Zonnevylle v Department of Justice

NCAT Administrative and Equal Opportunity|2018-05-03

Introduction

The applicant has requested that the Tribunal issue four summonses in this matter. Each summons requires employees of the Tribunal or other NSW Government agencies including the respondent to produce documents and to attend the hearing on 14 May 2018 to give evidence.
On 13 April 2018, the Registrar decided not to issue the summonses. In accordance with Tribunal Procedural Directions 2 (Summonses), she has referred the application to me to determine. In an email to the applicant dated 13 April 2018, the Registrar stated: I refer to your application that the Tribunal issue summons to be issued to each of the following: • The "Information Access officer, NCAT"; • Katherine Forbes, "Dept. of Justice IA officer"; • Rebecca Jeyasingham, Dept. of Justice IA officer"; and • "Information Access officer, Crown Solicitors Office". Each summons requires the recipient to produce documents to the Tribunal and to appear and give evidence at the hearing on 14 May 2018. For the following reasons, I have decided not to issue any of the summonses as sought. The issue in dispute between the parties is whether or not the respondent correctly decided to refuse to deal with the your access application in accordance with s 58(1)(e) of the GIPA Act because you failed to pay an advance deposit payable in connection with your application. The evidence to be given by the witnesses and the documents they are asked to produce has no apparent relevance to that issue. The "Information Access officer, NCAT" and "Information Access officer, Crown Solicitors Office" are not identifiable persons to whom a summons could be directed. In any event, evidence of a Civil and Administrative Tribunal member could have no relevance to the issue in dispute. I note that the Tribunal's Procedural Direction 2 - Summonses provides that if a registrar decides not to issue the summons, the party applying for the summons can ask to have a Tribunal Member decide whether or not the summons should be issued: see par [11] http://www.ncat.nsw.gov.au/Documents/ncat_pd2_summonses.pdf).

Background

On 4 April 2018, the applicant filed an application seeking summonses to be issued to each of the following:

the "Information Access officer, NCAT";
Katherine Forbes, "Dept. of Justice IA officer";
Rebecca Jeyasingham, Dept. of Justice IA officer"; and
the "Information Access officer, Crown Solicitors Office".

Each summons sought to be issued requires the persons identified to attend the hearing on 14 May 2018 to give evidence. In addition, each summons sought to be issued requires each person to produce the following: Documents detailing: a. Codes of conduct & all other conduct obligations conferred on you under your employment. b. Conduct exemptions relevant to yourself and / or legal officers / legal practitioners which apply to part a. c. Codes of conduct relevant to the applicant in proceedings before NCAT & applicable to access applications under the GIPA Act.
The reasons stated by the applicant for issuing each of the summons is as follows: "A party can ask a person to come and give evidence before the Tribunal" Applicant wishes to exercise this right for the following reasons: No statement was submitted by the Respondent. The applicant has had several matters before the Tribunal and in all cases a statement from at least one officer of the Respondent was submitted. Question of procedural fairness The persons whom are requested to come before the Tribunal are: a. The processing officer /decision maker b. The CSO IA offer & the IA officer The applicant alleges that these officers have exercised functions with a lack of good faith & breached sections of the GIPA Act therefore compromising the integrity of the access application.
The applicant also states that relevance of the officers to the hearing should be "blatantly obvious".

Principles - issuing summonses

Section 48(1) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that a summons may be issued by a registrar on the application of a party to the proceedings, or at the direction of the Tribunal. The Tribunal's Procedural Direction 2 (Summonses) in turn provides: 10. A registrar will decide whether or not to issue the summons and is to notify the party applying for the summons of that decision. 11. If a registrar decides not to issue the summons, the party applying for the summons can ask to have a Tribunal Member decide whether or not the summons should be issued.
The overriding principle in relation to summonses is that the evidence sought to be obtained (be it documentary or testimonial) has apparent, as distinct from actual, relevance to the case. In other words, the information sought needs to be able to "throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35]. To put the matter another way, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the evidence to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27].
Given those principles, it is necessary to identify the issues in dispute in this matter.

