Coleman v Medical Council of NSW

The GIPA Act

1. The relevant provisions of the GIPA Act are as follows. Section 5 contains a presumption in favour of the disclosure of government information, unless there is an "overriding public interest against disclosure". Subsection 9(1) gives every person seeking access under the Act a legally enforceable right to be provided with the information sought in accordance with Part 4 of the Act unless there is "an overriding public interest against disclosure of the information".
2. The test for determining whether there is an overriding public interest against disclosure is set out in s 13 of the GIPA Act. That section provides: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
3. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information.
4. The public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act. Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to an overriding public interest consideration against disclosure. Subsection 14(2) provides that the public interest considerations listed in the Table to the section are the only other public interest considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure. The Table lists considerations relating to responsible and effective government (cl 1 (a)-(h)), law enforcement and security (cl 2(a)-(h)), individual rights, judicial processes and natural justice (cl 3(a)-(g)), business interests of agencies and other persons (cl 4(a)-(e)), environment, culture, economy and general matters (cl 5(a)-(e)), secrecy provisions (cl 6(1), (2)), and exempt documents under interstate Freedom of Information legislation (cl 7(1)-(3)).
5. Clauses 1 and 6 of Schedule 1 provide: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 1 Overriding secrecy laws (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence: … Health Care Complaints Act 1993 … 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
6. The relevant secrecy provision in the Health Care Complaints Act 1993 (NSW) is section 99A, which provides: 99A Offence: improper disclosure of information (1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made: (a) with the consent of the person to whom the information relates, or (b) in connection with the execution and administration of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) with other lawful excuse, the person is guilty of an offence. Maximum penalty: 10 penalty units or imprisonment for 6 months, or both. …
7. Section 99B of the Health Care Complaints Act 1993 sets out the circumstances in which a disclosure of information can be made.
8. "Excluded information" is defined in cl 1 of the Dictionary in Sch 4 of the GIPA Act to mean information that relates to a function of an agency specified in Sch 2 to the Act. The Health Care Complaints Commission (HCCC) is an agency included in Sch 2 in the following terms: Schedule 2 Excluded information of particular agencies Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. … 2 Complaints handling and investigative information … The Health Care Complaints Commission - complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint).
9. The applicant applied to the Tribunal under s 100 of the GIPA Act as a person aggrieved by the decision of the Council to release documents to the access applicant. As the decision under review is a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant: s 105(2) GIPA Act.

The Tribunal proceedings

1. The decision to release information was stayed on 2 October 2018 pending further order of the Tribunal. The Tribunal directed that the Council notify the access applicant of the right conferred under s 104(3) of the GIPA Act to "appear and be heard" in the proceedings. The access applicant has not participated in the proceedings.
2. The matter was listed for directions on 4 December 2018. The applicant did not appear on that occasion, and the matter was adjourned for directions on 15 January 2019. On that occasion directions were made for the parties to file and serve evidence and submissions, and the matter was listed for further directions on 26 March 2019. The Council requested an extension of time, and the directions of 15 January 2019 were varied by consent. On 26 March 2019 the parties advised the Tribunal that they had reached a consent position that none of the documents were to be provided to the access applicant. The Tribunal directed the Council to notify the access applicant of the proposed consent orders, and for the parties to provide submissions on the proposed consent orders.
3. On 11 April 2019 the applicant advised the Tribunal that he was seeking his costs of the application, and requested a variation of the timetable. Directions were made for the parties to provide submissions on the question of costs including submissions as to whether an oral hearing on costs is required.

Whether a hearing on costs can be dispensed with

1. The Council did not object to the question of costs being determined on the papers; the applicant made no submissions in opposition to that course. The Tribunal is satisfied that the issues can be adequately determined by considering the written submissions received from the parties, and that the parties would be put to unnecessary expense if a hearing on costs were held.
2. An order under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a hearing has accordingly been made.

Whether an order for costs should be made

1. The general rule in relation to costs in the Tribunal is that unless special circumstances are established, the parties pay their own costs: s 60(1) of the NCAT Act. Subsection 60(3) lists the matters to which the Tribunal may have regard in determining whether there are special circumstances warranting an award of costs: (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.

