Davis v NSW Minister for Health

Legislative scheme

1. Contained in Division 4 (Conduct of proceedings) of Part 7 (Practice and procedure) of the NCAT Act, s 55 of that Act states: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …
2. An identical provision to s 55(1)(b) of the NCAT Act was contained in the enabling legislation of one of NCAT's predecessors, the NSW Administrative Decisions Tribunal (the ADT), the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act). Section 73(5)(h) (later s 73(5)(g)(ii) in substantively the same terms) of the ADT Act stated that the Tribunal "may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance".
3. Clause 73(5)(h) of the Administrative Decisions Tribunal Bill 1997 (NSW), as assented to on 10 July 1997, stated that the Tribunal "may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious". Immediately before the commencement of the ADT Act on 6 October 1998, the text of s 73(5)(h) was amended by Sch 1.1[8] of the Courts Legislation Further Amendment Act 1997 (NSW), to insert the words "or otherwise misconceived or lacking in substance" after the word "vexatious". The Explanatory Note to the Courts Legislation Further Amendment Bill 1997 (NSW) stated that s 73(5)(h) was amended so as "to enable the Tribunal to dismiss applications that are misconceived or lacking in substance as well as proceedings that are frivolous or vexatious". The Bill does not otherwise shed light on the reason s 73(5)(h) was amended. Nor does the Second Reading Speech on the introduction into Parliament of the Courts Legislation Further Amendment Bill 1997, or any other extrinsic material.

Grounds of appeal

1. At the hearing of the appeal, we gave Ms Davis leave to amend the grounds of appeal. The amended grounds state: "(1) The Tribunal erred in the interpretation of s55(1)(b) [NCAT Act], specifically that the proceedings were lacking in substance by determining that the proceedings 'would be of no practical effect'. (2) The Tribunal erred in finding that there was no practical effect in the determination of the application. (3) The Tribunal erred in finding that there was no or insufficient utility in the determination of the application. (4) The Tribunal erred in determining that the hearing of the substantive application would be an improper use of the Tribunal's resources."

