Brazel v Sydney Water

NCAT Appeal Panel|2022-05-06|Before: Health J

Introduction

This matter is part of a long running dispute the Appellant has with the Respondent (Sydney Water) since at least 2016. The original dispute was between the Appellant and a strata committee. A former member of the strata committee, Mr Jeff Scott, who at the time was an employee of Sydney Water, used his work email account to communicate with others about the strata dispute.
Accordingly, the emails sent by Mr Scott became information 'held' by Sydney Water and therefore subject to the Government Information (Public Access) Act 2009 (GIPA Act).
Back in 2016, the Appellant made his first access application to Sydney Water seeking access to the communications of Mr Scott relating to the strata dispute sent via his work email address. Further applications were subsequently made, and the full details of the history of the applications are set out in the following section of our reasons.
The GIPA application that is the subject of these appeal proceedings is the fourth one made by the Appellant. He sought access to the submissions or responses made by the third party objectors to Sydney Water in relation to the first three access applications.
Following Sydney Waters' response to this fourth access application, the Appellant commenced proceedings in the Tribunal pursuant to s 80(d) of the GIPA Act and s 9 of the Administrative Decisions Review Act 1997 (ADR Act).
This led to the decision under appeal which was made by the Tribunal on 13 December 2021 (the Decision).
In the Decision, the Tribunal varied the decision of Sydney Water made on 12 August 2020 by providing the signature block of the lawyer Mr Colin Grace on the basis that the Appellant has a copy of this document and is well aware of Mr Grace's signature. Otherwise, the Tribunal upheld the redactions made by Sydney Water.
The essential points raised by the Appellant on appeal are that: 1. The Tribunal erred in receiving evidence in confidence and making confidentiality orders; 2. The Tribunal erred in dispensing with the hearing of the matter and determining the access application on the papers; and 3. The Decision was otherwise wrong, principally because: 1. the information in the documents in question had been previously released or disclosed to the public; and 2. some of the information in question was the Appellant's private information and ought to be disclosed to him.

Procedural Background

The Tribunal set out the procedural background to the proceedings, the subject of the Appeal before us, at [2] to [8] as follows: 2. In 2016 Mr Brazel made an access application to Sydney Water seeking access to the communications of Mr Scott relating to the strata dispute sent via his work email address (GIPA Application 9177). Mr Brazel made a further GIPA application in July 2017, GIPA Application 9255. Third party objections were received for both access applications. However, after balancing the considerations in favour of and against release, all information within the scope of both access requests was released to Mr Brazel. 3. On 5 March 2019 Mr Brazel made a third application to Sydney Water, GIPA Application 9412, in which he sought access to certain policies and to objections from third parties who were consulted by Sydney Water in response to his GIPA Application 9177. Before making its decision, Sydney Water sought the views of the third parties. The policies were released but Mr Brazel was refused access to the third party submissions, which were contained in six emails, on the basis that there was an overriding public interest against disclosure of the information. Mr Brazel sought review of this decision by the Tribunal. 4. In Brazel v Sydney Water [2020] NSWCATAD 188 Senior Member Montgomery set aside the decision under review and ordered that the information be released in a redacted form. The Tribunal concluded that the documents could be redacted to remove the names, email addresses and other personal information of the third parties and, in those circumstances, that the considerations in favour of disclosure of the remaining information outweighed the public interest considerations against its release. Mr Brazel appealed to the Appeal Panel from that decision. The appeal was dismissed and leave to appeal refused (Brazel v Sydney Water Corporation [2021] NSWCATAP 13). 5. Prior to publication of both Mr Montgomery's decision and that of the Appeal Panel, Mr Brazel made a further GIPA application, GIPA Application 9527, in which he sought access to the submissions or responses made by the third parties to Sydney Water in relation to GIPA Applications 9177, 9255 and 9412. Sydney Water made an initial decision on 5 March 2020 and Mr Brazel sought review of that decision by the Information and Privacy Commissioner (IPC). The IPC recommended that Sydney Water make a new decision in respect of GIPA Application 9527. Sydney Water made a further decision on 12 August 2020 following receipt of the IPC review report and also publication of Senior Member Montgomery's decision in relation to GIPA Application 9412 on 24 July 2020. 6. Sydney Water states that, following Senior Member Montgomery's and the Appeal Panel decisions, it has released the information sought in GIPA Application 9177 with the redaction of personal information of the third party objectors in accordance with the decision of Senior Member Montgomery. 7. In relation to the current application (GIPA Application 9527), Sydney Water has: (1) refused to deal with that part of Mr Brazel's application which related to access to the third party submissions made in response to GIPA Application 9177 on the basis that those documents were the subject of the Tribunal's decision and has been dealt with accordingly; and (2) provided access to the third party submissions made in response to GIPA Applications 9255 and 9412 in a redacted form by applying the guidance set out in Senior Member Montgomery's decision in relation to GIPA Application 9177. 8. Mr Brazel now seeks review of that decision. The decision by Sydney Water to refuse to provide access to some of the information sought by Mr Brazel in GIPA Application 9527 is a decision which is reviewable by the Tribunal: s 80(d) of the GIPA Act. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act and s 9 of the Administrative Decisions Review Act 1997 (ADR Act). The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
For convenience, we will continue to apply the defined terms as set out by the Tribunal above, and, in particular, when referring to the relevant GIPA applications made by the Appellant, we shall do so by reference to the numbers set out above.

