Danis v Commissioner of Police

Danis v Commissioner of Police - [2021] NSWCATAP 23 - NSWCATAP 2020 case summary — Zoe

In May 2015, Mr Danis made an "access application" under the GIPA Act to the Commissioner requesting two event records created on 15 March 2014 and held in the Computerised Operational Policy System of the NSW Police Force ("COPS"); and a DVD containing the recording made by Police of the Subject Interview (the first access application). The Commissioner decided to release one COPS event record in full and the other in part. The Commissioner refused to release the DVD on the ground that there was an "overriding public interest against disclosure".
The Tribunal remitted that decision to the Commissioner. In a supplementary decision, the Commissioner released the second COPS report in full. However, having found s 60(1)(d) of the GIPA Act was satisfied, the Commissioner exercised the discretion not to deal with Mr Danis' request for the DVD. Section 60(1)(d) provides: 60 DECISION TO REFUSE TO DEAL WITH APPLICATION (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): … (d) the information is or has been the subject of a subpoena or other court order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order.
The Tribunal set aside the Commissioner's decision not to deal with the application access and ordered release of the DVD to Mr Danis.
The Commissioner lodged an "internal appeal" with NCAT against that decision. An Appeal Panel of NCAT allowed the appeal, set aside the decision to release the DVD and remitted the application for review to the Tribunal: Commissioner of Police v Danis [2017] NSWCATAP 7. On remittal, the Tribunal found s 60(1)(d) to be established (the information is or has been the subject of a subpoena or other order of a court for the production of documents) and decided to affirm the Commissioner's decision to refuse to deal with the application: Danis v Commissioner of Police [2017] NSWCATAD 144.
In July 2019, Mr Danis made a second access application, on this occasion requesting both the written transcript and the electronic recording of the subject interview. The Commissioner refused to release this information on the ground that there was "an overriding public interest" against disclosure. Mr Danis applied to NCAT for review of that decision. The Tribunal affirmed the Commissioner's decision: Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138.
Mr Danis now appeals against that decision. That appeal is the subject of these reasons.
In its reasons for decision, for ease of reference, the Tribunal referred to the electronic recording and the written transcript of the subject interview collectively as "the DVD". We adopt that description.

[2]

Tribunal's reasons for decision

In its reasons for decision, after setting out the background facts, the Tribunal identified five issues to be determined. 21 The first issue that needs to be determined in these proceedings is whether the Tribunal should, by operation of section 60(1)(b) of the GIPA Act, refuse to deal with the access application, because the Commissioner has already dealt with and refused an earlier application for access to the same or substantially the same information. 22 The second issue that arises is, if the Tribunal finds that the discretion under s 60(1)(b) is not engaged or should not be exercised in this matter, whether the Commissioner was justified in refusing to release the information on the basis that there is an overriding public interest against the disclosure of the information pursuant to clause 1(d) and (g) and clause 3 (a), (f) and (g) of the table to s 14. In order to answer that question, the Tribunal needs to determine whether the DVD information, if released, would give rise to a public interest against disclosure on the ground that: (a) Clause 1 (d) disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (b) Clause 1 (g) disclosure could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (c) Clause 3 (a) disclosure could reasonably be expected to reveal an individual's personal information, (d) Clause 3 (f) disclosure could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation, (e) Clause 3 (g) in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed. 23 The third issue relates to Mr Danis' repeated claim that the Commissioner has used the public interest considerations under the GIPA Act to refuse access to the DVD in order to conceal NSWPF misconduct. That in effect will require the Tribunal to decide whether there is any evidence to support an allegation that the NSWPF has failed to exercise the functions under the GIPA Act in good faith. 24 The fourth issue is to identify the public interest considerations in favour of disclosure of the information that are relevant to the release of the DVD. 25 The fifth issue is to determine whether the public interest considerations against disclosure of the DVD claimed by the Commissioner outweigh the public interest considerations in favour of disclosure.

[8]

Statutory framework

The objects of the GIPA Act are set out in s 3(1): (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
Section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the object of that Act, and that the discretions conferred by that Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The information the subject of Mr Danis' "access application" is "government information" held by an "agency", namely the NSWPF: see the definitions of those terms in s 4(1) of the GIPA Act.
Section 5 of the GIPA Act creates a "presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure".
Section 9(1) provides that: a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
Section 12 states: Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. ...
The note to s 12(2) gives examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 13 sets out the test to be applied in determining whether there is an overriding public interest against disclosure of government information: 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.
Section 14 restricts the public interest considerations against disclosure that a decision maker can take into account when applying the public interest test in s 13: (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
The public interest considerations against disclosure listed in the Table to s 14, which are relevant to this appeal, are cll 1(d), 1(g), 3(a), 3(f) and 3(g): 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) - ... (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, ... (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. … 3 Individual rights, judicial processes and natural justice 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 - (a) reveal an individual's personal information, … (f) expose a person to a risk of harm or of serious harassment or serious intimidation, (g) in the case of the disclosure of personal information about a child ..the disclosure of information that it would not be in the best interests of the child to have disclosed.
Section 15 requires that the determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with five principles: Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act; (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner; (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account; (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account; (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Section 55 of the GIPA Act permits the Tribunal to take into account "personal factors of the application": Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. ...
Section 100(1) of the GIPA Act gives a person aggrieved by a "reviewable decision" of an agency a right to apply to NCAT for an administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The Board's decision is a reviewable decision: GIPA Act, s 80(d). The burden of establishing that a reviewable decision is justified lies on the agency: GIPA Act, s 105(1).
In determining an application made under s 100(1) of the GIPA Act, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it: ADR Act, s 63(1). In determining that application, the Tribunal may affirm, vary, set aside the reviewable decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).

