Kowcun v Monaghan

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Kelly J
• Judgment Date: 13 September 2013
• Neutral Citation: [2013] NTSC 57
• Docket Number: FILE NO: LA 2 of 2013 (21304387)
• Date: 13 September 2013

[2013] NTSC 57

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWI

Judgment of:

Kelly J

FILE NO: LA 2 of 2013 (21304387)

Between:

Veronica Kowcun

Appellant

and

Brenda Monaghan, Information Commissioner

First Respondent

and

Anti-Discrimination Commissioner

Second Respondent

REPRESENTATION:

Counsel:

Appellant: Self Represented

Respondent: C Smyth

Northern Territory v Anti-Discrimination Commissioner of the Northern Territory and Smyth [2013] NTSC 5 , distinguished

O'Sullivan v Family Court of Australia (1990) 141 FLR 204 , referred to

Anti-Discrimination Act (NT) s 106

Information Act (NT) s 4, s 5(5)(b), s 129, s 154

ADMINISTRATIVE LAW — STATUTORY INTERPRETATION — APPEAL — Section 129 Information Act— Whether appeal incompetent for lack of jurisdiction — Whether s 129 limits appeal to decisions that finally determine a matter following a hearing — Held that s 129 not to be narrowly construed — Held that appeal competent

ADMINISTRATIVE LAW — STATUTORY INTERPRETATION — Appeal from decision of Information Commissioner — Whether Information Act applies to the Anti-Discrimination Commission — Whether Anti-Discrimination Commission's conciliation function a ‘decision making function’— Held that conciliation within definition of ‘decision making function’— Information Act does not apply.

REASONS FOR JUDGMENT

(Delivered 13 September 2013)

Background

1 In 2007 and 2010 Ms Veronica Kowcun lodged complaints with the Anti-Discrimination Commission (ADC) about her treatment by SkyCity Casino Darwin. The complaints were the subject of conciliation and were eventually settled.

2 Casino management later issued Ms Kowcun with a “barring notice” pursuant to the Gaming Control Act 1993 excluding her from the Casino for life.

3 Because of this, Ms Kowcun became dissatisfied with the agreement pursuant to which she settled her complaint against the Casino, and she blames the ADC for what she now considers to be the unsatisfactory nature of that settlement; she has alleged that the ADC was negligent in the way it dealt with her complaint and that the ADC conciliator did not act in her best interest in the negotiation process.

4 Ms Kowcun submitted a total of five applications to the ADC for information and three applications for internal review regarding this matter. Initially the ADC accepted FOI requests made by Ms Kowcun under the Information Act and, after some misunderstanding resulting from a wrong date provided by Ms Kowcun, she was given a copy of the settlement agreement between herself and SkyCity Casino.

5 After receiving a copy of this agreement, on 13 February 2012 Ms Kowcun lodged a further application to access information held by the ADC. This application requested the “time and dates and a copy of all three minutes of the meetings — conference conciliation between SkyCity Darwin and Veronica Kowcun.” It was accompanied by a letter to the ADC in which Ms Kowcun alleged that the ADC conciliator had conspired to “con” her into signing the settlement agreement and further alleging that the conciliator was racist and negligent in the performance of her duties by not demanding SkyCity Darwin remove a clause in the agreement which stated that they had the ability to issue a “barring notice” under the Gaming Control Act 1993.

6 At this point the ADC reviewed its position and formed the view that Ms Kowcun's application was not one to which the Information Act applied by reason of s 5(5)(b) of that Act. On 17 February 2012 the ADC wrote to Ms Kowcun, denying her latest application on the ground that s 5(5)(b) provides that the Act does not apply to a tribunal in relation to its decision making functions.

7 Ms Kowcun wrote a number of letters repeating her request (or making requests for similar information) and attempting to explain how she believed she had been wronged by the conciliation process. These further requests were not acted upon by the ADC.

8 On 19 March 2012 she submitted an application for internal review of all her previous applications for information on the ground that, ‘I haven't received the information I requested.’ This too was not acted upon by the ADC.

Complaint to the Information Commissioner

9 On 19 March 2012, Ms Kowcun lodged a complaint with the Information Commissioner regarding her applications to the ADC for information and internal reviews. The complaint to the Information Commissioner was formally accepted on 23 May 2012 and the ADC provided the Information Commissioner with copies of the relevant applications and correspondence, together with handwritten notes made during the conciliation process by the conciliator.