The Decision under Appeal

The material before the Tribunal included (at [9]):

The application for review;
an open and confidential statement by Jignesh Chudasama dated 16 March 2021 with various attachments;
submissions of Sydney Water;
bundles of documents filed by the Appellant in March, April and May 2020;
submissions of the Appellant concerning the substantive application, confidentiality orders and whether the matter can be dealt with on the papers.

The Tribunal identified the central issues as being: 1. whether there is an overriding public interest in favour of disclosure of the relevant information that related to the previous GIPA applications 9255 and 9412; and 2. in relation to the relevant information sought concerning the previous GIPA application 9177, whether Sydney Water was correct to refuse to deal with that aspect of the application on the basis that it has already decided an application for the same information: see at [13] and [14].
The Tribunal set out the relevant law at [15] - [32]. We note that no issue has been taken by the Appellant with this description of the relevant law.
Sydney Water had asked the Tribunal for the matter to be determined on the papers and a hearing dispensed with. The Appellant did not agree to that and requested a hearing by telephone.
The Tribunal determined at [37] that, in essence, the matter was not particularly complex, concerned a small number of documents and that the Tribunal was satisfied that to dispense with the hearing was appropriate and that the Appellant would not be prejudiced by this approach.
Nextly, the Tribunal dealt with the issue of confidentiality. On 17 March 2021 the Tribunal made an order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting publication of the confidential material filed by Sydney Water until further order of the Tribunal. The Appellant objected to this order and to the Tribunal receiving confidential evidence in the matter.
The Tribunal dealt with this issue at [38] - [47].
The Tribunal concluded at [45] that in accordance with s 107 of the GIPA Act, it was entirely reasonable and within the terms of s 64(1)(d) of the NCAT Act to make orders preventing the disclosure of the information which had been withheld from the Appellant in respect of the GIPA application before the Tribunal.
The Tribunal then dealt with the issue of whether or not Sydney Water was correct to refuse to deal with the request for access to third party submissions made in response to GIPA application 9177: see at [48] - [56].
The Tribunal concluded that there were no reasonable grounds for believing that Sydney Water would make a different decision concerning access to third party submissions in GIPA application 1977 compared with its previous treatment of an access application for such documents: at [56].
Accordingly, Sydney Water was found to have been acting correctly in deciding to refuse to deal with that part of the access application pursuant to s 60 of the GIPA Act.
The Tribunal then considered Sydney Water's evidence and submissions (at [57] - [63]) and the Appellant's evidence and submissions: at [64] - [70]. The Tribunal noted that, relevantly, in respect of the remaining documents sought by the Appellant, the Appellant had been provided with the bulk of the relevant information: see [71].
At issue, accordingly, were a small number of redactions involving personal information of third party objectors. The Tribunal accepted (at [72]) that a disclosure of the information sought could reasonably be expected to promote open discussion of public affairs and enhance Government accountability which is a consideration in favour of disclosure.
The Tribunal then considered whether or not disclosure of the information would prejudice the supply of confidential information.
The Tribunal concluded, based on the information and evidence before it, that the withheld information was obtained in confidence: at [81]. It then concluded that disclosure of the information sought would prejudice the supply of information to Sydney Water in the future and would have a deleterious impact upon the ability of Sydney Water to perform its functions effectively in assessing and determining applications for access to information under the GIPA Act: at [84].
The Tribunal was therefore satisfied that this amounted to a consideration against the disclosure of the third party objectors' submissions and that this should be given significant weight: at [85] and [88].
The Tribunal concluded in accordance with clause 1(g) of the s 14 table to the GIPA Act that the information in question was provided to Sydney Water in confidence: at [90]. The Tribunal also concluded, in accordance with clauses 3(a) and (b) of the s 14 table that the information in question contains the personal information of the third party objectors and others involved in the strata dispute: at [92].
The Tribunal considered the Appellant's submission that the personal information of the third party objectors had previously been disclosed and should therefore be released at [77] - [79]. This was on the basis that the Appellant believed he knew the identity of the third party objectors in any case.
The Tribunal accepted that whilst the Appellant may have some 'inkling' of the identity of the objectors, this does not mean that the personal information of those third party objectors had previously been disclosed and therefore should be released: at [95].
Overall, the Tribunal concluded that, on balance, the public interest consideration against disclosure outweighs the public interest consideration in favour of the disclosure and that the personal information of the third party objector should not be released: at [96].
Finally, the Tribunal was satisfied that the redactions actually made to the documents were properly done with the exception of the signature block of the lawyer, Mr Colin Grace: at [99]. This was because the Tribunal accepted that the Appellant had a copy of this document in full, including the signature block and is well aware of Mr Grace's signature.

