Commissioner for Fair Trading v Radovski

NCAT Appeal Panel|2021-10-15

REASONS FOR DECISION

The Commissioner for Fair Trading (the Commissioner) has appealed against a decision in proceedings in the Administrative and Equal Opportunity Division of the Tribunal for administrative review of a decision to refuse access to information under the Government Information (Public Access) Act 2009 (the GIPA Act).
The background to the access application and the application for review was summarised by the Tribunal as follows: 2. The applicant sat for an examination set by the Building Professionals Board in March 2020 to become an accredited certifier. He was notified that he had he had not received a sufficiently high score to be registered as a certifier. He sought information under the GIPA Act as follows: "…access to the exam paper document and the examiner or independent panel to be able to understand examiners findings…" 3. It was not disputed by the applicant that the respondent arranged a meeting with him at which his examination results were explained and he was advised to undertake a short course before resitting the examination. However this did not resolve his concerns and he sought access to the examination paper under the GIPA Act. The respondent refused Mr Radovski's request for access to the examination paper and his answers in reliance upon the public interest considerations against disclosure in clauses 1(f) and 1(h) of s 14 in the GIPA Act. 4. Mr Radovski sought a review by the Information Commissioner. The Information Commissioner did not recommend that the respondent make a different decision. On internal review the respondent affirmed its previous decision.

The Decision under Appeal

The application for review was lodged on 24 December 2020. The applicant identified the Information and Privacy Commissioner (IPC) as respondent, and attached a copy of the IPC review report to the application for review. At a case conference on 15 February 2021 orders were made to remove the IPC as a party and join the Commissioner for Fair Trading, the agency which has responsibility for administration of the building and development certifier laws from 1 July 2020 when the Building and Development Certifiers Act 2018 commenced and the Building Professionals Board (the Board) ceased.
Directions were made for the parties to file and serve evidence and submissions and the matter listed for hearing on 4 June 2021. In its determination the Tribunal set aside the decision under review and ordered the Commissioner to provide access to the examination paper: Radovski v Commissioner for Fair Trading [2021] NSWCATAD 154.
In the reasons for decision the Tribunal summarised the proceedings: 5. Directions were made on 15 February 2021 requiring each party to file evidence including statements, documents and submissions on specified dates prior to the hearing. On the day of the hearing I noted that the respondent had filed submissions and a bundle of documents but no witness statements. Mr Coss, legal representative for the Board, said that he had witnesses available to give evidence if required. 6. I pointed out that allowing the respondent to lead witness evidence without having provided statements would prejudice Mr Radovski as he had no notice of the witness evidence to be led. After a short adjournment both parties said that they wished the matter to proceed that day. It proceeded on the basis of the material before the Tribunal. 7. Towards the end of the hearing it appeared that the parties might be able to resolve the matters in dispute. I therefore reserved my decision but made directions whereby the parties would inform the Tribunal within 7 days if the matter was resolved. The matter did not resolve, so these reasons for decision have been issued.
The Tribunal referred to relevant provisions of the GIPA Act at [8]-[15]. The Tribunal referred to s 5, which provides that there is a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure, and s 9, under which a person who makes an access application has a legally enforceable right to be provided with access to information unless there is an overriding public interest against disclosure of the information. The Tribunal referred to s 12, which provides that there is a general public interest in favour of disclosure of government information, and provides examples of public interest considerations in favour of disclosure; and s 13, which provides the public interest test: 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.
The Tribunal referred to s 14, which provides the public interest considerations against disclosure which may be taken into account, in the Table to s 14: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (f) prejudice the effective exercise by an agency of the agency's functions, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). …"
The Tribunal referred to s 55, which provides the circumstances in which the personal factors of the application may be taken into account, and s 105, which relevantly provides: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. …
The Tribunal identified relevant provisions of the Building and Development Certifiers Act 2018 including the objects of that Act, and the registration requirements for the carrying out of certification work.
The Tribunal summarised the Commissioner's position as being that disclosure of the examination paper was opposed on the basis that disclosure could reasonably be expected to have one or more of the effects: 1. That it would prejudice the effective exercise by the Board of the Board's functions; and 2. That it would prejudice the conduct, effectiveness or integrity of the examination by revealing its purpose, conduct or results.
The Tribunal stated at [17]: 17. The respondent tendered a bundle of documentation relating to its decision. This included correspondence from a Mr Jonathan Lynch on behalf of the Board which showed that Mr Lynch strongly objected to the release of the examination papers and stated that: (1)The release of the examination paper would undermine the effectiveness and integrity of the accreditation examination. (2)It had been the policy since the introduction of the accreditation examination in 2010 not to release the paper, to ensure the effectiveness and integrity of the examination process. (3)If the paper was released the information it contained was expected to be made widely available to the industry, requiring the respondent to spend significant resources preparing new examination questions and standard answers for a marking matrix for only one or two persons who fail the examination and want copies of the papers. (4)There were only about 12 people who sat the examination each year and it would not be efficient to spend a significant amount of the Board's resources preparing new questions, standard answers and a matrix, to enable previous papers to be circulated.
