Clarke v NSW Land and Housing Corporation

The Respondent's case

1. The submissions of the Respondent filed on 7 November 2022, and refiled on 28 November 2022, helpfully set out the background to proceedings between the Applicant and the Respondent (at pars 5-14).
2. The submissions refer to the Applicant's original contempt referral application filed 13 July 2022, which arose out of proceedings between the Applicant and the Respondent in the Consumer and Commercial Division of the Tribunal in "tenancy proceedings". The Respondent submitted, accurately, that, in her supporting material, the Applicant asserted that the Respondent had "failed to comply with orders made in the tenancy proceedings and provided misleading information to the Tribunal". It should be noted that Applicant has never identified, despite the Tribunal referring her to the decision in DVI, as she acknowledged in her submissions that it had, any order which the Respondent is alleged to have breached.
3. The Respondent referred to the Applicant's application of 6 September 2022 seeking orders under sections 26 and 54 of the CAT Act, the grounds for which were stated as being "fraud, mixed law and mixed Fact, defamations, denial of earnings, dishonesties, contempt". Section 26 of the CAT Act is concerned with "procedural directions" and has no possible relevance to the Applicant's original or amended application. Section 54 of the CAT Act is concerned with "references of questions of law to Supreme Court". As the terms of s 54(1) make clear, only questions of law arising in these proceedings could potentially be referred to the Supreme Court. Nothing raised by the Applicant in these proceedings constitutes a question of law which could be referred to the Supreme Court. As will be seen, howsoever pleaded, the Applicant's applications are in substance inappropriate attempts to pursue relief which, if available, should be sought elsewhere, attempts to relitigate decisions made in matters against which she has not appealed, or not successfully appealed, and sweeping unsubstantiated allegations of impropriety by a number of entities and individuals.
4. The Respondent referred (at pars 9-11) to the application of 6 September 2022, the history of tenancy proceedings between the Applicant and the Respondent, including appeal proceedings, between 15 January 2022 and 5 September 2022. The Respondent submitted, correctly, that on 5 September 2022 the Applicant's appeal against orders of the Tribunal in the tenancy proceedings of 24 June 2022 was dismissed. The Applicant has not identified any orders in those proceedings which the Respondent is alleged to have breached, or any question of law which arises in these proceedings arising from those orders.
5. With respect to "GIPA and privacy applications", the Respondent set out (at pars 12-14) the course of the Applicant's application of 13 July 2019 pursuant to the GIPA Act between that date and 9 August 2022. On the latter date, the Applicant's appeal against orders made in those proceedings was dismissed. The Tribunal has not been referred to any other proceedings giving rise to orders which the Respondent could arguably have breached. Nor has any question of law in these proceedings arising from those orders been identified.
6. With respect to the Applicant's claims against the Respondent arising out of the tenancy proceedings, under the heading "Misconceived", the Respondent submitted (at par 21) that none of the relief sought by the Applicant in the application filed 18 October 2022 fell within the enforcement jurisdiction of the Tribunal. Not insignificantly, the amended application filed 18 October 2022 did not seek the referral of the Respondent to the Supreme Court to be dealt with for contempt in reliance upon any alleged breach of an order of the Tribunal in those proceedings. Nor has the Applicant identified any question of law in these proceedings arising from those proceedings.
7. The Respondent submitted that none of the sections sought to be relied upon by the Applicant in her amended application of 18 October 2022 fell within the enforcement jurisdiction of the Tribunal. The Respondent submitted (at par 22) that breaches of the Residential Tenancies Act 2010 (NSW) alleged by the Applicant did not fall within the ambit of the matters which the Tribunal had jurisdiction to deal with pursuant to s 33 of the CAT Act. The Respondent submitted that such matters were, "more appropriately dealt with" by the Applicant making an application to the Consumer and Commercial Division of the Tribunal pursuant to the provisions of the Residential Tenancies Act. Similar submissions were made with respect to the Applicant's allegations with respect to breaches of the Privacy and Personal Information Protection Act, albeit submitting that the appropriate Division of the Tribunal for that purpose was the Administrative and Equal Opportunity Division.
8. It was further submitted by the Respondent that: "The legislative provisions identified by [the Applicant] as the basis for the orders sought in the application relate to the Tribunal's powers to grant an extension of time (s 41 of the CAT Act), circumstances in which applications involving federal jurisdiction can be made to an authorised court (ss 34(a) and 34(b) of the CAT Act) and deal with the interaction between the GIPA Act and the CAT Act by permitting the disclosure of material to the Tribunal where there is an overriding public interest against disclosure (s 66(3) of the CAT Act). These provisions do not relate to the exercise of the Tribunal's enforcement jurisdiction."
