Hasabrabo v Liquor and Gaming NSW

Determination on the papers

1. A hearing is generally required for Tribunal proceedings (Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 50(1)). However, "[t]he Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal" (NCAT Act, s 50(2)).
2. The parties have been given an opportunity to make submissions as to whether a hearing of the summary dismissal application can be dispensed with (NCAT Act, s 50(3)(a)). Neither party opposed the matter being determined on the papers.
3. I consider that that the issues for determination in the summary dismissal application can be adequately determined in the absence of the parties by considering their written submissions and other material they have provided to the Tribunal.
4. Accordingly, I have made an order dispensing with a hearing.

Applicant's application to the Tribunal

1. The applicant's application to the Tribunal states that the respondent is biased against his claim and refused to take significant evidence that proves his claim.
2. The applicant has provided a document headed "The Grounds for the Administrative Review." In this document he states that there is a public interest element in his claim, which he says is: "related to the fact that there was immense mythological symbolism connected to the price of the four weeks entry OZ Lotto ticket which was 49$. The mythological symbolism is related to the myth of Aegyptus whose 49 daughters killed their husbands on the night of their wedding except the 50th daughter who was called Hypermenstrea. Some significant political change took place with the former NSW Premier Mike Bird [sic] resigned for family reasons paving the way of the election of Gladys Berejiklian on 23 January 2017 as Hypermenstrea."
3. The applicant submitted that the respondent could not prove his claim of buying the lottery ticket to be false. He also said that there was CCTV evidence from the newsagency which could be checked and the shop assistant could be spoken to.

Summary dismissal application

1. The respondent contends that the Tribunal does not have jurisdiction to hear the matter because there is no enabling legislation which provides for applications to be made to the Tribunal in respect of the decision the applicant seeks to have reviewed.
2. In response, the applicant submitted: "The ground for my application for administrative review is raising a very serious concern about the integrity of Liquor & Gaming NSW in exercising the capacity of a regulator in my case against NSW Lotteries. I claimed that Liquor & Gaming NSW was biased from the start against my claim and attempted provocation to get an overreaction that could be used to dismiss the case based on character. I claimed that Liquor & Gaming NSW spent undue seven months to deliver an answer about a lost ticket that the date of its purchase and the newsagency from which it was purchased were given. I claimed that the final decision taken by Liquor & Gaming NSW in this matter is contrary to the facts and contrary to the public interest. These claims are substantiated and the tribunal have the emails. The claim that Liquor & Gaming NSW was biased in exercising the capacity of a regulator in this specific case against NSW Lotteries is proved. That is why it has to be subject to an administrative review process. Any issues of integrity while exercising the capacity of a public servant role is taken care of by the Civil Liability Act 2002."
3. The applicant has attached the provisions of Part 5 of the Civil Liability Act 2002 (NSW) which deal with the liability of public and other authorities.

Consideration

1. The Tribunal only has jurisdiction to determine a matter if legislation expressly confers such jurisdiction.
2. Section 29(1) of the NCAT Act provides: "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation."
3. The "administrative review jurisdiction" is one kind of jurisdiction the Tribunal exercises (NCAT Act, s 28(2)), and is the kind the applicant seeks to invoke in these proceedings. Section 30(1) of the NCAT Act provides that the Administrative Decisions Review Act 1997 (NSW) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
4. The Administrative Decisions Review Act provides, in s 9(1), that the Tribunal has administrative review jurisdiction over an administrator's decision if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act of any such decision made by the administrator.
5. The term "enabling legislation" is defined to mean, relevantly, legislation that provides for applications to be made to the Tribunal, or otherwise enables the Tribunal to exercise functions, with respect to a specified matter or class of matters (Administrative Decisions Review Act, s 4(1)).
6. Section 79A of the Public Lotteries Act 1996 (NSW) provides that a person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act of certain Ministerial decisions. It does not confer a right of review of decisions made by the respondent, nor of decisions concerning lost tickets.
7. There is no other legislation of which I am aware which provides for the Tribunal to review the respondent's decision concerning the applicant's lost ticket.
8. The Civil Liability Act, on which the applicant relies, does not confer any such power.
9. For these reasons, the Tribunal does not have jurisdiction to hear and determine the applicant's application.
10. The Tribunal may dismiss proceedings "if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance" (NCAT Act, s 55(1)(b)). When proceedings are manifestly groundless or untenable their maintenance may be frivolous or vexatious (Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [119]). I consider that these proceedings are manifestly untenable due to the Tribunal's lack of jurisdiction. They are misconceived for the same reason.
11. Accordingly, I have dismissed the applicant's application.

Order

1. I make the following orders: 1. A hearing of the respondent's summary dismissal application is dispensed with. 2. The applicant's application to the Tribunal is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

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: 20 October 2020