Scope and nature of appeals

An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
The Appeal Panel has a discretion whether to grant leave under s 80(2) of the NCAT Act.
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.

Application to extend time to appeal

It was accepted by the parties that the due date for lodging the Notice of Appeal was 10 January 2022. Based upon the date shown on the stamp on the Notice of Appeal by the Tribunal at Paramatta, Sydney Water submitted the Notice of Appeal was lodged on 13 January 2022, three days late.
Originally this was not disputed by the Appellant. At the hearing, however, the Appellant submitted that he actually lodged the Notice of Appeal on 10 January and that he had a Notice of Appeal with a stamp on it which showed this. The Appeal was conducted by way of a telephone hearing. Accordingly, we did not receive the document the Appellant was referring to and for the reasons which follow, we did not need to do so as we have decided we need not resolve the question as to when the Appeal was first lodged.
Pursuant to Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014, a Notice of Appeal must be lodged within 28 days after receipt of the decision. We may, though, extend the time for filing the Notice of Appeal pursuant to s 41 of the NCAT Act.
The discretionary power to grant an extension of time under s 41 of the NCAT Act is unfettered but it must be exercised judicially and having regard, among other things, to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
In Kelly v Szatow [2020] NSWSC 407 at [28]-[32], the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay, any associated reasons for such, the strength of the applicant's case and consideration of whether the defendant would be prejudiced by a granting of the application: see also Jackson v Land and Housing Corporation (NSW) [2014] NSWCATAP 22 at [22].
The delay here is three days. The Appellant submitted that over the Christmas New Year period he had difficulties obtaining advice and was otherwise ignorant of the time for filing the Notice of Appeal. Sydney Water accepted that it had no specific prejudice, beyond the general prejudice suffered by all respondents when the time to lodge an appeal is extended.
Sydney Water accepted, quite correctly in our view, that the question of whether we should extend time turns upon the issue of the strength of the Appellant's case. Accordingly, if we found the Appeal had merits, time to Appeal should be extended. If we came to the view that the Appeal had no merits, there will be no utility in extending the time to appeal.
For the reasons which follow, we have decided that the Appeal has no merits and should be dismissed. Accordingly, to the extent that there may be any issue with the date of lodging the Appeal, there would be no utility in extending the time to appeal.