The Tribunal noted at [19] that the Commissioner relied on the decision in Mannix v Department of Education and Communities [2014] NSWCATAD 35 (Mannix) in which the respondent Department had refused an access request for the 2021 Opportunity Class (OC) test question booklet, relying on the public interest considerations against disclosure in cl 1 (f) and (h) of the Table to s 14 of the GIPA Act. In that matter the Department had relied on the evidence of an officer who processed OC applications, as to the process for test development and revision each year, the cost to develop test questions each year, and the time taken in the process, and the Department's wish to keep the test material out of the hands of coaching colleges. The Department's refusal of access was upheld in that matter.
The Tribunal noted at [23] that Mr Radovski's position was that Mannix was not comparable, and that his attempts to get more information about the requirements for registration and find out what he needed to do to become accredited had been difficult and frustrating. Mr Radovski had stated that he understood that there would be a financial cost of creating a new test, but the test had not changed in 10 years.
The Tribunal commenced its consideration by noting that the Commissioner had the evidentiary burden of establishing that disclosure of the examination booklet could reasonably be expected to prejudice the Board's function of examining applicant certifiers for the purpose of the registration scheme (cl 1(f)), or to prejudice the conduct, effectiveness or integrity of the examination by revealing its purpose, conduct or results (cl 1(h)). The Tribunal continued: 28. The words "could reasonably be expected to" are to be given their ordinary meaning: see Attorney-General's Department v Cockcroft (1986) 10 FCR 180 where Bowen CJ and Beaumont J explained, at 190, that the words "...require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like." 29. See also McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61]. 30. The respondent's evidence on these issues consists of the documentary evidence relating to its decision and the reasons for the decision under review. It is for the respondent to establish that the public interest considerations against disclosure it relies on apply in this case. 31. As to 1(f), I am satisfied that administering the examination for applicants to be tested for registration as a certifier is one of the respondent's functions. Under the BDC Act the Secretary may authorise a person to carry out certification work through the registration scheme operated under the Act. An oral or written examination is one of the processes whereby the Secretary may determine under s 8 if a person should be registered as a certifier. 32. As to whether it could reasonably be expected that disclosure of the examination paper would prejudice the carrying out of that function, I am satisfied that the respondent would consider it necessary to develop and issue a new examination paper if the existing paper was disclosed, and that this would put it to some additional effort and expense. However the amount of effort and expense and whether this would prejudice the Board's functions has not been established. 33. The respondent did not file a copy of the examination paper, answers or matrix with the Tribunal therefore it was not possible for me to consider even on this basis how much time and effort might be involved. There was no evidence as to the resources available to the Board. 34. As to 1(h), the Information and Privacy Commission's guide on this clause states that the agency must: (1)establish that the disclosure could reasonably be expected to result in prejudice to the conduct, effectiveness or integrity of the test by revealing its purpose, conduct or results; (2)identify the anticipated prejudice; and (3)identify the causal nexus between the disclosure of the information and the expected prejudice. 35. It was claimed by the respondent that if the paper were released it could be copied and disseminated to a wider audience including the broader certifier industry or even to other individuals seeking to sit the exam, and correct answers could be memorised which would affect the integrity of the examination. 36. I am satisfied that it could reasonably be expected that disclosing the examination paper to Mr Radovski would lead to its wider dissemination, given that Mr Radovski has expressed some criticism of the examination and the Board and it is not possible to put any restrictions on disclosure under the GIPA Act. 37. It could also reasonably be expected that some persons wishing to sit the examination would, if they gained a copy of the paper, scrutinise the questions in an attempt to determine what answers were required. As to whether it could reasonably be expected that this would reveal the purpose, conduct of results of the examination, and therefore prejudice its integrity, conduct or effectiveness, there is simply no evidence before me to establish this. 38. I am not able to draw an inference as to the required cause and effect, particularly when that inference would be based upon another inference regarding what might happen if the paper were disclosed. Logical and probative evidence of this is required before such a conclusion can be reached. 39. I was not asked by the respondent to take judicial notice of any of these matters in the absence of evidence. 40. Section 144 of the Evidence Act 1995 provides: "144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is - (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced. 41. I do not consider the matters in question are common knowledge nor are they verifiable by reference to a document of the kind referred to. 42. The respondent submits that there is no legislative requirement in the BRD Act which contemplates disclosure of the examination. This is not a relevant consideration as we are considering disclosure under the GIPA Act. It suggests that a new GIPA application would be made each time it prepared a fresh examination paper and that this is a complicated and time-consuming process. Again there is no evidence to support this claim. 43. It also submits that the Information Commissioner was satisfied that the disclosure of the information would prejudice the agency's functions. Firstly, s105 of the GIPA Act does not apply to the Information Commissioner but it does apply to proceedings before the Tribunal. Secondly, the Information Commissioner had a copy of the examination paper to consider, but there was no copy of the paper before the Tribunal. 44. The decision in Mannix is relevant to the issues, but it was decided upon the detailed and specific evidence in that case. I conclude that the respondent has not discharged the onus of establishing that either of the claimed public interest considerations apply in this case. 45. Consequently it is not necessary for me to balance the public interest considerations for and against disclosure. I note however that there is a general public interest in favour of the disclosure of government information; and the Act identifies open discussion of public affairs as a public interest consideration in favour of disclosure. There is a public interest in knowing whether the accreditation scheme for building certifiers is effective and fit for purpose.
The Tribunal concluded (at [47]) that the Commissioner had not justified the decision in relation to the access application, as required under s 105(1) of the GIPA Act, and set aside the decision under review, directing that a copy of the examination paper be disclosed to the applicant within 28 days of the date of the decision.

