Wojciechowska v Secretary, Department of Communities and Justice

Court of Appeal (NSW)|2024-07-29|Before: Adamson JA

Solicitors: Not applicable (Applicant) Crown Solicitor's Office (Respondents) File Number(s): 2023/441430 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Appeal Panel Date of Decision: 1 September 2023 Before: Senior Members Sigrid Higgins and Anthony Lo Surdo File Number(s): 2021/322248

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

The factual background

The applicant applied to the Secretary pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA) for access to information. The Secretary refused her application on the basis that the information was not held. The applicant's application for administrative review of that decision was dismissed and the Secretary's decision upheld by the second respondent, the New South Wales Civil and Administrative Tribunal (the Tribunal): Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298. Ultimately, on 1 September 2023, an Appeal Panel of the Tribunal (constituted by Senior Members Sigrid Higgins and Anthony Lo Surdo) dismissed the appeal pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), as the applicant failed to appear (the AP Decision).

The proceedings in this Court

The applicant commenced proceedings in this Court by summons filed on 1 December 2023 in which she sought judicial review of the AP Decision, including associated relief. The three named respondents to the summons were the Secretary, as first respondent, the Tribunal, as second respondent and the President of the Tribunal, as third respondent. The first respondent filed an appearance (although not until 7 July 2024). The second and third respondents filed submitting appearances on 22 December 2023 and 11 January 2024 respectively.
On 5 April 2024, the applicant filed an amended summons, naming Ms Higgins as the fourth respondent, Mr Lo Surdo as the fifth respondent and Ms Szeto (who is an employee in the Tribunal's Registry) as the sixth respondent. The applicant's claim for relief against the sixth respondent included the following prayers in the amended summons: "… 2. That the NSW Civil and Administrative Tribunal, including member Suthers, member Higgins and Lily Szeto, be compelled to deal with the NSW Civil and Administrative Tribunal proceedings involving the first applicant, including but not limited to proceedings 2021/00322248, in accordance with the law. … 4 That the Registrar of the NSW Civil and Administrative Tribunal Act and all of the employees of the Registry, including Lily Szeto, be compelled to deal with any proceeding involving the applicant in accordance with the law by not reconstituting or purporting to reconstitute the Tribunal without prior compliance with s 52 of the Civil and Administrative Tribunal Act 2013 (NSW). …" (Emphasis added.)
Following the filing of the notice of motion, the applicant agreed to the removal of Ms Higgins and Mr Lo Surdo as the fourth and fifth respondents, but did not agree to the removal of Ms Szeto as sixth respondent. This led to the filing of the amended notice of motion on 29 July 2024, which confined the claim to an order removing the sixth respondent as a party and an order that the applicant pay the costs of the first and sixth respondents, these matters being the only matters still in dispute.
The applicant challenged the following evidence in an affidavit of Sally Kirk affirmed on 5 June 2024, which was adduced by the Secretary in support of the motion to establish the nature of the sixth respondent's role at the Tribunal, as follows: "55. I am informed by Ms Morgan Morris, Policy and Executive Services Officer at the Tribunal, and believe, that: a. Ms Lily Szeto is employed as a staff member of the Tribunal Registry, in the position of Team Leader of the Registry Appeals Team, but is not appointed as a registrar or a principal registrar; and b. all employees of the Tribunal Registry (including Ms Szeto) are employed as members of the NSW Public Service, under s 22 of the CAT Act, to enable the Tribunal to exercise its functions."

Evidentiary rulings

In the course of the hearing of the notice of motion, I ruled on objections to affidavits and indicated that I would provide my reasons for those rulings in the principal reasons. Those reasons are as follows.

The affidavit of Sally Kirk affirmed 5 June 2024

The applicant objected to paragraphs 10 (which was not read), 55, 56 (which was not read) and 57 of this affidavit. I allowed paragraph 57 on the basis that it ought be read as a submission. As to paragraph 55 (set out above), the applicant submitted that it was hearsay evidence, and therefore inadmissible, in that the business records which would establish Ms Szeto's employment status had not been tendered. I allowed the evidence as the hearsay rule does not apply to evidence in interlocutory proceedings if the party who adduces it also adduces evidence of its source: s 75 of the Evidence Act 1995 (NSW).
The applicant sought leave to cross-examine Ms Kirk on her affidavit. The applicant indicated that she wanted to cross-examine Ms Kirk on various topics which included the following: 1. to establish her "gross incompetence" in not noticing, realising or looking sufficiently closely at the amended summons to identify the addition of the fourth, fifth and sixth respondents; 2. to explore the status of the sixth respondent's employment as set out in paragraph 55 of Ms Kirk's affidavit and, thus, whether Ms Kirk, as a government lawyer within the meaning of the Legal Profession Uniform Law Application Act 2014 (NSW), was entitled to represent her at all; 3. to explore whether Ms Kirk was entitled to act for the first and sixth respondents in circumstances where there was an alleged conflict of interest between them; and 4. other matters, which the applicant refused to articulate on the grounds that they were "privileged".
The issue to be resolved is whether the sixth respondent is a proper party to the proceedings or whether she ought be removed as a party. This question does not depend on when Ms Kirk noticed that the amended summons joined three further respondents. Further, as set out in more detail below, the alleged "delay" was a matter of a few days and has no bearing on the result. None of the topics raised by the applicant was germane to the application. Leave is required to cross-examine the deponent of an affidavit read on an interlocutory application. I was not persuaded that leave ought be granted as no proper forensic purpose was identified.