[11]

The purported failure to have regard to Mr Danis' submissions

A failure to consider a "substantial, clearly articulated argument relying upon established facts" may amount to a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; 77 ALJR 1088 (Dranichnikov) at [24]. However, as Basten JA explained in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [22], there are important limits to the principles in Dranichnikov and it did not go "so far as to imply an obligation to consider every piece of evidence presented".
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (Applicant WAEE), at [46]-[47], French, Sackville and Hely JJ explained: It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived... The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant on that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In detailed written submissions dated 30 July, 3 September and 22 September 2020, Mr Danis repeatedly asserted that the Tribunal "failed to consider" and/or "failed to give adequate weight" to "relevant authorities" cited in his written and oral submissions. In many instances, Mr Danis failed to identify the proposition that the cited case was said to be authority for and the issue it was said to relate to. For example, in submissions dated 30 July 2020 at [1], Mr Danis submitted: The reasons for judgment failed to consider the following relevant authorities cited in my written or verbal submissions which are relevant and applicable to the issues in dispute and support the release of the information applied for: a. JY v Commissioner of Police, NSW Police [2008] NSWADT 306 (JY v CoP) at: [22]-[25] [29] [31] [38] [41] [49]-[50]-[51] [54]-[60] [61]-[66] [68] [73]-[75] [77]- [79] and the internal citations within these paragraphs. Refer my written submissions filed 19 March 2020 at [3] [24] [77.b] and [79].
With a broad submission of this type it is difficult if not impossible to determine whether, as asserted, the Tribunal "failed to consider", the cited case, less still whether the Tribunal was obliged to do so. While some indulgence should be granted to Mr Danis as a self-represented party, the role of the Appeal Panel is not to second guess which principle the Tribunal is said to have failed to take into account.
In this appeal, we have taken the approach of restricting our consideration to those submissions where the proposition the cited authority is said to establish and the issue to which it is said to relate, are reasonably clear.

[13]

Consideration

At [56], the Tribunal correctly identified that cl 1(d) requires the subject information be "confidential" information; that it be information that facilitates the exercise by the agency of its functions; and that disclosure of that information could prejudice the supply of such information. Ground of appeal 1A relates to the first and third limbs of cl (1)(d).
At [26] and [37], the Appeal Panel in Camilleri, stated that the s 14 public interest considerations against disclosure "are concerned with systemic features of the operation of government" and need to be examined "at a broad operational level". At [33]-[34], the Appeal Panel stated that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". That inquiry should "focus on the point of receipt, and the administrative standards and community understandings which surround it".
Adopting that approach, the Tribunal stated at [64]: "I am required to assess this requirement [that the information be confidential] at a broad operational level rather than "considerations connected with the particulars of the instant situation". The Tribunal went on at [68] to accept the evidence given by Detective Ferns, the Team Leader of the Child Abuse and Sex Crimes Squad of the North West Metropolitan Child Abuse Unit, who the Commissioner called to give evidence, that in "the context of child abuse cases, complainants would be assured at the time they provide their information to the NSWPF that the information would be kept confidential and that it would not be disclosed unless required in criminal proceedings".
Citing Camilleri, at [62] the Tribunal stated that the question posed by the third limb of cl 1(d): [I]s not … whether it would reasonably be expected that a particular person considering disclosure may refuse to supply such information but rather whether the agency's general ability to obtain such information in the future would be likely to be prejudiced.
The Tribunal went on at [34] to conclude: [I]t is a core function of the NSWPF to investigate and take enforcement action in relation to cases of child abuse and assault and that disclosure could reasonably be expected to prejudice (or impair) the effective exercise by police of their investigative and law enforcement functions.
Mr Danis contends that the principle stated in Camilleri is "contrary to the objects of the GIPA Act" and is "contrary to the well-established and widely accepted principles that each case is unique and ultimately turns on its facts and must be determined by reference to its particular characteristics". He points out that the words "broad operational level" and "systemic features" are not contained in s 14, or any other provision of the GIPA Act.

[14]

Consideration

The effect of Mr Danis' submission is that the Tribunal should have restricted its consideration to whether it could reasonably be expected that the child may have refused to supply information to the NSWPF about the alleged assault had he anticipated that that information would not have been treated in confidence.
The following textual and contextual factors do not support that proposition.
First, the chapeau to cl 1 in the Table to s 14 expressly permits the decision maker to inquire whether disclosure of the subject information could reasonably be expected to have one or more of the effects listed in that clause, both in "a particular case" and "generally": 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) (emphasis added).
Second, when read in context it is plain, as explained by the Appeal Panel in Camilleri at [29], that the considerations listed in cl 1 "squarely focus on considerations relating to the conduct of the business of government" and that the relevant inquiry is whether disclosure of the subject information could reasonably be expected to have one or more of the listed effects, such as: prejudicing collective Ministerial responsibility (para (a)); prejudicing relations with, or the obtaining of confidential information from, another government agency (para (c)); prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (para (d)); prejudicing the effective exercise by an agency of the agency's functions (para (f)).
The Tribunal was entitled, as it did, to inquire whether it could reasonably be expected that in the future the NSWPF's ability to obtain information from the victims or alleged victims of child abuse and assault would be prejudiced by disclosure of the DVD. We reject Mr Danis' submission that by posing that question and considering the practices and procedures adopted by the NSWPF in its treatment of information given by victims or alleged victims of child abuse and assault, the Tribunal misapplied cl (1)(d). We note that the Tribunal was also entitled to consider whether disclosure of the subject information could reasonably be expected to have one or more of the effects listed in that clause, in "a particular case". To the extent Camilleri suggest otherwise we disagree.
Despite stating that at [62] that the question posed by cl 1(d) was not whether it could reasonably be expected that "a particular person considering disclosure may refuse to supply such information", the Tribunal at [69] did go on and address that question. The Tribunal rejected Mr Danis' submission that there was "no obligation or understanding of confidence in relation to the police interview because his son knew and expected that the information would be provided to Mr Danis and used in the family law proceedings", reasoning at [69]: [T]here is no evidence in [Mr Danis'] affidavit which establishes his son's understanding or knowledge that the contents of his interview would be used in the family law proceedings or shared with his father. Mr. Danis made that contention in his submissions but that is not evidence of the facts asserted. Indeed, according to Mr. Danis notes from his inspection of the DVD in the family law proceedings (at page 115 of his affidavit), his son did not want the contents of the interview to be disclosed unless, as the investigating officer suggests in the interview, the matter ended up in court. In the second place, the NSWPF would not be relieved of their obligation of confidence simply because Mr. Danis' son chose to discuss the contents of the police interview with his father. In the third place, Mr. Danis' son was a child aged 10 years at the time of the police interview, and was not, in my view, capable of giving his consent to the disclosure of the information.
Ground 1A fails.

