Brazel v Sydney Water Corporation

AWB v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Brazel v Sydney Water (No 2) [2021] NSWCATAD 370

Brazel v Sydney Water [2020] NSWCATAD 188

Brazel v Sydney Water [2022] NSWCATAP 180

Brazel v Sydney Water Corporation [2021] NSWCATAP 13

Brazel v Sydney Water Corporation [2025] NSWCATAD 15

Cavaleri v Director General, Department of Trade and Investment, Regional Infrastructure and Services [2014] NSWCATAP 13

Collection House Limited v Taylor [2004] VSC 49

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180

Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176

Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247

Donohoe v Albulario [2025] NSWCA 9

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Egri v DRG Australia Ltd (1988) 19 NSWLR 600

Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 445; [1992] HCA 20

Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378

FZK v Department of Customer Service [2024] NSWCATAP 185

Galea v Galea (1990) 19 NSWLR 263

GTK v NSW Treasury [2025] NSWCATAP 174

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87; [1998] FCA 768

Jones v Ekermawi [2009] NSWCA 388

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 532; [2010] HCA 1

Kudrynski v Orange City Council [2024] NSWCA 33

Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125; [2000] FCA 19

Loielo v Giles [2020] VSC 619

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12

McNeill v Clarence Valley Council [2025] NSWCATAP 184

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220

Polsen v Harrison [2021] NSWCA 23

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; [2004] FCAFC 122

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15

R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3

Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595; [2008] AATA 558

Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419

Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

YHY v YHZ [2024] NSWCATAP 117

Information Commissioner, Information Access Guideline 2 - Discounted Processing Charges (updated March 2023)

Unless or until further order, pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure, publication or broadcast to the Appellant or the public of the evidence and submissions lodged with, or given to, the Tribunal in confidence by the Respondent (Sydney Water Corporation) is prohibited.

[2025] NSWCATAD 15

1. This is an internal appeal against an order, made in the Administrative and Equal Opportunity Division of the Tribunal on 14 January 2025, concerning the administrative review of a decision made by Sydney Water Corporation (the agency) with respect to an application for access to information, numbered SYW-000192, made by Thomas Brazel (Mr Brazel) under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The order made by the Tribunal confirmed a decision by the agency to refuse Mr Brazel's access to certain information. The basis for that decision was that some of the information was subject to a conclusive overriding public interest against disclosure under the GIPA Act because release would contravene an order of this Tribunal and/or disclose information subject to client legal privilege; other information was not government information for the purpose of the GIPA Act; and, that it would not deal with the access request for other information under s 60(1)(b) of the GIPA Act, as access to the information had already been refused. That decision is Brazel v Sydney Water Corporation [2025] NSWCATAD 15 (the decision).
2. For the reasons which follow, we have allowed the appeal. However, the Appeal Panel, itself, considered the application, which resulted in the orders we have made. In essence, there is to be no further release of information.

1. On 22 May 2025 Mr Brazel filed a miscellaneous application in the appeal (the miscellaneous application) in which he described the orders sought as follows:

"Proof of non disclosure of government information as per GIPA sec 105 - see attachment"

1. We considered that the miscellaneous application raised issues and sought remedies intricately connected with parts of the appeal. We indicated at the commencement of the appeal hearing that we would consider it along with the appeal. We will discuss its fate below, after our discussion of the appeal.

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) states:

Any internal appeal may be made:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

1. An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62(6)], [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50].
2. Each such question must be a pure question of law (adopting what was said in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Cobar) at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71], albeit in relation to different statutory provisions). In Cobar at [109] Bathurst CJ and Bell P (as the Chief Justice then was) said, with Garling, Johnson and Lonergan JJ agreeing:

"Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."

1. When an appellant is not legally represented, as is the case here, the grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13].
2. 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 the leading case of Collins v Urban [2014] NSWCATAP 17. It is only if the decision is affected by sufficient doubt to warrant its reconsideration on appeal, that leave will be granted. Usually, it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, and beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact.

1. In order to properly understand this appeal it is necessary to outline the history of the proceedings in which Mr Brazel has been involved in seeking access to certain information. This includes a series of access applications to the agency and related administrative reviews. These all emanated from his concerns about the management of the Owners Corporation (the OC) in a building where he is a lot owner, and his attempts to access information relating to those concerns held by both the OC and the agency. We pause to note that the agency had the information because one of the officers of the committee of the OC, who was employed by the agency, used his work email while dealing with OC issues.

1. The first was a decision made in the Consumer and Commercial Division of the Tribunal by Senior Member Meadows on 30 October 2017 (the Meadows decision). Mr Brazel had made an application against the OC seeking orders under the Strata Schemes Management Act 2015 (NSW) concerning being given access to information held by the OC and for the appointment of a manager to the OC. In his reasons for decision, Senior Member Meadows wrote:

"I gave detailed oral reasons at the end of the hearing. I spent considerable time inquiring of Mr Brazel what documents he was seeking, whether he had evidence as to the existence of such documents and how he considered this Tribunal had the power to do as he sought. Mr Brazel was able to explain his reasons and why he sought the orders in the application. He accepted readily that due to his inexperience and lack of legal training that he had made some errors in expressing his application, but that through discussion I am satisfied the Tribunal understands the claim. Mr Brazel was most patient in answering my inquiries.

...

I do not intend to repeat my oral reasons but in brief I am not satisfied that Mr Brazel has proved the existence of all the documents sought, but it is certainly possible that some or all of those documents may exist and may be in the custody of the of the Owners Corporation, or the strata manager or the strata committee. It is appropriate to make the general order contained in Order 1 above."

"1. Pursuant to s 188 the Strata Schemes Management Act 2015 (SSM Act), the Owners Corporation Strata Plan ... and Body Corporate Services (BCS) (the state manager ...) is to make available to Thomas Stanley Brazel any document or record to which he is entitled under the SSM Act which is in their control and custody and which has been wrongfully withheld from Mr Brazel, including but not limited to all documents listed on pages 8 to 10 inclusive of the bundle of evidence filed on 07-Sep-2017 in these proceedings, by advising Mr Brazel within 14 days of the date of these orders, by email, that such document or record is available for copying or collection from the premises of BCS at a time and date suitable to Mr Brazel.

2. The application is otherwise dismissed because having considered the material placed before it the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established."

1. It is important to note that the agency was not a party to and is not bound by the Meadows decision.
2. The former secretary of the OC, however, was an employee of the agency and certain email communications between the OC's solicitors and himself, in that role, had taken place via his work email. At that time, this meant that Sydney Water "held" the information under the GIPA Act. Whether that is still the case following amendments made to cl 12 of Sch 4 to the GIPA Act by the Government Information (Public Access) Amendment Act 2018 (NSW), which commenced on 28 November 2018, is discussed below.

1. In 2016 and 2017, Mr Brazel applied to the agency for access to the emails held by it relating to his dispute with the OC. The information sought in both access applications was released. In the course of considering its decisions the agency, as required by s 54 of the GIPA Act, consulted various third parties who it considered may reasonably be expected to have concerns if the information was disclosed. By s 54(1)(c) those concerns are relevant to the question of whether there is a public interest consideration against disclosure of the information.

1. On 5 March 2019 Mr Brazel sought access from the agency to the following information:

(1) Responses from third parties made in opposition to release by the agency of documents sought in GIPA application 9177; and,

(2) "Copies of Sydney Water's Code of Conduct, Email Policy, 'Bully Policy'."

1. The agency released the policies to Mr Brazel but not the third party consultations. Mr Brazel applied to the Tribunal for administrative review of that decision.

1. On 24 July 2020 Senior Member Montgomery made a decision determining that application: Brazel v Sydney Water [2020] NSWCATAD 188 (the Montgomery decision). Senior Member Montgomery heard evidence concerning six emails that fell within the scope of the third party consultations request. In the course of doing so, he heard confidential evidence and submissions from the agency as required by s 107 of the GIPA Act, going to whether there was an overriding public interest against disclosure of that information. The agency relied on the public interest considerations against disclosure under clauses 1(d), 1(e), 1(f), 1(g), 3(a), 3(b) and 3(f) of the table to s 14 of the GIPA Act, as outweighing the public interest considerations in favour of disclosure.
2. The Tribunal found that the public interest consideration against disclosure under clauses 1(d), 1(e), 1(f), 1(g), 3(a), and 3(b)) of the table to s 14 were made out, but that those concerns would be addressed if "name and identifying details of a third party who is responding to a request for information" were to be redacted": see [114], [125], [129], [132], [134] and [135]. The Tribunal was not satisfied that the public interest consideration against disclosure in cl 3(f) applied.
3. The Tribunal had earlier made a non-disclosure order in those proceedings which said:

"Pursuant to section 64 of the CAT Act 2013 the Tribunal orders that the publication of the confidential documents filed by the Respondent is prohibited until further order of the Tribunal."

1. This appeal was made on a number of grounds. Having considered the appeal an Appeal Panel dismissed it: Brazel v Sydney Water Corporation [2021] NSWCATAP 13 (the Montgomery appeal).
2. Relevantly, for the present purposes, Mr Brazel's grounds of appeal were:

(1) That the Tribunal erred at law when it failed to find that information supplied to an agency in s 54 responses was "open access information" under s 18(g) of the GIPA Act and cl 4 of the Government Information (Public Access) Regulation 2018 (NSW) (the GIPA Regulation), which Mr Brazel was entitled to access. Mr Brazel argued that cl 4 of the GIPA Regulation, inter alia, provided that "applications for approvals under any other Act and any associated documents received in relation to such an application" were open access information of local authorities. The Appeal Panel, at [80], rejected this argument because (a) the agency is not a local authority but a state-owned corporation, and (b) the information in issue is not prescribed to be open access information of the agency.

(2) That the Tribunal did not have the power to make confidentiality orders and hear evidence from the agency in confidence. The Appeal Panel rejected that submission and found that by virtue of s 107 of the GIPA Act and s 64 of the NCAT Act the Tribunal was required to hear evidence in the absence of an applicant in order to prevent the disclosure of information subject to an overriding public interest against disclosure: at [52]-[64].

(3) That the Tribunal erred in finding that the personal information in the s 54 responses was not provided in confidence, because it had previously been disclosed. The Appeal Panel found that it was reasonably open to the Tribunal to conclude that the redacted parts of the responses had not been previously revealed or publicly disclosed. The evidence relied on by Mr Brazel did not point to a contrary conclusion (at [60]).

1. The confidential evidence before the Montgomery hearing was also before the Appeal Panel. The Appeal Panel also made a confidentiality order which said:

"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."

