These reasons relate to the failure by the appellant to pay the relevant filing fee applicable to the lodgement of an internal appeal from a decision of the Administrative and Equal Opportunity Division of this Tribunal made on 26 July 2018 in application 2017/00319363 (original proceedings).
The original proceedings were an application for access to information under the Government Information (Public Access) Act, 2009 (NSW). The respondent to the appeal was the respondent in the original proceedings.
The Notice of Appeal is dated 21 August 2018. It was filed on 24 August 2018. The orders sought on in the Notice of Appeal were in the following terms:
Dismiss/Stay Titterton's & Ransome's decisions
Rehearing of File 2017/00319363
Compensation sought against NCAT for alleged breach of duty/misconduct of Tribunal members & Registry offices & to be awarded to the Applicant
Complaints against Tribunal &and Justice officers upheld
Tribunal members and Dept. of Justice officers to be disciplined/sanctioned/dismissed for misconduct
For present purposes, it is unnecessary to consider the content of the Notice of Appeal or whether the issues raised can properly be the subject of an internal appeal. Rather, the issue is whether the proceedings should be dismissed reason of the failure to pay the prescribed fee.
The appeal was listed for directions on 6 September 2018. At that time, the appellant made various applications and orders were made for the preparation of the hearing of the appeal. The appeal was fixed for hearing on 30 November 2018. The directions were made in circumstances where the fee applicable to the appeal had not then been paid.
After the directions hearing, on 6 September 2018, the Appeal Panel made further directions in chambers. Those directions raise the fact that the applicable fee for the appeal of $422.00 had not been paid and provided for submissions to be made by the parties concerning whether or not the appeal should be dismissed. The directions were in the following terms:
1. The Appeal Panel notes the fee for appeal has not been paid. The fee is $422.00 (Fee).
2. On or before 13 September 2018, the appellant is to pay the Fee to the Registrar of the Tribunal.
3. In the event the fee is not paid by 13 September 2018, on or before 13 September 2018 the appellant is to file and serve evidence and submissions concerning why the appeal should not be dismissed.
4. On or before 17 September 2018 the respondent is to file and serve submissions in reply.
5. On or before 20 September 2018 the appellant is to file and serve submissions in response.
6. The submissions are to include submissions as to whether and order should be made dispensing with a hearing pursuant to s.50(2) of the Civil and Administrative Tribunal Act, 2013.
The appellant did not file any evidence or written submissions in chief or in reply in relation to this matter.
The respondent filed written submissions on 17 September 2018. Those submissions were to the effect that the appeal had not been properly brought and should be dismissed.
The respondent says that directions were made for the appellant to pay the fee on or before 13 September 2018. This has not occurred. The appellant has not provided any submissions and evidence concerning why the appeal should not be dismissed. In these circumstances, an order should be made dispensing with a hearing and the appeal should be dismissed.
[2]
History of appeal proceedings
When filing the appeal, the appellant made an application for the fee for the Notice of Appeal to be waived. At the time the appeal was lodged, the appellant also provided a completed credit card authority form dated 21 August 2018 to pay the amount of $422.00.
The application to waive the fee was refused on 24 August 2018. A letter was sent by the Registry to the appellant dated 24 August 2018 in the following terms (formal parts omitted):
Your request to waive the fee for your Notice of Appeal and Application for Stay of The original Decision Pending Appeal has been refused for the following reasons:
No special circumstances have been provided in support of your application.
The Registry will process your completed Credit Card Authority dated 21.08.2018 for the amount of $422.00.
Following refusal of the application to waive the fee, the Registry apparently attempted to process the credit card authority on four occasions. However, the payment was declined.
Subsequently, further correspondence was received from the appellant requesting a review of the refusal to waive the fee and/or making complaints about the failure to waive the fee.
By letter dated 5 September 2018 the Principal Registrar confirmed that the fee waiver was refused and that any further correspondence from the appellant on this issue would be noted but a reply would not be sent. That letter was sent by email to the appellant. It was In the following terms (formal parts omitted):
I refer to your further email of 27 August 2018 about the Registry refusing your fee waiver request for your Notice of Appeal and Application for Stay of Original Decision Pending Appeal. I reply to you in my capacity as NCAT's Principal Registrar and Executive Director.
