Commissioner of Police, NSW Police Force v DYD

NCAT Appeal Panel|2023-08-11

f the appeal is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2023] NSWCATAD 97 Before: A Christie, Senior Member File Number(s): 2019/00252570

Introduction

On 1 May 2023, the Tribunal delivered the decision under appeal: DYD v Commissioner of Police, NSW Police Force [2023] NSWCATAD 97 (the Decision).
The Tribunal ordered the Appellant to release certain information under the Government Information (Public) Access Act (2009) (the GIPA Act) in relation to information contained on the Computerised Operational Policing System (COPS) within 21 days of the Decision.
In particular, the Appellant was ordered to release each line of information identified in paragraphs 58 and 59 of the Decision for all types or 'TYP' of line/entries showing as any of 'D','U', 'DC', 'UC' (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information in respect of a number of entries in certain reverse COPS audit reports; and was also ordered to release the lines of information in a document titled 'Reasons for Access audits' which corresponded to those entries. All other information was ordered to be withheld.
By Notice of Appeal filed on 18 May 2023, the Appellant lodged an internal appeal pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) from the Decision.

The Tribunal's Decision

The Tribunal's Decision stated at [22] - [32]: 22 Contrary to the Applicant's submissions, the Tribunal is not constrained to have regard only to the material before the Respondent when making the Decisions but may have regard to any relevant material before the Tribunal at the time of the Tribunal's review: Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCAT 257 at [45] and O'Grady v Sutherland Shine Council [2020] NSWCATAD 50 at [17]. Where there is no conclusive presumption of an overriding public interest against disclosure (i.e. as per s 14 (1) and Schedule 1 GIPA Act), as is the case in these proceedings, the process for deciding whether to grant access to the Relevant Information (in part or in full) is to identify the applicable public interest factors in favour of granting access, then to identify the applicable public interest factors against disclosure relied on by the Respondent which, in the circumstances of these proceedings, can only be from those items set out in the Table in s 14 GIPA Act: Tedder v Commissioner of Police, NSW Police Force [2017] NSWCATAD 226 at [20]. A determination must then be made as to where the balance lies. 24 The GIPA Act states, as a factor for consideration in the balancing exercise, the general public interest in favour of the disclosure of government information (s 12 GIPA Act). Also, some non-exhaustive examples of other public interest considerations in favour of disclosure are referred to in the notes to s 12 (2) GIPA Act. In Leydon v Commissioner of Police [2019] NSWCATAD 267 (Leydon) at [47] the Tribunal notes that these notes/examples are regularly relied on by parties in GIPA proceedings and s 12 (2) provides that "there is no limit as to what disclosure considerations can be taken into account". 25 Under s 55 of the GIPA Act the personal factors of the Applicant, including identity and motives can also be taken into account in the context of considering whether there is an overriding public interest against the disclosure of information, as facts both in favour of and, in certain cases, against providing the Applicant with access to information. In this case the Applicant's personal factors can weigh against providing access to the information, to the extent they are relevant in relation to Item 2(b) of the Table ins 14 GIPA Act which has been submitted by the Respondent as one of the applicable public interest considerations against disclosure of certain of the information (see column 2 the table in paragraphs [58] and column 3 of the table in [59] below). As the Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 (Camilleri) stated at [24-27], the Tribunal must first assess (before balancing the public considerations for and against disclosure) whether the effect of the claimed public interest considerations against disclosure under the relevant (i.e. relied on by the Respondent) Items in the Table ins 14 GIPA Act are established at a systemic level and then ask whether the disclosure of the Relevant Information 'could reasonably be expected' to have the specified effect. If so, such are then to be considered in the Tribunal's balancing exercise noted below. As emphasised in earlier Appeal Panel decisions, Camilleri and (Commissioner of Police, NSW Police Force v Barrett (No.2) [2016] NSWCATAP 86 (Barrett 2)) at [50]), at the outset of the weighing process required by s 13 GIPA Act the Respondent's case must be assessed at the systemic level as that is the way the protections given by many of the s 14 Table considerations are cast. However, the Respondent does not succeed simply because it establishes the systemic aspect of the case, it must also make out the particular concerns in the instant case (i.e. in relation to the Relevant Information): Barrett 2 at [50] and [84] and Camilleri at [26-30]. It is then necessary for the Tribunal to allocate weight to each of the public interest considerations for and against (i.e. those where the claimed effect is reasonably expected) disclosure, followed by a process of weighing in the balance those positive and negative elements for each of the Relevant Information to reach a decision as to whether or not access should be granted to that information (i.e. when the negatives outweigh the positives, access should not be granted): Camilleri at [24-27] and Barrett 2 at [17-22]. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at [74]. In addition to the above, the Appeal Panel in the DYD Appeal Decision, specifically noted in setting aside Order 3 of the Original DYD Decision: "[50] ... the Tribunal did not separately specify the public interest considerations in favour of disclosure for each item of information in Amended Schedule Band Schedule C ... [66] ... the Tribunal should have asked itself whether the public interest considerations against disclosure in s13 outweighed the public interest considerations in favour of disclosure and made that determination in accordance with the principles of s 15." 32 In paragraphs [58] and [59], where I am satisfied that the effects of each of the relied on public interest considerations against disclosure (as listed in the Table in s 14 GIPA Act and as noted in column 3) of the table in [58] and column 4 of the table in [59] below) have been established (see [27]) above) I have weighed them against the public interest considerations in favour of disclosure (as noted in column 2 of the table in [58] and column 3 of the table in [59] below).