1. While proceedings leading to the Montgomery decision were under way, Mr Brazel made an application for access to responses to third party consultations made in relation to GIPA applications 9177, 9255 and 9412. The agency's initial decision of 5 March 2020 was subject to review by the Information and Privacy Commissioner (IPC). The IPC recommended that the agency make a fresh decision. On 12 August 2020, after publication of the Montgomery decision, the agency made a fresh decision. The agency:

(1) refused to deal with that part of Mr Brazel's application which related to access to the third-party responses to GIPA application 9177 on the ground those documents were the subject of the Montgomery decision; and,

(2) provided access to the third party submissions in response to GIPA applications 9255 and 9412 in a redacted form by applying the guidance set out in the Montgomery decision in relation to GIPA Application 9177; i.e., similar redactions.

1. Mr Brazel sought administrative review of that decision in the Tribunal.

1. Mr Brazel's administrative review application was determined by Senior Member Ransome (now Principal Member) on 13 December 2021 (the Ransome decision): Brazel v Sydney Water (No 2) [2021] NSWCATAD 370. Contrary to Mr Brazel's wishes, the Tribunal decided to determine this application without a hearing and on the papers in accordance with s 50 of the NCAT Act. In doing so, the Tribunal observed that Mr Brazel would not be prejudiced and noted (at [36]):

"In many respects Mr Brazel seeks to re-agitate matters he raised before Senior Member Montgomery and the Appeal Panel in relation to GIPA Application 9177."

1. Amongst the material considered by the Tribunal was confidential evidence and submissions not disclosed to Mr Brazel in accordance with s 107 of the GIPA Act.
2. With respect to the agency's decision to refuse to deal with Mr Brazel's claim for access to the third party responses to GIPA application 9177, the Tribunal referred to s 60(1)(b) of the GIPA Act which provides:

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) -

...

(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application ...

1. On the issue of whether there were reasonable grounds for believing that the agency would make a different decision with respect to GIPA application 9177, the Tribunal noted, among other things, that Mr Brazel submitted as follows:

(1) The redacted information had been previously disclosed: at [64].

(2) Information that was not personal information had been redacted contrary the Montgomery decision: at [65].

(3) Opinions about him in the documents are his own personal information and are not confidential: at [66].

(4) The names of third-party objectors have been previously disclosed: at [67].

(5) There is no evidence that communications between Sydney Water and the objectors were provided in confidence or subject to any sort of confidentiality: at [68].

1. The Tribunal observed that Mr Brazel acknowledged that many of these arguments had been raised before Senior Member Montgomery: at [70]. It concluded (at [56]) that:

"I am satisfied that there are no reasonable grounds for believing that Sydney Water would make a different decision concerning access to third party submissions in GIPA Application 1977."

1. The decision to refuse to deal with Mr Brazel's claim for access to the third-party responses to GIPA application 9177 was therefore the correct and preferable decision.
2. With respect to the responses to GIPA applications 9255 and 9412 the Tribunal went through the process of considering the competing public interests for and against disclosure of the information sought, allocating weight to them, and then balancing those public interests, when concluding whether or not there is an overriding public interest against disclosure as required by s 13 of the GIPA Act. The public interest considerations against disclosure relied on by the agency were those in cl 1(e), (f), and (g) and cl 3(a) and (b) of the table to s 14: [86]-[92]. The Tribunal found that each of these existed in the circumstances and merited "considerable weight": at [94]. They outweighed the public interest considerations in favour of disclosure identified by the Tribunal: at [96]. It was noted, at [97], that personal information:

"...includes statements or facts which would allow the identity of the person to be inferred."

1. The Tribunal agreed with all of the redactions made by the agency with respect to the personal information of third party objectors, with the exception of the signature block of one of the agency's external lawyers. Otherwise, it affirmed the decision under review.
2. The Tribunal also made a confidentiality order, which said:

"Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the material filed with the Tribunal on a confidential basis is restricted to the respondent, the respondent's legal representatives and the Tribunal."

1. This appeal was heard on 6 May 2022, with the decision delivered on 30 May 2022: Brazel v Sydney Water [2022] NSWCATAP 180 (the Ransome appeal). An extension of time which was refused. Leave to appeal was refused and the appeal was dismissed.
2. Among many other issues, the Ransome appeal involved:

(1) A consideration of whether the Tribunal's exercise of the discretion to dispense with a hearing under s 50 of the NCAT Act had miscarried in a House v The King (1936) 55 CLR 499; [1936] HCA 40 sense. The Appeal Panel found that it had not. In addition, Mr Brazel had not demonstrated that he had been prejudiced by the Tribunal's decision to dispense with a hearing: at [73]-[76].

(2) A challenge to the decision of the Tribunal to consider confidential evidence and to make orders protecting that information from disclosure. The Appeal Panel found that there was no error of law in the Tribunal finding it "desirable" to make orders under s 64 of the NCAT Act in the circumstances, as s 107(2) of the GIPA Act requires the Tribunal to, "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": at [81]-[90].

(3) A rejection by the Appeal Panel of Mr Brazel's contention that the names and other identifying information of third parties was not their personal information: [96].

(4) A challenge to the Tribunal's rejection of Mr Brazel's submission that the names of the people who responded to the s 54 requests had been previously disclosed and that, therefore, disclosure would not reveal their personal information for the purposes of cl 3(a) of the table of public interest considerations against disclosure in s 14. The Appeal Panel found that this did not raise a question of law (at [102]) and that, consequently, leave to appeal was required. Leave was refused, as the Appeal Panel was satisfied it was reasonably open on the evidence for the Tribunal to conclude that the names had not been previously revealed (at [103]-[104]).

(5) A claim that the information that the Tribunal found to be confidential information was Mr Brazel's personal information, as it contained information or opinion about him, thereby satisfying the definition of personal information in cl 4(1) of Schedule 4 to the GIPA Act. The Appeal Panel rejected this as misconceived. The only information withheld by the agency related 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": at [109]. The fact that the s 54 responses related to him, and contained some of his personal information, did not mean that it did not also contain the personal information of the responders and others to which confidentiality applied.

1. The confidential material that had been before the Ransome hearing was also before the Appeal Panel hearing the Ransome appeal. The Appeal Panel made the following confidentiality order:

"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."

1. This access application was first made to the agency by Mr Brazel on 30 August 2023. In the application, Mr Brazel sought access to government information in 13 categories, some with sub-categories.
2. On 31 October 2023, after a dispute concerning payment of the applicable fee and some amendments to the scope of the access request, the agency reached a decision ("the agency decision") with respect to most of the information sought by Mr Brazel. The information sought and decisions made with respect to each of 21 items, or categories of information, is set out in an 13-page decision schedule. Mr Brazel was provided with 41 documents responsive to his request (some redacted) set out in appendix 1 to that decision. The decision advised that a supplementary decision relating to documents responsive to item 10 would be made.
3. The agency decision made the following determinations:

(1) That information responsive to items 1 to 3 of his request did not exist.

(2) To grant unredacted access to some of the information request, e.g. the open transcript from the Montgomery hearing.

(3) To grant Mr Brazel access to certain information (documents 4, 5, 6 and 9) subject to redactions;

(4) To refuse access to certain information to the respondent (documents 7, 8 and 37) which it was conclusively presumed that there was an overriding public interest against disclosure due to the legal professional privilege and contempt provisions contained in clauses 4 and 5 of Sch 1 to the GIPA Act.

(5) To refuse to deal with certain requests for access to information under s 60.

1. On 14 November 2023 the agency issued a supplementary decision with respect to item 10 (the supplementary decision). In short, that item sought access to unredacted legal invoices from external lawyers retained by the agency with respect to the prior proceedings in the Tribunal. The agency decided to give Mr Brazel access to this information subject to redaction of personal and business information. The agency later inadvertently provided the applicant with full access to those documents and for this reason his access to them ceased to be an issue.
2. A processing charge of $1,845.00 was charged with respect to those decisions.
3. Mr Brazel then sought an internal review of those decisions and made submissions in support of further disclosure and a reconsideration of processing fees. On 8 January 2024 the original and supplementary decision were affirmed on internal review.
4. Mr Brazel then asked for review of the decisions by the IPC on 5 March 2024 under s 89 of the GIPA Act.
5. On 10 July 2024 the IPC recommended that the agency reconsider its decision.
6. The agency did not accept the IPC's recommendation, with the result that its original decisions, as affirmed by the internal review, stands. The agency advised Mr Brazel of this on 25 July 2024.
7. On 12 August 2024, Mr Brazel applied for administrative review of the internal review decision in the Tribunal. It is the decision made by the Tribunal with respect to that application, on 14 January 2025, which is the subject of this appeal: Brazel v Sydney Water Corporation [2025] NSWCATAD 15.

1. In the decision the Tribunal first outlined the background to the administrative review application: [1]-[15].
2. The Tribunal noted at [24] that the agency had identified four issues for determination.
3. First, the decision to refuse to disclose documents 7, 8 and 37, the release of which would disclose information subject to legal professional privilege or contravene a non-disclosure order made by the Tribunal in earlier proceedings: s 14 and cll 4 and 5 of Sch 1 to the GIPA Act. For the sake of clarity those documents are described in the Schedule of Documents as:

(1) Document 7 and 8: documents which the agency considered were responsive to Mr Brazel's request for "Ms Barnes' (instructing solicitor) advice to client for 9177 submissions, i.e. the Montgomery Hearing". Ms Barnes is Legal Counsel at the agency. She instructed external solicitors with respect to the Montgomery hearing.

(2) Document 37: "Confidential written transcript of Montgomery Proceedings".

1. Secondly, the decision of the agency to redact information from, and provide partial access to, documents 4, 5, 6 and 9 because:

(1) the redacted information was subject to the same conclusive overriding public interests against disclosure as a result of legal professional privilege, which the agency had decided not to waive; and

(2) If not, that the public interest considerations against disclosure relating to the information they contained outweighed those in favour of disclosure.

1. Documents 4, 5 and 6 were responsive to Mr Brazel's request for information relating to the agency's "briefing for external solicitors re NCAT application for 9177 submissions", i.e. the Montgomery hearing. Document 9 was responsive to a request for the "external solicitors advice".
2. Those documents are described in the Schedule of Documents:

(1) Document 4:"FW_Significant documents for your review_15012020".

(2) Document 5: "E - RE_Significant documents for your review_20012020".

(3) Document 6: "Index - Brief to Counsel".

(4) Document 9: "Significant documents for your review_20012020".

1. Thirdly, the correctness of the decision to refuse to deal with requests for items 9, 17 and 18 of Mr Brazel's access request under s 60(1)(b) of the GIPA Act on the basis that access to that information had been previously considered by the agency (and the Tribunal) and that there was no reasonable ground for believing that a different decision would be forthcoming:

(1) Item 9 sought access to the "complete unredacted [s 54] submissions" (i.e. responses) previously sought in GIPA applications 9177 and 9255 on the basis that there were reasonable grounds for revisiting the question of access to them which were set out in the application.