The Notice of Appeal

The Appellant prepared his Notice of Appeal without legal representation. He also represented himself before us at the hearing.
The Appellant candidly stated that as a non-lawyer, he had difficulty understanding the principles relevant to identifying an error of law as opposed to other errors that may be committed by a Tribunal at first instance.
Further, we note that the grounds of appeal travel over some 17 pages covering apparently 26 grounds of appeal under three specific headings. Many of these grounds overlap or are repetitive. In our treatment of the Notice of Appeal below, we have dealt with the Notice under those three specific headings and where relevant refer to the specific grounds by the numbers used by the Appellant.
We note the well-known principles concerning the assistance a court, or tribunal, is required to give a self-represented litigant. For example, the Court of Appeal in Pollock v Hicks [2015] NSWCA 122 stated at [91]: ... In Bauskis v Liew [2013] NSWCA 297 at [67]- [70] (Gleeson JA; Beazley P and Barrett JA agreeing), the following propositions which emerge from those authorities were identified. First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154. Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]- [53]. Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14.
In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel stated it may be difficult for a self-represented appellant to clearly express their grounds of appeal. We note, this will be particularly so in trying to express what amounts to a question of law.
In such circumstances it is appropriate for the Appeal Panel to review the Appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either arise as a question of law or as a basis of leave to appeal.
We have done that and have generally attempted to take a beneficial approach to the written and oral submissions made by the Appellant in these proceedings.
With this approach in mind, we have generally sought to group together the main contentions made by the Appellant and have attempted to discern whether or not there is a question of law and, if not, whether or not there is a basis for leave to appeal.
Sydney Water was represented by Mr Bateman of Counsel.
In the broad, we accept the thrust of the submissions that have been made by Sydney Water in coming to the view that the Appeal should be dismissed. Accordingly, in order to avoid needless repetition, we have not set out separately a summary of all of the submissions made by Sydney Water to us.
The Appellant put before us the evidence and the submissions put to the Tribunal below. Sydney Water provided the Appeal Panel with an open bundle containing its reply to appeal, submissions, the open evidence of Jignesh Chudasama, being the evidence relied upon by Sydney Water in the Tribunal below and, finally, the confidential statement of Mr Chudasama and the annexures to that statement which was also before the Tribunal below.