The Appeal

This is an internal appeal, available as of right on questions of law or with leave of the Tribunal on other grounds: s 80(2) Civil and Administrative Tribunal Act 2013 (the NCAT Act).
The grounds of appeal are that the Tribunal had erred in law: 1. In failing to discharge its statutory duty by failing to properly consider, give proper weight to and make findings and determinations as to the findings of the original decision maker (Ms Kayla Smith) and the internal reviewer (Ms Niki Redman) and the concerns of the Manager of Accreditation of the Building Professionals Board (Mr Jonathan Lynch) that was properly put before the Tribunal and tendered and admitted into evidence without objection (Ground 1); 2. In failing to discharge its statutory duty under s 38(6)(a) of the NCAT Act to ensure all relevant material was disclosed to the Tribunal when it refused the application to lead oral evidence from Ms Redman and Mr Lynch, and Mr Vas Kumar (Principal Accreditation Officer of the Board) despite there being no objection from the respondent (Ground 2); 3. When having found at [36] that it could reasonably be expected that disclosing the examination paper to Mr Radovski would lead to its wide dissemination, it went on to find at [44] that the Commissioner had not discharged the onus of establishing that either of the claimed public interest considerations applied (Ground 3); 4. When having found at [36] that it could reasonably be expected that disclosing the examination paper to Mr Radovski would lead to its wide dissemination, and at [37] that it could reasonably be expected that some persons wishing to sit the examination would if they gained a copy of the paper scrutinise the questions in an attempt to determine what answers were required, it failed to draw an inference that was reasonably open to it to draw from those findings of fact that the disclosure of the examination paper could reasonably be expected to reveal the purpose, conduct or results of the examination and prejudice the effective exercise by the Commissioner of its functions and that the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure (Ground 4); and 5. By failing to discharge its statutory duty to exercise the jurisdiction required by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act) to decide what was the correct and preferable decision, when holding at [45] that it was not necessary to balance the public interest considerations for and against disclosure (Ground 5).
In the Reply to Appeal Mr Radovski contended that the Tribunal: 1. Properly considered and gave proper weight to the findings of the original decision maker and the internal reviewer and the concerns of Mr Lynch that was properly, but insufficiently, put before the Tribunal; 2. Correctly discharged its statutory duty under s 38(6)(a) of the NCAT Act when it refused the application to lead oral evidence from Ms Redman, Mr Lynch and Mr Kumar: the Commissioner had been ordered to provide witness statements to the Tribunal and to him, which it failed to do, and following that action he did not provide any witness statements from his witnesses; 3. Made the right decision when finding that the Commissioner had not discharged the onus of establishing that either of the public interest considerations against disclosure applied; 4. Made the right decision when finding that persons who wished to sit the examination would scrutinise the questions; and 5. Discharged its duty under s 63 of the ADR Act.
The Commissioner was granted a stay of the operation of the decision until further order of the Tribunal or finalisation of the appeal.
In support of the appeal the Commissioner filed and served a bundle of documents, being: 1. Documents filed pursuant to s 58 of the ADR Act in the proceedings below, including the access application, the original decision by Ms Kayla Smith (10 August 2020) and the decision on internal review by Ms Niki Redman (21 September 2020), and the review report by the IPC (30 November 2020); 2. Statements of Jonathan Lynch and Vasanth Kumar, affirmed on 30 August 2021, and not provided to the Tribunal below; 3. Written submissions; and 4. Transcript of the hearing on 8 April 2021.
In oral submissions the Commissioner confirmed that the statements by Mr Lynch and Mr Kumar were provided to respond to allegations made by Mr Radovski as to the meeting, and were relevant if the matter was to be re-heard.
Mr Radovski filed and served submissions, and a statement by Ms Liliana Mitrevska dated 11 July 2021 and a text message by Mr John Dimov.

