DQF v Legal Aid Commission of New South Wales

The history of the proceedings

1. Ms Tram Nguyen, the solicitor representing the respondent, has deposed two affidavits in support of the application dated 9 October 2020 and 23 December 2020.
2. The following history of the matter is drawn from the affidavits of Ms Nguyen and material on the Tribunal file. In the absence of any evidence, submissions or objections to the respondent's evidence from DQF regarding these matters I accept Ms Nguyen's account as accurate unless noted otherwise in these reasons.
3. In 2019 DQF was charged with drug related offences. On 28 June 2019 a private legal practitioner acting as a duty solicitor for the LAC, appeared for DQF at a bail hearing and completed an application for legal aid on DQF's behalf. The application contained a privacy notice relating to the use of DQF's personal information by the LAC.
4. On 6 December 2019, DQF lodged an application for internal review pursuant to s 53 of the PPIPA complaining about certain conduct by the LAC in the handling of his legal representation.
5. The application did not specify how each instance of the conduct described was said to have breached the PPIPA. The LAC interpreted the complaint as relating to alleged breaches of s10, 12, 16 and 18 of the PPIPA.
6. The alleged conduct, the relevant provisions of the PPIPA and the findings of the LAC on its internal review were: 1. The LAC Grants Division used information received from his assigned solicitors in the termination of his grant without checking the accuracy of the information (s 16 PPIPA) LAC determined there was evidence to indicate that the Division did check the accuracy of the information before use. 1. The Grants Division requesting updates from the assigned solicitors in the development of the matter (s 18 PPIPA) LAC determined the sharing of information between his solicitor and the Grants Division was directly related to the grant of legal aid and therefore permitted under s 18(a) and (b) of the PPIPA. 1. His personal information was disposed of before the records were no longer needed (s 12(a) PPIPA) LAC determined here was insufficient evidence to find that s 12(\a) was breached by a LAC solicitor rather than a private legal practitioner. Private legal practitioners are not covered by the PPIPA. 1. A private solicitor caused his brief of evidence to go astray (s 12(c) PPIPA) The LAC determined that the PPIPA does not apply to private practitioners and there was no evidence to suggest that the conduct of the LAC caused the brief to go astray. 1. Solicitors departed from privacy principles when engaging in charge negotiations (s16 PPIPA) The LAC determined that disclosure of personal information did occur but it was directly related to the purpose for which the information was collected (legal representation in criminal proceedings) and therefore authorised by the PPIPA. 1. He was not made aware of the intended recipients of his personal information (s10 PPIPA) The LAC determined that there was insufficient evidence to determine that his information was received by anyone other those reasonably expected to be involved in his criminal law matter. In addition the LAC was exempted from compliance with s 10 or 18 under s 25 of the PPIPA.
7. DQF lodged an application for administrative review of the LAC's conduct on 18 February 2020 on the basis that the LAC had not made its decision within 60 days.
8. On 17 March 2020, at the first case conference, DQF was directed to file an amended application for internal review by 21 April 2020 as he had been provided with the findings of the internal review.
9. DQF did not file the amended application as directed.
10. On 28 April 2020 at the second case conference, DQF stated that he had filed the amended application that day but not yet served it. He was directed to serve it by close of business that day.
11. Directions were also made for DQF to give the Tribunal and the LAC a document setting out the remedies he sought by 11 May 2020 with any supporting material.
12. The LAC was directed to give the Tribunal and DQF its written submissions in response to his amended application and the remedies document.
13. DQF's amended application sought to make additional privacy complaints concerning alleged breaches of s 10 and s 12 of the PPIPA which were not part of the original complaint.
14. The applicant did not file and serve his remedies document until 18 May 2020. No supporting material was filed.
15. At the third case conference on 2 June 2020 he was directed to give to the Tribunal and parties his evidence and a summary of legal arguments about the alleged conduct and about any financial psychological or physical harm suffered because of the alleged conduct by 15 July 2020.
16. The LAC was directed to file its evidence by 6 August 2020. DQF was directed to file all evidence and any submissions in reply by 19 August 2020. The parties were to exchange lists of witnesses required for cross examination by 19 August 2020 and the proceeding was listed for hearing on 28 August 2020. Leave was granted to DQF to apply to the Registrar on or before 5 June for the issue of summonses.