(2) Item 17 sought access to 600 plus documents relating to the OC previously sought in GIPA application 9177, to which access was refused.

(3) Item 18 sought access to the complete unredacted s 54 submissions (i.e. responses) previously sought in GIPA applications 9177, 9255, 9527 and 9412 on the basis that there was new evidence available which had been released by the agency.

1. Fourthly, the decision to impose a processing charge of $1,845.00 with respect to the application and to decline to grant a reduction of that charge under s 66 of the GIPA Act because the information applied for is of special benefit to the public generally.
2. At [28]-[57] of the decision the Tribunal summarised the agency position and its submissions in relation to each of these issues, including the legislation and cases relied on by the agency.
3. At [58]-[72] the Tribunal summarised Mr Brazel's case with respect to the claim of legal profession privilege in relation to documents 4 to 9. It was noted, at [58]-[59], that Mr Brazel alleged that the agency had waived legal profession privilege by its conduct and had "acted dishonestly and unethically" in making submissions to the Montgomery hearing. Mr Brazel argued that the agency had waived privilege by acting in a manner inconsistent with the existence of the privilege: at [60].
4. Mr Brazel also submitted that earlier confidentiality orders did not apply to legal advice.
5. Mr Brazel argued that the s 54 consultations were not confidential in nature and that the agency had obtained the confidentiality order relating to them "fraudulently": at [66]. Confidentiality was not in the public interest.
6. The Tribunal also noted submissions addressing the processing charge for the application and Mr Brazel's eligibility for a discount under s 66, because the information sought was said to be of "special benefit" to the public. Mr Brazel asserted, "that release of the requested documents has revealed evidence of corrupt and/or negligent conduct by SW employees, failure of oversight, misuse of public funds and breaches of the Model Litigation Policy."
7. At [72] the Tribunal noted that:

"In oral submissions, the applicant maintained his argument that the respondent had waived privilege under ss 122 and 125 of the Evidence Act and that the decisions made by Senior Member Montgomery and Principal Member Ransome were based on misleading evidence from the respondent."

1. The Tribunal then, at [73]-[82], summarised the agency's submissions in reply. In short, the agency argued that:

(1) Mr Brazel was seeking to "re-ventilate" matters determined in previous Tribunal proceedings (at [75]).

(2) There was no evidence of waiver or that legal advice "was transformed into an expression of the mind of [the agency] which thereby waived privilege over that advice" (at [76]-[77]).

(3) In relation to item 17, the information sought is no longer government information following the introduction cl 12(4) of Sch 4 to the GIPA Act because it involves information that was unsolicited and not relevant to its business or function (at [80]).

(4) Mr Brazel bears the onus of proof with respect to the processing charge and had not discharged it (at [82]).

1. The decision then turned to the need to hold a confidential hearing under s 107 of the GIPA Act. The decision contains a series of undisclosed, confidential paragraphs dealing with that confidential hearing which took place in the absence of Mr Brazel: at [85]-[94].
2. We have considered a confidential copy of the decision in determining this appeal. In discussing it, we are required by s 107 to not "disclose any information for which there is an overriding public interest against disclosure." We can say that the confidential paragraphs address issues 1, 2, and 3 above sequentially. They refer to evidence considered and submissions received in the confidential hearing and include a number of conclusions of fact and law reached by the Tribunal.
3. Next, the Tribunal set out its understanding of some of the applicable law in relation to reviews of decision under the GIPA Act including relevant case law: at [95]-[113].
4. The Tribunal then considered each of the four issues before it.
5. First, with respect to whether or not legal professional privilege attached to any of the documents under consideration in issues 1 and 2, the Tribunal said:

"115 Based upon the evidence before me, including the documents that were lodged with the Tribunal on a confidential basis, I am satisfied that the disputed information is properly protected by legal professional privilege.

116 Accordingly, cll 4 and/or 5 of Sch 1 of the GIPA Act applies to the information and there is a conclusive presumption that there is an overriding public interest against disclosure of that information by operation of s 14(1) of the GIPA Act.

117 Contrary to the applicant's assertions, there is no evidence before me that supports a finding that the respondent waived privilege over this information. In fact, the evidence from Ms Rana was specifically to the effect that it did not waive privilege.

118 There is no evidence before me that supports the applicant's allegation that the respondent waived privilege by reason of its conduct.

119 For these reasons, it is not necessary for the Tribunal to apply the public interest test in relation to the disputed information."

"120 The respondent refused to deal with the GIPA request in so far as it sought information under items 9, 17 and 18 pursuant to ss 58(1)(e) and 60(1)(b) of the GIPA Act.

121 Items 9 and 18 called for complete unredacted submissions made for the four previous GIPA requests (9177, 9255, 9527 and 9412). I am satisfied that these documents were clearly dealt with by the respondent in the previous GIPA requests and that they were also the subject of the previous decisions of the Tribunal.

122 I note that both Senior Member Montgomery and Principal Member Ransome made orders regarding g confidentiality and non-publication of the disputed documents and that although the applicant appealed against those determinations, each of the Appeal Panels upheld those orders.

123 On that basis, I am satisfied that the previous determinations of the Tribunal necessarily decided that the information sought in items 9 and 18 of the GIPA request were confidential in nature and that this gives rise to an issue estoppel in the current proceedings.

124 As a result, the applicant is estopped from asserting that the information sought under items 9 and 18 of the GIPA request is not confidential in nature.

125 Item 17 of the GIPA request seeks "the 600+ strata documents identified as relating to Strata 961".

126 I accept the respondent's submissions to the effect that this information was initially sought in the GIPA request that was the subject of the determination by Senior Member Montgomery. However, the scope of that GIPA request was subsequently reduced following negotiations between the parties. by agreement.

127 Accordingly, I accept that the respondent properly refused to deal with this part of the GIPA request under s 60(2)(b) of the GIPA Act, as it had already decided a previous application for the information concerned and there are no reasonable grounds for believing that it would make a different decision in this application.

128 In any event, the GIPA Act was amended effective from 28 November 2018, when cl 12(4) of Sch 4 commenced. This provides:

(4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency.

129 I am satisfied on the evidence before me that the information sought in item 17 of the GIPA request was unsolicited and is not relevant to the business or functions of the respondent. Accordingly, it is not government information that is held by the respondent.."

1. Finally, with respect to issue 4, the processing charge, the Tribunal wrote:

"130 I am satisfied that the processing fee imposed by the respondent in this matter is reasonable in the circumstances, noting the fee rendered represents a significant discount on necessary time to deal efficiently with the current GIPA request. In particular, the time spent dealing with the current GIPA request exceeded 110 hours, but a processing fee was rendered based on 62.5 hours.

131 Based on the evidence before me, I am not satisfied that the information sought in the GIPA request is of special benefit to the public generally. This is particularly the case in relation to the strata dispute, in which the applicant has a private interest and involvement."

1. The Notice of Appeal, while dated 11 February 2025, was first received by the Tribunal's Liverpool Registry on 18 February 2025. This is five days outside the 28-day period prescribed by r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). An extension of time in which to make the appeal is required, under s 41 of the NCAT Act, in order for the appeal to proceed.
2. The agency conceded that that it would not be prejudiced if time were extended. The delay was short, and Mr Brazel's explanation for it was one of a short, inadvertent delay. We think his prospects of success in the appeal high, in the light of questions concerning the Tribunal's interventions in his presentation of his case, the absence of engagement with some of the issues he raised, and the adequacy of the Tribunal's reasoning. These are all discussed below. We have concluded that, if an extension of time is not granted, there is a real prospect that he will suffer an injustice. We have therefore extended time for the making of the appeal to 18 February 2025. To this end, we have applied the principles set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].

1. Having reviewed the appellant's Notice of Appeal, we understand that, in summary, he relies on the following grounds and potential questions of law:

(1) That the hearing was procedurally unfair; the Senior Member was rude and abrupt; wrongly expected Mr Brazel to be an experienced litigator; limited his cross-examination; "ignored new evidence provided in the written submissions" and stopped him from making submissions. We consider these complaints raise two questions of law: namely, whether the Tribunal was affected by actual or apprehended bias (Ground 1) and, subject to materiality, whether the Tribunal denied Mr Brazel procedural fairness (Ground 2). Whether the decision was vitiated by bias raises a question of law (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 (QYFM) at [282]); and whether there was a material breach of procedural fairness raises a question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [52]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1].

(2) That the agency failed to demonstrate that third-party responses under s 54 were confidential. Mr Brazel makes this argument despite previous findings that they were given confidentially, relying on what he describes as "new evidence", which includes caselaw not previously relied on by him. The Tribunal found he was estopped from asserting that the responses were not confidential. This gives rise to questions of law concerning whether the Tribunal misdirected itself or asked itself the wrong question or misapplied the statute by considering estoppel as opposed to the express statutory provision in s 60 of the GIPA Act (Ground 3). Questions of this kind raise questions of law: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 532; [2010] HCA 1 at [67], [71]-[74]; Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176.

(3) That the Tribunal failed to consider evidence pointing to the fact that the agency had waived legal profession privilege under s 122 and 125 of the Evidence Act 1995 (NSW). This is essentially an argument that the Tribunal failed to consider a core plank of Mr Brazel's case and thereby denied him procedural fairness (Ground 4). Subject to materiality, this raises a question of law that arises on the appeal.

(4) That the Tribunal failed to explain why it would not review another Senior Member's decision, despite the statutory authority under s 63 of the ADR Act to make the correct and preferable decision. We understood this to be a complaint about the adequacy of the Tribunal's reasons. As noted in Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Wollondilly) at [29], a ground that raises inadequate reasons may raise a question of law, subject to the question being articulated with sufficient precision (Ground 5).

(5) That the Tribunal failed to consider evidence adduced by Mr Brazel which he said showed that there are reasonable grounds for believing that the agency would now make a different decision on the application in accordance with s 60(1)(b) of the GIPA Act. This, subject to materiality, raises a question of law on the appeal concerned with whether the Tribunal failed to consider an issue before it and thereby failed to accord him procedural fairness (Ground 6).

1. We explain further below, in concert with considering the merits of the grounds, why these grounds constitute questions of law.
2. Mr Brazel's submissions also raise a ground that would require leave to appeal. Namely, that the Tribunal should have required the agency to conduct consultations with unit owners, who are lot owners of the OC, under s 54 of the GIPA Act because they were required to be consulted by s 54(1). On its face we consider that this raises questions of fact and law, requiring a factual determination of whether the unit owners meet the requirements of s 54(1) in order to determine whether they were required to be consulted (Leave Ground 1). We do not accept that this arises from the decision under appeal. Nor do we see how it could properly arise in the course of the administrative review of the access decision in question here. Leave to appeal is therefore refused.
3. The balance of Mr Brazel's Notice of Appeal outlines a variety of complaints asserting that the agency failed to comply with its obligations under the GIPA Act and has not acted fairly. Apart from restating grounds of appeal stated elsewhere, these failures do not point to an appealable error by the Tribunal, or give rise to a leave ground in this appeal. There is no question of law or leave ground arising.
4. Accordingly, we propose to consider the questions of law in three categories:

(1) Bias and procedural unfairness (Grounds 1 and 2).

