Ness v Secretary, Department of Education

The issues

1. The respondent has sought orders dismissing Ms Ness's application on the basis that Ms Ness has failed to identify a decision which is capable of being reviewed by the Tribunal. Ms Ness argues that the decisions are reviewable by the Tribunal. She also states that, should the Tribunal be of the view it does not have jurisdiction to review the decisions, the matter can be referred to the Supreme Court for determination.
2. Ms Ness also asks for an order that her two children be joined as parties to the proceedings. That order is opposed by the respondent.
3. The respondent seeks a costs order against Ms Ness which Ms Ness opposes.
4. Being satisfied pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 Act that the issues can be adequately determined in the absence of the parties by considering the material provided by them, and after taking into account the submissions of the parties, the Tribunal determined that a hearing can be dispensed with and the matter dealt with on the papers. The primary question in the proceedings is whether the Tribunal has jurisdiction to deal with the application made by Ms Ness.

Tribunal's jurisdiction

1. Section 28 of the CAT Act provides that the Tribunal "has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation". The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator (see s 30 of the CAT Act). Section 55 of that Act makes plain that the Tribunal only has jurisdiction to review "an administratively reviewable decision".
2. An administratively reviewable decision is defined in s 7 of the Administrative Decisions Review Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 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".
3. At issue therefore is whether there is a decision, or decisions, which have been made under an Act of the NSW Parliament which provides that an application may be made to the Tribunal for a review of that decision or those decisions.
4. Ms Ness states that an administrative review of the legality of the direction made in the first decision by Mr Stevenson under the Inclosed Lands Act is required. The Inclosed Lands Act contains several provisions concerning unlawful entry on inclosed lands and other conduct whilst on inclosed lands. The Act contains various penalty provisions and refers to certain limitations on civil action being taken against a person for anything done in pursuance of the Act. Nowhere in the Act (or in the Inclosed Lands Protection Regulation 2018) is there a provision which gives this Tribunal jurisdiction to review any decision made under the Act.
5. Ms Ness also submits that the Tribunal has jurisdiction to review administrative decisions made under the Education Act 1990 (the Education Act). She characterises the decision that is reviewable by the Tribunal as the effect of the first, second and third decisions which resulted in the constructive cancellation of enrolment/expulsion from enrolment at the school of her two children.
6. Part 10 of the Education is titled "Administrative review of decisions by the Tribunal". Section 107 sets out several decisions which can be reviewed by the Tribunal: 107 Applications for administrative reviews of certain decisions (1) An application may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions: (a) a recommendation of the Authority that registration of a non-government school be refused, (b) a recommendation of the Authority that registration of a non-government school not be renewed, (c) a recommendation of the Authority that registration of a non-government school be cancelled, (d) a recommendation of an authorised person that the Minister refuse to register a child for home schooling, (e) a recommendation of an authorised person that the registration of a child for home schooling be cancelled, (e1) a direction of the Secretary under Division 3 of Part 5A concerning the government schools in which a particular student may be enrolled, (e2) a recommendation of the Non-Government Schools Not-for-profit Advisory Committee under Division 3 of Part 7 that the Minister make a for profit declaration or a non-compliance declaration in respect of a school (including a recommendation on any consequent suspension or reduction of, or imposition of conditions on, the provision of financial assistance), (e3) a decision of the Authority: (i) to refuse to grant approval under Part 7A, or (ii) to impose conditions on, amend, suspend or cancel such an approval, (f) a decision of the Authority not to accredit a school, (g) a decision of the Authority not to renew the accreditation of a school, (h) a decision of the Authority to cancel a school's accreditation. (2) A person is entitled to make any such application only if the person is or is required to be given notice of the recommendation, direction or decision under this Act.
7. Ms Ness refers to s 107(1)(e1) which provides that an application can be made to the Tribunal for review of a direction of the Secretary under Division 3 of Part 5A concerning the government schools in which a particular student may be enrolled. Division 3 of Part 5 of the Education Act is titled "Direction about enrolment at Government schools". Section 26 H is as follows: 26H Directions about enrolment (1) The Secretary may direct that a student is not to be enrolled at any government school other than a government school of a kind specified in the direction. (2) A direction under this section may be given only if the Secretary believes on reasonable grounds that the enrolment of the student otherwise than as permitted by the direction would constitute a risk (because of the behaviour of the student) to the health or safety of any person (including the student). (3) A student is not to be enrolled at a government school in contravention of a direction in force under this section. (4) Any facility conducted by the State for the purpose of educating students in Kindergarten or any of Years 1-12 is taken to be a government school for the purpose of a direction under this section and, for that purpose, may be so referred to in the guidelines.
8. On 28 March 2019 Mr Stevenson wrote to Ms Ness about a range of matters she had apparently raised with him over the previous week. It is clear from the letter that there had been some discussion about moving Ms Ness's children to another school in the area. In part the letter from Mr Stevenson reads: As discussed with you in our telephone conversations… my support for [Ms Ness's children's] education will continue regardless of whether you choose to continue their enrolment at [the school] or move to your local school.
9. On 14 April 2019 Ms Ness advised that she had enrolled her children at the local school starting 30 April 2019.
10. It is clear that no direction has been made by the Secretary, Department of Education under Division 3 of Part 5A concerning the government schools in which Ms Ness's children may be enrolled. Mr Stevenson expressed his support for whichever course Ms Ness may decide to take, whether that be leaving her children at the school or enrolling them at another school. It was Ms Ness's decision to change her children's school and therefore no issue of "constructive cancellation of enrolment/expulsion" arises. There is therefore no decision under the Education Act which is reviewable by the Tribunal.
11. Ms Ness has not made submissions directly addressing the decisions made in each of the three decisions which are amendable to administrative review by the Tribunal, other than her submissions on the "constructive cancellation of enrolment/expulsion" point. As set out above, there is no review by the Tribunal of decisions made under the Inclosed Lands Protection Act. Ms Ness's claims that the decision has been made under s 107(1)(e1) has not been made out. I have also considered whether there is another ground of review in any of the three decisions of which Ms Ness seeks review but am unable to identify any ground that falls within the Tribunal's jurisdiction set out in s 107 of the Education Act.
12. In summary, the application made by Ms Ness does not disclose any decision which is capable of being reviewed by the Tribunal under the Administrative Decisions Review Act. The Tribunal therefore does not have jurisdiction to deal with the application and it must be dismissed.

