Joseph v Kiama Municipal Council

NCAT Administrative and Equal Opportunity|2022-11-11

Introduction

This is an application for summary dismissal of proceedings. Kiama Municipal Council (the Respondent)) seeks the summary dismissal of three applications for administrative review made by Mr Joseph (the Applicant). Those applications relate to three decisions made by the Respondent which refused access requests made by the Applicant under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

This matter arises out of a property and planning dispute between neighbours in the Council area. There is an extensive history of related litigation before the Courts. It is described by the parties as a "long and exhausting history".

Applicant's submissions

The Applicant submits, in part, that: 1. the three determinations under review contained errors of fact and law as identified in his written submissions for review and/or in the determinations by the Information Commissioner recommending the reconsideration of each determination by the Respondent. 2. the applications for review have arguable merit, 3. the failure by KMC to act in accordance with the model litigant code 4. unexplained and unjustified delay in bringing the application 5. the delay was inconsistent with Section 3(2)(b) of the GIPA Act 6. acting inconsistently with the asserted grounds of application 7. failure to assert new grounds identified in general application in a timely manner 8. unreasonable delay in filing the application 9. failure to provide necessary particulars requested 10. proceedings are not vexatious having regard to determinations made by the Information Privacy Commission 11. the acceptance by the Respondent of the need to reconsider the third determination of 8 June 2022. 12. …
The Applicant submitted the LEC matters were settled and are not being relitigated as they were not subject to a hearing or decided in litigation. He submits he is not foreclosed from seeking review of the related matters. He submits this dismissal application is being used to set up a s 14 harassment and intimidation argument to defeat his right of administrative review. He submits the tender of his affidavit, which was done without qualification, must be accepted as being for the truth of its contents and not for the limited purpose of showing bias for s 109. That qualification was raised by the Respondent in reply submissions.
The Applicant tendered a video of a Council meeting. The Applicant submitted [at 24 et seq] that contrary to the Respondent's submissions about an ongoing dispute between the Applicant and the Spencers, "the two major applications did not centre on any dispute with the Spencers. I was investigating the conduct of KMC, its management and councillors as the resolutions involved in DA 2021. Tangentially, the conduct of the Spencers was relevant as to whether their conduct influenced KMC conduct. While this had been a relevant consideration in the past, the applications lodged in 2022 were not directed to any past dispute".
The Applicant notes the submissions of the Respondent about his motivation and refers to comments of the Tribunal in Miriani v Transport for NSW [2021] NSWCATAD 16 [at 25] that "The GIPA Act establishes a presumption in favour of disclosure of government information and does not require that access applicants disclose their motivations for seeking access to government information, or the uses to which they wish to put that information once obtained".
The Applicant notes that he is subject to "an implied undertaking" in regard to some of the material he seeks which was made available under subpoena in the LEC and to which he does not now have access. The Applicant states he has not caused delay in this matter and all his documentation has been in possession of the Respondent since August 2022. The Applicant states the use of s 60 GIPA to refuse access on the grounds of unreasonable and substantial diversion of resources was not previously raised and should not be raised at this late juncture.

Legislation

Section 109 GIPA Act provides as follows: 109 NCAT may refuse to review decision NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance.
Section 55 of the NCAT Act provides as follows: 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, …

Consideration and findings

The principles as to the Tribunal's power to dismiss proceedings under s55(1)(b) of the CAT Act and the similar provisions in s 109 of the GIPA Act are well known. A complaint or part of a complaint can be dismissed if it is "so clearly untenable that it cannot possibly succeed", General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130. In a dismissal application, the Applicant's case in the substantive proceedings is taken at its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act, Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. The onus of proving that a complaint ought to be summarily dismissed lies on the person seeking such an order, Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53]. The onus is on the Respondent to establish that the administrative review application is wholly misconceived, lacking in substance, frivolous or vexatious. That is, either that there is no legitimate request by the Applicant or, if there is, it is vexatious for being brought for a collateral purpose: see, Zonnevylle v NSW Department of Justice [2021] NSWCAT 175 at [39].
The Respondent submits the Applicant's administrative review applications are frivolous and / or vexatious, as they have been instituted with the intention of annoying, harassing or embarrassing the Spencers. That may be the effect that the applications have on the Spencers but on the evidence before me, I am not satisfied they were instituted for that purpose alone.
The Respondent submits the applications are vexatious as they are seeking to relitigate and / or reagitate matters which were the subject of the earlier Land and Environment Court proceedings which were resolved by agreement. It may be that review of these matters will involve consideration of material that was before the LEC and the implementation of the Terms of Settlement but on the evidence before me, I am not satisfied that will amount to relitigating or reagitation (whatever that latter term may mean).
The Respondent submits the Applicant is motivated by unsupported allegations of bias and / or collusion between the Respondent (and its employees and or agents) and the Spencers, as evidenced by the Applicant's submissions attached to the Tribunal applications. It is apparent the Applicant suspects some bad faith actions on the part of some Council staff and councillors. However, I am not satisfied on the evidence before me that such concerns alone are sufficient to strike out an application before it is fully ventilated at hearing.
The Respondent submits the applications are misconceived or lacking in substance to the extent that they seek information which has already been provided to the Applicant. Some material has been provided to the Applicant. Access to other material has been refused. I note the Information Commissioner, in regard to all three applications, recommended that the Council reconsider its decision. A delegate of the Respondent decided not to reconsider the decision in each of the first two matters. On the third matter a delegate advised the Applicant that the decision would be reconsidered as recommended. Subsequently, another delegate made a decision to refuse access. I am not satisfied on the evidence that the applications are so lacking in substance or misconceived that they can be summarily dismissed.
In all the circumstances, I find the applications for administrative review should not be summarily dismissed.

Order 1. The Tribunal refuses the application for summary dismissal. 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

Amendments 12 December 2022 - Coversheet 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: 12 December 2022

Information (Public Access) Act 2009(NSW)

At a glance

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Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Cited By (2)