BDK v Department of Education and Communities

NCAT Appeal Panel|2015-03-24|Before: Mr J

Background

The Department is responsible for the management and conduct of government primary schools. On the morning of 9 February 2009, Mrs K, the daughter of the appellant, contacted the principal of the primary school attended by her son, L, expressing concerns relating to his welfare. The principal decided to refer the concerns as he had understood them to police and community services agencies for consideration and any appropriate action. This resulted in the police visiting Mrs K's home, and meetings being held at the school on 10 and 16 February 2009 attended by those agencies.
These actions led L's parents, Mr and Mrs K, to make complaints to the Department over the way Mrs K's calls had been handled. A departmental officer undertook an investigation. He found that the principal's and the school's actions were appropriate in the circumstances (response, 18 March 2009).
Mrs K was dissatisfied with that response and a review was undertaken by a regional director (Mr Kennedy). He considered numerous submissions and correspondence from Mrs K and her mother, BDK - the appellant. He found that the previous investigation had been thorough (report, 30 April 2009).
Mrs K and the appellant remained dissatisfied, and after representations to the Minister, a further review was undertaken for the Deputy Director General, Schools. Two reviewers were appointed - another regional director together with a policy director in the Department. They found that Mr Kennedy's determinations were procedurally fair and his findings reasonable and consistent with the evidence (dated 26 October 2009, 'the Report').
Mrs K and the appellant continued to challenge the conclusions reached by the above process, and in particular the contents of the Report. They sought review by the Ombudsman (twice declined), and made numerous and repeated communications to the school, the Department and the Minister's office. Mrs K made numerous requests under PPIPA during 2011 and 2012 for amendments to the Report. The Department rejected the various requests and offered to place a copy of Mrs K's request with the two copies of the Report held by the Department. This offer was rejected, leading Mrs K to further internal review applications in February 2013.

Scope of the Review Application

The appellant's internal review application to the Department utilised the standard form issued by the Department. As the 'specific conduct' over which she was concerned, she wrote 'inaction by the [Department] with reference to amendment of false material and information regarding me in a government document'. She stated in reply to the pro forma question as to 'what effect did the conduct have on you' she said in part 'My reputation has been damaged because false accusations about my behaviour have been leaked by members of the DEC into the DEC and the community'.
In her review application to the Tribunal (16 December 2013) she made a similar statement. She said that information in the Report 'contains unsubstantiated allegations that are untrue and of a serious nature (page 27). The document is defamatory.' She states further that 'the material was spread throughout [the Department] by [the principal] with full knowledge of [the Department].'
In her attachment to the application she refers to, what she considers to be contraventions of each of IPPs 1 to 6, and 8 to 11. Her main points are: that information should never have been collected about her and included in the Report as it was irrelevant (IPP 1) ; that, before that occurred, she should have been given the procedural protections afforded by IPPs 2 to 4 in relation to the references made to her in the Report; that the information relating to her was not kept secure, should not have been retained (IPPs 5 - 6), and was the subject of improper use and disclosure (IPPs 9-11); that it should have been updated or amended (IPP 8).
It is well established that the scope of the external review application to the Tribunal is limited by the scope of the internal review application made to the agency, unless the parties otherwise agree to expand the scope: see, for example, KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 at [13] and cases referred to there. This principle derives from the scheme of the Act. The Act gives the agency the first opportunity to resolve the dispute, and it would thwart that function if the review applicant could widen the scope of the dispute in the application to the Tribunal (unless agreed by the agency).
In our view, the matters raised by the internal review application, and the way its scope was interpreted by the Department in its reply of 27 February 2014, properly define the scope of the application, and we will approach the appeal points on that basis.

Procedural Fairness: Hearing 'on the Papers'.