The Appellant's evidence on appeal

The Appellant filed an open appeal bundle (comprising two volumes) and a confidential appeal bundle. The Appeal Panel received this material and made orders pursuant to s 64(1)(c) and (d) of the NCAT Act prohibiting the publication of the material in the confidential appeal bundle and restricting the disclosure of the material in the confidential appeal bundle to the Commissioner of Police, the legal representatives for the Commissioner of Police and the Tribunal.
The Appeal Panel also conducted part of the hearing of the appeal in private in order to permit the Appellant to make submissions concerning the confidential bundle.
Orders pursuant to s 49(2) of the NCAT Act were made in order to permit the private hearing of the appeal.
Subsequently an order was also made pursuant to s 64(1)(b) of the NCAT Act prohibiting a publication or broadcast of any report of the confidential part of the appeal hearing.

Is leave to appeal required?

Pursuant to s 80(2) of the NCAT Act, an appeal lies to the Appeal Panel as of right on a question of law and otherwise with the leave of the Appeal Panel.
The parties made submissions as to whether the question as to the adequacy of the Tribunal's reasons amounted to a question of law.
The Appellant submitted that the traditional view was that the issue of whether or not a Tribunal's reasons were adequate raised a question of law. The Respondent, in extensive written submissions, argued that this did not raise a question of law but was in fact a question of fact or a mixed question of fact and law.
In Orr v Cobar Management Pty Ltd [2020] NSWCCA 220; 103 NSWLR 36 Bathurst CJ and Bell P held at [52] that an 'error of law' might nevertheless not qualify as a 'question of law'.
Their honours emphasised at [40] that: The expression 'question(s) of law' and cognate expressions are not deployed uniformly in the statute books and, as shall also be seen, there is no universal meaning or understanding of what is a question of law. Like any statutory expression, its meaning is ultimately to be derived from its statutory context and by reference to the purpose of the provision and statute in which it appears.
The orthodox view in the Appeal Panel of this Tribunal has been to follow the decision of Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 where at [13] the Appeal Panel set out a non-exclusive list of questions of law which included whether there has been a failure to provide proper reasons. In particular, in Commissioner of Victims Rights v Lechminka [2022] NSWCATAP 185 at [8] - [9], the Appeal Panel considered the effect of Orr v Cobar Management and proceeded at [10] to continue to apply the non-exclusive list from Prendergast: A non-exclusive list of questions of law, which relevantly includes whether there has been a failure to provide proper reasons, whether there was a failure to afford procedural fairness and whether the Tribunal failed to take into account relevant (in the sense of mandatory) considerations.
Other Appeal Panel decisions that recently have continued to cite in support the questions of law outlined in Prendergast include Scone Diesel Pty Ltd v Hall [2023] NSWCATAP 189 at [4]; Starr v Johnston [2023] NSWCATAP 190 at [23] and Makkar v Solar Power Nation Pty Ltd [2023] NSWCATAP 187 at [8].
Accordingly, whilst the question cannot be regarded as free from doubt or authoritatively determined by the Courts in NSW, we think it is best to follow the orthodox view of the decisions of the Appeal Panel of this Tribunal to the effect that the question as to whether or not a Tribunal's reasons are adequate is a question of law and leave to appeal is not required.