Commissioner's submissions

On Ground 1, the Commissioner submitted that the findings of the original decision maker, Ms Kayla Smith, in relation to cl 1(f) and (h) of the Table to s 14 of the GIPA Act were before the Tribunal, as were the findings of the internal review decision maker Ms Niki Redman. The opinion of Mr Lynch, Manager, Building and Development Certifiers Registration, Registry and Accreditation, Licensing and Funds - Better Regulation with NSW Fair Trading, was also before the Tribunal. However, the Tribunal's consideration of the evidence was a one line reference at [30]: The respondent's evidence on these issues consists of the documentary evidence relating to its decision and the reasons for the decision under review.
The Commissioner submitted that other than that reference and the extract from Mr Lynch's correspondence at [17] of the decision, there was no real consideration by the Tribunal of that evidence or finding as to the weight that should have been accorded to Mr Lynch's opinion. The Commissioner submitted that there was no real consideration or examination by the Tribunal of the findings of the original decision maker or the internal reviewer, and the Tribunal did not make a finding as to the weight that should have been accorded to those findings. The Tribunal failed to give sufficient weight to the evidence of Mr Lynch which was both relevant and probative.
The Commissioner submitted that in failing to consider and make findings with respect to the evidence of Mr Lynch, the decision maker and the internal reviewer, because it was not in the form of a statement, the Tribunal failed either constructively or actually to properly exercise its statutory duty and conduct a review as required by s 63 of the ADR Act and failed to conduct the hearing in accordance with s 38 of the NCAT Act by properly informing itself and acting according to equity, good conscience and without regard to technicalities and legal form.
In support of Ground 2, the Commissioner submitted that the Tribunal failed to ensure disclosure of all relevant material as required by s 38(6) of the NCAT Act, in refusing the application to lead oral evidence from the internal reviewer and Mr Lynch and Mr Kumar. The Tribunal should have granted an adjournment to enable the Commissioner to put on written statements, as the matter was fairly complex. The Commissioner submitted that Mr Coss' agreement to proceed was on the basis that he could lead oral evidence from Mr Kumar and Mr Lynch. In forcing the matter on and only allowing what amounted to an hour and a half for the hearing of what was a particularly complex matter the hearing was both procedurally unfair and sounded in a miscarriage of justice. That was particularly so given the refusal of the Tribunal to allow the Commissioner to adduce oral evidence from both members of the Board who were present and able to give highly relevant probative evidence as to the extent of the time, labour, cost and resources that would be incurred if the examination was released to the applicant. The denial of procedural fairness was that Mr Coss was pushed on in the matter and had no alternative but to proceed. Both parties wanted to adjourn to put on statements. It was within the power of the Tribunal to hear the oral evidence, and not to do so was a denial of procedural fairness.
On Ground 3, the Commissioner submitted that the contradictory findings cannot stand: the finding was perverse and the reasoning illogical. It followed inexorably that the Tribunal should have turned its mind to the question of what could reasonably be expected to happen if disclosure occurred in determining the public interest considerations under s 14 of the GIPA Act.
On Ground 4, the Commissioner submitted that the Tribunal made two findings to the requisite standard of proof, yet misdirected itself when it went on to find that it was unable to draw the inference as to the required cause and effect. The evidence that releasing the examination would reveal the purpose, conduct or results of the examination and therefore prejudice the integrity, conduct or effectiveness was already before the Tribunal in the opinion of Mr Lynch. Mr Radovski had been in possession of that opinion since the time of the original decision and made no attempt to refute Mr Lynch's opinion that releasing it would result in the examination being made widely available to the industry. It was open to the Tribunal to draw the inference, relying on Henderson v Queensland [2014] HCA 52.
In support of Ground 5 the Commissioner submitted that the Tribunal should have undertaken the balancing required by s 13 of the GIPA Act because that was the task of the Tribunal; and even though the Tribunal concluded that the onus had not been discharged, the balancing of the public interests was still required. The Tribunal had an obligation to determine what the correct decision was, and its failure to determine the claim was a failure to exercise jurisdiction and a failure to conduct a review, relying on the authorities cited in Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [31]-[34].

