Miguela Macatangay lodged this appeal on 1 February 2023, appealing a decision of the Tribunal. The Tribunal ordered that the application was "dismissed as misconceived because the Tribunal has no jurisdiction to deal with the application."
We have decided that the proceedings are taken to have been dismissed because they are proceedings related to proceedings in which a vexatious proceedings order was made by the Court of Appeal: Macatangay v State of New South Wales [2012] NSWCA 374. We have also considered the substantive grounds of appeal and are of the view that even if the vexatious proceedings order does not relate to these proceedings, the appeal would have been dismissed.
[2]
The Appeal
On 25 November 2022, Ms Macatangay lodged an application with the Tribunal for review of a decision, made by the Secretary, Department of Education (the Secretary) on 23 November 2022. Ms Macatangay characterised the decision to be a refusal by the Secretary to remove her name from the "Not to be employed" (NTBE) list maintained by the Department of Education (the decision). The matter came before the Tribunal for directions on the first occasion. Ms Macatangay appeared at that hearing. The Secretary did not appear. The Tribunal found that the decision was not an administratively reviewable decision, and that the Tribunal does not have jurisdiction to review the decision.
Such decisions of the Tribunal are internally appealable decisions and an appeal can be made from them as of right where there is a question of law identified and otherwise with the leave of the appeal panel: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Ms Macatangay is appealing on the basis that the appeal raises a question of law and seeks leave to appeal.
The notice of orders made by the Tribunal indicates the orders were made on 20 December 2022. The reasons disclose that when the matter had come before the Tribunal for directions on 20 December 2022, Ms Macatangay had appeared by audio visual link and the proceedings had been dismissed. Ms Macatangay subsequently sought reasons for the decision. The notice which includes the reasons is dated 17 January 2023.
On that basis, the appeal is within time as it was lodged with 28 days from when Ms Macatangay was given reasons for the decision, as is required by cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
[3]
The Vexatious Proceedings Order
In submissions in the appeal, and not raised for the Tribunal's consideration in the primary proceedings, the Secretary asserts that Ms Macatangay is the subject of an order pursuant to the Vexatious Proceedings Act 2008 (NSW) (the Act). In Court of Appeal proceedings, Ms Macatangay was invited to make submissions as to why a vexatious proceedings order should not be made: Macatangay v State of New South Wales [2012] NSWCA 341. A vexatious proceedings order was subsequently made on 15 November 2012 in the following terms (the vexatious proceedings order) (Macatangay v State of New South Wales [2012] NSWCA 374):
Pursuant to s 8(7) of the Vexatious Proceedings Act 2008:
(a) all proceedings in New South Wales already instituted by the applicant in matters Nos 20144 of 2005 and 269316 of 2005 ("the Matters") be stayed; and
(b) the applicant be prohibited from instituting any further proceedings in New South Wales relating to any of the claims or complaints made by her in the Matters.
The Secretary put Ms Macatangay on notice of his position in relation to vexatious proceedings order in the reply to the appeal and in written submissions.
Ms Macatangay accepts that the vexatious proceedings order has not been amended or revoked. In the hearing before us, Ms Macatangay also confirmed she is the person named in the vexatious proceedings order. However, she stated that the vexatious proceedings order did not apply to this appeal for the following reasons:
1. Her request initiated by her application to the Tribunal to have her name removed from the NTBE list did not amount to proceedings;
2. The original decision which led to the vexatious proceedings orders was incorrect.
In relation to the first matter raised by Ms Macatangay, it is misconceived. Both the appeal and the first instance proceedings are "proceedings," defined in s 4 of the Vexatious Proceedings Act to include, relevantly, "any … proceedings before a tribunal" and, in respect of this appeal "any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way."
In relation to the second matter, Ms Macatangay is seeking to reagitate many of the issues which has been the subject of various proceedings against the respondent. Ms Macatangay also sought to challenge Grove J's decision: Macatangay v State of New South Wales (NSWCA, unreported, 8 November 2007) on the grounds it was based on incorrect law. As we explained to Ms Macatangay at the hearing before us, this appeal is not the appropriate vehicle to review the vexatious proceedings order made by the Court of Appeal or any of the decisions which led up to the making of the vexatious proceedings order.