[15]

Ground 1B: purported misapplication of para (e) in the Note to s 12(2)

Mr Danis contends that in deciding whether the public interest consideration in favour of disclosure in para (e) in the Note to s 12(2) applied, the Tribunal applied the "wrong test" and "held him to a higher onus of proof". In support, he points to the Tribunal's use of the expression "as a matter of objective fact".
At [115]-[117], the Tribunal gave two reasons for rejecting Mr Danis' contention that disclosure of the DVD "could reasonably be expected to reveal or substantiate that [the NSWPF] (or a member of [the NSWPF]) has engaged in misconduct or negligent, improper or unlawful conduct":
the timing of the alleged misconduct, namely the investigation by NSWPF of the alleged assault of Mr Danis' son and the decision to terminate that investigation and not lay criminal charges. The Tribunal reasoned that because the alleged misconduct is said to have occurred after not during the police interview with Mr Danis' son, any alleged misconduct would not be revealed or exposed by disclosure of the DVD;
the lack of evidence to support "a reasonable basis" from which to conclude that the DVD could reasonably be expected to reveal or substantiate that the NSWPF "has engaged in misconduct or unlawful conduct". The Tribunal did not accept Mr Danis' submission that his affidavit established "proof of the misconduct alleged".
Mr Danis' contention that the Tribunal "held him to a higher onus of proof" centres on para [117], where the Tribunal elaborated on the second of these reasons: In this connection, I reject Mr. Danis' submission that his affidavit is proof of the misconduct alleged in his submissions. I do not consider that the material referred to in, or the documents annexed to his affidavit substantiate the facts and allegations asserted in his written submissions or establish, as a matter of objective fact, that the police had falsified records or acted unlawfully in relation to their investigation of the assault incident. Taken at its highest, and adopting a benevolent approach to his affidavit, Mr. Danis strongly believes the NSWPF have engaged in serious misconduct in their investigation of the alleged assault, but the fact that he strongly holds those beliefs does not turn them into matters of fact as opposed to mere assertion or allegation. I have come to this conclusion for the limited purpose of determining whether there is a reasonable basis for concluding that the disclosure of the DVD could reasonably be expected to reveal police misconduct. Of course, it is not the function of the Tribunal in these proceedings to finally determine the substantive merits of Mr. Danis' complaints of police misconduct or for these proceedings to be used as a vehicle for the collateral review of the merits or validity of the action taken by the NSWPF in relation the assault incident. (emphasis added)
A fair reading of [117] indicates that in using the expression "as a matter of objective fact", the Tribunal was simply seeking to distinguish between objective fact and subjective belief. In rejecting Mr Danis' submission that "his affidavit is proof of the misconduct alleged", the Tribunal was making the unremarkable point that Mr Danis' subjective belief did not establish the truth of the "assertions or allegations" of Police misconduct contained in his affidavit.
The relevant inquiry required by para (e) was whether disclosure of the DVD "could reasonably be expected to reveal or substantiate" that the NSWPF had engaged in misconduct. Self-evidently that inquiry was directed at the effect of disclosure of the DVD. Whether there was some basis for Mr Danis' allegation that Police had "falsified records or acted unlawfully in relation to their investigation of the assault" is a separate and distinct question. The applicable test was not as Mr Danis appears to contend, whether the material on which he relied could reasonably be expected to establish that the NSWPF had engaged in misconduct. The Tribunal was entitled, as it did, to consider whether there was some basis for that belief.
At [116] the Tribunal stated, "there would need to be a reasonable basis, by reference to the evidence, for the Tribunal to conclude that the DVD could reasonably be expected to reveal or substantiate a finding that the agency has engaged in misconduct or unlawful conduct" (emphasis added). At [117], the Tribunal rejected Mr Danis' submission that the material he relied on to substantiate "that the police had falsified records or acted unlawfully in relation to their investigation of the assault incident" could be used "for the limited purpose of determining whether there is a reasonable basis for concluding that the disclosure of the DVD could reasonably be expected to reveal police conduct".
Read fairly and as a whole, the Reasons do not reveal that the Tribunal misapplied para (e) or held "held him to a higher onus of proof".
Ground 1B fails.

[16]

Ground 1C: purported misapplication of cl 3(a) of the Table to s 14

In written submissions in support of this ground, Mr Danis provided a detailed commentary on the principle of open justice; the application of that principle to the Family Court of Australia; and the history to s 121 of the Family Law Act 1975 (Cth). In addition, Mr Danis made several wide-ranging criticisms of the Family Court, asserting it had been "in crisis for decades" and had "degenerated into a sham".
Buried within those submissions, the purported questions of law appear to be whether the Tribunal misapplied cl 3(a) by: 1. failing to have regard to relevant authorities, in particular Richards v Commissioner, Department of Corrective Services (New South Wales) [2011] NSWADT 98 (Richards); and 2. misinterpreting s 121 of the Family Law Act.
Clause 3(a) states that "there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information".
The GIPA Act defines "reveal" to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)": cl 1 of Sch 4.
Section 121 of the Family Law Act makes it an offence to publish, broadcast or otherwise disseminate to the public or to a section of the public by any means, any account of any proceedings that identifies: a party to the proceedings; a person who is related to a party to the proceedings or a witness in the proceedings: s 121(1).
The Tribunal concluded that disclosure of the DVD could reasonably be expected to reveal the child's personal identity, and therefore cl 3(a) of the Table to s 14 applied.
The Tribunal accepted, as submitted by Mr Danis, that the DVD had been played in open court in proceedings in the Family Court. The Tribunal then went on to ask (at [83]), whether the child's personal information had already been "revealed" because: 1. the DVD of his interview with the police had been played in open court; and 2. the personal information of the child contained in the DVD was referred to in the judgment issued by the Family Court.
In considering the first of these questions, the Tribunal described as "particularly apposite", the decision of Richards, on which Mr Danis relied. In Richards, the ADT held at [37], [41], that personal information contained in a Queensland Police Service Court Brief which had been "publicly disclosed in open court in the Queensland Magistrates Court in the usual course of events", had been revealed for the purpose of the GIPA Act.
At [85], the Tribunal stated that the reference in Richards to "publicly disclosing information in open court, in the usual course of events" embraces both the disclosure of that information to those members of the public who were present in court and could hear what was being said but also to the disclosure of that information to the "world at large". The Tribunal noted at [87] that the proceedings in the Queensland Magistrates Court that were the subject of Richards were apparently not subject to a suppression or non-publication order or any statutory prohibition on reporting the matters disclosed throughout the hearing.
The Tribunal observed that "different considerations operate in relation to family law proceedings", noting at [87] that while proceedings in the Family Court are: [G]enerally held in open court under s 97 of the FLA and those present in court can hear the names of the parties and witnesses and any other personal information to which reference is made during the proceedings, s 121 prohibits the publication or dissemination beyond the courtroom, to the public at large, of an account of the proceedings which identifies the parties or those related to them.
Applying that analysis, the Tribunal concluded at [88] that Richards was distinguishable because of "the very different nature of the proceedings and legal framework in which the information was disclosed": While the DVD was disclosed in the court room in the family law proceedings, the public at large (that is to say, those outside the courtroom) would not have access to the identifying information because of the restriction on publishing and reporting that information imposed by s 121 of the FLA.
For broadly the same reasons, the Tribunal concluded at [90] that the child's personal information had not been revealed in the judgment handed down by the Family Court. The Tribunal noted that the name of the judgment was published using a pseudonym and the judgment referred to the parties by surnames different to their own and to the child in an anonymised way. Because of this, the Tribunal reasoned that "the child's personal information has not been publicly disclosed to the world at large".

