, on 15 September 2020.

8 July 2020 – respondent’s decision on remittal

67. On or about 8 July 2020, the respondent provided the Tribunal and the applicant with its decision on reconsideration. That decision, made by the Deputy Secretary of the respondent department, was to refuse to deal with the applicant’s access request, because dealing with that request would require an unreasonable and substantial diversion of the respondent’s resources: GIPA Act s 60(1)(a).

27 August 2020 - respondent’s evidence and submissions

68. In accordance with the orders made on 9 June 2020, the respondent provided the Tribunal and the applicant with its evidence and submissions on 27 August 2020.

August/September 2020 - applicant’s applications for summonses to be issued

69. In mid-August and early September 2020, the applicant made five (5) applications to the Tribunal for the issue of summonses for the production of documents and to attend the hearing of his administrative review application to give evidence. These summonses were addressed to the then Manager for Information Access and the Deputy Secretary of the respondent department and the respondent.

70. The documents for which production was sought under the terms of the summonses included notices/directives/memos and correspondence relating to access applications made by the applicant up to and including September 2020. In the summons addressed to the Manager for Information Access, the applicant also sought ‘all documents substantiating those statements made by [the Manager for Information Access] in her Jan 13, 2020 invalid access application notice …’

71. The reasons given by the applicant in his application for each summons were largely the same. He asserted that the matters in issue in his administrative review application were ss 111, 112, 116, 117, 118, 119 and 120 of the GIPA Act. That is, the applicant asserted that the officer to whom the summons was addressed could give evidence and produce documents to demonstrate that the officer had failed to exercise his/her functions under the GIPA Act in good faith. This assertion was made in regard to every GIPA Act access request he had made to the respondent and the administrative review applications he had made arising from those applications, including the current application.

72. In his application for the summons addressed to the Manager for Information Access, the applicant asserted that her 13 January 2020 letter addressed to him was not only invalid but also included false information.

73. The Registrar refused each summons application. In refusing to issue the summonses, the Registrar noted that the decision the subject of the applicant’s administrative review application was the decision of the respondent to refuse to deal with his access request on the grounds that it would require an unreasonable and substantial diversion of the respondent’s resources and that the requested summonses were of no relevance to that application. In this regard, the Registrar noted that the respondent had filed and served its evidence in support of its case in that application, which included statements made by other officers of the respondent and not the officers for whom a summons was sought.

74. On 10 September 2020, the applicant sought review of the Registrar’s refusal to issue the abovementioned requested summonses. On 11 September 2020, the Tribunal confirmed the decision of the Registrar to refuse the applicant’s applications for the abovementioned summonses. The Tribunal also gave brief reasons for that confirmation. In those reasons, at [9], the Tribunal reiterated that the decision the subject of review by the Tribunal, in the applicant’s administrative review application, was the 8 July 2020 decision of the respondent, made pursuant to s 60(1)(a) of the GIPA Act, that dealing with his access request would require an unreasonable and substantial diversion of resources. The Tribunal went on to set out the matters relevant to the applicant’s administrative review application. At [12], the Tribunal made the following remarks about the reasons given by the applicant for the summonses to be issued:

12 The matters for which the applicant bases his reasons for the issue of the summonses have no apparent relevance to the real issues in dispute in these proceedings, including the considerations outlined above [i.e. those set out at [9]]. To the extent that the applicant raises issues relating to s 112 of the GIPA Act, any report of improper conduct can only be made “on the completion of an NCAT administrative review”, which has not occurred. To the extent that the applicant raises issues relating to ss 116 to 120 of the GIPA Act, the Tribunal does not have jurisdiction in respect of the offence provisions.

14 September 2020 - applicant’s response to respondent’s submissions, and adjournment application

75. On 14 September 2020, the applicant provided his written submissions in response to the respondent’s submissions. The submissions (about 60 pages in length) were divided into two parts. In the first part the applicant asserts that the respondent’s solicitors were “making false & misleading statements in these proceedings to conflate the issues before the tribunal” and treating the proceedings as a “game”.