The Tribunal's responsibilities in relation to the conduct of proceedings is the subject of Part 4, Division 4 of the NCAT Act (i.e. ss 49-55). The primary rule, s 49(1), is that 'A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise'. Further by s 50(1) '[a] hearing is required for proceedings in the Tribunal' subject to the exceptions set out there. One of these exceptions, exception (c), is where 'the Tribunal makes an order under this section dispensing with a hearing'.
In that regard, ss 50(2) to (5) provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
While hearings 'on the papers' can provide a simple and efficient way of disposing of cases in busy tribunals, proceeding in this way involves a clear departure from the fundamental precept of 'open justice'. One of the usual characteristics of open hearings is the provision to the parties of an opportunity to present oral submissions and argument, and to allow dialogue with the judge or tribunal member(s). Similarly the hearings can be witnessed by members of the public. These characteristics are absent in a hearing 'on the papers'.
The appellant has asserted in her appeal documents that she was not given an opportunity to make submissions about the proposed order, and accordingly the Tribunal could not have complied with its further obligation of taking the parties' submissions into account. At the appeal hearing, the Department was represented by Mr McDonnell of the Crown Solicitor's Office. He had not appeared at the planning meetings, and could not give us any account of what might have occurred at those meetings.
The Tribunal referred to its decision to have the matter determined on the papers at [36] of the reasons, and stated that the parties 'agreed' to this course. A registry 'result sheet' of a planning meeting held 18/3/14 at which the appellant and Ms Butler for the Department are marked as in attendance shows that the matter was 'adjourned for hearing' by the member to '20/6/14'. This date is referred to later in the document as a 'notional hearing date'. The hearing option that is then marked is 'hearing on the papers'. The last page of the result sheet contains more detail, and includes in particular the following note: R [i.e. the Department] to get instructions on 'strike thru' option to para @ [page] 27 [of the Report] re 'vilification'. A [i.e. BDK, the applicant below, and now the appellant] agrees that will conclude matter & will withdraw. If R does not get these instructions then [and a series of directions for exchange of evidence and submissions follow]'.
This is a reference to a paragraph that appears at page 27 of the Report. Paragraph 27 stated: There are staff members at [name] Public School, in addition to DET staff at other locations, who are deeply troubled by the attitudes and actions of the [K family]. Noting the campaign of vilification and aggression against the Principal, about which [name of the Principal] has sought support from her union and her principal colleagues in addition to medical treatment, other staff have expressed fear and concern about having to interact with the family, and, in particular, [Mrs K]. Several other staff members have considered taking stress related leave.
At page 2 of the Report the authors of the report stated that the persons they included within the meaning of the 'K family' (as we will describe it in these reasons, so as to preserve their anonymity) were the child's parents (Mr and Mrs K) and the appellant.
In our view, it is the above passage at p 27 that is of the most concern to the appellant, having regard to her oral submissions at our hearing and the emphasis given to it in the application for review. She saw the words 'campaign of vilification and harassment' as unfairly characterising her conduct in assisting her daughter in pursuing their complaints against the Department.
The Registry records reveal that the appellant received more than one notice of the outcome of the planning meeting of 18 March 2014, and did not pursue any objection. First, the letter which subsequently issued from the Registry set out the above directions. It did not refer to their conditional nature (the settlement proposal), and stated that the decision will be determined 'on the papers after 30 June 2014'. This was a variation from the member's record of 18 March 2014.
The timetable was later varied at the request of the Crown Solicitor in relation to the exchange of evidence and submissions. There is a letter on file dated 11 June 2014 from the appellant to the Registry in which she refers to the Department's request for an extension of time, and notes that there is no objection from the Crown Solicitor to her having an extension of time. She states that she 'will do all I can to get it into NCAT as quickly as possible'. Again there is a statement in the Registry letter of 23 June 2014 providing for the amended timetable that 'the matter will be determined 'on the papers' thereafter'. So the decision to have the matters heard on the papers was the subject of a number of communications to the appellant after the planning meeting of 18 March 2014.
Hearings on the papers are often ordered as a case management method. Clearly the choice of this method must conform to the requirements of s 50(2) and (3) of the NCAT Act.
In relation to the question of whether the requirements of s 50(3) were observed by the member, we are left with the reference to the parties having 'agreed' to the course followed at para [36] of the Tribunal's reasons, and the appellant's differing account in the appeal documents.
It is Tribunal practice not to record planning meetings in the PPIPA jurisdiction, and consequently there is no transcript. Consequently, we have no other record on which to draw in relation to what transpired at the planning meeting of 18 March 2014 in relation to the opportunities given to the parties to be heard on the question (s 50(3)).
The presiding member in this instance was an experienced member familiar with the requirements that govern the exercise of this discretion. It is plain from her notes of the planning meeting that a possible option for settlement of the dispute had been canvassed, a positive development given the dispute's history.
While the outcome was not achieved, the presence of this point in the record tends, in our mind, to suggest that there was an active exploration of the dispute at the planning meeting, and this was not a planning meeting that simply engaged in the mere formalities of issuing directions, without their being a discussion of the question of the appropriateness of dealing with the Department's application without a further oral hearing. We infer that a proper opportunity was given to the appellant to be heard on the question of the hearing format, given that there was no concern raised by the appellant in response to the official Registry advices of the outcome of the planning meeting, and her action in preparing substantial written submissions.
Despite the lack of any independent record of what occurred at the planning meeting, our conclusion from the surrounding information is that the Tribunal fulfilled its obligation under s 50(3)(a).
This ground of appeal is rejected.

