Zonnevylle v Minister for Education and Early Childhood Learning

NCAT Administrative and Equal Opportunity|2019-05-08

The application

The applicant stated the grounds for his application as follows: "Breach of GIPA Act and failure to promote GIPA Act Breach of applicant's right to access personal information (Information relating to the applicant) Alleged offences under the Act Sec. 112 Improper conduct complaint The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant."
The applicant attached a chronology in which he narrated that he had posted his original access application on 13 April 2018 and posted or faxed copies of the application again on 27 April, 12 June, 17 July, 16 and 30 August, 17 and 28 September and 12 and 24 October 2018 but had received no response.
The access application of 16 August 2018 which is the version attached by the applicant to his Tribunal application states as follows: "Ref document 'Dept. of Education & Training Briefing for the Minister' DGS12/613 1. a. Copy of document and all related documents/memos/directives associated with this document including evidence provided by Hopkins, CPO DEC or other officers for this proposal. b. Details on all recipients of this document (ie. Other Ministers, Agency executives, oversight agencies, etc who have been provided a copy of this document. 2. Documents/memos/correspondence between: a. The Minister & b. any DEC executives, including Bruniges/ Riordan/ Baily/ Hoptkins/ Patrick/Southern referencing or concerning Zonnevylle. 3. Correspondence received by the Minister from DET/DEC or from any other agencies/Ministers/concerning Zonnevylle. 4. Documents between the Minister and the Premier & Cabinet concerning Zonnevyllle 5. Complaints the Minister received concerning: a. Workplace Supplies Tender 1006c b. Tender: DETPR-35-11 c. Tender: DECPR-02-12 d. Premiers Memorandum 2006/11 e. DET/DEC procurement activities 6. Documents identifying any Education Minister's staff who dealt with any matters related to Zonnevylle when Picolli was Education Minister and the current Minister. Period for the above items: Between 2010 and June 2018 7. Correspondence/documents received by the Minister's office from Zonnevylle 8. Documents related to Australia Post item No 4961 8893 1012 Above documents to show which Ministerial staff took possession of items 7 & 8. 9. Documents related to Australia Post Items No. 4961 8893 2019 & 4961 8893 3016 Above documents to show which Ministerial staff took possession of items 9. 10. Documents identifying the name and position of the Education Ministry's (delegated) Information Access Manager / officer since Jan. 2010 & who currently holds that position. Period for items 7 to 10 between April 13, 2018 & August 16, 2018. 11. All codes of conduct applicable to all Ministerial Staff (Jan. 2017 to July 2018) 12. Documents received by the Ministry from the Applicant per Clipper Couriers Con. Note. G20014366 on 17-07-2018 & the Ministerial staff officer who took possession of these documents. 13. Documents detailing Statutes/Acts/Legislation for refusal to apply to the above applications."

