Challita v NSW Department of Education and Training [2005] NSWCA 101 | Case summary

REASONS FOR DECISION 1 The appellants, Mrs Jolanda Challita and her husband, Mr Peter Challita, have been in dispute with the Department of Education and Training for several years in relation to, what they see as, the unsatisfactory way the State education system has dealt with the needs of their four children. 2 They applied under the Freedom of Information Act 1989 (FOI Act) for access to documents held by the Department. The Department released 59 documents, and otherwise refused to process the application on the ground that it would involve an unreasonable diversion of its resources (see s 25(1)(a1). The Tribunal affirmed the Department's decision: Challita v NSW Department of Education and Training [2009] NSWADT 116 (22 May 2009). 3 An appeal may be made on a question of law, and, by leave of the Appeal Panel, may be extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. 4 The appellants contest the substance of the Tribunal's decision. They have also challenged aspects of the procedure adopted by the Tribunal in dealing with their application. Background 5 Mrs Challita told the Appeal Panel that her complaints in the past were made on behalf of her children. They concerned the way her children had been dealt with in such matters as entry into the opportunity class stream at primary school, the process of preparation of students for the assessment process leading to admission to a selective high school and the assessment process itself. 6 Mrs Challita indicated that the present FOI application had its origin in her (and her husband's) concerns over whether those complaints had ever been properly investigated. She expressed the belief that her children had been victimised by the system because of the efforts she and her husband had made on their behalf. 7 She said that she had also been a public complainant in relation to what she saw as the Department's neglect of the needs of gifted children. She was concerned that as a result of her outspokenness her children may have been dealt with adversely, and the Department may have taken a hostile view towards her and her husband on account of their activity. 8 The Challitas' complaints have included allegations of misconduct against staff of the Selective Schools Unit of the Department. Two of Mrs Challita's earlier FOI applications, connected with those allegations, came before the Tribunal in 2005. In its decision in that case, the Tribunal referred to Mrs Challita's belief that her family was being 'targeted, victimized, bullied, vilified and treated unfairly by members of the Department of Education': see Challita v Director-General, Department of Education and Training [2006] NSWADT 109 at [6]. Similar statements are found in the appeal submissions in this case. 9 As the access application in the present case reflected, she and her husband felt that they had been declared 'vexatious' by the Department. This FOI application was different from the others, she said, in that it focussed on the way she and her husband were being viewed and treated by the Department. All the earlier complaints and FOI applications were focussed on the way the Department had dealt with their children. She was now concerned that her children's progress may have been impeded by the Department's attitude to her and her husband, especially references to them being described as vexatious. 10 At the appeal hearing, Mrs Challita said that all they were seeking was a copy of a Departmental investigation report dealing with their concerns over the way their children had been treated. History of Request under Notice 11 The original request was made on 11 July 2007. In its first clause (see Tribunal reasons at [1]) it sought any document of whatever kind or type held by the Department 'relating to the decision to deem Jolanda Challita vexatious for the period 2002 to date'. In its second clause it sought a document of whatever kind or type held by the Department 'relating to the handling of allegations of bias, victimization and misconduct made by Jolanda and Peter Challita for the period 2002 to date, including and not limited to the matters brought up in the attached list of records dated 19 October 2005'. 12 As already noted, there was a long history of interaction between the Challitas and the Department. The material before the Tribunal and the Appeal Panel refers to there having been, for example, 18 previous FOI applications. (The appellants say, in reply, that had their complaints and concerns been properly dealt with at the outset, their relationship with the Department would not have escalated to the extent of the further numerous interactions that have occurred.) 13 Necessarily, therefore, this was a request that, if actioned, would require the Department to process a high volume of documents. This, we believe, would have been understood by the appellants. 14 The Acting Manager, FOI (Mr Cribb) asked them to redefine their request. They pressed clause 1 of the request, but modified, as they saw it, the scope of clause 2 to use as the base for reference eight items of correspondence belonging to the period 4 August 2003 to 8 April 2007. 15 On 15 October 2007, the Department released 59 documents in full. Mrs Challita said to the Appeal Panel that this was of no significance to her, as they were documents she already had, or they were not relevant to her request. 16 After the response of 15 October 2007, the Department did not take any further steps to deal with the Challitas' request. In the Challita's view, it did not deal at all with the second clause of the request. They applied for an internal review. There was no internal review in the time prescribed or at all. 17 On 7 December 2008 they applied to the Tribunal for review. At a planning meeting on 29 January 2008, the Tribunal remitted the application for the Department to make an internal review determination. The determination was made on 25 March 2008. 