Dispensing with the hearing pursuant to s 50(2) of the NCAT Act

The Appellant essentially contended that he was denied procedural fairness and was prejudiced as a result of the Tribunal's Decision to dispense with a hearing and to deal with the matter on the papers. He contended that he was prejudiced in there being no hearing including by not having the opportunity to cross examine Sydney Water's witness even on his open statement.
We accept that a failure to afford procedural fairness amounts to an error of law.
However, in the circumstances, the Appellant needs to demonstrate that the Tribunal erred in the discretion that it had to dispense with the hearing pursuant to s 50 of the NCAT Act.
Relevantly, s 50 of the NCAT Act provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except-- … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first-- (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
On Appeal, overturning a court or tribunal's exercise of a statutory discretion can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499 at 505 - 506.
In Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 the Court of Appeal summarised the House v The King circumstances at [14] (Tobias AJA) and held that an attack on a discretionary decision must fail: "…unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning."
The relevant conclusion of the Tribunal is set out at [37]: 37 The written material provided by both parties is comprehensive and, contrary to many of Mr Brazel's statements, the issues have been previously canvassed by both the Tribunal and the Appeal Panel. The matter is not particularly complex and concerns a small number of documents. In the circumstances, I am satisfied that it is appropriate to make an order under s 50 of the NCAT Act dispensing with a hearing as I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions. I do not consider that Mr Brazel would be prejudiced by this approach.
In considering matters of practice and procedure, such as whether or not to dispense with a hearing, the courts and tribunals in NSW have become familiar with applying what is referred to as the 'guiding principle'. This is set out, in the case of the Tribunal, in s 36 of the NCAT Act. It provides, the Tribunal should wherever possible promote the 'just, quick and cheap' resolution of the dispute. There can be no doubt that dispensing with the hearing will promote a quick and cheap resolution of the dispute. The issue is whether or not such a course could be regarded as 'just'.
In our view, this will substantially turn upon whether or not the Appellant can demonstrate that he was relevantly prejudiced by the order dispensing with a hearing.
We note that at [37], the Tribunal specifically considered that matter and concluded that the Appellant would not be prejudiced by that approach.
In our view, it has not been demonstrated that there was any error in the approach of the Tribunal in coming to this conclusion. The Tribunal noted that the issues in this case were not complex and involved a small number of documents.
As we understand it, one of the complaints made by the Appellant was that dispensing with the hearing deprived him of an ability to cross-examine Sydney Water's witness.
In our view, the key factual issues and relevant findings of the Tribunal turn substantially on the objective circumstances of the case which arose from the documents tendered. For example, whether or not documents were provided 'in confidence' is not established by a mere statement to that effect by an officer for a party. Such statements will carry little or no weight in respect of this question.
The Appellant in his submissions failed to specify what cross-examination he would have conducted of Sydney Water's sole witness and how this could have assisted his case. Accordingly, the Appellant has failed to demonstrate how the inability to cross-examine Sydney Water's witness has prejudiced him. The Appellant suggested he also wished to call witnesses of his own. Again, he failed to indicate what witnesses he wished to call or how they would be relevant. Hence, we are not satisfied that this caused him any prejudice.
The Appellant also submitted that as a party acting for himself and without legal qualification, he was reliant upon the Tribunal to explain aspects of the procedure to him. As explained at [47] above, the Tribunal may have an obligation towards a self-represented litigant to explain the practice and procedure of the Tribunal, so as to allow that party to understand what is required of her or him.
However, in the instant case, the relevant practice and procedure of the Tribunal was perfectly clear, and the Appellant has not submitted that he did not understand what was required from him in terms of the practice and procedure of the Tribunal. The parties were to submit their evidence and submissions and to deal with the opposing party's evidence and submissions.
In respect of submissions, we note, it was not in dispute, as the Tribunal noted, that the parties' written materials were comprehensive. Determining the matter based upon the comprehensive written material of the parties including the Appellant's comprehensive materials without an oral hearing has not been demonstrated by the Appellant to have prejudiced him.
The Appellant made general submissions that as a self-represented party, he 'required a real-time hearing' persuasively to present his concepts, answer questions of the Tribunal and have the Tribunal explain to him the complex issues involved, including the issues raised by the Tribunal in its Decision, such as the interaction of personal information and confidentiality.
In our view, these bald propositions do not demonstrate how the Appellant has been prejudiced by the hearing being dispensed with. A 'just' determination of his application did not require the Tribunal to permit the Appellant to present his case orally in light of the fact that the Tribunal had received comprehensive submissions from the Appellant, and which reasonably appeared to the Tribunal to express the Appellant's case.
We also note that it is not the duty of the Tribunal to advise an unrepresented party as to how his or her rights should be exercised, to give judicial advice to or conduct the case on behalf of the unrepresented litigant: see Pollock v Hicks at [91].
In conclusion in our view, the Appellant has not demonstrated that the Tribunal: 1. made an error of legal principle, 2. made a material error of fact, 3. took into account some irrelevant matter, 4. failed to take into account, give insufficient weight, to some relevant matter, or 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Ground 3 appears to contend that the Tribunal was unable to source relevant case law relating to 'real issues'. We do not agree with this contention and the decision to dispense with a hearing has not been shown to be contrary to any relevant case law.
Finally, we note, grounds 1, 2, 4 and 5 under this heading are similar to ground 8 under the heading 'Wrong Decision', which we deal with below.
Accordingly, we reject the grounds of appeal under the above heading.