Ground 1

1. By Ground 1, Ms Davis contended that the Tribunal "erred in the interpretation of s55(1)(b) [NCAT Act], specifically that the proceedings were lacking in substance by determining that the proceedings 'would be of no practical effect'."
2. In oral submissions, Ms Davis argued that the Tribunal erred by interpreting the phrase "lacking in substance" to mean proceedings with "little" or "minimal" substance or utility. Pointing to the serious consequences for an applicant where proceedings are dismissed summarily, Ms Davis argued that the phrase "lacking in substance" must be given a narrow meaning, i.e., "devoid of any substance or utility". Ms Davis contended that had the legislature intended to give the Tribunal power to dismiss summarily proceedings found to have "little substance/utility" or "minimal substance/utility", it would have used those words.
3. In oral submissions, Ms Davis accepted that the question of whether proceedings lack "utility" or "real practical significance or effect" may be a consideration in determining whether proceedings are "lacking in substance". However, Ms Davis contended that having found the proceedings to have some, albeit minimal, substance, it was not open to the Tribunal to exercise its discretion to dismiss the proceedings summarily.
4. In addition, Ms Davis contended that it was not open to the Tribunal to exercise that discretion in circumstances where the Appeal Panel had determined that there was a "serious question to be tried or a prima facie case or cause of action" (Tcpt, 5 May 2023, p 15(18-19)).
5. The Minister contended that a finding that proceedings "would be of no practical effect" justifies the conclusion that proceedings are "lacking in substance" for the purpose of s 55(1)(b) of the NCAT Act.
6. The Minister argued that the use of the word "otherwise" in s 55(1)(b) of the NCAT Act is telling and confirms that proceedings that are "frivolous or vexatious" are a species of a broader genus of proceedings that are "misconceived or lacking in substance". There is a substantial degree of overlap between the categories of proceedings in s 55(1)(b) of the NCAT Act.
7. The Minister submitted: 1. The phrase "lacking in substance" can include the various species of abuse of process justifying summary termination of proceedings, including frivolousness or vexation, or because the proceedings are "manifestly groundless" or "so obviously untenable" that they "cannot possibly succeed": see Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129-130; [1964] HCA 69. 2. Numerous decisions support the proposition that proceedings will be frivolous and vexatious, and therefore lacking in substance, where the outcome of the proceedings lack practical effect, for example, Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366; [1995] AATA 160 (Williams); Transurban City Link Ltd v Allan (1999) 95 FCR 553; [1999] FCA 1723 (Transurban); and Fearnley v Australian Fisheries Management Authority (2006) 94 ALD 519; [2006] FCAFC 3 (Fearnley). 3. Williams, Transurban and Fearnley have been regularly cited and applied by NCAT and the ADT, for example: AVS Group Australia Pty Ltd & Tony Sleiman v Commissioner of Police, NSW Police Force (Respondent's Application) [2012] NSWADTAP 24 (AVS) at [19]-[22] (O'Connor DCJ, President); Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 at [26]­[33] (Professor Walker, Senior Member); NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 at [53], [57]-[58] (Boland ADCJ, Deputy President); Samuell v Medical Council of New South Wales [2020] NSWCATOD 149 at [44], [55]-[57] (Cole DCJ, Deputy President). 4. The lack of practical effect of a proceeding, as opposed to an academic or ideological interest which a party may have in knowing the answer to a particular question raised in the proceedings, means that the proceeding lacks utility: see Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [28] (Kassam) (Bell P, as the Chief Justice then was).