[20]

(1) Purported failure to consider the cross-examination of Detective Ferns

Mr Danis contends that his cross-examination revealed Detective Ferns to be an unreliable witness, whose evidence was rehearsed and who failed to answer questions put to him. Mr Danis asserts that the Tribunal's "findings at [66] … are contradicted by the exchanges on pages 6-26 of the extract of the transcript … which document almost the entire cross-examination of DS Ferns".
In addition, Mr Danis asserts that the Tribunal failed to have regard to his written submissions, in which he asserted that Detective Ferns: 1. was more interested in protecting all alleged offenders of assault than Mr Danis' son; 2. expressed that he had limited knowledge of the "matter before the Tribunal" but stood by the position taken by the NSW Police in relation to certain issues and risks identified in respect of the release of the DVD; 3. did not accept that Mr Danis had not caused psychological harm to his son; 4. did not accept that the NSWPF had sufficient evidence, in the form identified by Mr Danis, to prosecute the partner of Mr Danis' former wife for assault.
The Tribunal rejected Mr Danis' submission that Detective Ferns was an "unreliable and evasive witness" reasoning at [66]: I reject Mr. Danis' submissions that Detective Ferns is an unreliable and evasive witness who under cross-examination did not answer the questions put to him directly and truthfully and gave evidence that was rehearsed. Mr. Danis listed several matters in his additional submissions in reply as impacting on Detective Ferns' credit. I do not propose to outline the particular categories of attack on Detective Ferns' evidence in these reasons. Overall, I found Detective Ferns to be a straightforward witness who answered the questions and propositions put to him by Mr. Danis during cross-examination in a direct and logical way. Nothing said in cross-examination leads me to doubt his evidence. While Mr. Danis was dissatisfied with some of Detective Ferns' responses during cross-examination that does not render his evidence false or unreliable. I will consider the weight to be given to Detective Ferns' evidence in relation to each of the public interest considerations separately below
Mr Danis gives several examples where, he asserts, Detective Ferns was being evasive and refused to answer his questions. These include (Example 1): DANIS: Ah, I suggest to you Detective Ferns that, in the particular circumstances of this case ah, it can be safely ah, said that neither the community, nor myself, nor my son … trust the Police because of the police approach to his assault. FERNS: Is that what you are telling me, or is that what you are asking me? DANIS: That is what I am asking you. You are assuming in your affidavit that the public trust the Police and I am putting it to you that the public don't trust the Police. FERNS: Well, the public do trust Police because we solve crime. DANIS: Ah, I put it to you that you had a crime here, right before you with admissions from the, from, from the assailant and you protected the assailant rather than the victim. FERNS: No that's not good because, it's an alleged crime for a start, only the Court can determine guilt. DANIS: So isn't an admission enough to prove an allegation, Detective Sergeant Ferns? FERNS: Is an admission enough to? DANIS: An admission from the accused or the alleged accused, isn't that enough to prove a case? FERNS: No. DANIS: No? It's not enough? FERNS: No. (Transcript of proceedings, Danis v Commissioner of Police, NSW Police Force (NCAT, M Wall, 19 February 2020) (Transcript) p. 9)
A further example, given by Mr Danis of Detective Ferns' alleged evasiveness is the following exchange (Example 2): DANIS: Unfortunately, the Police is the only agency that investigates crimes so it would be great if there was another alternative for the public, other than private prosecution. I suggest to you that given that the evidence in this particular case that you have heard, you were present here, neither [name redacted], neither my son nor I have any reasons to trust the Police, quite the opposite? FERNS: That's a subjective comment, DANIS: Would you agree with that? FERNS: Well, that's what you are telling me, so I have to ... (Transcript pp. 10, 11)
The following exchange is a further example (Example 3): MEMBER: So, you're asking Detective Sergeant Ferns, are there any instances where members of the public have refused to come forward because of a lack in confidence in the Police? DANIS: That's what I asked him, yes. FERNS: So you're saying, are you trying, are you asking me that people don't want to come forward because they don't trust us? DANIS: I'm asking you, that's right, what incidents, how many incidents are you aware that, how many members of the public are you aware that, because the information was disclosed through GIPA, didn't come forward to give, to report a crime? How many? FERNS: I'm not sure how I can even attempt to answer such a question. DANIS: Any? One? Two? FERNS: Well - TIPENE [Commissioner's representative]: If they haven't come forward, how - ? FERNS: How do I know? TIPENE: How would he know? DANIS: So, I put it to you that you can't give one example of anyone not coming forward to the Police because information was released under the GIPA Act, isn't that the case? FERNS: No, the question you're asking is a question that cannot be answered. (Transcript pp. 13, 14)
Many of the questions asked by Mr Danis, were as Detective Ferns correctly observed in relation to Example 3, unanswerable. Neither those particular examples, nor the oral evidence given by Detective Ferns considered as a whole, establish the premise that Detective Ferns evaded the questions asked by Mr Danis.
The Tribunal correctly identified that it was not required to address each and every "particular category of attack on Detective Ferns' evidence". The obligation in Dranichnikov to consider did not extend to arguments which did not rely upon "established facts". The reasons reveal that the Tribunal considered the evidence given by Detective Ferns, including that given in cross-examination, and the submissions made by Mr Danis about that evidence. It was open to the Tribunal to reject Mr Danis' assertion that Detective Ferns gave "false and unreliable evidence".
This contention is not established.

