Danis v Commissioner of Police

Background to the appeal

1. 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".
2. 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.
3. The Tribunal set aside the Commissioner's decision not to deal with the application access and ordered release of the DVD to Mr Danis.
4. 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.
5. 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.
6. Mr Danis now appeals against that decision. That appeal is the subject of these reasons.
7. 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.

Tribunal's reasons for decision

1. 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.

Issue 1: whether the Tribunal should refuse to deal with the second access application

1. At [43]-[52], the Tribunal concluded that, even if, as the Commissioner contended, para (b) of s 60(1) were established, it would be inappropriate to exercise the discretion to refuse to deal with Mr Danis' application.
2. In reaching that conclusion, the Tribunal rejected the Commissioner's argument that to deal with the second access application would result in the wasteful deployment of the NSWPF's limited resources.

Issue 2: Whether the public interest considerations against disclosure nominated by the Commissioner apply

1. At [53]-[105], the Tribunal considered whether the five public interest considerations against disclosure listed in the Table to s 14, nominated by the Commissioner, applied to the DVD: 1. cl 1(d): "prejudice the supply to [NSW Police] of confidential information that facilitates the effective exercise of that agency's functions"; 2. cl 1(g): "… result in the disclosure of information provided to an agency in confidence"; 3. cl 3(a): "reveal [the child's] personal information"; 4. c 3(f): "expose [the child] to a risk of harm or of serious harassment or serious intimidation"; 5. cl 3(g): "the disclosure of the information … would not be in the best interests of the child to have disclosed".
2. The Tribunal concluded that each of the above considerations against disclosure applied to the DVD, except cl 3(f).

Issue 3: Whether the public interest considerations in favour of disclosure nominated by Mr Danis apply

1. After noting, at [107], that s 12 of the GIPA Act "sets out a general public interest in favour of disclosure of government information", the Tribunal went on to consider whether, as contended by Mr Danis, the public interest considerations that favour disclosure, listed in paras (a), (b) (e), applied. The Tribunal concluded that all but para (e) applied.
2. With respect to para (e), the Tribunal rejected Mr Danis' submission that the information in the DVD could reasonably be expected to reveal or substantiate that officers of the NSWPF engaged in misconduct, or unlawful conduct, in relation to their investigation of the alleged assault of his son: at [110]. In addition, the Tribunal rejected Mr Danis' submission that the material on which he relied established that Police falsified records or acted unlawfully in relation to their investigation of the assault incident: at [117].
3. At [121], the Tribunal identified as "personal factors of the application" the fact that Mr Danis, as the father of the child interviewed by Police, had viewed the DVD and read the transcript of that interview, favoured providing Mr Danis with access to the DVD: ss 55(1) and 55(2).

Issue 4: whether the Commissioner had acted in good faith

1. At [122]-[124], the Tribunal considered whether, as contended by Mr Danis, the Commissioner applied the public interest considerations against disclosure as "a smokescreen" to "conceal" police misconduct and unlawfulness. The Tribunal noted, at [122], that Mr Danis contended: 1. the "public interest is regularly misused by the police to cover up their dishonest, improper, negligent or illegal conduct, to erode civil liberties and deprive citizens of their rights (and that) this is the case here". 2. the Commissioner's submissions "are a smokescreen concocted to protect the OIC (Officer in Charge) and other police officers who deliberately and repeatedly engaged in such conduct ... (and) they are against the object and provisions of the GIPA Act and should, therefore, be rejected".
2. Referring to s 112 of the GIPA Act which states If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency the Tribunal noted at [124] that because of the way Mr Danis presented his case, the elements of s 112 were not explored at the hearing.
3. However, the Tribunal went on to consider Mr Danis' allegation that in responding to the second access application, the Commissioner acted in bad faith, specifically, had applied the public interest considerations in s 14 to conceal and cover-up police misconduct. The Tribunal was not satisfied as alleged by Mr Danis that "any officer of the Commissioner has failed to exercise a function under the GIPA Act in good faith".

Issue 5: "Balancing the public interest"

1. At [125]-[132], the Tribunal considered whether "the Commissioner has established that there is an overriding public interest against the disclosure of the DVD". The Tribunal concluded at [132]: The public interest considerations against the disclosure of personal and sensitive information relating to a child given in confidence that could prejudice the supply of confidential information in the future about alleged assaults should be given greater weight.
2. Applying that analysis, the Tribunal affirmed the Commissioner's decision to refuse Mr Danis access to the DVD.

Statutory framework

1. 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.
2. 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.
3. 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.
4. 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".
5. 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.
6. 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. ...
7. 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.

Grounds of appeal

1. Mr Danis has a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). In his Notice of Appeal, Mr Danis listed six grounds of appeal, one of which he subsequently withdrew: 1. "Senior Member M Wall erred at law by failing to consider, apply or give adequate weight to the legislation, authorities and legal principles cited and relied upon by the Applicant/Appellant. 2. The reasons for judgment are inadequate or insufficient. 3. The decision and reasons for judgment are contrary to the weight of evidence before the Tribunal. 4. [Withdrawn.] 5. The decision and reasons for judgment are contrary to the object of the GIPA Act, and/or are contrary to the fundamental value of equality before the law and/or are contrary to the rules of natural justice, in that, they lack impartiality and are biased against Applicant/Appellant. 6. The decision and reasons for judgment are the result of wrongful exercise of judicial discretion."

