Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Choi v Legal Aid Commission of NSW [2020] NSWCATAD 242 Hearing dates: On the papers Date of orders: 2 October 2020 Decision date: 02 October 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: (1) Under section 50(4) of the Civil and Administrative Tribunal Act 2013 the Tribunal determines that a hearing is not necessary in this matter. The matter is to be determined on basis of the written material filed by each of the parties. (2) Under section 109 of the Government Information (Public Access) Act 2009 the Tribunal refuses to deal further with the Applicant's review application because it is lacking in substance. (3) The Applicant's review application is dismissed under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 because it is lacking in substance. (4) Within 21 days of this decision, the Legal Aid Commission of NSW is to advise the Tribunal and the Applicant whether it is pursuing an application for costs. Catchwords: ADMINISTRATIVE LAW – Access to information – application for Tribunal to refuse to deal with review application – application for summary dismissal of review application – Tribunal refused to deal with and dismissed review application Legislation Cited: Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142 BDK v Department of Education and Communities [2015] NSWCATAP 129 Choi v University of Technology Sydney [2020] NSWCATAD 238 Choi v University of Technology Sydney [2020] NSWCATAP 18 Category: Principal judgment Parties: Jae Hee Choi (Applicant) Legal Aid Commission of NSW (Respondent) Representation: Solicitors: Applicant (Self Represented) S Ibraham (Respondent) File Number(s): 2020/00083511 Publication restriction: Nil Reasons for Decision Introduction 1. This is an application by the Legal Aid Commission of NSW ("Legal Aid" or "the Respondent") seeking orders from the Tribunal to refuse to deal with, and dismiss, an application for review by made Ms Jae Hee Choi ("the Applicant"). The background to the present application 1. The Applicant has applied for review of a determination by the Respondent in relation to an access application that she made under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The original access application was amended and ultimately its scope was agreed as a request for access to: 1. Any material exchanged between other person(s) or/and other parties including Dr Katherine Johnson, Mr Hoyles, Ms Sarah Cotterill , Ms Giblin, Kathryn Renshall, Department of Justice, the Office of General Council, the Attorney General's Office, Office of Information Commissioner, NSW Ombudsman, University of Technology Sydney and NCAT between August 2018 and now. 1. Any material exchanged among the staff in the Legal Aids 2. Any material in around June/July 2016, made by David Burwood in relation to NCAT No 151057 3. Any material which is kept by you except for material created by me between August 2018 and now. 1. The Respondent made a determination in regard to the amended access application and sent the Applicant a notice of decision in which it advised the Applicant of the approach that it had taken in dealing with the access application and the outcome. The decision maker was Ms Kirsty Bakic, a Solicitor within the Respondent's In-House Counsel Unit. 2. In relation to the searches that had been undertaken to locate information held by the agency that fell within the scope of the Applicant's access application, Ms Bakic's reasons for decision stated: "Under the GIPA Act, we must conduct reasonable searches for the government information you asked for in your application. I have searched our records to find any information that falls within the scope of your application. I made the following enquiries and searches: a. I searched "Jae Hee Choi" on ATLAS (our legal aid grants database). b. I accessed the 2018 ATLAS file, 18G058335, and reviewed all of the documents contained therein. From this file, I was able to access all of the email correspondence between Mike Snape and yourself. From these emails, I was able to ascertain that the requested information had already been provided to you. c. I then accessed the Windows drive utilised by In-house Counsel for storage of our matters and documents, and was able to access the folder for your previous informal access application. From this, I was able to ascertain that Sally McAtee provided you with the application lodged on or around June 2016 in relation to your privacy matter. Ms McAtee provided you with a copy of the application dated September 2016 (file 16G043390), and confirmed that there was no application lodged by David Burwood (however this application does refer to him as your solicitor). d. For sake of completeness, I also searched your previous ATLAS files 15G043695 and 16G022886 as well as "Jae Hee Choi" on our Client Case Management System (CCMS) and could not locate any further documents relevant to your request which have not previously been provided to you." 1. Ms Bakic advised the Applicant of the outcome as follows: "I have decided, under section 58(1)(b) that part of the information you have requested is not held by the agency as set out in Part 4 of this Notice In relation to the remainder of the information you have requested, I have decided under section 58(1)(c) that the information is already available to you, and I have no reason to believe that the information is no longer in your possession (section 59(1)(d)), as set out in Part 5 of this Notice I have also decided to refuse to deal with part of the application under s58(1)(e) as you have previously been provided with access to the information under this Act (section 60(1)(b1)), as set out in Part 6 of this Notice. ... 