Appellant's submissions

The Appellant first referred to the Tribunal's conclusion at [46] in respect of the Appellant's evidence where the Tribunal stated: 46 Cl Holgate's evidence (in both of his affidavits and his appearance before the Tribunal) was detailed and his explanations of the findings of the various audits and in respect of the Relevant Information was extremely helpful to the Tribunal. However, some of Cl Holgate's evidence, especially in the Cl Holgate Second Affidavit, relates not to the information sought by the Applicant in response to Items 4(b) - (f) of the June 2019 Application (i.e. the Relevant Information) but to the actual content of the underlying "COPS Events" which were accessed and which is not the subject of the 2023 Administrative Review of the Decisions. I therefore have not considered this and limit these Reasons for Decision to the Relevant Information to be released or not released (as the case may be) as requested and responsive to Items 4(b) - (d) and (f) of the June 2019 Application (see [3] above).
According to the Appellant, this meant the Tribunal accepted CI Holgate's evidence. However, the Appellant pointed out that in respect of the key findings of the Tribunal at [58] and [59] in some respects the Tribunal was not satisfied by the Appellant's evidence.
In particular, the Tribunal concluded that the evidence did not persuade the Tribunal of the existence of any public interest factors against disclosure when it came to lines/entities showing as any of 'D', 'U', 'DC' or 'UC'. On the other hand, for other particular transaction types listed such as 'E', 'DA' or 'UA' the Tribunal was satisfied by the evidence that the public interest factors against disclosure was made out and indeed outweighed the public interest factors in favour of disclosure.
According to the Appellant, this bold statement of conclusion was devoid of any reasoning as to why the Tribunal came to the conclusion that it did. The Appellant's case was rejected in relation to specific transaction types within the reverse audit reports but not in relation to other specific transaction types.
In essence, the Appellant complained that the Tribunal's reasons contained no meaningful explanation of the reasoning process as to how the Tribunal applied the law to the factual context or why.

Respondent's submissions

The Respondent's submissions centred almost exclusively upon a recitation of many of the authorities in the field of inadequacy of reasons. We canvas many of these leading decisions in our consideration below. Most of these authorities are not controversial and canvas general principles.
Apart from extensive reference to this caselaw, the Respondent did not set out any argument as to specifically why in the case before us the reasons should be regarded as adequate including by reference to the cases canvased by the Respondent in his written submissions.
At the hearing we gave the Respondent leave to make further submissions in writing in support of his application for the Appellant's submissions in reply to be struck out in full or, in the alternative, in part. Those submissions were received and have been considered. They do not alter the view that we have come to as to how this appeal should be resolved.

