Zonnevylle v Information Commissioner

Background

1. In Department of Education v Zonnevylle [2020] NSWCATAD 96 the Tribunal made an order pursuant to s. 110 of the Government Information (Public Access) Act 2009 (the GIPA Act) restraining Mr Zonnevylle, who in these reasons will be referred to as the applicant, from making applications for information from certain named agencies, including the Department of Education, without the Tribunal's approval.
2. By application dated 19 May 2021, the applicant sought the Tribunal's approval to make an application for information to the Department of Education. Both the Department and the Information Commissioner were notified of this application, which is the subject of Tribunal proceedings number 2021/00140934.
3. On 27 May 2021, the Information Commissioner wrote to the Tribunal to advise that she did not wish to exercise her right to appear and be heard in the Tribunal in those proceedings before the Tribunal. The Information Commissioner also indicated that if the Tribunal considers that the Information Commissioner's appearance would benefit the proceedings the Commissioner would, on notice to that effect, revisit the decision.
4. The applicant was notified of the Information Commissioner's correspondence of 27 May 2021 in an email dated 26 August 2021 from the Deputy Registrar of the Tribunal (attached to the applicant's application for administrative review).
5. The present application by the applicant seeks administrative review of the Information Commissioner's decision, referred to in the notice from the Deputy Registrar referred to above, not to appear and be heard in the proceedings brought by the applicant after receipt of a notice required to be given under s. 110(4) of the GIPA Act in matter number 2021/00140934.
6. For the reasons which follow the Tribunal concludes that an order dismissing the application brought by the applicant for review of the Information Commissioner's decision should be granted.

Jurisdiction of the Tribunal

1. The Tribunal's administrative review jurisdiction to review decisions of an agency derives from s. 100 of the GIPA Act, read with ss. 28 and 30 of the CAT Act and ss. 7 and 9 of the ADR Act.
2. Relevantly, s. 7 of the ADR Act provides that an "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction. An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the reviewable decision under enabling legislation (s. 8 of the ADR Act). Section 9 of the ADR Act provides that 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 of any such decision made by the administrator: 1. in the exercise of functions conferred or imposed by or under the legislation, or 2. in the exercise of any other functions of the administrator identified by the legislation.
3. Section 55 of the ADR Act makes provision for applications for administrative review of administratively reviewable decisions to be made by an interested person.
4. In respect of the reviewable decisions under the GIPA Act, Part 5 provides for a number of potential reviews of decisions of an agency in respect of an access application. Section 80 sets out what are "reviewable decisions" for the purposes of the Part as follows: (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (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, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of 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, (l) 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, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).
5. Division 2 of Part 5 provides for internal review by an agency at the request of a person aggrieved by a reviewable decision of an agency as defined.
6. Division 3 of Part 5 grants to a person aggrieved by a reviewable decision of an agency the entitlement of an external review of the decision by the Information Commissioner: s. 89.
7. Under Division 4 of Part 5 a person aggrieved may apply to the Tribunal for an (external) administrative review under the ADR Act of the decision: s. 100. Under s. 104(1) the Information Commissioner has the right to appear and be heard in any proceedings before the Tribunal in relation to a review under Division 4 of Part 5.
8. Separately, pursuant to Schedule 3, Part 5 clause 9(4) of the CAT Act the Information Commissioner has the right to appear and be heard in proceedings for the exercise of a Division function for the purposes of the GIPA Act.

Information Commissioner's Right to Appear

1. As pointed out above, the proceedings brought by the applicant relate to his application for the Tribunal's approval pursuant to s. 110 of the GIPA Act to make an application for information from an agency, the Department of Education, in circumstances where he is subject to a restraint order by reason of the decision of the Tribunal referred to above.
2. Section 110 of the GIPA Act provides for the Tribunal to make an order that a person is permitted to make an application if satisfied to do so taking into consideration specific matters set out in the section.
3. A precondition for the making of an application is set out in s. 110(4) of the GIPA Act which provides as follows: A person who is subject to a restraint order cannot apply to NCAT for approval to the making of an access application by the person without first serving notice of the application for approval on the agency concerned and the Information Commissioner.