1. The Applicant sought review of the Respondent's determination. 2. At a case conference on 21 April 2020 Senior Member McAteer made the following directions: "1 The applicant is to provide to the Solicitor for the respondent by email on or before 28 April 2020 a copy of the letter dated around August or September 2018 sent by Legal Aid to Mr Hoyles which she obtained under the GIPA Act from the Department of Justice. 2 The Respondent is to decide whether that document is within scope and make a decision under the GIPA Act in respect of that document (and any other documents they identify / locate as a result of receiving that document and conducting any further searches), such decision to be made and a response provided to the applicant on or before 15 May 2020. 3 The proceeding is listed for directions on 19 May 2020 at 9:30am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 5 minutes. 4 Notes: The parties note and agree that at the directions listing on 19 May 2020 the applicant may withdraw the matter if she is satisfied with the respondent's response of 15 May 2020. 5 Notes: If the matter is not withdrawn on or before 19 May 2020, the Tribunal will set the substantive matter down for hearing and set a timetable accordingly. If this is the case, any application by the respondent under s 55 (1) of the NCAT Act 2013 will be foreshadowed at the directions listing and the timetable (if applicable) can be adjusted / set accordingly to accommodate such preliminary application." 1. In these reasons I will refer to the first of the directions made by Senior Member McAteer on 21 April 2020 as "Senior Member McAteer's Order 1". 2. On 3 May 2020, Legal Aid received an email from the Applicant. Attachments to the email contained copies of letters which were dated between August, September and October 2018. However, the letters did not meet the description set out in Senior Member McAteer's Order 1. They were letters produced by the Office of General Counsel and were not letters "sent by Legal Aid to Mr Hoyles". 3. On 5 May 2020 the Applicant sought an adjournment of the 19 May 2020 directions hearing. Legal Aid opposed that adjournment application and indicated that it would be seeking to have the matter struck out. 4. I refused the adjournment application and noted that the purpose of the 19 May 2020 directions hearing was to set a timetable and that that timetable should have been able to be set without the need for the parties to attend. I made the following directions: "If Ms Choi doesn't agree, she will need to explain the basis of her adjournment application. If the Respondent is seeking to have the matter struck out it should file and serve an application to that affect asap." 1. I listed the Respondent's application to have the matter struck out for direction on 19 May 2020 and indicated to the parties that if they were able to agree on a timetable, the directions hearing could be vacated and a timetable set on the basis of their written material. 2. The matter came before me for directions on 19 May 2020. At that time I set a timetable giving each of the parties the opportunity to provide material in relation to the Respondent's application to have the matter struck out. I made the following orders: 1 Jae Hee Choi is to give to the Tribunal and Legal Aid Commission of NSW all material in response to the strike out motion on or before 02 June 2020. 2 Legal Aid Commission of NSW is to give to the Tribunal and Jae Hee Choi all material in reply on or before 09 June 2020. 3 Jae Hee Choi is to give the Tribunal and Legal Aid Commission of NSW any other material in reply on or before 16 June 2020. 4 The case will be decided without the need for parties to be present. The strike out motion 1. By application dated 8 May 2020 Legal Aid applied for an order dismissing the proceedings ("the strike out motion"). Legal Aid sought an order for dismissal under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 ("NCAT Act") on the grounds that the application is misconceived and lacking in substance. 2. Section 55(1)(b) of the NCAT Act provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, ... 