9. It was accepted by the Respondent that the Tribunal would have the power when exercising its enforcement jurisdiction to make ancillary orders pursuant to ss 41 and 66 of the CAT Act, but that there is no substantive matter relating to contempt or a contravention of the civil penalty provisions of the CAT Act that arises from the Applicant's amended application of 18 October 2022.
10. Under the heading "Vexatious", the Respondent submitted (at par 25) that the present proceedings were "vexatious being brought for a collateral purpose, namely, to reagitate matters previously determined in Tribunal proceedings". There is considerable force in that submission. It is readily apparent from their terms that most, if not all, of the Applicant's present complaints relate to the alleged conduct of the Respondent. If that conduct had been raised in proceedings which have been determined, then the determination of those matters would be reflected in orders of the Tribunal which, if the Applicant alleged that they had been breached, could have enlivened an application for referral to the Supreme Court pursuant to s 73(5) of the CAT Act. If those complaints relate to pending or contemplated proceedings in other Divisions of the Tribunal pursuant to relevant statutory provisions, that is the forum in which those allegations should be raised and will be determined.
11. Significantly, the Respondent submitted (at par 26) that, as identified earlier in its submissions (at pars 9-11), the Applicant had instituted proceedings in the Tribunal concerning alleged breaches of the Residential Tenancies Act by the Respondent, that she had failed to prove those allegations, and failed to persuade the Appeal Panel that the Tribunal at first instance had erred in its findings in that regard.
12. The Respondent submitted (at par 27) that, if the Applicant asserts further, and hitherto undetermined breaches of the Residential Tenancies Act that should be by way of application to the Consumer and Commercial Division of the Tribunal. There is force in that submission, which is not to suggest that anything raised by the Applicant provides a reasonable basis for her commencing such proceedings, it being sufficient to record that those are not matters which are appropriately raised in the present proceedings, either pursuant to the Applicant's original application or her 18 October 2022 amended application.
13. Under the heading "Consideration of discretionary factors", the Respondent made a number of submissions in support of its application for dismissal of the Applicant's applications pursuant to s 55 of the CAT Act. In circumstances where the Tribunal has considered the merits of the Applicant's application(s) on a final basis, there is strictly no occasion for consideration of the Respondent's s 55 application. As the Respondent conceded, the power to dismiss pursuant to s 55 must be exercised with due consideration for the consequences for the Applicant: BDK v Department of Education and Communities [2015] NSWCATAP 129.
14. Similarly, although an application under s 55 must be considered with the "guiding principle" set out in s 36 of the CAT Act in mind, and the facilitation of proceedings in a manner which is "just, quick and cheap" (Chalker v Murrays Australia Pty Ltd (2017) 272 IR 444; [2017] NSWCATAD 112), the interests of justice overarch the determination of the proceedings. Although there is force in the submissions of the Respondent (at par 31), the Tribunal has not, and has not needed to, determine the proceedings by reference to the particular and legitimate considerations there raised.
15. The Tribunal accepts that, essentially for the reasons submitted by the Respondent (at par 32), the present applications have been determined on their merits. Those parts of the application(s) which are shown to have merit will be granted, those which do not will be dismissed. Whether, and if so in what Division and in what manner the Applicant chooses to agitate, or attempt to reagitate, any matters which the Tribunal rejects in these proceedings is a matter for the Applicant and the Applicant alone.

Consideration

1. It is unclear whether the Applicant's application of 6 September 2022 was intended to supersede her original application filed on 13 July 2022. The latter application sought orders pursuant to ss 54(1), 54(5) and 26(4) of the CAT Act. The Applicant's amended application filed 18 October 2022 sought orders pursuant to ss 34(b), 34(c), 41(1), 41(2) and 66(3)(a), (b) of the CAT Act. Whether that application was intended to supersede the September application is also less than clear.
2. Although the Applicant may have abandoned her original application, and the 6 September 2022 application, in fairness to her, the Tribunal has considered the relief sought in all three applications, and the grounds on which such relief was sought.
3. The Applicant does not have standing to prosecute alleged breaches of s 71 or s 72(3) of the CAT Act. Only an "authorised person" may institute proceedings for such alleged breaches (ss 76, 77 respectively). Authorised persons include the Minister or a "person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose": CAT Act, s 75. Even if the Applicant had standing to prosecute either claim, the Tribunal does not have jurisdiction to determine an application alleging an offence with respect to s 71 of the CAT Act: CAT Act, s 76(1).
