Choi v University of Technology Sydney

NCAT Administrative and Equal Opportunity|2018-01-08|Before: Dr J

Solicitors: In person (Applicant) Barry Nilsson Lawyers (Respondent) File Number(s): 2017/00168430

REASON FOR DECISION

This is an application, by a government agency, for indemnity costs, in circumstances where the applicant withdrew her application. The respondent agency contended that there were special circumstances warranting an award of costs, because the application was frivolous or vexatious and the Tribunal lacked jurisdiction in respect of some of the applicant's claims.
I have decided that the proceedings as a whole were not frivolous or vexatious, although four of the applicant's five grounds are properly described as such. I am not satisfied that there are special circumstances warranting an award of costs, mainly because the proceedings were not entirely without merit, the applicant was self-represented and she withdrew the proceedings at a relatively early stage.

Determination of the matter on the papers

The University submits that the costs application should be determined on the papers. Ms Choi submits that she needs a hearing. She says she wishes to make a speech with the assistance of a Korean-English interpreter at a hearing.
A further hearing would add to the costs already incurred by the University, it would lengthen the proceedings and it would not, in my view, facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)).
I have had regard to Ms Choi's request to have the assistance of an interpreter. Ms Choi has provided twelve pages of submissions on costs in English and a further two pages of additional submissions on costs in English. She has participated in case conferences, by telephone, without an interpreter. In her submissions, she has articulated the basis of her claims in a way which can readily be understood. I am satisfied that she has had an adequate opportunity to be heard.
I am also satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other documents lodged with the Tribunal (NCAT Act, s 50(2)).
Accordingly, I have decided to dispense with a hearing.

Special Circumstances

The University submitted that "special circumstances" existed within s 60(2) of the NCAT Act warranting an award of costs. "Special circumstances" are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21; Maiolo v Chiarelli (No 2) [2016] NSWCATAP 219 at [31].
The University has the onus of satisfying the Tribunal that special circumstances warrant an award of costs: MSP Consulting and Building Constructions Pty Ltd v Karkoulas (No 2) [2016] NSWCATAP 183 at [32].
The University identified the special circumstances upon which it relied as follows: 1. The applicant's claims were frivolous, vexatious and devoid of merit; 2. The Tribunal did not have jurisdiction to review two of the applicant's five grounds of review; 3. In respect of one ground of review, the applicant already possessed the information sought before the review was commenced; 4. The applicant made unfounded allegations of manipulation of documents for which there was no evidence and which could not in any event have been reviewable.
The University characterised the litigation as being frivolous or vexatious and submitted that no litigant, self-represented or otherwise, should be encouraged or permitted to continue undertaking litigation of this character.

Were the proceedings frivolous or vexatious (s 60(3)(e))?

