Zonnevylle v NSW Department of Justice

The first issue and determination

1. The first issue for determination in these proceedings is, can the Dismissal Application be adequately determined in the absence of the Applicant and the Respondent by considering the material that has been lodged with the Tribunal (i.e. can the issues be adequately determined on the papers)?

Relevant legislation

1. Section 50 CAT Act sets out the circumstances in which a hearing is required for proceedings before the Tribunal and the circumstances in which it may not be required. That section is in the following terms: "50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. …"

Can the issues be adequately determined on the papers?

1. Both parties have been given ample opportunity to make submissions as to whether a hearing should be dispensed with and whether the matter can be determined on the papers. The Respondent Dismissal Submissions do not address the matter being determined on the papers in the absence of a hearing. The Applicant Response Submissions appear to request a hearing but I understand this to relate to a request for the Tribunal to reject the Dismissal Application and proceed with a hearing on the substantive matter (i.e. the AR Application).
2. I have also considered s 38 CAT Act and I am satisfied the Applicant has had a reasonable opportunity to make submissions on the matters in issue in the Dismissal Application.

Conclusion

1. Accordingly, in the absence of any objection from the Respondent, my reading of the Applicant's request (see [18] above) and based on the "guiding principles" set out in s 36(1) CAT Act, I am satisfied on the material filed that there is nothing further of value that could be added in having a hearing in respect of the Dismissal Application. That is, I am satisfied that the issues for determination in the Dismissal Application can be adequately dealt with in the absence of the Applicant and the Respondent by considering the material that is before me in these proceedings on the papers.
2. Therefore, I order the dispensing with a hearing for the Dismissal Application under s 50 of the CAT Act.

Remaining Issues

1. Having determined that the Dismissal Application can be determined on the papers, the remaining principal issues for determination in this Dismissal Application is whether the AR Application is misconceived or otherwise lacking in substance, frivolous or vexatious and should therefore be dismissed pursuant to s 55(1)(b) CAT Act.
2. The Respondent contends that the AR Application should be dismissed under s 55(1)(b) CAT Act on the grounds that it is frivolous or vexatious or otherwise misconceived or lacking in substance because the AR Application: 1. seeks to agitate issues beyond the Tribunal's jurisdiction; and 2. is brought for a collateral purpose.

Civil and Administrative Tribunal Act 2013

1. Section 55 of the CAT Act relevantly provides as follows: "55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …,"
2. The interpretation and application of s 55 (1) (b) CAT Act by the Tribunal was well summed up by Senior Member Molony in Choi v University of Technology Sydney [2019] NSWCATAD 176 as follows: 37. The words "frivolous, vexatious, misconceived or lacking in substance" are well recognised legal terms that can be found in a broad spectrum of statutes dealing with summary dismissal in a wide variety of forums. In each case, it is important that the legal and legislative context in which those proceedings arise be taken into consideration. … 40. Reviews under the GIPA Act are a good example of the nature of the proceedings, and applicable legislation, having a significant impact on whether proceedings are frivolous, misconceived or lacking in substance. This is so because the GIPA Act has among its objects the conferral on members of the public of a right to access government information; restricted only when there is an overriding public interest against disclosure: see s 3. In aid of that right s 105(1) of the GIPA Act provides: 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. 41. As a consequence, applications for summary dismissal based on an argument that review applications are without merit and destined to fail (and therefore frivolous, misconceived or lacking in substance) are unlikely to succeed, as the burden of justifying that the decision is correct lies with the respondent agency. Thus, the submission by UTS in this case that Ms Choi's attempt to review the not held decision (which it is now clear she is not pursuing) had "no prospect of success" because UTS "has already conducted reasonable searches" could not succeed. This is because the onus of proving that the searches were adequate falls on UTS.