4. The Applicant has not identified, or adduced any admissible evidence of conduct of the Respondent which is capable of establishing a contempt in the face of the Tribunal, even on the civil standard of proof. Nor has the Applicant identified, or adduced any admissible evidence of conduct of the Respondent which is capable of establishing a breach of orders of the Tribunal pursuant to s 73(5) of the CAT Act, even on the civil standard of proof. The Applicant's referral application of 13 July 2022 cannot succeed.
5. The Applicant has not identified the jurisdictional basis on which the Tribunal could entertain her claim that the Respondent has perverted the course of justice. The Tribunal is not aware of such basis. In any event, the Applicant has adduced no evidence in admissible form which could support a finding in the terms alleged by the Applicant.
6. The Applicant has not identified the jurisdictional basis on which her claims for "loss or damage" could be determined by the Tribunal, and the Tribunal is not aware of any such basis. Even if the Tribunal had jurisdiction to entertain the Applicant's claim, the Applicant's failure to adduce admissible evidence capable of establishing a cause of action known to the law would mean that the claim would fail.
7. As submitted by the Respondent, the Tribunal's rejection of the Applicant's original application, which was appropriately referred to the Enforcement Division of the Tribunal, brings into question whether the Tribunal should determine the claims made by the Applicant in either of her subsequent applications. Although the Tribunal has misgivings about the appropriateness of doing so, as will be seen, the course taken by the Tribunal involves no procedural unfairness to the Respondent, which made comprehensive submissions with respect to the substance of each of the Applicant's second and third iterations of her claims.
8. In her outline of submissions of 20 November 2022 under the heading "I maintain the orders I request is subject to my general amended application filed on 18.10.22 noted hereunder", the Applicant reiterated (at par 62) that the relief she sought was pursuant to the sections of the CAT Act identified in the amended application of 18 October 2022. The Applicant further identified (at par 63) her reliance upon ss 26(4), 54(1) and 54(5) of the CAT Act. Although the amended application does not reflect it, the Applicant appears to continue to rely upon the sections of the CAT Act which were relied upon in her application of 6 September 2022.
9. The Applicant also sought (at par 64) "an order for an administrative review of the GIPA application under the GIPA Act 2009 Division 2 offences sec 116, 118, 120, Breaches under the Residential Tenancy Act 2010 and orders pressed as referred to in my affidavit of 10 May 2022". No relief in those terms is sought in the Applicant's application of 6 September 2022 or 18 October 2022. There is thus no occasion for the Tribunal to consider that complaint. Even if there were, the relief sought by the Applicant would be refused, essentially on the basis asserted in the Respondent's November submissions (at pars 22, 28).
10. As the Tribunal is determining the Applicant's application on its merits, and determining whether the evidence relied upon by her is "capable" of making out any of the breaches which she alleges, or providing an evidentiary foundation for referring any of the claims made by the Applicant which fall within the Tribunal's jurisdiction to the Supreme Court, or granting any other relief sought by the Applicant, it is strictly unnecessary to consider the submissions of the Applicant with respect to summary dismissal of her application(s) (at pars 65-68). As will be seen, in the circumstances of this case, the distinction between the two approaches involves a distinction without a difference. Implicit in the Tribunal's findings is that the Applicant's claims do not have reasonable prospects of success and could be dismissed on that basis: Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28.
11. The Applicant's submission (at par 69) with respect to whether she suffered procedural unfairness on 29 April 2022 and/or 24 July 2022 which constituted a "prejudicial area underpinning a contravention" of s 36 of the CAT Act. Section 36 of the CAT Act articulates the "guiding principle" with respect to practice and procedure in the Tribunal, which is the facilitation of the "just, cheap and quick resolution of the real issues in proceedings". Nothing asserted by the Applicant raises any issue which the Tribunal could responsibly refer to the Supreme Court, or determine for itself. If the Applicant had cause to complain about matters of the kind complained of, her remedy was by way of appeal to the Appeal Panel of the Tribunal. Although breaches of s 36 may have other implications, as its terms confirm the section provides no remedies with respect to breaches of its provisions.
12. The Applicant then posed a series of questions (at pars 70-74), the answers to which, if they were in the terms which the Applicant inferentially asserts that they should be, would not advance her present application(s). Nothing raised by the Applicant would support referring her application to the Supreme Court, or provide a basis in law or fact upon which the Tribunal grant the relief sought by the Applicant.