8. In written submissions filed after the hearing of the appeal, Ms Davis appeared to abandon the concession made in oral submissions that the phrase "lacking in substance" can mean proceedings which are devoid of any practical effect or utility. Instead, Ms Davis contended that the phrase could only be interpreted to mean "an untenable proposition of law and fact" (State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102 (Rabel) at 109 per Ormiston JA) or "not reasonably arguable" (Owners Corporation of Strata Plan 4521 v Zouk (2007) 69 NSWLR 61; [2007] NSWCA 23 (Zouk) at [45] per Ipp JA, Beazley and Bryson JJA agreeing). Citing Peter Evan John Morris v Crown Equipment Pty Ltd - re Termination of employment - frivolous, vexatious or lacking in substance [2009] FWA 317 at [12], Ms Davis argued that the phrase "lacking in substance" required consideration be given to the "strength of an applicant's case".
9. Ms Davis argued that the four terms referred to in s 55(1)(b) of the NCAT Act describe discrete categories of proceedings. Ms Davis rejected the submission made by the Minister that, in the context of that provision, the words "frivolous" and "vexatious" are interchangeable with the phrase "lacking in substance".
10. Ms Davis acknowledged that the amendment made to the ADT Act in 1997 to include the phrase "or otherwise misconceived or lacking in substance" was intended to broaden the scope of the Tribunal's powers to dismiss proceedings. However, Ms Davis argued that that amendment did not permit the Tribunal to dismiss proceedings which are "validly and properly brought and where the Direction the subject of the review is amenable to … review".

Consideration

1. The primary question raised by this ground is whether a finding that proceedings "would be of no practical effect" could justify a conclusion that the proceedings are "lacking in substance" for the purpose of s 55(1)(b) of the NCAT Act. One of the arguments advanced by Ms Davis in oral submissions raises a different and discrete question, namely whether the Tribunal had misapplied s 55(1)(b) of the NCAT Act by taking the phrase "lacking in substance" to mean "of limited or negligible effect and/or utility". For convenience, we address that argument in our consideration of Ground 4.
2. A review of the decisions referred to by the parties reveals that the phrase "lacking in substance" used in the context of statutory provisions which confer power to dismiss proceedings summarily, has been given several meanings. For example, that phrase has been held to mean: 1. "an untenable proposition of law or fact": Rabel at 109 (Ormiston JA) in relation to s 44C of the Equal Opportunity Act 1984 (Vic); 2. "complaints that are obviously hopeless or obviously undeserving of relief": Rabel at 104 (Tadgell JA); 3. "a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim": GVR v Department of Health, Housing and Community Services (Human Rights and Equal Opportunity Commission, Wilson P, 23 August 1993, unrep) in relation to the Racial Discrimination Act 1975 (Cth), cited with approval by Von Doussa J in Nagasinghe v Worthington (1994) 53 FCR 175 at 178; [1994] FCA 766; 4. "proceedings in respect of which it is readily apparent that they are hopeless and bound to fail": Chopra v Department of Education and Training (2019) 60 VR 505; [2019] VSCA 298 at [134] (Tate, Whelan and Kyrou JJA) in relation to the Civil and Administrative Tribunal Act 1998 (Vic), s 75(1)(a); 5. a claim that is "not reasonably arguable": Zouk at [45] (Ipp JA, Beazley and Bryson JJA agreeing) in relation to the Strata Schemes Management Act 1996 (NSW), s 185(4).
3. Before addressing whether a finding that proceedings would have no practical effect may justify a conclusion that the proceedings are "lacking in substance" for the purpose of s 55(1)(b) of the NCAT Act, we consider the decisions of Williams, Transurban, Fearnley and BDK v Department of Education and Communities [2015] NSWCATAP 129 (BDK).