Mr Radovski's submissions

Mr Radovski submitted that the Commissioner was ordered at the first hearing to supply witness statements from all the officials on whom it relied, and failed to do so. Following that action by the Commissioner, he did not supply any witness statements from his witnesses.
Mr Radovski supported the findings of the Tribunal that it could reasonably be expected that disclosure of the examination paper would lead to its wider dissemination given that he had expressed criticism of the examination and the Board and it was not possible to put restrictions under the GIPA Act, and then finding that the Commissioner had not discharged the onus. He supported the Tribunal findings as to dissemination and that it could reasonably be expected that some persons who gained a copy of the paper would scrutinise the questions, and in not drawing the inference as contended by the Commissioner. Mr Radovski submitted that the purpose and conduct of the examination was to be able to apply for registration as a building certifier and there was no need for people to study examination papers.
Mr Radovski submitted that the Tribunal had discharged its statutory duty, as the Commissioner's representatives had assumed that they had all the rights and tried to get the matter resolved on technicalities. The Tribunal gave the parties a chance to solve the matter by negotiation, which failed. He feels that he has been stripped of his right to have a professional answer to a professional question, and it is not in the public interest to leave an unprofessional and wrong outcome delivering exam and testing matrix in place.

The conduct of the hearing

Grounds 1 and 2 of the appeal focus on the conduct of the hearing and the evidence before the Tribunal. The relevant parts of the transcript are as follows.
The hearing was conducted by telephone. At the beginning of the hearing the Commissioner's representative, Mr Coss, stated that he had three people "that may have to give evidence" on the line, being Ms Redman, Mr Lynch and Mr Kumar. The Tribunal asked if they had put statements on, and Mr Coss stated that they had not. Mr Radovski came on to the line, and stated he had a witness from someone supporting him. The Tribunal asked if they were going to give evidence, was told yes, and responded that she did not have a witness statement from them. The Tribunal confirmed that none of the proposed witnesses had put on a statement.
The Tribunal asked the Commissioner's witnesses to go off the line, and continued: Tribunal: …I'm just a bit unsure as to why there is no evidence to be honest. I know there is a section 58 document but I might need an outline from you, Mr Coss, as to what the nature of the Board's case is because I would have thought that if you're relying on detriment to the functions of the agency there would need to be some evidence about what the detriment was. Coss: Well, you're talking about final submissions of the respondent, Senior Member. It's outlined succinctly in that. … Coss: It's called "Final Submissions of the Respondent". … Tribunal: So what part of that that should I look at? Coss: Well, you should look at in relation to the law at page 2 respondent's position paragraph 11 onwards. I'm happy to take you through it. Tribunal: Well, yes, I see you say the disclosure of the information would impact on future examinations. Coss: Yes, that's right. Tribunal: But what do I make that finding on? If you're asking me to make a finding that the disclosure of the information would impact on future examinations, on what basis do I make that finding? I can't make it just on the basis of submissions, can I? Then over the page it says: "Only certain members within the accreditation team have access to the exam". That's another statement of fact. Doesn't there need to be some evidence about that? Coss: Well, those people that were just on can give evidence as to the people that have access to the exam. There's only a few people that have access to the exam. Tribunal: Well, they can but why weren't their statements put on in accordance with the directions? Coss: Well, there weren't directions for statements. Tribunal: I think there were, on 15 February: "Commissioner for Fair Trading is to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions", and the same for Mr Radovski, and it doesn't seem that that's happened in either case actually. Coss: We've relied on the Act and the Building and Development Certifiers Act there's no mention of disclosure of the examination papers so there's no legal basis for it. Tribunal: No. Coss: So there's no legal basis for it whatsoever and there's no case that Mr Radovski has pointed to that suggests that disclosure should be allowed. Tribunal: He doesn't have to point to a case, does he? It's the agency which has to point to a case as to why its decision was the correct decision. Coss: Well, I can point to Mannix if you like, Mannix v Department of Education, that was a similar case …In Mannix the Tribunal accepted that disclosure of a test would prejudice the effective exercise of the agency's function. The IPC was satisfied of the respondent's reliance on cl 1(f) of the GIPA Act that disclosure of the exam booklet would prejudice the agency's function of the accreditation process including conducting the accreditation exam paper. The IPC was also satisfied of the respondent's reliance on cl 1(h) of the GIPA Act … Tribunal: In Mannix there was evidence filed which the Tribunal had regard to. They didn't just make the decision based on the law alone. …
The Tribunal then discussed with Mr Radovski that he had not filed a statement from his witness, Mr Dimov. Mr Radovski stated: Radovski: Yes, sorry, I jot these things down every day and I didn't understand that properly that they have to make it in writing, so I just understand that I need to put them as a witness if I need then for the day or somebody to represent me also. It's my mistake. … Tribunal: …I'm just reading the directions. Look, I have to say I'm not very happy with the state that this case is in. It's not helpful for the Tribunal to be in a situation where it's expected to conduct a hearing where there's evidence but no statements and it's not helpful to the parties. I don't think this matter is ready to proceed today so I'm proposing to make some directions for the filing of evidence and then adjourn the matter. I'm happy to hear what people have to say about that but that's what I'm proposing to do. Radovski: I agree with that. … Tribunal: …Mr Coss, do you have something to say? Mr Coss, are you there? Have we lost Mr Coss? All right, we'll just wait a moment to see if he comes back. … Tribunal: …Mr Coss, have you rejoined us? Okay, I'm going to adjourn because I don't know what's going on here. I'm going to adjourn until 11.15 and hopefully everybody will be back here by then and then we will resume the hearing…. …
After a short adjournment the hearing resumed: Tribunal: I'm not sure what time you dropped out but I was asking, I was addressing you and you didn't respond so I'm assuming you dropped out at some point. Coss: Yes. Tribunal: All right. … Tribunal: I'm not sure exactly when you dropped out. Anyway, we were discussing the situation and what to do with the matter. I'm reminded that the directions that were made on 15 February, the Commissioner was to file their evidence and submissions first on 8 March and then Mr Radovski was to reply, so the Commissioner has not filed any evidence so arguably Mr Radovski had nothing to reply to. Coss: Yes. Tribunal: I'm prepared to hear the matter based on the material today but I'm not prepared to grant leave to the Commissioner to adduce evidence that hasn't been put on by way of a statement. Do you wish to proceed on that basis, given it's for the agency to prove its case? Are you ready to do that? Coss: I think we would want to adjourn it then and put on statements. Tribunal: On what basis are you seeking an adjournment when you didn't comply with the directions? Coss: I think it was an oversight. I'm just rereading the directions now. Tribunal: They're fairly standard directions. Coss: Yes. Well, in the privacy matter, this is the first privacy matter I've done. Tribunal: I'm sorry, no, this is not a privacy matter. Coss: Given that, I beg your pardon. Yes, well we can proceed on that basis then. Tribunal: Sorry, what were you going to say? Coss: We'll proceed with what is in evidence, is the IPC report. That's before Mr Radovski and the Tribunal. Tribunal: Yes, we have the IPC report, we have some section 58 documents. Coss: Yes. Tribunal: Mr Radovski, what I'm proposing to do is because the agency has to present their case first, Fair Trading has to present their case first, that we'll proceed with the hearing today and you'll hear what the agency has to say about why they made the decision they did and then you'll be able to respond to that, but in terms of evidence, you haven't filed any evidence. I'll have to make a decision after we've heard from the agency whether you'll be able to have your witnesses give evidence or not, because as I said before, it should have been put on by way of statements and it hasn't been. We'll make a decision about that when we come to it. I think it's better to make use of the time that we have today, since everybody's taken the trouble to be here, and see how we go…. …
It is clear from the transcript that there were technical difficulties with the telephone connection at the beginning of the hearing, including for the Commissioner's representative. At times Mr Radovski's witness, Mr Dimov, attempted to intervene. The Appeal Panel is satisfied that notwithstanding those difficulties, the Tribunal was able to state the concerns as to the absence of witness statements, referring to the directions made on 15 February 2021; and remind the parties that the onus of justifying the decision under review was on the Commissioner. There was a discussion as to how to proceed, and whether the matter could proceed on the listed date. After the Commissioner's representative stated that he could proceed with what was in evidence, the parties presented their respective cases to the Tribunal.