18 At a planning meeting on 3 April 2008 the appellants indicated that they no longer pressed any case in relation to clause 1 of the request. A timetable was set for exchange of submissions, ending on 15 October 2008. The Tribunal determined the matter on the papers. The decision of the Tribunal was published on 22 May 2009. (1) Procedural Fairness 19 The first objection is that the Tribunal adopted an unfair procedure in deciding to dispose of the matter 'on the papers'. 20 The Tribunal's power to dispense with an oral hearing and deal with a matter in this way is given by the ADT Act, s 76, as follows: ' 76 Circumstances in which hearing may be dispensed with The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.' 21 The Tribunal member briefly referred to this decision at para [10] of his reasons: '10 At the planning meeting I set a timetable for filing of material and the parties agreed for the matter to be determined on the papers.' 22 The appellants acknowledge that the member invited their views as to the appropriateness of proceeding on the papers, and that they agreed to that course. 23 They now submit that, nonetheless, they were denied procedural fairness. They were disadvantaged, they contend, by not being able to test the assertions made in the evidence tendered by the Department as to their application's impact on the resources of the Department. 24 Mrs Challita said that the appellants had felt at the time the matter was discussed in the planning meeting that they should go along with the suggestion of the Tribunal member so as not to offend him. She referred to the fact that she was not a lawyer. She said there were challenges that she could have made to Ms Stathis' evidence. 25 The basic principle of the ADT Act is that oral hearings be conducted, and that they occur in public: see ADT Act, s 75(1). 'Open justice', as it has come to be called, is basic to maintaining public confidence and understanding of the administration of justice, and serves wider democratic values. See, generally, Chief Justice Spigelman, 'Seen to be Done: The Principle of Open Justice', (2000) 74 ALJ 290, 378; John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101; 62 NSWLR 512. 26 The s 76 procedure operates therefore as an exception to the usual procedure for hearing and determining matters in the Tribunal. The discretion to be exercised is entirely one for the Tribunal. It must 'appear' to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. There is no requirement of consultation (see further Horner v West (EOD) [2008] NSWADTAP 3 at [14]). This position contrasts with comparable provisions in the tribunals' legislation elsewhere in Australia: see, for example, Administrative Appeals Tribunal Act 1975 (Commonwealth), s 34J; Victorian Civil and Administrative Tribunal Act 1998, s 100. However, it is normal for the Tribunal to ask for the views of the parties, and take them into account, as occurred here. 27 The judgement allowed by s 76 can, perhaps, be most easily made in cases where there are statements of agreed facts, legal representatives and well-prepared legal submissions. It is less easily able to be made in cases where there is an unrepresented party on one side, with the greater potential for dispute about the underlying facts, and, perhaps, a greater suspicion about the fairness of desk decision-making. The Tribunal itself has a duty, under s 73 of the ADT Act, to ensure that the parties have an understanding of the nature of the assertions and the nature of the legal implications of the proceedings. 28 We have reviewed the material filed for the s 76 disposition. 29 The factual material is supplied by way of Ms Stathis's statement of evidence filed 30 May 2008. It does not, in our view, depart in any material way from the assertions found in her determination dated 25 March 2008. On 29 September 2008 the appellants filed their response to the statement of evidence and the Department's submissions. 30 The Department had set out several criteria against which to assess the question of whether a request involved an unreasonable diversion of resources, mainly drawn from a decision of the President sitting at first instance in Cianfrano v Director General, Premier's Department [2006] NSWADTAP 48 at [62]; and see further, the next appeal ground. 31 The appellants in their response replied point by point. They did not challenge Ms Stathis' basic point that there were 85 primary file categories to which a search would need to be directed. They criticised the failure to analyse more closely these categories to see where the documents requested might realistically be found. They prepared three tables, marked 'F', 'G' and 'H'. In our view, they provided little information that might seriously draw into question Ms Stathis' estimate of the number of files affected, and their size. 32 In our view, in these circumstances, it was reasonable for the Tribunal to continue to proceed on the basis as agreed at the planning meeting of 3 April 2008. 33 This ground of appeal is dismissed. (2) Substantive Decision 34 The Department's determination gave various reasons for forming the view that processing the request would give rise to an unreasonable diversion of resources. Extracts from the reasons for determination are found at para [13] of the Tribunal's decision. 35 In her reasons for determination and her statement of evidence filed 30 May 2008, Ms Stathis stated that there existed (as at 2008) 85 Departmental files relating to complaints by Mrs Challita. She said it would be necessary to delve into these files to locate each of the eight letters of complaint identified in the revised request, and then find the documents generated by the agency in response. Ms Stathis estimated that each of the files would have on average 100 pages. She referred to the time and effort that would be involved in identifying and locating the documents requested. She believed that there would probably be an average of 25 pages relating to each of the letters of complaint. She referred to the reading and deliberative time that would then be required. Her estimate, which the Tribunal appraised as conservative (see reasons [41]), was that 41 hours 20 mins, rounded to 6 work days, would be taken up by the application. 