The applicant's affidavit affirmed 5 July 2024

In this affidavit, the applicant deposed to facts concerning the filing or non-filing of notices of appearance by the first, fourth, fifth and sixth respondents. The applicant raised this matter with the Registrar of this Court on 8 July 2024, which led to a direction being made that notices of appearance were to be filed by the fourth, fifth and sixth respondents by close of business on 8 July 2024. This direction was complied with by the fourth and fifth respondents but the sixth respondent did not, according to JusticeLink, file a notice of appearance until 26 July 2024. As the issue relating to notices of appearance had been regularised by the time of the hearing of the notice of motion, I rejected this affidavit on the grounds of relevance.

The applicant's affidavit affirmed 15 July 2024

Objection was taken to paragraphs 2-7 and 9-10 of this affidavit. I rejected paragraphs 2-4 and 6 on the grounds of relevance as they were premised on the assumption (which proved to be misplaced) that the Registrar (rather than a Judge of Appeal) would hear the notice of motion. I allowed paragraph 5 in which the applicant confirmed that she had been able to access the exhibits in the Court Book on 12 July 2024. I allowed paragraph 7 as being potentially relevant to costs. I allowed paragraph 8 because it indicated that the applicant wished to pursue separate proceedings against Ms Szeto (she relied on this as a reason why Ms Szeto ought not be removed as a party). I rejected paragraphs 9 and 10 as inadmissible since they amounted to no more than speculation about Ms Kirk's and the Secretary's respective states of mind.