Ground 1

Ground 1 of the appeal challenges the Tribunal's approach to the evidence, and is that the Tribunal erred in not giving proper weight to the findings of the original decision maker and the internal reviewer and to the concerns of the Manager of Accreditation of the Board. In oral submissions the Commissioner accepted that there was no formal tendering of evidence, however it was clear from the transcript that the documents filed under s 58 of the ADR Act including the report of the IPC and the internal review decision were before the Tribunal.
The Tribunal described the Commissioner's evidence in the following terms: 30. The respondent's evidence on these issues consists of the documentary evidence relating to its decision and the reasons for the decision under review. It is for the respondent to establish that the public interest considerations against disclosure it relies on apply in this case.
As noted above, the material provided by the Commissioner pursuant to s 58 of the ADR Act included the comments of Mr Lynch as provided to the original decision maker in the Search Checklist, referred to at [17] of the Tribunal's reasons for decision.
The Appeal Panel is satisfied that there was no error in how the Tribunal evaluated the evidence in making its findings. While not bound by the rules of evidence, the Tribunal is required to base its findings of fact on logically probative material and not on "mere suspicion or speculation": Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93. Proof of matters asserted is required in a practical sense, that is, a party asserting a fact is generally required to provide evidence to substantiate it: Meacham v Commissioner of Police [2020] NSWCATAP 107 at [83].
In the context of proceedings for review of decisions under the GIPA Act, the public interest considerations against disclosure provided in cl 1 of the Table to s 14 require a finding that disclosure of the information "could reasonably be expected" to have one or more of the stated effects. In Transport for NSW v Searle [2018] NSWCATAP 93 the Appeal Panel stated in relation to that requirement: 68. There was no dispute between the parties that: (1)The appellant bore the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure in cl 1 of the Table in s 14 of the GIPA Act: see s 105. (2)The words "could reasonably be expected" are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] - ... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." (3)In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. (4)It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. (5)"Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. …
In Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 the Appeal Panel stated the principles relevant to a consideration of the evidence on which an agency asserts that disclosure "could reasonably be expected" to have a particular effect: 59. Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1)a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2)there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3)prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.
The s 58 documents before the Tribunal indicate that on receipt of Mr Radovski's access application Ms Smith, the Right to Information and Privacy Officer in the Better Regulation Division which had taken over administration of GIPA requests, asked Mr Lynch, who was identified as the contact person for requests made regarding the Board, to undertake the relevant searches and complete a checklist. Mr Lynch, Manager Accreditation, did so, stating in the Search Checklist his reasons for objecting to release of the exam papers in the terms summarised by the Tribunal at [17] of the decision under appeal.
On 10 September 2020 Ms Redman, A/Senior Advisor Privacy and Right to Information Team, who was undertaking the internal review requested by Mr Radovski, emailed Mr Lynch requesting confirmation whether he had met with Mr Radovski on 24 July 2020 to go through the exam answers and whether he had been permitted to view the exam paper. In the notice of decision on the internal review Ms Redman stated that she had "no evidence or argument to show that the decision maker failed to properly consider all relevant matters" and that she believed that the agency had attempted to assist the applicant on many occasions.
There is no indication that either Ms Smith or Ms Redman had any relevant knowledge of the examination process independent of the views of Mr Lynch which had been provided to the original decision maker. Whether or not that is so, it is not clear why the conclusions expressed by Ms Smith as original decision maker or Ms Redman as internal reviewer should have been given the weight asserted by the Commissioner, in the context of the merits review undertaken by the Tribunal pursuant to s 63 of the ADR Act.
Administrative review under the ADR Act is de novo review on the merits. The task of the Tribunal is to make the "correct and preferable" decision, on the basis of the evidence as at the time of the decision, exercising all the functions and powers of the original decision-maker; and the Tribunal is empowered to affirm, vary, set aside the decision (and make a new decision in substitution) or set aside the decision and remit it for reconsideration with directions or recommendations.
In reviewing a decision the Tribunal is required to make the decision afresh, and is not limited to a consideration of whether the decision under review was open on the evidence. In Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] AATA 1144; (2000) 62 ALD 472 the Administrative Appeals Tribunal explained, on consideration of the equivalent provision in its legislation, the role of the tribunal on review: 72. …[W]e must make the decision afresh and are not limited to a consideration of whether the board's decision was open on the evidence. We are not limited to the evidence led before the board. As part of that review process, we must make findings of fact based on the evidence and we must reach our decision in light of those findings and the relevant law. If we were to give weight to the decision of the board simply because of our regard for the board and because it is the highest level of peer review of an auditor's conduct, we would be taking into account something other than the evidence and we would be in danger of adopting the board's decision rather than making our own. The board's decision can only be evidence of the fact that it made a decision based on certain findings of fact. It founds the tribunal's jurisdiction but it cannot itself be evidence of the matters upon which it has reached a decision and it cannot influence the decision on review that the parliament has entrusted to this tribunal.
On a merits review by the Tribunal, the issue for determination is what is the correct and preferable decision at the time of the determination by the Tribunal, irrespective of whether it was or was not the correct and preferable decision at the time the decision under review was made: YG & GG v Minister for Community Services [2002] NSWCA 247 at [25] (Hodgson JA, with whom Foster and Brownie AJJA agreed).
The task of the Tribunal was to have regard to "relevant factual material" and "applicable written or unwritten law" and to decide for itself what was the correct and preferable decision. The conclusions of the original decision maker and the internal reviewer could not properly be the basis on which to affirm the decision under review. The fact that the IPC had agreed with the Commissioner's position on cl 1(f) and (h) of the Table to s 14 and was satisfied that the agency's decision was justified would also not provide the basis on which the Tribunal could properly conclude that the agency's decision should be affirmed.
In any event, the reasons for decision establish that the Tribunal did not disregard the opinions expressed by Ms Smith, Ms Redman and Mr Lynch. The Tribunal found that administering the examination for testing applicants for registration was one of the Commissioner's functions (at [31]); that the Commissioner would consider it necessary to develop and issue a new examination paper if the existing paper were disclosed, at some additional effort and expense (at [32]); that disclosure of the examination paper to Mr Radovski could lead to its wider dissemination (at [36]); and that some persons who had access might scrutinise the questions in an attempt to determine what answers were required (at [37]). Those were all matters addressed by Ms Smith in her decision, relying on Mr Lynch's comments. Ms Redman had referred to the absence of specific disclosure provision in the Building and Development Certifiers Act, a matter also taken up in the Commissioner's submissions before the Tribunal; the Tribunal addressed that contention, and there was no error in the Tribunal's conclusion at [42] that the absence of any legislative requirement in the Building and Development Certifiers Act for disclosure was not relevant to disclosure under the GIPA Act. The reasons for decision confirm that the Tribunal also had regard to the opinions expressed by Mr Lynch in his response to Ms Smith's request: that is reflected in the summary of those opinions at [17], and the Tribunal's findings at [32] and [36].
The matters on which the Tribunal noted an absence of evidence were: the amount of effort and expense involved, and whether developing and issuing a new examination paper would prejudice the Board's functions (at [32]); the resources available to the Board (at [33]); whether if someone scrutinised the questions in an attempt to determine what answers were required, what effect that might have on the purpose, conduct or results of the examination or its integrity conduct or effectiveness (at 37]); and whether to prepare fresh examination paper was a complicated and time-consuming process if a new GIPA application were made (at [42]). The Tribunal noted at [33] and [43] that it had not been provided with a copy of the examination paper, from which it might have been possible to consider how much time and resources might be involved in setting a fresh examination paper.
The Tribunal stated at [44] that Mannix was relevant to the issues, but that that matter had been decided on the "detailed and specific evidence in that case". That evidence, as given by an officer from the agency who processed OC applications, was summarised by the Tribunal (at [20]) and included evidence as to the cost to the agency to develop test questions each year ($180,000) and the time the process took (approximately 6 months). There was no error in the Tribunal distinguishing Mannix from the circumstances in the present proceedings, in which there was no evidence as to the time or cost involved in setting a fresh examination paper, or the relationship of that to the available resources of the agency.
The Commissioner contends that the Tribunal failed to make findings with respect to the evidence of Mr Lynch, Ms Smith and Ms Redman because it was not in the form of a statement, and that that constituted a failure to properly exercise its duty and conduct a review. The Appeal Panel does not agree. The Tribunal made findings at [31], [32], [36], and [37] that could only have been based on the material in evidence before it; and identified where there was an absence of the evidence required to make the ultimate findings required by cl 1(f) and (h) of the Table to s 14 of the GIPA Act. As Transport for NSW v Searle [2018] NSWCATAP 93 and Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 confirm, a mere statement that disclosure of information could reasonably be expected to have a particular effect is insufficient, and there must be "real and substantial grounds" to support an agency's opinion that disclosure could reasonably be expected to have a particular effect. That there was such an evidentiary gap is implicit in the Commissioner's provision of statements by Mr Lynch and Mr Kumar for the appeal, which the Commissioner submits give "affirmed, relevant and probative evidence as to the issue of the extent of the time, labour, cost and resources" that the Board would be compelled to incur if the examination was released.
Ground 1 is not established.