As I advised in my letter to you of 27 August 2018, NCAT generally grants fee waivers on the basis of financial hardship. Dissatisfaction with a decision is not considered grounds for waiving the fee for an appeal.
Your fee waiver request was considered and refused by the Registrar of the Administrative & Equal Opportunity Division. The Registrar's decision is not an appealable decision and cannot be reviewed by the Tribunal.
I draw your attention to rule 5 of the Civil and Administrative Tribunal Rules 2014 that allows the Tribunal to dispense with a rule requirement, noting that the rule requiring the payment of a fee is rule 25(2)(d).
Please be advised that any further correspondence from you on this issue will be noted but a reply will not be sent. The correspondence will be recorded and kept with your other correspondence on this issue at the Principal Registry.
At this point I should note a decision concerning the payment of a fee is not a decision over which the Appeal Panel has internal appeal jurisdiction. Section 32(1) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) makes clear that the Tribunal only has internal appeal jurisdiction over:
1. any decision made by the Tribunal in proceedings for a general decision or an administrative review decision; and
2. any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.
A decision in connection with fees is not declared by the NCAT Act nor otherwise specified by the Rules to be an internally appealable decision.
Following directions made by the Appeal Panel on 6 September 2018, email communications were sent by the appellant to the Tribunal. However, none of these communications appear to contain any submissions concerning the issue of payment of the fee or any evidence relating to this issue. Rather, those documents relate to other matters, including the directions hearing which had occurred on 6 September 2018 and various decisions made by the Appeal Panel in respect of unrelated applications made by the appellant.
Be that as it may, as at 28 September 2018 the fee for the appeal has not been paid, and the appellant has not provided any written submissions as to why the proceedings should not be dismissed.
[3]
Consideration
There are two matters which need to be considered in dealing with the question of whether or not this appeal should be dismissed.
The first is whether an order should be made pursuant to s 50(2) of the NCAT Act dispensing with a hearing. The second is whether the appeal should be dismissed.
In relation to making an order to dispense with a hearing, s 50(3) of the NCAT Act provides that the Tribunal may not make such an order unless the parties are afforded an opportunity to make submissions about the proposed order.
As recorded above, the Appeal Panel made directions on 6 September 2018 in respect of the issue of non-payment of fees. Order 6 of those directions required the parties to make submissions concerning whether an order should be made dispensing with a hearing. Those directions were sent to the appellant by email dated 7 September 2018 at the email address notified in his Notice of Appeal and as recorded in other documents sent by the appellant to the Tribunal at various times throughout these proceedings.
The Appeal Panel is satisfied that the appellant has been notified of the directions of 6 September 2018 and that he has been afforded an opportunity to make submissions about whether an order should be made dispensing with a hearing. As far as the Appeal Panel is aware, no submissions had been received and no objection made to the Tribunal making an order to dispense with a hearing.
The respondent submits that an order should be made dispensing with a hearing.
The Appeal Panel is satisfied that an order should be made dispensing with a hearing. This is because:
1. There are no submissions provided by the appellant and no evidence to suggest the fee has in fact been paid. There is otherwise no matter raised by the appellant which would require an oral hearing.
2. A further hearing would require additional time and cost being incurred by the parties in circumstances where the appellant has been clearly advised that the fee should be paid or submissions made if the appellant otherwise contends that the appeal should not be dismissed for non-payment of the fee.
In relation to whether the appeal should be dismissed, it is necessary to consider the applicable legislation concerning the payment of fees.
There is no question that the present appeal is a "internal appeal" within the meaning of the NCAT Act, the appeal being from an administrative review decision: see s31(1)(a) of the NCAT Act.
An internal appeal was commenced by way of Notice of Appeal. The requirements for commencement of such proceedings are dealt with in r 25 of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules). This rule provides:
25 External and internal appeals
(1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal.
(2) The notice of appeal must be:
(a) in or to the effect of the approved form, and
(b) duly completed, and
(c) lodged at the Registry, and
(d) accompanied by the applicable fee (if any) for the appeal.
(3) A notice of appeal need not specify the Division of the Tribunal (if any) to which the function of determining the appeal is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the notice form accordingly.
(4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged:
(a) in the case where the enabling legislation specifies the period within which the appeal is to be made - within the period specified, or
(b) in the case of an internal appeal against a decision made in residential proceedings - within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or
(c) in any other case - within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
(5) An appellant who lodges a notice of appeal must serve on each respondent a sealed copy of the notice as soon as practicable after lodging the notice.
