Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DND v Commissioner of Police, NSW Police Force [2019] NSWCATAD 220 Hearing dates: 10 October 2019 Date of orders: 10 October 2019 Decision date: 25 October 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: The application is dismissed because the proceedings are frivolous, vexatious or otherwise misconceived or lacking in substance. Catchwords: ADMINISTRATIVE REVIEW – Reporting obligations – Application for summary dismissal – Whether Tribunal has power to grant relief sought by applicant - Whether Tribunal has power to exempt an applicant from his or her reporting obligations altogether Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Criminal Code (Cth) (Schedule to the Criminal Code Act 1995 (Cth)) Interpretation Act 1987 (NSW) Cases Cited: DKP v Children's Guardian [2019] NSWCATAP 185 Texts Cited: None cited Category: Principal judgment Parties: DND (Applicant) Commissioner of Police, NSW Police Force (First Respondent) Children's Guardian (Second Respondent) Representation: Solicitors: Applicant (Self Represented) Crown Solicitor (First and Second Respondents) File Number(s): 2019/00278681 Publication restriction: Pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the material filed by the Commissioner of Police on 3 October 2019 and marked "Confidential" is prohibited. Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of the applicant is prohibited. reasons for decision 1. The applicant is a "registrable person" within the Child Protection (Offenders Registration) Act 2000. 2. The applicant applied to the Tribunal for an exemption from compliance with his reporting obligations under s 16 of the Child Protection (Offenders Registration) Act. 3. The respondents applied for summary dismissal of the applicant's application, contending that the Tribunal did not have jurisdiction to determine it. The Tribunal then held a short hearing to decide whether the applicant's application should be dismissed. 4. I decided that the Tribunal did not have power to grant the relief sought by the applicant. Accordingly, I dismissed the applicant's application at the hearing. 5. Following the hearing, the applicant requested written reasons for my decision. These are those reasons. Background 1. The applicant was sentenced in respect of an assault with indecency contrary to s 61L of the Crimes Act 1900 on 7 June 2016. The offence was a Class 2 offence (in the particular circumstances) and so a "registrable offence" within the Child Protection (Offenders Registration) Act. 2. The applicant became subject to reporting obligations under the Child Protection (Offenders Registration) Act upon being sentenced, for a period of eight years (Child Protection (Offenders Registration) Act, s 14A(1)(a)). 3. The applicant travelled overseas for a period of 38 days in 2016 and his reporting obligations were suspended by operation of s 15(3) of the Child Protection (Offenders Registration) Act. 4. The applicant's passport was cancelled in August 2018. 5. On 29 August 2019, the applicant applied to the Commissioner of Police, under s 271A.1 of the Criminal Code (a schedule to the Criminal Code Act 1995 (Cth)), to travel overseas on 30 or 31 August 2019 to visit his parents. The Commissioner is a "competent authority" for the purposes of s 271A.1. 6. An agent of the Commissioner refused to give that permission on 30 August 2019. 7. On 6 September 2019, the applicant applied to the Tribunal for an exemption from compliance with his reporting obligations under s 16 of the Child Protection (Offenders Registration) Act. He said that the purpose of the exemption was so that he could travel overseas to spend time with his elderly parents who were in hospital. Relevant legislative provisions 1. Section 16 of the Child Protection (Offenders Registration) Act relevantly provides: 16 NCAT may exempt persons from compliance with reporting obligations (1) This section applies to a registrable person: (a) who is required to continue to comply with the reporting obligations imposed by this Part for the remainder of his or her life, or (b) whose reporting period has been extended under section 15 (3) (whether or not he or she is a person referred to in paragraph (a)). … (3A) On the application of a registrable person referred to in subsection (1) (b), the Civil and Administrative Tribunal may make an order suspending the registrable person's reporting obligations for the length of time by which the registrable person's reporting period was extended under section 15 (3). (4) The Civil and Administrative Tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. (5) In deciding whether to make an order under this section, the Civil and Administrative Tribunal is to take the following matters into account: (a) the seriousness of the registrable person's registrable offences and corresponding registrable offences, (b) the period of time since those offences were committed, (c) the age of the registrable person, the age of the victims of those offences and the difference in age between the registrable person and the victims of those offences, as at the time those offences were committed, (d) the registrable person's present age, (e) the registrable person's total criminal record, (f) any other matter the Tribunal considers appropriate. … 1. Section 15 of the Child Protection (Offenders Registration) Act, which is referred to in s 16, relevantly provides: 15 Suspension and extension of reporting obligations (1) A registrable person's reporting obligations are suspended for any period during which: … (b) the person is outside New South Wales unless the person is a person to whom Division 5 applies or the obligation is under section 11B, or … (2) The period for which a registrable person's reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (a). (3) The period for which a registrable person's reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (b) if, during the time in which the obligations are suspended, the registrable person: (a) is travelling outside Australia for one month or more or is resident outside Australia, and (b) is not required to report under any corresponding Act. … Summary dismissal application 1. The respondents applied for summary dismissal of the applicant's application, pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, on the ground that the Tribunal lacked the power to grant the relief sought by the applicant. Section 55(1)(b) provides that the Tribunal may dismiss proceedings if it considers that they are frivolous or vexatious or otherwise misconceived or lacking in substance. 