1. Alternatively, the agency sought an order under section 109 of the GIPA Act which provides: 109 NCAT may refuse to review decision NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance. 1. Legal Aid also indicated that it may be seeking an order for costs under section 60(3)(e) of NCAT Act. 2. The parties have agreed that the strike out motion is to be determined on the basis of the written material without the need for the parties to attend for a hearing. 3. Under section 50(4) of the NCAT Act I have determined that a hearing is not necessary in this matter. In these circumstances the matter is to be determined on basis of the written material filed by each of the parties. Issues 1. The issue for the Tribunal is whether should refuse to deal further with the application for review and/or whether the application should be dismissed. Material before the Tribunal 1. The Applicant relies on her own evidence. She provided a statement and written submissions. Legal Aid relies on written submissions and a statement provided by its Senior Solicitor, Ms Sarah Ibraham. Legal Aid's case 1. As noted above, Legal Aid was directed to file and serve it material in reply on or before 09 June 2020. It did not do so until 10 June 2020. In the circumstances it is my view that the material should be accepted notwithstanding that it was not filed in accordance with the timetable set on 19 May 2020. The Applicant has had an opportunity to respond to the material and has not identified any prejudice that she has suffered as a result of the delay. 2. The Respondent's contention is that the application as it remains for determination, following the narrowed scope, is misconceived and lacking in substance. 3. Legal Aid submits that although the Applicant applied for legal aid, she has not been legally represented by the Respondent. Her request for legal aid was refused because aid was not available for the area of law for which she sought assistance. 4. In her statement dated 10 June 2020 Ms Ibrahim provided a chronology of events leading to the strike out motion. Ms Ibrahim's evidence is that she reviewed all of Legal Aid's interactions with the Applicant with reference to the dates of her access application request. She stated that as the Applicant has not been legally represented by Legal Aid, it only holds limited information relating to her matters. 5. The Applicant's access application sought a copy of information as set out above. The Applicant identified a number of categories of information that she sought. Ms Ibrahim stated that the Applicant was offered a copy of all the documents that Legal Aid held on its system. 6. Following correspondence between the parties, the Applicant agreed to a narrowed scope of her access application and a determination was made in relation to the narrowed request. The Applicant subsequently sought external review in the Tribunal. 7. Ms Ibrahim's evidence is that she attended the first case conference on 21 April 2020 and the issues in dispute were narrowed. Ms Ibrahim's evidence is that the Applicant agreed that she was seeking correspondence between Legal Aid NSW and Mr Hoyles. The Applicant had indicated that she had obtained a redacted copy of the correspondence from the Department of Justice but wanted the version without redactions. Ms Ibrahim's evidence is that she had advised the Applicant that Legal Aid does not hold that information, as there was never a grant of legal aid, but that the Applicant insisted that the documents were in existence and Senior Member McAteer set a timetable as referred to above. 8. On 28 April 2020, the Applicant wrote to the Respondent as follows: After the case conference by Senior Member MacAteer, I have not received any written order from NCAT. That is quite unusual. What was the order during the case conference? In my understanding, I need to send you the correspondence showing the Legal Aids sent correspondences to the Department of Justice. 1. In response, Ms Ibrahim wrote: Yes you were ordered by Senior Member McAteer to send Legal Aid NSW the documents on Legal Aid NSW letter head sent to you by Justice NSW with redactions. You were to do so within 7 days of the case conference. 1. On Sunday 3 May 2020 the Applicant sent an email to the Respondent, attaching letters, with redactions, that she had obtained from the Department of Justice. Ms Ibrahim attached copies of those letters to her statement. 2. On 5 May 2020 Ms Ibrahim wrote to the Applicant as follows: I received your email yesterday, you have attached documents which have been created by Justice NSW not Legal Aid NSW, although they refer to Legal Aid NSW they are not our documents so we are unable to produce them. You need to GIPA Justice NSW directly rather than Legal Aid NSW if you'd like those documents without redactions. I would like you to please withdraw your GIPA review with NCAT and I would like you do so as soon as possible. On the next occasion I will be seeking to strike out this application and possibly seek costs. 