[21]

(2) Purported failure to consider the "admissions" made by Detective Ferns during cross examination

Mr Danis contends that, in rejecting his submission that disclosure of the DVD could not reasonably be expected to adversely affect the willingness of people to report criminal assaults, the Tribunal failed to consider Detective Ferns' "admission" that there is "a lack of trust in the NSW Police".
In cross-examination, Mr Danis put to Detective Ferns that "the public do not trust the Police" to which he replied "[n]othing could be further from the truth". Detective Ferns acknowledged that there were some "rogues" in the NSWPF and throughout Australia and overseas, as was apparent from the "very high profile" cases referred to by Mr Danis. However, Detective Ferns stated that there are "millions of crimes … reported every year and that if people didn't trust the police they wouldn't walk into the front door of a police station". (Transcript pp. 9-11)
At [70], [71] the Tribunal explained its finding that that the third limb of cl 1(d) was established: I am persuaded, based on Detective Ferns' evidence, that the NSWPF depends on the trust and cooperation of victims and witnesses of assault and that the disclosure of information given to them in confidence could reasonably be expected to inhibit victims or witnesses coming forward to police in the future. I am also persuaded that the trust and willingness of victims or witnesses of assault to come forward with confidential information to the NSWPF facilitates the core functions of the police in detecting and investigating criminal assaults.] I reject Mr. Danis' submission that the disclosure of the DVD would not adversely affect the willingness of people to report criminal assaults because there is no public trust in the NSWPF. Mr. Danis put this proposition to Detective Ferns in cross-examination. In his response, Detective Ferns said that was not his experience and rejected the proposition. I accept Detective Ferns' evidence. Contrary to Mr. Danis' submissions, there is no evidence of a crisis of community confidence in the NSWPF.
By suggesting that Detective Ferns' acknowledgement that there are some "rogues" in the NSWPF amounts to an admission that there is a "crisis of community confidence in the NSWPF", Mr Danis misstates the evidence. Detective Ferns did not admit, as Mr Danis contends, that "the public do not trust the Police". Indeed, he expressly disagreed with that proposition.
The premise on which this contention is based is not established.

[25]

Contradictory findings

While some overlap, the questions posed by cl 3(f) and cl 3(g) are separate and distinct. Clause 3(f) is directed at whether disclosure could reasonably be expected "to expose [the child] to a risk of harm or serious harassment or serious intimidation", the latter is directed to whether disclosure could reasonably be expected to "not be in the best interests of the child". The considerations potentially relevant to cl 3(g) include, but are not limited to, whether disclosure could reasonably be expected to expose the child to a risk of harm or serious harassment or serious intimidation.
In rejecting the Commissioner's contention that cl 3(f) applied because Mr Danis "may use the information recorded in the DVD against his son exposing him to a real risk of harm", the Tribunal reasoned at [97]-[99]: First, the Commissioner's evidence shows that Mr. Danis has known about the contents of the DVD for several years. The evidence shows that he watched the DVD and read the transcript when both documents were produced under subpoena in the family law proceedings several years ago. In my view, if any risk does exist, it is small. Second, and relatedly, it is significant that the police records before the Tribunal contain no reports of any current risk of harm to the child. The evidence is four years old. The child was 10 years old at the time of the alleged assault and he is now 16 years. The last COPS entry in evidence before the Tribunal is dated 25 March 2014. There is no evidence before the Tribunal that the family law proceedings referred to in the COPS records are continuing. There is no evidence that Mr. Danis has harassed or intimidated his child other than the concerns set out in the COPS records from 2014. Third, Detective Ferns does not have direct knowledge that disclosure could expose the child to harm and it is clear from his evidence that the 'serious concerns' identified are those of the investigative officers. The Commissioner has made the forensic decision not to put on evidence from the investigating officers. That is his right, however, the Tribunal must be satisfied, on the material before it, to the requisite standard, that there is a serious and real risk of harm to the child, that is something more than a mere risk or chance.
At [104] the Tribunal explained why it concluded that cl 3(g) applied: [N]onetheless, based on the material before me, and for the reasons I have given above in relation to the public interest considerations in 1(g) and 3(a), I consider that the disclosure of personal and sensitive information given to the police in confidence by a child aged 10 years relating to an alleged physical assault is information that would not be in the best interest of the child to disclose. In reaching this conclusion, I want to make it clear that I am not making a finding that it would not be in the best interest of the child to release the DVD to Mr. Danis - he has already seen the DVD. However, as I have already observed, s 73 of the GIPA Act prevents the Tribunal from imposing any restrictions on access to the DVD and disclosure under the GIPA Act is disclosure to the world at large.
The submission that the findings made by the Tribunal about the application of cll 3(g) and 3(f) are contradictory is based on the mistaken premise that the class of matters potentially relevant to each consideration are one and the same.
We reject the contention that the findings made by the Tribunal about cll 3(g) and 3(f) are inconsistent and contradictory.

[27]

Ground 2: "the reasons for judgement are inadequate or insufficient"

By Ground 2, Mr Danis contends that the Tribunal failed to give adequate reasons for its findings and ultimate decision. At [32] of submissions dated 30 July 2020 Mr Danis nominates ten separate parts of the reasons, which he submits: 1. "Are based on no information at all; or 2. Are based on findings of fact which are not open on information before the Court; 3. Where credit issues were involved, the Tribunal did not explain why Respondent's evidence was preferred over the Applicant's evidence; or 4. Are in general terms, vague or tentative; or 5. Do not specifically identify the evidence relied upon by the Applicant when making findings and deciding the issues in dispute; or 6. Do not sufficiently expose the reasoning process; or 7. Do not sufficiently grapple with the Applicant's evidence put before the Tribunal; or 8. Do not sufficiently grapple with the relevant and applicable law cited and relied upon; 9. Do not sufficiently expose the balancing process."
The difficulty with this submission is that it is not possible to discern in what way each of the 10 parts of the reasons nominated by Mr Danis are said to be inadequate or which of the defects listed above each are said to suffer.
Entwined throughout the submissions are numerous assertions made by Mr Danis about purported errors of law, which bear no relationship to the question of whether the reasons for decision are inadequate. Para (a) and (b), listed above, which assert that the Tribunal made findings of fact on the basis of "no evidence", is but one of several examples.
In determining whether this ground is established we will not address whether a part of the Reasons said by Mr Danis at [32] to be inadequate, where: 1. Mr Danis failed to particularise the basis for that assertion; 2. where the asserted defect is of a trivial nature, such as a typographical error and could not arguably demonstrate that the reasons are inadequate; 3. where the challenge is directed at the Tribunal's purported failure to consider/give adequate weight to "relevant authorities I relied on". (Many repeat submissions raised and addressed in Grounds 1 and 3); 4. where the part of the reasons nominated by Mr Danis do not contain any finding or conclusions, for example [35]-[41], which contains a summary of the evidence given by Detective Fern.