Confidentiality orders

The Appellant challenges the decision of the Tribunal to make confidentiality orders and receive in confidence some evidence from Sydney Water.
Section 107 of the GIPA Act provides, relevantly, as follows: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in reasons for the decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
The Tribunal gave effect to this obligation by making an order under s 64 of the NCAT Act.
Section 64 of the NCAT Act provides, relevantly, as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
Section 64(1)(d) of the NCAT Act is an express exception to s 38(2) of the NCAT Act which provides that the Tribunal is bound by the principles of procedural fairness.
Before making an order under s 64(1)(d) of the NCAT Act, the Tribunal must be satisfied that it is "desirable" to do so by reason of the confidential nature of the evidence or the document or for any other reason.
The word "desirable" has been interpreted with regard to the most basic common law precept of open justice (see State of New South Wales (Justice Health) v Dezfouli (2008) NSWADTAP 69 at [61], which referred to s 75(2) of the then Administrative Decisions Review Act 1997 (NSW), the precursor to s 64 of the NCAT Act).
In Bellamy v Bellamy (2018) NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d) of the NCAT Act: Section 64(1)(d) is a provision which applies generally to the proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.
In our view, it was open to the Tribunal, and was not an error of law, to find that it was desirable for the Tribunal to make an order under s 64(1)(d) of the NCAT Act in respect of the Sydney Water's confidential evidence because, absent such an order, the disclosure of the evidence would disclose, as found by the Tribunal, information subject to an overriding public interest against disclosure under the GIPA Act.
As we understand it, the main issue raised by the Appellant is that the information he seeks access to is not confidential (see grounds 9 and 10). The Tribunal came to a different view. We deal with this matter further below when dealing with the other grounds of appeal of the Appellant.
For the reasons which appear below, we conclude that the Tribunal did not err in concluding that the information sought was confidential. In such circumstances it was open to the Tribunal to find that it was desirable to receive certain evidence in confidence and to keep that evidence confidential from the Appellant.
It was entirely reasonable for the Tribunal to make the confidentiality orders sought by Sydney Water, firstly when receiving the confidential evidence, and then when making further and final orders that the confidential material may not be disclosed in light of its conclusions: see at [45] - [46].
At grounds 1, 2 and 3, the Appellant, as we understand it, submits that there is no record of the confidentiality order being made and no reasons provided in support of the order. Also, the Appellant contented that no adequate reasons were provided for the making of the confidentiality order. We reject these grounds.
First, it is clear that there is a record of a confidentiality order being made, being order 4. Further, reasons were provided and such reasons were appropriate and commensurate with the complexity of the matter (see at [38] - [47]) and accorded with the requirement for reasons set out at s 62(3) of the NCAT Act and the general judicial duty to provide reasons: see NSW Land and Housing Corporation v Orr [2019] NSWCA 321 at [64]-[77]; Liang v University of Technology, Sydney [2018] NSWCATAP 285, referring to Beale v Government Insurance Office of NSW (1997) 148 NSWLR 430 at [443] and affirmed in EMF v Cessnock City Council [2021] NSWCATAP 234 at [31]-[32].
Grounds 4 and 11 appear to contend that there was no lawful basis for the making of the confidentiality orders in the proceedings or that the circumstances required by law for the making of such orders were not present. We reject this contention and refer to s 107 of the GIPA Act and s 64 of the NCAT Act.
Grounds 6, 7 and 8 do not, in our view, raise proper grounds of appeal. In such grounds, serious allegations are made against Sydney Water regarding the adducing of 'not real' evidence (ground 6), the making of false and misleading statements and fraud (ground 7), and the adducing of 'speculative' evidence (ground 8).
The Appellant failed to provide any material or even submissions to justify or support these serious contentions and we reject them.
In ground 12 the Appellant appears to contend that the Tribunal erred in applying the law relating to personal information. The Tribunal at [47] of the Decision referred to the definition of 'personal information' under the GIPA Act. In our view, the Tribunal correctly identified that the names and other identifying information of persons other than the Appellant was personal information relating to those persons: see Decision at [92]. Accordingly, we reject this ground of appeal.
Otherwise, the balance of the grounds under this heading are either incomprehensible or repetitive of the grounds dealt with above.
Accordingly, we reject the grounds of appeal under this heading.