Applicant's submissions

1. The applicant submits that the Council has conducted itself in a manner that unreasonably prolonged the time taken to complete the proceedings by more than a year. That submission is based on the contention that the Council, properly directing itself, could only ever have found that the information is information which ought not be released to the access applicant. The Council was on notice of the reasons why the information ought not be released from 18 September 2017 at the latest, however made two decisions to release the information to the access applicant (on 3 November 2017 and 20 March 2018) before finally capitulating on 20 March 2019. The applicant has since 18 September 2017 referred the Council to the decision in Whyte v Medical Council of NSW [2014] NSWCATAD 190, in which the Council was a party. In that decision the Tribunal found that the information was "excluded information" under cl 2 Sch 2 to the GIPA Act and there was a conclusive presumption of an overriding public interest against disclosure. The applicant submits that the Council has consistently failed to engage with the real issues in the proceedings, and unreasonably prolonged the time taken to conclude the proceedings, causing the applicant to incur legal expenses unnecessarily.
2. The applicant submits that the Council as a statutory body established under s 41B of the Health Practitioner Regulation National Law (NSW) (the National Law) is a model litigant subject to the Department of Premier and Cabinet Model Litigant Policy for Civil Litigation and accordingly obliged to deal with claims promptly and without causing unreasonable delay. In addition to its role in Whyte the Council was also a party to the subsequent decision in Yee v Medical Council of New South Wales [2017] NSWCATAD 370. Neither of the decisions of 3 November 2017 or 20 March 2018 applied those decisions correctly. The Council declined to re-determine its decision after the IPC finding that there was a conclusive presumption against disclosure, citing Whyte in support of its findings. The Council advised its change of position on 20 March 2019, stating that "this matter is more complex than originally conceived"; however the matter was no more complex in March 2019 than in September 2017.
3. The applicant submits that in failing to consider properly the real issues in the proceedings, the Council failed to uphold its obligations as a model litigant and unreasonably prolonged the conclusion of the proceedings by over 18 months, and the applicant has incurred $9,355.17 in legal fees and disbursements, incurred unnecessarily as a consequence of the Council's conduct.

Respondent's submissions

1. The Council submits that it has not unreasonably prolonged the proceedings, and at the earliest opportunity offered a settlement of the proceedings. Any grievance the applicant has about the conduct of internal reviews is outside the Tribunal's jurisdiction. The applicant has failed to demonstrate that the respondent has breached the Model Litigant Policy, or to meet the onus of demonstrating that there is anything exceptional or out of the ordinary such that a costs order is warranted.
2. The respondent submits that in making each decision its officers properly exercised their discretion and in any event any grievance arising from the handling of the earlier decisions is not a matter within the Tribunal's jurisdiction. The respondent obtained legal advice when the applicant commenced the present proceedings, and the matter was more complex than understood by the original decision-makers and the internal reviewers. The complexity arises in the extension of the current case law in relation to information held by the Council. It would be entirely proper for the Council to press the matter to a hearing to test the point, however in the spirit of facilitating a quick resolution of proceedings the respondent offered to settle the proceedings.
3. The respondent submits that the applicant was at all times entitled to seek external review after the first decision was made, and was not required to seek external review through the IPC. It was the applicant's choice which led to the decision of 20 March 2018, and any administrative or procedural delay in having the matter resolved in his favour was wholly within the applicant's control. Further, the applicant failed to appear at the listing on 4 December 2018, which contributed to a delay in the proceedings.
4. The respondent submits that the decision in Whyte can be distinguished: much of the information the subject of the present proceedings would not fall within the narrow definition of "excluded information", as some predates the creation of the HCCC, and some concerns materials generated in respect to action taken under s 150 of the National Law. At most, the decision in Whyte could have been the subject of submissions by the applicant had the matter gone to a hearing.
5. Further, the Council submits that any costs order could not include costs incurred in seeking internal review, as costs incurred before the commencement of the proceedings does not fall within the scope of an order for costs within the meaning of s 60 of the NCAT Act.

Discussion and findings

1. Section 60(1) of the NCAT Act provides that each party is to bear its own costs. Section 60(2) provides the Tribunal with a discretion to award costs if it is satisfied that there are special circumstances warranting such an order. In deciding whether there are special circumstances, the Tribunal may have regard to the factors in s 60(3), which are as follows: (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
2. As defined in s 60(5) of the NCAT Act, costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
3. Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
4. As a general proposition, the term "proceedings" as used in s 60 refers to the process set in motion, or commenced, by lodging an application or notice of appeal, and that process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [37]. The proceedings in which this application for an award of costs is made, and thus the focus of consideration as to whether there are special circumstances warranting such an order, are the proceedings commenced when the applicant lodged his application for administrative review on 21 September 2018.