[28]

Applicable principles

Section 62(3) of the NCAT Act provides that a written statement of reasons, under s 62(2), must set out: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal's understanding of the applicable law; and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), Bell P considered the operation of s 62(3) of the NCAT Act and the nature of the Tribunal's obligation to give reasons.
Bell P said, while the operation of s 62(3) is "arguably" confined to reasons supplied pursuant to a request by a party, "[i]t is not unreasonable... 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)": Orr at [55] (Bell P, and see Ward JA at [112]).
In considering the nature of the Tribunal's obligation to give reasons, Bell P stated at [66] that the function of an appeal court in the context of appellate review is "to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard", citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. Referring at [67] to the statement made by Basten JA in that decision at [48], that "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality", Bell P commented that the "identification of separate parameters of quantity and quality is, with respect, a useful one".
Bell P went on to state at [70] that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". The President, however, acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess", which in relation to NCAT are supplied by s 62(3) of the NCAT Act. The President stated at [72] that while s 62(3) provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".
Bell P considered that statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint provide further guidance about what constitutes adequate reasoning by a tribunal, summarising those statements at [77]: "(i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; [1988] FCA 446; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
In detailed submissions Mr Danis set out extracts from several authorities which considered the nature of the obligation of courts and tribunals to provide adequate reasons. In final submissions he submitted that Orr is bad law and should not be applied: … c. Orr was a two to one decision of the NSWCA. Orr does not improve on the well established and widely accepted existing principles regarding the obligation to provide adequate and sufficient reasons for judgment, it misconstrues and misapply them and ignores the binding principles espoused by the High Court of Australia. d. The reasons for judgment in Orr failed to consider and apply the principles cited in my appeal submissions dated 30 July 2020 at [28]-[31]. In particular the binding principles in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 (Kostas), a unanimous decision of the High Court of Australia which overturned the decision on the NSWCA. Notably, Kostas commenced in the NCAT; and e. The reasons for decision in Orr also failed to apply the binding principles of natural justice outlined by the High Court of Australia in Kioa.
Mr Danis appears to contend that Orr represents a departure from established principles. There are several difficulties with this submission, not least of which being that Mr Danis has failed to identify which "binding principle espoused by the High Court of Australia" Orr is said to have failed to consider and to apply. Whether, as Mr Danis, contends Orr "does not improve" on the law, NCAT is bound by the ratio of that decision.

[30]

Decision that cl 1(d) of the Table to s 14 applies

The crux of this ground is the contention that the Tribunal failed to explain, or to adequately explain, the reason it found Detective Ferns to be a reliable witness. It raises much the same issue as that raised in Ground 2(A) discussed above. It will be recalled that Mr Danis asserts that cross-examination exposed Detective Ferns as being an unreliable witness and, further, that the Tribunal failed to grapple with his evidence and submissions, which established that to be the case. Further, he asserts that the Tribunal failed to explain the reason it preferred Detective Ferns' evidence over his evidence.
At [66] the Tribunal addressed the submissions made by Mr Danis about Detective Ferns being an unreliable witness. For the most part those submissions were irrelevant or misconceived. While obliged to disclose the reasoning process that led it to dismiss Mr Danis' submissions about Detective Ferns not being a witness of credit, it was not obliged to address each and every submission raised by a party or consider every piece of evidence presented.
Having rejected Mr Danis' submission that Detective Ferns was an unreliable witness, the Tribunal went on to accept: 1. that in his experience, information given to the NSWPF by a child in relation to allegations of assault would be received and treated in confidence and is confidential in nature: [67]; 2. that in the context of child abuse cases, complainants would be assured at the time they provide their information to the NSWPF that the information would be kept confidential and that it would not be disclosed unless required in criminal proceedings: [68]; 3. that the NSWPF depends on the trust and cooperation of victims and witnesses of assault and that the disclosure of information given to them in confidence could reasonably be expected to inhibit victims or witnesses coming forward to police in the future: [70].
Detective Ferns gave evidence as an expert witness, based on his experience and knowledge of the practices, procedures and policies of the NSWPF in dealing with children who claim to be the victim of abuse or assault. This was not a case where there was probative evidence before the Tribunal about material issues of fact which directly conflicted with the evidence given by Detective Ferns. Nor was there expert evidence which conflicted with the opinions expressed by Detective Ferns. Had that been the case the Tribunal would have been obliged to resolve that competing evidence and explain why it preferred Detective Ferns' evidence over other evidence: see, example for Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66].
But the conflict in the evidence, such as it was, largely revolved about differing opinions, for example, the level of trust within the community about the NSWPF. Based on his knowledge and experience, Detective Ferns was able to testify about the procedures and policies employed by the NSWPF, the experience of the NSWPF in dealing with children reporting assaults and abuse and the assumptions made by the NSWPF about the likelihood of children making such reports, if they understood that the information disclosed to Police may be disclosed to the world at large. As to the broader question raised by Mr Danis of "whether the public trust police", he was no better placed than Mr Danis to express an opinion about that issue. While that issue was the subject of extensive questioning by Mr Danis, expressed in such general terms, the opinions expressed by Detective Fern and Mr Danis about that issue were of limited probative value.
We do not accept, as contended by Mr Danis, that the Tribunal failed to adequately explain why it found Detective Ferns to be a reliable witness or why it accepted his evidence.