Williams, Transurban and Fearnley

1. Williams, Transurban and Fearnley concerned decisions made under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which empowered the AAT to dismiss proceedings summarily. In contrast to s 55(1)(b) of the NCAT Act, s 42B of the AAT Act only permitted the Tribunal to exercise the power to dismiss proceedings on the ground that the proceedings were "frivolous or vexatious".
2. Williams concerned a decision made by the Australian Electoral Commission (AEC) to substitute the name of Mr Harries for Mr Bingham as the registered officer of the political party, the Greens, in the register the AEC was required to keep by the Commonwealth Electoral Act 1918 (Cth). When that decision was made, the AEC and the Greens had incorrectly assumed that the Greens was not a "parliamentary party" for the purpose of the Commonwealth Electoral Act. Different rules governed applications to change entries in the register depending on whether a political party was, or was not, a parliamentary party.
3. Subsequently, Mr Bingham resigned as the registered officer of the Greens and the Greens made a fresh application to the AEC nominating Mr Chris Harries as its registered officer. No challenge was made to the validity of Mr Harries' appointment or the AEC's decision to enter his name in the register.
4. Mr Williams, a member of the Greens (WA), applied to the AAT for review of the AEC's decision to enter Mr Bingham's name in the register, contending that that decision was invalid because the initiating application did not comply with the rules governing applications to change the register made by parliamentary parties.
5. Noting that the AEC now acknowledged that when it entered Mr Bingham's name in the register it "proceeded on a wrong view as to the formalities" required under the Commonwealth Electoral Act, the AAT (Mathews J, President, Beaumont and Hill JJ) said that Mr Williams has "at least an arguable basis for successfully challenging the decision which is sought to be reviewed": at [31].
6. The AAT noted that in the 13 months Mr Bingham's name was entered in the register, no election was called and therefore Mr Bingham was not called upon to perform his sole function under the Commonwealth Electoral Act, that is, to nominate the Greens' election candidates. The AAT concluded at [39] that, whether the applicant was successful or otherwise, the outcome of the proceedings "will be devoid of any practical effect". The AAT dismissed the proceedings on the ground that they were vexatious and said at [39] "while the proceedings were not instituted vexatiously, they have become vexatious."
7. In Transurban, the applicant applied for review of a decision made by the Development Allowance Authority (the Authority) to issue a certificate which entitled Transurban to receive concessional taxation treatment for money borrowed to fund an extension to the Tullamarine freeway. When he applied to the AAT for review of the Authority's decision, the applicant lived about 200 metres from the (then) proposed extension. By the time the matter came before the AAT, the applicant was no longer living near the freeway and the extension had been completed. The AAT determined that the applicant was not a "person affected" by the decision of the Authority to grant the certificate to Transurban. The Federal Court set aside the AAT's decision and ordered that the matter be remitted to the AAT. On appeal, the Full Court of the Federal Court (Black CJ, Hill, Sundberg, Marshall and Kenny JJ) set aside the decision of the Federal Court and upheld the decision of the AAT to dismiss the proceedings.
8. At [69], after referring to Williams, the Full Court said that it was not determinative whether the applicant was a "person affected" at the time he made his application for review: "[W]hether standing is conclusively determined at the time of review but the application becomes vexatious if circumstances change, or whether standing may be reconsidered if circumstances change, the result is the same. The proceedings will be dismissed. In the present case had we been of the view that Mr Allan did have standing at the time of instituting the application to the Tribunal for review, we would have been of the view that, had circumstances changed to take away from him the interest in the proceedings he had at the time of application, his application should be dismissed."
9. In Fearnley, Mr Fearnley applied to the AAT for review of the quota of shark allocated to him by the Australian Fisheries Management Authority for the 2001 fishing season. When the AAT considered Mr Fearnley's application, Mr Fearnley had sold the quota allocated to him by the Authority and transferred to the purchasers the fishing permits attached to that quota. The AAT dismissed those proceedings on the ground that they were "frivolous and vexatious", reasoning that they "will lead to no practical outcome for Mr Fearnley", and therefore his application was "futile and so [it] must be regarded as frivolous and vexatious to continue it": Re Fearnley and Australian Fisheries Management Authority (2005) 87 ALD 159; [2005] AATA 147 at [64]. Applying Williams and Transurban, the Full Court of the Federal Court dismissed Mr Fearnley's appeal from the AAT's decision: Fearnley at [16]-[20] (Finn and Sundberg JJ), [97] (Emmett J).