36 She said that '[o]nly 5.8% of applications to the Department take this long to process'. She then referred to the present state of resources of the FOI Unit of the Department. A unit that ordinarily had six officers. While the reasons were not entirely clear on this point, it would seem that there were either three or four officers in situ at the time, and there were even fewer with any substantial experience. She continued: 'In circumstances where the applicant has already received a considerable number of documents in response to her 18 FOI applications, I consider that it would be unreasonable to engage the Department in a further 41 hours of processing of this application.' 37 At hearing before the Tribunal, the solicitor for the agency acknowledged that the present request was open to be differentiated from the previous 18 requests, at least in part, on the basis that the previous 18 had solely concerned issues to do with the Department's treatment of her children at the schools whereas the present request went to the way Mrs Challita and her husband were being treated by the schools and the agency. 38 Their essential ground of appeal is that the Tribunal erred in law in favouring the agency's case. 39 The Tribunal referred to the Department's evidence and its concluding remarks were: '43 When assessing whether a demand would have an undue impact it is not intended that all of the resources of an agency be taken into account, but rather what is to be considered is the resources reasonably required to deal with an FOI application with attendance to other priorities. The resources of an agency means the resources that the agency actually has or could obtain, unless the absence of resources indicates a deliberate failure to provide resources to respond to FOI applications ( Cianfrano v Director General, Premier's Department at paragraphs [55] - [59)]. 44 Ms Stathis has identified the DET's resources and the potential impact on those resources if the request were processed. I accept this evidence. 45 Having weighed the material presented by each of the parties I am satisfied that that processing this application would involve a substantial and unreasonable diversion of the DET's resources. It follows in my view that the DET has correctly refused access under s 25(1)(a1).' 40 In its submissions on appeal as it had before the Tribunal below, the agency conceded s 25(1)(a1) only concerned itself with 'the work involved in dealing with the application for access', so it was not relevant whether there was a history of other applications. To that extent, the agency separated itself at hearing from part of the logic used by Ms Stathis (quoted at [36] above). 41 Ms Stathis had said: 'In circumstances where the applicant has already received a considerable number of documents in response to her 18 FOI applications, I consider that it would be unreasonable to engage the Department in a further 41 hours of processing of this application.' 42 In Cianfrano v Director-General, Premier's Department [2006] NSWADT 137 (set aside on appeal on an unrelated ground) the President sitting at Divisional level set out a list of factors that might be employed in determining whether a request involved an unreasonable diversion of resources: '(a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in Re Borthwick at 35) (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick) (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria) (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.' 43 It will be seen that Ms Stathis acknowledged that some of the requests received by the Department require more than 40 hours processing, so it did not apply a strict policy based on that consideration. 44 The burden of establishing that the determination is justified lies on the agency: FOI Act, s 61. Having regard to that burden, the Tribunal standing in the shoes of the administrator was called upon to decide whether the agency's decision was the correct and preferable one in the circumstances (see ADT Act, s 63). 45 The Tribunal must have persuasive evidence as to what work would be involved in dealing with the application for access. Necessarily in cases where the agency relies on s 25(1)(a1) to refuse access there will be a speculative aspect to the agency's assessment. In this case Ms Stathis gave a clear account of how she estimated the scale of the work required to locate documents that might be responsive to the request. She gave a clear account of the extent to which the search, and further processing, would impact on the agency's resources. She explained why the work, if carried out, would, in her opinion, give rise to a 'substantial' and 'unreasonable' diversion of the agency's resources. 46 When assessing an opinion as to whether something is 'substantial' and 'unreasonable' the Tribunal is involved in making a decision within broad parameters. In particular, the Tribunal was influenced by Ms Stathis' outer estimate, that up to 8500 documents might need to be inspected in order to satisfy the request. See para [38] of the reasons. 47 In our view, the Tribunal's decision was one that was reasonably open to it in the circumstances of the case. (3) Other Issues 48 The appellants reiterated at hearing the concern they had expressed to the Tribunal over agency officers describing them as 'vexatious'. At paras [30]-[33] of the reasons the Tribunal refers to this matter. It does so by way of background. 