1. Ms Ibrahim notes that despite the fact that she had appeared as the Respondent's representative at the case conference and had corresponded with the Applicant on behalf of the Respondent, the Applicant chose to address her correspondence to Ms Bakic. 2. In support of the strike out motion Ms Ibrahim submitted: We rely on the authority set out in Choi v University of Technology Sydney [2020] NSWCATAP 18: 49. We agree with the Victorian Civil and Administrative Tribunal in 1IQ Pty Ltd v Delaney Associates Pty Ltd [2011] VCAT 2056 at [30] that: Generally speaking, I say that it is important that would-be applicants are not deterred from airing genuine grievances and making genuine claims, by the fear that the Tribunal will award costs against them if they lose, particularly if they lose because they have made a legal mistake. 50. We also agree with the qualification to that proposition expressed by VCAT in the following paragraph: On the other hand, the right to air a grievance and make a claim needs to be exercised responsibly. It would be unfair to respondents for the Tribunal to permit applicants to think that they can, with impunity, pursue any claim that they have a mind to make. The Applicant's case 1. The Applicant disputes the Respondent's assertion that the application is misconceived and lacking in substance. She provided a statement, submissions in response to the strike out motion and submissions in response to Ms Ibrahim's evidence and submissions. 2. In her statement the Applicant provided detailed background information in which she explains her reasons for bringing the access application. She explained that she gave Ms Bakic a copy of a letter from the Officer of the General Counsel to Mr Hoyles. Mr Hoyles was the Applicant's guardian ad litem. The Applicant contends that the letter from the Officer of the General Counsel to Mr Hoyles implies that correspondence was exchanged between Legal Aid and the Officer of the General Counsel in the Department of Justice. 3. The Applicant says that in her correspondence with Ms Bakic she explained that the information which she wished to access was correspondences between Legal Aid and the Department of Justice. She further stated that at the case conference with Senior Member McAteer she had indicated that she had some letters obtained from the Department of Justice showing that the Department of Justice and the Respondent had exchanged correspondence. She said that she compromised and reduced the scope of her access application and agreed to the orders that Senior Member McAteer made. She had also said that she would revoke her review application if the Respondent released the correspondence that it exchanged with the Department of Justice. 4. She contends that she has had numerous problems due to her lack of English and that she has often been misunderstood. 5. The Applicant explained that when she received an email from Ms Ibrahim she did not reply to her because she did not think that Ms Ibrahim acted for Legal Aid. She stated: I thought Ms Ibrahim is a strange person who interrupted my proceedings. Additionally, I was afraid if Ms Ibrahim would cause a problem by raising an unnecessary issue to frustrate the process. 1. She said that when she received a copy of Senior Member McAteer's orders she discovered that the orders did not reflect her intention. She stated that her intention was to say that: there are letters showing that the Respondent and the Department of Justice exchanged correspondence. However, it was already overdue. Thus, I did not request Senior Member McAteer to amend the Order 1. Also, I expected Ms Bakic to understand what I wanted because I thought she had read my email ... 1. The Applicant indicated that she understands that the Respondent's strikeout motion is based on Senior Member McAteer's Order 1. However, she did not agree that the order reflected her intention. As a result she requested an amendment to Senior Member McAteer's Order 1 on 19 and 20 May 2020. Senior Member McAteer's Order 1 has not been amended and it is the subject of the Respondent's strikeout motion. 2. In response to the strike out motion the Applicant submitted that her application has merits regardless whether or not she complied with Senior Member McAteer's Order 1. 3. She submitted that: There are six errors in relation to the strike out motion. (1) The Respondent's notice of representation served on 19 May 2020 (2) A late release of the orders by Senior Member McAteer (3) No Korean Interpreter at the case conference and the directions (4) Denial of procedural fairness (5) jurisdictional errors by Senior Member Montgomery and (6) the Respondent's abusing my generousness. 1. She provided submissions in which she expanded on each of those issues. 2. She stated that she did not take Ms Ibrahim's emails into account or treat them seriously because she thought Ms Ibrahim was not the legal representative of the Respondent. 