The history of the application

As the access application was not determined within the prescribed time, the application is deemed to have been refused and the respondent refunded the applicant's $30 application fee (s 63(1) GIPA Act). Notwithstanding this, the respondent made a decision on the application and determined that the information sought under items 1-6 and 8-10 were not held by the respondent. The decision maker stated: "Under section 53 of the GIPA Act the department must undertake reasonable searches for any of the information applied for, using the most efficient means reasonably available. The office keeps records electronically, in physical files (hard copy) and in individuals' email accounts. All relevant systems were searched by the areas identified as likely to hold the requested information. I consider that reasonable searches have been made in response to your application in keeping with section 53 of the GIPA Act. Based on the information available to me, I am satisfied that only some of the search items are held by this office."
With respect to item 7, the decision-maker stated: "I have attached all correspondence held by this office from Zonnevylle, including the facsimiles listed below. I note that this search captured correspondence dated 9 April 2019 from yourself to this office which attached a number of documents, including one which makes reference to DGS 12/613. I cannot ascertain whether or not this is the full document requested under search item 1. Search item 11 is publicly available at: https://publications.dpc.nsw.gov.au/assets/composed-pdfs/2/Ministers-Office-Handbook-updated-23-03-2017.pdf I note that we have received a number of resubmitted applications via facsimile, namely: [the letter lists 39 dates between 24 August 2018 and 24 October 2018 on which the applications were received] The above applications were substantially the same as your application received on 18 July 2018, with two additional search items. Pursuant to section 41(1) of the GIPA Act, I have determined that the above resubmitted applications are not valid applications as there were not accompanied by a fee of $30. Not withstanding the applications being invalid, I determined the following in relation to the two additional search items: 12. I have attached a copy of your application that I received on 18 July 2018. 13. This information can be found at https://www.legislation.nsw.gov.au/#/. As requested I have attached the certified copy of your passport."
Also before the Tribunal was the response from a delegate of the Information Commissioner to the applicant dated 23 November 2018 to the applicant's complaint about the Minister for Education's conduct in the exercise of his functions under the GIPA Act. The response concluded: "…while the Agency has sincerely apologised for the delay responding adequately to your application, I am satisfied that the Agency's steps taken to implement systems improvements are adequate and reasonable."
On 13 February 2019, I made a decision in these proceedings (Zonnevylle v Minister for Education [2019] NSWCATAD 28) dismissing that part of the application which sought review of: "Breach of GIPA Act and failure to promote GIPA Act …Alleged offences under the Act Sect. 112 Improper conduct complaint The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant"
In that decision I determined that the only ground relied on by the applicant which the Tribunal had jurisdiction to review was the ground under s 80(e) of the GIPA Act, with reference to the reasonableness of the searches conducted by the respondent. While I noted that the applicant, who is self-represented, did not expressly refer to s 80(e) in his application, his application contained a statement that his rights of access to information concerning himself had been breached and in his submissions concerning jurisdiction he stated that he disputed the reasonableness of the searches conducted by the respondent
The current application for dismissal was not dealt with by the Tribunal on that occasion owing to a misunderstanding as to whether the respondent pressed that part of its argument.
The respondent contends that these proceedings are predominantly brought for a collateral purpose, to establish that the Minister, his staff and others have committed breaches of the GIPA Act which this Tribunal has said on a number of occasions are outside its jurisdiction. The respondent contends this is evident from the documents filed by the applicant and the history of his litigation in this Tribunal.

Collateral purpose

The respondent submits that the proceedings are vexatious even if the applicant can seek review of the reasonableness of the searches conducted by the respondent, because they are brought for a collateral purpose. As explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491: "1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."
With regard to the second point identified by Roden J, the decision of BDK v Department of Education and Communities [2015] NSWCATAP 129 and the cases cited therein were cited by the respondent. In that case the Appeal Panel said as follows: "In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are 'frivolous' or 'vexatious', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings. … The Tribunal accepted that the appellant had a legal right to bring the proceedings and apply for relief of the kind given by PPIPA. Nonetheless, the Tribunal concluded that they were 'vexatious'. It reached that conclusion having regard to the way the dispute over the contents of the Report had been prosecuted by her in the past and the way it was now being prosecuted. The Tribunal drew on the following, observation of Handley JA in Crewdson v Central Sydney AHS [2002] NSWCA 345 (26 November 2002), where the Court dismissed an appeal from a decision of the Appeal Panel that had reversed the Tribunal at first instance: 24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki [1986] USCA9 1380; 794 F. 2d 1373 (9th Circuit 1986), 1378. … The question that arises here is whether the power to dismiss summarily a proceeding on the ground that it is 'vexatious' can be applied to a proceeding that invokes an available legal right. It is clear, we consider, that the description 'vexatious' has been applied to cases where the applicant or plaintiff was exercising an available legal right. For example the Tribunal said in Burns v Laws [2005] NSWADT 229 at [9] that a proceeding might properly be regarded as vexatious and an abuse of process 'if it is shown that that the predominant purpose for which they have been instituted and/or maintained is an improper or 'collateral' purpose', citing Williams v Spautz."
In Williams v Spautz [1992] HCA 34; 174 CLR 509 the majority of the High Court (Mason CJ, Dawson, Toohey and McHugh JJ) held that an abuse of process will be present when: "…the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed … or some collateral advantage beyond what the law offers"'. [36]
As to whether the moving party's motivation must be established, the majority said [41]: "Inquiry into motivation alone might prove a fragile foundation on which to base an exercise of the power to grant a permanent stay. For that reason, apart from any other, it is more satisfactory to base an exercise of the jurisdiction in cases of improper purpose upon a use or threatened use of the proceedings for such a purpose. Then the conclusion which the court reaches is more likely to be founded upon objective evidence rather than subjective evidence of intention."
They approved the statement of Slade LJ that: "a person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than that for which it was designed." (at [42]).
In BDK, the Appeal Panel referred to Brennan J's separate judgment in which he agreed with the majority but formulated the test slightly differently: ""11. … The gravamen of the test, I apprehend, is that the plaintiff did not commence or maintain the proceeding for any substantial legitimate purpose. I would state the test in that way. Substantiality is a matter of degree, ascertained by reference to the intention attributed to the plaintiff in all the circumstances of the case. At the end of the day, the court must determine, by reference to the intention attributed to the plaintiff, not merely whether the collateral purpose of the proceeding outweighs any legitimate purpose but whether the plaintiff entertained any substantial intention that the proceeding should achieve a legitimate purpose. 12. For these reasons, I would hold that an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding."
This is in contrast to the decision of the majority, that the test was whether the improper purpose was the predominant purpose, rather than the only substantial purpose, and that the intention of the plaintiff was to be determined objectively rather than subjectively.
In my reasoning I have applied the view of the majority.