The application

On 26 June 2017, the applicant sought access to various documents held by the Department of Justice pursuant to the Government Information (Public Access) Act 2009 (NSW) (the Act). Correspondence ensued which resulted in the applicant narrowing the scope of his application to access (in summary): 1. information from the Department of Justice, including expenses of the Head of the Department of Justice for the past three years including purchases made on credit cards, policy documents and codes of conduct; 2. information from the Crown Solicitor's Office, including expenses of the Crown Solicitor for the past three years including purchases made on credit cards, codes of conduct, income received in relation to various Tribunal files; statistics setting out details of how many applications pursuant to the Act had been made in the past five years, and remuneration of the Crown Solicitor; 3. information from the Tribunal, including documents supporting statements and findings in a member's decision; remuneration of the President, Deputy President, Principal Registrar and one of the Tribunal members; contracts of employment for various members; policy documents; and various statistics in relation to time standards.
Section 64(1) of the Act provides that an agency may impose a charge (described as a processing charge") for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Section 68(1) provides that an agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (described as an advance deposit).
The respondent estimated the total processing charge to be $1,035.00, and asked the applicant to pay an advance deposit of 50%, being $517.50, on or before 29 September 2017.
Section 60(1)(c) of the Act provides that an agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason), if the applicant has failed to pay an advance deposit that is payable in connection with the application. As the applicant did not pay the advance deposit as requested, on 4 October 2017 the respondent decided to refuse to deal further with his application (the Decision).
The Decision was signed by Ms Katherine Forbes, the Open Government Information and Privacy Advisor, Open Government Information and Privacy, of the respondent. Ms Forbes expressly referred to s 60(1)(c) of the Act.
The applicant says that he sought an internal review of the Decision, but that the respondent did not respond within the time allowed. Accordingly, on 11 October 2017 he filed an application to the Tribunal seeking administrative review of the Decision. The grounds for his application are stated as: Sect. 112 Improper Conduct Complaint Late decision - sect 51.2 Imposition of charges breaching Sect 63 Alleged breach of Sect 16 Compensation sought for alleged deliberate compromising of access application
After the applicant filed his review application, a number of direction hearings were held, and the matter has been listed for hearing on 14 May 2018.
At the first directions hearing on 28 November 2017, the applicant was directed to give the respondent and the Tribunal a short document identifying the decisions he was seeking to review, and any other matters he said the Tribunal had jurisdiction to deal with. Thereafter, the parties were directed to provide materials, including evidence and submissions, to each other and the Tribunal.
On 4 December 2017, the applicant provided a document in response to the Tribunal initial direction. In summary, he states that: 1. he applied for a review of his access application on the grounds of breaches of ss 3, 5, 12, 15, 16(1), 51(2), 58(1)(d) and (e), 63(4) and 66 of the Act; 2. he includes an improper conduct compliant pursuant to s 112 of the Act; 3. he requires to be informed of any officer of the respondent who "directed Forbes" at any stage of the processing of his application; 4. there appears to be prima facie evidence of a s 116 offence; 5. because of Ms Forbes' unreasonable and discriminatory conduct his rights under the Act have been deliberately compromised his, thus forcing him to seek an unwanted Tribunal review; 6. he seeks compensation for his unnecessary costs including wasted time, and stress.
Finally, the applicant states that the decisions he requires to be reviewed include: Section 80 (a) a decision that an application is not a valid access application, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (I) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment.
The applicant says that these breaches and complaints will be particularized in his further submissions.
The respondent provided its submissions on 9 February 2018. It did not file any statements or affidavits. In summary, the respondent submits: 1. no decision has been made by the respondent that respondent failed to notify a about the initial validity of the application within five working days as required by s 51(2) of the Act does not mean the respondent has made a deemed refusal decision; 2. it has correctly decided to refuse to deal with the Applicant's access application in accordance with s 58(1)(e) of the Act because the applicant failed to pay an advance deposit payable in connection with the application (here the respondent relies on ss 60(1)(c) and 70(1) of the Act); 3. it is entitled to impose a processing charge for dealing with an access application pursuant to s 64 of the Act; 4. it has yet to make a decision to refuse a reduction in a processing charge.
The applicant provided his response on 9 March 2018. In summary, he submits that the Tribunal should exercise its powers to protect his rights to access government information under the Act, to protect the public interest from alleged misconduct of agency officers who abuse his rights. He alleges that his rights have been violated, and that Ms Forbes and Ms Jesayingham (who produced the respondent's initial documents to the Tribunal), and Ms Cobbins (who produced the respondent's submissions referred to above) have acted with a lack of good faith. He also alleges that Ms Forbes and Ms Cobbins have breached "Justice codes of conduct/PSC codes of conduct" by "misrepresenting the proceedings" and making false and misleading statements.
Further submissions, amplifying many of these matters were received from the applicant on 13 March 2018.