Adequacy of Reasons

In this case, the Tribunal's written reasons accompanied its order.
An administrative tribunal has a common law duty to give adequate reasons for its decisions: see, for example, Absolon v NSW TAFE [1999] NSWCA 311 at [66]. What is 'adequate' will vary with the circumstances, be affected by the nature of the dispute, and have regard to such matters as its complexity and scale. Regard will also be given to the business environment in which the judge or tribunal is operating, including docket pressures and the like.
Matters such as there have been referred to in a long line of cases, a frequent starting point being the statements in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Mahony JA at 273, per McHugh J at 281; and see, more recently, the compendium found in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (15 May 2009) per McColl JA at [58] - [66] (Ipp JA, Bryson AJA agreeing).
The NCAT Act, s 62 regulates cases where no written reasons were given at the time of the decision, a situation that can arise where oral, ex tempore reasons are given at the close of the hearing, or a notice of final decision is issued without any accompanying explanation for the decision (as might occur in a dismissal for non-appearance). Section 62 allows the recipient of the decision to apply for written reasons, and contains a set of requirements as to the matters the written reasons must address, see s 62(3): i.e. findings on material questions of fact, referring to the evidence or other material on which those findings are based; the Tribunal's understanding of the applicable law; and the reasoning process that led the Tribunal to the conclusions it made. There provisions inform what may be regarded as 'adequate' in relation to case like the present where written reasons accompany the order.
The appellant submitted that the Tribunal failed in its reasoning to refer to any of her submissions, and further the text of the reasons included mere repetition of submissions of the Department, in effect adopting uncritically the submissions of the Department. While it is highly desirable that the losing party receive an explanation of why their submissions have not been accepted, reasons are not rendered inadequate merely by the absence of specific reference to the losing party's submissions.
This was an application in which the Department sought to characterise the appellant's review application as 'vexatious' in law. The Tribunal gave its account of the applicable law, and referred to the evidence on which the Department relied. That evidence primarily turned on the history to which we have referred at the beginning of these reasons.
We have reviewed the appellant's submissions before the Tribunal. They primarily related to the substantive content of the Report. There was no need for the Tribunal to address these submissions given that it was dealing with an objection at the threshold. It would have been better had it explained this, but we do not see that shortcoming as enough to constitute a failure to give adequate reasons.
Similarly, while the Tribunal adopted in relatively similar terms some of the text of the Department's submissions, we are satisfied that it turned its mind independently to the question before it, and explained why it regarded as applicable to this case the approaches taken in leading cases as to what conduct may be regarded as vexatious, sufficient to justify summary dismissal of proceedings.
This ground of appeal is rejected.