The applicant's pursuit of alleged offences or breach of the GIPA Act

The respondent points to references in the Application to "Breach of GIPA Act and failure to promote GIPA Act" and "Alleged offences under the Act". It submits that there is no relief available for a breach of the GIPA Act in this Tribunal and proceedings for an offence under the GIPA Act may be dealt with summarily before the Local Court, but only with the authority of the Director of Public Prosecutions or the Attorney General (s 128 GIPA Act). Also the Tribunal may refer a matter under s 112. That section provides: "112 Report on improper conduct If NCAT is of the opinion on the completion 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 on its own initiative bring the matter to the attention of: (a) the Minister who appears to NCAT to have responsibility for the agency, or (b) if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner."
The respondent submits that it is clear from the wording of s 112 since its 2018 amendment that such a referral can only occur after an administrative review has been completed in the Tribunal. The Tribunal had already held in Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47 that the Tribunal did not have the power to conduct "satellite hearings" for the purpose of s 112.
The respondent contends that in this case a referral cannot be made to the Minister as the Minister is the respondent. The applicant has already made a complaint to the Information Commissioner, who did not recommend any further action by the respondent.

Whether the proceedings are vexatious

In support of its submission that the predominant purpose of the applicant in commencing and maintaining the proceedings was an improper collateral purpose, the respondent relies on the form of the application, the history of these proceedings and the history of the applicant's other litigation under the GIPA Act in this Tribunal which is summarised below.
In Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 the applicant was Ms Maxine Zonnevylle who stated she was a proprietor of a business with the applicant in these proceedings. Written submissions were provided by the applicant in these proceedings, Mr Zonnevylle. At [69-72] the Tribunal stated: "The Respondent submitted that neither the Applicant nor Mr Zonnevylle provided any evidence to support the allegations of misconduct and corruption. … I note that Mr Zonnevylle has provided a considerable amount of material that he contends is related to the allegations of misconduct and corruption. However, in my view this material amounts to no more than assertions. It does not show evidence of misconduct on the part of any of the Respondent's employees."
At [125-126] the Senior Member held as follows: "I accept Ms Bailey's evidence of an exceedingly high number of emails sent by the Applicant or Mr Zonnevylle to a number of officers within the Respondent. It is readily apparent from the face of the documents that are before me that staff of the Respondent were concerned about both the number and the tone of those emails. … I agree with the Respondent that Mr Zonnevylle's conduct falls within the definition of serious harassment or serious intimidation. I accept that some staff members genuinely fear that their names may be published on websites operated by Mr Zonnevylle and that they fear that they will be harassed by receiving unsolicited correspondence from either the Applicant or Mr Zonnevylle."
In Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47 held that the Tribunal had no power to conduct "satellite" hearings for the purpose of s112 of the GIPA Act.
In Zonnevylle v NSW Department of Education and Communities [2016] NSWCATAD 49 the Tribunal observed that the applicant had made allegations that a number of Departmental staff including the Director General were "lacking good faith" with regards to his GIPA applications and: "…it is possible that further parties are associated with alleged misconduct & lack of good faith of whom the Applicant has been prevented from identifying. … [T]he Applicant will allege that there are credible indications that Ms Bailey or other DEC staff have interfered with the lawful processing & decision making of the Applicant's GIPA applications. The Applicant has absolutely NO FAITH in the conduct of the Respondent." [66]
Further as noted in the decision, the applicant made a number of allegations against a particular staff member: "The Applicant will assert that the Respondent's / Ms Bailey's actions cannot be disassociated from the GIPA applications DETAILS: The BLOCKING OF UNSOLICITED EMAILS BY THE RESPONDENT - UNSOLICITED emails requesting goods & services - sent voluntarily from NSW State Schools customers of the Applicant which PREJUDICES THE APPLICANT'S LEGITIMATE BUSINESS & COMMERCIAL INTERESTS occurred during the period of the Applicant's GIPA enquiries AND IS STILL OCCURRING."