Wrong Decision

As stated above, one of the main contentions put by the Appellant was that the Tribunal erred in finding that the information was confidential contrary to the Appellant's submission that the information had been previously revealed and hence should have been disclosed.
Pursuant to cl 1 of Schedule 4 to the GIPA Act to 'reveal' information means to 'disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'. The Appellant's arguments that the information in question has already been 'revealed' were essentially the same as that put before the Tribunal and summarised by it at [67] - [69] as follows: 67 Mr Brazel further submits that the names have previously been disclosed to him. In support of this contention he refers to a decision of Sydney Water made on 16 September 2016 in GIPA Application 9177 which mentioned the names of two people, one of whom was Mr Scott and the other, Colin Grace, who was the lawyer acting for the owners corporation in the dispute. Mr Brazel also refers to a number of other documents attached to his May submissions which he states disclose the names of the third party objectors. 68 Mr Brazel submits that Sydney Water has provided no evidence that the communications between Sydney Water and the objectors were provided in confidence or subject to any sort of confidentiality. He repeats that the information has previously been disclosed in strata meetings, in other correspondence, in other NCAT proceedings and in matters taken to NSW Fair Trading. 69 Mr Brazel refers to a document in his March submissions, two versions of which he titles AA and AB, and states that information in this document was previously disclosed.
The Tribunal dealt with this contention at [77] - [81] and [95]: 77 Mr Brazel argues that the information, which in essence is personal information about the objectors, was not supplied in confidence. He appears to base this upon the fact that he believes he knows the identity of the objectors. This would appear to be for two reasons. The first is that the terms of his substantive access request were for correspondence between Mr Scott and Grace Lawyers, the lawyers acting for the owners corporation. The second is that he assumes that the people involved are the same people he has dealt with over the years in relation to his dispute with the owners corporation. As noted above, he refers to some documents which he states disclose the names of the third party objectors. These documents, however, are generally not the third party submissions themselves but communications relevant to the substantive dispute between Mr Brazel and the owners corporation. 78 I accept that Mr Brazel may have some inkling of the identity of the objectors through other events and correspondence over the course of his dealings and dispute with the strata committee. That does not mean, however, that the responses of the objectors were not provided in confidence to Sydney Water. 79 Mr Brazel also refers to the review report of the IPC dated 8 July 2020 in relation to this application. I note that at this time all of the information contained in the third party objections had been withheld. In that report, the IPC was not satisfied that Sydney Water had adequately established that the submissions were made in confidence. This statement was based on the general evidence provided to the IPC by Sydney Water. The IPC stated that Sydney Water should provide further evidence to establish confidentiality in relation to the information at issue. 80 The Tribunal is not bound, as indeed an agency is not bound, by any review by the IPC. Any review by the IPC can only be based on the evidence before it at the time it conducted the review. Such a review is not evidence that the information in question was not provided in confidence: see Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] AATA 1144 at [72]. As noted above the Tribunal's role is to make a new decision based on the evidence before it. 81 Based on the information before me as set out above, I am satisfied that the withheld information was obtained in confidence. … 95 Mr Brazel, as noted above, states that the personal information of the third party objectors has previously been disclosed and should therefore be released. For the reasons set out above I do not agree. I also note that the Appeal Panel in its decision addressed the same submission at [74] and concluded that the Tribunal had not erred in its identification of personal information.
In our view, no question of law is identified in this ground. Accordingly, leave to appeal is required. In our view, it was reasonably open to the Tribunal to conclude that the information in the redacted parts of the documents had not been previously revealed or publicly disclosed.
The Appellant refers to documents and other written material by which he contends that the names of the persons in question have been revealed. Those documents, at best, reveal the persons that are in dispute with the Appellant in relation to the strata matter. The Appellant assumes that these persons are the same as the third party objectors. The documents he relies upon do not demonstrate that the names of the third party objectors has been previously 'revealed' or publicly disclosed.
In summary, in our view, the conclusion of the Tribunal in this regard has not been demonstrated to have been unreasonably arrived at or to be clearly mistaken or that the Tribunal has gone about its fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed: see Colins v Urban at [84].
Accordingly, we refuse to grant leave to appeal on this ground and otherwise reject this ground.
The other main contention put forward by the Appellant was that the Decision was wrong because the alleged confidential material was the Appellant's personal information which should have been disclosed.
'Personal information' is defined in cl 4(1) of Schedule 4 to the GIPA Act to be 'information or an opinion (including information or an opinion forming part of a data base and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion'.
As we understand it, the Appellant submits that, as he is the subject of the submissions and information and opinions which are contained in the documents, the opinions constitute his personal information and are therefore not confidential and should be revealed. In our view, the submission is quite misconceived.
We note that the redactions in question are quite limited. They are limited to the names of the third party objectors and information that may identify those persons along with the names or identifying information in respect of some other persons. The mere fact that the submission relates to the Appellant, and may constitute personal information in respect of the Appellant, does not gainsay the proposition that the information in question constitutes personal information of these other persons as provided for under the GIPA Act.
Further, the Appellant relied upon Donnellan v Ku ring gai Council [2013] NSWADT 115 to support his contention that the names of the objectors do not constitute personal information.
In this regard, we repeat what was stated by the Appeal Panel in Brazel v Sydney Water Corporation [2021] NSWCATAP 13 at [74] as follows: In that case [Donnellan v Ku ring gai Council] an access applicant knew the names of objectors to a development application. The access applicant sought access to the substance of emails between the objectors and a local council. The Tribunal do not need to deal with the question of whether the name of each objector was the objector's personal information, because that information was not in dispute. The case does not stand for proposition that the names of objectors are not 'personal information'.
For these reasons, the Tribunal did not err in finding that the names and identifying information of persons contained in the third party objector submissions constitute personal information under the GIPA Act.
Accordingly, we dismiss this ground of appeal.
By ground 1 under this heading the Appellant appears to contend that the Tribunal misapplied the public interest considerations under the GIPA Act. The Decision reveals a careful and correct application of such considerations under the GIPA Act. We reject this ground of appeal
By ground 2, 3, and 4 the Appellant appears to dispute the finding that the information was obtained in confidence. This contention was based upon the same matters as pervious grounds to the effect that the confidential information in question had previously been 'revealed'.
As we understand it, the Appellant does not cavil with the Tribunal's finding that the information was obtained in confidence and that a third party who may respond to a request for information in the future may be reluctant to provide that information if the third party were aware their response and identity might be released to the public so as to prejudice the supply of information to Sydney Water in the future.
Further, the Appellant was noted by the Tribunal to have not disputed those matters during the hearing before the Tribunal: at [78] and [80].
For the reasons already given, we reject these grounds of appeal.
By ground 5, the Appellant contended the Tribunal gave excessive weight to Sydney Water's evidence. Leave to appeal is required for this ground. No further submissions were put in support and such contention is not evident on the face of the Decision. Accordingly, we reject this ground of appeal.
By ground 6, the Appellant appears to contend that the Tribunal erred in its understanding of the operation of the GIPA Act. For the reasons already given, it is clear that the Tribunal did not misunderstand the operation of the GIPA Act. Accordingly, we reject this ground of appeal.
By ground 7, the contention appears to be that the Tribunal determined confidentiality based upon 'the disclosure of documents, not the disclosure of information within the documents'.
The Tribunal made no such determination and for the reasons given above there was no error in the Tribunal's conclusion that the information in the documents were confidential.
By ground 8, the Appellant contends that his evidence and submissions were disregarded or not given due weight. Leave to appeal is required in respect of this ground.
No further submissions were put in support. In our view, there is nothing before us to support the contention that the Appellant's evidence or submissions were disregarded or not given due weight.
Accordingly, we reject this ground of appeal.
We note, ground 9 is repetitive of ground 12 under the heading 'Setting aside the confidentiality order' which we have already dealt with and rejected.
Accordingly, we reject these grounds appeal under this heading.