17. DQF did not file and serve his evidence and summary of legal arguments on 15 July as directed. On 17 July in response to a querying email from the LAC's solicitor, DQF responded : "I was unable to comply with the Tribunal orders due to illness. On April 2020, a routine blood test showed irregular thyroid hormones, which led to discover a large tumour in my thyroid. The medication currently prescribed for my condition causes severe drowsiness, fatigue and poor concentration, all of which have affected my ability to file and serve the material on time."
18. On 30 July 2020 DQF applied for the hearing to be adjourned. The parties could not agree on a variation to the existing timetable and the matter was listed for directions on 4 August 2020.
19. Ms Nguyen deposes that the Senior Member informed DQF that he was on notice that the proceedings could be summarily dismissed for want of prosecution.
20. The Senior Member vacated the hearing date and varied the timetable. DQF was again directed to give to the Tribunal and parties his evidence and a summary of legal arguments about the alleged conduct and about any financial psychological or physical harm suffered because of the alleged conduct by 11 September 2020.
21. The LAC was directed to file its evidence by 9 October 2020. DQF was directed to file all evidence and any submissions in reply by 23 October 2020. The parties were to exchange lists of witnesses required for cross examination by 23 October 2020 and the proceeding was listed for hearing on 30 October 2020.
22. Subsequently the respondent requested the applicant to provide it with a copy of his adjournment application of 30 July, which had not been served.
23. DQF maintained that he had posted it, however LAC did not receive it and applied to the Tribunal on 20 August 2020 to inspect the file. In response, DQF sought an order under s 64(1)(d) of the CAT Act prohibiting the disclosure to the respondent of the contents of the annexures to his adjournment application.
24. Those orders were granted by the Tribunal in chambers on 31 August 2020.
25. The applicant did not comply with the direction to file his material on 11 September 2020. Having received no response to its correspondence the respondent asked for the matter to be listed for directions.
26. The directions hearing took place on 29 September 2020. The LAC advised that it would be seeking an order for summary dismissal. The listing of 30 October 2020 was confirmed to hear and determine any such application for summary dismissal or other interlocutory issues. The LAC was to file and serve its application for summary dismissal by 9 October 2020.
27. DQF was directed to file and serve any application for adjournment of the hearing by 2 October 2020 with reasons for non-compliance with the orders made on 2 June and 4 August 2020. DQF filed his adjournment application but also applied for another order under s 64(1)(d) of the CAT Act in respect of the annexures to this second application, the effect being that the respondent did not receive a copy of those annexures. He also applied for the timetable to be varied.
28. On 8 October Montgomery SM stayed the orders of 29 September 2020, vacated the hearing on 30 October of the dismissal application and listed the matter for hearing on 30 October for determining the application for a variation of the timetable and the orders sought under s 64 as well as to set a new date for the hearing of the summary dismissal application.
29. On 30 October 2020 the matter came before me. On the day of the hearing DQF again applied for the hearing to be adjourned. I refused this application. I made an order prohibiting the publication of the medical information in Annexures 2 and 3 to the adjournment application to any person other than the respondent pursuant to s 64(1)(c) of the CAT Act.
30. I also made the following directions: 1. DQF is to give to the Tribunal and all other parties his response to the application for summary dismissal, including any evidence or submissions on or before 14 December 2020. 2. The Legal Aid Commission is to give the Tribunal and all other parties any material in reply on or before 23 December 2020.
31. I also directed that the parties were to provide short submissions in writing to each other by 10 November 2020 and the Tribunal as to whether a hearing could be dispensed with of the summary dismissal application.
32. By letter received by the Tribunal on 11 November, the applicant consented to the matter being determined on the papers.
33. This letter did not come to my attention before I made an order dispensing with a hearing on 13 November 2020. The applicant sought written reasons as to why his adjournment application was refused. My reasons were provided on 8 December 2020.
34. Ms Nguyen sent an email to DQF on 15 December 2020 querying his non-compliance with direction (1) above. Her second affidavit dated 23 December 2020 stated no reply has been received from DQF to that email.