The authorities

1. The applicant's position that the Council unreasonably prolonged the proceedings relies on the contention that as a party to the proceedings in Whyte and Yee it should have been clear from the outset that there was no place for a balancing of competing public interests, and that the reason for the present proceedings was because neither of the Council's internal review decision makers were aware of the relevant authorities or else failed to apply them consistently in their determinations.
2. That contention requires consideration of the decisions in Whyte and Yee.
3. Whyte was an application for review of a decision by the Council to refuse access to the written response of a medical practitioner to a formal complaint the applicant had made about his treatment of her. The complaint had been made to the Council and to the HCCC, and on receiving the response from the medical practitioner, the Council and the HCCC decided to refer the complaint for direct resolution. The applicant was informed about the outcome of the complaint and that the HCCC had not authorised the release of the response. The Council refused to grant access when the applicant requested access under the GIPA Act, arguing that there was a conclusive overriding public interest against disclosure of the information in the response, by virtue of cl 1(1) and 6 of Schedule 1, and in the Tribunal argued that the access request was not a valid request by reason of s 43(2) of the GIPA Act.
4. Senior Member Higgins considered the practitioner's response to the complaint in the following terms: 27. In regard to the relevant facts, there is no question that Dr Hartnell's response was provided to the HCCC in the course of its complaint handling function under Part 2 of the Health Care Complaints Act 1993. Where a complaint is made to the HCCC, Division 2 of Part 2 of that Act requires the HCCC to liaise with the relevant health professional council in regard to how that complaint is to be dealt with and resolved. In this case the relevant health professional council was the respondent and on the material before the tribunal such consultation did occur in regard to the applicant's complaint about Dr Hartnell and the other two medical practitioners. 28. Excluded information Having regard to the circumstances in which Dr Hartnell's response came into existence, I am satisfied that the information in that response is excluded information under clause 2 of Schedule 2 of the GIPA Act. That is, it is information that relates to the complaint handling function of the HCCC and had the applicant sought access to that information from the HCCC her access request would have been an invalid request by reasons of subsection 43(2) of the GIPA Act. 29. The respondent contends that subsection 43(2) of the GIPA Act also applies to the applicant's access application that is the subject of this application. In this regard it argues that it is also a relevant agency for the purpose of clause 2 of Schedule 2 of the GIPA Act. I accept that the respondent is a co-regulator with the HCCC under the Health Care Complaints Act (see for example sections 4 and 20 of that Act). However, I do not accept that the relevant provision of clause 2 of Schedule 2 (i.e. the HCCC) of the GIPA Act can be construed to include the respondent as an agency for the purpose of that clause. The clause only refers to the HCCC as the applicable agency. However, the clause does make provision for any communications by the HCCC with the professional councils in regard to its complaint handling function etc. to be excluded information. As noted by the respondent, it is a professional council included in the meaning of this term in section 4 of the Health Care Complaints Act. But this does not make it an agency for the purpose of section 43 of the GIPA Act. For the reasons set out above, in my view on its proper construction clause 2 of Schedule 2 of the GIPA Act does not include the respondent or any other professional council established under the Health Practitioner Regulation National Law (NSW) No 86a and the Health Practitioner Regulation (Adoption of National Law) Act 2009. 30. However, by reason of clause 6 of Schedule 1 of the GIPA Act there remains a conclusively presumed overriding public interest against the disclosure of Dr Hartnell's response, subject to the agency from whom the information is sought (in this case the respondent) asking the HCCC whether it consents to the agency disclosing the information.
5. Senior Member Higgins considered the communications between the HCCC and the Council, and concluded that the Council had met the statutory requirement of cl 6(2), and that accordingly there was a conclusively presumed overriding public interest consideration against disclosure. Section 99A(1) of the Health Care Complaints Act applied to the Council to the extent of any disclosure of information obtained in the exercise of a function under that Act: the Council obtained the response in the course of its consultation role under the Health Care Complaints Act when dealing with the applicant's complaint, and the overriding secrecy provision in that Act applied to the information in the response.
6. Yee was also an application for review of the Council's decision to refuse access under the GIPA Act to a medical practitioner's responses to a complaint. The complaint was made to the HCCC, and the practitioner and his lawyer responded to the HCCC notification to them of the complaint. The HCCC discussed the complaint with the Council, and determined to refer it to the Council under s 25B of the Health Care Complaints Act to consider what action if any should be taken on the basis that it did not warrant an investigation by the HCCC. The Council advised the practitioner of the referral and invited confidential submissions, and the practitioner responded. A conduct interview was held, following which the Council advised the practitioner and the access applicant that no further action would be taken. The Council identified 4 documents that fell within the access request, two being the responses of the practitioner and his lawyer to the HCCC, the third being the lawyer's response to the Council, and the fourth being a report of the Council interview.