The Tribunal held: "Issues concerning the refusal to deal with an informal request and the blocking of the Applicant's emails do not relate to matters before the Tribunal and so have not arisen "in the course of administrative review". Therefore, the Tribunal lacks the jurisdiction to deal with these matters. In regard to the wider allegations against officers of the Respondent, it is clear that the conduct does not concern the exercise of a function under the GIPA Act. …In the circumstances of this matter I am not satisfied that any of the alleged conduct of Mr Riordan, Ms Bailey, Mr Johnson, the IT Manager, Ms Pendergast or Ms Stathis falls within the scope of section 112." [79]
The Tribunal did not find that any officer of the Department failed to act in good faith or that their conduct came within s 112. [85, 88-89]
In Zonnevylle v Department of Education [2017] NSWCATAD 101 the applicant sought the following information: "All UNREDACTED emails and other correspondence sent by NSW state schools or any other educational institution (including TAFEs, etc) to any of the Applicant's email addresses: … To include all attachments to the emails (UNREDACTED) Documents with details on any other emails identified by DEC as being associated with the Applicant & subsequently blocked. Documents / correspondence detailing when each email address was blocked Documents / correspondence detailing the source of email address details, who did the search, who provided the email details & who authorized the blocking of email addresses Documents detailing the authorization to block the above emails Documents relating to the probity reports relating to the Learning Management & Business Reform system. Documents relating to those DEC procurement & IT staff associated with the implementation, assessment & procurement related the LMBR. Documents detailing a list of all complaints made to the serious misconduct investigation team, (SMIT) employee performance and conduct directorate and the details of complaints investigated (re Public Interest Disclosures Internal Reporting Policy)Documents between the SMIT, DEC Procurement officers, Bruniges & Riordan."
The applicant alleged: "Alleged criminal conduct by Respondent Breach of GIPA Act Sect.51 (2)Complaint of Sect. 112, Sect. 116, 117, 18, 120 breaches … Evidence of alleged Criminal conduct Misconduct & maladministration Misfeasance By senior DEC staff Evidence of economical mismanagement & maladministration by DEC staff Evidence of discrimination be senior DEC staff Evidence of restricting NSW school's legitimate right to do business with any commercial entity of their choosing Misuse of government property" [4]
Senior Member Dinnen held: "Much of the Applicant's extensive written submissions were concerned with his request for the Tribunal to refer the Respondent's conduct to the Minister pursuant to s112 of the GIPA Act, and for the Tribunal to find that the Respondent had committed offences pursuant to sections 116, 117, 118 and 120 of the GIPA Act…. I find no evidence in these proceedings that any or either of these individuals has failed to exercise a function conferred on them under the GIPA Act in good faith. I am not convinced by the Applicant's submissions regarding the evidence of Ms Southern or Ms Pendergast that either conducted themselves in any manner other than honestly or conscientiously. I find that in dealing with this access application, and in making its decisions, the Respondent has engaged and complied with its obligations under the GIPA Act and has exercised its functions properly and appropriately. … Further, it was subjected to continuous allegations and accusations by the Applicant without sufficient evidence or basis, and yet continued to conduct its dealings with the Applicant appropriately and in accordance with the requirements of the Act. In the circumstances of this matter I am not satisfied that an officer of the Respondent has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act. I therefore decline to make the requested referral under section 112 of the GIPA Act." [89, 94-97]