In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance (NCAT Act, s 60(3)(e)).
In Walker v Pittwater Council [2016] NSWCATAD 78, Deputy President Hennessy said at [22]-[24]: "22 The term "lacking in substance" is not defined in the GIPA Act but has been interpreted in many cases including under the various federal and state anti-discrimination statutes: State Electricity Commission (Vic) v Rabel [1998] 1 VR 102 [31] - [45]; Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at [10]; Gauci v Kennedy [2006] FCA 869 at [32]; Margan v University of Technology, Sydney [2003] NSWADTAP 65. See the discussion of these cases in Rees Rice and Allen, Australian Anti-Discrimination Law (2nd ed 2014, The Federation Press) at 776 to 781. The most commonly quoted definition is that an application will be lacking in substance if it is based on "an untenable proposition of law or fact": State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J. 23 Sir Ronald Wilson said in Assal v Department of Health Housing and Community Services, (1992) EOC 92-409, 78,897 at 78,900 that: … it is unwise postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case. 24 In the context of the GIPA Act, if the Tribunal does not have jurisdiction or the application lacks merit because of a restriction or qualification on the applicant's rights under the GIPA Act, then the application will be lacking in substance. For example, an application will be lacking in substance if it meets any of the tests in s 110(2), if there is an overriding public interest against disclosure or if the information is not held by the agency. But it must always be borne in mind that an applicant has an enforceable right to access government information and the discretions conferred by the Act are to "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information": GIPA Act, s 3(2)(b)."
The applicant contends that all the five grounds of her application were within the Tribunal's jurisdiction and that the application was not vexatious, misconceived or lacking in substance. She submitted that the member who presided at the first case conference did not consider the proceedings to be characterised as such because, if he had, he would have rejected the applicant's application at that point.
It is not necessarily the case that a Tribunal member would "reject" an application at a case conference if the Tribunal member considered it to be frivolous or vexatious. The Tribunal member would need to provide an applicant with procedural fairness before dismissing the application, and it is more usual that this would be done upon the respondent's application. The Tribunal member's directions at the first case conference gave the applicant an opportunity to identify the case she was making more clearly, and to make submissions in support of that case.
The Tribunal's jurisdiction under the GIPA Act is to review "reviewable decisions" (GIPA Act, s 100). "Reviewable decisions" are those set out in s 80 of the GIPA Act. The Tribunal had no jurisdiction in relation to Grounds 1 and 2 of the applicant's application (the University's alleged failure to inform her of her appeal rights and its alleged failure to provide proper contact details).
Ground 3, on its face, arguably identified a reviewable decision, being an implicit decision that government information is not held by the agency within s 80(e) of the GIPA Act. Ms Choi identified the reviewable decision relevant to Ground 3 as being a decision under s 80(i) of the GIPA Act. Section 80(i) provides that a reviewable decision includes "a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)". Ms Choi did not explain how s 80(i) applied in the circumstances of the case. The Tribunal is not satisfied that Ms Choi was in fact seeking review of the way the information was provided to her, despite her express reference to s 80(i).
As indicated above, Ms Choi stated in her application: "Respondent did not provide all the information that Applicant had requested." In her substantive submissions, under the heading "Ground 3," Ms Choi claimed that the University did not disclose all relevant documents, and annexed two such documents to her application, one of which was a letter addressed to her. The application, taken with the submissions concerning Ground 3, is capable of being read as an application for review of a decision that information is not held by the University, including the information identified by Ms Choi.
The two documents referred to by Ms Choi were attachments to an email from the Ombudsman's Office to the University. The University had provided those attachments to Ms Choi in response to an earlier access application. In its determination of Ms Choi's more recent access application (that is, the determination the subject of these proceedings), the University gave Ms Choi access to its reply to the email from the Ombudsman's Office. That reply contained the body of the email from the Ombudsman's Office, but not the attachments.
The University has an obligation, when deciding an access application, to make a decision in accordance with s 58(1) of the GIPA Act. This may include a decision that the information is already available to the applicant (ss 58(1)(c), 59) and a decision to refuse to deal with the application because the information has already been provided to the applicant under a previous access application (ss 58(1)(e), 60). In this case, the University identified in its decision the information in the reply email as being captured by the access application, but failed to refer to the information in the attachments to the email from the Ombudsman's Office in its decision, even though this information appears to meet the terms of the access application. It did not make a decision under s 58(1)(c) or (e) in relation to the information in the attachments; it appeared, rather, to overlook the information.
It follows that the University held information which was responsive to Ms Choi's access application which it did not identify or refer to in its decision.
The University submitted that the application was frivolous because the applicant already possessed the attachments. The applicant said that she wanted to check if the email from the Ombudsman in her possession was the same email held by the University. She stated that she also thought there may be more relevant documents that the University was hiding. She said that the version of the email held by the University did not have a "disclaimer" at the footer, unlike the email held by her. She said that this was an example of the University's habit of making a forgery of a document.
There is no basis, in the evidence provided to the Tribunal, for the assertion that the University is in the habit of forging documents (or that it has ever done so). There was no reasonable basis for contending that the University held information which it was deliberately concealing from the applicant.
Nevertheless, I am not satisfied that Ms Choi's application was frivolous or vexatious, to the extent to which it sought review of an implicit decision that information was not held by the University. Ms Choi has identified information held by the University which appears to be responsive to her access application but which the University did not identify in its decision. The circumstance that she was already in possession of the information is insufficient to make the application frivolous.
Under the heading "Ground 4," Ms Choi alleged that the University has "manipulated" documents on the basis that a standard footer and disclaimer were missing in the email to which the applicant was provided access. She also alleged, as part of Ground 4, that another email, to which the University had given her access, was "too ungrammatical for an [sic] highly educated professor to write."
The applicant submits that the "Respondent's producing several forgeries of documents in past legal proceedings caused the Applicant to made allegations of 'manipulation' of documents". She also submits that the respondent made a forgery of a document which it provided to the Anti-Discrimination Board. She provided the Tribunal with a copy of the document she states is a forgery. The applicant's allegations of forgery are very serious and the evidence on which she relies is insufficient to support them. Nor has the applicant identified any reviewable decision relating to her claims under Ground 4.
Ground 5 is that the University did not decide the applicant's access application within time. This is not a reviewable decision. In any event, I accept the University's submission that time only started to run when the applicant paid the fee for her access application, meaning that the application was, in fact, decided within time.
For these reasons, I am satisfied that four out of five of the grounds upon which Ms Choi relied were frivolous or vexatious or otherwise misconceived or lacking in substance. This does not mean that the proceedings as a whole may be characterised as such within s 60(3)(e) of the NCAT Act. Nevertheless, the circumstance that most of Ms Choi's grounds meet this description may be sufficient to constitute special circumstances warranting an award of costs, within s 60(2).