(2) Issue estoppel in administrative reviews under the GIPA Act (Ground 3).

(3) Failure to address central issues and inadequate reasons (Grounds 4 to 6).

1. The new evidence - created since the decision under appeal was made - which Mr Brazel seeks to rely on in the appeal is a signed witness statement of Ronald Russell, a friend of his, who assisted him in the hearing. The Senior Member referred to him as a "McKenzie friend". The statement relates to that hearing and records Mr Russell's impressions and conclusions about the hearing and the Senior Member's treatment of Mr Brazel. It does not contain an objective narration of what occurred in the course of the hearing. Rather, it contains a subjective description of the hearing. In the absence of cross-examination, which the appeal was not the occasion for, we refused to admit Mr Russell's statement, being of the view that we can obtain a more informed, balanced and objective view of the conduct of the hearing by reading the transcript.
2. We note that in submissions Mr Brazel alleged that the transcript of the hearing was incomplete and that an incident in which the Senior Member was alleged to have been rude and abrupt to Mr Brazel while swearing him in was missing from the transcript. In submissions Mr Brazel wrote, at p. 31:

"The incident has been removed from the transcript but that can be confirmed by my witness Mr Russell and the audio recording."

1. While considering our reserved decision, we noted that the audio recordings filed by Mr Brazel did not contain an audio recording of the hearing, but of earlier events. We inferred from the submission that Mr Brazel had intended to file the recording of the hearing and called for him to produce the audio so that we could compare it with the transcript, giving the agency an opportunity to object. Mr Brazel replied to the effect that he did not have a copy of the audio. As a consequence, we vacated the orders we had made with respect to the audio. For completeness, we note later in his submissions, Mr Brazel referred to what he contends is the real content of the audio recordings.
2. In his final submissions, filed on 3 July 2025, Mr Brazel also sought to rely on the following items which he describes as evidence "not before" the Tribunal below:

(1) Full open transcript of the Montgomery hearing.

(2) "Documents confirming third party disclosure" (the submissions do not indicate where among the thousands of pages filed these are to be found);

(3) "Evidence of IPC expectations (Guideline 5, Q & A p 918)."

(4) "SW statements made to the NCAT Montgomery prehearing, Oct 2019, contradicting later confidentiality claims. Audio of SW pre-hearing offer to release unredacted submissions". The audio recordings referred to in [81] above relate to this.

1. Each of these items of "evidence" was in existence prior to the appealed hearing. Mr Brazel concedes that they were not among the materials he placed before the Tribunal. He offers no sufficient explanation as to why he did not do so. Evidence that was in existence at the time of the original hearing, and could reasonably have been included in the evidence placed before the Tribunal, is not generally admissible on appeal.
2. The fact that its relevance has subsequently come to light will, in the absence of clear evidence of fraud affecting the hearing the subject of the appeal, not provide a basis for its admission on appeal: Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [18]; Clone Pty Ltd v Players Pty Ltd (in liq recs apptd) [2012] SASC 12 at [97]. Here, Mr Brazel relies on untested assertions that some of the agency's evidence before the Montgomery hearing may have been untrue. This is not clear evidence of fraud affecting the hearing now appealed. The admission of this evidence on appeal is rejected.

Grounds 1 and 2 - bias and procedural unfairness

1. Mr Brazel's submissions contain a list of complaints about the Tribunal's conduct at the hearing which, aggregated together, form the basis of his complaint that the Senior Member was biased and denied him procedural fairness, as a result of excessive interventions in his presentation of his case. These include:

(1) The Senior Member:

(a) was late, unprepared for the hearing and had not reviewed the submissions;

(b) was rude and humiliated him, while "treating the respondent with apparent deference"; and

(c) made no allowance for his unfamiliarity with the Tribunal process and complained about the manner in which he presented his evidence and documents.

(2) That when he presented "new evidence", which he says demonstrates that earlier Tribunal decisions were based on false evidence provided by Sydney Water, the Senior Member asked whether he was asserting that other Senior Members had "got it wrong". This, he asserted, was "blatant intimidation". When he would not be intimidated, "she went on to state that she would not review another Senior Member's decision".

(3) The Senior Member wrongly characterised him as an "experienced litigant" and held him to a higher standard creating "an unfair disadvantage".

(4) The Senior Member:

(a) used legal jargon, which was not explained, and did not "explain the distinction of newly relevant evidence";

(b) displayed no familiarity with the case law he was relying on and did not refer to it in her decision; and

(c) did not (adversely) comment on the agency's conduct; including its failure to make proper decisions under the GIPA Act, its retention of barristers and threatening him with costs.

(5) The Tribunal was dismissive of documents he relied on, namely "IPC and [agency] GIPA reviews, relevant caselaw and IPC Guidelines and correspondence and claimed it was not evidence".

(6) The Senior Member:

(a) repeatedly interrupted him preventing a full presentation of his case, and of evidence of disclosure which merited the "review of prior NCAT decisions";

(b) pre-empted him from making arguments and presenting evidence in support of them, such as evidence that legal professional privilege had been waived; and

(c) limited his cross-examination of witnesses, denying him the opportunity to demonstrate that the internal reviewer of GIPA application SYW-000192 had failed to undertake the balancing exercise of public interests required by s 13 of the GIPA Act.

1. In its submissions the agency argued that Mr Brazel was not denied procedural fairness and that the Senior Member's conduct of the hearing did not raise concerns about either actual or apprehended bias. The agency argued that the interventions by the Tribunal, viewed in the context of the prior history of the proceedings between the parties and the large volume of material he had filed (exceeding 800 pages), were designed to focus on the real issues and facilitate a just, cheap and quick resolution of the real issues in dispute.

Does breach of procedural fairness raise a question of law?

1. A breach of procedural fairness has been routinely treated by Appeal Panels as raising a question of law: McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [179] (McNeill); YHY v YHZ [2024] NSWCATAP 117 at [23]. Whether there has been a material breach of procedural fairness raises the question of whether there has been jurisdictional error. However, several matters are worth noting.
2. First, as noted above at [7], a question of law is a pure question of law. Generally, a pure question of law is one where there are no contested facts and no facts need to be found (Cobar at [48] and [109]); however, an exception arises in cases alleging a breach of procedural fairness, where some procedural facts may need to be found in order to establish the breach: Donohoe v Albulario [2025] NSWCA 9 at [33].
3. Second, to arise as a question of law "on" the appeal, the alleged breach must be material and must not give rise to an arid question: Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 at [46]- [60]; FYH at [43].
4. Third, a denial of procedural fairness may constitute a jurisdictional error, if it is a material error: Nathanson at [1], [45]; GTK v NSW Treasury [2025] NSWCATAP 174 (GTK) at [53]; and McNeill at [183]. Accordingly, while a question of law is not required to be jurisdictional, the jurisprudence in relation to breach of procedural fairness leading to jurisdictional error is relevant to determining whether a ground of appeal alleging breach of procedural fairness raises an arid question.
5. Fourth, where a decision is affected by bias, whether actual or apprehended, the hearing rule is breached and the affected party is denied procedural fairness. The denial of procedural fairness is so fundamental that there is no requirement to demonstrate materiality, as materiality is inherent in the nature of the breach: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [6]; Nathanson at [98]-[102] per Edelman J. If proved, both actual bias and apprehended bias constitute "a jurisdictional error rendering the decision invalid regardless of the effect the bias might have had on the decision": FZK v Department of Customer Service [2024] NSWCATAP 185 at [134] (FZK), citing LPDT at [6].
6. Where other types of procedural fairness breaches are alleged, it is necessary for the appellant to demonstrate that the denial of procedural fairness was material. Where materiality must be demonstrated, it is a low bar; materiality is established if the error deprived the appellant of a realistic possibility of a different outcome: Nathanson at [1], [45]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [4]. This requires an examination of "how the decision was in fact made" followed by consideration of whether the decision could realistically have been different "had the relevant condition been complied with as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined": Nathanson at [32]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30].

1. Mr Brazel's claims encompass allegations of both actual bias and apprehended bias.
2. In Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125; [2000] FCA 19 at [42], Drummond J said of actual bias:

"(a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.

(c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real.

(d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case." (citations omitted)

1. The issue when considering actual bias is whether the decision maker's mind is "open to persuasion": Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [71]. French J explained in Jia v Minister for Immigration and Multicultural Affairs [1998] FCA 768; (1998) 84 FCR 87 at 104; [1998] FCA 768 that establishing bias on the part of a decision maker requires proof of:

"... a pre-existing state of mind which disables the decision-maker from undertaking or renders [the decision maker] unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made."

1. For apprehended bias, the test is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power being exercised: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6].
2. The test involves two steps. In Ebner, the High Court said at [8]:

"First, it requires the identification of what it is said might lead a [decision maker] to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits."

1. Importantly, as was pointed out in FZK at [142], a fair-minded lay observer is taken to be aware of the context in which a challenged decision is made and to have "a broad knowledge of the material objective facts": QYFM at [72].
2. As noted above, where a decision is affected by bias, the appellant does not need to demonstrate that the bias was material. The consequence of establishing such a breach is that the affected party is entitled to a rehearing.

1. Extensive judicial interventions themselves can result in a party being denied a reasonable opportunity to put their case: Ellis v The Queen [2015] NSWCCA 262 at [65]. The test is whether the decision maker's interventions have created a real danger that the hearing was unfair: Galea v Galea (1990) 19 NSWLR 263 at 281.
2. Grounds based on excessive intervention by a decision maker during a hearing can overlap with claims of apprehended bias. However, not all interventions will be suggestive of bias. As the agency pointed out, in Polsen v Harrison [2021] NSWCA 23 at [46(xii)] the Court of Appeal observed that:

"interventionist comments or conduct by a [decision maker] will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the [decision maker's] desire to understand the evidence and to advance the trial process."

1. A denial of procedural fairness as a result of excessive interventions from the bench resulting in a party being unable to put their case, requires that the breach be material, so as to result in a "practical injustice" in the sense that the party is deprived of "the possibility of a successful outcome": MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [59] .
2. In the context of proceedings in this Tribunal, the guiding principle set out in s 36 of the NCAT Act, "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The Tribunal is also to act "with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms": s 38(4). Importantly s 38(5) of the NCAT Act instructs the Tribunal to take such measures as are reasonably practicable to:

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

1. In R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3 at [38], Kourakis CJ, in a case involving interventions by a judge sitting without a jury in a criminal trial, identified three basic grounds on which excessive judicial intervention would give rise to a miscarriage of the trial. They were:

"(i) the questioning unfairly undermines the proper presentation of a party's case (the disruption ground);

(ii) the questioning gives an appearance of bias (the bias ground); and

(iii) the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground)."