Procedural Orders

1. On 1 November 2021 the Tribunal made the following orders by way of directions: 1. On or before 15 November 2021, Peter Zonnevylle is to give to the Tribunal and the Information Commissioner the following material: any evidence including statements, documents and submissions in regard to the dismissal application of the respondent filed today. In his submission, Peter Zonnevylle is to indicate whether the Information Commissioner's dismissal application can adequately be determined on the papers. 2. On or before 29 November 2021, the Information Commissioner is to give to the Tribunal and Peter Zonnevylle the following material in reply: any evidence and submissions. In her submissions, the Information Commissioner is to indicate whether her dismissal application can adequately be determined on the papers.
2. The applicant has not indicated to the Tribunal whether the Information Commissioner's dismissal application can adequately be determined on the papers. The applicant has not given to the Tribunal and the Information Commissioner any materials in opposition to the dismissal application by the Information Commissioner pursuant to s. 55(1)(b) of the CAT Act.
3. In the circumstances, the Information Commissioner has indicated to the Tribunal that she relies on the written submissions received by the Tribunal on 1 November 2021. The Information Commissioner has indicated to the Tribunal that her dismissal application can adequately be determined on the papers.
4. Having afforded the parties an opportunity to make submissions under s. 50(3) of the CAT Act, and having considered the written materials provided in the applicant's application of 3 September 2021 and the submissions on the part of the Information Commissioner on 1 November 2021, the Tribunal is satisfied that the issues for determination raised by the Information Commissioner in her dismissal application can be adequately determined by considering those materials and a hearing on the dismissal application is dispensed with and will be determined on the papers.

Applicant's Claim

1. The applicant relies in his application against the Information Commissioner on subsections 80(a), (b) and (c) of the GIPA Act as set out above.
2. The reviewable decision relied upon by the applicant is said by him to be the decision of the Information Commissioner "to refuse to deal with the ("approval" of) GIPA application".
3. The applicant then states, relying on various particulars which need not be set out here, that the Information Commissioner is alleged to be in breach of s. 60 of the GIPA Act by her decision to refuse to deal with his application for approval from the Tribunal to make an application for information. Section 60 of the GIPA Act provides for a refusal by an agency to deal with an access application for the reasons set out in subsections 60(1)(a) to (e).
4. Further, the applicant claims that the following issues are raised in his application against the Information Commissioner "on the following questions of law": "Does the Information Commissioner have the statutory obligation to a. promote the object of the GIPA Act? b. to clarify & inform the public of their GIPA Act rights? c. protect the publics GIPA Act rights? Including the public's right to: I. requiring agency officers exercising their functions in good faith & requiring agency officers to fulfill their mandatory conduct obligations (GSE Act Sect.7 & agency codes of conduct) II. advice & assistance enable access to as much information as possible, promptly and at the lowest reasonable cost (promote the object of the CAT Act) III. agency officers with conflicts of interest in information sought do not exercise functions associated with that application IV. question that advice & assistance provide by those officers (particularly where the applicant fears for the integrity of the application) d. ensure that agency officers exercising functions do not contravene the information / GIPA Act? e. ensure openness & transparency of the conduct obligations required by agency officers in IPC reviews?"
5. Under the heading of "Further Background" the applicant sets out what in summary is said to be alleged failings, breaches or misconduct and bad faith on the part of the Information Commissioner concerning statutory obligations under the GIPA Act, bias, protecting and institutionalising conduct by agencies who egregiously abuse the applicant's GIPA Act rights, exercising of IPC functions, confirming the conduct standards required by IPC officers and "those standards used by IPC officers for misconduct complaints against agency officers against the applicant" and misconduct complaints against such officers.
6. The applicant then seeks to set out some particulars of the allegations referred to in paragraph 28 above which the Tribunal has considered.
7. Finally, the applicant seeks, by way of relief "costs/compensation" for the matters identified in the paragraphs above.