BDK

1. In BDK, the Appeal Panel (O'Connor ADCJ, Deputy President and Emeritus Professor Chesterman, Principal Member) considered the operation of s 55(1)(b) of the NCAT Act. At [63], the Appeal Panel noted that many decisions of NCAT and the ADT had adopted the meaning of the phrase "lacking in substance" given by Ormiston JA in Rabel at [14] - an "untenable proposition of fact or law".
2. The Appeal Panel went on to refer to the frequently cited explanation of the term "vexatious" given by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491. At [64]-[65], referring to the third category of vexatious proceedings identified by Roden J - "[proceedings where] irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless" - the Appeal Panel said that that category "embraces the kind of cases to which the expressions 'misconceived' and 'lacking in substance' are directed".
3. At [66], the Appeal Panel said: "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."
4. In Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232 at [45], McCallum JA agreed with the analysis of the Appeal Panel in BDK at [66], that s 55(1) of the NCAT Act confers on NCAT "a broad power to deal with abuses of its processes".

Conclusion

1. Most of the ADT and NCAT decisions referred to by the parties in the appeal adopted the meaning of the phrase "lacking in substance" that Ms Davis contended is correct: "not reasonably arguable" or "based on an untenable proposition of fact or law".
2. Of the many decisions of the ADT and NCAT to which we have been referred by the Minister, only two, NG v Chinese Medicine Board of Australia and Samuell v Medical Council of New South Wales, used the phrase "lacking in substance" in the sense used by the Tribunal in Davis 2, that is, proceedings which would be of "no practical effect".
3. While many ADT and NCAT decisions have cited Williams, Transurban and/or Fearnley, we reject the suggestion made by the Minister that those decisions are authority for the proposition that for the purpose of s 55(1)(b) of the NCAT Act the terms "vexatious" and "lacking in substance" are interchangeable.
4. Undoubtedly, some proceedings could properly be described as being both vexatious and lacking in substance. However, that does not resolve the issue raised by Ground 1. As Ms Davis points out, the Tribunal did not find that the proceedings were vexatious or treat the word "vexatious" as being synonymous with the phrase "lacking in substance".
5. In Zouk at [41], Ipp JA explained (Beazley and Bryson JJA agreeing) that when considering the meaning of the phrase "lacking in substance", it is necessary to construe that phrase in the particular statute in which it appears. Authorities which have considered the meaning of that phrase in other statutory contexts are of limited assistance. The phrase "lacking in substance" must be construed in the context of the NCAT Act, not other legislation.
6. In addition, given the breadth of NCAT's jurisdiction, the type of proceedings that are the subject of the dismissal application may be relevant in considering the meaning of the phrase "lacking in substance". Different considerations may apply depending on whether the proceedings are in the exercise of NCAT's general, administrative review, appeal or enforcement jurisdiction: see s 28(2) of the NCAT Act. A finding that the initiating claim or application is "not reasonably arguable" or "based on an untenable proposition of fact or law", could potentially justify a finding that proceedings in the exercise of the NCAT's general jurisdiction are "lacking in substance". For example, an application brought under the Anti-Discrimination Act 1977 (NSW) (which falls within NCAT's general jurisdiction) alleging that the applicant was subjected to a form of discrimination not made unlawful by that Act, potentially could be said to be "not reasonably arguable" or "based on an untenable proposition of law".
7. However, in NCAT's administrative review jurisdiction, considerations of whether the initiating application is "not reasonably arguable" or "based on an untenable proposition of fact or law" generally do not arise. Provided the applicant is an "interested person", the subject decision is an "administratively reviewable decision" and any procedural requirements are met (e.g., making the application within the time prescribed by the relevant legislation: ADR Act, s 55(2)), the ADR Act entitles the applicant to apply to NCAT and seek administrative review of that decision. The applicant is not required to point to material which, if accepted, might support a finding that their challenge to an administratively reviewable decision is based on a "tenable proposition of fact or law" or is "reasonably arguable". The merit of the subject decision is irrelevant to whether an affected person is entitled to commence and to continue proceedings in NCAT's administrative review jurisdiction.
8. We agree with the view expressed by the Appeal Panel in BDK that a "reasonably broad connotation" should be given to the meaning of each of the four categories of proceedings listed in s 55(1)(b) of the NCAT Act. Ms Davis is correct that the phrase "lacking in substance" can mean proceedings where it is found that the initiating claim or application is based on an "untenable proposition of fact or law" or "is not reasonably arguable". However, there is nothing in the text, context or purpose of s 55(1)(b) of the NCAT Act to suggest that these are the only findings which might justify the conclusion that the proceedings are lacking in substance. A range of findings could potentially justify a conclusion that proceedings are "lacking in substance", including that the proceedings "would be of no practical effect", or that the initiating application was based on an "untenable proposition of fact or law" or was "not reasonably arguable". Equally, a range of findings could potentially justify a conclusion that proceedings are "vexatious", "frivolous" or "misconceived" (see, e.g., the analysis of Roden J about the term vexatious in Attorney-General v Wentworth at 491).
9. Section 55(1)(b) of the NCAT Act empowers the Tribunal to govern its own processes, to ensure that its processes are not abused and to ensure that its resources are applied to resolving real, not confected, amorphous or nebulous disputes. The Tribunal arguably could have dismissed the Application on the basis that, while not initially, it had become vexatious (although not intended to be) or misconceived because any "success" achieved by Ms Davis could have had no practical effect due to the passage of time and the expiration of the Public Health orders. Proceedings, such as this one, which beg the question "So what?", in essence lack legal substance and therefore have "no practical effect".
10. This ground has insufficient prospects of success to warrant a grant of leave.

Grounds 2 and 3

1. Ms Davis contended that the Tribunal erred in finding: 1. that there was no practical effect in the determination of the Application, and 2. that there was no or insufficient utility in the determination of the Application.
2. Ms Davis argued that while the utility of the proceedings was reduced because the Public Health orders were no longer in operation, a serious issue remained to be determined. It remained of significant public importance whether the Vaccination Direction, which deprived Ms Davis and other health workers of the right to practise their chosen profession, was properly made. The significance of that direction was not reduced because it was in operation for a short period.
3. Ms Davis pointed out that the delay in the Tribunal reviewing the Vaccination Direction was caused by the Minister's unsuccessful challenge to the Tribunal's power to undertake that review. Had that challenge not been made, the review by NCAT could have been undertaken while the Public Health orders were still on foot.
4. The Minister contended that Ms Davis had failed to explain the basis for the contention that the Tribunal erred by finding that the proceedings lack utility or would have no practical effect. At best, the proceedings might partially vindicate some part of Ms Davis' personal ideological position. The authorities make clear that seeking to prove a point is not a basis that justifies continuing a proceeding found to have no practical effect.