7. Senior Member Molony summarised the relevant provisions applying to handling of complaints about medical practitioners, noting that the Health Care Complaints Act and the National Law provide for a form of co-regulation by the HCCC and the Council: 25. Part 2 of the HCC Act provides that the HCCC is responsible for the assessment of complaints about health service providers, which includes registered medical practitioners. The HCCC is to notify the appropriate professional council of complaints received against members (s 10), and professional councils are to notify the HCCC of complaints they receive about their members in accordance with the HPRN Law (s 11 of the HCC Act and s 144G of the HPRN Law).
8. The Senior Member considered the decision in Sinclair v Psychology Council of NSW [2017] NSWCATAD 8. In Sinclair the HCCC had referred a complaint about a registered psychologist to the Psychology Council under s 25B, and the Psychology Council had requested a response to the complaint from the practitioner concerned. Senior Member Perrignon held that a letter from the practitioner responding to that request was obtained not by the HCCC but by the Psychology Council exercising its powers under the National Law, and not any function under the Health Care Complaints Act. As the letter was not obtained by the Psychology Council in the exercise of any function under the Health Care Complaints Act, it did not attract the overriding secrecy provisions of cl 1(1) of Sch 1. The position as "excluded information" was different: information obtained in response to the request by the Psychology Council for a response to a complaint was information resulting directly from a referral to that council by the HCCC under s 25B of the Health Care Complaints Act and thus "related to" the exercise by the HCCC of a function under s 25B. Senior Member Perrignon held: 69. As I have found, the Council's request for the letter of 4 October 2010 was not made in exercise of a function under the Health Care Complaints Act 1993, but rather in exercise of a function under the Health Practitioner Regulation National Law. However, that request resulted directly from the referral to it by the Health Care Complaints Commission under section 25B of its Act. That was a referral for consideration as to what action, if any, to take under the National Law. The consideration itself resulted directly from the referral, and caused the Council to make inquiry about the complaint. That inquiry took the form of the request of 22 September 2010 for a response to the complaint. 70. In summary, there was a direct chain of causation between the Health Care Complaints Commission's referral, and the Council's request for the letter. To that extent, the letter produced by Captain Sinclair in response to the Council's inquiry "related to" the exercise by the Health Care Complaints Commission of a function under section 25B. 71. Giving the phrase, "relates to" its ordinary meaning, and having regard to the fact that the Council's request for the letter resulted directly from the referral by the Health Care Complaints Commission under section 25B, I am satisfied that the letter of 4 October 2010 related to the exercise by the Health Care Complaints Commission of a "function concerning the provision of information to … a professional council … relating to a particular complaint" within the meaning of Schedule 2. 72. It follows that the letter of 4 October 2010 constitutes "excluded information" as defined in Schedule 4, and attracts the conclusive presumption in clause 6(1) of Schedule 1 - namely, the conclusive presumption that there is an overriding public interest against its disclosure.
9. In Yee Senior Member Molony applied the reasoning in Sinclair, and held that the document in which the practitioner responded to the Council was "on all fours" with that considered in Sinclair, and related to the complaint handling function of the HCCC. The Senior Member reached the same conclusion for the report of the conduct interview, finding that there was a direct link of causation between the HCCC's referral of the complaint and the Council's request for submissions and for the practitioner to attend the conduct interview. Accordingly, the information was excluded information subject of a conclusive presumption of an overriding public interest consideration against disclosure.
10. These decisions establish a number of propositions. First, they acknowledge that the regulatory scheme is complex, and in New South Wales involves both the HCCC and the professional councils established for each of the relevant health professions, and the operation of both the Health Care Complaints Act and the National Law. There is no dispute that the Council is an "agency" for the purposes of the GIPA Act; however, it is not the HCCC, and care has to be exercised in considering how the provisions in cll 1 and 6 of Sch 1 and cl 2 of Sch 2 apply to information held by it. As acknowledged by the IPC in its review report of 13 August 2018 at paragraph [101], the basis on which information is held by the Council is relevant to determining whether that information has been provided in the exercise of the HCCC's complaint handling functions; that is, whether there is "the direct chain of causation" referred to in Sinclair and Yee. The question of whether there has been consultation as required by cl 6(2) of Sch 1 may require consideration, as was the case in Whyte.