Ground 2

Ground 2 challenges the Tribunal decision to refuse to allow the Commissioner to lead oral evidence from the three witnesses, Ms Redman, Mr Lynch and Mr Kumar, contending that the Tribunal had a duty under s 38(6)(a) of the NCAT Act "to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue" in the proceedings.
The decision not to allow the Commissioner to lead evidence orally from the three witnesses present at the hearing when the direction requiring provision of witness statements to the Tribunal and the other party had not been complied with was one of practice and procedure, and involved a discretionary decision.
The Tribunal may "determine its own procedure" in relation to any matter for which the legislation including the procedural rules does not otherwise make provision: NCAT Act s 38(1). The Tribunal is not bound by the rules of evidence, and is entitled to "inquire into and inform itself on any matter in such manner as it thinks fit", subject to the rules of natural justice: NCAT Act, s 38(2). Those provisions would have permitted the Tribunal to hear the oral evidence of the Commissioner's witnesses.
The Tribunal reasons state (at [6]) that to lead witness evidence without having provided statements would prejudice Mr Radovski as he had had no notice of the witness evidence to be led. That concern is consistent with the comments of the Appeal Panel in Lane v Bloc Constructions (NSW) Pty Ltd [2021] NSWCATAP 114, made in the context of a party's failure to file and serve material on which it intended to rely in an internal appeal, but apposite to proceedings in the Tribunal generally: 13. The appellant did not comply with Order 2 set out above. He was wrong to do so. Compliance with the Tribunal's orders is mandatory and not voluntary - see s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"), which provides that parties to proceedings in the Tribunal are under a duty to comply with directions and orders made by the Tribunal. … 16. Such directions serve at least two purposes. 17. The first and most important is fairness. By serving the material upon which an appellant relies on his, her or its appeal (as distinct from all of the material which may have been relied on at the hearing at first instance) the respondent is thereby given a fair opportunity to know exactly what material is being relied upon on the appeal. The respondent may then make an informed and considered decision as to what evidence, if any, from the hearing at first instance it should also lodge and serve for the appeal; and where an appellant seeks to introduce new evidence on appeal to decide whether to seek leave to introduce new evidence in response. 18. Further, by being put on notice of the particular evidence relied upon on the appeal, the parties are provided a reasonable opportunity to prepare their submissions for the appeal on a fully informed basis. 19. The second purpose is to efficiently allow Appeal Panels to decide appeals. The Tribunal is publicly funded and has much work to get through. In the 2019-20 year some 69,735 applications and 643 appeals were lodged. It is not unreasonable to require parties, particularly appellants, to supply the documents upon which they wish to rely in pursuit of their rights of appeal rather than to expect the Tribunal to collect, store, retrieve and manage documents from such large numbers of cases and appeals.
The appellant had not filed and served material from the proceedings below on which he sought to rely in the appeal; and nor had he filed and served his evidence in the proceedings below in accordance with directions made in those proceedings. The Appeal Panel concluded (at [30]) that there was no error in the Tribunal below refusing to accept material at the hearing.
In challenging the Tribunal's decision on a discretionary procedural matter, the Commissioner would need to demonstrate that the Tribunal had made an error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40, that is, that it made an error of legal principle; made a material error of fact; took into account an irrelevant matter; failed to take into account or gave insufficient weight to some relevant matter; or arrived at a result so unreasonable or unjust as to suggest that one of those foregoing errors had occurred.
There was no error of that kind. The Commissioner had not complied with the directions of 15 February 2021 as to provision of evidence. The transcript does not indicate that there was any application by the Commissioner's representative for leave to adduce oral evidence from his witnesses, rather an assumption that that course would be permitted. While the Tribunal did not provide reasons orally for the decision not to allow that to occur, reasons were provided in the written reasons for decision; accordingly, there is no basis for a contention that the final part of the test in House v The King might apply, that is, that the decision was so unreasonable or plainly unjust that in some way there was a failure properly to exercise the discretion: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 at [9]-[10] (Bathurst CJ and Leeming JA).
To the extent that the final part of the test in House v The King may encompass legal unreasonableness, the test is stringent. In EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 (EFQ), where the issue related to failure to grant an adjournment, Bell P, with whom Macfarlan and Brereton JJA agreed, said: 69. …The stringency of the test is reflected, for example, in the language of Hayne, Kiefel and Bell JJ in Li at [76], namely that "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification"; see also the language of Gageler J in Li at [124]: "[n]o reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment".
There was an evident and intelligible justification for the Tribunal's refusal to allow the Commissioner to lead oral evidence where witness statements had not been served on the other party. The Tribunal was not bound by the rules of evidence and could determine its own procedure. To not permit a party to lead oral evidence in circumstances where that party had not complied with procedural directions requiring provision of evidence in advance of the hearing was within the scope of the discretion conferred by s 38(1) of the NCAT Act: Lane v Bloc Constructions (NSW) Pty Ltd [2021] NSWCATAP 114. The Commissioner has not established that not allowing that to occur involved a failure to take into account a relevant matter or the taking into account of an irrelevant matter, or that in doing so the Tribunal made a material error of fact.
The Appeal Panel is not persuaded that the decision not to allow oral evidence from the Commissioner's witnesses involved a denial of procedural fairness. Immediately after ruling that leave would not be granted to adduce evidence that had not been put on by way of a statement the Commissioner's representative was asked whether he wished to proceed on that basis. The Commissioner's representative was given an opportunity to argue for an adjournment to enable witness statements to be provided; and ultimately decided to proceed on the basis of the documents already filed and served.
Procedural fairness requires that an adequate opportunity to participate has been given, and there is no denial of procedural fairness if a party has failed to take that opportunity: see discussion by Bell P in EFQ at [67]-[68]. There is no indication in the transcript that the Commissioner's representative was, as it was put in submissions, "forced on", or that his decision to proceed was premised on being able to lead oral evidence from his witnesses. The Tribunal had alerted the parties to its concerns about the state of the evidence, and that it contemplated an adjournment to allow the parties to file evidence, but said it was prepared to hear the matter. After first stating a preference for an adjournment to put on statements, the Commissioner's representative did not respond to the Tribunal's request for submissions as to the basis on which such an adjournment was being sought; and then stated that he could proceed "with what is in evidence, is the IPC report". While Mr Radovski had previously stated his agreement to an adjournment, he was not represented. The Commissioner, on whom the onus was imposed to establish that the decision under review was justified, was legally represented, and was bound by the forensic decision of its legal representative to proceed on the basis of the evidence as it was before the Tribunal.
In exercising any of the procedural discretions conferred on the Tribunal, the Tribunal must seek to give effect to the guiding principle provided in s 36(1) of the NCAT Act, that is to facilitate the just quick and cheap resolution of the real issues in the proceedings. The question of whether to allow the Commissioner to lead oral evidence which appeared to be relevant to the issues for determination, required the Tribunal to balance the requirement under s 38(6) of the NCAT Act to ensure all relevant evidence was before it, with the Tribunal's role as a substitute decision maker under s 63 of the ADR Act, and the requirement to accord procedural fairness to both parties, in giving effect to the guiding principle in s 36(1) of the NCAT Act. Whether or not another decision maker might have struck the balance another way does not mean that the Tribunal erred in law in its exercise of the discretion.
Ground 2 of the appeal is not established.