Davis 2

1. Before considering the submissions made by the parties, it is useful to outline the reasons given by the Tribunal for finding that the proceedings are lacking in substance.
2. The Tribunal commenced its consideration of the Minister's application to summarily dismiss the proceedings by considering the decisions of the ADT in Ybasco v Director General, Department of Transport [1999] NSWADT 28 (Ybasco) and AVS. At [20], the Tribunal quoted from AVS at [22] the following statement of principles: "(i) The mere fact that the entitlement, licence or authority that was the subject of the reviewable decision has ceased to be operative by effluxion of time does not, of itself, mean that a review tribunal is no longer competent to deal with the review application. (ii) The reviewable decision may still be reviewed with a view to deciding whether it was the correct and preferable decision in the circumstances.... (iii) The question of what order may be appropriate to give effect to the Tribunal's decision in the circumstances where the underlying entitlement has ceased to be operative is a separate matter. If the Tribunal is of the view that the administrator did not make the correct and preferable decision in the circumstances, it could, for example, make an order setting aside the decision. ... (iv) A proceeding may lose the character of a live dispute as it progresses through the tiers of the dispute resolution system. There may be no utility in the system continuing to deal with the dispute, for example because any order would have no practical effect or the review applicant no longer has a legitimate interest in the outcome of the application. (v) Care should be taken once proceedings have been properly commenced not to address these questions by reference to standing requirements expressed as preconditions to commencement."
3. At [23], the Tribunal noted that none of the Public Health orders Ms Davis wished to challenge were in operation. At [24], the Tribunal rejected the Minister's submission that "because the orders are no longer operative, the only proper exercise of the discretion would be for the Tribunal to dismiss the matter". Citing Ybasco and AVS, the Tribunal said there may be a continuing interest in the question of whether the Vaccination Direction was the correct and preferable decision or whether that direction may "have collateral implications for Ms Davis".
4. The Tribunal went on to consider the submission made by Ms Davis that the proceedings would have a practical effect because they would impact on her employment and reputation and, in addition, raised issues of "public importance".
5. At [27]-[32], the Tribunal considered whether the Vaccination Direction had an impact upon Ms Davis' employment and resulted in the termination of her employment. The Tribunal referred to the Determination and at [28], observed that the Determination was separate to and did not rely on any of the Public Health orders Ms Davis sought to challenge.
6. At [31], the Tribunal observed that the stated reason given by Ms Davis' employer for terminating her employment was her failure to comply with the Vaccination Direction, and, in the alternative, her failure to comply with the Determination.
7. At [32], the Tribunal observed that it did not have the power to order the reinstatement of Ms Davis' employment. The Tribunal said that any decision it made would not impact on the alternative ground given by the NNSWLHD for terminating Ms Davis' employment, namely her failure to comply with the Determination. The Tribunal noted that it had not been suggested that the Determination had been or could be challenged.
8. At [33]-[36], the Tribunal considered Ms Davis' submission that the proceedings would serve to "correct the record" and "vindicate" her reputation. The Tribunal rejected that argument pointing out that as Ms Davis was not vaccinated, there "is no record to correct": at [36]. The Tribunal referred to Ybasco where the licence of the applicant taxi-driver was temporarily suspended on the ground that he was subject to criminal charges (which were subsequently withdrawn). In contrast to Ybasco where the Tribunal found that the applicant might suffer reputational damage if the decision to suspend his license was not corrected, the Vaccination Direction had no "collateral implications" for Ms Davis' reputation.
9. At [37]-[49], the Tribunal considered Ms Davis' submission that the proceedings "raise matters of public importance" and therefore there is "utility in the proceedings continuing".
10. At [38], the Tribunal rejected the Minister's submission that the issues of public importance identified by Ms Davis had no "practical effect as between the parties" and therefore did not require consideration. The Tribunal said that the fact that the application may raise issues of public importance may "be a discretionary factor to be considered in determining whether to dismiss the application".
11. Referring to the statement in Davis AP at [39], that "... the proper construction of s 7(7) [of the Public Health Act] is nonetheless a question of public importance given the ongoing nature of the COVID-19 pandemic and the continued operation of other public health orders …", the Tribunal said it was not satisfied that "the outcome of these proceedings has a public importance in the same way as was referred to by the Appeal Panel": Davis 2 at [40]. The Tribunal noted that the sole question considered by the Appeal Panel was "whether NCAT has authority to determine an application for administrative review of the impugned directions and not the merit of those directions".
12. The Tribunal went on (at [43]) to refer to the decision of Kassam, in which the Court of Appeal considered the question of whether to grant leave to appeal from Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, a decision of Beech-Jones CJ at CL about the validity of public health orders: "27. Leave to appeal will also be refused where its grant would lack utility. Not only is this consideration sound as a matter of common sense, but to grant leave in a case where there would be no utility in doing so scarcely facilitates "the just, quick and cheap resolution of the real issues in the proceedings" cf. Civil Procedure Act 2005 (NSW) s 56. Moreover, scarce judicial resources should not be deployed in resolving proceedings whose utility is either wholly lacking or extremely limited. 28. Utility is, moreover, not to be measured by the interest that may lie in the particular answer of a court of a particular status on a question or questions in circumstances where any answer it gives will have no practical effect as between the parties, or at all. It is not the role of this Court to give advisory opinions on what may have become hypothetical questions." (Citations omitted)
13. Applying that analysis, at [45], the Tribunal said that it is "no part of the role of this Tribunal to give advisory opinions on issues which have become hypothetical questions or to use resources resolving proceedings the utility of which is either wholly lacking or extremely limited". The Tribunal reasoned that that would be an improper use of the NCAT's limited resources.
14. At [47], the Tribunal said that "even if the public health orders were set aside, [that] would have no direct effect on how a relevant authority, including a Minister, might make public orders in the future."
15. The Tribunal found that "there would be no practical effect in the review proceeding" and concluded that the proceeding was "lacking in substance": at [50], [52]. At [51], the Tribunal commented that the proceedings "would consume and divert NCAT's resources … that would be disproportionate to the minimal or negligible utility of the orders sought".