Whether the proceedings are vexatious, misconceived or otherwise lacking in substance

1. The LAC submits that the proceedings are vexatious on the following grounds. 1. The applicant has filed two other administrative review applications against the respondent under the Government Information Public Access Act 2009 (file numbers 2020/136769 (since withdrawn) and 2020/16944) arising from the same facts. 2. The present proceedings are brought for the collateral purpose of questioning the respondent's termination of his legal aid grant and the refusal of some of the legal practitioners to act on his instructions on professional and ethical grounds.
2. The LAC also submits that they are misconceived and lacking in substance because: 1. Some of his complaints are about private legal practitioners who are not "public sector agencies" under the PPIPA and therefore their conduct is not reviewable 2. Some of the conduct complained of in his amended application was not part of his original complaint and therefore cannot be reviewed 3. The respondent has a defence to any conduct attributed to it, including under 1. Non compliance by the LAC with s 10 and s 18 is exempted by s 25(b). 2. S 30(2) of the LAC Act 3. S 38A of the LAC Act 4. S 12(a) and (b) of the PPIPA 5. Lack of evidence as to the conduct alleged.

Whether there has been want of prosecution

1. The respondent submits that the relevant factors to be considered by the Tribunal are those in Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 at [27-34] citing the principles summarised by the Supreme Court of New South Wales in Hoser v Hartcher [1999] NSWSC 527. In that case, Simpson J listed a number of principles at [19] and following of which the following are relevant: 19. It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive: (1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited, unreported, 19 November 1995, per Sperling J; (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D; (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J; (4.) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage…; … (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise; (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; … … (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P; (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.
2. This decision was made before the introduction of the Civil Procedure Act 2005 of which s 56 requires a court to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". Section 36(1) of the CAT Act similarly provides that the guiding principle for the Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
3. Subsequently, in State of New South Wales v Plaintiff A [2012] NSWCA 248, Basten JA said at [17]-[18]: "17. Although there is authority for the proposition that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits absent intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible - see Birkett v James [1978] AC 297 at 318 - the stringency of that principle has been diminished by the enactment of ss 56-60 of the Civil Procedure Act."
4. There has been a want of prosecution, the respondent submits, evidenced by the applicant's delay, tardiness, insufficient explanations for the delay, and the current state of the proceedings which although commenced on 10 February and amended on 28 April 2020, have not reached a point where any evidence or legal argument on the substantive issues has been filed by the applicant .
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. [NOT FOR PUBLICATION]

Consideration

1. The Tribunal may dismiss proceedings if it considers that the proceedings are misconceived or lacking in substance (s 55(1)(b)). In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) noted: "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 …"
2. On the available material it is possible to determine that some aspects of the applicant's case are misconceived. The Tribunal does not have jurisdiction to review conduct that was not the subject of the internal review application: see Department of Education & Training v GA (No. 3) [2004] NSWADTAP 50 at [7] and ZR v Department of Education and Training [2010] NSWADTAP 75 at [17].
3. In so far as the amended application expands the complaint beyond the original complaint where no leave to amend has been granted or the respondent has not consented to an expansion of the complaint, that is misconceived.
4. I agree with the respondent that private legal practitioners do not come within the definition of "public sector agency" in the PPIPA and therefore the parts of the application which relate to their conduct are also misconceived.
5. I have not considered the arguments which the respondent puts in its defence as this would require a full examination of the merits of the case. The other matters on their own might justify a dismissal of portions of the complaint.
6. As to whether the applicant has a collateral purpose, as explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491: " Proceedings 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."
7. In Williams v Spautz [1992] HCA 34; 174 CLR 509 the majority of the High Court (Mason CJ, Dawson, Toohey and McHugh JJ) held that an abuse of process will be present when: "…the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed … or some collateral advantage beyond what the law offers"'. [36]
8. In my view there is insufficient evidence before the Tribunal to show that the applicant's predominant purpose is to use the legal process in this way.
9. As to want of prosecution, the following factors are relevant: 1. It is clear that the applicant has failed on numerous occasions to comply with directions and orders of the Tribunal. Most significantly, he failed to comply with orders made on 2 June and 11 September 2020 to file and serve a summary of his legal arguments and of any financial psychological or physical harm suffered because of the alleged conduct; he also failed to file and serve any response to the application for summary dismissal served on him on 9 October 2020. 2. While there is evidence of a medical condition or conditionss there is no evidence as to what treatment he is receiving, the effect of the conditions on his ability to conduct litigation or the length of such treatment or expected recovery. He has not offered any indication of when he might be able to meet the requirements expected of an applicant in proceedings. The most recent medical evidence available to the Tribunal is dated 18 September 2020. Therefore I can give little weight to it in relation to his failure to comply with more recent directions. 3. Although he claimed he was unable to meet the directions because of illness, he has nevertheless been able to file adjournment applications, make requests for written reasons and applications for non-disclosure as well as conduct other proceedings. 4. He has not given advance notice of his inability to comply to the respondent; rather he only provided explanations after the LAC queried his non-compliance or when brought before the Tribunal. 5. The respondent has endeavoured to secure progress in the proceedings by correspondence and having the matter listed for directions. 6. There is no evidence of prejudice to the respondent apart from the cost and effort involved; it has not been suggested delay might affect its defence. As the applicant has not filed any evidence, however, the respondent is not yet fully aware of what case it must present. 7. It is clear that parts of the applicant's claim have no prospects of success. The applicant's failure to file any evidence or legal argument about his claim in eight months or in response to the summary dismissal application served on him three months ago casts doubt upon its validity. 8. In determining whether to exercise the power of summary dismissal, I must seek to give effect to the guiding principle of facilitating the just, quick and cheap resolution of the real issues in the proceedings. The parties are also under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to comply with directions and orders of the Tribunal ( s 36(1) and (3) of the CAT Act).
10. In my view the delay is so excessive, taking into account the limited prospects of success and the non-compliance with the duty of giving effect to the guiding principle, and the failure to provide any response to the summary dismissal application, that it is compatible with the guiding principle and the interests of justice that the proceedings be dismissed under s 55(1)(d).

