Wojciechowska v Secretary, Department of Communities and Justice

NCAT Appeal Panel|2022-07-01

REASONS FOR DECISION

By Notice of Appeal filed on 12 November 2021 the appellant appeals a decision of the Tribunal made on 15 October 2021.
The appeal came before us on 1st July for hearing and at the conclusion of the hearing we informed the parties we intended to make orders 1 and 2 set out in paragraph 36 of these reasons and that we would later provide our reasons in writing. These are those reasons.

Tribunal decision

Before the Tribunal, the appellant challenged the administrative decision of the respondent made on 10 March 2021 made under the Government Information (Public Access) Act 2009 (NSW)("GIPA act"), (the reviewable decision).
Following the lodgement of the appellants application for administrative review, on 1 September 2021 the appellant raised a preliminary issue challenging the Tribunal's jurisdiction to hear and determine her application.
The appellant contended that as she was a resident of Tasmania, the Tribunal had no jurisdiction to exercise its administrative powers under the GIPA act. The applicant (now appellant) sought a preliminary determination on this issue of law prior to the hearing of the application for review that had been fixed for hearing on 16 September 2021.
The Tribunal heard the appellant's jurisdictional challenge on 16 September 2021 as a preliminary matter to the hearing of the substantive claim for relief.

The Appeal

The Notice of Appeal seeks orders that "All orders and decisions" arising under the decision of the Tribunal be appealed. The appellant acknowledged that she required leave to bring the appeal, stating: The Applicant seeks leave. The reason for granting leave is that there is evidence that was not presented to the Tribunal below.

Directions: 3 December 2021

The appeal proceedings came before the Tribunal for Directions on 3 December 2021. On this date the appeal was listed for call over on 12 January 2022.
On 21 January 2022 the respondent filed a Reply to the Notice of Appeal. The Reply opposed the orders sought In the Notice of Appeal and opposed the grant of leave on the basis that the grounds of appeal were non-persuasive; that there was no basis upon which the Tribunal should grant leave.
The Reply states, inter alia, as follows: "The Respondent foreshadows that in the absence of sufficient particularity relating to the grounds of appeal, the respondent will make an application to have this matter dismissed under section 55 (1) (b) of the Civil and Administrative Tribunal Act No2 2013 ("CAT act") on the basis that the Applicant's appeal application (either in its entirety of in relation to specific appeal points) lacks substance and is vexatious and/or frivolous".
In so far as the appellant challenged the jurisdiction of the Tribunal, the Reply states that the appellant had raised similar or identical issues concerning the jurisdiction of the Tribunal in other proceedings. The Reply states: "In these circumstances, it may be appropriate for the Tribunal to postpone its consideration of the Applicant's appeal application pending its determination of the applicant's other proceedings".
The Reply foreshadowed that an application for costs would be made on the basis that special circumstances existed, namely the absence of sufficient particularity relating to the grounds of appeal

Directions: 12 January 2022

On 12 January 2022 the following relevant orders and directions were made: 1. The respondent is to lodge with the Tribunal and give to the appellant a copy of the Reply by 19 January 2022 2. The appeal is listed for further call over on 16 February 2022 at 1 PM 3. The appellants application at the appeal panel for referral of a question of law to the Supreme Court is refused.

Delivery of reasons: Hearing on 3 December 2021

In the course of the directions hearing on 3 December 2021 the appellant sought an order that the Tribunal member conducting the Directions Hearing should be disqualified. Such application was refused. On 12 January 2022 the Tribunal delivered written reasons in respect of the disqualification application made on 3 December 2021. The reasons relate to the disqualification application and also refer to numerous other proceedings which have been instituted by the appellant.

Directions: 16 February 2022

The proceedings came before the Tribunal for further Directions on 16 February 2022.
The Directions then made relevantly required the appellant to provide, by 31 March 2022:

all evidence to be relied upon to be provided to the respondent
the sound recording or transcript of the hearing at first instance
written submissions in support of the appeal

The hearing was fixed for 20 May 2022 at 10:15 AM.
The Tribunal forwarded a letter to the parties on 13 April 2022 reminding the parties of the necessity to comply with the directions.

Directions : 14 April 2022

On 14 April 2022 a direction was made listing the proceedings for call over on 27 April 2022. The reason for the convening of the directions hearing is not known to the Appeal Panel.

Directions : 27 April 2022

On 27 April 2022 the Directions made on 16 February 2022 were extended. The time in which the appellant was to provide all evidence, the transcript or audio recording of the first instance hearing and submissions was extended to 27 May 2022. Orders were made extending the time for the respondent to file its material in reply.
The appeal was listed for hearing on 1 July 2022.