3. In relation to the orders made by Senior Member McAteer on 21 April 2020 she submitted: A late release of the Order by Senior Member McAteer The case conference was held on 21 April 2020. The due for order 1 was 28 April 2020. However, the order was issued on 30 April 2020. I received the order by Senior Member McAteer on 30 April 2020. ... I was unable to raise an issue regarding the order 1 by Senior Member McAteer including what I did not agree. (1) Firstly, time-consuming. The due for order 1 was already passed. The due was 28 April 2020 but I received the order on 30 April 2020. (2) Secondly, I was pressed by the email from Ms Ibrahim on 28 April 2020, "You were to do so within 7 days of the case conference. I await this correspondence. ... (3) Final, Ms Bakic who I thought was acting for the Legal Aid NSW did not reply to me regarding my email on 28 April 2020. Thus, I thought I had to send the material as soon as possible. ... The Registry provided me with the Order by Senior Member McAteer so late on 30 April 2020 after the due despite my exclusive request on 23 and 29 April 2020. ... 1. The Applicant contends that she was not competent to represent herself without a Korean interpreter. She submits that an interpreter should have been available to assist at the case conference and at the directions hearings. Without a Korean Interpreter she was unable to express herself in a way that her true intentions were understood. 2. The Applicant contends that she was denied procedural fairness by the failure to comply with her request for a Korean interpreter at the Directions hearings and that this was in breach of section 26 of the NCAT Act. 3. She further submits that she was denied procedural fairness in that on 7 May 2020, Senior Member Montgomery ordered the Respondent to file and serve a dismissal application under s109 of the GIPA Act on his own motion. The Respondent did not file and serve striking out motion letter at NCAT until 8 May 2020. The Respondent's email on 5 May 2020 was not emailed cc to the Tribunal. ... Senior Member Montgomery's order on 7 May 2020 provides; "If the Respondent is seeking to have the matter struck out it should file and serve an application to that affect asap" … the Respondent has never filed and served any applications regarding striking-out motion or/and dismissal under any Acts. It should be said that the Respondent gave up filing and serving any relevant applications. However, Senior Member Montgomery ordered me to respond to the Respondent's striking-out motion. …on 7 May 2020, Senior Member Montgomery adjourned the directions on his own motion. On 7 May 2020, the Senior Member Montgomery refused to adjourn the directions despite my request. However, on 12 May 2020, Senior Member Montgomery adjourned the directions on his motion although I did not request him to do so. It should be only said that Senior Member Montgomery adjourned the directions for me to participate in the directions to make the Respondent's striking-out motion effect on the Respondent's side. … 1. The Applicant contends that there is a jurisdictional issue relating to the strikeout motion. She submitted: Did Senior Member Montgomery have jurisdiction to deal with striking-motion? No. His order 1 provides; "1 Jae Hee Choi is to give to the Tribunal and Legal Aid Commissioner of NSW all material in response to the strike out motion on or before 02 June 2020" Firstly, his order is in response to the strike out motion made by Ms Ibrahim on 8 May 2020. Senior Member Montgomery had no jurisdiction to order me to respond to the Respondent's "motion". The Tribunal has jurisdiction to deal with the "applications". Secondly, the Respondent's motion is not even legally working. The letter is defective and casual. In the Respondent's letter on 8 May 2020; (1) The Respondent stated "I act for Legal Aid NSW" without serving a copy of the notice of representation. The Respondent served the notice of representation stating Ms Ibrahim is a legal representative on 19 May 2020, failing to comply with s26 of the NCAT Act. I did not have to take into account her email. (see Error1). (2) The Respondent was not entitled to request for dismissing my review application with a motion under s55(1)(b). (3) The Respondent did not clearly state if its intension was striking-out motion or a dismissal application; "We are seeking a strike out motion or a dismissal proceedings by NCAT under s55(1)(b)….Cat Act…". (4) Referring to "…we would be agreeable that the strike out motion be heard on the papers by way of submissions". The Tribunal has no jurisdiction to hear the notice of motion. The Supreme Court of NSW has notice of motion". Also, Who is "we"? Additionally, why "by way of submissions"? (5) Referring to "We will be relying on s53(1) GIPA Act….". The Respondent did not say "are relying on" but "will be relying on". The Respondent did not submit any evidence showing that the Respondent has no relevant information. Rather, there is evidence showing the Legal Aid NSW sent correspondence to the Department of Justice. ... (6) Referring to "we may also be seeking