Choi v University of Technology Sydney [2019] NSWCATAD 176 | Case summary

Should the Tribunal refuse to deal with the application under s 109 of the GIPA Act and/or dismiss it under s55(1)(b) of the CAT Act?

If a review under the GIPA Act is "frivolous, vexatious, misconceived or lacking in substance" then the Tribunal may refuse to deal with it under s 109. Under s 55(1)(b) of the CAT Act the Tribunal may dismiss proceedings that are, "frivolous or vexatious or otherwise misconceived or lacking in substance". In the present case UTS is asking the Tribunal to exercise its powers under both sections with respect to Ms Choi's application.
The words "frivolous, vexatious, misconceived or lacking in substance" are well recognised legal terms that can be found in a broad spectrum of statutes dealing with summary dismissal in a wide variety of forums. In each case, it is important that the legal and legislative context in which those proceedings arise be taken into consideration.
Examples of these were discussed BDK v Department of Education and Communities [2015] NSWCATAP 129 at [59-62] in the context of an appeal against a summary dismissal of anti-discrimination proceedings on the grounds that they were vexatious under s 55 (1)(b) of the CAT Act . The Appeal Panel wrote : 63 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]. 64 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. 65 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). 66 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 The Owners - Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22 Principal Member Rosser noted with respect to the word misconceived that: 33 The meaning of "misconceived" in an equivalent provision to s 55(1)(b): s 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 has been considered in a number of cases by the Victorian Civil and Administrative Tribunal (VCAT). 34 For example, in Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478, VCAT stated at [32] that "misconceived" in the context of s 75(1)(a) means "obviously untenable or groundless …. or means that the applicant has brought an incorrect type of application". In Kyriakidis v State of Victoria (Human Rights List) [2014] VCAT 1039 (21 August 2014), VCAT characterised as misconceived an application in which the complaint as articulated was not capable as a matter of law of enlivening VCAT's power to make the order sought. This conclusion was also reached in Keogh v Higgins (Civil Claims) [2014] VCAT 1256 (3 October 2014).
Reviews under the GIPA Act are a good example of the nature of the proceedings, and applicable legislation, having a significant impact on whether proceedings are frivolous, misconceived or lacking in substance. This is so because the GIPA Act has among its objects the conferral on members of the public of a right to access government information; restricted only when there is an overriding public interest against disclosure: see s 3. In aid of that right s 105(1) of the GIPA Act provides: In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.
As a consequence, applications for summary dismissal based on an argument that review applications are without merit and destined to fail (and therefore frivolous, misconceived or lacking in substance) are unlikely to succeed, as the burden of justifying that the decision is correct lies with the respondent agency. Thus the submission by UTS in this case that Ms Choi's attempt to review the not held decision (which it is now clear she is not pursuing) had "no prospect of success" because UTS "has already conducted reasonable searches" could not succeed. This is because the onus of proving that the searches were adequate falls on UTS.
In Walker v Pittwater Council [2016] NSWCATAD 78, Hennessy DP (as she then was) considered the provisions of s 110(5A)(b) of the GIPA Act. This provides that when considering whether to approve an access application being made by a person who is the subject of a restraint order the Tribunal may: … have regard to whether the proposed application is frivolous, vexatious, misconceived or lacking in substance. The Tribunal wrote: 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).
UTS argues that Ms Choi's application is misconceived, lacking in substance, frivolous and vexatious.
It points to the fact that the application was brought in the context of other litigation (6 applications) commenced by Ms Choi against UTS in the Tribunal, that were ultimately settled, withdrawn and dismissed, following the appointment by the Tribunal of a guardian ad litem for Ms Choi. There was also a restraint order under s 110 of the GIPA Act made preventing Ms Choi from making an access application to UTS without first obtaining the approval of the Tribunal.
That order was made after Ms Choi had made the access applications under consideration here. It has no impact on them.
UTS correctly points out that after it made the invalidity decision Ms Choi amended her access application, in writing, by providing further information about some of the information she wanted, and by deciding not to press other requests for information she had made. She had earlier, on 9 November 2018, suggested UTS redact private information in the staff payslips she had requested. Then on 13 November 2018 she wrote to UTS amending her access application. In doing so, she gave no indication that she felt under pressure to do so, and did not indicate that she was in any way dissatisfied with the invalidity decision. This was despite the fact that, on Ms Choi's evidence, she had requested a review by the Information Commissioner on 9 November 2018.