Referral to the Supreme Court

1. Ms Ness makes a submission that, if I find that the Tribunal lacks jurisdiction to determine her application, I should refer the matter as a question of law to the Supreme Court under s 54 of the CAT Act. Section 54(1) provides that: (1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.
2. The provision is discretionary. That is, even if a party (in this case Ms Ness) request that a question of law be referred to the Supreme Court, the Tribunal is under no obligation to do so.
3. The respondent submits that there is in fact no power to refer a question of law to the Supreme Court in matters where the tribunal lacks jurisdiction. The respondent referred to Qantas Airways Ltd v Lustig & Ors (2015) 228 FCR 148 which concerned a provision in the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) which contained a not dissimilar provision in relation to referral of a matter to a court where VCAT considered the matter could more appropriately be dealt with in another jurisdiction. Perry J held that, if the Tribunal had no jurisdiction over any part of the proceedings, there was no matter to refer to another court or tribunal. He stated that the only power VCAT had was to dismiss the proceedings and make any consequential costs orders. Those comments are apt in the present proceedings. A similar result was also reached in relation to the Commonwealth Administrative Appeals Tribunal in Burgess and Repatriation Commission (2016) 70 AAR 44.
4. In any event, even if it were open to me (with the permission of the President under s 54(2) of the CAT Act) to refer the question of jurisdiction to the Supreme Court, I would decline to do so. There is no issue of public importance arising out of this application which would have implications for other matters before the Tribunal. The case is confined to its own particular facts and is not one of general import. It is entirely open to Ms Ness to appeal against my decision with respect to jurisdiction in order to challenge my finding.