costs under s60(3)(e) of CAT Act". The term "may" used in the letter. The Respondent has not decided yet. I have lived in Korea during the material period. They Respondent may doubt if the Tribunal has jurisdiction to enforce State legislations against me. (7) The Respondent did not sign the letter. (8) She emailed in the doc. form not, even PDF form. Finally, Senior Member Montgomery was not allowed to choose on behalf of or/and for the Respondent, however, he chose a motion among the two options (motion or application). Ms Ibrahim stated in her letter on 8 May 2020, "We are seeking a strike out motion or a dismissal proceedings by NCAT under s55(1)(b)….Cat Act…". When Ms Ibrahim was unable to choose one, Senior Member Montgomery chose the strike out motion on behalf of or/and for the Respondent. What an unusual teamwork! Senior Member Montgomery's decision was beyond his jurisdiction. 1. The Applicant contends that the Respondent has abused its position. She submitted: On 29 April 2020, at the case conference, the Respondent said the Legal Aid of NSW does keep the records despite its obligation under the State Records Act 1989. The Respondent asked for my generousness to resolve the matter beyond the NCAT. Thus, I agreed to order me to send the Respondent the letters implying the Legal Aids NSW exchanged correspondences with the Department of Justice. It could have been Order 1. Also, Order 4, withdrawal. I compromised by reducing the scope sought in my NCAT review application, considering the Respondent's situation. I was going to withdraw my review application if the Respondent had released the documents exchanged between the Respondent and Department of Justice. Thus, it was like a sudden attack for the Respondent's intension to dismiss my review application in relation to the reduced scope. … It should be said that the Respondent abused my generousness. 1. In regard to the issue of the merits of her application, the Applicant submitted: Assuming that I had not complied with the order 1 by Senior Member Montgomery (sic), my application still has merits. I have no letters directly from the Respondent to Mr Hoyles. However, I have the letters from the Respondent asking the Department of Justice to give my guardian ad litems Ms Hoyles and Dr Johnson. Also, it should be highlighted that Ms Sasha at Legal Aid NSW's email is referring to the records held at the Respondent. Thus, the Respondent's assertion that my application is vexatious and lacking in substance is incorrect. ... The letter from Office of the General Counsel to Mr Hoyles on 27 August 2018 shows that the Respondent had sent correspondence to the Department of Justice. The letter written by the Respondent has not been released. ... The letter provides; "Initial Referral Pilot Program through Legal Aid NSW Arrangements have been made with Legal Aid NSW to trial an initial referral pilot program for guardian ad litem who require initial advice on the merits of their client's claim. If you require this service, please contact the Civil Law Reception on ….and ask for……if……is not available, a message will be taken and someone else will return your call" The letter from Office of the General Counsel to Mr Hoyles on 17 September 2018 shows that the Respondent had sent correspondence to the Department of Justice which was not released. ... The letter provides; "Initial Referral Pilot Program through Legal Aid NSW Arrangements have been made with Legal Aid NSW to trial an initial referral pilot program for guardian ad litem who require initial advice on the merits of their client's claim. If you require this service, please contact the Civil Law Reception on (02) 9219 5790 and ask for………s not available, a message will be taken and someone else will return your call" The letter from Office of the General Counsel to Mr Hoyles on 12 October 2018 shows that the Respondent had sent correspondence to the Department of Justice which was not released. ... The letter provides; "Initial Referral Pilot Program through Legal Aid NSW Arrangements have been made with Legal Aid NSW to trial an initial referral pilot program for guardian ad litem who require initial advice on the merits of their client's claim. If you require this service, please contact the Civil Law Reception on ………….. and ask for………s not available, a message will be taken and someone else will return your call" The letter from Office of the General Counsel to Dr Katherine Johnson on 25 October 2018 shows that the Respondent had sent correspondence to the Department of Justice. No access was provided to me. ... The letter provides; "Initial Referral Pilot Program through Legal Aid NSW Arrangements have been made with Legal Aid NSW to trial an initial referral pilot program for guardian ad litem who require initial advice on the merits of their client's claim. If you require this service, please contact the Civil Law Reception on ………….. and ask for………s not available, a message will be taken and someone else will return your call" The letter from Office of the General Counsel to Mr Hoyles on 8 November 2018 shows that the Respondent had sent correspondence to the Department of Justice. The Legal Aid NSW seems to have offered the Initial Referral Pilot Program. No access was provided to me. ... 