Whilst it was not put into issue by Ms Macatangay, we are satisfied that these proceedings are related to the claims and complaints that were raised in the proceedings in which the vexatious proceedings order was made. In Macatangay v State of New South Wales [2012] NSWCA 341, Macfarlan JA, Sackville AJA and Tobias AJA described the complaint at [3] - [4]:
3. Her notice of motion is supported by an affidavit sworn by her on 8 October 2012 and by a written submission. Her complaint once again is that she has been prohibited from working as a high school mathematics teacher or in any teaching capacity by the Department and that she has been placed on the Department's "confidential register". She now asserts for the first time that by being placed on that register the Department has, in effect, declared her as a "registrable person" within the meaning of the Child Protection (Offenders Registration) Act 2000 (the Child Protection Act) as someone who is prohibited from being employed in any child related work. This, apparently is the additional aspect of her case not previously alleged.
4 It is true that the applicant was placed by the Department on its confidential list or register. However, this was part of the settlement of her proceedings in the Industrial Relations Commission of NSW which has been the subject of the previous litigation between the parties. It was done for her own protection. Until now, there has never been any suggestion by the applicant that she has been declared a "registrable person" pursuant to the Child Protection Act. Being placed by the Department on its confidential list or register does not, and never has, made her a "registrable person" within the meaning of that Act.
Ms Macatangay agreed at the appeal hearing before us that the reference to the 'confidential register' in that decision was a reference to the NTBE list.
Section 13 of the Vexatious Proceedings Act applies as follows:
(1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings:
(a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, and
(b) another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised court under section 16.
(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section.
(3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4).
It is apparent from the extract of the judgment in Macatangay v State of New South Wales [2012] NSWCA 341 cited above, that one 'complaint' Ms Macatangay made in those proceedings was that she was on the NTBE list, the list referred to as the "Confidential Register" in the proceedings before the Court. In these proceedings, Ms Macatangay also complains about being on the NTBE list, or more precisely that the Secretary refused to remove Ms Macatangay's name from the NTBE list. In our view these proceedings, which involve review of a decision to refuse Ms Macatangay's request for her name to be removed from the NTBE list, are related to the claims and complaints made by her in the proceedings in which the vexatious proceedings order was made.
Ms Macatangay accepts that she has not obtained leave to institute these proceedings. Pursuant to s 13(2) these proceedings were deemed to be stayed from when they were instituted and are taken to have been dismissed 28 days after the appeal was lodged on 1 February 2023.
The Secretary had sought that we made a declaration to that effect. In our view that is unnecessary, and the appeal is already taken to be dismissed under subsection 13 (3) of the Vexatious Proceedings Act.
For completeness, we have gone on to consider the appeal and have determined that, even if we are wrong in our conclusion that these proceedings "relate" to the claims or complaints relevant to the vexatious proceedings order, the appeal would be dismissed in any event.
[4]
The Grounds of Appeal
Ms Macatangay is self-represented in these appeal proceedings. In those circumstances and in accordance with established appeal panel practice, we will follow the principles set out in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]:
In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
The appeal purported to raise two questions of law:
1. Does the Tribunal have jurisdiction to determine the administrative review application?
2. Was there a failure to afford procedural fairness because the application was dismissed at a directions hearing, without prior notice to the appellant that might occur?
The appellant also seeks leave based on the assertion the decision was unreasonably arrived at.
[5]
Consideration of the grounds of the appeal on its merits
[6]
Does the Tribunal have jurisdiction to determine the administrative review application?
If the Tribunal determined it did not have jurisdiction to decide the matter, when it did, then that would amount to a question of law.
Ms Macatangay suggests in her notice of appeal that the Tribunal erred in finding that it has no jurisdiction to review the decision. Section 30 of the NCAT Act provides that the Administrative Decisions Review Act 1997 (NSW) (ADR Act) sets out the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
Pursuant to s 55 of the ADR Act, the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction".
Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision".
For the Tribunal's jurisdiction to be engaged, it was necessary that there be a provision in enabling legislation which states that the decision to refuse to remove Ms Macatangay's name from the NTBE list is a decision of an administrator that can be reviewed by the Tribunal.