The respondent also relied on the decision in Zonnevylle v NSW Department of Finance, Services and Innovation [2017] NSWCATAD 186 in which the Tribunal held his conduct amounted to re-litigation of questions of access to government information already determined in previous proceedings brought by the applicant. Senior Member Dinnen said: "It is clear from the evidence in these proceedings and the decisions in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47 and Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175 that the Applicant has already been provided with access to the information concerned, and the request should be refused pursuant to s60(1)(b1) of the GIPA Act. It is also clear from the Applicant's submissions in these proceedings, as illustrated above, that he is continuing and will continue to relitigate matters and attempt to reopen findings which have already been determined or made by the Tribunal on the basis of his belief that those matters were determined incorrectly or inappropriately. Using the public right to access government information provided by the GIPA Act to do so is, in my opinion, an abuse of process, especially in circumstances where errors of law are alleged but appeals against the Tribunal's decisions are not made."[90]
In Zonnevylle v Department of Education [2017] NSWCADAT 214 the applicant sought details of all GIPA Act applications received by the respondent in 2014 and 2015. The Tribunal noted again: "Much of the Applicant's extensive written submissions were concerned with his complaints regarding the Respondent's application of the GIPA Act, his request for the Tribunal to refer the Respondent's conduct to the Minister pursuant to s112 of the GIPA Act, and submissions for the Tribunal to find that the Respondent had committed offences pursuant to sections 116, 117, 118 and 120 of the GIPA Act. The Tribunal has previously considered the Applicant's complaints and allegations of misconduct against the Respondent and its officers in relation to access applications made by him under the GIPA Act in Zonnevylle v Department of Education [2017] NSWCATAD 101, Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10, and Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 and, despite the Applicant's attempts to raise them as relevant to these proceedings, would not reconsider those issues or reopen those findings here. … The Tribunal's powers in relation to section 112 have been considered in a number of recent cases, including Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303, Saggers v Environment Protection Authority [2013] NSWADT 204, Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189, Zonnevylle v Department of Education [2017] NSWCATAD 101, and Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186, and I adopt those principles here. In the circumstances of this matter I am not satisfied that an officer of the Respondent has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act. I therefore decline to make the requested referral under section 112 of the GIPA Act."
In Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 the applicant sought access to the following information: "1. Access is requested to documents/etc for the accounts of DEC [Department of Education and Communities] Procurement detailing: - All sales commissions from DEC Procurement activities - All management fees from DEC Procurement activities - All consultancy fees associated with DEC Procurement activities The above documents should include Sales commissions/management fees earned by DEC Procurement for: - DECPR-12-02, Workplace Supplies Tender, and any other tender where fees are applicable - P&C related activities (details including what work undertaken and where) 2. Access is requested to documents/etc for the accounts of DEC detailing - Any funds that DEC takes from NSW schools (excluding school fees) which reduces a school's effective budget or is at the school's detriment 3. Reference Statement of Joanne Bailey (GIPA 13-252) 01-09-2014 Item 27. Documents/copies of unredacted emails referred to by Bailey as follows: [email addresses follow] 4. Reference Statement of Tracey Southern (GIPA 15-265) 16-09-2016 Documents relating to: [email addresses follow] showing that these emails & associated websites have been identified as spam, fraudulent or phishing agents."
The applicant tendered material before the Tribunal which alleged that various officers of the respondent failed to exercise their functions under the Act in good faith. The Tribunal held there was no evidence of this and was not satisfied that any of the officers has failed to exercise a function under the Act in good faith.
In Zonnevylle v Department of Justice [2019] NSWCATAP 44 the applicant sought leave to appeal from two earlier decisions. Leave was granted but the appeal was refused. The Tribunal confirmed: "Proceedings for offences under the GIPA Act may be dealt with summarily before the Local Court: GIPA Act, s 128(1). Proceedings may only be taken by or with the authority of the Director of Public Prosecutions: GIPA Act, s 128(2). The Tribunal was correct to conclude that the Tribunal has no power to investigate or prosecute offences under the GIPA Act."