She received an acknowledgement from UTS of her amended application dated 16 November 2018 and did nothing to indicate that it was in any way incorrect or that she felt she had been compelled to make the amendment.
It was only after UTS made the not held decision on 11 December 2018, in response to her amended access that application, that Ms Choi's request for external review of the invalidity decision was received by the Information Commissioner on 18 December 2018. Receipt on that date by the Information Commissioner is impossible to reconcile with the email Ms Choi says she sent requesting that review on 9 November 2018 (see p 4 of JCHOI -7).
I have concluded that the more reliable date when determining when Ms Choi made her request for external review of the invalidity decision is the date the Information Commissioner says that request was received, namely 18 December 2018. I think it probable that that Ms Choi did not request review by the Information Commissioner of the invalidity decision until after 11 December 2018, and that the request was received on 18 December 2009. This was within the 40 working day time limit for requesting such a review : see s 91 of the GIPA Act.
In her submissions and affidavit Ms Choi says that she did not amend her access application voluntarily. She says she objected to the invalidity decision and emailed UTS's legal representative on 9 November 2018 suggesting the UTS "hide private information". UTS did not respond.
9 November 2018 was a Friday. Ms Choi amended her application on the following Tuesday, 13 November 2019, before one might reasonable expect a reply to her email of 9 November 2018.
After Ms Choi amended her access application, any reply to her email of 9 November 2019 would have been redundant.
In her affidavit Ms Choi further explained: 8. I have a bad experience about the time period for requesting a review in Choi v University of Technology Sydney 120171 NSWCATAD 198 where NCAT refused to expand the time to review my application. Before I miss the time to cross-examine the Notice of Decision under the Government Information (Public Access) Act 2009 ("GIPA Act") by NSW Police, I wanted to access to the information as early as possible. 9. Hence, I did not amend my initial access application voluntarily as UTS asserts. I had no choice. I "had to" amend my initial access application.
I do not accept that this shows that Ms Choi did not voluntarily amend her access application. Form the date she received the invalidity decision she had 40 working days to request a review by the Information Commissioner (s 91) or by the Tribunal (s 101). There was no time pressure on her at the time she amended the access application on 13 November 2018. That pressure, were it real, was entirely self-inflicted and not the result of any conduct by UTS.
A consequence of that amendment was that UTS accepted the amended application as a valid access application and went on to decide that the information Ms Choi sought is not held by it. Ms Choi's present attempt to review the invalidity decision, after the access application it is based on has been amended and processed by UTS, is clearly frivolous, misconceived and lacking in substance. I am also satisfied that the review application is so "obviously untenable or manifestly groundless as to be utterly hopeless" and is therefore vexatious in the third sense described by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491.
UTS also relied on the history of proceedings between it and Ms Choi to argue that the proceedings were commenced vexatiously. During the course of the proceedings concerning the appointment of a guardian ad litem and the subsequent settlement of six separate proceedings brought in the Tribunal by Ms Choi, she wrote a document labelled "without prejudice" and entitled :Fuck.you.pdf" which she sent to UTS's solicitors and the Tribunal. UTS seeks to rely on the content of that document which it says does not have any proper connection with the settlement of proceedings relying on Field v Commissioner of Railways (NSW) (1957) CLR 285 at 292-293, Uniliver PLC v Prroacter & Gamble Co [1999] 2 All ER 691 and Trade Practices Commission v Arnott's Ltd (1989) 88 ALR 69 at 70-74.
In her submissions Ms Choi did not address his letter or its admissibility in these proceedings.
I read the letter in order to determine whether it contained without prejudice communications. It does not. In short, it is a diatribe. It makes scandalous allegations against many people associated with Ms Choi's dispute with the UTS from Lawyers, to Tribunal Members, to academics and UTS management. It is an unedifying document that says more about the author's anguish, than anything else.
In her affidavit Ms Choi responded to a number of UTS allegations as to how past proceedings and the without prejudice letter demonstrate her vexatious intent. While I have read these passages closely they do not provide a coherent or cohesive explanation. They are reminiscent of a pattern, sometimes seen among repeat litigants, of a genuinely held sense of grievance spiralling out of control to encompass new individuals and organisations, who the litigant perceives as adding to, or subverting, their grievances in an escalating conspiracy. I am left with the impression that Ms Choi has a genuine sense of grievance, which grievance is so overwhelming that rational thought and analysis have been abandoned in her pursuit of vindication. Her present application, as pressed by her, was always untenable and therefore vexatious.

Choi v University of Technology Sydney

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