The decision under review

1. The decision the subject of the application for review was the decision dated 24 August 2018 of the Council not to undertake a fresh determination as recommended by the IPC in its report of 13 August 2018. That review was of the Council's decision of 20 March 2018, which had reconsidered the decision of 3 November 2017 to release documents to the access applicant. The Schedule of Documents in the decision of 20 March 2018 identified 117 documents, dating from July 1993 to April 2017. The documents include correspondence between the Council and the applicant and other people, and records of various Council proceedings. The decision was to release 26 documents, to not release 18, and to release the remaining documents with redactions.
2. The decision noted that the applicant's objection to the release of the documents was based on: 1. The public interest considerations against disclosure identified in the Table to s 14 of the GIPA Act, cll 1(d), (e), (g); 3(a), (b), (c), (d), (e), (f); 2. The overriding public interest against disclosure in Sch 1 cl 1 (overriding secrecy laws); cl 5 (legal professional privilege); cl 6 (excluded information); and 3. Sch 2: excluded information of the HCCC.
3. The IPC review report considered the applicant's submissions based on cl 1(d), 1(e), 1(g), 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), and 4(d), concluding that the applicant had demonstrated that cl 1(g), 3(a), 3(b), 3(c), and 3(d) were valid considerations against disclosure; that some of the information was subject to an overriding secrecy provision under cl 1 of Schedule 1, and legal professional privilege under cl 5 of Schedule 1; and that some of the information was excluded information under cl 6 of Schedule 1 to the GIPA Act. In reaching the latter conclusion on cl 6 of Sch 1, the report referred to the decision in Whyte.
4. In the application for review, the applicant stated as the grounds for the application: 1. The information sought falls within the scope of clauses 1, 5 and 6 of Schedule 1 to the GIPA Act, as a result of which it is conclusively presumed that it is not in the public interest to release the information; and 2. That the Respondent failed to consider that the information is subject to a conclusive presumption against disclosure. That is, information that is subject to: clause 1 of Schedule 1 (overriding secrecy laws); clause 5 of Schedule 1 (legal professional privilege); and clause 6 of Schedule 1 (excluded information); and 3. That the respondent failed to identify and consider information where an overriding public interest against disclosure of information might exist, namely clause 1(g) and 3(g) of the table at section 14 of the GIPA Act; and 4. That the Respondent failed to adopt the IPC recommendation under section 93 of the GIPA Act that the Respondent make a new decision having regard to the matters raised and guidance given in the IPC review report dated 13 August 2018, as follows: clause 1(g), 3(a), 3(b), 3(c), and 3(d) are valid considerations against disclosure of the information; and clause 1 of Schedule 1, clause 5 of Schedule 1 and clause 6 of Schedule 1 are valid conclusive presumptions against disclosure of the information; and 5. That the criminal trial of the Applicant remains unresolved in the District Court of Newcastle and a strict non publication order remains in force in relation to the live proceedings. Any or all of the material the subject of the original application, the determinations, subsequent reviews and reports may be relevant to the unresolved proceedings; and 6. In circumstances where there are unresolved criminal proceedings, disclosure of the information has the potential to prejudice the Applicant.
5. As noted above, directions were made on 15 January 2019 for the parties to file and serve their evidence and submissions, extended on 18 March 2019. The Council filed a chronology and documents on 12 February 2019, indicating that it would make submissions after receiving the applicant's materials. The applicant filed submissions and documents on 26 February 2019. The IPC, exercising the right to be heard and appear conferred by s 104(1) of the GIPA Act, filed submissions on 18 April 2019.
6. In an email dated 20 March 2019 the Council offered to seek orders by consent. The Council's position then was that none of the information should be provided to the access applicant, on the basis that there was a conclusive presumption of an overriding public interest against disclosure of HCCC documents, or in the alternative that the information was the applicant's personal information.
7. In considering the application for costs the Tribunal has had regard to the material filed by the parties and the IPC, including their submissions, and the affidavit affirmed by the applicant's solicitor on 26 April 2019, which annexes the relevant documents relating to the consideration of the access request and reviews, and the claim for costs. The Tribunal has not had access to the documents the subject of the application. The Schedule of Documents accompanying the 20 March 2018 decision provides some information as to the source and content of each of the 117 documents.