76. He said that the respondent’s solicitors had falsely argued that he expected to access “All the information referenced in the access application” and went on to say that the GIPA Act was beneficial legislation and gives him the right, under s 60(1) of the GIPA Act, to make “informed amendment(s)” to his access request, which he has every intention to do. The applicant went on to assert that where the GIPA Act functions “are being exercised with a lack of good faith by the officers (breaching an applicants (sic) rights) then an applicant is unable to make reasonable & adequate amendments”. This assertion was followed by 63 numbered points, in which the applicant reiterated the numerous complaints and allegations he had made against the senior officers of the respondent and the respondent’s solicitors. For example, the applicant made the following remarks:

2. Jan 13, 2020 – The corrupt [Manager for Information Access] claims to have decided & ‘posted’ the invalid access application notice which the applicant denies having received. No tracking number or otherwise has been provided by the respondent.

3. …

4. Mar 17, 2020 – Despite offering to withdraw from proceedings on the provision of documents substantiating the alleged corruption of [the Manager for Information Access] statements in the Jan 13, 2020 invalid access application, [the Tribunal] ignored this and required the respondent to make a new decision for the application.

5. …

6. The applicant was not able to have legitimate concerns addressed by [the respondent’s solicitors]

7. …

8. Again [the respondent’s solicitors] seek to mislead the tribunal

a. the applicant has never stated that only access to all information sought access to is demanded. The applicant specifically states: Under Sect. 16 the officers are required to provide advice & assistance to enable the applicants

i. To make an initially valid application

ii. To make a final valid application

iii. To access as much of the information requested as possible …

…

d. The applicant does not deny that the application scope is broad but the applicant has stated that the objective to seek access to as much information requested as possible. The applicant states that GIPA Act rights allow the applicant to make an informed decision when required to amend/rescope an access application.

9. …

77. In the second part of the applicant’s submissions is headed “Applicants (sic) complaints & additional response”. In this part, the applicant refers to earlier access requests and administrative review applications he has previously made. Again, this part contains numerous allegations of corruption, “injurious falsehoods”, and “misconduct being perpetrated by officers exercising functions under the GIPA Act (Sect. 111, 112,116, 117, 118, 119, 120)”.

78. On 14 September 2020, the applicant also made an application seeking adjournment of the hearing of his administrative review application that had been listed for the following day. I granted that adjournment and listed the matter for directions at 10.00 am the following day.

15 September 2020 directions hearing

79. On 15 September 2020, I made an order listing the matter for hearing on 13 October 2020. During this directions hearing, the applicant again submitted that he would withdraw the proceedings if the respondent provided him with the documents that support the 13 January 2020 decision that his access application was invalid because it had not been posted. I reiterated that this decision was no longer the decision the subject of review in his administrative review application as it had been substituted by the new decision that was made on 8 July 2020. I also noted that what was now in issue in the applicant’s administrative review application was the number of hours the respondent had estimated it would take to deal with his access request and whether these estimated number of hours is an unreasonable diversion of the respondent’s resources.

80. I also noted that the applicant sought to cross-examine the witnesses of the respondent and that the respondent had indicated that, following receipt of the applicant’s submissions the previous day, it may wish to press its application that the matter be determined in the absence of a hearing under s 50 of the NCAT Act (i.e. to be determined on the papers).

15 October 2020 directions hearing

81. Subsequent to the 15 September 2020 directions hearing, the hearing of the applicant’s review application was vacated and the proceedings were listed for directions on 15 October 2020. At the directions hearing, the respondent indicated it would be making a dismissal application and requested that the matter not be set down for hearing. I refused that application and set the matter down for hearing on 26 October 2020. I also made an order directing the respondent to file and serve its dismissal application by 19 October 2020. In the event the respondent did make a dismissal application, I also made an order that the applicant was to file and serve a summary response by 23 October 2020 and that the respondent’s application would be heard at the commencement of the hearing on 26 October 2020.

82. On 8 November 2020, the applicant made a request for written reasons in regard to the orders I made on 15 October 2020. I published my reasons on 4 December 2020: Zonnevylle v Secretary, Department of Education (No 2) [2020] NSWCATAD 298.

26 October 2020 – hearing of dismissal application

83. As I have mentioned above, I heard the respondent’s dismissal application on 26 October 2020. During the course of that hearing the applicant repeatedly said that he would withdraw his administrative review application if the respondent provided the documentation which supported the 13 January 2020 decision that his access request was invalid. I again repeatedly reminded the applicant that the decision the subject of review was the subsequent decision of 8 July 2020 and that the earlier decision of 13 January 2020 was no longer of any relevance to his administrative review application.

