Hutchison v NSW Department of Education [2018] NSWCATAD 100

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hutchison v NSW Department of Education [2018] NSWCATAD 100 Hearing dates: On the papers Date of orders: 14 May 2018 Decision date: 14 May 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member Decision: (1) The hearing of the respondent's application for dismissal is dispensed with and a determination of that application is made on the papers.

(2) The applicant's application is dismissed. Catchwords: ADMINISTRATIVE REVIEW – respondent made an application for the dismissal of the applicant's review application on the basis that the application was misconceived as no further issues arose – whether a hearing of the respondent's dismissal application should be dispensed with and a determination of the application be dealt with on the papers Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Government Information (Public Access) Act 2009 (NSW) Category: Principal judgment Parties: Jeffrey John Hutchison (Applicant) NSW Department of Education (Respondent) Representation: In Person (Applicant) E Stathis (Respondent) File Number(s): 2017/00297392

reasons for decision

Introduction 1. The respondent, the NSW Department of Education, has made an application, under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), seeking dismissal of the external administrative review application of the applicant, Jeffrey John Hutchison. The applicant's external review application concerns a decision of the respondent, made pursuant to s 58 of the Government Information (Public Access) Act 2009 (GIPA Act), concerning his application for access to specific information about him that was held by the respondent. Of concern to the applicant was obtaining a copy of the electronic recordings of two meetings he had with officers of the respondent's Employee Performance and Conduct Directorate (EPAC) during 2011. 2. Section 55 of the NCAT 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, …," 1. The respondent formally made its dismissal application on 8 February 2018, in accordance with orders made by the Tribunal, constituted by Dr Lucy Senior Member, at a case conference, on 19 December 2017. The Tribunal's records indicate that the applicant and the respondent were present at the call-over. The orders made by the Tribunal were as follows: "1. NSW Department of Education is to give to the Tribunal and the other party the following material: application for summary dismissal and evidence and submissions in support on or before 09 February 2018. The submissions should address whether the application should be determined on the papers. 2. Jeffrey John Hutchison is to give to the Tribunal and the other party the following material: submissions and evidence in reply on or before 23 February 2018. The submissions should address whether the application for summary dismissal should be determined on the papers (that is, without an oral hearing). 3. The Tribunal will thereafter determine whether the matter can be determined on the papers and, if so, the decision will be reserved." 1. On 8 February 2018, also in compliance with the abovementioned orders, the respondent filed: 1. a statement of Jason Kennedy-Davidson, Manager Support Services, of EPAC. The statement is dated 7 February 2018 and sets out searches Mr Kennedy-Davidson conducted to identify records of meetings, in 2011, between the applicant and officers of EPAC; and 2. written submissions by Elissa Stathis, Manager Information Access Unit, in which it was submitted that the applicant's review application should be dismissed, under s 55(1)(b) of the NCAT Act, as the evidence was that the respondent had conducted reasonable searches for the specific information requested by the applicant and no additional records had been located. It was also submitted that: "the Tribunal should determine this application on the papers." 1. The respondent forwarded a copy of the abovementioned statement and written submissions to the applicant, by express post, under the cover of a short letter. These were sent around the same time as the material was filed with the Tribunal. 2. No evidence or submissions have been filed or served by the applicant. 3. Having regard to the material filed in these proceedings and the relevant provisions of the GIPA Act, I am satisfied that the issues for determination in the respondent's dismissal application can be adequately determined in the absence of the parties by considering the material that has been lodged with the Tribunal. Hence I have made an order under s 50 of the NCAT Act dispensing with a hearing of the respondent's application. 4. Furthermore, on the material before the Tribunal, I am satisfied that the respondent has proven that there was only one meeting, between the applicant and officers of EPAC, which was electronically recorded. That meeting, an interview, occurred on 16 March 2011 and the respondent has now, during the course of these proceedings, provided the applicant with a CD that contains a copy of that recording. Hence, there are no remaining issues outstanding in regard to the applicant's access application and on this basis it is appropriate to dismiss the applicant's application and to otherwise affirm the decision of the respondent as being the correct and preferred decision.