[35]

Apprehended bias

The Tribunal was obliged to afford each party procedural fairness: s 38(2) of the NCAT Act. As part of that obligation, the Tribunal was required to determine Mr Danis' application and any issue arising in its determination, without bias or the appearance of bias.
The test for apprehended bias, the "double-might test" is whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide": CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 (CNY17) at [56]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 (Isbester) at [20]). The test is objective and involves possibilities (real and not remote), not probabilities: McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at 517 [110]. The issue is not whether the decision-maker would not actually bring an impartial mind to the matter, but rather whether the fair-minded lay observer might reasonably apprehend that to be the case: Wootten v Godfrey [2019] NSWCATAP 255 at [28].
While the observer is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless they are taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision (Isbester at [23]). In addition, the observer is taken to have "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]" (CNY17 at [58]). Further, the observer is taken to be a "reasonable member of the public" who is "neither complacent nor unduly sensitive or suspicious" (Johnson v Johnson [2000] HCA 48; 201 CLR 488 (Johnson) at [55]).
In Isbester, Gageler J explained at [59] that the determination of an allegation of apprehended bias involves "three analytical steps": 1. identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits; 2. articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits; 3. consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.

[37]

(2) Interruptions during Mr Danis' cross-examination

Mr Danis asserts that the Tribunal's interruptions during his cross-examination of Detective Ferns "were intended to prevent me from properly testing the evidence at [29] of DS Ferns' affidavit". Further, he asserts that the Tribunal Member permitted the Commissioner's legal representative to interrupt his cross-examination to enable the Commissioner to gain a strategic advantage.
In written submissions, Mr Danis gave the following examples of his cross-examination being interrupted (Example 4): DANIS: But this, this nice fellow this, he was, he's been to prison for drug trafficking? FERNS: I don't know. DANIS: It's in my affidavit, here, very nice fellow? MEMBER: Mr. Danis, the Detective Sergeant hasn't considered that material, has he? No. DANIS: Well, I can put it, I can, just take him to this. TIPENE: I don't know if that's relevant to what he can answer under the GIPA Act. DANIS: Well no, I suggest, well the relevance of that Detective Sergeant goes to show that, more that, Police failed to do their job. If the public would do something like that, assault this nice fellow ah, ah, who's a convicted drug trafficker, it would show that, that, the public believes the Police should have done something else, should have protected my son, that's what the court of public tribunal does, cause why would they do something like that if this fellow was such an innocent person? FERNS: If I can take the emotion out of it - like I stated prior the release under GIPA is a release to everyone, everyone gets access to it. Now you're saying to me, I agree to what you're saying as you already got the information I'm not disputing that. Just because you don't do anything bad with that information doesn't negate someone else doing something bad with that information. DANIS: Why does necessarily have to be bad? Maybe it can be good? Maybe someone who has assaulted a child deserves something to happen to him? FERNS: I can't comment on that, it wouldn't be appropriate. MEMBER: All right, I think you need to move on. Have you another question Mr. Danis? I don't think this is gonna help me decide the application. (Transcript pp 17, 18)
There are several other occasions where the Tribunal intervened in the cross examination and correctly observed that the question had been put and answered, and requested Mr Danis to "move on", see for example, Transcript pp. 18 - 21.
The fair-minded observer would be aware that the Tribunal has power to control its own procedure (s 38, NCAT Act) and where questions put to a witness are repetitive or in some way unfair, the Tribunal is permitted if not obliged to intervene. In addition, they would be aware that the Tribunal took a relatively restrained approach to intervening during Mr Danis cross-examination (see for example, Examples 3 and 4 above.)
We are not persuaded having regard to the nature of some of the questions put by Mr Danis, the frequency and nature of the Tribunal's interventions that the fair-minded lay observer might apprehend that this evidenced favouritism towards the Commissioner, or caused the Tribunal to deviate from a neutral evaluation of the merits of his application.

[41]

Ground 6 - Wrongful exercise of discretion by allowing witness to be present

Mr Danis submits that the Tribunal "wrongfully exercised a discretion to his detriment" by permitting Detective Ferns to be present during his opening submissions. While not put in these terms we understand Mr Danis to contend that the Tribunal exercise of discretion was "legally unreasonable" in the sense used by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.
Mr Danis had not met Detective Ferns and was not aware until he was called to give evidence that he had been present in the hearing room: DANIS: … Perhaps you [DS Ferns] shouldn't have been in the Tribunal all this time to hear what was discussed because you are witness. Ah, shouldn't [DS Ferns], should have waited outside, rather than being a party to these proceedings until he gave his evidence? MEMBER: No, not in the context, I think, of an application for review, for administrative review of the Commissioner's decision to refuse production of documents.
Mr Danis stated that had he known Detective Ferns was present in the hearing room he would have raised an objection at the commencement of the hearing. Mr Danis submitted that Detective Fern's attendance at the hearing before giving evidence is contrary to "a widely accepted legal principle … that witnesses are not permitted to be present before they are cross-examined".
At the hearing, neither party was able to direct us to any legislative provision or authority that prohibits a witness from being present while parties are making their submissions. At our invitation each provided further written submissions after the hearing.
In written submissions, Mr Danis referred to the following extract from the Civil Trials Bench Book published by the Judicial Commission of NSW. [2-7400] Witnesses being in court before they give evidence At common law, the court had a discretion to order that witnesses be excluded from the court room until they gave their evidence: London Chartered Bank v Lavers (1855) 2 Legge 884. The discretion is now codified by s 26(d) of the Evidence Act 1995 which provides that the court may make such orders as it considers just in relation to the presence in court of any person in connection with the questioning of witnesses. It may be assumed that the common law authorities concerning the exercise of the discretion continue to apply. What has come to be called "the order for witnesses" is, as a matter of practice, announced by the court officer in the following terms: Order for witnesses All witnesses are ordered to leave the court and the hearing of the court until called to give their evidence. That then stands as an order of the court. It is usual for the court to make an order for witnesses at the commencement of the hearing. Some judges also have the order made at the start of each succeeding day of a trial. The making of an order for witnesses is not mandatory. It should however be done on request, if not done routinely. … It is usual to allow expert witnesses to be in court before giving their evidence.
The Commissioner submitted that while witnesses cannot be present in the hearing room while evidence is being given, they may be present while the parties are making their submissions. The Commissioner pointed out that is statutory prohibition on witnesses being present in the hearing before giving evidence and pointed to the following: (a) Section 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) provides the "guiding principle" for the Tribunal and procedural rules is to facilitate the "just, quick, and cheap resolution of the real issues in the proceedings". The Tribunal is required to give effect to this guiding principle when it exercises any power given to it by the CAT Act or the procedural rules, or when it interprets any provision of the CAT Act or the procedural rules (section 36(2)). (b) Part 4 of the CAT Act provides for the Tribunal's practice and procedure. It is expressed to be subject to particular provisions in the enabling legislation and the procedural rules (defined in section 4(1) of the CAT Act to be the Tribunal rules and regulations) (see also section 35); (c) section 49 of the CAT Act provides that hearings are open to the public, unless the Tribunal is satisfied that "by reason of the confidential nature of any evidence or matter or for any other reason" the hearing (or part of it) should be conducted in private. There is no qualification in relation to witnesses; (d) section 46 of the CAT Act sets out the power in relation to witnesses. There is no requirement in respect to witnesses being present during the hearing before or after they give their evidence; (e) there is no requirement in the Evidence Act 1995 (NSW) in respect to witnesses being present during the hearing before or after they give their evidence, and the Tribunal is not bound by the rules of evidence, save in those circumstances set out in section 38(3) of the CAT Act (none of which apply in this context); (f) section 38 of the CAT Act provides that the Tribunal may determine its own procedure in relation to any matter to which the CAT Act or procedural rules do not otherwise make provision (section 38(1)); (g) neither of the Civil and Administrative Tribunal Regulation 2013 (NSW) or the Civil and Administrative Tribunal Rules 2014 (NSW) set out any procedure in respect to witnesses being present during the hearing before or after they give their evidence; (h) there are no Tribunal fact sheets (General facts sheets or in relation to the Administrative and Equal Opportunity Division) or Procedural Directions which addresses the issue of witnesses being present in the hearing room; and (i) there is no general content on the Tribunal's website in respect to this issue.