Section 7 of the Teaching Service Act 1980 (NSW) sets out the general functions of the Secretary, Department of Education. One of these functions in s 7(1)(e) is to prepare and maintain a list of persons, which is known as the NTBE list.
Ms Macatangay has failed to identify any provision of the Teaching Service Act or any other act which makes the decision to include a person's name on the NTBE list or not remove a person's name from the NTBE list, an administratively reviewable decision under the ADR Act. Nor are we aware of any such provision.
In her notice of appeal, Ms Macatangay submits that s 53 of the Privacy and Personal Information Protection Act 1988 (NSW) (PIPP Act) is a source of the Tribunal's jurisdiction for administrative review of the decision. However, in her administrative review application, Ms Macatangay's was not seeking review of an internal decision relating to conduct said to be in breach of the PIPP Act. Rather, it was clear from her application that Ms Macatangay was seeking was a review of the decision not to take her off the NTBE list.
In any case, Ms Macatangay has failed to identify the conduct which she alleges is in breach of the privacy principles contained in the PIPP Act. Further, s 55 of the PIPP Act only allows the Tribunal to administratively review conduct of a public sector agency which has had a prior internal review under s 53 of the PIPP Act. Ms Macatangay has failed to identify any finalised internal review. Accordingly, the PIPP Act also does not provide the Tribunal with jurisdiction.
The Tribunal in the primary proceedings was therefore correct to find that the decision of 23 November 2022 is not a decision which is reviewable under the ADR Act.
[7]
Procedural Fairness
As we have understood this ground, the appellant submits that the application should not have been dismissed at the directions hearing.
A failure to afford procedural fairness has been found to amount to a question of law: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. Italiano v Carbone [2005] NSWCA 177 is also commonly cited in support of that proposition. Care should be taken before accepting either of those decisions as authoritative on the issue in this Tribunal, for reasons it is unnecessary to delve further into here. Even if it is not, as an issue going to the Tribunal's jurisdiction it would warrant a grant of leave to appeal if it is established.
Section 36 of the NCAT Act sets out the guiding principle to be applied to practice and procedure of the Tribunal as follows:
(1) The guiding principle for this 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.
…
Section 38 of the NCAT Act relevantly provides that:
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
…
(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(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.
(6) The Tribunal-
(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(b) may require evidence or argument to be presented orally or in writing, and
(c) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
The proceedings were dismissed by the Tribunal under s 55(1)(b) of the NCAT Act, which enables the Tribunal to 'dismiss at any stage any proceedings before it when 'the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, ...'.
The application was clearly misconceived and lacking in substance as the Tribunal did not have jurisdiction to review the decision of the Secretary. Ms Macatangay failed to identify an administratively reviewable decision which the Tribunal has jurisdiction to review. It was consistent with the guiding principles of the NCAT Act to dismiss the application in the circumstances, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
In any event, a breach of procedural fairness will only lead to an appeal being allowed and a new hearing where practical injustice is demonstrated; that is where doing so could possibly make a difference and a rehearing would not inevitably lead to the same result.
For the reasons above, practical injustice is absent here.
[8]
Leave
Ms Macatangay is also seeking leave to appeal on the basis that the Tribunal unreasonably arrived at the decision. The appellant seeks to challenge the merit of the initial decision to put her on the NTBE list in the first place. However, that is not a decision over which the Tribunal has jurisdiction.
Leave to appeal should not be granted. Ms Macatangay raises no issues of principle, no questions of public importance or matters of administration or policy. The grounds do not demonstrate an injustice which is reasonably clear or an error that is plain, readily apparent, or concerning.
For those reasons, even if these proceedings did not relate the complaints and claims in which the vexatious proceedings order was made, the appeal would have been dismissed in any event.
[9]
Costs
The Secretary is seeking costs of the appeal and made written submissions in that regard prior to the appeal hearing. The parties were given the opportunity to make further oral submissions before us.
Pursuant to s 60 of the NCAT Act, parties generally bear their own costs, and a cost order can be made if "special circumstances warranting an award" are established.
The Secretary submits that there are special circumstances that would warrant the making of a costs order in his favour. For the reasons that follow, we are satisfied that there are special circumstances in this appeal that warrant the making of a costs order.