Appellant's communication to Tribunal

On 30 June 2022 at 4:21 PM the appellant forwarded an email to the Tribunal stating inter alia: "I consent to the hearing being stayed pending the determination of Supreme Court proceedings number 2022/0015 5046 (if the respondent consents). I also agree that the hearing be vacated and the matter of jurisdiction be considered on the papers if the respondent consents. In this respect I rely upon my submissions below (items 1 and 2 in Appendix PW 1). I also provide the respondent's submissions below as item 6 in Appendix PW 1. I note that the Department in the past indicated it wanted to have these proceedings stayed pending the determination of the appeals with the NCAT Nos: 2021/0030 0552 and 2021/0023 1441 (both still undecided) and the foreshadowed appeal from them to the Supreme Court of New South Wales on the basis that the NCAT has no jurisdiction to hear and validly determine these NCAT proceedings (if the Appeal Panel finds to have jurisdiction). On 8 June 2022 I emailed the Department referring to the summons filed with the Supreme Court of NSW seeking declarations that the NCAT has no jurisdiction (items 4 - 5 in Appendix PW1). At the time of writing this email, I have not received any response from the Department".

1 July 2022

1 July 2022 the respondent filed 144 pages of material in opposition to the applicant's indication that she would "consent to the hearing being stayed". The material provided included substantial documentation relating to factual issues concerning the original hearing and authorities already decided by the Tribunal which determined that the tribunal possessed the requisite administrative power to make the orders sought in the proceedings.

Supreme Court Proceedings

Significantly, included in the material provided by the respondent is a copy of a summons filed by the appellant on 29 May 2022 in the Supreme Court of New South Wales, Equity Division: proceedings 2022/0015 5046 ("the Supreme Court proceedings"). Such summons included reference to six other proceedings which had been instituted by the appellant in the Tribunal, each of which raised the same issue of jurisdiction as are raised in the present appeal. The appellant seeks orders from the Supreme Court declaring that the Tribunal has no jurisdiction to determine each of such matters.

Hearing: 1 July 2022

The hearing took place by telephone. The appellant appeared for herself and Mr Michael McIntosh, solicitor, appeared for the respondent.
The Appeal Panel sought to clarify the critical issue in the proceedings. The Appeal Panel suggested to the parties that the critical issue for determination was whether the Tribunal possessed jurisdiction to determine the validity of the reviewable decision. Each party agreed that this was the paramount matter for consideration.
Having established such issue, the Appeal Panel asked the appellant if it was her preferred course that the appeal be stayed pending determination of the issues raised by her Supreme Court summons. The appellant indicated that such course was her wish. The appellant made it plain however that she was not making a stay application.
The Appeal Panel then enquired of the respondent whether the determination by the Supreme Court would resolve the issues, not only raised on the appeal, but also in five other proceedings commenced in the Tribunal by the respondent which had been determined adversely against her, and also to other proceedings commenced by her, raising the same issue, which were heard but yet to be determined by the Tribunal.
The respondent indicated that such would be an appropriate course. However, the respondent indicated that it considered the appeal to lack substance. The respondent submitted that the Appeal Panel should strike out the proceedings, even though no formal application had been made.
The Appeal Panel then referred to the fact that in its Reply filed on 21 January 2022, the respondent had foreshadowed that it would take proceedings to strike out the appeal on the basis that it was vexatious.

Appeal Panel's consideration

The Appeal Panel has considered the submissions of the respondent. However, in the absence of the respondent filing of an application to strike out the notice of appeal, as foreshadowed in its Reply, it did not consider that a hearing on the strike out would be an appropriate course, especially since the appellant had already filed proceedings in the Supreme Court of New South Wales. Further, the appellant informed the Appeal Panel that she would proceed with due expedition to prosecute her claim in the Supreme Court.
Since the Supreme Court summons raises the critical issue of jurisdiction, the Appeal Panel, in fulfilment of the guiding principle referred to in section 36 of the CAT act namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings, is satisfied that a stay is warranted to determine authoritatively the issue raised by the appellant not only in the current appeal, but also in other proceedings. In adopting such course, a multiplicity of decisions, will be avoided. Further the Appeal Panel has considered that it would be a waste of resources and costs if it proceeded to hear the appeal, only to have its decision possibly reversed by the Supreme Court. The Supreme Court's determination will resolve not only the present appeal, but the issue of jurisdiction in the appellant's other proceedings.
The Appeal Panel notes that Orders (1), (2) and (3) of the orders sought in the Supreme Court summons refer to other proceedings instituted by the appellant before this Tribunal but do not refer to the proceedings under appeal namely the decision in Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298, nor this appeal being proceedings (Wojciechowska v Secretary, Department of Communities and Justice (2022/00322248)). The proceedings already referred to in the summons will raise the issue of jurisdiction. However, the parties may consider whether it would not be prudent to include the current proceedings.
In making the orders, the Appeal Panel has granted leave to either party to relist the appeal on 14 days notice to the other party. This provision will ensure that should there be any delay in the prosecution of the Supreme Court proceedings, either party may relist the appeal.

Orders

The Appeal Panel orders: 1. The appeal is stayed pursuant to section 43 (3) of the New South Wales Civil and Administrative Tribunal Act 2013 pending judgement being delivered by the Supreme Court of New South Wales Equity Division in proceedings number 2022/00155046. 2. The parties have leave to relist the appeal on 14 days' notice to the other party.

            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar 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: 12 July 2022

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Cited By (2)