Government Information (Public Access) Act 2009

1. Part 4 of the GIPA Act makes provision for how a person can make an application to a government agency for access to government information it holds, how and when the government agency is to process and determine a person's access application (i.e. the Access Application in this case) and the form in which the government agency is to provide access, if it cannot be established that there is an overriding public interest against the disclosure of that information: see GIPA Act ss 12, 13 and 14.
2. The term "government information" is defined in s 4(1) of the GIPA Act to mean "information contained in a record held by an agency". The word "record" is broadly defined in Sch 4 of the GIPA Act to mean: "any document or other source of information complied, recorded or stored in written form or by electronic process, or in any other manner or by any other means" or a copy thereof.
3. What it is important to note is that individuals have a right to access government information and there is a presumption in favour of such access, unless the Respondent can establish there is an overriding public interest against such disclosure or some other exception or excuse from providing such access in the GIPA Act applies: see Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD at 114 [12‑29] for a more detailed discussion of this.
4. Section 53 of the GIPA Act provides that a government agency is to undertake reasonable searches for the government information to which access is applied for. That section relevantly provides as follows: "53 Searches for information held by agency (1) … (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) …" Section 58 GIPA Act sets out how an access request is to be determined by an agency (i.e. the Respondent in this case). That section relevantly provides as follows: "58 How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. …" [emphasis added]
5. As indicated in the note to s 58 GIPA Act, Part 5 GIPA Act gives a person who is aggrieved by a decision of an agency referred to in s 58 GIPA Act (the Decision in this case) the right to seek a review of that decision: see s 80 GIPA Act which prescribes which decisions of an agency under Part 4 which are "reviewable decisions". Section 100 GIPA Act provides for external administrative review by the Tribunal (i.e. the AR Application in this case).
6. Section 60 GIPA Act relevantly provides: "60 Decision to refuse to deal with application (1) 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) - (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989, (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note - See section 70. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order, (e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is - (i) a party to current proceedings before a court, and (ii) able to apply to that court for the information. (2) … (3) … (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. (6) …" [emphasis added]
7. Section 105(1) GIPA Act prescribes that the onus rests on the Respondent to establish that the decision (i.e. the Decision in this case) is justified. As the applicant in relation to the Dismissal Application, the Respondent has the onus to establish the merits of its Dismissal Application.

Respondent Dismissal Submissions

1. In the Respondent Dismissal Submissions the Respondent, most relevantly and in summary, submits that: 1. In the AR Application the Applicant identifies some nine grounds on which the Applicant says he is aggrieved by the Decision, in particular and most relevantly: 1. Ground 1: that the public has "a right and expectation to have those legitimate concerns be properly addressed to ensure integrity of the access application" and that there is a statutory obligation to promote the objects of the GIPA Act. Also that officers that exercise in functions under the GIPA Act are required to exercise such functions in good faith and agencies have a "mandatory" duty to provide advice and assistance to persons requesting access to information. 1. The AR Application is "misconceived" because, while the Applicant has correctly referred to ss 80(c) and 100 as the basis for the Tribunal's jurisdiction for an administrative review, it is apparent from the "grounds" on which the Applicant purports to seek review of the Decision that he seeks to also raise issues which fall outside the scope of the Tribunal's jurisdiction. To the extent that the Applicant seeks to pursue these various grounds his application is misconceived and should be dismissed. 2. In particular, the Tribunal does not have jurisdiction under the GIPA Act to review: 1. allegations of a failure to comply with the requirement in s 16 GIPA Act relating to the provision of advice and assistance by agencies; 2. allegations of failure to comply with requirements for notices prescribed by s 126 GIPA Act; 3. alleged offences under ss 116 and 117 GIPA Act; 4. concerns regarding the conduct of the Information Commissioner and alleged failure by the Information Commissioner to comply with statutory obligations; and 5. alleged corrupt conduct by an officer of the Respondent. 1. The Tribunal has confirmed on numerous occasions that matters of the nature in (3) above, raised by the Applicant, fall outside the scope of the Tribunal's jurisdiction. 2. The AR Application is vexatious given that it has been brought for a collateral purpose. The Applicant's predominant purpose in bringing these proceedings is an improper or "collateral" purpose. 3. It is submitted that the proceedings have been maintained by the Applicant for a purpose that does not include, to any substantial extent, the obtaining of relief within the scope of the Tribunal's jurisdiction in this matter (that is, at its highest, an order that the correct and preferable decision is that the agency should deal with the Applicant's application, and directing that it do so). 4. Rather, the purpose of the proceedings objectively would appear to be to seek to agitate and prosecute complaints and allegations against the Respondent, individual officers of the Respondent and other agencies and, in doing so, pursue the Applicant's grievances with those individuals. That is, the substantial intention of the Applicant is 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 AR Application proceedings. 5. It is submitted that the collateral purpose for which these proceedings have been brought by the Applicant may be ascertained having regard to: 1. the Applicant's conduct in making his application for information and in bringing these proceedings; 2. the Applicant's persistence in making claims that have repeatedly been found to be "bad at law"; and 3. the broader history of the Applicant's proceedings against the Respondent and other agencies.
2. In summary, the relevant submissions made by the Respondent in furtherance of those outlined in [32] above are: 1. no specific submissions were made or evidence presented that the Applicant had either made: 1. previous requests for the Requested Information; or 2. numerous prior requests for access to government information of the Respondent; 1. that the Applicant has been found previously (in relation to other agencies) to have continued persisting with claims found to have been 'bad at law' in earlier or related proceedings, although there was no submissions or evidence presented that the Applicant had previously initiated proceedings on the matters raised in the AR Application on similar matters against the Respondent; and 2. that the Applicant has made numerous access applications for government information under the GIPA Act with a number of agencies.