10 In an effort to settle the matter, an officer of the ADC met with Ms Kowcun and her solicitor and actually showed her the notes from the conciliation conference (which were the only documents in existence relating to the conciliation, other than the agreement reached as a result of the conciliation process). This attempt was not successful and Ms Kowcun continued to write letters to the ADC and others re-iterating her claims that she had been unfairly treated.

11 The Information Commissioner therefore requested submissions from the parties. Submissions were received from the ADC detailing its reasons for refusing to release the notes to Ms Kowcun. The ADC submitted that it is a tribunal under s 5(5)(b) of the Information Act and the Act does not apply in relation to its decision making functions, and that the conciliation process formed part of those decision making functions. 1

12 The question of whether the Act applied to the request was considered by the Information Commissioner as a preliminary issue and on 2 January 2013, the Information Commissioner dismissed the complaint on the ground that the Information Act did not apply to the request. In her reasons for that decision, the Information Commissioner held:

Hence, the Information Act did not apply to Ms Kowcun's application for access to notes made by the conciliator during the conciliation.

• (a) that the ADC was a tribunal within the meaning of s 4 of the Information Act, being a body with judicial or quasi-judicial functions; and

• (b) that its decision making functions included the whole complaints resolution procedure under the Anti-Discrimination Act including the conciliation process.

13 Ms Kowcun has appealed to this Court against the decision of the Information Commissioner. The notice of appeal (formal parts omitted) states:

NOTICE OF APPEAL

The proceeding appealed was not heard in the Anti-Discrimination Office or the Information Commissioner's Office in Darwin and was not given the rights to appeal this complaint.

The appellant appeals from the decision of 2 ^nd January 2013.

GROUNDS:

Complaint to the Information Commissioner under Part 7 of the Information Act.

ORDER SOUGHT:

To have a hearing into this complaint with the Northern Territory Anti-Discrimination Commission and Information Commission Office.

14 As this notice of appeal did not articulate a ground of appeal, Ms Kowcun was given leave to file an amended notice of appeal. The amended notice of appeal was in precisely the same terms as the original and had attached to it a hand written letter from Ms Kowcun headed ‘TO WHOM IT MAY CONCERN’ which repeated complaints against the ADC conciliator. The letter attached a photocopy of a newspaper article which contained a reference to someone else obtaining documents under freedom of information legislation and set out her grievance in the following terms: 2

‘Why? Can't the Information Commission (under Freedom of the Information legislation) get the EVIDENCE from the NT Anti-Discrimination Commission to verify that … (NTADC-conciliator) of this Settlement Agreement on the 05/03/2010 had did wrong by me in her Racist Act — not giving me my RIGHTS to disagree in what was stated about this clause 5 & 9 of this Settlement Agreement and to have a Hearing at the NTADC office about it.

Yes, Mr F… got the emails from the NT Education Dept so, why can't I get the copies of what was stated in …. (NTADC-Conciliator) of this Settlement Agreement that would verify that she is a liar what she had stated in it.’

15 From this I took it that Ms Kowcun wanted the Information Commissioner to direct the ADC to give her copies of the conciliator's notes of the conciliation conference (which she had already seen). This was not by any means a proper notice of appeal and did nothing to remedy the defects in the

original. Nevertheless the respondent elected to proceed to a hearing of the appeal on the basis that it was an appeal against the decision of the Information Commissioner made on 2 January 2013 that she had no jurisdiction to hear Ms Kowcun's complaint by reason of s 5(5)(b) of the Information Act.

16 I agreed to hear the appeal on that basis, gave directions for the parties to file and serve written submissions and set the matter down for hearing. Ms Kowcun did not file submissions directed at the issue on the appeal — namely whether the Information Commissioner had erred in law in holding she had no jurisdiction. Instead she filed a number of letters. The first was headed ‘TO WHOM IT MAY CONCERN’ and the second was addressed to my associate. Both letters simply re-iterated the reasons why she believed she had been badly treated by SkyCity Casino and the ADC conciliator, and also stated that she had received an explanation from the former Chief Minister, Mr Terry...