Joinder

1. Ms Ness has made an application that her children be joined as parties to her application, but as I have found that the Tribunal in fact lacks jurisdiction to determine her application, no point would be served in joining her children to the application.

Costs

1. The respondent has sought its costs of the application in the event that the decision of the Tribunal is that it lacks jurisdiction to deal with Ms Ness's application. From a very early stage of the proceedings the respondent raised with Ms Ness and the Tribunal its view that the Tribunal lacked jurisdiction and invited Ms Ness to withdraw her application. The respondent states that Ms Ness appears to have some legal qualifications and referred to herself on two occasions as "a fellow solicitor".
2. The Tribunal's power to award costs is set out in section 60 of the CAT Act: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
3. As can be seen from that section, the ordinary rule is that each party to proceedings in the Tribunal pays their own costs. The Tribunal may, however, order a party to pay another party's costs if satisfied that there are special circumstances which warrant such an order. It is clear that the factors set out in section 60(3)(a) to (f) are not meant to be an exhaustive list of what might constitute "special circumstances".
4. However, as the Appeal Panel observed in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, it does not follow that a costs order should be made because some factors are made out. It remains the task of the Tribunal to weigh whether those circumstances amount to "special" circumstances that justify departing from the ordinary rule that each party bear their own costs.
5. The respondent submits that, in circumstances where an application is made to the Tribunal without any statutory basis and without identifying any ground on which on which the Tribunal's jurisdiction may be invoked, it is arguable that the proceedings are "frivolous" or are "misconceived or lacking in substance". The respondent referred to a decision of the Appeal Panel in Zidar v Department of Justice (No 4) [2018] NSWCATAP 266 where the Appeal Panel awarded costs against Mr Zidar in circumstances where neither the appeal nor Mr Zidar's original application to the Tribunal could possibly have succeeded. The Appeal Panel stated that his applications had no tenable basis either in fact or in law and were misconceived and lacking in substance which amounted to special circumstances warranting an award of costs.
6. In Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 the Appeal Panel set out what is required for it to be determined that a claim is "not tenable in fact or in law". The Appeal Panel, referring to Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, stated that, for a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed. The Appeal Panel went on to say that "manifestly groundless" or "clearly untenable" are equivalent expressions. The Panel held that it matters not whether a conclusion that a claim has no tenable basis in fact or law is reached in connection with an application for summary dismissal or after a full hearing on the merits (at [44]).
7. In this matter Ms Ness has been wholly unsuccessful in her arguments that the Tribunal has jurisdiction to deal with her application and/or that the issue should be referred to the Supreme Court. It is clear that there was no decision which was capable of review by the Tribunal. This was drawn to her attention on several occasions but she elected to proceed with her application. I am satisfied that Ms Ness's application was not tenable in fact or law and was lacking in substance. I am not, however, satisfied that the proceedings were frivolous or vexatious. There is no suggestion that Ms Ness made her application out of any malice towards or desire to harass the Department.
8. While the respondent suggests Ms Ness is legally qualified, there is no evidence, however, that she is an Australian lawyer or that she has had the benefit of legal advice. Many unrepresented parties come before the Tribunal are entitled to put their case. As noted above, there is no suggestion that Ms Ness did so out of any malice and the fact that she was misguided in her pursuit of her application, does not mean that her conduct was vexatious in its pursuit. It is readily apparent that she holds genuine concerns about her children's education and the school at which they were previously enrolled.
9. Ultimately, this matter has been determined on the papers and the respondent has not been put to the expense of an oral hearing. While it was required to prepare written submissions on the issues raised, those submissions were not complex and it cannot be said that the respondent has been unduly prejudiced by having to do so. Similarly, although an affidavit in support of the submissions was provided, it largely referred to and attached items of correspondence readily available to the respondent.
10. Having determined that the proceedings had no tenable basis in fact or law and were lacking in substance, there are factors which might warrant the making of a costs order against Ms Ness. However, I am not satisfied that, when all the circumstances are taken into account, that special circumstances have been made out or that it would be appropriate to exercise my discretion as to costs in favour of respondent.

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: 29 October 2019