Applicant Response Submissions

1. In the Applicant Response Submissions the Applicant, most relevantly and in summary, submits as follows: 1. After citing s 12 GIPA Act and the public interest considerations in favour of disclosure generally, the Applicant notes that the GIPA Act is beneficial legislation for the public and that promotion of the objects of the GIPA Act is required to promote the public interest and not those of the government. 2. The statutory obligations conferred on an agency provides a GIPA applicant the right and expectation to have an access application processed in good faith. 3. A person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review of that decision (s100 GIPA Act). 4. Citing Singh v Legal Aid Commission (No 2) [2015] NSWCATD 5, the Applicant notes: "[120] The power to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist the applicant in narrowing the request. Agencies should not rely on the power of refusal to process simply because their information management systems are poorly organised and documents take an unusually long time to identify and retrieve. It is one of the risks associated with the exercise of the s 60 discretion." 1. The provision of only search time estimates does not provide the high degree of certainty that processing time estimates provide. 2. The Applicant then cites a number of relevant cases, (Cianfrano v Director General, Premier's Department [2006] NSWADT 137 and Colefax v Department of Education & Communities (NSW) (No 2) [2013] NSWADT 130) for the proposition/submission that the Respondent needs to justify its position as regards calculation of the time and effort likely to be taken pursuant to s 60 GIPA Act and why this is an unreasonable burden on the Respondent. 3. The requested information is mostly the personal information of the Applicant.