Consideration

This Court's power to remove a party from proceedings derives from the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.1, which addresses the application of Part 51 of the UCPR, and UCPR, r 51.4(3), which provides that the Court may order the addition or removal of any party. UCPR 51.4(1) provides that each person who is directly affected by the relief sought or is interested in maintaining the decision of the court below must be joined as a respondent.
The CAT Act provides that the Tribunal is to consist of the President, Deputy President and various categories of members: s 9. Relevantly, in the case of an internal appeal, the Appeal Panel is to consist of at least one member who is an Australian lawyer or 2 or more members, at least one of whom must be an Australian lawyer: s 27(1) of the CAT Act.
The order of the Appeal Panel which is challenged in this Court is the dismissal of the applicant's appeal against the Tribunal's decision to uphold the Secretary's response to the applicant's GIPA application. The Appeal Panel, constituted by Senior Members Higgins and Lo Surdo, was the relevant decision-maker.
The applicant resisted the removal of the sixth respondent on several bases.
First, the applicant submitted that, as the fourth, fifth and sixth respondents had not filed notices of appearance prior to the filing of the notice of motion, the notice of motion was invalid and could not be dealt with by the Court.
This submission would appear to be based on UCPR, r 51.5, which provides, relevantly, "[e]xcept by leave of the Court, a party may not take any step in proceedings in the Court (including an appearance before the Court) without entering an appearance in the proceedings." Once a notice of appearance has been filed (as it was accepted had occurred in the present case, albeit late), this regularises the irregularity occasioned by the late filing. Accordingly, the Court was entitled to determine the notice of motion, as the Secretary and the sixth respondent had filed notices of appearance before it was heard.
Secondly, the applicant submitted that the notice of motion ought not be dealt with as the delay in filing the motion had been occasioned by the circumstance that Ms Kirk, the solicitor with carriage of the matter on behalf of the respondents, had not noticed that the amended summons added the fourth, fifth and sixth respondents. It is preferable that a party who seeks to be removed as such from proceedings, make an application to be removed as soon as practicable. In the present case, the amended summons was filed on 5 April 2024 and an unsealed copy was provided to Ms Kirk, who did not notice that it added three further parties until 9 April 2024. On that day, Ms Kirk wrote to the applicant and explained why her clients contended that it was not appropriate that the fourth, fifth or sixth respondents be joined as parties to the proceedings. She invited the applicant to file a further amended summons, removing them as parties and foreshadowed that, if this were not done, a notice of motion would be filed, seeking an order that they be removed as parties.
When the matter came before the Registrar on 10 April 2024, Ms Winnett, who appeared on behalf of the respondents, raised the issue of the added parties. The matter was stood over, in part to give the applicant time to consider the issue of proper parties. Further correspondence then ensued between the parties which led to the applicant's agreement to removing the fourth and fifth respondents as parties.
Ms Kirk's explanation for the minor delay was full and satisfactory. It did not cause any material delay in the proceedings. There is no reason why a minor slip by a party or practitioner ought deprive that party of a forensic procedure which would otherwise be available to it. I reject the submission that Ms Kirk's initial and temporary overlooking of the addition of the parties has any significance.
Thirdly, the applicant submitted that Ms Kirk was not entitled to act for the sixth respondent at all because it had not been established that Ms Szeto was a public servant. As referred to above, the hearsay evidence in paragraph 55 of Ms Kirk's affidavit established that Ms Szeto was an employee of the Tribunal (and therefore that she need not be a party, for the reasons given below).
Fourthly, the applicant submitted that there was a conflict of interest between the Secretary and the sixth respondent. In the circumstances of the present case, the applicant has not identified (and I am unable to discern) any conflict of interest, whether actual or potential, between the Secretary and the sixth respondent.
Fifthly, the applicant submitted that it was necessary to join the sixth respondent because injunctive relief (which operates against the person) is sought in addition to relief in the nature of prerogative writs, thereby making her a person directly affected by the relief sought. The applicant also submitted that, because Ms Szeto is not a "relevant staff member" (defined in s 89 of the CAT Act as, relevantly, "a principal registrar or any other registrar"), s 89(3) of the CAT Act did not operate to protect her from claims.
In judicial review proceedings, it is unnecessary to name and seek relief against individual persons, as opposed to the decision-making body. For similar reasons, where an order is sought requiring a person to do something, it is not necessary to join employees of that person: Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275 (Kaldas) at [232]-[233] (Basten JA, Macfarlan JA agreeing); Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 (Sinkovich) at [13] (Basten JA, Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreeing) (at [13]). Thus, the distinction which the applicant sought to draw between an application for orders in the nature of prerogative writs and an application for injunctive relief is not maintainable. The sixth respondent was employed as a Team Leader of the Registry Appeals Team. Anything Ms Szeto did in the course of her employment would be affected by an order against the Tribunal but she would not, relevantly, be affected by the relief sought since she is a mere employee in this context. She was not the relevant decision maker and her role was an administrative one. She is neither a necessary nor a proper party to the proceedings. Section 89(3) of the CAT Act does not affect this conclusion.
Sixthly, the applicant submitted that it was too early to determine whether the sixth respondent was a proper party to the proceedings as the respondents had not filed any document in response to the amended summons. The inappropriateness of the sixth respondent being joined as a party to the proceedings is evident from the nature of the proceedings and the orders sought.
While in Kaldas and Sinkovich, the applications for removal of individuals as parties were made at the conclusion of the substantive proceedings, there is no need for such an application to await the substantive hearing. Indeed, the provision for addition or removal of a party in UCPR, r 51.4(3), together with the overriding purpose of Part 6 of the Civil Procedure Act 2005 (NSW) (the Act) to facilitate the just, quick and cheap resolution of the real issues in dispute (s 56), is consistent with such an application being made at an early stage of the proceedings. Inappropriate joinder is to be avoided and, if possible, remedied at an early stage. There is no utility in deferring the removal of the sixth respondent. The maintenance of proceedings against someone who is not a proper party to them is to be avoided: litigation may impose significant stress, which is unwarranted when someone has not been properly joined to proceedings.
Seventhly, the applicant submitted that the overriding purpose of the Act favoured dismissal of the notice of motion because, if Ms Szeto were removed as a party, it would be necessary for the applicant to commence separate proceedings against her, seeking additional relief. The applicant also relied on UCPR, r 6.19, which provides that two or more persons may be joined as, relevantly, defendants in any originating process if separate proceedings against them would give rise to a common question of fact or law, and all rights of relief claimed arise out of the same transaction.
The Court is required to determine the application made by the Secretary and the sixth respondent on the basis of the amended summons as filed. The sixth respondent is not a proper party to the proceedings as constituted by the amended summons. Although the applicant has raised the spectre of other proceedings against the sixth respondent, this does not provide a basis for the sixth respondent to remain as a party to these proceedings.

Costs

The applicant submitted that, even if the sixth respondent were removed as a party, the appropriate order for costs would be that each party pay their own costs of the notice of motion. She submitted that Ms Kirk had brought about the need for the notice of motion as she had not initially picked up that the amended summons added three additional parties. She also submitted that Ms Kirk's affidavit, together with its exhibit, comprised in the order of 700 pages, which was excessive for a straightforward notice of motion, which ought to have been dealt with in a more concise manner.
Ms Winnett sought an order that the applicant pay the first and sixth respondent's costs of the notice of motion.
The applicant persisted in opposing the order to remove the sixth respondent as a party to the proceedings, despite the Secretary's strenuous attempts to persuade her that the sixth respondent was not a proper party. In these circumstances, I am not persuaded that there is any reason to depart from the general rule that costs follow the event: UCPR, r 42.1.
The length of the affidavit filed in support of the notice of motion was a consequence of the size of the documents exhibited and is a matter for the costs assessor.
As referred to above, the orders which I made at the conclusion of the hearing were: 1. The sixth respondent, Lily Szeto, be removed as a party to the proceedings; 2. Order the applicant, Paulina Wojciechowska, to pay the costs of the first respondent, the Secretary, Department of Communities and Justice, and of the sixth respondent, Lily Szeto, of the notice of motion filed on 5 June 2024.

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: 31 July 2024

(2017) 107 NSWLR 341

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