Consideration

1. Ms Davis has failed to articulate the basis for the assertion that the challenged findings - that the proceedings would be of no practical effect and would lack utility - disclose legal error. At best, the arguments advanced by Ms Davis are an expression of disagreement with those findings.
2. Each finding was reasonably open to the Tribunal on the available material. The reasons given for each finding were adequate. Further, as the Minister points out, the reasons given by the Tribunal for finding that whatever the outcome of the proceedings, it would have no practical effect on Ms Davis' employment, is entirely consistent with the reasoning adopted by the Court of Appeal (Brereton JA, Mitchelmore JA agreeing) in Larter v Hazzard [2022] NSWCA 238 at [50].
3. Grounds 2 and 3 have insufficient prospects of success to warrant a grant of leave.

Ground 4

1. By Ground 4, Ms Davis contended that the Tribunal "erred in determining that the hearing of the substantive application would be an improper use of the Tribunal's resources".
2. Ms Davis contended that, in deciding whether to dismiss the proceedings under s 55(1)(b) of the NCAT Act, the Tribunal impermissibly took into account the cost to NCAT in terms of the time and resources likely to be consumed to determine the Application on its merits. Ms Davis contended that the Tribunal undertook a cost-benefit analysis by: 1. assessing the degree of substance of the proceedings and finding the proceedings to have "minimal" or "negligible" substance or utility; 2. assessing the cost to NCAT, in terms of time and resources, of determining the merits of the Application; 3. weighing up the degree of substance of the proceedings as against the cost to NCAT; and 4. concluding that the small degree of substance of the proceedings was outweighed by the cost impost on NCAT.
3. Ms Davis contended that, unpalatable as it might be to NCAT to expend time and resources on an application found to have little or minimal substance, s 55(1)(b) of the NCAT Act did not permit NCAT to dismiss proceedings for that reason.
4. In addition, Ms Davis contended that, despite identifying the test to be applied as whether the proceedings "would have no practical effect" or "lack utility", the findings made by the Tribunal at [52] demonstrate that the Tribunal applied a less onerous test, namely whether the proceedings had some or minimal utility. Pointing to the serious consequences for an applicant where proceedings are dismissed summarily, Ms Davis argued that the phrase "lacking in substance" must be given a narrow meaning, namely proceedings devoid of any substance or utility. Ms Davis contended that if the legislature had intended to give the Tribunal power to dismiss summarily proceedings found to have "little substance/utility" or "minimal substance/utility", it would have used those words.