Consideration

As I have stated, my initial task is to identify the issues in dispute, so I can then determine, in the light of those issues, whether the summonses are sought to be issued for a legitimate forensic purpose.
I note that one of the grounds of relief is stated as "Sect. 112 Improper Conduct Complaint". This is a reference to s 112 of the Act. That section provides: If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.
Section 112 does not give the Tribunal power to carry out an inquiry into the officer's conduct that is separate from or additional to the administrative review proceedings. While an applicant may lead evidence that relates to the administrative review of the administrator's decision, no evidence is to be led, cross-examination permitted or summonses issued in relation to conduct which does not arise as part of the administrative review. The Tribunal cannot compel the production of information for the sole purpose of determining whether a referral under s 112 should be made. Instead, the power in s 112 is only exercisable on the basis of materials already before the Tribunal in the course of conducting a review of a reviewable decision.
The Decision which the applicant seeks to review was a decision not to process his application any further. The Decision was taken because the applicant did not pay the requested processing fee. The issue in dispute is whether or not the Decision is the correct and preferable one.
The applicant says that he wants the summonses to be issued because:

no statement was submitted by the respondent, whereas in other cases it has;
the "processing officer /decision maker and the various CSO IA officer & the IA officer" have exercised their functions with a lack of good faith and breached sections of the Act therefore compromising the integrity of the access application.

As to the first matter, it is a matter for the respondent whether it wishes to file evidence in the form of one of its officers, or any other person. It has chosen not to (save for the provision of documents pursuant to s 58 of the Act. But it is difficult to see what evidence would be relevant when the issue is the application of s 60 of the Act.
As to the second matter, while the applicant has filed many pages of submissions asserting that various officers of the Government had failed to act in good faith, breached codes of conduct and made false and misleading statements, there is no evidence that supports any of these allegations. However, I note that s 97 of the Act provides that the onus is on the respondent to justify its decisions. Section 97 provides: (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
In my view, neither of these matters support the application to issue summonses.
In my view, this issue to be determined is strictly a legal one, either the respondent was entitled to impose processing fee or it was not. In those circumstances, it is difficult to see how the evidence of any witness, including Ms Forbes who made the Decision, could be relevant.
I agree entirely with the Registrar's analysis that the issue in dispute between the parties is whether or not the respondent correctly decided to refuse to deal with the applicant's access application in accordance with s 58(1)(e) of the Act because he failed to pay an advance deposit payable in connection with his application. The evidence to be given by the witnesses and the documents they are asked to produce has no apparent relevance to that issue.
Accordingly, I refuse to issue the summonses as the evidence sought, both documentary and by way of oral evidence, is not sought for a legitimate forensic purpose.
In addition, I note that: 1. the summonses directed to the "Information Access officer, NCAT", and the "Information Access officer, Crown Solicitors Office" are bad in form. While some rules of Court or statutes allow for the service of summonses or subpoenas on particular offices (and here I have in mind subpoenas to the "The Proper Officer" of a company in liquidation), I am not aware of any rule of the Tribunal which allows a summons to be served on the Information Access officer (if such a position exists) of either the Tribunal or the Crown Solicitors Office. Such an irregularity is a formal, rather than a substantive one, and could in theory be cured by issuing a further summons identifying A particular officer; 2. I do not accept that the evidence of a Tribunal officer (even if identified) could possibly be relevant in the applicant's application; and 3. I do not accept that the evidence of Ms Jesayingham, an employee of the Crown Solicitor, and who has represented the respondent could possibly be relevant in the applicant's application.
I consider that for those additional reasons I should also refuse leave to issue the summonses to those persons.

Other

Finally, I note that, just as these reasons were about to be published, the Registry received a further email from the applicant on 2 May 2018. To the extent that the email relates to the present application I am considering, there is nothing in that email which causes me to change the views I have expressed above or the conclusion that I have reached. The email simply states the applicant requires the summonses to be issued to so that he can cross examine the respondent's employees and have them provide documentary evidence in relation to their functions.

Orders

For the above reasons; 1. The application to issue summonses to each of the "Information Access officer, NCAT", Ms Katherine Forbes, Ms Rebecca Jeyasingham, and the "Information Access officer, Crown Solicitors Office" is refused.

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: 03 May 2018

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (2)

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Cited By (7)