On 1 October 2021 I issued in Chambers Orders (1 October Orders) after considering the prior orders of the Tribunal, the submissions of the parties and s 50 of the Civil and Administration Tribunal Act 2013 (CAT Act) in relation to the Applicant's Miscellaneous Application made on 27 July 2021 requesting a referral of certain questions of law to the Supreme Court (Miscellaneous Application). The Miscellaneous Application, the focus of the 1 October Orders, is the focus of these Reasons for Decision.
On 4 October 2021 the Applicant requested written reasons under s 62 CAT Act for the 1 October Orders.
[2]
Background
In Zonnevylle v NSW Department of Justice [2021] NSWCATAD 175 (Zonnevylle) the Tribunal decided against the Respondent's application for dismissal of these proceedings on the papers.
The background to the Applicant's administrative review application dated 29 September 2020, the main focus of the proceedings in this matter, is set out in Zonnevylle.
On 10 August 2021 Principal Member Pearson ordered/directed that, in summary and most relevantly in relation to the determination of the Miscellaneous Application (10 August Orders):
1. the Applicant is to give to the Tribunal and the Respondent any documents and submissions in response to the Respondent's Response to the Miscellaneous Application by 21 September 2021; and,
2. as regards whether the Miscellaneous Application should be determined on the papers:
1. the Respondent consented to the determination of the Miscellaneous Application on the papers and the Applicant opposed it because he is not a legal practitioner and may need to seek legal advice;
2. the Applicant's submissions (referred to in (1) above) are to include submissions on the question of whether the Miscellaneous Application can be determined on the papers; and
3. the Tribunal will consider such submissions and decide whether an order dispending with a hearing should be made under s 50(2) of the CAT Act.
Zonnevylle v NSW Department of Justice [2021] NSWCATAD 323 | Case summary | Zoe
The Applicant did not submit any documents or submissions responding to the Respondent's Response to the Miscellaneous Application on or before 21 September 2021. Therefore, all that was before the Tribunal in relation to the Miscellaneous Application in order to consider and formulate the 1 October Orders was the Miscellaneous Application form as submitted by the Applicant, the Respondent's Response to the Miscellaneous Application and the 10 August Orders.
After reviewing the material before the Tribunal at that time on the Miscellaneous Application and whether such should be determined on the papers the 1 October Orders were that, in summary and most relevantly:
1. a hearing in respect of the Miscellaneous Application will not be dispensed with (ie the Miscellaneous Application will not be determined on the papers);
2. by 12 November 2021 the Applicant is to give to the Tribunal and the Respondent any documents and submissions in response to the Respondent's Response to the Miscellaneous Application;
3. by 10 December 2021 the Respondent is to give the Tribunal and the Applicant any documents and submissions in reply to the Applicant's documents and submissions referred to in (2) above; and
4. the matter is to be relisted for a half day hearing of the Miscellaneous Application on 17 February 2022.
As noted in [2] above, the Applicant requested I provide the reasons for my decision culminating in the 1 October Orders.
[3]
The issue
The main issue arising for determination culminating in the 1 October Orders was whether the consideration of the Miscellaneous Application could be adequately determined in the absence of the Applicant and the Respondent by considering the material before the Tribunal at that date. That is, can the real issues arising from the Miscellaneous Application be adequately determined on the papers (i.e. without a hearing) on the material then before the Tribunal.
[4]
Relevant legislation
Section 50 CAT Act sets out the circumstances in which both a hearing is required for proceedings before the Tribunal and when it may be determined by the Tribunal not to be required (in summary and most relevantly):
50 When hearings are required
(1) A hearing is required for proceedings in the Tribunal except:
…
(c) if the Tribunal makes an order under this section dispensing with a hearing, or
…
(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. …
In applying s 50 CAT Act to the current circumstances I am also mindful of and must apply the 'guiding principle' of the Tribunal (and for the parties) as set out in s 36 CAT Act:
36 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it -
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
…
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
[5]
Can the issues be adequately determined on the papers?
The Applicant was given an opportunity to provide documents and make submissions on both the Respondent's Response to the Miscellaneous Application and on the question of whether the Miscellaneous Application can be determined on the papers. However, at the time of my decision resulting in the 1 October Orders, no such documents or submissions had been received from the Applicant.
Without the Applicant's documents and submissions referred to in [12] above and given the Applicant's opposition to determination of the Miscellaneous Application on the papers recorded in the 10 August Orders, it is my opinion that the materials before the Tribunal on the issues raised in by the Miscellaneous Application are deficient. In addition, even if the relevant documents and submissions were made by the Applicant, I am cognizant of the Applicant's objection to an 'on the papers determination' because, as a non-lawyer, the Applicant stated he may need to get legal advice. Finally, in my view, the substantive issues raised by the Miscellaneous Application cannot be adequately determined without a hearing at which they can be considered. I am therefore satisfied that the substantive issues raised in the Miscellaneous Application cannot be adequately determined on the papers without a hearing.
[6]
Do the 1 October Orders need to be amended?
As a consequence of the time spent considering the Applicant's request and preparing these Reasons for Decision, I need to vary the 1 October Orders and the due date by which the Applicant must submit any documents and submissions responding to the Respondent's Response to the Miscellaneous Application. I have also taken this opportunity to rephrase and recast the 1 October Orders to avoid any ambiguity that may have arisen from the original phrasing of the 1 October Orders.
Because the Respondent has already submitted its response to the Miscellaneous Application, no further written submissions are required of the Respondent once the Applicant has submitted its documents and submissions referred to in [12] above and Order (2) of the 1 October Orders.
[7]
Orders
1. The Orders made by the Tribunal on 1 October 2021 are replaced by the following orders.
2. The Tribunal is not satisfied that the substantive application can be adequately determined on the papers at this time.
3. By 10 December 2021 the Applicant is to give to the Tribunal and the Respondent any documents and submissions in reply to the "Respondent's Response to Miscellaneous Application made on 27 July 2021" filed by the Respondent on 6 August 2021.
4. The matter is to be relisted for a half day hearing before Senior Member Christie as to the Miscellaneous Application on Thursday, 17 February 2022 at 10.00am. That hearing is to be in person unless the COVID-19 pandemic prevents that from occurring, in which case the hearing will be by telephone/AVL.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 November 2021