8. The Tribunal is of the view that it is not apparent that the matter is as straightforward as the applicant contends. That some of the documents would fall squarely within the reasoning in Whyte and Yee seems to have been recognised by the decision-maker in recording that the basis of the decision on 20 March 2018 not to release 18 of the documents was that there was an overriding public interest against disclosure of the information, referring to "s14(1), Sch 1 cl 6, Sch 2, cl 2". It is not obvious that all the documents would. The IPC review report of 13 August 2018 noted at [101] that it was unclear whether the information identified by the applicant as "excluded information" was communicated to the Council by the HCCC in the exercise of its complaint handling functions or whether it simply related to the Council's dealings with the HCCC; or whether the Council approached the HCCC after receiving the request for information. That suggests that whether there was the "direct chain of causation" between the HCCC and the Council found in Sinclair and Yee so as to include documents held by the Council as excluded information attracting the conclusive presumption in cl 6 of Sch 1 is an issue that would require consideration. The IPC submission to the Tribunal of 18 April 2019 notes that the requirement in Sch 2 is that the information "relates to" a specified function. Some of the documents listed in the Schedule are dated before the HCCC came into existence, with effect from May 1994, which may (or may not) have implications for the application of the definition of "excluded information" which relates to functions of the HCCC as the specified agency.
9. A further relevant factor is the basis on which the applicant, as the party bearing the onus by reason of s 105(2) of the GIPA Act rather than the Council as the agency, has approached its submissions in opposition to the release of information. As noted above at [46] in response to the consultation undertaken by the Council, and in these proceedings, the applicant has relied on both conclusive overriding public interests against disclosure and on the balancing of public interest considerations against and in favour of disclosure required under s 13 of the GIPA Act. The applicant's submissions filed on 26 February 2019 refer to cll 1, 5 and 6 of Sch 1, and cll 1(g) and 3(f) of the Table in s 14. In those submissions the applicant submits that some of the documents would be privileged on the basis of client legal privilege and thus included in cl 5 of Sch 1; that "some, if not all" of the information is information that relates to the HCCC's complaint handling function and was obtained from the HCCC, and that until the Council has obtained consent from the HCCC to disclose that information, it is subject to the conclusive presumption under cl 6 of Sch 1; and that the Council has failed to consider whether there is a public interest against disclosure as provided in cl 3(f) or 1(g).
10. In the context of the large number of documents, the extended period of time they cover, the requirements of cll 1 and 6 of Schedule 1, and the approach adopted by the applicant in discharging the obligation under s 105(2) of the GIPA Act, the Tribunal is not satisfied that it can be said to have been clear from the outset that the decisions in Whyte and Yee would be determinative of all the issues. The Council was entitled to consider its position, and its notification of what that position was and its offer of settlement came before the parties had filed and served all their evidence and submissions. In offering to settle the proceedings for the outcome sought by the applicant, the Council was acting in accordance with its obligation under s 36(3) of the NCAT Act to participate in the processes of the Tribunal so as to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
11. The Tribunal is not satisfied that it can be said that the Council prolonged unreasonably the time taken to complete the proceedings, which had their basis in the decision of 20 March 2018. Even if the earlier proceedings in 2018/00032911 are taken into account, the Tribunal would reach the same conclusion. The applicant's submissions do not explain how the fact that the Council took time to consider its position constitutes a failure to uphold the model litigant obligations. No other basis on which it could be concluded that there are special circumstances warranting an order for costs has been established.
12. The Tribunal is not satisfied that there are special circumstances warranting an order for costs. The appropriate order is that each party bear its own costs of the proceedings.

Order

1. The Tribunal orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with. 2. The application by the applicant for an order for costs is refused. 3. No order for costs is made, and each party is to pay its own costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2019