Ms Jae Hee Choi applies to NCAT seeking that the decision made by the Tribunal (SM Molony) on 27 August 2019 (Choi v University of Technology Sydney [2019] NSWCATAD 176) be set aside under reg 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) (the subject decision).
Reg 9 gives the Tribunal power to set aside or vary a decision determining proceedings with the consent of all parties (reg 9(1)(a)) or where the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in their case not being adequately put to the Tribunal (reg 9(1)(b)).
For the reasons that follow, I have decided that the power to set aside the subject decision cannot be exercised.
[2]
Should the power to determine the set aside application "without a hearing" be exercised?
On 17 September 2019, I made directions inviting the parties to provide written submissions in relation to the application made by Ms Choi seeking to have the subject decision set aside. In addition, I directed the parties to address in their submissions whether that application could be determined "on the papers" as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
Section 50(1) provides that a hearing is required for proceedings unless the proceedings are of a type listed in s 50(1)(a)-(d). If, as here, the proceedings are not of such a type, the Tribunal may dispense with the requirement to hold 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": s 50(2). Before exercising the discretion to dispense with a hearing, the Tribunal must give the parties an opportunity to make submissions about that proposed course and take any submissions made into account.
Both parties prepared written submissions addressing the set-aside application. The University supports the set-aside application being determined on the papers, asserting that its case is sufficiently put in its written submissions. Ms Choi opposes the set aside application being determined on the papers, asserting that a hearing is necessary to enable "factual disputes to be determined". Those "factual issues" are broad in scope, and apparently relate to the history of the decision which is the subject of the initiating application lodged by Ms Choi with NCAT on 11 March 2019, and the conduct of staff and the legal representatives of the University in relation to that decision. While clearly these issues are of interest to Ms Choi, those "factual disputes" are entirely irrelevant to the primary issue to be determined: whether that absence resulted in Ms Choi's case "not being adequately put to the Tribunal".
I am satisfied that the issues raised by the set-aside application can be adequately determined in the absence of the parties and on the basis of their written submissions. Therefore the discretion to dispense with a hearing can be exercised. In deciding whether to exercise that discretion, I have had regard to the statutory requirement to ensure that both parties have a reasonable opportunity to be heard (s 38(5)(c) of the NCAT Act), together with the requirement to seek to give effect to the "guiding principle" - to facilitate the just, quick, and cheap resolution of the real issues in the proceedings (s 36(1) of the NCAT Act). In addition, I have had regard to the requirement to facilitate the resolution of those issues in such a way that the "cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings" (s 36(4) of the NCAT Act).
The issues raised by the set-aside application are not complex. They do not raise any issue of public importance. If a hearing is conducted to determine the set-aside application, the University is likely to incur additional costs. In addition, the Tribunal is likely to be required to expend additional resources. That additional cost and expenditure, in my view, is disproportionate to the complexity and importance of the matters raised for determination. For these reasons, I have concluded that it is appropriate to make an order dispensing with a hearing.
[3]
Background to the subject decision
To put the submissions made by the parties in context it is necessary to set out some background facts.
In March 2019, Ms Choi applied to the Tribunal for a review of a decision under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
On 3 April 2019, the University filed an application under s 109 of the GIPA Act, seeking to have the proceedings dismissed (Dismissal Application). On 9 April 2019, Ms Choi provided a 'Response' to the Dismissal Application.
The Tribunal listed the matter for a Case Conference on 17 April 2019. Ms Choi attended by telephone and the University attended in person. The Tribunal (SM Higgins) directed the parties to provide evidence and submissions about the Dismissal Application. In addition, the Tribunal advised that subject to any submissions or objections by the parties, the dismissal application would be determined on the papers after 31 May 2019.
Both parties filed submissions and evidence. On 3I May 2019 Ms Choi filed submissions (14 pages) together with an 11-page affidavit.
On 31 July 2019, the Registrar wrote to Ms Choi seeking clarification about the decision she was seeking to have reviewed (see Reasons at [31]):
This matter has been referred to Senior Member Molony for a decision on the papers.
Having read all the materials, Mr Molony understands that Ms Choi only wants the Tribunal to review the decision that her access application was invalid, made by UTS on 9 November 2018.
Ms Choi is asked to confirm whether that is correct? A yes or no answer is requested.
If Ms Choi answers yes, then Mr Molony will proceed on the basis that Ms Choi is not now seeking a review of UTS's decision that it does not hold certain information, made on 11 December 2018. If she answers no, he will proceed on the basis that Ms Choi seeks review of both decisions.
Mr Molony is anxious to avoid any confusion about this issue, however caused.
Ms Choi should answer yes or no by 6 August 2019, with a copy of her answer to UTS's legal representative.
UTS will then have until 10 August 2019 to make any comment or submission about her answer, with a copy to be sent to Ms Choi.
Mr Molony hopes to be in a position to provide a written decision shortly after receiving your responses.
Ms Choi answered "Yes", and the Tribunal proceeded to review the decision made by the University on 9 November 2018 that Ms Choi's access application was invalid. The Tribunal decided to exercise the discretion to determine that application on the papers, stating in its Reasons at [34], that it was satisfied that:
(1) neither Ms Choi nor UTS have objected to the application being determined on the papers; and,
(2) that the issues for determination in this can be adequately determined in the absence of the parties based upon a consideration of the materials relied on by the parties.
On 27 August 2019, the Tribunal dismissed Ms Choi's application under s 109 of the GIPA Act on the ground that the Tribunal considered it to be frivolous, vexatious, misconceived and lacking in substance: Choi v University of Technology Sydney [2019] NSWCATAD 176).
[4]
Can the power to set aside or vary the subject decision be exercised?
The power conferred by reg 9(1)(b) can only be exercised if Ms Choi's "absence" resulted in her "case not being adequately put to the Tribunal". Neither party addressed whether in circumstances where the Tribunal has made an order under s 50(3) of the NCAT Act to dispense with a hearing, and a party makes written submissions, the subject decision was made in that party's "absence". For current purposes, I will assume but not decide that the subject decision was made in the "absence" of Ms Choi.
At the invitation of the Tribunal, Ms Choi made lengthy and detailed submissions opposing the Dismissal Application. As revealed by the comprehensive reasons given for the subject decision, the Tribunal considered Ms Choi's submission in detail.
There is nothing before me to support a finding that Ms Choi was unable to put her case about her opposition to the Dismissal Application in writing, or that she would have been better able to put her case if she had been afforded the opportunity to make oral submissions. Ms Choi's submissions in support of the set-aside application are, in effect, an attack on the merits of the subject decision. The merits or otherwise of that decision are irrelevant to the issue I must decide, namely, whether Ms Choi's absence resulted in her "case" about the Dismissal Application "not being adequately put to the Tribunal". I am not satisfied that it did. It follows that the discretion to set aside the subject decision cannot be exercised.
[5]
Orders
1. The application made by Ms Choi to NCAT seeking that the decision made by the Tribunal on 27 August 2019 be set aside under reg 9 of the Civil and Administrative Tribunal Regulation 2013 is refused.
[6]
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: 15 October 2019
Parties
Applicant/Plaintiff:
Choi
Respondent/Defendant:
University of Technology Sydney
Legislation Cited (4)
(NCAT Act) Civil and Administrative Tribunal Regulation 2013(NSW)
Civil and Administrative Tribunal Regulation 2013(NSW)