1. In Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584 at [78], Gray J observed that an examination of the transcript of AAT proceedings revealed that a Member had repeatedly interrupted the answers given by a self-represented applicant in "an attempt to persuade her to make them briefer"; and repeatedly urged her "to be brief'". He found the result of those interventions was that "she did not tell the Tribunal all that she could have, and all that she wanted to tell, about her case." This was "obvious" from the transcript.
2. In Tribunals such as NCAT, in which self-represented litigants are frequent participants, it is well recognised that the Tribunal necessarily intervenes and asks questions designed to assist in identifying and understanding the issues, so as to achieve the objective of a just, quick and cheap resolution. Nettle J in Collection House Limited v Taylor [2004] VSC 49 (Collection House) at [26]-[27], in considering an appeal from VCAT, said:

"26 ... The fact of the matter, however, is that Mr Easy was not a barrister; he was not even a lawyer; the Tribunal is not a court; and the sorts of conventions and assumptions which apply to the conduct of litigation by barristers in courts by and large do not apply to the conduct of proceedings by laypersons before the Tribunal. To the contrary, as Byrne J took time to point out in Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295 at [9]

"It (is) accepted that the Tribunal must act fairly and that it (is) bound by the rules of natural justice. But this does not require that its procedures be that of a formal court. Indeed, the Victorian Civil Administrative Tribunal Act 1998 ('the Act') makes it clear that the Tribunal is to act in an informal way and that its procedures must be moulded to accommodate the fact that, in most cases, the parties will not be represented by a professional advocate. This necessarily involves the Tribunal taking a more active role and identifying the real issues between the parties and directing them as to the evidence which legally and logically bears on those issues. It may be, too, that in a given case, the Tribunal will itself interrogate witnesses in a manner and to an extent which would not be expected in a court. This said, s 102(1) expressly obliges the Tribunal to afford to the parties a reasonable opportunity to call evidence and to cross-examine witnesses and make submissions..."

27 That is not to say that the Tribunal exists to provide legal advice to parties that appear before it or even that it would be appropriate for the Tribunal to provide legal advice to parties. It does not and it would not be. But there is a difference between providing legal advice and explaining in the course of hearing to unrepresented litigants the nature and effect of the various processes which are being undertaken and as to the steps open for the litigants to take. In that sense, a higher burden of explanation and assistance may fall upon a Senior Member of the Tribunal than would fall upon a judge in a curial proceeding in which the parties are represented by counsel."

1. Both Collection House and Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295 were cited with approval by the NSW Court of Appeal in Jones v Ekermawi [2009] NSWCA 388 at [46], with respect to an appeal relating to a decision of the Administrative Decisions Tribunal. There, the question was whether the Tribunal had explained in clear terms, to a self-represented litigant, the issues that needed to be addressed and the legal consequences of positions adopted by the other side, which the self-represented person clearly did not understand.

1. We have carefully reviewed the transcript of the proceedings before the Tribunal.
2. It is apparent that the Tribunal intervened in Mr Brazel's presentation of his case frequently, questioning him, disputing his submissions and directing him to go elsewhere. There is no point in the transcript where Mr Brazel speaks for more than 5 lines without an intervention by the Tribunal. Whilst we are satisfied that the Tribunal Member was motivated by gaining an understanding of the case and efficiency, we are also satisfied that as a result of the interventions, Mr Brazel was precluded from making the submissions he wanted to make and referring to his evidence. Further, it appears that the Senior Member made no allowance for Mr Brazel's lack of legal training. The Senior Member appeared to expect him to have a relatively sophisticated understanding of Tribunal procedures, due to his past experience with the Tribunal.
3. One example is when Mr Brazel was allowed to and did attempt to cross-examine the agency's witnesses but most of his questions were either the subject of objection, or of intervention by the Senior Member, without objection from the agency, to stop the questioning. For example, at T20, Mr Brazel, while cross-examining a GIPA specialist from the agency, sought to ask about the involvement of external legal services in preparing the agency's case. The Tribunal stopped the cross examination when Mr Brazel asked about what he described as "excessive involvement of external solicitors" on the basis that excessive legal representation was not an issue before the Tribunal. Mr Brazel was not given an opportunity to explain why it was relevant.
4. It is pertinent to understand that one of the arguments Mr Brazel was seeking to make was that the "excessive use" of external legal resources by the agency is evidence that the agency's claim of legal privilege has been waived as comprehended by s 122 of the Evidence Act, because the legal advice had become the position of the agency, rather than advice about the agency's position. He relied on the decision of Loielo v Giles [2020] VSC 619 in this regard.
5. We accept that it is necessary for a Tribunal member to manage the hearing process, including, where necessary, by limiting cross examination to relevant issues and precluding the arid questioning of witnesses. Here, the Tribunal intervened to stop Mr Brazel asking questions of a witness likely to have knowledge of the matter, before the purported relevance to the case could be explained and without seeking an explanation of its relevance.
6. The Tribunal later returned to the question of legal professional privilege and waiver. The Tribunal asked Mr Brazel what evidence he had of waiver of legal professional privilege. He started referring to evidence of the professional fees charged, and hours worked by external legal advisers. The Tribunal would not allow him to do so, questioning the relevance of the legal fees. He replied that there was "caselaw" on the issue but did not have the opportunity to identify it.
7. We are satisfied that Mr Brazel was not given an opportunity to put this aspect of his case.
8. Mr Brazel was also seeking to argue that the agency had suppressed evidence before the earlier hearing and that such misconduct amounted to a waiver of legal privilege as comprehended by ss 122 and 125 of the Evidence Act because the advice was "prepared in furtherance of a deliberate abuse of a power".
9. When it came time for Mr Brazel to present his case, the Senior Member asked to be directed to his evidence. There followed a series of interchanges between the Tribunal and Mr Brazel (for instance at T23) in which the Tribunal sought to identify Mr Brazel's evidence. He had filed a large bundle of documents divided into numbered caches (labelled bundles of documents relating to the issues he wished to agitate), together with a written document headed "Introduction" in which he sought to explain his position.
10. In response to a question from the Senior Member, Mr Brazel said his evidence was "in the form of a statement", which he then identified as the document headed "Introduction". The Senior Member established that the document had not been signed as being true and correct and queried what weight it could be given in those circumstances. The Tribunal indicated that Mr Brazel ought to have known from his past experience with the Tribunal that his evidence ought to have been attested to.
11. Mr Brazel confirmed he was prepared to get in the witness box and swear that it is "true and correct" (at T24); which he did. He began by referring to his caches, but was interrupted by the Senior Member who noted that the material contained documents, not evidence in his own words. There then followed an interchange about the distinction between evidence and submissions (T26). The Senior Member noted that Mr Brazel had been directed to file a statement and asked where it was. There ensued a discussion in which Mr Brazel twice told the Tribunal he did not understand the distinction between a statement and his documentary evidence and introduction (T27). After which the Senior Member again commented on his experience in the Tribunal.
12. This confusion persisted, with Mr Brazel again telling the Tribunal that he did not understand the distinctions being made.
13. We note that the distinction between evidence and submissions can be confusing to a party; and it is incumbent on the Tribunal to grapple with the different aspects of a party's case and accord different weight to submissions as opposed to evidence. To that end, it may be necessary to explore this with the party. Nevertheless, it is apparent from reading the transcript that the interventions made by the Tribunal during the presentation of Mr Brazel's case were frequent and patently confusing to him, that Mr Brazel was thereby deprived of a fair opportunity to present his arguments and explain his reasoning to the Tribunal. As we have already indicated, we do not doubt that the Tribunal was motivated by the desire to identify and confine the issues into a digestible form. This was an understandable concern, when the materials relied on by Mr Brazel were voluminous and not presented in an order familiar to and easily digestible by the Tribunal, or by us on appeal.
14. The Tribunal's focus on the form of Mr Brazel's written presentation and his unfamiliar organization of documents, absorbed much of the hearing time. The Senior Member's expectations based on Mr Brazel's familiarity with Tribunal procedures, placed demands on Mr Brazel that he was unable to meet. His repeated statements that he did not understand what the Tribunal was saying, and resultant apologies, show his confusion and his desire not to offend the decision maker. The explanations by the Tribunal, in response to his protest that he did not understand, did not clarify his understanding. We are satisfied that the Senior Member's interventions prevented Mr Brazel from presenting his case and denied him procedural fairness.
15. The denial of procedural fairness was material in that it prevented Mr Brazel from advancing arguments he wished to make, such as with respect to legal professional privilege, and addressing the evidence he relied on in support of those submissions. This was particularly so with regard to whether or not there were "reasonable grounds for believing that the agency would make a different decision on the application" than it had in the past in accordance with s 60(1)(b). This issue is discussed in greater detail below and is a material issue which the Tribunal did not address.
16. These instances demonstrate the materiality of the breach of procedural fairness by way of the Tribunal's interventions. Had he had an opportunity to fully present his case, this could have made a difference. This is the case, even though we have ultimately found against Mr Brazel on some aspects of his appeal. Quite apart from these specific instances, there was a breakdown in the hearing process to such an extent that we consider it to have been material.
17. Notwithstanding the interventions, we are satisfied that the Senior Member was open to persuasion when hearing Mr Brazel's submissions. While distracted by matters of form, the transcript demonstrated that the focus was on understanding his case. The conduct of the hearing and the expectations placed upon him, which he could not meet, are insufficient to demonstrate actual bias in the circumstances of this case. We note that while the Senior Member initially stopped Mr Brazel's argument with respect to the legal professional privilege, it was revisited later on.
18. Similarly, we are not persuaded that a reasonably informed lay observer might reasonably apprehend that the Senior Member might not bring an impartial mind to the determination of Mr Brazel's case. While such an observer may pause at the Senior Member's continued interventions, we do not consider that such an observer might have reasonable cause to think that the Senior Member might not decide the case impartially.
19. As explained above, we are satisfied that the Senior Member's continued interventions deprived Mr Brazel of a fair hearing and denied him the opportunity to properly present his case and the possibility of a successful outcome.
20. Ground 2 therefore succeeds, while Ground 1 is not made out.

Ground 3 - issue estoppel in administrative reviews under the GIPA Act

1. In Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531, Dixon J explained that the principle underlying issue estoppel is:

"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."