Consideration

In the Court of Appeal Decision of New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr's case), Bell P stated the following at [53] - [55]: 53 In the present case, the record did not make it clear whether or not the Tribunal's reasons were produced as a result of a request for reasons pursuant to s 62(2) of the CAT Act or whether the "decision" of the Tribunal was in fact contained in and communicated by the reasons delivered by the Tribunal on 16 January 2018. 54 Section 62(2) of the CAT Act might be thought to imply, on its proper construction, that, absent a request for reasons, reasons are not required for a decision of the Tribunal but this point, as Ward JA has pointed out in her concurring judgment, was not explored in argument. 55 Section 62(3) of the CAT Act only applies, in terms, to "a written statement of reasons for the purposes of this section." Arguably, that confines its operation to reasons supplied pursuant to a request by a party for reasons after having been notified of a decision by the Tribunal. It is not unreasonable, however, to suppose that s 62(3) supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2). The balance of these reasons proceeds on that basis.
We were not informed that the Decision was issued following a request for a written statement of reasons and apprehend that the Decision was published to the parties without such a request as that is the usual position with respect to proceedings of the kind before us.
The Respondent did not challenge the proposition that there was a legal obligation on the Tribunal to produce adequate reasons for its Decision.
Accordingly, we intend to proceed in our reasons on the presumption shared by the parties that the Tribunal was under an obligation to provide adequate reasons and that s 62(3) of the NCAT Act supplies some important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request pursuant to s 62(2).
The general principles applicable to the requirement on the part of the Tribunal to provide adequate reasons have been explained in recent decisions, including Orr's case at [65] - [77]; Rice Marketing Board for the State of New South New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 at [271] - [219] and Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58].
In Gautam v Health Care Complaints Commission [2021] NSWCA 85, Leeming JA, with whom Payne JA and Simpson AJA agreed, stated at [18]: It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn.
In Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254, the Appeal Panel upheld an appeal on the basis of inadequate reasons at [66]: The Tribunal found that there was little or no evidence to support the Council's reliance on various public interest considerations against disclosure. The Tribunal came to that view without explaining why it rejected the detailed evidence provided by Destination NSW. The Tribunal should have explained to the parties why that evidence was not persuasive. The parties were unable to see, from the Tribunal's reasons, the extent to which its case was understood and accepted or rejected.
A similar example of an appeal succeeding on the basis of inadequate reasons is Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 at [227] - [228]: 227 Central to the ultimate decision made by the Tribunal to order that the Reporting Letters be disclosed in part was its decision to attribute moderate weight to the public interest considerations against disclosure in cll 4(c) and (d) as they relate to the Redacted Information. The Tribunal did not expressly address why it made a different finding - to attribute modest weight to those public interest considerations against disclosure - with respect to the same or similar material contained in other parts of the Reporting Letters and the Independent Verification Reports. 228 Assessed overall, the Tribunal's reasons not only met but exceeded the minimum standard (accepting that s 62(3) of the NCAT Act provides guidance in this regard). The Tribunal gave detailed, comprehensive, cogent and persuasive reasons for the facts found and conclusions reached. However, as stated above, the Tribunal failed to set out the reasoning path which led it to make apparently anomalous findings with respect to the weight attributed to the Redacted Information and the weight attributed to the same or similar information in the Reporting Letters and Independent Verification Reports. This was a material issue. It may be that the Tribunal concluded that the disclosed information relating to market share in both sets of documents was already in the public domain (see for example, the Decision at [169]). Alternatively, the Tribunal may have considered that the Redacted Information and the disclosed information relating to market share were materially different. A further possibility is that the Tribunal mistakenly attributed modest weight to the latter or moderate weight to the former. Whatever the explanation, we are unable to discern the reasoning process which led the Tribunal to attribute different weight to the Redacted Information and the same or similar material it ordered be disclosed in the Reporting Letters and the Independent Verification Reports.
Applying these principles to the case before us, the first matter for consideration is to highlight the critical evidence that was before the Tribunal. The evidence before the Tribunal, in detailed form from the Police, was that disclosure of the relevant COPS entries would compromise, or be reasonably expected, to compromise the work of the Police. That evidence was in its terms equally applicable to all of the different types of lines/entries including for example 'D', 'U', 'DC', 'UC' (i.e., those records of delete, update, delete confirm and update confirm) as well as other types of lines/entries such as 'E', 'DA', 'UA' (i.e. those records of enquire, no delete performed and no update performed).
Nextly, when the Tribunal came to its conclusion on this evidence, its critical findings (at [58] and [59]) was to the effect that the evidence did not persuade the Tribunal in respect of lines/entries of the types showing as any of 'D', 'U', 'DC' or 'UC', but the evidence did persuade the Tribunal that there was a public interest consideration in favour of non-disclosure for other codes including 'E', 'DA' or 'UA'.
In this regard, we note that the conclusion of the Tribunal was simply that. There was a bare statement of the conclusion without any other underlying reasoning or reference back to the evidence in question.
Of particular relevance to us is the fact that the distinction drawn by the Tribunal between the lines/entries showing as any of 'D', 'U', 'DC, 'UC' and the other entries in the reverse audit reports treated differently by the Tribunal is unexplained in the Tribunal's reasons.
The nature of the evidence that was before the Tribunal and the nature of the distinction between the different types of lines/entries leaves us unable to ascertain on what basis the Tribunal made the distinction that it did between the different types of lines/entries.
In this regard, we think the present case has similarities with those of Newcastle City Council and Rice Marketing Board as set out above. The Tribunal essentially stated a conclusion but failed to set out the reasoning process that led to that conclusion.
In considering the obligation of the Tribunal to give adequate reasons, we are mindful of the remarks of Bell P in Orr's case at [65] - [77], In particular, our task is not to determine the optimal level of detail required in reasons for decision but rather the minimum acceptable standard: at [66].
Further, we are also mindful that the significant volume of work undertaken by the Tribunal can allow for a more relaxed review of reasons by the Appeal Panel: Orr's case at [70].
However, that having been said, Bell P pointed out that certain minimum characteristics must be present in a Tribunal's reasons including those set forth by s 62(3) of the NCAT Act: Orr's case at [71].
Section 62(3), however, still leaves for consideration the question as to the quality or detail of the reasoning process that must be exposed: Orr's case at [72].
We take it from Bell P's discussion of the leading authorities in Orr's case the following two propositions: first, that a detailed exposition of every aspect of the evidence and the arguments and conclusion upon them is not required, but that, second, an essential statement of the reasons on the core controversies before the Tribunal so as to allow the parties to understand the reasoning process that lead the Tribunal to the conclusions that it made, is required: Orr's case at [71] - [77].
In assessing whether or not the reasons here can be regarded as adequate, we also have regard to the principle that while a judge does not have to state reasons for every aspect of the case, her reasons must be sufficient to satisfy the requirements of Pettitt v Dunkley [1971] 1 NSWLR 376.
As Stein JJA stated in Jung v Son [1998] NSWCA 120 at [6]: The reasons must be sufficient to enable an appellate tribunal to gain a proper understanding of the basis of the verdict. … Failure to give reasons also makes it impossible for an appellate tribunal to give effect to a plaintiff's right of appeal. Issues critical to the case, as these were, must be dealt with by reasons.
In our view, the reasons given by the Tribunal are inadequate essentially because there is no exposed reasoning as to why the Tribunal rejected the evidence for some entries but accepted the evidence for other entries.
In our view, the failure to explain its critical reasoning for making this conclusion, has deprived the Appellant from any meaningful right to challenge the conclusion on appeal.
Whilst there may be cases where the exposed reasoning allows the Appeal Panel to assume implied findings, this is not such a case.
The nature of the evidence that was before the Tribunal and the nature of the different types of entries in question leave us unable to know why the Tribunal came to the conclusion that it did and what implied findings it made along the way to come to those conclusions.
In the result, we uphold ground 1 of the appeal.