[42]

Consideration

While no express prohibition on a witness being present in a hearing while other witnesses give evidence in proceedings before NCAT's Administrative and Equal Opportunity Division Equal, we agree with Mr Danis that as a general rule this practice should not occur. We do not understand the Commissioner to disagree with that proposition. As the extract from the Civil Trials Bench Book reveals, courts had a common law discretion to order that witnesses be excluded from the court room. The rationale underlying that discretion which is now codified by s 26(d) of the Evidence Act, is self-evident: it is to prevent the risk of evidence becoming contaminated. This is especially so where there is conflicting evidence and it is a case of "word against word".
The distinction the Commissioner seeks to draw between a witness being present while evidence is being given and a witness being present while parties are making submissions, while superficially attractive does not entirely dispose of the concerns raised by Mr Danis. This is especially so where the submissions are made by a self-represented party, and more often than not evidence and legal argument are conflated.
However, for the following reasons we are unable to accept Mr Danis' submission.
First, Detective Ferns gave evidence in the capacity of an expert witness. As the above extract from the Civil Trials Bench Book set out above states: "It is usual to allow expert witnesses to be in court before giving their evidence". This is not a case of "word against word" where lay witnesses gave conflicting evidence and there is a possibility of evidence becoming contaminated. Expert witnesses are generally permitted to hear the evidence of other witnesses relating to the questions on which they are giving opinion evidence themselves. This is so that they are fully informed of the facts, including contested facts, of the case and can provide their expert opinions to the court or tribunal in relation to those facts and issues. When preparing their reports before a case, they are asked to assume certain facts and provide an opinion based on those assumptions. Once a case starts, however, they may be asked to express expert opinions based on other facts or hypotheses. It is for that reason they are generally permitted to be present to hear evidence relating to those alternative hypotheses or contested facts.
Second, Mr Danis failed to identify how the Commissioner gained some forensic advantage or he suffered some practical injustice as a consequence of Detective Ferns hearing his oral submissions.
Finally, while the comments made by the Tribunal set out at [176] above reveal the Tribunal saw nothing objectionable about Detective Ferns being present and hearing Mr Danis' submissions before giving his evidence, by the time the issue was raised with the Tribunal "the horse had bolted". The question by that point had become not whether the Tribunal should have exercised its discretion to exclude Detective Ferns from the hearing, but rather whether the Tribunal ought to have excluded his evidence altogether.
The Commissioner ought to have brought to the attention of the Tribunal and Mr Danis that Detective Ferns was present in the hearing in case the self-represented Mr Danis may have apprehended there was something improper in Detective Ferns being present. It could then have explained why Detective Ferns' presence was not untoward. Nonetheless, its failure to do so did not result in some practical injustice.
This ground is rejected.

Parties

Applicant/Plaintiff:

Danis

Respondent/Defendant:

Commissioner of Police

Legislation Cited (8)

Freedom of Information Act 1989(NSW)

Civil and Administrative Tribunal Regulation 2013(NSW)

Government Information (Public Access) Act 2009(NSW)

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Evidence Act 1995(NSW)

Family Law Act 1975(Cth)

Civil and Administrative Tribunal Rules 2014(NSW)

Cases Cited (33)

vices (New South Wales) [2011] NSWADT 98 VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 Wootten v Godfrey [2019] NSWCATAP 255 Texts Cited: Judicial Commission of NSW, Civil Trials Bench Book Category: Principal judgment Parties: Emil Danis (Appellant) Commissioner of Police (Respondent) Representation: Solicitor Appellant (Self Represented) Sparke Helmore Lawyers (Respondent) File Number(s): AP 20/27431 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 138 Date of Decision: 25 May 2020 Before: M Wall, Senior Member File Number(s): 2019/00205731

REASONS FOR DECISION

In June 2014, officers of the New South Wales Police Force interviewed Mr Emile Danis' (then) 10-year-old son (the subject interview) about an alleged assault on him by the partner of his mother, Mr Danis' former spouse. The Police made an electronic recording and a written transcript of that interview.
In July 2019, Mr Danis made an "access application" under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to the Commissioner of Police, NSW Police Force (the Commissioner) requesting the electronic recording and written transcript made by Police of the subject interview. The Commissioner refused to grant that application. Dissatisfied with that decision, Mr Danis applied to the NSW Civil and Administrative Tribunal (NCAT) for review. Following a review, the Tribunal affirmed the Commissioner's decision: Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138.
Mr Danis now appeals against that decision. Among other things, Mr Danis contends that the Tribunal misapplied several provisions of the GIPA Act; gave inadequate reasons for its decision; made a decision "contrary to the weight of evidence"; and failed to afford him procedural fairness.
For the reasons that follow, we dismiss the application and refuse leave to appeal.

Cited By (5)

Danis v Commissioner of Police

Danis v Commissioner of Police, NSW Police Force

EMC v The University of Sydney

FBQ v Commissioner of Police

Thomson v Commissioner of Police

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (45 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (33)

Cited By (5)