Information Commissioner's Submissions

1. The Information Commissioner in the written submissions of 1 November 2021 filed on her behalf submits that the applicant's application for administrative review should be dismissed pursuant to s. 55(1)(b) of the CAT Act as it is misconceived. The Information Commissioner contends that the applicant has not identified any "reviewable decision" made by the Information Commissioner under the GIPA Act, nor has he identified any other basis for the exercise of the Tribunal's administrative review jurisdiction. Additionally, it is contended the proceedings are frivolous and vexatious insofar as the applicant seeks to pursue a variety of grievances against the Information Commissioner and makes a series of allegations of misconduct and impropriety that are entirely without substance.
2. In support of the Information Commissioner's submissions she relies on the decision of the Tribunal Appeal Panel in Long v Metramix Pty Ltd [2019] NSWCATAP 198 where it was observed at [77] that: … in Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) considered the meaning of the meaning of "misconceived" in equivalent provision to s 55(1)(b) in the Administrative Decision Tribunal Act 1977. He stated at [25] to [26]: 25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" …, whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment … 26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].
3. The Information Commissioner then submits that her decision not to play an active role in the s. 110 approval proceedings is not a reviewable decision under s. 80 of the GIPA Act and the attempt by the applicant to characterise that decision as a "refusal to deal with an access application" pursuant to s. 60 of the GIPA Act cannot succeed because it has no application to the facts that are before the Tribunal.
4. The Information Commissioner further submits that s. 104 of the GIPA Act referred to above confers a "right" on the Information Commissioner to appear and be heard in a review under Part 5 of Division 4 of the GIPA Act. It is plain from the terms of the GIPA Act that there is no obligation imposed on the Information Commissioner to appear and be heard in proceedings but there is a right conferred to do so. It is further submitted that there are no other provisions that would confer jurisdiction on the Tribunal to review the exercise of the Information Commissioner's discretion as to whether or not to exercise her right to appear and be heard.
5. Lastly, the Information Commissioner submits that the Tribunal does not have a jurisdiction at large to review the broader conduct of the Information Commissioner raised by the applicant and she denies the allegations made against her in the application in the strongest terms.