49 In our view, the Tribunal was, at this point, recognising the concern of the appellants and giving an explanation of why the agency officers might have seen the term as appropriate, without endorsing the agency officers' view in that regard. Similarly, in the discussion of the way the parties used the term 'investigate' it was seeking to recognise the different ways in which this term might be used, again without endorsing what it saw as the broad way in which an agency might use the term. 50 The appellants objected to certain statements in the reasons for decision. There was an error in the presentation of part of the text of their submissions within para [22] of the reasons - a separate heading was merged into the previous paragraph of the text giving rise, they felt, to a misleading impression of the submissions. It should have read, we accept: '[22] …. 40. Procedural fairness is something that is of significant public interest and concern. Whether the DET provided adequate justification in its statement of reasons 42. The safety well being (ETC)' 51 That can be fixed by publication of an amended set of reasons. This was a mere slip, and had no consequence for the ultimate determination of the Tribunal. A correction will be made to the first instance reasons. (4) Leave to Extend to the Merits 52 It is not necessary to demonstrate an error of law before an Appeal Panel can give leave to extend to the merits. On the other hand, the absence of any material error of law in the underlying reasons is a significant consideration weighing against extension to the merits. 53 It would be destructive of the process of decision-making at first instance if an Appeal Panel was lightly to intervene to substitute its judgement on a discretionary judgement for that of the Tribunal below. The Divisional level is the 'trial' level of the Tribunal. 54 As the Appeal Panel noted in Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17: '85 While the Appeal Panel's discretion to grant leave is not qualified by the ADT Act (see, for example, Sunol v Collier [2006] NSWADTAP 51 at [29]), it should be exercised with caution and in the interests of justice. It is not enough that the appellant disagrees with the decision. The Appeal Panel is not designed to be a second trial level of the Tribunal. As McHugh J said in CDJ v VAJ (1998) 197 CLR 172 at [111] the power to permit an appeal on a question of fact is 'not intended to have the practical effect of obliterating the distinction between original and appellate jurisdiction'. Appeal Panels must recognise the importance of not interfering with soundly-made decisions. An appellant should normally, we think, demonstrate on persuasive grounds that a substantial injustice would result if the decision was allowed to stand.' 55 In our view, there is nothing about this case that warrants reopening in the absence of a material error of law, such as a miscarriage of discretion so serious as to constitute an error of law. (5) Respondent's Costs Application 56 The agency has applied for its costs of the appeal, on the basis that the appeal is entirely without merit, frivolous and its conduct is vexatious. The Tribunal's power to award costs in proceedings relating to the review of reviewable decisions is conferred and regulated by s 88 of the ADT Act, which provides, relevantly: ' 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. … (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.' 57 In merits review proceedings in the Tribunal it is rare for there to be any application for costs, and the usual position is that the Tribunal gives no consideration to the issue. As Spigelman CJ noted in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 (25 October 2007) at [79]: 'In my opinion, the usual position on a merits review that an appeal tribunal stands in the shoes of the primary decision-maker is a significant element in the practice of such tribunals not to exercise such power, if any, to award costs as are conferred upon them. Administrative decision-makers do not award costs. Where a judicial or quasi-judicial function is expressly placed in the position of such a decision-maker then it is more appropriate that it adopt the same general approach.' 58 In line with the usual practice of government agencies responding to applications for review of their decisions, there was no application for costs in this matter before the Tribunal below. Appeal Panels accepted, when applying the earlier form of s 88 (discretion to award costs if 'special circumstances' existed) that it may be appropriate to take a firmer position in relation to costs where an unsuccessful party at first instance puts the successful party to the burden of again meeting the unsuccessful party's case, and the appellant is again unsuccessful. The respondent should, perhaps, be compensated by an award of costs on the second occasion. See generally, the recent Appeal Panel decision in Chand v RailCorp (GD) [2009] NSWADTAP 64 at [49]-[66]. In that case the Appeal Panel (constituted by the President, as here, and two other members) made a limited costs order against an unsuccessful FOI appellant. 59 We questioned the Department's legal representative at hearing as to the amount of costs being sought. She first spoke of an amount of $5000 to $8000, then towards the end of the hearing said not more than $5000. We asked for written advice. By letter dated 10 September 2009 she advised costs to date of $2328.50, being fees up to and including attending the hearing. 60 This appeal had little merit. It also included allegations of corruption and bias, like Chand. However, we are not disposed to make an order. 61 We have had regard to these factors. The appeal grounds were confined to the reasoning of the Tribunal below. The Department did not issue an internal review determination, and it took the Tribunal's intervention for that to occur. In that sense, it was the Department's conduct that brought the appellants to the Tribunal. At first instance, the appellants acceded to a s 76 disposal, with the cost savings that produces (albeit a choice, as their appeal evidences, they regret now). Viewed as a whole, we do not see this as a case that warrants a costs order against the appellants.

Challita v NSW Department of Education and Training

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Judgment (11 paragraphs)

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Cited By (27)