1. Where the same issue as one that was determined previously in proceedings between the same parties is sought to be raised in new proceedings, an issue estoppel arises to prevent it from being relitigated between them. They are each bound by the earlier determination of the issue. In deciding whether an issue has been previously determined one can look at the earlier judgements, reasons, and the records of a hearing, when deciding whether the issues are identical: Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 607.
2. Whether or not issue estoppel applies to determinations of the Tribunal, made when exercising its administrative review jurisdiction under both the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) and the GIPA Act, is subject to debate. For example, in Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595; [2008] AATA 558 at [99]- [100], Deputy President Fogie concluded that issue estoppel does not apply in proceedings before an administrative tribunal, positing that generally:

"... It stands as the determination of the entitlements and obligations and rights and duties of the parties in relation to the issues that are the subject of that decision made against a particular statutory framework. Given the statutory limits on the tribunal's power, it can decide no wider issues.

... This means that when the tribunal is faced with a submission that it is prevented from reviewing a decision because it has already done so, it must analyse the earlier decision and the decision of which review is sought to determine whether it truly has done so. If it has done so, its power is exhausted because it can only exercise the power once before it is exhausted. This approach seems to me to have been at the heart of the judgments by the Full Court of the Federal Court ... It is an approach that does not need to have regard to the principles of res judicata or cause of action estoppel, Anshun estoppel or issue estoppel. It is an approach that analyses the nature of the decision and looks to whether the tribunal has considered that decision, as distinct from the issue that was the subject of the decision, at an earlier time."

1. Whether issue estoppel applies in the Tribunal at all raises a question of law concerning the nature of Tribunal proceedings. It may, with sufficient precision and an undisputed factual basis to ensure the question is not arid, constitute a question of law that arises on the appeal. Here, the question is sufficiently precise because it concerns whether issue estoppel cannot arise because of the application of the GIPA Act.
2. We are satisfied that issue estoppel does not arise because s 60(1)(b) of the GIPA Act contains a provision which is inconsistent with the application of the principles of issue estoppel. Section 60(1)(b) provides:

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) -

...

(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application ...

1. An agency cannot refuse to deal with an access application on the basis that it has already decided an application for access to the same information (or substantially the same information), where there are reasonable grounds for believing that the agency would make a different decision on the new application. Thus, where there has been a previous decision to deny access to information and a fresh access application is made for the same, or substantially the same, information, the decision maker is required to be satisfied that there are "no reasonable grounds for believing that the agency would make a different decision" in order to refuse to deal with the access application, because it has already been decided.
2. The operation of s 60(1)(b) is inconsistent with that of issue estoppel. While both are concerned with the determination of the same issue (access to specified information) between the same parties, issue estoppel prevents the issue being revisited with the initial decision binding the parties. Section 60(1)(b), however, allows the issue to be revisited where there are reasonable grounds for believing that the agency would make a different decision on the new application. If there are no reasonable grounds, the agency may refuse to deal with the application on the basis of s 60 itself, not some broader notions of estoppel. Section 60(1)(b) applies in the context of repeat access applications by the same applicant for access to the same, or similar, information.
3. The Tribunal's conclusion at [123] that "the information sought in items 9 and 18 of the GIPA request were confidential in nature and that this gives rise to an issue estoppel in the current proceedings" was therefore an error on a question of law. The Tribunal misdirected itself or asked itself the wrong question.
4. The real question is whether there were reasonable grounds for believing the agency would make a different decision, which has not been answered. Ground 3 therefore succeeds.

Ground 4 to 6 - failing to consider core arguments and inadequacy of reasons

1. In GTK, an Appeal Panel considered the nature of the Tribunal's obligations when providing reasons voluntarily, rather than following a request for written reasons made under s 62(2) of the NCAT Act.
2. Section 62(3) specifies what a written statement of reasons should contain:

"(3) A written statement of reasons for the purposes of this section must set out the following -

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made."

"We consider that where, as here, the Tribunal voluntarily provides a written statement of reasons, then, that written statement of reasons should comply with (or at least be guided by) s 62(3) of the NCAT Act. Section 62(4), which also refers to a "written statement of reasons" being voluntarily provided and uses the same language as s 62(3), lends itself to such a result."

1. We adopt that approach here. It would be anomalous if reasons provided voluntarily by the Tribunal were not required to be of the same standard as those the Tribunal is obliged to provide following a request for written reasons under s 62(2). First, it might undermine a party's right to obtain a written statement of reasons that complies with s 62(3) were a member to voluntarily provide written reasons that do not comply with s 62(3), as it would be inappropriate to supplement those reasons later, if a request under s 62(2) was made. This is because the same principles that apply to oral reasons would apply in such a case. There is strong authority for the proposition that oral reasons may not be substantially changed for the purposes of providing a written statement of reasons: Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419 at [41]- [48], [53].
2. The weight of relevant case law, while cautious as to the application of s 62(3) to voluntarily provided reasons (because s 62 deals with requests for written reasons) has, we consider, evolved to a point where written reasons - voluntarily provided or not - should comply with the requirements of s 62(3): see GTK at [26]-[37]; Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36; Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [57] (Wright J); New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [55] (per Bell P).
3. The Appeal Panel in GTK, at [37]-[39], noted that a failure to provide adequate reasons may, but does not necessarily, give rise to a question of law, citing Wollondilly at [28]-[30]. A failure to consider "key evidence and submissions" many constitute a denial of procedural fairness or a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [23]-[25]. There the Court observed at [24] that:

"To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice."

1. The Tribunal's conclusions about the first issue for determination, in respect of legal professional privilege, is quoted in full at [69] above. There are also confidential paragraphs in the decision, at [84]-[94] which contain findings relevant to the issue of legal professional privilege, among others.
2. As the agency pointed out, the Tribunal's reasons with respect to legal professional privilege outline the parties' submissions. These include a brief summary of those from Mr Brazel relating to waiver, and an outline of those from the agency, including its submissions as to the applicable law. The reasons outline a variety of claims made by Mr Brazel in an effort to challenge previous findings of legal professional privilege, and the assertions and submissions made by the agency in response.
3. The Tribunal states its conclusions of fact, without detailing the evidence relied on or the reasoning behind its decisions. For example, Mr Brazel's case with respect to waiver is briefly outlined at [61]-[64] of the decision but without reference to the actual evidence relied on, and the agency's detailed response is summarised at [76]-[79]. The Tribunal then made findings (which it said were based on evidence) namely, that "the disputed information is properly protected by legal professional privilege" and that there was "no evidence before me that supports a finding that the respondent waived privilege". No reference is made to the specific evidence, or the resultant reasoning, which led the Tribunal to conclude that the information was subject to legal professional privilege. No reference, discussion or evaluation is made of the evidence and materials Mr Brazel relied on to argue that there had been waiver. It appears that the Tribunal accepted, in its entirety, the agency's view of the facts and the law. However, the Tribunal did not state that was the case or explain why it took that view. The Senior Member did not state her understanding of the applicable law. She summarised the agency's submissions as to the law and appears to have adopted them, without saying so. Further, as mentioned above, the topic of waiver by excessive use of legal services was not considered.
4. Despite the agency's submissions to the contrary, the same omissions are to be found in the Tribunal's confidential findings and conclusions, insofar as they relate to information being subject to legal professional privilege.
5. Forming the same view as a party's view of the facts and applicable law is a course open to a Tribunal in determining proceedings. When doing so, a Tribunal is obliged to explain why it has decided in accordance with a party's contentions, when making findings of fact, and to express its own understanding of the applicable law. That explanation may consist of the Tribunal deciding in accordance with a party's analysis of the applicable law and explaining why; and why it rejects contrary contentions of law advanced by the other party. In Mr Brazel's case, with respect to legal professional privilege, the Tribunal embraced the agency's analysis without explanation.
6. Ground 4 is therefore made out. The Tribunal failed to engage with the applicable evidence and articulate the factual and legal conclusions it reached on a core issue before it.
7. In contrast, this is not the case with other aspects of the Tribunal's decision where it sufficiently outlined the evidence, explained its findings by reference to the evidence and set out its understanding of the law, when applying the law to the facts. This is the case with respect to the Tribunal's conclusion that as a result of amendments to the GIPA Act the information contained in excess of 600 strata documents is no longer government information for the purposes of the GIPA Act as it involves information that was unsolicited and not relevant to its business or function: cl 12(4) of Sch 4 to the GIPA Act. We note that there was no dispute that the documents were strata documents.

1. In his submissions, Mr Brazel argued that the Tribunal had failed to explain why it would not review another Member's decision. As we have already discussed with respect to the confidentiality issue (issue 3), the Tribunal wrongly found, at [123]-[124], that the previous decisions regarding confidentiality gave rise to an issue estoppel.
2. The Tribunal did go on to consider whether the agency had properly refused to deal with issue 3 under s 60(1)(b): see [126]-[127]. The Senior Member found that the agency had previously decided an application for access to the same information and that "there are no reasonable grounds for believing that it would make a different decision in this application".
3. There are a number of difficulties with the Tribunal's decision with respect to s 60(1)(b). They are:

(1) The evidence relied on by Mr Brazel to support his argument that there were reasonable grounds for believing that the agency would make a different decision with this application was not referred to, other than by the most general of descriptions, in the decision. This consisted of material which Mr Brazel claimed demonstrated that evidence given to the Montgomery hearing was untrue, together with evidence that the confidential information had been disclosed.

(2) The Tribunal did not make any findings of fact with respect to the reasonable grounds relied on by Mr Brazel.

(3) The Tribunal's reasoning for reaching the conclusion that there were no reasonable grounds for believing the agency would make a different decision was not exposed.

1. Section 60(1)(b) of the GIPA Act is an example of statutory authority that enables a subsequent decision maker to go behind an earlier decision, in relation to access to information, where there are "reasonable grounds for believing that the agency would make a different decision on the application".
2. The Tribunal did not engage meaningfully with the question of whether there were reasonable grounds to conclude that a different decision might be reached. There is no reasoned, rational discussion of Mr Brazel's claim in the decision. The Tribunal simply failed to engage in a substantive manner with this issue.
3. The agency submitted that the Tribunal's reasons were adequate. It emphasised that the Tribunal was alive to and discussed the previous applications to the Tribunal relating to the same information. This is correct. The agency then argued that there was no evidence relied on by Mr Brazel which would "undermine the findings in the earlier proceedings that the responses were confidential". However, that does not obviate the need for a Tribunal to expose its reasons.
4. The agency also submitted that if the reasons are inadequate, it does not follow that an appealable error has occurred. Relying on Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444, the agency submitted that the reasons are not so inadequate that a miscarriage of justice has occurred, and that Mr Brazel has not suffered any prejudice. In support of this the agency said that the only conclusion open to the Tribunal was the one it reached.
5. It is accepted that an Appeal Panel would not allow an appeal, even on an error on a question of law, where there is no prospect of a different result: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145; FYH at [43]. Nevertheless, given our earlier finding that Mr Brazel is entitled to a rehearing because the Tribunal denied him procedural fairness denying him the opportunity to put his case, it is not necessary to decide whether we would allow the appeal on this basis alone and hence there is no need to decide this issue.
6. The Tribunal's reasons for decision are inadequate for the reasons we have stated.