As is evident from r 25(2)(d), the Notice of Appeal "must be accompanied by the applicable fee … for the appeal". The applicable fee is $422.00.
In the present case that did not occur. Rather, a fee waiver request was made by the appellant that was refused by the Registrar. Upon notification that the fee waiver had been refused, the appellant was advised he needed to pay the fee but has not done so. Attempts by the Registry to process a credit card payment form provided by the appellant have failed and there is no suggestion that the appellant has otherwise made arrangements to facilitate payment of the fee.
Rule 22 of the Rules provides as follows:
22 Rejection of incorrectly lodged documents
(1) Without limiting rule 10, 20 or 21, the Tribunal or a registrar may reject a document that has been lodged with the Tribunal (whether in hard copy or by electronic means) if:
(a) the document is not in or to the effect of the approved form, has not been duly completed or does not comply with any other requirement of these rules in relation to the document, or
(b) the applicable fee (if any) for the lodgment of the document has not been fully paid.
(2) The Tribunal or a registrar may dismiss any application or appeal that has been commenced by means of a document that is rejected under this rule.
(3) The dismissal of an application or appeal under this rule does not prevent the applicant or appellant from re-commencing proceedings by lodging another application or appeal that complies with the requirements of these rules and any other applicable legislation.
As is clear from r 22 the Tribunal may:
1. reject a Notice of Appeal if the applicable fee for lodgment has not been fully paid: r 22(1)(b); and
2. dismiss an appeal that has been commenced by means of a document that has been rejected under this rule: r 22(2).
Having regard to the facts set out above, the non-payment of the fee gives rise to circumstances which permit the Tribunal to reject the Notice of Appeal and dismiss the appeal for non-payment of the fee.
There is a discretion in respect of the making an order to dismiss the appeal.
One of the factors that might be relevant is whether an application has been made under r 5 to dispense with the rule requiring the payment of the fee. Rule 5 provides:
The Tribunal, the President or a Division Head may dispense with compliance with any requirement of these rules, either before or after the occasion for compliance arises.
On one view, this power includes a power to dispense with r 25 concerning commencement of an internal appeal in so far as it requires payment of a fee. A different view is that, because a decision of a registrar regarding fee waiver requests is not an internally appealable decision, the legislative intention is to exclude from the operation of r 5 the power to dispense with the rule requiring payment of a fee.
It is unnecessary to resolve this question of statutory construction as no such application has been made by the appellant under r 5. Further, the Appeal Panel is not aware of any circumstances that might otherwise justify the making of such an order in the present case.
In these circumstances, the simple fact remains that the fee payable for this appeal has not in fact been paid. Rule 25 is clear. The fee must be paid. There is no reason why any discretion under r 22 should be exercised other than in a manner to reject the Notice of Appeal and dismiss the appeal for non-payment of the fee. Accordingly, the Notice of Appeal should be rejected and the appeal dismissed.
[4]
Orders
Notwithstanding the view that I have formed, I also consider it appropriate to give the appellant one final chance to pay the fee which is due. While the Notice of Appeal should be rejected and the appeal immediately dismissed, I will make the order on terms that it will cease to have effect in the event the appellant pays the fee on or before 4pm on Friday, 5 October 2018.
In this way, the appellant will have an opportunity to consider these reasons and decide whether he wishes to comply with the Rules.
The form of the order will require the payment to be received by the Registry no later than 4pm on 5 October 2018. Otherwise, the appeal will remain dismissed.
The Appeal Panel makes the following orders:
1. A hearing of the question of whether the appeal should be dismissed for non-payment of the fee for lodgment of the appeal is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013.
2. The Notice of Appeal is rejected and the appeal is dismissed pursuant to r 22(2) of the Civil and Administrative Tribunal Rules, 2014.
3. The directions made on 6 September 2018 and the hearing on 30 November 2018 are vacated
4. In the event the appellant pays the fee of $422.00 and it is received by the Registrar no later than 4pm on 5 October 2018, upon payment of the fee:
1. orders 2 and 3 will cease to have effect; and
2. the directions made on 6 September 2018 will thereafter continue in full force and effect and the hearing on 30 November 2018 will be reinstated.
[5]
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 October 2018