2. The Appeal Panel considered the power of dismissal under s 55(1)(b) in BDK v Department of Education and Communities [2015] NSWCATAP 129 at [63]ff. It commented: "63 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 s 55(1)(b) - s 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]. 64 In the present case, the Tribunal referred to the frequently-cited explanation of this term 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. 65 It will be seen that Roden J's first category covers conduct that falls within the meaning of 'frivolous', while his third category embraces the kind of cases to which the expressions 'misconceived' and 'lacking in substance' are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action). 66 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." 1. At the hearing of the summary dismissal application, the respondents acknowledged that the applicant's reporting period was extended by operation of s 15(3) of the Child Protection (Offenders Registration) Act when he travelled overseas in 2016. They also accepted that the applicant was a person to whom s 16 of the Child Protection (Offenders Registration) Act applied, as he was a person within s 16(1)(a). However, they said that, although the Tribunal would have jurisdiction to consider an application for an order suspending the applicant's reporting obligations, the applicant was seeking an exemption from compliance with his reporting obligations. 2. The applicant provided material to the Tribunal opposing the summary dismissal application on the day of the hearing. On the second page of his submissions, he wrote: "I request to withdraw Interim orders as originally sort [sic] on the application made to NCAT on 6th Sep 2019, which is 'A plead [sic] to suspend reporting obligations of under [sic] Sec 15(3)(a)'." The applicant requested, in that document, further orders, including "[a]n order for suspension under Sec 16(4)" and "[a]n order for removal from Child Protection Register." Hearing of the summary dismissal application 1. The applicant represented himself at the summary dismissal application. 2. Ms Langford, a solicitor at the Crown Solicitor's Office, appeared for the respondents. 3. I sought clarification from the applicant as to whether he was seeking an order suspending his reporting obligations, or whether he was seeking a total exemption from them. His first response was as follows: "Yes, the purpose is basically to stop the reporting obligations. I don't know whether it's perpetual like forever or suspension for the period of time I'm out of the country." 1. During some further discussion, the applicant indicated he was seeking both an exemption and a suspension from his reporting obligations. Towards the end of the hearing, I said to him: "the only thing the Tribunal could give you, if you were successful, is an order suspending your reporting obligations." The applicant replied, "So my final order that I was seeking, is exempting from compliance under s 16." After some discussion of the practical difficulty the applicant would face in seeking to travel without a passport, the following exchange occurred: "APPLICANT: Ma'am, that's a separate issue in terms of travelling overseas with a passport or not. SENIOR MEMBER LUCY: Yes. APPLICANT: My application, why I should be on the Register at all. SENIOR MEMBER LUCY: The Tribunal can't deal with that…. So do you want to pursue your application for suspension or not? APPLICANT: I stick with the exemption, Member. SENIOR MEMBER LUCY: You only want exemption not suspension because that would mean I'm now going to dismiss the whole of your application? APPLICANT: I'll leave it to you, member." Consideration 1. The Tribunal has power, pursuant to s 16(3A) of the Child Protection (Offenders Registration) Act, to make an order suspending a registrable person's reporting obligations for the length of time by which the registrable person's reporting period was extended under section 15(3) of that Act. 2. The applicant's reporting period was extended under section 15(3) by the length of time for which those obligations were suspended whilst he was outside New South Wales (see s 15(1)(b)) because, during the time in which the obligations were suspended, the applicant was travelling outside Australia for one month or more and was not required to report under any corresponding Act. There was some debate in the hearing as to whether the period of suspension was for a period of eight days, or 38 days. I do not need to resolve that issue. 3. The Tribunal does not have power to exempt a registrable person from his or her reporting obligations altogether. Nor does the Tribunal have any power to remove a person's name from the Child Protection Register in s 19 of the Child Protection (Offenders Registration) Act. It only has the powers conferred upon it by statute. 4. The applicant confirmed, during the hearing, that he considered that the Tribunal had power to exempt him entirely from his reporting obligations, due to the heading of s 16, "NCAT may exempt persons from compliance with reporting obligations." The Appeal Panel rejected that argument in DKP v Children's Guardian [2019] NSWCATAP 185 at [43], stating that "[a] heading to a section of an Act is generally not taken to be part of the Act (see s 35(2) Interpretation Act 1987 (NSW))" and that the argument was "not supported by the text of s 16 of the Child Protection (Offenders Registration) Act 2000." 5. I was satisfied, from my discussion with the applicant at the hearing, and from my reading of his application, that the final relief he sought was an order exempting him from compliance with his reporting obligations (not an order suspending those obligations). That is not an order the Tribunal has jurisdiction to make. 6. Accordingly, I dismissed the applicant's application on the ground that it was frivolous or vexatious or otherwise misconceived or lacking in substance, within s 55(1)(b) of the Civil and Administrative Tribunal Act. Order 1. The application is dismissed because the proceedings are frivolous, vexatious or otherwise misconceived or lacking in substance. ********** 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: 25 October 2019