1. Ground 6 goes to the adequacy of the Tribunal's reasons in finding reasonable grounds for believing the agency would not make a different decision under s 60(1)(b) of the GIPA Act. The Tribunal decided, at [123], that "the information sought in items 9 and 18 of the GIPA request were confidential in nature and that this gives rise to an issue estoppel in the current proceedings". Those reasons are clear and plainly stated. There is no failure to properly explain.
2. Ground 6 therefore fails. Whether that reasoning is correct was the subject of our finding above in relation to Ground 3.

1. Grounds 2, 3, 4 and 5 have succeeded. The appeal will therefore be allowed.
2. Considering the outcome of Ground 2, in which we have found that there was a material denial of procedural fairness, we have concluded that the matter must be reheard.
3. The agency submitted that, if we decide that the matter should be reheard, in the unique circumstances of this case (being the sixth set of proceedings), we should redetermine the application ourselves. Mr Brazel did not oppose this course.
4. In accordance with s 80(3) of the NCAT we have decided to determine Mr Brazel's application to the Tribunal by way of a new hearing on the basis of the evidence that was before the Tribunal below and the submissions made to us in hearing the appeal over a day and a half, in which the issues were fully traversed. The grounds of appeal warrant such a course, as they concern a breakdown of the hearing process, and we consider this to be the best way to facilitate the just, quick and cheap resolution of the real issues in the proceedings, as required by the Tribunal's guiding principle: NCAT Act, s 36.

Determination of Mr Brazel's application for administrative review

1. Section 63 of the ADR Act provides that in determining an application for administrative review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419.
2. For the purposes of our consideration of whether or not there are reasonable grounds for believing that the agency would make a different decision on the access application, we propose to divide the disputed information into the following groups:

(1) Prohibited information: information which was the subject of confidential evidence given in previous hearings of the Tribunal, or given to the Tribunal on a confidential basis, in respect of which disclosure to Mr Brazel is prohibited by an order made under s 64 of the NCAT Act (prohibited information). Such information is subject to a conclusive overriding public interest against disclosure pursuant to cl 4 of Sch 1 to the GIPA Act, which provides:

It is to be conclusively presumed that there is an overriding public interest against disclosure of information the public disclosure of which would, but for any immunity of the Crown -

...

(b) contravene any order or direction of a person or body having power to receive evidence on oath ...

(2) Privileged information: information which the agency claims is subject to legal professional privilege under the provisions of the Evidence Act (privileged information) and, as such, is subject to a conclusive overriding public interest against disclosure pursuant to cl 5 of Sch 1 to the GIPA Act, which provides:

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

(3) Previously refused information: information that has been the subject of a previous access application, to which access has been refused (previously refused information). The documents that the agency says meet this description are those numbered items 9, 17 and 18.

1. The prohibited information has been provided to the Appeal Panel on a confidential basis and is the subject of a confidentiality order we made on 6 June 2025.
2. The contested documents that meet this description in their entirety are those numbered 7, 8 and 37. In addition, document 6 contains prohibited information which has been redacted, with the unredacted parts released to Mr Brazel.
3. Documents 7 and 8 are confidential documents that were tendered in confidential evidence before the Montgomery hearing. They are the subject of the confidentiality order made by Senior Member Montgomery in that hearing. Document 37 is a transcript of the confidential hearing held by Senior Member Montgomery in that matter in order to comply with the requirements of s 107 of the GIPA Act. That section requires the Tribunal to hear evidence in the absence of the public and the applicant (i.e. Mr Brazel), "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".
4. Those documents were before the Montgomery appeal on a confidential basis and are the subject of the wider orders that the Appeal Panel made under s 64, which restricts disclosure to persons other than the agency, its legal representative or the Appeal Panel. All the documents were also before the subsequent hearing before Senior Member Ransome, and the Ransome appeal, on a confidential basis, in each of which further orders were made under s 64.
5. The documents were again provided to the Tribunal at first instance on a confidential basis and to us on appeal. We too made a non-disclosure order under s 64 on 6 June 2025.
6. There can be no doubt that documents 7, 8 and 37 are the subject of non-disclosure orders of this Tribunal. If released under the GIPA Act those orders would be contravened.
7. Document 6 is an index of a brief to counsel prepared by the external solicitors from which descriptions of the "disputed documents" have been deleted. On page 2, descriptions of other relevant documents have also been redacted. The release of the redacted information by the agency to Mr Brazel would disclose the information protected by the non-disclosure orders traversed above. We therefore conclude that it is protected information, which is the subject of a conclusive overriding public interest against disclosure under cl 4 of Sch 1 to the GIPA Act. Disclosure to Mr Brazel would disclose evidence protected by the non-disclosure orders.

1. In considering Mr Brazel's current access application seeking access to documents 6, 7, 8 and 37 we are satisfied that there is a conclusive, overriding public interest against disclosure of those documents under cl 4 of Sch 1 to the GIPA Act, because of the orders made under s 64 of the NCAT Act. No application has been made to the Tribunal to vary or revoke any of the orders made under s 64. They remain in force.
2. While those orders remain in force, irrespective of the merits of any other argument that the information in those documents should be disclosed under the GIPA Act, there are no reasonable grounds for believing that the agency would make a different decision about access to those documents, because they are the subject of a conclusive overriding public interest against disclosure under cl 4 of Sch 1 to the GIPA Act.
3. Consequently, the correct and preferable decision with respect to documents 6, 7, 8 and 37 is to refuse to deal with the application under s 60(1)(b) of the GIPA Act because there are no reasonable grounds for believing that the agency would make a different decision to that previously made, due to the information being protected by non-disclosure orders.
4. This accords with the Tribunal's decision with respect to document 37.
5. In relation to documents 6, 7 and 8, however, the Tribunal found that a conclusive overriding public interest against disclosure of those documents arose under cl 5 of Sch 1 to the GIPA Act (legal professional privilege). We think the correct and preferable decision is to refuse to deal with the access application under s 60(1)(b) because documents 6, 7, 8 are the subject of a conclusive overriding public interest against disclosure under cl 4 of Sch 1 of the GIPA Act. No reasonable argument can be made that cl 4 should not apply to these documents.

1. The documents that the agency says contain information that meets this description are those numbered 4, 5, 6 and 9.
2. Because we have found that the agency was correct to refuse to deal with Mr Brazel's access application, insofar as it relates to document 6, there is no need to consider Mr Brazel's submissions on legal professional privilege with regard to that document. If the information it contains is not privileged, disclosure will still be prohibited by the conclusive overriding public interest against disclosure under cl 4 of Sch 1 to the GIPA Act. Therefore, there can be no reasonable grounds for believing that the agency would make a different decision about access to them under s 60(1)(b).
3. Despite this, what is said below applies equally to document 6.

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

1. The parties have approached the question of whether the information is privileged on the basis that the issue is whether it is privileged under Division 1 of Part 3.10 of the Evidence Act. We adopt that assumption: it is consistent with the discussion in McNeill at [113]-[117]. In that case, the Appeal Panel explained at [119] that:

"The elements of the s 118 'advice privilege' require there to be:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one of more of the lawyers, providing legal advice to the client."

1. Section 117 of the Evidence Act contains definitions of "client", "confidential communication", "confidential document" and "lawyer". There is no definition of dominant purpose.
2. The decided authorities show that a "dominant purpose" is one that predominates over other purposes; it is the prevailing or paramount purpose: Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247 at [30]; AWB v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; [2004] FCAFC 122 at [35]; AWB v Cole (No 5) [2006] FCA 1234 at [44] and McNeill at [121].

1. The privileged information that the agency says is the subject of a conclusive overriding public interest against disclosure has been redacted from documents 4, 5 and 9, with Mr Brazel being given access to what remains.
2. Document 4 contains a series of three emails marked confidential between Ms Stephanie Barnes, Legal Counsel at the agency, and representatives of external solicitors engaged in advising the agency with respect to the GIPA application by Mr Brazel. They are dated 7, 14 and 15 January 2020, all before the Montgomery hearing. The last email included an attached copy of an IPC Review Report with respect to that access application. Document 4 includes a copy of that report which was disclosed to Mr Brazel in full. The content of the emails has not been disclosed, although the dates, subjects of and parties to the emails have been disclosed to him. Section 107 of the GIPA Act forbids us from disclosing the information in the document to Mr Brazel or the public. Without doing so, we can say that the emails show the agency providing information to and seeking advice from external solicitors.
3. Document 5 is another confidential email chain of three emails between Ms Barnes and the external solicitors and vice versa (with copies to relevant officers within the agency) dated 7, 14, and 20 January 2020. These emails show the agency providing information to and seeking and receiving advice from external solicitors, who are representing the agency with respect to the proceedings commenced by Mr Brazel.
4. Document 9 is a confidential chain of emails dated between Ms Barnes and the external solicitors and vice versa (with copies to relevant officers within the agency) dated 7, 14, 15, and 20 January 2020. There are a number of attachments, one of which has been redacted in its entirety. Having read these materials we are satisfied that the emails show the agency providing information to and seeking and receiving legal advice from external solicitors. Those solicitors are representing the agency with respect to the proceedings commenced by Mr Brazel. The emails relate to providing confidential documentation and advice in preparation for a forthcoming hearing
5. Aside from the documents themselves, the evidence before the Tribunal (from the open affidavit of Ms Mara) stated:

(1) That the documents created by the agency and its external lawyers were generated in the course of legal proceedings relating to Mr Brazel seeking access to information. They were made in the context of a lawyer client relationship.

(2) Ms Mara's understanding that:

(a) the documents were found among the records of the agency's in-house legal team and were marked confidential and only accessible by them; and

(b) they were at all times treated as confidential and access limited to staff involved in the proceedings.

(c) they were created for the purpose of giving or receiving legal advice.

(d) the agency has made a decision not to waive privilege in the documents.

1. A reading of the documents over which legal professional privilege is claimed reveals that they are confidential communications made between officers of the agency (as client) and external solicitors seeking advice regarding, and representation in, proceedings brought against the agency by Mr Brazel seeking a review of a decision made by the agency under the GIPA Act. That is their dominant purpose. Ms Mara's evidence is consistent with this.
2. As a result, we are satisfied that documents 4, 5 and 9 (and 6 if necessary) are protected by legal professional privilege.