Disposition

For the reasons given above, we decline to grant leave to appeal and dismiss the appeal.

Costs

As requested by Sydney Water, in the event that we reject the appeal, we will provide for a timetable for the receipt of written submissions as to costs.

Orders

The orders of the Tribunal are as follows: 1. To the extent that an extension of time to lodge the Notice of Appeal is required, leave to extend such time is refused. 2. Leave to Appeal is refused. 3. The Appeal is dismissed. 4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the material filed with the Appeal Panel on a confidential basis is restricted to the Respondent or the Respondent's legal representatives and the Appeal Panel. 5. The Appeal Panel directs: 1. The Respondent is to file and serve a cost application, including submissions and any evidence in support, within seven days of the date of these orders. 2. The Appellant is to file and serve any evidence and submissions in response within 14 days from the date of these orders. 3. The Respondent is to file any submissions in reply within 21 days from the date of these orders. 4. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with the hearing of the cost application. 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: 30 May 2022

Solicitors: S Barns, Sydney Water (Respondent) File Number(s): 2022/00007762 Publication restriction: Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the material filed with the Appeal Panel on a confidential basis is restricted to the Respondent or the Respondent's legal representatives and the Appeal Panel. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 370 Date of Decision: 13 December 2021 Before: K Ransome, Senior Member File Number(s): 2020/00290033

(1997) 148 NSWLR 430

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