Respondent’s submissions

84. In support of its dismissal application, the respondent relies on the decision of the Court of Appeal in Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 (Minister v Zonnevylle [2020] CA 232). That decision was published on 24 September 2020 and overturned a decision of the Appeal Panel in Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274 (Zonnevylle v Minister [2019] AP 274).

85. The appeals arose from an administrative review application the applicant had made, in October 2018, seeking review of a deemed refusal decision of the appellant Minister, under s 63 of the GIPA Act. The decision related to an access request the applicant had made in August 2018. At first instance, at the request of the Minister, the Tribunal dismissed the applicant’s application under s 55(1)(b) of the NCAT Act: Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108 (Zonnevylle v Minister [2019] AD 108).

86. Prior to this decision, the Tribunal had dealt with a preliminary matter arising from the grounds of review and the orders sought by the applicant in his application for administrative review of the decision of the Minister: see Zonnevylle v Minister for Education [2019] NSWCATAD 28 (Zonnevylle v Minister [2019] AD 28). As noted by the Tribunal in that decision, at [24], it was the contention of the applicant that in its administrative review jurisdiction, the Tribunal had jurisdiction to deal with improper conduct and “offences under s 111, 112, 116, 117, 118, 119 and 120; and systemic breaches of the GIPA Act namely ss 3(1)(b) and (c) and 3(2)(a) and (b), 5, 9(1), 12(1) and ((2), 14(2), 15, 16, 41, 43, 51, 52, 53, 55, 57, 60, 61, 63, 72, 105, 116, 117, 118, 120 and 126”.

87. In its decision at [30] to [58], the Tribunal dealt with the Tribunal’s jurisdiction in regard to improper conduct or offences under the GIPA Act within the context of its jurisdiction to review a reviewable decision of a government agency under s 80 of the GIPA Act. In this regard, the Tribunal found:

1. section 112 of the GIPA Act is expressly dependent upon the administrative review having been completed, which had not occurred at that time (at [32]);

2. the Tribunal does not have jurisdiction to deal with the alleged conduct or offences identified by the applicant , including ss 116, 117, 118 and 120 of the GIPA Act, which are dealt with summarily before the Local Court with the authority of the Director of Public Prosecutions or the Attorney General (at [33] to [38]);

3. section 111 does not, expressly or impliedly, give the Tribunal jurisdiction to review a decision (at [56)]; and

4. at [58], the Tribunal’s jurisdiction to review reviewable decisions made under the GIPA Act are those set out in s 80 of the Act, which do not include a review of allegations of a breach of the GIPA Act.

88. That is, the Tribunal found that the claims of the applicant were “bad in law” and fell within the second point of the collateral purpose principle as explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491.

89. The applicant did not appeal that decision.

90. However, Mr Zonnevylle did successfully appeal the subsequent dismissal decision of the Tribunal: see Zonnevylle v Minister [2019] AP 274 and it was from this decision that the Minister successfully appealed to Court of Appeal (Minister v Zonnevylle [2020] CA 232).

91. In this dismissal application the respondent contended that:

7 Since the filing of the application in the Tribunal, the applicant has engaged in unrelenting correspondence, written and oral submissions, and applications directed to seeking the Tribunal make criminal findings that officers of the respondent have committed offences under the GIPA Act and re-ventilating allegations of corruption.

8 Those same allegations have infected numerous applications made by the applicant in the Tribunal. In every one of those cases – and indeed in this case – the Tribunal has sought to explain to the applicant that such a purpose is not a proper use of the Tribunal’s resources and jurisdiction.

92. That is, it is the respondent’s contention is that despite the Tribunal having explained to the applicant on numerous occasions, in this application and in previous review applications, that allegations of corruption, misfeasance, injurious falsehoods and criminality against officers of the respondent do not fall within the Tribunal’s GIPA Act review jurisdiction, central to every piece of correspondence, written submission, oral submissions, summons applications and review application the applicant has presented to the Tribunal in this application continues to contain the very same allegations of corruption, misfeasance, injurious falsehoods and criminality.