Ruling that Review Application Vexatious

The Tribunal dismissed the appellant proceedings as 'vexatious', exercising the power given by s 55(1)(b) of the NCAT Act, which provides: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.
The Tribunal's findings relevant to its conclusion appear at two places: (1) the first part of the reasons - where the Tribunal refers to the long history of dispute between the parents and the appellant, on the one side, and the Department, on the other side, over the contents of the Report that took place between 2009 and 2013, and (2) in the last part of the reasons - where the Tribunal refers to conduct of appellant immediately before the filing of the application, and her conduct as a party before the Tribunal.
Summary dismissal powers in the same terms are given to the President of the Anti-Discrimination Board and to this Tribunal when exercising its equal opportunity jurisdiction: see Anti-Discrimination Act 1997, s 92(1)(a)(i) and 102.
It is long established that a superior court has an inherent power 'to protect itself from the abuse of its own procedure': Metropolitan Bank v Pooley (1885) 10 App Cas 210, per Selborne LC at 214; and 'the right to see that its process [is] not abused by a proceeding without reasonable grounds': per Blackburn LJ at 220-1. For the Australian authorities, see Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509.
The Uniform Civil Procedure Rules 2005 at r 13.4, address the subject in this way (these rules extend to statutory courts): (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
It will be seen that this Tribunal's power is somewhat differently expressed. The Tribunal's power refers not only applies to proceedings that are 'frivolous' or 'vexatious', but then applies to proceedings that are 'misconceived' or 'lacking in substance'. Section 55(1)(b) does not have a generic catch-all category of 'abuse of process' to pick up conduct in relation to the issuance and pursuit of proceedings that might, arguably, fall outside the four specific categories set out there.
In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of 'misconceived' and 'lacking in substance', he said: 25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ... 26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].
In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
It will be seen that Roden J's first category covers conduct that falls within the meaning of 'frivolous', while his third category embraces the kind of cases to which the expressions 'misconceived' and 'lacking in substance' are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action).
In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are 'frivolous' or 'vexatious', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.
In this instance it clear that the appellant had a legal right to challenge any information that related to her found in the Report. Section 15(1) is set out at para [3] of these reasons, as is the definition of 'personal information' (s 4). The Report contained personal information about the appellant whenever statements were made about the conduct and opinions of the 'K family', and at any point where she was singled out and directly named (as in the paragraph at page 27 of the Report, set out earlier in these reasons). (Read in context, we do not think that all references to the family actually touched on conduct by the appellant.)
The Tribunal accepted that the appellant had a legal right to bring the proceedings and apply for relief of the kind given by PPIPA. Nonetheless, the Tribunal concluded that they were 'vexatious'. It reached that conclusion having regard to the way the dispute over the contents of the Report had been prosecuted by her in the past and the way it was now being prosecuted. The Tribunal drew on the following, observation of Handley JA in Crewdson v Central Sydney AHS [2002] NSWCA 345 (26 November 2002), where the Court dismissed an appeal from a decision of the Appeal Panel that had reversed the Tribunal at first instance: 24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki [1986] USCA9 1380; 794 F. 2d 1373 (9th Circuit 1986), 1378.
In Crewdson, the applicant had applied for amendment of personal information under s 39 of the Freedom of Information Act 1989 (the predecessor to the right now given by s 15 of PPIPA). The applicant's employment had been terminated on health grounds. The record contained a medical opinion given to his employer by the agency that he was unfit. It had contributed to the employer's decision to terminate him. He wished to have the opinion rescinded. He was also pursuing proceedings in the Industrial Relations Commission in relation to the validity of his dismissal which put in issue the employer's finding that he was no longer fit to work.
The Appeal Panel had ruled that an expert opinion relying on specialised knowledge was not capable of amendment, other than in rare circumstances. Such a circumstance might be that the opinion had no substratum of fact. The cases to which Handley JA referred in para [24] of his reasons stand for this proposition.
In his submissions to us, Mr McDonnell for the Department suggested that there were no circumstance therefore in which a case of the present kind should be permitted to proceed. His submission was, in effect, that the proceedings were untenable and lacking in substance. While the Report was one written by persons with some expertise, the opinions that appear in it (especially the one at p 27 directly referring to the appellant) are not of a specialised and technical type, based on special learning of the kind to which case law cited by the Appeal Panel and by Handley JA, on appeal, referred in Crewdson. We reject this submission insofar as it is based on the propositions that the application is untenable, lacking in substance or misconceived.
The question that arises here is whether the power to dismiss summarily a proceeding on the ground that it is 'vexatious' can be applied to a proceeding that invokes an available legal right. It is clear, we consider, that the description 'vexatious' has been applied to cases where the applicant or plaintiff was exercising an available legal right. For example the Tribunal said in Burns v Laws [2005] NSWADT 229 at [9] that a proceeding might properly be regarded as vexatious and an abuse of process 'if it is shown that that the predominant purpose for which they have been instituted and/or maintained is an improper or 'collateral' purpose', citing Williams v Spautz.
In allowing an appeal from the Court of Appeal, the High Court in Williams v Spautz restored the primary judge's order that the proceedings be stayed permanently because they were an abuse of process. The Court was satisfied that the primary judge did not err in finding that they were being pursued for an improper or collateral purpose, and that they were being undertaken predominantly to that end (Mason C.J., Brennan, Dawson, Toohey & McHugh JJ; Deane, Gaudron JJ dissenting, in relation to the application of the law to the facts). In his separate judgment, Brennan J said (footnotes omitted): 10. There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce. To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include - at least to any substantial extent - the obtaining of relief within the scope of the remedy. (emphasis added) 11. … The gravamen of the test, I apprehend, is that the plaintiff did not commence or maintain the proceeding for any substantial legitimate purpose. I would state the test in that way. Substantiality is a matter of degree, ascertained by reference to the intention attributed to the plaintiff in all the circumstances of the case. At the end of the day, the court must determine, by reference to the intention attributed to the plaintiff, not merely whether the collateral purpose of the proceeding outweighs any legitimate purpose but whether the plaintiff entertained any substantial intention that the proceeding should achieve a legitimate purpose. 12. For these reasons, I would hold that an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding.
The present case was one where the Tribunal reached a similar conclusion. Its approach was consistent with that seen in the authorities to which we have referred.
Its ultimate decision was discretionary in nature. An exercise of discretion should not be upset unless it miscarries in the way described in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5. The Tribunal's finding that the proceedings were 'vexatious' in the sense described above, and fell within the compass of s 55(1)(b), was clearly open to it.
The Tribunal explained the history of conduct of the appellant, and the way in which this proceeding was another step in an attempt to have the Report's primary conclusions overturned. It was relevant that the proceedings had been instituted some years after the Report's publication, and that the ability of the Department effectively to reply to the criticisms of its contents was now hampered by the fact the report's writers were no longer working for the Department. The lack of timely exercise of a right such as that conferred by s 15 points against the conclusion that the exercise of the right is the true or real purpose of the proceedings. It is also relevant in assessing the purpose served by the application that while Mr K and Mrs K had been involved in the dispute with the Department for varying lengths of time, neither of them had joined in the present application, and there was only one reference in the Report (at page 27) that singled out the appellant. As we have noted earlier in these reasons, an opportunity was provided (at the planning meeting of 18 March 2014) to have the matter only proceed in relation to that point, but it was not accepted.
This ground of appeal is rejected. The other matters raised by the notice of appeal go the substance or merits of the requests for amendments to the content of the Report. Our leave does not extend to consideration of those grounds. Were we to embark on consideration of those grounds, we would defeat the objective of the summary dismissal order.