The applicant's case

The applicant's submissions ranged over a number of subjects and made a number of demands. The submissions did not recognise the effect of my earlier decision which identified that the scope of the Tribunal's jurisdiction in these proceedings was limited to reviewing conduct under s 80(e) of the GIPA Act. The submissions addressed: 1. The alleged failure of the respondent to facilitate and uphold the applicant's GIPA rights 2. An alleged false statement by the respondent with regard to non-payment of the fee 3. The failure to respond within the required time frame 4. Alleged lack of good faith and lack of integrity of the respondent 5. Alleged systemic issues, serious misconduct and lack of good faith on the part of the respondent 6. An application for costs against the respondent for having caused the applicant a "deliberate detriment" and "to protect the public from such alleged blatant misconduct that undermines the purpose of the Act". 7. Request for a referral of a question of law to the Supreme Court under s 54 of the Civil and Administrative Tribunal Act (this was not dealt with at the hearing and was deferred); 8. A complaint of professional misconduct against the respondent's legal representative and scandalous comments about him; 9. A claim that the applicant was entitled under s 100 of the ADR Act to have other decisions of the respondent reviewed by the Tribunal including: 1. a decision to refuse to deal with an application 2. a decision that an application was not valid 3. a decision to refuse access. 1. The grounds for the purported "review" in (9) above are said to be: "Breaches of the GiPA Act Failure of the respondent to uphold legal obligations to promote the object of the Act Breach of the applicant's GIPA rights Alleged offences under the Act Improper conduct complaint Adequacy of searches Failure to perform mandatory requirements of the Act"
The applicant detailed the points in the respondent's access decision which he challenged and alleged some of the statements in the decision were false. He stated that the Tribunal should examine whether the decisions in (9) were correct and proper and in whether the officers of the agency have not acted with a lack of good faith, committed offences under the GIPA Act, misinterpreted or misapplied the Act and fulfilled their legal obligations.
He submitted that his application was not vexatious and that he was attempting to get access to the information sought from the respondent. He said that it was evident from the number of times that he resubmitted his application to the respondent (a total of 44 times, in his submission) that he wanted a response to his application and did not want to have to file proceedings in the Tribunal but had been forced to do so.
He submitted that the respondent had not conducted adequate searches and he was sincere in wanting that to be done. He relied on material from Australia Post to show that the documents he sought should be in its possession and that the searches conducted had not been adequate.
In relation to the decisions referred to by the respondent, he disputed the relevance of decisions concerning a different respondent and submitted that he had made a complaint against one Senior Member who had made some of the decisions and he disputed some of the facts found in the decisions. He said that the emails he sought from the Department of Education had evidence of maladministration and misconduct. He claimed the decisions did not provide the full details, were unjust and significantly biased in favour of government agencies. He claimed that no Tribunal member had actual experience of making a GIPA application. He demanded that certain submissions be included in the Tribunal's reasons for decision.
At the hearing the applicant sought to file an Application for Miscellaneous Matters. This orders sought included: 1. That the Tribunal find that the respondent breached mandatory requirements of the GIPA Act on at least 4 occasions including in relation to its decision as to the validity of his applications (s51(2)) and the period in which the decision was made (s 57).

