Zhang v Transport for NSW

The Dismissal Application

1. The matter came before me for directions on 5 July 2022. At that time, Mr O'Dwyer raised the issue of the Tribunal's jurisdiction to deal with the application. I set a timetable for the Respondent to file an application for dismissal and for each of the parties to provide submissions in regard to that application.
2. The Respondent has lodged an application seeking an order that the proceedings be dismissed pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") as misconceived or otherwise lacking in substance on the basis that the Tribunal does not have administrative review jurisdiction.
3. Mr O'Dwyer has provided submissions in support of the dismissal application. The Applicant has not filed submissions.

The Tribunal's power to dismiss proceedings

1. Section 55(1) of the NCAT Act states: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, ...
2. In Foxman v Commissioner of Police, NSW Police Force [2022] NSWCATAD 13, Senior Member Gatland considered section 55(1)(b) of the NCAT Act at paragraphs [39] - [42]: 39. The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; CAT Act, s 55(1)(b). 40. 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]." 41. 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]. This does not mean the Applicants is not aggrieved by some form of governmental conduct, it simply means the Tribunal has no power to intervene or review that conduct. 42. In White v Sutherland Shire Council [2019] NSWCATAD 100 at [8], the Tribunal 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.
3. 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 purposes of section 55(1)(b) of the NCAT Act.

The Tribunal's Administrative Review Jurisdiction

1. The Tribunal's administrative review jurisdiction is conferred by the NCAT Act and the Administrative Decisions Review Act 1997 ("the ADR Act").
2. Section 28(1) of the NCAT Act states: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.
3. Section 30(1) of the NCAT Act states: 30 Administrative review jurisdiction (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
4. Section 7 of the ADR Act provides the following definition: 7 Meaning of "administratively reviewable decision" (1) An administratively reviewable decision is 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.
5. Section 9 of the ADR Act states: 9 When administrative review jurisdiction is conferred (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. …
6. In Foxman v Commissioner of Police, NSW Police Force, Senior Member Gatland provided the following analysis at paragraphs [32] - [37]: 32. The Tribunal has jurisdiction only in respect of those matters for which legislation, referred to in the CAT Act, s 4 as "enabling legislation", has conferred such jurisdiction. 33. The CAT Act expressly identifies some of the legislation to which jurisdiction is conferred, for example CAT Act, Sch 3, cl 1(1) and 3(1)(a). 34. The Tribunal has jurisdiction in respect of matters provided in the CAT Act or other enabling legislation; CAT Act, s 28(3). 35. 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. … 36. The 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) 37. The effect of sections 7 and 9 of the ADR Act is that the Tribunal's administrative review jurisdiction only arises on, and is 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.
7. The Respondent contends that the Tribunal does not have jurisdiction to deal with this application and that it should be dismissed.

Consideration

1. As Senior Member Isenberg noted in White v Sutherland Shire Council and Senior Member Gatland noted in Foxman v Commissioner of Police, NSW Police Force, the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction.
2. Neither party has referred me to any enabling legislation that confers the Tribunal with jurisdiction to review the matters raised in the Applicant's Application. There does not appear to be any legislative instrument conferring jurisdiction.
3. In the circumstances, I am satisfied that the application is misconceived or otherwise lacking in substance for the purposes of section 55(1)(b) of the NCAT Act. Accordingly, the Application should be dismissed.

Order 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: 25 July 2022