1. The Applicant further submitted that there are more grounds of her review application which identified that the Respondent: 1. did not clearly respond to each sub-point in her access application; 2. did not state if the information released was "in part" or "in full" in the table of a schedule; 3. failed to conduct proper searches. The notice of decision does not include its search details. 4. may have other relevant information relating to the request. 1. She contends that her application is not vexatious or/and lacking in substance as there is material showing that there is further information in the possession of the Respondent that has not been disclosed or for which the Respondent has not searched properly. She stated that she revokes her reduced scope and submits that the proceedings should continue on the basis of the scope identified in her review application. Consideration 1. I do not agree with the Applicant's submission that the Tribunal does not have jurisdiction to deal with the strike out motion. If a review under the GIPA Act is "frivolous, vexatious, misconceived or lacking in substance" then the Tribunal may refuse to deal with it under section 109. Under section 55(1)(b) of the NCAT Act the Tribunal may dismiss proceedings that are, "frivolous or vexatious or otherwise misconceived or lacking in substance". 2. 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. 3. In this matter, Legal Aid is asking the Tribunal to exercise its powers with respect to the Applicant's application on the basis that it is misconceived or lacking in substance. 4. In Choi v University of Technology Sydney [2020] NSWCATAD 238, at paragraphs [22] – [24], Senior Member Mulvey considered the term "lacking in substance" and stated: 22. The term "lacking in substance" is not defined in the GIPA Act but has been interpreted in many cases including under the various federal and state anti-discrimination statutes: State Electricity Commission (Vic) v Rabel [1998] 1 VR 102 [31] – [45]; Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at [10]; Gauci v Kennedy [2006] FCA 869 at [32]; Margan v University of Technology, Sydney [2003] NSWADTAP 65. See the discussion of these cases in Rees Rice and Allen, Australian Anti-Discrimination Law (2nd ed 2014, The Federation Press) at 776 to 781. The most commonly quoted definition is that an application will be lacking in substance if it is based on "an untenable proposition of law or fact": State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J. 23. Sir Ronald Wilson said in Assal v Department of Health Housing and Community Services, (1992) EOC 92-409, 78,897 at 78,900 that: ... it is unwise postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case. 24. In the context of the GIPA Act, if the Tribunal does not have jurisdiction or the application lacks merit because of a restriction or qualification on the applicant's rights under the GIPA Act, then the application will be lacking in substance. For example, an application will be lacking in substance if it meets any of the tests in s 110(2), if there is an overriding public interest against disclosure or if the information is not held by the agency. But it must always be borne in mind that an applicant has an enforceable right to access government information and the discretions conferred by the Act are to "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information": GIPA Act, s 3(2)(b). 1. In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to section 55(1)(b) of the NCAT Act - section 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of 'misconceived' and 'lacking in substance', he said: 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]. 1. These views from Alchin v Rail Corporation NSW have been cited in a number of decisions of this Tribunal. See for example BDK v Department of Education and Communities [2015] NSWCATAP 129 2. In Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 in the context of a discrimination complaint, the Appeal Panel of the Administrative Decisions Tribunal stated at paragraph [11] that: Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of `taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken `at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred. 1. As I have noted above, Ms Ibrahim's evidence is that the scope of the issues that remained in dispute between the parties was narrowed at the case conference on 21 April 2020. Ms Ibrahim's evidence is that the Applicant agreed that she was seeking correspondence between Legal Aid and Mr Hoyles. The orders that were made by Senior Member McAteer on that occasion suggest that he had a similar understanding of the reduced scope. In the circumstances I accept Ms Ibrahim's evidence on this issue. 