93. In this regard, the respondent pointed to the applicant’s:

1. grounds of review in his administrative review applicant in these proceedings, which the respondent contended to be “almost word for word” identical to those in the administrative review application that was before the Tribunal in 2019 (Zonnevylle v Minister 108);

2. 1 September 2020 communication with the Tribunal, in which he focused said:

I repeat my SINCERE offer again (at least the 6^th time) to withdraw the proceedings on provision of “documents substantiating the invalid access decision

3. 11 September 2020 adjournment application was deliberately prefaced with a remark that he was doubtful that the respondent would agree to the adjournment, because there was evidence of alleged corruption by senior officers of the respondent department and evidence of those senior officers having deliberately and maliciously disrupted his legitimate dealings with the department in regard to his and the public’s access rights; and

4. summons applications, made in August and September 2020, that were of no relevance to the matters in issue in his administrative review application, but were again directed to the ventilation of allegations of corruption, misfeasance, injurious falsehoods and criminal offences by officers of the respondent department.

94. In conclusion the respondent contends that it was impossible to distinguish the applicant’s purpose and conduct in these proceedings from that recognised by the Court of Appeal as an abuse of process in the administrative review proceedings that was before the Tribunal in Zonnevylle v Minister [2019] AD 108.

Applicant’s submissions

95. The applicant’s submissions in reply are 25 pages in length. The first page is headed “alleged tribunal bias against self represented applicants”. In my view, other than the time frame within which the applicant was given to provide his submissions in reply, the matters identified by the applicant under this heading, at page 1 and 2, are of no relevance to the respondent’s dismissal application. In regard to the time frame within which the applicant was given to provide his submissions in response to the respondent’s dismissal application, while these have been provided outside the time ordered, I have read and considered these, to the extent relevant, in determining the respondent’s dismissal application.

96. At pages 3 to 5 of his submissions in reply, the applicant submitted:

1. the jurisdiction to dismiss an action is to be exercised with great care or extreme caution: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at [30];

2. the Tribunal and the respondent (including its legal representative) “has an obligation to promote the object of the GIPA Act”. And in this regard “imposes the burden on the Tribunal to ensure that the publics GIPA Act rights are upheld and that the statutory obligations imposed on agencies is fulfilled”, which includes the obligation set out in ss 112 and 116 of the GIPA Act;

3. the respondent having refused, on 17 March 2020, his offer to withdraw the proceedings if he was provided with the substantiating documentation for the respondent’s 13 January 2020 decision, and then, following remittal, failing to re-submit the same decision, “it can be concluded that these proceedings are not frivolous nor vexatious not otherwise misconceived or lacking in substance”. The applicant noted that similar offers of withdrawal were subsequently made but ignored by the Tribunal and the respondent, including its legal representative. The applicant went on to assert that there was a “tribunal bias against self represented applicants”;

4. there are grave inconsistencies in the statements made by the officers of the respondent in regard to the processing time estimates, which are required in order for the applicant to make an informed decision about amending/rescoping his access request; and

5. there is evidence before the Tribunal of a systemic lack of good faith being exercised by key officers associated with the applicant’s administrative review application.

97. At pages 6 to 9, the applicant refers to a number of provisions within the GIPA Act that are unnecessary to repeat.

98. At page 10 of his submissions, the applicant said that he opposes the summary dismissal on the grounds that he legitimately seeks access to “as much of the requested gov. info. allowed under the Act”. In setting out the procedural context of his application, the applicant said the following in regard to the 13 January 2020 decision of the respondent:

The respondent claims that the application was decided on Jan. 13, 2020 and invalid on the following grounds:

The application was invalid as it was not posted

The applicant was previously advised that the agency would not accept applications/corresp. Sent by email

This condition was imposed as a result of the applicant not receiving notices from the agency

NO EVIDENCE PROVIDED TO DATE TO SUBSTANTIATE THOSE STATEMENTS

The respondent claims to have posted the Jan. 13, 2020 notice despite the applicants clear & reasonable request that all correspondence be sent by email to “minimize both delays/ causing the applicant detriment”. The applicant categorically did not receive the Jan. 13, 2020 notice “claimed” to have been “posted” to the applicant. There is no evidence provided/no deposition given by the respondent to substantiate the “posting” of the notice …

99. In regard to the complaints, the applicant has made against senior officers of the respondent department, he said that these complaints concerned conduct which he alleges to be a contravention of the GIPA Act and thereby infringe his GIPA Act rights. The alleged contraventions of s 112 of the GIPA Act “directly relate to the proceedings and are within the tribunals (sic) authority”. Hence, the Tribunal is required ‘in the review to ensure compliance with the legislation & protection of the applicants/publics GIPA Act rights” and a failure to do so is a failure of its statutory obligation to promote the object of NCAT Act, the ADR Act and the GIPA Act.