Ground 2: Unreasonableness

In light to our conclusion as to ground 1, it is not necessary for us to determine ground 2 of the appeal.

Reconsideration

We are mindful that the evidence in this matter was extensive and there was also cross-examination. We have not had the benefit of any cross-examination before us.
Further, the Respondent, who was self-represented, did not provide any written or oral submissions as to how we should deal with the appeal on a reconsideration. In order to ensure procedural fairness, if we were to determine the matter for ourselves, we would have felt the need to invite further submissions from the parties and in particular from the Respondent.
Further, the Respondent may wish to seek a further oral hearing of this matter or lead fresh evidence. The obligation on the Appeal Panel on reconsideration would be for us to step in the shoes of the Tribunal and make the correct and preferrable decision on the basis of the material at the time of such reconsideration. In such a case there is always the possibility of further evidence being received.
In light of these considerations, we think the just, quick and cheap resolution of the outstanding dispute between the parties would be to refer the matter back to the Tribunal differently constituted for reconsideration in accordance with these reasons with or without further evidence as the Tribunal may consider.

Disposition

The orders of the Appeal Panel will be: 1. Appeal upheld. 2. Set aside the orders of the Tribunal. 3. Remit the matter back to the Tribunal differently constituted for reconsideration in accordance with these reasons with or without further evidence as the Tribunal may consider. 4. Pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 the publication of the material in the confidential appeal bundle tendered in the appeal proceedings is prohibited and disclosure of the material in the confidential appeal bundle is restricted to the Commissioner of Police and the legal representatives for the Commissioner of Police and the Tribunal. 5. Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 the publication and broadcast of any report of the confidential hearing of the appeal is prohibited. 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: 29 August 2023

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (18)

Cited By (5)