2. The Applicant's case appears to be that she did not intend that the scope would be narrowed in that way. Rather, she appears to suggest that it was her intention that the scope would be limited to a request for correspondence from Legal Aid to the Department of Justice. She requested that Senior Member McAteer amend his Order 1 but did not do so until 20 May 2020. Senior Member McAteer's Order 1 has not been amended. 3. On the material before me I am satisfied that the scope of the issues remaining for determination by the Tribunal was narrowed at the case conference on 21 April 2020 and that the Applicant agreed that she was seeking correspondence between Legal Aid and Mr Hoyles. 4. In my view, none of the issues raised by the Applicant alter this situation. 5. As noted, the initial access application was narrowed and the narrowed scope was the subject of the Respondent's determination. That scope would capture a request for correspondence from Legal Aid to the Department of Justice. However, correspondence from Legal Aid to the Department of Justice is not captured by the narrowed scope that was agreed at the case conference on 21 April 2020. 6. It appears that the Applicant has misunderstood the events that have occurred in the relation to the strike out motion. The strike out motion was brought by Legal Aid and not by the Tribunal as the Applicant has asserted. The timetable that I set was to allow the parties to address the issues raised by the strike out motion. 7. The strike out motion is brought on the grounds that the Applicant's application is misconceived and lacking in substance. This contention is based on the narrowed scope agreed at the case conference on 21 April 2020. 8. In the circumstances of this matter, the Respondent asserts that the information that the Applicant is seeking is not held by the agency. Whether or not the information is held is often a factual issue that is "likely to be affected by evidence in the possession of" the Respondent. If that were the case in this matter, that matter alone may make it inappropriate to dismiss the matter. 9. However, the Applicant does not identify any evidence to suggest that Legal Aid should hold any correspondence between it and Mr Hoyles. She does not suggest any further searches that might locate correspondence between Legal Aid and Mr Hoyles. She is not asserting that Legal Aid should hold any correspondence between it and Mr Hoyles. It follows that the existence of correspondence between Legal Aid and Mr Hoyles is not a factual issue that needs to be determined. 10. Given the Applicant's position regarding the existence of correspondence between Legal Aid and Mr Hoyles and the view that I have formed regarding the narrowed scope of the issues in dispute, it is my view, that the Applicant's case, taken 'at its highest', does not identify any outstanding issues that need to be determined. It follows that, following the narrowing of the scope agreed at the case conference on 21 April 2020, the application as it remains is lacking in substance. It is futile for the proceedings to continue as there are no outstanding issues that need to be determined. 11. A request for correspondence from Legal Aid to the Department of Justice would need to be the subject of a separate access application. Costs 1. In her submissions in support of the strike out motion Ms Ibrahim submitted: We submit given our attempt to seek a withdrawal from the application, we seek costs under s60(3)(e) of CAT Act. The many hours amounting to days spent on responding to the Applicant and numerous attempts to resolve this dispute before NCAT proceedings and during NCAT proceedings and the frequent correspondence between parties is illustrated throughout my statement and its annexures. 1. If this application for costs is pursued, a timetable will need to be set to allow each party to be heard in relation to the issue. Any application for costs, with supporting submissions, will need to be filed with the Tribunal and served on the Applicant. The matter can then be listed for directions hearing to set a timetable. Orders: The Tribunal orders that: 1. Under section 50(4) of the Civil and Administrative Tribunal Act 2013 the Tribunal determines that a hearing is not necessary in this matter. The matter is to be determined on basis of the written material filed by each of the parties. 2. Under section 109 of the Government Information (Public Access) Act 2009 the Tribunal refuses to deal further with the Applicant's review application because it is lacking in substance. 3. The Applicant's review application is dismissed under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 because it is lacking in substance. 4. Within 21 days of this decision, the Legal Aid Commission of NSW is to advise the Tribunal and the Applicant whether it is pursuing an application for costs. ********** 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: 02 October 2020