100. The applicant goes on to note that the summonses were sought in this context and not in the context of the Tribunal making specific findings, under s 116, against the officers the subject of his complaints.

101. At page 14 of his submissions, the applicant said that his principal objective in his administrative review proceedings is to have his access request not undermined, compromised, blighted/infected by the serious issues he has raised so that he may lawfully access as much of the requested information as possible. On the following page, the applicant asserted that he had provided sufficient evidence to support his request that specific officers of the respondent department not decide his access request, yet that evidence was ignored.

102. The applicant submitted that there was no evidence of him having sent harassing emails to the respondent or its legal representative.

103. The applicant’s submissions are otherwise repetitive of the matters he has raised in his earlier written submissions and of the various complaints he has made against the senior offices of the respondent and its legal representatives. He concludes his submissions by saying that he “categorically & emphatically rejects that there is any predominant or improper collateral purpose” in pursuing his administrative review application.

Is the applicant maintaining his administrative review proceedings predominantly for a collateral purpose?

104. As I have already noted, in determining whether there is a collateral purpose (if any) it is necessary to examine the applicant’s purpose objectively, rather than subjectively, based on his conduct and the material before the Tribunal: Williams v Spautz.

105. In Zonnevylle v Minster [2019] AP, considered what comes within the meaning and scope of the ‘principle of collateral purpose”. At [83] the Appeal Panel noted the Tribunals conclusion in its earlier decision that it did not have jurisdiction to grant the remedies or make the orders the applicant was seeking and expressed the view that this response was appropriate. It said that the remedies and orders the applicant was seeking, were “bad in law”. However, the Appeal Panel held that “persisting in making claims which are ‘bad in law’ is not the kind of conduct that comes within the meaning and scope of the principle of collateral purpose”.

106. At [54], the Appeal Panel also took the view that evidence as to why the applicant maintained other proceedings was “not logically probative” to the issue of his reasons for maintaining the proceedings that were before the Tribunal at first instance in that case.

107. In Minister v Zonnevylle [2020] CA 232, the Court of Appeal overturned these findings and observations of the Appeal Panel. In regard, to “persisting in making claims which are ‘bad in law”, at [44] and [48] the Court of Appeal said:

44 It did not follow from those premises that persistence in the claims that were bad in law could never warrant the dismissal of the proceedings. The vexation lay in the combination of the fact that the claims were bad in law; the fact that they had been dismissed on that basis in the first decision of the Tribunal; and Mr Zonnevylle’s demonstrated determination to persist in maintaining the same allegations and urging the Tribunal to determine them. In my view, it was wrong to hold that persistence in making claims which are “bad in law” (and have been held to be so) does not fall within the collateral purpose principle. 

…

48 As noted in the Minister’s written submissions, it is well established that an attempt to re-litigate a matter that has already been determined may amount to an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 383; [1993] HCA 77; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 193 [33]; [2009] HCA 27. The decision of the Appeal Panel does not explain why Mr Zonnevylle’s persistence in serious allegations of misconduct which had already been dismissed by the same Tribunal for want of jurisdiction did not demonstrate use of the proceedings for a collateral purpose.

108. In regard to the history of other proceedings brought by the applicant, at [52] and [53] the Court of Appeal said:

52 In my view, however, the Appeal Panel was wrong to disregard the earlier litigation. Its probative value is explained in another decision relied upon by the Minister in which, on a special leave application, the High Court made a vexatious proceedings order under s 77RN(2) of the Judiciary Act 1903 (Cth). Although that order was made in the course of the dismissal of an application for special leave, the Court (Keane and Edelman JJ) published careful reasons which are recorded in the transcript of the determination of the leave application: Conomy v Maden [2019] HCATrans 49. It is clear that the Court in that case accepted the history of previous vexatious litigation to be logically relevant to the issue of the applicant’s purpose in bringing the special leave application. Keane J said:

“The history of Mr Conomy’s proceedings demonstrates his determination to persist in the pursuit of what is evidently an unfortunate obsession that serves no purpose other than to waste the Court’s time and resources in order to indulge his unreasonable sense of grievance.”