Section 60 (3) of the NCAT Act sets out the matters to which the Tribunal may have regard to in respect of "special circumstances".
We are mindful that Ms Macatangay is self-represented. However, Ms Macatangay's application to the Tribunal had 'no tenable basis ... in law'. The primary decision of the Tribunal made clear in the reasons why the Tribunal did not have jurisdiction to review the decision and yet Ms Macatangay proceeded to appeal the decision and similarly her appeal had no tenable basis in law. Her appeal grounds, as we have identified above, were weak. Furthermore, Ms Macatangay persisted in her appeal after the Secretary put her on notice as to the applicability of the vexatious proceedings order and, in respect of the appeal at least, Ms Macatangay failed to make any proper attempt to identify why prior leave was not required to be obtained from the Court.
These appeal proceedings follow a long line of proceedings initiated by Ms Macatangay regarding her employment with the Department of Education. Ms Macatangay was aware of the vexatious proceedings order and did not seek leave to make the primary application to the Tribunal or the appeal. Ms Macatangay submitted at the hearing that she did not believe that these proceedings were related to the claims and complaints. However, Ms Macatangay has made applications to various courts since the making of the vexatious proceedings order, including the following proceedings:
1. Ms Macatangay filed an application for leave to institute proceedings under the Vexatious Proceedings Act which was refused in 2015: Macatangay v NSW Department of Education and Training [2015] NSWSC 1745;
2. A summons filed by Ms Macatangay in the Supreme Court was dismissed in 2017: Application of Miguela Macatangay [2017] NSWSC 1047. Lonergan J found at [10]:
It is clear that the current application is an attempt to again agitate issues that have already been determined by the Court of Appeal. They are largely the issues that were the basis for the making of the orders pursuant to the Vexatious Proceedings Act 2008 (NSW) by the Court of Appeal in November 2012.
1. A further application for leave to commence proceedings under the Vexatious Proceedings Act was refused in 2018: Application of Miguela Alvarez Macatangay [2018] NSWSC 42. Fagan J stated at [12]:
The proceedings the applicant wishes to institute would be an abuse of process because they would seek to re-agitate an issue which has been finally determined. Namely, the correctness of Grove J's summary dismissal of proceedings No 20144 of 2005. There is no reasonable ground for instituting or pursuing such proceedings in view of the exhaustion, which has already occurred, of all reasonable avenues for challenging the decisions of the Industrial Relations Commission and of Grove J.
1. In that same year Ms Macatangay made a further application for leave to commence proceedings under the Vexatious Proceedings Act and that application was also refused Application of Miguela Alvarez Macatangay [2018] NSWSC 1183. Fagan J stated at [4]
The proceedings for which leave is presently sought are materially the same as those for which the applicant sought leave by her applications of 4 April 2017 and 5 October 2017. My reasons for refusing the leave now sought are the same as those given on the most recent prior occasion…
The history of proceedings related to Ms Macatangay's complaint against the Department of Education demonstrates that she has experience in litigation and should have known to seek leave in relation to lodging the administrative review proceedings and this appeal in the Tribunal. As cited above, Ms Macatangay raised in this appeal the same issues in relation to the decision of Grove J as she did in her application for leave to institute proceedings in the Supreme Court: Application of Miguela Alvarez Macatangay [2018] NSWSC 42.
Having considered the submissions of the parties, we are satisfied that the matters raised amount to special circumstances which warrant the making of a costs order in favour of the Secretary. In particular:
1. Ms Macatangay's appeal was weak, and the grounds were lacking in substance.
2. Ms Macatangay, although self-represented, is experienced in litigation and should have known that these are proceedings which are related to the complaints and claims in the proceedings in which the vexatious proceedings order was made.
[10]
Orders
We make the following order:
1. The appellant is to pay the respondent's costs as agreed or assessed.
Note: These appeal proceedings have been stayed by virtue of s 13(2) of the Vexatious Proceedings Act 2008 (NSW) from their inception and are taken to be dismissed in accordance with s 13(3).
[11]
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: 16 May 2023
Parties
Applicant/Plaintiff:
Macatangay
Respondent/Defendant:
Secretary, Department of Education
Legislation Cited (6)
Privacy and Personal Information Protection Act 1988(NSW)