Costs

1. Ms Nguyen deposed that as at 8 October 2020 the legal costs thrown away by the LAC since 16 July 2020 in dealing with the applicant's non-compliance, responding to interlocutory applications, as well as the costs of preparing the dismissal application, amounted to $6014.22. As at 22 December 2020 the additional legal fees incurred dealing with non-compliance by the applicant, the second and third adjournment applications and the s 64 application by the applicant determined by me (which was not successful) were $3986.84.
2. Section 60 of the CAT Act provides that costs may be ordered only if the Tribunal is satisfied that there are special circumstances warranting an award of costs. In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters in s 60(2) which include: 1. whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings 2. whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings 3. whether a party has refused or failed to comply with the duty imposed by section 36(3).
3. The circumstances do not have to be "extraordinary or exceptional". It suffices if they are "out of the ordinary": Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Santow JA at [60] (Mason P and Brownie AJA agreeing).
4. The applicant has unnecessarily disadvantaged the respondent at directions hearings by failing to serve two of his adjournment applications on the respondent. He has also unreasonably prolonged the proceedings which have not progressed past the initial stage, more than nine months after they were commenced.
5. In the same way he has failed to comply with his duty under s 36(3) as a party, to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to comply with directions and orders of the Tribunal.
6. I consider that the matters above are special circumstances justifying an order in the respondent's favour awarding it its costs of the proceedings with respect to the interlocutory applications, the delays and the dismissal application.
7. By s 60(4)(a) of the NCAT Act, the Tribunal is given discretion to determine "to what extent costs are to be paid". This empowers the Tribunal to make a fixed sum costs order, if that is an appropriate course. The factors determining when a fixed sum costs order will be appropriate were considered in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 and included: 1. where the sum of costs in question is relatively modest and the assessment task for the Tribunal is simple, and 2. where a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal. Furthermore, the approach taken to estimate the costs must be logical, fair and reasonable. This may involve taking into account into account the contingencies that would be relevant in any formal costs assessment.
8. Given the relatively small amount of costs claimed, I consider it is appropriate and consistent with the guiding principle in s 36(3) of the CAT Act for me to assess the costs.
9. I have reviewed the entries annexed to Ms Nguyen's affidavit and consider that on the whole they are fair and reasonable. I have deducted several entries which do not appear relate directly to party/ party litigation. I will also apply a contingency discount of 15% to allow for items which might have been otherwise deducted during formal assessment. This reduces the sum to $7316.97.

Orders 1. Pursuant to s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 the application is dismissed. 2. The applicant is to pay the respondent's costs of the proceedings fixed at the amount of $7316.97.

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 January 2021