13. The Applicant posed (at pars 75-80) a series of questions under the heading "Did the publishing of the inaccurate, fabricated, and falsified databases affect the making of vexatious orders under the Vexatious Proceedings Act 2008 on 9.2.21 in the Supreme Court NSW?" As s 8 of the Vexatious Proceedings Act makes clear, the Tribunal has no jurisdiction to make orders pursuant to the Vexatious Proceedings Act (Just v Wu [2023] NSWCATEN 1) or to vary or set aside such orders. If the Applicant has grounds for seeking to vary or set aside the orders made against her pursuant to the Vexatious Proceedings Act on 9 February 2021, such relief could only be granted by the Supreme Court pursuant to s 9 of the Act. The Tribunal does not discern that anything raised by the Applicant in these proceedings suggests a foundation for such an application.
14. Under the heading "Conclusion", the Applicant made submissions with respect to the costs of the present proceedings. The Tribunal will make orders inviting submissions with respect to costs when the decision in this matter is published. Nothing raised by the Applicant in those submissions engaged with any of the sections upon which her 6 September 2022 or 18 October 2022 application was based.
15. The Applicant's submissions of 13 December 2022 referred (at par 25) to s 66 of the CAT Act. Section 66 relates to "disclosure to person or body other than Tribunal" of information pursuant to the Government Information (Public Access) Act. Section 66(3)(a) and (b) of the CAT Act, pursuant to which the Applicant sought orders in her amended application of 18 October 2022 provides: 66 Effect of Government Information (Public Access) Act 2009 (3) … (a) the Government Information (Public Access) Act 2009 does not prevent the disclosure of the information to the Tribunal, and (b) the Tribunal is to do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the information to the Tribunal consents to the further disclosure.
16. The Applicant made a number of submissions (at par 25ff) in support of her claim. Central to the Applicant's assertions is that the database of the Department of Family and Community Services is "potentially advocating, disseminating and storing false and inaccurate information" with respect to the Applicant (at par 27). The Applicant alleged (at par 28), without any reliable evidentiary foundation, matters which may be relevant to an application to the Tribunal pursuant to the GIPA Act, but which cannot advance the Applicant's present claim.
17. It is not clear whether, unlike the Applicant's 13 July 2022 application, the applications of 6 September 2022 and 18 October 2022 seek a referral to the Supreme Court of a contempt application against the Respondent. The terms of the applications and the grounds on which they are said to be based do not constitute applications for orders pursuant to either the GIPA Act or the Residential Tenancies Act. The Applicant's submissions in part raise matters which, if they had merit, which is not apparent on their face, would be, or have been, relevant to an appeal, or appeals against decisions of Divisions of the Tribunal pursuant to that legislation about which she complains. To the extent that the orders to which the Applicant refers may have been breached, which is not apparent from anything asserted by or relied upon by the Applicant, those would be matters which the Applicant could pursue by appropriate enforcement or ancillary applications pursuant to the provisions of the CAT Act. As the authorities to which reference has earlier been made establish, the availability of alternate remedies is relevant to the discretion to refer applications for contempt or other relief to the Supreme Court.
18. The Applicant referred (at par 39) to s 70 of the CAT Act, which prohibits "improper disclosure of information". That section was not referred to in either the Applicant's application of 6 September 2022 or her application of 18 October 2022. Even if it had been, nothing to which the Applicant has referred suggests that there has been an improper disclosure of information contrary to the provisions of s 70 of the CAT Act. Moreover, even if there has been, as s 70 provides for penalties involving "penalty units" and/or imprisonment, those proceedings could only be commenced in the Local Court by an "authorised official" in view of the terms of s 76(1) and the note to s 77(1) of the CAT Act. Pursuant to s 75 of the CAT Act, only the Minister or "a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose" may commence proceedings for an offence pursuant to s 70 of the CAT Act. The Tribunal thus could not entertain any application by the Applicant pursuant to s 70 of the CAT Act.
19. The Applicant submitted (at par 40) with respect to s 34B upon which she relied in her 18 October 2022 application that: "Applications or Appeals involving federal jurisdiction may be made to authorised court (2)(a)(b). The orders requested on grounds, a consumer law application related to mixed law and a cluster of government organisations arising from similar facts affecting different causes of actions would involve an exercise of federal jurisdiction, neither has the tribunal the power to recompense a financial sum and injunctions to be made against the first and proposed respondent".
20. Nothing to which the Applicant has referred identifies the basis upon which it is asserted that she raises, or wishes to raise, a matter "involving federal jurisdiction". Section 34B of the CAT Act is entitled "Applications or appeals involving federal jurisdiction may be made to [an] authorised court". Although nothing asserted by the Applicant identifies any appeal or application which could potentially enliven s 34B of the CAT Act (Attorney General for New South Wales v FJG [2023] NSWCA 34), the Tribunal is not an "authorised court" pursuant to s 34A of the CAT Act and thus could not grant the relief which the Applicant appears to seek. The Applicant's submissions (at par 41) with respect to s 34C of the CAT Act do not establish a basis in law or fact for granting the relief which she seeks.