Ground 3

The Commissioner contends that the Tribunal should, having found at [36] that it could reasonably be expected that disclosing the examination paper to Mr Radovski would lead to its wider dissemination, have turned its mind to the question of what could reasonably be expected to happen if disclosure occurred, and that the finding at [44] that the Commissioner had not discharged the onus of establishing that either of the public interest considerations against disclosure applied did not follow, and could not logically stand.
That contention omits the intervening steps in the Tribunal's reasoning. The finding at [36] that disclosing the examination to Mr Radovski would likely lead to its wider dissemination was based on two factors: Mr Radovski's criticism of the examination and the Board, and the operation of the GIPA Act itself, s 73 of which provides that an agency cannot impose conditions on the use or further disclosure of information when it provides access to the information in response to an access application. That finding was made by the Tribunal in the course of its consideration of cl 1(h) of the Table to s 14.
The Tribunal was required to decide whether either of the public interest considerations in cl 1(f) or (h) was established, as a prerequisite to the balancing of public interests required by s 13 of the GIPA Act. The Tribunal's statement at [44] that the Commissioner had not discharged the onus of establishing either of the public interest considerations against disclosure on which it relied was a conclusion, reached after having considered the absence of evidence on all the matters that would need to be found on both cl 1(f) and (h) of the Table to s 14.
That the Tribunal was required to, and did, make the findings it was able to make on the intervening factual issues required to determine whether the Commissioner had established that either cl 1(f) or (h) applied, is consistent with the guidance provided by the IPC in its GIPA Act Information Sheets. Those documents were annexed to the IPC review report, and quoted by the Tribunal in the reasons for decision. The IPC states that for cl 1(f) to apply, an agency must establish the relevant function that would be prejudiced by release of the information and how asserted prejudice to the effective exercise by the agency of its functions could reasonably be expected to occur, requiring "a demonstration of the detriment or disadvantage". For cl 1(h), an agency must establish that disclosure of the information would result in the prejudice described: and in order to justify the application of that consideration the agency had to "demonstrate the causal nexus between the disclosure of the information and prejudice that is expected".
The submission that the Tribunal should have concluded that both public interest considerations were established once it found that disclosure of the examination paper to Mr Radovski would likely lead to its wider dissemination is not supported by the reasoning required of the decision maker in the terms in which cl 1(f) and (h) are expressed, or in the principles stated in Transport for NSW v Searle [2018] NSWCATAP 93 and Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254. The Tribunal needed evidence on which it could find a causal nexus between disclosure to Mr Radovski and the asserted prejudice, and concluded that it did not have that evidence.
Ground 3 is not established.

Ground 4

Ground 4 of the appeal contends that the Tribunal erred in failing to draw an inference that disclosure of the examination could reasonably be expected to reveal the purpose, conduct or results of the examination and prejudice the effective exercise by the Commissioner of its functions, and that the public interest considerations against disclosure outweighed those in favour of disclosure.
That inference is said to follow from the findings of the Tribunal at [36] and [37] that disclosing the examination to Mr Radovski would likely lead to its wider dissemination, and that some persons who wish to sit the examination would likely scrutinise the questions in order to determine what answers were required.
The asserted inference as framed in the grounds of appeal in substance identifies two separate propositions: first, a finding that the public interest consideration in cl 1(h) of the Table to s 14 is established, and secondly, the result of the balancing of competing public interest considerations required by s 13 of the GIPA Act. The Commissioner's submissions are, however, framed in terms of there being one inference reasonably open, namely that releasing the examination would reveal the purpose, conduct or results of the examination and therefore prejudice its integrity, conduct or effectiveness; and that the Tribunal misdirected itself when it failed to draw that inference.
The Tribunal declined to draw that inference, stating: 38. I am not able to draw an inference as to the required cause and effect, particularly when that inference would be based upon another inference regarding what might happen if the paper were disclosed. Logical and probative evidence of this is required before such a conclusion can be reached.
That conclusion needs to be read in context, in particular the Tribunal's comment at [37] that there was no evidence before the Tribunal to establish that if other persons scrutinised the questions, that it could reasonably be expected that this would reveal the purpose, conduct or results of the examination and therefore prejudice its integrity, conduct or effectiveness. That statement reflects the Tribunal's concern as to the absence of evidence on which it could find the causal nexus between disclosure and the asserted prejudice required to be established for cl 1(h) to apply.
The onus was on the agency to establish the asserted prejudice, and it was not, as submitted in the appeal, for the access applicant to refute. The basis on which the Tribunal might properly reason by drawing an inference that the likely prejudice had been established was discussed by Gageler J in Henderson v Queensland [2014] HCA 52 at [89]: 89. Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel: "One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed."
The Tribunal had pointed to the need for "logical and probative evidence", that is, for there to be a factual basis as to what might happen if the examination paper were disclosed. Even if the inference as asserted by the Commissioner had been reasonably open, the Tribunal's refusal to draw it, when to do so depended on the drawing of a further inference, was explained. There was no error in the Tribunal refusing to draw the inference that disclosure would have the prejudicial effect required for cl 1(h) of the Table to s 14 to be established.
Ground 4 is not established.

Ground 5

Ground 5 relates to the Tribunal's conclusion at [45] that it was "not necessary for me to balance the public interest considerations for and against disclosure". There was no error in that conclusion.
Section 9 of the GIPA Act provides that an access applicant has a legally enforceable right to be provided with the information requested in accordance with Part 4 of the GIPA Act "unless there is an overriding public interest against disclosure of the information". Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure "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.
The agency, and the Tribunal on administrative review, is required to identify the public interest considerations in favour of disclosure, to determine whether the information in issue would give rise to a public interest consideration against disclosure as provided in the Table to s 14, and if so satisfied, consider where the balance lies: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19.
In the present proceedings, the Tribunal was not satisfied that the Commissioner had established that either of the public interest considerations against disclosure in cl 1(f) or (h) of the Table to s 14 of the GIPA Act was established. There is a "general public interest in favour of disclosure": GIPA Act, s 12(1). No evidence is needed of that fact, and that general interest must be taken into account in applying the public interest test in s 13: Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 at [38]. The Tribunal identified at [45] the general public interest, and other public interests in favour of disclosure. While the Tribunal did not expressly engage in a balancing of the competing public interests, there were no established public interest considerations against disclosure against which the general public interest in favour of disclosure could be balanced. The Tribunal's conclusion that the Commissioner had failed to justify its decision reflected the outcome of the balancing required by s 13 of the GIPA Act. There was no error in how the Tribunal carried out its task under s 63 of the ADR Act, and conducted a review as required by the legislation.
Ground 5 is not established.

Conclusion

The Commissioner has not succeeded in establishing that the Tribunal erred on a question of law on any of the grounds asserted. No application for leave to appeal on any other ground was made. The appeal should be dismissed. That means that the applicant's March 2020 examination paper is to be disclosed to him.
The Appeal Panel orders: 1. The appeal is dismissed. 2. The stay of the operation of order 2 made on 4 June 2021 is revoked.

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: 16 December 2021

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