53 The history of Mr Zonnevylle’s proceedings similarly demonstrated a determination to persist in the pursuit of allegations previously found to have been baseless and to persist in wasting the Tribunal’s time and resources by urging it to make findings it has no power to make. It enabled the Appeal Panel to assess whether Mr Zonnevylle persisted in those quests for want of a better understanding of the scope of the proceedings (as might have been inferred if it was his first appearance in the Tribunal) or whether (as suggested by the history) his persistence indicated vexatiousness. In my view, the history was plainly relevant and the Appeal Panel was, with respect, wrong to disregard that material.

109. Hence, in determining whether the applicant is maintaining these proceedings for a collateral purpose, I have had regard to his conduct in these proceedings, his application for review and subsequent submissions he has made in these proceedings and other relevant decisions of the Tribunal.

110. While the applicant insists that he legitimately seeks access to “as much of the requested information that is allowed under the GIPA Act” and there is no collateral purpose in bringing and prosecuting his administrative review application, in my opinion this is not demonstrated in the submissions he has made, the summonses he has sought, or in the manner in which he has conducted himself in these proceedings.

111. First, although the applicant’s application for review was said to be made on the basis of a deemed decision of the respondent under s 63 of the GIPA, which the Tribunal has jurisdiction to review, an objective assessment of his application as a whole, evidences a purpose other than administrative review of that decision. That purpose, being a collateral purpose, is evidenced in the additional matters asserted and sought in his application, being the agitation of unsubstantiated allegations made against the respondent and senior officers of the respondent department having breached the GIPA Act, breached his rights under that Act and committed offences under that Act, in regard to which he sought findings and orders under various provisions of the GIPA Act (e.g. ss 111, 112, 116 and 120). They are findings and orders of a kind that the Tribunal has found in earlier administrative review proceedings, brought by the applicant for administrative review of a decision of an agency under the GIPA Act, it did not have jurisdiction to determine in the administrative review application that was before it: see Zonnevylle v Minister [2019] AD 28, Zonnevylle v Minister [2019] AP, Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47.

112. Regardless of these earlier decisions and rulings made by the Tribunal in these proceedings, the applicant has persisted in agitating for findings of a lack of good faith, misconduct and illegality by the respondent and senior officers of the respondent, rather than dealing with the matters in issue arising from his administrative review application over which the Tribunal does have jurisdiction. These issues being whether the decision of the respondent to refuse to deal with the applicant’s access request would require an unreasonable and substantial diversion of the agency’s resources was the correct and preferable decision. The matters that must be taken into account in regard to that decision are those set out in s 60(3), (3A) and (3B) of the GIPA Act.

113. In my view, the applicant’s persistent offers of withdrawal and his assertion that the respondent’s solicitor has breached s 16 of the GIPA Act are also part of the same collateral purpose.

114. The applicant’s offer to withdraw relates to the decision of the respondent made on 13 January 2020, notification of which the applicant has always asserted he did not receive and for which he has consistently called on the respondent to produce the documents that substantiate that the letter was in fact sent and also the documents that supported the decision that was made and of which he was allegedly notified in that letter. As noted above, the applicant alleges that this material is also relevant to his review application as it will demonstrate that the respondent’s decision of invalidity was made in bad faith and was unlawful.

115. The applicant’s offer to withdraw his review application was initially made at the first case conference. It would appear that, at this case conference, the respondent advised that no such document sought by the applicant existed: see at [57] above.

116. The 13 January 2020 decision of the respondent was set aside by the Tribunal at the first case conference. It appears that the Tribunal, on this occasion, made orders to give effect to s 52(3) of the GIPA Act, namely for the provision of advice and assistance to the applicant, to the extent it would be reasonable to expect the agency to do so, to assist the applicant to provide the information necessary to make a valid access request. However, following receipt of the 31 March 2020 letter from the respondent’s solicitor, it was evident to the applicant that having considered the terms of his access request, the respondent would not affirm the decision it made on 13 January 2020, but was concerned about the scope of his access request and the time it would take to process and determine that request. It was on this basis that the applicant was invited to narrow the scope of his application, an obligation imposed on an agency under s 60(4) of the GIPA Act, if an agency proposes to make a decision to refuse to deal with an access request on the grounds that it will require an unreasonable and substantial diversion of the respondent’s resources.