Costs

The Department has applied for costs on a party/party basis: see further, its written submissions filed 3 March 2015, at [18] and following. The appellant replied to those submissions at point (Q) of her submissions filed 17 March 2015. As noted earlier, at our hearing the Department handed up an affidavit as to its costs, and stated that the total costs incurred to date in connection with the appeal were $4,089.23. That figure did not include the costs associated with appearing at the hearing of the matter.
According to our records, the issue was not subsequently canvassed at the appeal hearing itself. In those circumstances, we are inclined to the view that the parties should be given an opportunity to make brief submissions in writing going to the quantum of the costs. As appears below, we have foreshadowed an order in a fixed amount.
The ordinary rule in the Tribunal is that each party is to bear their own costs (NCAT Act, s 60(1)). The rule is subject to the limited exception that the Tribunal 'may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs (s 60(2)). Section 60(3) gives guidance as to factors that may be taken into account in the exercise of that discretion. They refer to such matters as the conduct of the party in the course of the proceedings, the relative strengths of the respective cases, and, relevantly to the present application, 'whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance' (s 60(3)(f)).
There was no application for costs at first instance, in keeping with the usual position adopted by government agencies in administrative review proceedings (of which review applications brought under PPIPA is a species).
The Appeal Panel has recognised that for an unsuccessful party at first instance to subject the successful party to a further round of litigation before the Appeal Panel, and not succeeding In that endeavour, may be taken into account as a factor favouring an order for the costs of the appeal in favour of the respondent to the appeal. That circumstance applies to this case. The appeal sought to revisit a summary dismissal order. Summary dismissal orders will often mean that a respondent is insulated from the considerable inconvenience and expense of defending a matter to final judgment. The exercise by the applicant of an appeal right undermines the value of that outcome for the respondent. If the appeal is then unsuccessful, that stands as a special circumstance favouring an award of costs to the respondent. An award of costs goes some way towards preserving the benefit that had sought to be effected by the summary dismissal order. Further this is appeal relates to an order (not disturbed by the appeal) following a finding that the proceedings were being conducted vexatiously. This is a circumstance identified by s 60(3)(e) of the Act.
In our view the appellant should pay the Department's costs of the appeal in a fixed amount. Fixing amount has the benefit of avoiding any further contest of the kind that an order allowing costs to be 'assessed' might produce.
Our provisional view is that an order for $4000 is appropriate.
The Appeal Panel proposes to deal with the issue without holding an oral hearing (as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013, unless either party makes submissions pursuant to s 53(3) of the Act as to why an oral hearing is preferable, and that submission is accepted by the Appeal Panel.
We make the following directions: Direction to the appellant to file and serve submissions in writing in relation to the proposed quantum of the costs order within 14 days of the date of publication of this decision, and any submission in to the question of whether to proceed without an oral hearing; and, if the appellant makes submissions, to the respondent to file and serve any submissions in reply within 7 days.

Order 1. Appeal dismissed. 2. Appellant to pay the respondent's costs of the appeal in an amount to be fixed. In relation to the amount to be fixed, directions given at paragraph [86] of these reasons. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2015

Equal Opportunity Act 1984(Vic)

Mr J McDonnell, solicitor, Crown Solicitor's Office (Respondent) File Number(s): 14/57510 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2014] NSWCATAD 186 Date of Decision: 3 November 2014 Before: Naida Isenberg, Senior Member File Number(s): 133369

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