Consideration

1. It is accepted that a reasonably broad connotation should be given to the meaning of the categories for dismissal in s. 55(1), including s. 55(1)(b) of the CAT Act which give the Tribunal a broad power which captures any kind of abuse of process that can reasonably be seen to fall within their compass: BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66].
2. In addition to the authority relied upon by the Information Commissioner referred to above it is established by authority that: 1. Section 55(1)(b) requires the Tribunal to exercise a discretion and the question of whether the Tribunal should continue to deal with the matters raised by a party is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal (see, e.g., NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 at [44] to [58] per Boland ADCJ, Deputy President; Samuel v Medical Council of New South Wales [2020] NSWCATOD 149 at [44] per Cole DCJ). 2. The Information Commissioner has the onus to demonstrate that the applicant's case which he seeks to pursue against her should not be allowed to proceed. To establish that proceedings are misconceived it must be demonstrated by the Information Commissioner that the claim does not disclose a reviewable decision (no cause of action or obviously untenable) or the applicant has no arguable case, in fact or law, which should be allowed to be resolved at a full hearing thus justifying a dismissal order (see Long v Metramix as set out above; Fox v Commissioner of Police [2016] NSWCATAD 77 at [26]; and also Cocks Macnish & Anor v Biundo [2004] WASCA 194 per Jenkins J at [29] and [30] in respect of s. 125 of the Equal Opportunity Act 1984 (WA) which is to the same effect as s. 55(1)(b) of the CAT Act). 3. In circumstances where an application is made to the Tribunal to dismiss an application without a final hearing the Tribunal will consider the materials before it to assess whether the applicant seeking to access the Tribunal's jurisdiction has established at least an arguable case which should be allowed to go to a hearing. 4. It is also accepted that the Tribunal must be conscious of the gravity for an applicant of summary dismissal of proceedings: BDK v Department of Education and Communities at [66].
3. In the present matter, and as pointed out above, the applicant has elected not to provide any evidence or materials for consideration and also has not sought to address the Information Commissioner's challenge to his claims against her.
4. The Tribunal concludes that the application by the applicant in matter 2021/247292 is misconceived and lacking in substance as it fundamentally encompasses an untenable proposition of law and lacks a basis for the exercise of the Tribunal's jurisdiction over the decision, or election, made by the Information Commissioner not to appear and be heard in the applicant's approval application.
5. The Tribunal is satisfied and concludes that: 1. First, there is no reviewable decision made by the agency the subject of the applicant's application referred to at paragraph 4 above within the scope of s. 80 of the GIPA Act which is capable of review by the Tribunal. The Tribunal is thus without jurisdiction to deal with the matter. 2. Secondly, the decision or election on the part of the Information Commissioner not to appear and be heard in the applicant's application dated 19 May 2021 seeking the Tribunal's approval to make an application for information does not come within the scope of subsections 80(a), (b), (c) of the GIPA Act; and thus there is no reviewable decision under s. 80 of the GIPA Act which has been made by the Information Commissioner which is capable of review by the Tribunal. 3. Thirdly, s. 60 of the GIPA Act has no relevance to the current application because no refusal to deal with an application has been made. 4. Fourthly, compliance with the requirement under s. 110(4) of the GIPA Act to give notice to the relevant agency and the Information Commissioner as a precondition to applying for approval to make an access application does not give the person giving the notice any rights against the Information Commissioner and also does not create any obligation on the Information Commissioner to participate in the approval proceedings. 5. Fifthly, the election or decision by the Information Commissioner not to appear and be heard is not a reviewable decision to refuse to deal with the approval of a GIPA application as alleged or claimed by the applicant. 6. Sixthly, the rights given to the Information Commissioner to appear and be heard in proceedings does no more than to grant such a right to the Information Commissioner without the need for leave of the Tribunal. It is left entirely to the Information Commissioner as to whether, in any particular case, the rights are to be exercised. The Information Commissioner alone makes that election and it is not reviewable. 7. Seventhly, none of the "questions of law" raised in the application by the applicant referred to at paragraph 27 above are either properly formulated or come within the scope of reviewable decisions under s. 80 of the GIPA Act. Those questions have no bearing on, or relevance to, the decision made by the Information Commissioner. 8. Eighthly, the Tribunal has no jurisdiction at large to deal with the matters being sought to be raised by the applicant in the current application.
6. The Tribunal has had regard for the effect of dismissing the applicant's proceeding against the Information Commissioner. Dismissal will not determine the outcome of his substantive application he has made to the Tribunal for approval to make an information request. Dismissal will only affect his complaint that the Information Commissioner does not wish to be heard.
7. Having had regard for all the materials filed by the parties and taking into account all the matters set out above the Tribunal concludes that the Information Commissioner's application under s. 55(1)(b) of the CAT Act should be granted.

Conclusion

1. Having afforded the parties an opportunity to make submissions under s 50(3) of the Civil and Administrative Tribunal Act 2013 and having considered the written materials provided in the applicant's application of 3 September 2021 and the submissions on the part of the Information Commissioner on 1 November 2021, the Tribunal is satisfied that the issues for determination raised by the Information Commissioner in her dismissal application can be adequately determined by considering those materials and a hearing on the dismissal application is dispensed with and will be determined on the papers.

Orders 1. An oral hearing of the application by the Information Commissioner of 1 November 2021 is dispensed with and the application be determined on the papers 2. The application by the Information Commissioner for the dismissal under s. 55(1)(b) of the Civil and Administrative Tribunal Act 2013 of matter 2021/247292 made on 3 September 20201 be granted and those proceedings be 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: 10 December 2021