117. Hence, at the second case conference (21 April 2020), the 13 January 2020 decision of the respondent became of little or any relevance to the applicant’s review application. What was in issue was the scope of the applicant’s access request and the time it would take the respondent to determine it on reconsideration.

118. By the time the applicant’s review application came before me, at the third case conference (19 May 2020), the applicant had failed to comply with the orders made on 21 April 2020. However, despite the earlier advice of the respondent that no documents existed other than the 13 January 2020, that this decision had been remitted for reconsideration and the respondent had indicated that he no longer pressed that decision, the applicant persisted with his offer to withdraw. The applicant also persisted with his assertions of bad faith, misconduct and illegality by the respondent and senior officers of the respondent (including the Manager for Information Access who made the 13 January 2020 decision) and seeking that the Tribunal make findings and orders under ss 111, 112 and 116 of the GIPA Act. That persistence has continued throughout the proceedings, including in the summonses the applicant sought, at directions hearings before me, at the hearing of the respondent’s dismissal application and the submissions the applicant has filed.

119. In regard to the applicant’s claim that he has not amended his access request because the respondent has refused to provide him with advice and assistance as required under s 16 of the GIPA Act, I note that on three occasions the Tribunal made orders giving the applicant an opportunity to amend his access request, in light of the respondent’s proposed decision, on reconsideration, to refuse to deal with his access request on the grounds of an unreasonable and substantial diversion of resources.

120. Section 16 of the GIPA Act relevantly provides as follows:

16   Agencies to provide advice and assistance

(1)  An agency must provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to, information that is or may be made publicly available.

(2)  An agency must provide the following specific advice and assistance to a person who requests access to government information—

(a)  advice as to whether or not the information is publicly available from the agency and (if it is) how the information can be accessed,

(b)  advice on how to make an access application for the information if the information is not publicly available from the agency but appears likely to be held by the agency,

(c)  if the information appears unlikely to be held by the agency but appears likely to relate to the functions of some other agency, the contact details of the other agency,

(d)  the contact details of the Information Commissioner and advice on the availability of and how to access any information published by the Information Commissioner that it appears may be relevant to the person’s request.

(3)  An agency is only required to provide advice and assistance under this section that it would be reasonable to expect the agency to provide.

121. I have considerable difficulty in seeing how s 16 is relevant, especially where the applicant has made many access requests to the respondent seeking access to information about which he is familiar. Nor does s 60(4) require an agency to provide any assistance to the access applicant in amending his/her access request. What is required is a reasonable opportunity to amend the access request. In this case, the respondent had provided a preliminary estimate of the time needed to deal with the applicant’s request.

122. It is a matter for the applicant if he chooses to narrow the scope of his access request. His reasons for not doing so, in my opinion, when objectively assessed, also forms part of his predominant purpose of pursuing these proceedings so as to have the Tribunal make findings of misconduct, illegality and lack of good faith by the respondent, when he is fully aware that such matters do not fall within the Tribunal’s administrative review jurisdiction.

123. I make a similar finding in regard to the applicant’s applications for a summons.

124. While the Tribunal does have jurisdiction to refer conduct under s 112 of the GIPA Act, as pointed out by the Tribunal, in Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 49, at [62]:

62 It is apparent from the section that the Tribunal’s opinion must be formed "as a result of an NCAT administrative review". The materials supporting this opinion must have arisen in the course of the Tribunal reviewing a reviewable decision. In my view the Tribunal does not have the power to conduct a satellite hearing to determine the issue. It is also my view that the Tribunal does not have the power to issue a summons or require attendance for cross-examination or production of documents in order to form an opinion for the purposes of section 112.

