Turitsyna v Chief Commissioner of State Revenue

NCAT Administrative and Equal Opportunity|2021-11-12

Introduction

By her application dated 19 July 2021, filed in the Tribunal on 20 July 2021, the Applicant has asked the Tribunal to review a decision of the Respondent, the Chief Commissioner of State Revenue.
In her application, the Applicant stated that the decision or decisions in respect to which she sought review were notified to her in two letters from a delegate or authorised officer of the Chief Commissioner; both letters are dated 15 July 2021. However, later in submissions, the number of decisions sought to be reviewed was increased.

The issue to be determined by the Tribunal

The question to be determined in this application is whether the Tribunal has jurisdiction to review the Chief Commissioner's decisions as they are identified by the Applicant.

Legal Context

The Tribunal has jurisdiction only in respect of those matters for which legislation, referred to in the Civil and Administrative Tribunal Act, s 4 as "enabling legislation", has conferred such jurisdiction.
The Civil and Administrative Tribunal Act expressly identifies some of the legislation to which jurisdiction is conferred, for example, Civil and Administrative Tribunal Act, Sch 3, cl 1(1) and 3(1)(a).
The Tribunal has jurisdiction in respect of matters provided in the Civil and Administrative Tribunal Act or other enabling legislation; Civil and Administrative Tribunal Act, s 28. The Tribunal has four kinds of jurisdiction: general, administrative, appeal and enforcement. Each kind of jurisdiction is prescribed by legislation.
The circumstances upon which the administrative review jurisdiction is conferred on the Tribunal is provided under the Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9, which provides, relevantly, that: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) 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 (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. …
This ADR Act, s 7 defines an administratively reviewable decision as: (1) … a decision of an administrator over which the Tribunal has administrative review jurisdiction. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct. (Emphasis added)
The effect of the ADR Act, ss 7 and 9 is that the Tribunal's administrative review jurisdiction only arises on, and is exclusively concerned with, the exercise of specific functions imposed or conferred on an administrator by legislation and the decisions, conduct or refusal of an administrator to exercise the functions conferred on them under specific legislation.
In proceedings for the exercise of its administrative review jurisdiction, the Tribunal also has jurisdiction to make ancillary decisions; Civil and Administrative Tribunal Act, s 30(2)(a).
An ancillary decision of the Tribunal includes a preliminary decision made under legislation that is preliminary to a decision determining proceedings, including a decision concerning whether the Tribunal has jurisdiction to deal with a matter; Civil and Administrative Tribunal Act, s 4.
The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; Civil and Administrative Tribunal Act, s 55(1)(b).
In Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 at [26], the Tribunal, considering the meaning of the words of s 55(1)(b) observed that: "…The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]."
Where an application is made for which the jurisdiction of the Tribunal is found to be wanting, such an application may be considered as misconceived or otherwise lacking in substance: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142 at [25]; Long v Metromix Pty Ltd [2019] NSWCATAP 198 at [77].
In White v Sutherland Shire Council [2019] NSWCATAD 100 at [8], the Tribunal, referring to the Civil and Administrative Tribunal Act as the CAT Act, stated: The CAT Act sets out the Tribunal's jurisdiction. One of those jurisdictions is the "administrative review jurisdiction": s 29(2)(b) CAT Act. 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 the ADR Act: s 30 CAT Act, and s 9 ADR Act. Section 30 of the CAT Act provides that, with respect to the Tribunal's administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation.
As the Tribunal observed in Zhang v Transport for NSW [2022] NSWCATAD 248 at [10], It follows that if an application concerns a decision in respect of which the Tribunal does not have jurisdiction, the application may be considered as misconceived or otherwise lacking in substance for the purpose of s 55(1) of the NCAT Act.
This does not mean the Applicant is not aggrieved by some form of governmental conduct; it simply means that the Tribunal has no power to intervene or review that conduct. As the Respondent correctly submitted, the Tribunal does not have a broader jurisdiction to review the lawfulness of State executive and legislative action.
The 4 November 2021 Memorandum urged the Tribunal to consider the following passage from Alchin v Rail Corporation NSW [2012] NSWADT 142 at [20]-[21] in which the predecessor Tribunal stated: The power to dismiss summarily a complaint or part of a complaint under s 102 should be exercised with extreme caution and the Tribunal must approach these applications on the basis that applicants should be given every reasonable opportunity to set out the content of their complaints and to produce evidence to support them - Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84]ff and Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [27] (although this decision deals with the previous provision corresponding to s 102, the principles are equally applicable to s 102). As to the proper approach for the Tribunal to take, it was held in Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]: 28 In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant's version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant's assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence."
The Tribunal in Alchin, which was concerned with dismissal under the Anti-Discrimination Act 1997 (NSW), s 102, went on to say at [22] Put another way, the Tribunal's should ask, whether taking the applicant's case at its highest, there is enough material in the complaint to satisfy the Tribunal that there is a case to answer - Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].
These passages are oft-cited and unchallenged.
At the hearing of the application for dismissal, the Applicant's agent, in oral submissions, urged the Tribunal to place 'facts before law'. There is force in that submission as far as consideration of the existence of jurisdictional facts which inform whether the Tribunal's jurisdiction arises by reference to whether, for example, a decision has been made under a provision of legislation which then gives rise to a reviewable decision of the Tribunal.
Unlike Alchin, however, the question on this application does not concern a contest over the transactional facts; there was no dispute that the Applicant arrived in New South Wales from outside Australia on about 14 December 2020, nor is there any dispute that she was detained in quarantine, made to stay in a hotel until about 29 December 2020, was subjected to testing for COVID-19 while in quarantine, and had her information released to the Respondent.
One possible jurisdictional fact raised by the Applicant in her submissions was whether the hotel in which she was quarantined was health service provided by the Sydney Local Health District or, as she contends, "this was a police scheme for which Revenue NSW is unlawfully attempting to charge and collect monies to which it is not entitled".

