YN v Director-General, Department of Housing [2006] NSWADT 79 (1 March 2006)

Last Updated: 5 October 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: YN v Director-General, Department of Housing [2006] NSWADT 79


PARTIES: APPLICANT
YN
RESPONDENT
Director-General, Department of Housing



FILE NUMBERS: 053207

HEARING DATES: 1/03/2006

SUBMISSIONS CLOSED: 01/03/2006



DECISION DATE: 20/03/2006
EX TEMPORE DATE: 01/03/2006

BEFORE: O'Connor K - DCJ (President)





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED:

APPLICATION: Dismissal of application - frivolous vexatious misconceived or lacking in substance

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
No appearance

RESPONDENT REPRESENTATIVE: RESPONDENT
M Hay of counsel instructed by J Eccleston, Department of Housing

ORDERS: 1. Application dismissed
2. Applicant to pay the respondent's costs of the proceedings


Reasons for Decision:

REASONS FOR DECISION

[The applicant failed to appear after informing the Registry in writing that he would not be appearing. The respondent applied for dismissal of the proceedings. The Tribunal delivered oral reasons.]

1 The Administrative Decisions Tribunal Act 1997 (the Act) empowers the Tribunal to dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance: see s 73(5)(h) of the Act. More generally the Tribunal has power to determine its own procedure under s 73(1). There is no express reference to non-prosecution of a matter as a ground for dismissal but it is fundamental to the sensible operation of the justice system that a court or tribunal have such a power. I have got no doubt it would be necessarily implied from the scheme of the legislation that such a power is available to the Tribunal.

2 In any case, the non-prosecution of a matter may itself justify the conclusion that the proceedings are frivolous or vexatious, so it seems to me an application of the present kind can be dealt with if one so chooses by reference to the express terms of s 73(5)(h).

3 These proceedings have for some time been narrowed down to an issue which is generally described in the decisions of the Tribunal as the sufficiency of search issue. As you may or may not know there is now a question in another matter raised by, I think, the Department of Treasury regarding whether the Tribunal in fact has any such jurisdiction. It has been accepted for some time that the Tribunal does have such a jurisdiction based on a ruling made in the early days of the Tribunal, but now it is being challenged. I just mention that in passing. It is not strictly relevant to the application today.

4 The history of the matter as recounted by Mr Hay (for the respondent) is in my opinion substantially accurate. This applicant has repeatedly indicated an intention not to appear and on some occasions made formal requests for adjournment which have been granted. In my view, the applicant has not manifested any serious intention to dispose in a timely way with the proceedings. It is clear that this legislation requires the Tribunal, so far as it is practical to do so, to proceed in as a timely manner as possible.

5 It does have some obligations to take account of the situation of a party of a kind that often appears here, an unrepresented party. There are provisions in the legislation that deal with giving explanations to parties and explaining to them the nature, the legal implications that might arise from assertions made in proceedings. Section 73(4) is relevant to the environment that often prevails here of represented respondents making submissions in reply to unrepresented applicants.

6 It is apparent, to me at least, that this particular applicant is not an unsophisticated applicant in the way that we sometimes see – of a person unrepresented, caught up in the legal system, possibly for the only time in their life, trying to navigate their way through the system. This applicant has, when he did appear at planning meetings, made quite detailed submissions. Though he is from a non-English speaking background, he has regularly submitted quite detailed written material containing a high standard of English expression and written with some fluency. So it seems to me that this is an applicant who, more so than possibly some others that we see, is quite conscious of the implications of his own conduct for the situation of the respondent.

7 The proceedings are in my view ones that have not been appropriately prosecuted. If a party does not appear to advance their case in the ordinary court system they can expect to have the matter struck out. I do not see why in the present circumstances any different stance should be taken by the Tribunal. I am satisfied that the applicant has failed to prosecute the matter. He has deliberately chosen not to appear here today. The recent correspondence with the Registry indicates that. He therefore must suffer the consequences of that conduct, which is that his application be struck out and dismissed.

8 I would also for the reasons that Mr Hay has given and to some extent I have given, also regard the proceedings as frivolous in the sense that the proceedings are being conducted in a frivolous way. It may or may not be the case that there is some substantive point at the heart of the application. I do not comment on that. The term vexatious has a degree of special meaning in the law but in my view without reciting the case law around the subject, which I think we have dealt with in one or two earlier decisions, I would also see the proceedings as vexatious.

9 Going onto the costs application, it seems to me that in light of those conclusions as to the conduct of the matter and the conclusions that the matter has not been prosecuted reasonably and the particular conclusion that the proceedings are frivolous, those are all circumstances which must bear on the application of the discretion in s 88 in relation to costs. It is the usual practice in the Tribunal for there not to be costs awards; and that is particularly true in the General Division. We very rarely see respondent agencies make costs applications, which to some extent reflects well on their cooperative relationship with the merits review jurisdiction of the Tribunal.

10 But it seams to me that this is clearly a case, for the reasons given by Mr Hay and the for the reasons I have given in relation to the way in which the matter has been conducted, that there should be a costs order. On some occasions in making an order I have tried to limit the impact of the order by confining it by way of an amount or by reference to particular circumstances. But here it seems to me that the order should be simply a general order.

Order

1. Application dismissed.
2. Applicant to pay respondent’s costs of the proceedings.