What order should be made?

In considering whether special circumstances warrant an award of costs, within s 60(2) of the NCAT Act, I have had regard to the circumstance that Ms Choi was self-represented and she withdrew her application at an early point. The objects of the NCAT Act include "to ensure that the Tribunal is accessible and responsive to the needs of all of its users" (s 3(c)). The general rule, that each party pays that party's own costs, promotes such accessibility, particularly to self-represented applicants such as Ms Choi. However, the object of being accessible to applicants co-exists with the object of being responsive to the needs of all users, including respondent agencies in administrative review proceedings. Where applicants pursue proceedings which are devoid of merit, and when they make allegations of serious misconduct, which are not supported by evidence, there are, as the University submitted, costs to the agency and to the public purse.
Ms Choi submits the Tribunal should not award costs, for several reasons. She submits that the University's misconduct caused her to lodge her application for review, and says that it is her lack of legal knowledge which allowed the University to lodge its costs application. The Tribunal does not accept either of these propositions. The first is not supported by the evidence and, as to the second, the University's entitlement to apply for costs does not depend upon an applicant's legal knowledge. The applicant also said that she suffered from certain psychiatric conditions. There was no medical evidence in support of this and, even if there were, the Tribunal doubts that this would be relevant to the question of costs. The applicant submitted, further, that her concerns were genuine. The Tribunal accepts that this is the case. However, this does not, of itself, mean that there are no special circumstances warranting an award of costs.
There are a number of factors supporting the respondent's case that there are special circumstances warranting an award of costs. The University had provided Ms Choi with access to all of the information which she sought before she applied for review of its decision. Although it failed to identify two attachments to an email as being caught by the access application, it had previously provided her with this information, and one of the attachments was a letter to Ms Choi, which it could reasonably be assumed she had received at the time it was sent. Only one of Ms Choi's five grounds conceivably identified a reviewable decision, being an implied decision that information was not held, and the submissions in support of this ground referred to s 80(i) of the GIPA Act, which was not relevant. Although Ms Choi identified two attachments which had not been provided to her in response to this access application, her main (misguided) concern appeared to be that the email provided to her by the University was "manipulated" because it did not contain a footer which a previous version of the email contained. The University was put to the time and expense of responding to allegations of serious misconduct, which were devoid of merit.
The question of whether special circumstances warrant an award of costs in these proceedings is finely balanced. Ultimately, however, the University has not persuaded me that there are special circumstances warranting an award of costs. This is because the proceedings as a whole were not frivolous or vexatious, given that the University failed to identify some information responsive to the access application and there was, at least arguably, a reviewable decision by which Ms Choi was aggrieved (NCAT Act, s 100). Further, Ms Choi was self-represented and withdrew her application at the second case conference, once some of the difficulties with the application had been explained to her. As the University acknowledged in its submissions, this meant that the proceedings were resolved in a cost-effective way.

ORDERS

For these reasons, I make the following orders: 1. The respondent's costs application is to be determined without a hearing. 2. The costs application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 08 January 2018

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