Considerations

1. In my considerations I have given weight to: 1. the right given to members of the public to seek access to government information under s 9 GIPA Act; 2. the presumption in the GIPA Act that such information should, unless there is an overwhelming public interest consideration not to do so, be released to that applicant (see Miriani v Transport for NSW [2021] NSWCATAD 16 (Miriani) at [25]); 3. the right of the public to ultimately seek the administrative review of the Tribunal for any access application decisions of agencies by which they are aggrieved; and 4. the onus on the Respondent to establish the AR Application is either: 1. wholly misconceived or lacking in substance; and/or 2. frivolous or vexatious.
2. I am also mindful that, in these circumstances, some of the relevant government information sought by the Applicant appears to be his personal information.
3. I note that the Respondent could have "refused to deal" with part of the Access Application and complied with the other requests (or otherwise sought for it to not be provided based on public interest considerations against such release). However, the Respondent chose not to deal with the request in relation to any of the government information sought by the Applicant and refused to deal with the entirety of the Access Application, purportedly justified by its global claim as to the effort involved.
4. I appreciate that the Applicant has raised a number of concerns and made submissions more broadly about a range of matters, alleged misconduct and questions of law beyond the jurisdiction of the AR Application proceedings. However, the question is not whether these excesses exist in the AR Application but whether there is any request within the Tribunal's jurisdiction relevant to his AR Application in relation to the Decision under the GIPA Act. That is, is the Applicant at all seeking the Tribunal to determine whether the Decision is the preferable one in the circumstances on the material before it and, if so, has the Respondent established that the AR Application is otherwise vexatious because it has been brought for a collateral purpose.
5. The Access Application and AR Application can only relate to the government information for which the Applicant sought access and which is held by the Respondent, namely the Requested Information. In these Dismissal Application proceedings the onus is on the Respondent to establish, for these Dismissal Application proceedings, that the AR Application is wholly misconceived or lacking in substance or frivolous or vexatious. That is, either that there is no legitimate request by the Applicant or, if there is, it is vexatious for being brought for a collateral purpose.
6. As properly noted by the Respondent (see [32(3)] above, there are many requests in and aspects of the AR Application and the Applicant Response Submissions for which this Tribunal has no jurisdiction in relation to an administrative review under the GIPA Act. However, despite these I find that there is also a clear request for the Tribunal to review the Decision and determine whether it is the preferable decision based on the material before the Tribunal. A request for the Tribunal to review whether the decision of the Respondent to refuse to deal with the Access Application on the grounds that it would be an unreasonable and substantial diversion of resources of the Respondent is the preferable decision based on the material before the Tribunal. That is, can the Respondent justify its "preliminary estimate" of effort and that such is, in the circumstances, legitimately an unreasonable and substantial diversion of resources for it to not provide access to any of the Requested Information.
7. In these circumstances and in line with the approved analysis in Long v Metromix Pty Ltd [2019] NSWCATAP 198 at [77], I find that the entirety of the AR Application is not therefore wholly misconceived or lacking substance pursuant to s 55(1)(b) CAT Act. While, as noted, many of the claims, requests and submissions of the Applicant appear beyond the jurisdiction of this Tribunal in relation to an application for administration review by this Tribunal under the GIPA Act, there remains within the AR Application a legitimate request seeking the Tribunal review the Decision and determine whether it is the preferable decision. That is, the Applicant seeks to challenge and test the Respondent's claim and assertions around its estimate of effort and timing on which it based its s 60(1)(a) GIPA Act refusal to deal with the Access Application (i.e. the Decision) and thus whether it is preferable decision based on the material before the Tribunal. This is clearly within the jurisdiction of the Tribunal in relation to its administrative review function under the GIPA Act.
8. The issue then becomes whether, even if a legitimate request for review, the Respondent has established that the AR Application is otherwise frivolous or vexatious such that the AR Application should be dismissed under s 55(1)(b) CAT Act.
9. I note that the Tribunal has previously (see BDK v Department of Education and Communities [2015] NSWCATAP 129 (BDK) at [72] to [75]) noted that a legitimate request for administrative review of an agency decision under the GIPA Act within the jurisdiction and remit of the Tribunal can be dismissed where it is found to be vexatious or frivolous. However, in my view, in the absence of the Respondent establishing that the AR Application is frivolous and vexatious a legitimate request for administrative review (even if buried among other misconceived or lacking in substance claims) cannot be summarily dismissed.
10. However, as noted by Senior Member Molony in Miriani: 24 The Tribunal, when conducting reviews under the GIPA Act, is not generally concerned with the motivations of applicants seeking access to government information. The objects of the Act are set out in (s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. … 28 It is not unusual for applications to be made for access to government information in the hope of using that information to support of litigation against others, or to seek information to demonstrate maladministration, incompetence or corruption. Members of the public seeking access to government information are exercising the right to do so given to them by the GIPA Act. They are not required by the GIPA Act to explain their motivations. 29 I do not accept that Mr Miriani, by seeking access to information relating to difficulties concerning his birth name in Transport for NSW records, is pursuing concerns that somehow taint his review application. There is no evidence to demonstrate that he is seeking to achieve a collateral purpose (or of what that purpose is) so as to make his review application vexatious. 30 If one of his objects is to obtain correspondence concerning his name between the NSW Police and Transport for NSW, that should not be a concern of the agency or the Tribunal. That is information that he has a right to access under the GIPA Act. The issues will be whether such information is held and if so whether it should be released in the public interest. 31 I therefore reject Transport for NSW's submission with respect to the review application being vexatious as Mr Miriani has a collateral or ulterior purpose for making it.
11. I find that the Respondent has not established, to my satisfaction, that the AR Application is vexatious for being brought for a collateral purpose contrary to the rights granted under the GIPA Act. That is, in line with the formulation in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, approved in BDK at [64] to [68] and [72] to [75] and the findings in Miriani noted in [44] above, I find that the alleged (but not evidenced) collateral purpose of the Applicant as submitted by the Respondent (see [32(7) above] is not established nor, even if it were established, in this case makes the AR Application vexatious.
12. The fact that the GIPA Act provides a legal right to access government information, a presumption in favour of release of that government information and a right to challenge an agency's decision as to access together with the interplay of the Privacy and Personal Information Protection Act 1998 as regards access to personal information are, in my opinion in the absence of the Respondent establishing that the AR Application is misconceived, lacking in substance or vexatious in nature, in the circumstances of this case fatal to the Dismissal Application.

Orders For the reasons set out above, I make the following orders: 1. A hearing for the Respondent's application for dismissal of these proceedings is dispensed with and a determination of that application is made on the papers. 2. The Respondent's application for dismissal is denied. 3. The parties should seek a date for a directions hearing before the Tribunal in relation to the administrative review proceedings (i.e. the substantive matter) to establish the specific issues (or any limits on the issues) to be addressed by the parties both in any written submissions and in any hearing before the Tribunal on the substantive matter.

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

Amendments 22 June 2021 - Amended Format of orders in coversheet 22 June 2021 - Amended Catchwords in coversheet 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: 22 June 2021