21. The Applicant's submissions with respect to alleged offences under the GIPA Act (at pars 42-43) do not, for the reasons submitted by the Respondent, fall within the Tribunal's jurisdiction. The Respondent submitted (at par 22) that the Tribunal lacked jurisdiction in its enforcement jurisdiction to deal with offences pursuant to ss 116, 118 and 120 of the GIPA Act.
22. The Tribunal agrees with the submission of the Respondent that the prosecution of those offences may only be dealt with summarily by the Local Court (GIPA Act, s 128(1)), and that such proceedings can only be instituted with the authority of the Director of Public Prosecutions or the Attorney General (GIPA Act s 128(2)). The Tribunal also agrees with the submission of the Respondent that s 33 of the CAT Act does not provide an independent jurisdictional basis for applications pursuant to ss 116, 118 or 120 of the GIPA Act. The "enforcement jurisdiction" of the Tribunal created by s 33 of the CAT Act is only enlivened when relief is sought in reliance upon a specific enforcement provision of the CAT Act, or the provisions of another statute conferring such jurisdiction on the Tribunal. As is not in doubt, unless the Applicant demonstrates that any of her claims are capable of being made out, no question of an extension of time to make those claims arises.
23. The Applicant submitted (at par 45) that as a consequence of the alleged breach of s 120 of the GIPA Act, she was entitled to "full recompense from a financial perspective and furthermore, civil penalty provisions and trade practices to be affected from the exercise of the cross vesting act as noted in my amended application in the primary matter filed on 11 April 2022". The Applicant continued: "These are referral application proceedings and granting of leave is requested for an administrative review of the database in question".
24. The Applicant further submitted (at par 47) that there were "multiple evidences affecting these falsified and inaccurate databases created by the respondents in question and therefore, part 3A under CAT Act 2013 is raised for the assistance of the matters being determined in its full entirety". The Applicant added (at par 48) that she believed that the Tribunal "has before it enough evidence relevant also to the arguments to be raised in oral submissions to the transcript evidence relevant to the dishonesties of the respondent's statements made in all hearings that came before this tribunal".
25. Nothing to which the Applicant referred can advance her referral or other applications. As submitted by the Respondent with respect to alleged breaches of the Residential Tenancies Act, other than sweeping allegations, the Applicant has presented no admissible evidence in support of her various claims, quite apart from the fact that, if those complaints have substance, which the Tribunal does not suggest that they have, the Applicant has other remedies available to her. As also submitted by the Respondent, nothing to which the Applicant has referred, or any evidence relied upon by her provides a foundation in law or fact for granting the relief which she seeks.
26. The Applicant referred (at par 49) to the Civil Liability Act 2002 (NSW) and a statement from the judgment in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70. Nothing said by the High Court in that judgment to which the Applicant referred, or which the Tribunal has discovered for itself, could advance any of the current applications. The Tribunal is not invested with jurisdiction pursuant to the Civil Liability Act in any event.
27. The Applicant does not appear to have made any particular submissions with respect to the claim for relief pursuant to ss 54(1) or 54(5) of the CAT Act. The Tribunal accepts that, pursuant to s 54(1) of the CAT Act, the Tribunal "may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court". In addition to considerations of natural justice, there is no reason why the Tribunal would of its own motion refer any part of these proceedings to the Supreme Court. There is no question of law arising in the present proceedings, as opposed to questions of law which may have arisen in other proceedings in which the Applicant has been unsuccessfully engaged which would require or justify a referral to the Supreme Court. Similarly, s 54(5) which provides that the provisions of s 54(4) extend to an appeal, can have no relevance to the present proceedings. These are not appellate proceedings.
28. For the foregoing reasons, the Applicant's application of 18 October 2022, and to the extent that they remain live, her application of 13 July 2022 and 6 September 2022 will be dismissed. The Tribunal will make orders with respect to the filing of costs submissions.

Orders 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing of the applications of 13 July 2022, 6 September 2022 and 18 October 2022. 2. The applications of 13 July 2022, 6 September 2022 and 18 October 2022 are dismissed. 3. Any party seeking an order for costs file and serve written submissions not exceeding 5 pages in length within 28 days of these orders. 4. A party resisting an application for costs file and serve written submissions in opposition to such application within 56 days of these orders. 5. Any party opposing an order dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) include submissions in support of such opposition in submissions filed and served by that party pursuant to orders 3 or 4 of these orders.

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: 04 May 2023