Consideration of the Decisions and Enabling Provisions Identified by the Applicant

In her original application, the 3 December 2021 Memorandum and the 2 November 2022 Memorandum, the Applicant asserted that she had standing (by which I have inferred, the right to apply to the Tribunal for review) under the decisions and legislative provisions which are noted above at paragraphs 9, 26, 27 and 33(4). I now consider each of the main legislative provisions she identified in those documents.

Public Health Act and the Health Services Act

The Public Health Act, s 7 was considered in Davis v Minister for Health [2021] NSWCATAD 312. That provision does confer jurisdiction on the Tribunal to review a decision, but the jurisdiction is limited to actions and directions given by the Minister (in that case, a direction that unvaccinated healthcare workers were not to attend work). As the Respondent correctly submits, the provision does not extend jurisdiction to allow the Tribunal to review the conduct or decision of the Respondent. The provision does not extend to enliven in the Tribunal's jurisdiction to review the validity of Order No. 4.
The Tribunal has limited review functions arising from the Public Health Act, ss 64 and 65. It is concerned only with a public health order that relates to an individual person given under the Public Health Act, s 62. This is not what occurred in this case; the Applicant submits she was the subject of Public Health Order No. 4.
There is no provision in the Health Services Act that enlivens the Tribunal's jurisdiction.
Accordingly, the Tribunal's jurisdiction is not enlivened with regard to those provisions.

State Debt Recovery Act

The State Debt Recovery Act, ss 44 and 45 provide for the challenge of a referable debt. That challenge must be made before a court. The Tribunal is not a court for the purposes of that provision. Accordingly, the Tribunal's jurisdiction is not enlivened with regard to those provisions.

Biosecurity Act 2015 (Cth)

The Respondent submits, and the Tribunal agrees, that the Biosecurity Act is not a source of review jurisdiction for this Tribunal.

Anti-Discrimination Act

As noted above, this aspect of the Applicant's claim was the subject of separate proceedings. The Respondent informed the Tribunal at the hearing in November 2022 that leave had been refused to the Applicant, but those reasons were not, at that time, available.

Police Act

The Police Act, s 211C provides: A person aggrieved by a decision of the Commissioner under section 208 (1) as to the amount payable by the person under that subsection where no such amount is prescribed by the regulations may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
The Police Act, s 208(1), referred to by s 211C provides: 208 Charges payable for attendance at sporting events, escorts and other services (1) If a member of the NSW Police Force (whether or not in compliance with any law) - (a) attends a sporting or entertainment event, at the request of the person conducting or organising that event, for the purpose of maintaining order, or (b) provides, at the request of a person, an escort for a vehicle or trailer carrying a long or wide load, or (c) provides any information to a person, at the person's request, in respect of a visa application, the Commissioner is entitled to demand payment by the person of such amount as may be prescribed by the regulations or, if no amount is so prescribed, of such amount as the Commissioner thinks fit.
The Applicant was not able to identify how it could be said that the NSW Police involved in hotel quarantine under, relevantly, Order No. 4 could be said to meet any of the criteria of action under s 208(1). It was not suggested by either party that hotel quarantine would meet the definition of a "sporting or entertainment event". The Applicant was not a person who was conducting or organising an event, nor did she request police attend for the purpose of maintaining public order.
There is no application of the Police Act, s 208(1) to the undisputed facts of these proceedings.

Conclusion

The Applicant has been unable to show that the Tribunal has jurisdiction to review any of the decisions she has identified by reference to any enabling legislation.
Having regard to the matters above, the Tribunal must dismiss the application on the basis that it is misconceived or lacking in substance; Civil and Administrative Tribunal Act, s 55(1)(b).

Order

Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b), the application 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: 13 December 2023

Anti-Discrimination Act 1997(NSW)

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