1. Mr Brazel has made a series of submissions by which he seeks to demonstrate that the agency has waived legal professional privilege. That waiver must be with respect to the information in those documents. Such is the case here, where the real issue is whether the privilege has been lost.
2. Mr Brazel's submissions on waiver included a series of claims and allegations that are not relevant to a consideration of whether the documents, over which legal professional privilege is claimed, are indeed privileged. These are:

(1) A claim that the agency did not conduct consultation under s 54 as required by the GIPA Act.

(2) A claim that the contents of the s 54 responses were disclosed by persons other than the agency.

1. These are not relevant because they have no bearing on whether legal professional privilege relating to the documents in issue has been waived by the agency.
2. Privilege may be lost in the circumstances set out in ss 122 to 127 of the Evidence Act.
3. Relevantly, s 122(3) provides for privilege to be waived in certain circumstances where "the substance of the evidence" in issue has been disclosed by, or with the consent of, the client (i.e. the agency).
4. Here Mr Brazel claims that the agency disclosed its legal advice in the Montgomery hearing in its affidavits relied on in that hearing. In doing so, Mr Brazel relies on the decision of Loielo v Giles [2020] VSC 619 (Loielo), a case in which, prior to hearing, a party was held to have disclosed the substance of legal advice given to her before she made a decision being challenged under the Charter of Human Rights and Responsibilities Act 2006 (Vic). At [18], Ginnane J held:

"In stating that she considered assessments of the Legal Services Branch and stating the substance of the assessments, she has acted in a way that is inconsistent with objecting to the adducing of the evidence of those legal assessments or advices within the meaning of s 122(2) of the Evidence Act 2008."

1. This is an example of waiver based on the substance of legal advice being disclosed.
2. Here, Mr Brazel relies on evidence relating to the large amount of work done by external solicitors and counsel in preparing and settling affidavits and submissions to be used in the Montgomery hearing, as evidence of waiver of legal privilege with respect to those proceedings. That evidence is to be found in the detailed invoices from the external solicitors to the agency obtained by Mr Brazel, which specify the hours of professional work charged and he nature of the work done. The hours are considerable.
3. Mr Brazel relies on this evidence to draw an inference that the agency's decision was not its own but was taken over and subsumed by the legal advice, which was then disclosed when incorporated in the agency's evidence. We are not satisfied that the parallel between Loielo and the current situation is made out. Loielo is concerned with disclosure and Mr Brazel is concerned with legal advisers usurping the decision maker's functions.
4. This is an inference that we are not prepared to draw. It relies on a misunderstanding of the role of legal practitioners in preparing for a hearing. There is nothing unusual about a client and witnesses conferring with solicitors and counsel to draw and settle affidavits. Those facts are not indicative of the agency's evidence disclosing its legal advice as submitted by Mr Brazel. Contrary to Mr Brazel's submissions, the evidence he relies on is insufficient to raise even a hint of waiver, which the agency would then be required to negate when discharging its onus to prove the decision justified under s 105(1) of the GIPA Act. While Mr Brazel questions the many hours of work involved, they are not determinative of waiver and can likely be explained by the complications created by him revisiting matters already determined, adversely to him, in his continuing engagement with the agency.
5. We are satisfied that legal professional privilege has not been waived under s 122(3) of the Evidence Act.
6. Next, Mr Brazel alleges that the agency has lost client legal privilege because the documents the agency claims are privileged were made in the furtherance of the commission of an offence: s 125(1)(a) of the Evidence Act. The offence he points to is that found in s 120 of the GIPA Act which provides that:

120 Offence of concealing or destroying government information

A person who destroys, conceals or alters any record of government information for the purpose of preventing the disclosure of the information as authorised or required by or under this Act is guilty of an offence.

Maximum penalty - 100 penalty units.

1. Mr Brazel has produced no evidence of any person destroying, concealing or altering government information. The details he provides in submissions all relate to claims that the s 54 responses were not confidential and that the agency knew that to be so. If there was substance to those allegations, the offence under s 116 of making a "decision in relation to an access application that the officer knows to be contrary to the requirements" of the GIPA Act would appear more apposite. In any case, the s 54 responses are not the subject of the legal professional privilege claim.
2. For the reasons given we are satisfied that the privileged documents are subject to legal professional privilege which has not been waived.

1. As a consequence, we are satisfied that the correct and preferable decision is to refuse access to documents 4, 5 and 9 as they are subject to a conclusive overriding public interest against disclosure under cl 5 of Sch 1 to the GIPA Act. Access to them should be refused accordingly.
2. This accords with the conclusion reached by the Tribunal below.

1. These are documents requested by Mr Brazel at items 9, 17 and 18 of Mr Brazel's access application.

1. Item 9 sought "Complete unredacted GIPA 9177 & 9255 submissions. SW GIPA may reasonably revisit the question". This information is the subject of the confidentiality orders made by Tribunal in each of its previous hearings or is substantially the same as that information. For the reasons given above it is therefore the subject of a conclusive overriding public interest against disclosure under cl 4 of Sch 1 to the GIPA Act.
2. The correct and preferable decision with respect to information responsive to item 9 is to refuse to deal with the application under s 60(1)(b) of the GIPA Act, because there are no reasonable grounds for believing that the agency would make a different decision to that previously made, due to the information being protected by non-disclosure orders.
3. This accords with the conclusion reached by the Tribunal below with respect to item 17.

"The 600+ Strata documents identified as relating to Strata [XXX]. These were located in a previous search using the GIPA 1977 search criteria."

1. This is information relating to the OC which was obtained by an employee of the agency in his private capacity and stored in the agency's systems. It has been the subject of an earlier decision which included a refusal to deal with the application because dealing with the application would require an unreasonable and substantial diversion of the agency's resources: GIPA Act, s 60(1)(a).
2. However, on 28 November 2018, the definition of government information in cl 12 of Sch 4 to the GIPA Act was amended by the Government Information (Public Access) Amendment Act 2018 (NSW). Clause 12(4) was introduced. It provided:

(4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency.

1. As a result, information which was not solicited by the agency and is not relevant to the agency's business functions - such as the records of the strata referred to in [213] above - are not government records. This was the case when Mr Brazel made his current access application. It is therefore the law we are required to apply when making the correct and preferable decision: Cavaleri v Director General, Department of Trade and Investment, Regional Infrastructure and Services [2014] NSWCATAP 13 at [56]; Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 445; [1992] HCA 20.
2. As a result, information responsive to item 17 is not government information and the agency cannot deal with it under the GIPA Act. Neither can we on reconsideration. This conclusion accords with that reached by the Tribunal although our reasons differ.

"Complete unredacted submissions made for GIPA matters 9177, 9255, 9527, 9412. Since SW made it's decision, new evidence has been released by yourself."

1. The resemblance to item 9 is to be noted, with the addition of two further access applications which have been previously dealt with. The complete unredacted submissions are those which are the subject of the non-disclosure orders made in the Montgomery and Ransome decisions and by subsequent Tribunals. They have been the subject of repeated, failed access applications made by Mr Brazel, all at a significant cost to the public. Those unredacted submissions were the subject of confidential evidence to the Montgomery and Ransome hearings, and all subsequent Tribunal proceedings between Mr Brazel and the agency.
2. Item 18 seeks access to information that is the subject of a conclusive overriding public interest against disclosure under cl 4 of Sch 1 to the GIPA Act. The correct and preferable decision with respect to information responsive to it is to refuse to deal with the application under s 60(1)(b) of the GIPA Act, because there are no reasonable grounds for believing that the agency would make a different decision to that previously made due to the information being protected by non-disclosure orders.

1. The agency has charged Mr Brazel a processing charge of $1,845.00 with respect to access application SYW-000192. Ms Rana's open affidavit explains in detail the work done by the agency with respect to the access application and sets out how the charge was calculated. Her evidence in this regard is unchallenged. We accept it and conclude that the charges as reasonable.
2. Section 64 of the GIPA Act provides:

64 Processing charge for dealing with access application

(1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.

Note.

The decision to impose a processing charge is reviewable under Part 5.

(2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in -

(a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or

(b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).

(3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.

(4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.

(5) A processing charge must not be discounted under section 65 or 66 by more than 50% even if both sections apply.

1. Section 66(1) of the GIPA Act allows a discount to be applied if the agency is satisfied that "the information applied for is of special benefit to the public generally". Under sub-s (3), the Information Commissioner has issued Information Access Guideline 2 - Discounted Processing Charges (updated March 2023). That Guideline provides that "the information applied for" needs to be considered when deciding whether an access application is of "special benefit to the public". To be of special benefit to the public, the benefit must be "something which is different from the ordinary or usual": Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93 at [22].
2. In the present case, the agency refused a reduction in the processing charge. Section 105(3) provides that in such circumstances "the burden of establishing that there is an entitlement to the reduction lies on the applicant for review."
3. Mr Brazel submitted that his access application would reveal information that would expose poor decision making, and misconduct, on the part of the agency with respect to his earlier access applications. It would therefore be of special benefit to the public.
4. We have refused to deal with most of the information sought on the basis that access to it has already been decided and there is no reasonable prospect of that decision changing. Access to the remaining information has been refused on the basis that it is subject to a conclusive overriding public interest against disclosure on the basis of legal professional privilege. Because access has been refused, Mr Brazel's access application will not reveal information of special benefit to the public.
5. Further, we are not satisfied that the information applied for by Mr Brazel is of special benefit to the public. It is relevant only to him. The fact that the legislation provides that all the information Mr Brazel sought is subject to a conclusive overriding public interest against disclosure reinforces that conclusion.
6. On reconsideration, we affirm the agency's decision to require Mr Brazel to pay a processing charge of $1,845.00.

1. In his miscellaneous application filed 22 May 2025, Mr Brazel asked the Appeal Panel to require the agency to prove it has not disclosed the confidential information protected by the disclosure orders on appeal. There is no secret that this information is personal information relating to a person who made s 54 responses to the agency in Mr Brazel's original GIPA requests.
2. Because that information is protected by non-disclosure orders and is subject to a conclusive overriding public interest against disclosure, we will not accede to the application. The miscellaneous application filed by Mr Brazel on 22 May 2025 will be dismissed accordingly.

(1) The appellant's miscellaneous application filed on 22 May 2025 is dismissed.

(2) Time is extended to allow the notice of appeal to be filed by 18 February 2025.

(3) Appeal allowed.

(4) The decision made by the Tribunal on 14 January 2025 is set aside.

(5) In lieu thereof, the Appeal Panel makes the following orders on determining the administrative review of Sydney Water Corporation's decision made on 31 October 2023, as modified on 14 November 2023:

(a) The decision is varied in part so that, insofar as it relates to documents 6, 7, 8, 37, and to items 9 and 18 of the access application itself, the agency refuses to deal with the application under s 60(1)(b) of the Government Information (Public Access) Act 2009 (NSW).

(b) The decision is otherwise affirmed.

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.