Jeray v Blue Mountains City Council

NCAT Appeal Panel|2024-04-18

Introduction

Mr Jeray has appealed from procedural directions made by the Tribunal in proceedings under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The appeal has been the subject of two decisions by the Appeal Panel: Jeray v Blue Mountains City Council [2023] NSWCATAP 120; Jeray v Blue Mountains City Council [2023] NSWCATAP 325.
All the procedural directions from which Mr Jeray appeals are "interlocutory decisions" as defined in s 4(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) They are not final decisions because the Tribunal has not determined Mr Jeray's application. Mr Jeray needs the Tribunal's permission to appeal from an interlocutory decision: NCAT Act, s 80(2).
The only remaining issue is whether we should give Mr Jeray permission to appeal from any of the Tribunal's procedural directions because the Tribunal denied him procedural fairness when making those directions. Mr Jeray expressed this ground of appeal as follows: The appellant has been denied natural justice/procedural fairness because the Tribunal did not provide the unrepresented applicant with any assistance and a reasonable opportunity to seek a summons and obtain and peruse the information sought by it before he was required to submit his evidence and written submissions, particularly if there was an objection to the summons.
We have dispensed with a hearing on the remaining issue because we are satisfied that the issues can be adequately determined in the absence of the parties by considering their written submissions: NCAT Act, s 50.

Mr Jeray's submissions

Mr Jeray says the procedural directions from which he has appealed were conducted in his absence. On both occasions Mr Jeray says he requested an adjournment of the case conferences but the directions were nevertheless made.
The application for an adjournment of the 28 February 2022 directions hearing was made on several grounds including that he did not have a telephone, a public phone was not a suitable alternative and he is involved in two Court of Appeal matters and requires the Tribunal to perform its obligatory duties to assist the unrepresented applicant.
The application for an adjournment of the 2 May 2022 case conference was made on some of the same grounds and on the additional ground that Mr Jeray wished to apply to the Tribunal for a summons to be served but cannot do so until the respondent has provided all its "legible" submissions and evidence.
The basis on which Mr Jeray submits that he has been denied procedural fairness is that he requested an adjournment so that he could appear in person at the Tribunal to obtain what he refers to as the Tribunal's "obligatory assistance" to understand the summons procedure. He added that he has never sought a summons in the Tribunal and was not aware of the summons procedures.

Procedural directions are interlocutory decisions

The Appeal Panel summarised the basis on which leave should be given to appeal from an interlocutory decision in Collins v Urban [2014] NSWCATAP 17 at [84]. The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
If there has been a breach of procedural fairness, even involving a question of practice and procedure such as the issuing of a summons, that circumstance will favour the granting of leave. However, in this case, the submission that the Tribunal breached procedural fairness is so weak, that we have decided not to grant leave to appeal from any of the procedural directions made by the Tribunal on the basis of a breach of procedural fairness.

Reasons for refusing leave to appeal from interlocutory decisions

The Tribunal is required to conduct proceedings in a procedural fair manner, whether or not the regulating statute obliges it to do so: Kioa v West (1985) 159 CLR 550 at 584 per Mason J. Section 38(5) of the NCAT Act reflects the general law duties of procedural fairness: 38 Procedure of Tribunal generally … (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. …
Procedural fairness includes a duty to provide assistance to a self-represented party in certain circumstances: Lee v Cha [2008] NSWCA 13 at [49]. In Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [55] the Full Court gave the following examples of the kinds of practical assistance that may be appropriate: [55] In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person: (a) Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 46 VR 283. (b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson, 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15, 50 [47]. (c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.
While not given as an example, another form of a procedure which, if invoked, may prove to be advantageous, is the ability to apply for a summons to be issued to a person to give evidence or produce documents. However, not every failure to ensure that a self-represented litigant is aware of that procedure will be a denial of procedural fairness. As the Full Court stated in Flightdeck Geelong Pty Ltd v All Options Pty Ltd at [57]: [57] It seems to be well accepted that the extent of the Court's obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon "the litigant, the nature of the case, and the litigant's intelligence and understanding of the case": Abram v Bank of New Zealand [1996] FCA 1650 ATPR 41-507, 42,347.
The respondent submitted that Mr Jeray has appeared in the Tribunal by public telephone before and he is a "serial litigant". Mr Jeray understands how the tribunal listings work and how to attend those listings. He was aware of the listings on 28 February 2022 and 2 May 2022. Mr Jeray has cited material from court websites in his application for an adjournment and was able to consider the summons procedure that is available on the Tribunal's website. Had Mr Jeray chosen to avail himself of the summons procedure, he could have done so. Further, Mr Jeray's evidence need not await any summonsed material, which could be tendered in the usual way at the hearing.
We find that Mr Jeray is familiar with the Tribunal's practices and procedures from previous cases. Even if he was not familiar with the procedure on issuing a summons, he could have accessed the Tribunal's website for further information or contacted the Tribunal's registry for any assistance he needed.
In addition, there must be a "practical injustice" before relief is granted for a breach of procedural fairness. As the Full Court stated in Flightdeck Geelong Pty Ltd v All Options Pty Ltd at [58]: [58] A denial of procedural fairness must work a practical injustice on the appellant in order for the Court to exercise its discretion to grant relief: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [38] per Gleeson CJ. An appellant alleging a denial of procedural fairness need only demonstrate that they were deprived of the possibility of a successful outcome; to negate that possibility it is necessary to find that a properly conducted trial could not possibly have produced a different result: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147. To put it another way, as framed by the Full Court in King v Delta Metallics Pty Ltd [2013] FCAFC 93 [59], "[i]f the denial of procedural fairness would have made no difference to the outcome of the proceeding, relief will not be granted": see also Nobarani, 248 [39]; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530, 544 [49].
In this case, there is no result or outcome because there has been no hearing before the Tribunal. In any case, it cannot be a denial of procedural fairness to fail to inform a party of a procedure which is not available to them. As we found in Jeray v Blue Mountains City Council [2023] NSWCATAP 120, the Information Commissioner is not competent or compellable to give evidence. In those circumstances Mr Jeray was not disadvantaged by the Tribunal's failure to inform him of procedures which, if invoked, may prove to be advantageous. There was no practical injustice.

Orders 1. A hearing is dispensed with on the remaining issues on appeal. 2. Leave to appeal from the interlocutory decisions of the Tribunal made on 28 February 2022 and 2 May 2022 is refused. 3. The appeal is dismissed.

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: 22 April 2024

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