Consideration

Following the reasoning of the majority of the High Court in Williams v Spautz, I conclude that it is necessary to determine whether there predominant collateral purpose (if there is one) by examining the applicant's purpose objectively rather than subjectively, based on his conduct and the documentation filed. The material which I have examined includes the application, the decisions relevant to the applicant's litigation against the Minister for Education and the Department of Education, and his submissions in these proceedings. I have also considered the applicant's Application for Miscellaneous Matters.
In my view the decisions in proceedings brought by the applicant against other agencies are not relevant to show the applicant's predominant purpose in these proceedings, because they relate to different parties, although the legal questions they decided may be relevant to the legal issues in the proceedings.
From the grounds of the application I discern that his purpose is to establish that the respondent has breached the GIPA Act, breached his rights under the Act and committed offences under the Act.
The history of the applicant's litigation against the Minister and the Department demonstrates a pattern of making allegations of improper conduct against the staff of agencies, which have been found to be baseless, and repeatedly urging the Tribunal to make findings of illegality which the Tribunal has determined in those proceedings, that it has no power to make. In the proceedings brought by the applicant referred to above, the Tribunal has declined to make adverse findings under s 112 of the GIPA Act on five occasions. It has found that his conduct towards certain officers of the Department amounted to harassment and has raised issues outside the scope of the GIPA Act. In Zonnevylle v Department of Education [2017] NSWCADAT 214 the Tribunal declined to allow the applicant to raise complaints and allegations which he had previously made in other proceedings.
The applicant sought to show that he had only filed proceedings because of the failure of the respondent to respond to his application in a timely fashion. The respondent was certainly late in responding to the application and this is to be regretted. However when the respondent did make a decision, the applicant continued with the proceedings and pressed his allegations of illegality, misconduct and bad faith.
He sought to demonstrate that there was evidence to show that the respondent's searches had been inadequate in relation to items 8 and 9 of his application. These items sought "documents related to" Australia Post deliveries of missives sent by the applicant himself, and the application stated that the documents were sought "to show which Ministerial staff took possession" of the delivered items. His evidence showing delivery does not, in my view, amount to evidence that the respondent should possess documents showing who took delivery of them.
The applicant's submissions demonstrate an intention to continue to agitate for findings of a lack of good faith, illegality and misconduct on the part of the respondent, and to seek review of decisions which are outside the scope of his application, regardless of the implications of my interim decision or the other decisions outlined above.
Therefore, despite the possibility that the applicant may have a legitimate cause of action in seeking a review of the reasonableness of the respondent's searches, the evidence above indicates that these proceedings are a vehicle for a predominant purpose to attempt to re-litigate allegations of misconduct, illegality and lack of good faith on the part of the respondent, the respondent's Department and its employees.
Accordingly I am satisfied that his applications are vexatious because they are being maintained for a collateral purpose and not for the purpose of having the Tribunal determine the issues to which they give rise. For that reason the proceedings should be dismissed.

Orders 1. The name of the respondent in these proceedings is amended under s 53 of the Civil and Administrative Tribunal Act 2013 to the Minister for Education and Early Childhood Learning. 2. The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 05 June 2019

Amending the name of the respondent

The respondent sought an order amending the name of the of the respondent in the proceedings to "the Minister for Education and Early Childhood Learning.". Currently the respondent is named as "Rob Stokes, Minister for Education".
The applicant opposes the amendment. His application under the GIPA Act was made to the Minister as the "agency" for the purposes of the application (s 4(1)(b) of the GIPA Act).
Clause 11 of Sch 4 of the GIPA Act states that a reference to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.
The respondent relies on the decision of the Court of Appeal in Kerr v Commissioner of Police (1977) 2 NSWLR 721 at 724-725 in which it was held that it is generally inappropriate to join the holder of an office or the members of a tribunal by their individual names in proceedings. Except in special cases of applications for an order of mandamus, the responsible body should be named and not the individual. See also Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 at [13].
The respondent submitted that the Hon. Rob Stokes was no longer the Minister for Education and pursuant to clause 15 of the Administrative Arrangements (Administrative Changes - Ministers) Order (No 2) 2019 the proper respondent was now the Minister for Education and Early Childhood Learning.
The applicant opposed this on the basis that the Minister had vicarious liability for the actions of his staff and the Hon. Rob Stokes was the Minister at the relevant time, and to amend the respondent would mislead the public. The public had a right to hold the Government to account, in his view.
This submission is inconsistent with the GIPA Act itself. There is no vicarious liability under the Act. The Act provides for applications to be made to an "agency" which includes a Minister. Clause 14(1) of Sch 4 provides that when an agency ceases to exist a decision made by the former agency is taken to have been made by the successor agency. The "successor agency" includes another agency on which the former agency's functions have devolved. In this case, the Minister for Education's functions have devolved on the Minister for Education and Early Childhood Learning.
The cases cited by the respondent are clear authority for the proposition made by the respondent. In my view it is necessary in the interests of justice to amend the name of the respondent in the proceedings to the Minister for Education and Early Childhood Learning.

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