The misapplication point

1. The Tribunal described the findings on which it reached its ultimate conclusion that the proceedings would be lacking in substance in several ways. For example, the Tribunal said: 1. that "determination of this review application would have no practical effect concerning the termination of Ms Davis' employment": at [28] (emphasis added); 2. that "setting aside or variation of the directions … would have no practical effect on the challenge to the termination of her employment": at [32] (emphasis added); 3. that "if the public health orders were set aside … would have no direct effect on how a relevant authority, including a Minister, might make public orders in the future": at [47] (emphasis added); 4. that "it is no part of the role of this Tribunal to give advisory opinions on issues which have become hypothetical questions or to use resources resolving proceedings the utility of which is either wholly lacking or extremely limited": at [45] (emphasis added); 5. "the proceedings would consume and divert NCAT's resources … and that would be disproportionate to the minimal or negligible utility of the orders sought": at [51] (emphasis added).
2. For current purposes, it is unnecessary to decide whether to justify a conclusion that proceedings are lacking in substance on the ground of the lack of effect, or utility of those proceedings, the subject proceedings must, as Ms Davis contended, be found to devoid of any substance or any utility.
3. But in any event, a fair reading of Davis 2 reveals that despite the use of the expressions "extremely limited" (at [45]) and "minimal or negligible" utility (at [51]), the Tribunal in fact found the proceedings would be of no practical effect or utility.
4. The statement made by the Tribunal at [45] in Davis 2 - "the utility of which is either wholly lacking or extremely limited" - is a direct quote taken from the judgment of Bell P in Kassam at [27] (reproduced at [71] above) and made by the Tribunal in the context of considering whether it was appropriate for the Tribunal to provide "advisory opinions about hypothetical questions". Read fairly, that statement could not be said to indicate that the Tribunal found the proceedings had some limited utility. Further, the statement made by the Tribunal at [51] - "the minimal or negligible utility of the orders sought" - must be read in the context of the findings made by the Tribunal that the proceedings would have no effect on Ms Davis' employment or reputation, together with the conclusion that it is not the role of the Tribunal to give "advisory opinions on issues which have become hypothetical questions".

The impermissible consideration point

1. Exercising the power to dismiss proceedings under s 55(1)(b) of the NCAT Act required the Tribunal to undertake a two-step process: 1. to decide whether the subject proceedings are "frivolous or vexatious or otherwise misconceived or lacking in substance", and 2. if the answer to that question is yes, to decide whether to exercise the discretion to dismiss those proceedings.
2. Ground 4 rests on the mistaken premise that, in deciding whether the proceedings were lacking in substance, the Tribunal conflated these two steps. While not put in these terms, it is apparent that the Tribunal accepted that a finding that the proceedings were lacking in substance was not determinative of whether the discretion to dismiss the proceeding should be exercised: see for example, Davis 2 at [24], [38].
3. At [38], the Tribunal rejected the Minister's submission that it was not obliged to consider the issues of public importance raised by Ms Davis as they had "no practical effect as between the parties". The Tribunal said those issues "may still be a discretionary factor to be considered in determining whether to dismiss the application."
4. After concluding that the proceedings were lacking in substance, the Tribunal went on to consider the factors identified by the parties as being relevant to the exercise of the discretion to dismiss the proceedings. The Tribunal rejected Ms Davis' argument that the public interest weighed against the exercise of that discretion. Rather, the Tribunal concluded that the consumption and diversion of NCAT's resources weighed in favour of exercising that discretion. In the exercise of the discretion to dismiss the proceedings, it was not only open to the Tribunal to consider whether permitting the proceedings to continue facilitated "the just, quick and cheap resolution of the real issues in the proceedings", it was obliged by s 36(2) of the NCAT Act to do so.
5. The contention that the Tribunal conflated the question of whether the proceedings were lacking in substance with the exercise of the discretion to dismiss the proceedings is rejected.
6. This ground has insufficient prospects of success to warrant a grant of leave.

Orders 1. Leave is given to the appellant to amend the grounds of appeal. 2. Leave to appeal is refused.

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: 28 July 2023