125. In Zonnevylle v Minister [2019] AD 108, at [43] to [57], the Tribunal considered the above mentioned administrative review application brought by the applicant together with a number of other GIPA administrative review applications the applicant had made, where the Tribunal, having determined the applicant’s administrative review application, went on to consider similar allegations of improper conduct, made by the applicant and for an order under s 112 of that Act. The Tribunal noted that in each case, the applicant’s allegations of improper conduct were found to be baseless.

126. In this regard, in Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 49, the applicant had made allegations that senior officers of the respondent department, which included some of the same officers against whom the applicant has made allegations against in these proceedings, had breached s 16 and other provisions of the GIPA Act. At [79], the Tribunal found:

79 Issues concerning the refusal to deal with an informal request and the blocking of the Applicant's emails do not relate to matters before the Tribunal and so have not arisen "in the course of administrative review". Therefore, the Tribunal lacks the jurisdiction to deal with these matters. In regard to the wider allegations against officers of the Respondent, it is clear that the conduct does not concern the exercise of a function under the GIPA Act. The fact that an officer may have a delegation to perform a function under the GIPA Act does not mean that every function exercised by that officer is subject to a referral under section 112 of the GIPA Act. In the circumstances of this matter I am not satisfied that any of the alleged conduct of Mr Riordan, Ms Bailey, Mr Johnson, the IT Manager, Ms Pendergast or Ms Stathis falls within the scope of section 112.

127. In my opinion, the applicant’s 14 December 2020 written submissions demonstrate an intention to continue to agitate for findings of lack of good faith, misconduct and illegality on the part of the respondent and the officers of the respondent department, and to seek findings and orders that fall outside the scope of the jurisdiction of the Tribunal to review the decision made by the respondent on 8 July 2020 (i.e. to determine the correct and preferable decision).

128. Therefore, despite the applicant having a right to seek review of the decision of the respondent, made on 8 July 2020, I am satisfied, on the material before me, that the applicant’s predominant purpose, objectively determined, in maintaining his review application is to re-agitate allegations of misconduct, lack of good faith and illegality on the part of the respondent and the senior officers of the respondent department. That purpose being a collateral purpose and an abuse of process.

129. Accordingly, I am satisfied that the respondent has established that the applicant’s application is vexatious, on the grounds of the applicant maintaining these proceedings predominantly for a collateral purpose and not for the purpose of having the Tribunal determine the issues arising from the decision of the respondent that is the subject of review. 

Should the Tribunal exercise its discretion and dismiss the application?

130. In BDK, at [66], the Appeal Panel emphasised that the Tribunal must be “conscious always of the gravity for an applicant or plaintiff of summary dismissal proceedings”.

131. I note the guiding principle and duties on the parties in s 36 of the NCAT Act.

132. I am also conscious of the objects of the GIPA Act and that the applicant is not legally represented.

133. The GIPA Act, in my view is logical and easily understood and requires an abstract approach to accessing government information.

134. The applicant is well experienced in making access request, and seeking administrative review of decision made by the agency from whom he seeks government information. Hence, I have given little weight to the fact that he is not legally represented.

135. I note that the respondent’s application for dismissal has been lodged late in these proceedings, after he has filed his evidence and submissions. The lateness is explained by reason of the decision of the Court of Appeal having been delivered on 24 September 2020, which set aside the decision of the Tribunal Appeal Panel in Zonnevylle v Minister [2019] AP.

136. In my opinion, the considerable weight should be given to the fact that the applicant has maintained his collateral purpose in these proceedings for a considerable period of time, despite the Tribunal and the Appeal Panel having held, prior to him commencing these proceedings, that the remedies and orders of the kind he seeks, in these proceedings, against the respondent and the senior officers of the respondent department are “bad in law”, as they are not matters over which the Tribunal has jurisdiction in reviewing and administratively reviewable decision of an agency made under the GIPA Act.

137. Furthermore, the applicant’s conduct and submissions in these proceedings indicate that he will continue to persist with this collateral purpose, which, as noted by Keane J, in the transcript of the special leave application in Conomy v Maden, said: “… serves no purpose other than to waste the Court’s time and resources in order indulge his unreasonable sense of grievance.”

138. Accordingly, I am satisfied that it is appropriate to dismiss the applicant’s review proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

Orders

139. For the reasons set out above, I order:

1. The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

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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

Amendments

07 December 2021 - The words "That is, I find that the applicants" removed from paragraph 129.

Decision last updated: 07 December 2021