Ground 1: Failing to consider, apply or give adequate weight to the legislation, authorities and legal principles cited and relied upon by Mr Danis

1. This ground encompasses two purported questions of law, namely: 1. whether the Tribunal failed to consider submissions made by Mr Danis; 2. whether the Tribunal misapplied relevant provisions of the GIPA Act and relevant legal principles.

The purported failure to have regard to Mr Danis' submissions

1. 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".
2. 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.
3. 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].

Ground 1A: purported misapplication of cl 1(d) in the Table to s 14

1. In this ground, Mr Danis contends that the Tribunal erred by adopting the approach taken by an Appeal Panel of one of NCAT's predecessors, the NSW Administrative Decisions Tribunal (ADT) in Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri) and by determining his application at a "broad operational level".

Consideration

1. 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).
2. 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".
3. 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".
4. 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.
5. 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.

Consideration

1. 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.
2. The following textual and contextual factors do not support that proposition.
3. 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).
4. 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)).
5. 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.

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

1. 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".
2. 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":
3. 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;
4. 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".
5. 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)

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

1. 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".
2. 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.
3. 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".
4. 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.
5. 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).
6. 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.
7. 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.
8. 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.

Consideration

1. Mr Danis' submission that in concluding that cl 3(a) applied the Tribunal failed to uphold the principle of open justice, misapprehends the nature of the task the Tribunal was required to undertake, namely, to determine whether in the circumstances of the application before it, cl 3(a) applied.
2. The contention advanced by Mr Danis that Richards is authority for the proposition that in all cases information disclosed in open court has "been publicly disclosed" and that the Tribunal is bound to apply that proposition, cannot be accepted. Leaving to one side whether the Tribunal was bound to apply a decision of the ADT, it is incorrect to assert that Richards is authority for the proposition that in all cases where personal information is disclosed in open court, that material is "revealed" for the purpose of the GIPA Act. It was necessary for the Tribunal to examine, as it did, whether by the operation of s 121 of the Family Law Act, the personal information of the child had been "publicly disclosed" as a consequence of the playing of the DVD in the course of the hearing and the delivery of a written judgment. The finding that the child's personal information had not been revealed was one open to the Tribunal.
3. The basis for Mr Danis' contention that the Tribunal gave the word "reveal" a meaning different to that given by the GIPA Act, is not apparent from his submissions.
4. The proposition that the Tribunal misapplied cl 3(a) of the Table to s 14 is rejected. Ground 1C fails.

Ground 3: "decision and reasons are contrary to the weight of evidence"

1. While stated as relating to "decision and reasons against the weight of evidence", in Ground 3 Mr Danis also contends that the Tribunal "failed to consider" submissions he made and evidence he adduced.
2. During the hearing, when asked to identify the particular issues to which Ground 3 relates, Mr Danis identified the following: 1. The Tribunal's purported failure to consider the cross-examination of Detective Ferns, which he contends reveals that his evidence was rehearsed, and he was an unreliable witness. 2. The Tribunal's failure to consider the "admissions" made by Detective Ferns during cross examination, in particular, that "there is a lack of trust in the NSW Police". 3. The Tribunal's failure to view the DVD. 4. The finding that cl 3(g) of the Table to s 14 applied was made on the basis of "no evidence" and, in addition, contradicted the finding that cl 3(f) applied.
3. A finding which is against the weight of evidence does not give rise to a question of law and requires leave of the Appeal Panel. In contrast, failure to consider a "substantial, clearly articulated argument relying upon established facts" (Dranichnikov at [24]) may give rise to a question of law and does not require leave of the Appeal Panel.
4. In addressing this ground, as a first step we will consider whether one or more of the four contentions listed at [120] is established. If yes, we will consider whether that contention raises a question of law, and, if not, whether the discretion to grant leave should be granted.

Detective Ferns' evidence in context

1. Contentions 1 and 2 relate to the evidence given by Detective Ferns. It will be recalled that his evidence was relevant to the Tribunal's consideration of whether the DVD is "confidential" information (first limb of cl 4(d) of the Table to s 14) and whether its disclosure could prejudice the supply of such information (third limb of cl 4(d)).

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

1. 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".
2. 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.
3. 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
4. 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)

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

1. 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".
2. 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)
3. 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.
4. 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.

(3) The Tribunal's failure to view the DVD

1. Mr Danis contends that the Tribunal's failure to view the DVD meant that it was not in a position to "make evidence-based decisions".
2. In determining whether cl 3(a) of the Table to s 14 applied, the Tribunal first considered whether the DVD includes "personal information" about the child. At [82], the Tribunal noted that there was no dispute between the parties about that issue.
3. Had there been a dispute between the parties about the nature of the information contained in the DVD and/or whether it was the child's "personal information", arguably the Tribunal would have been required to view the DVD to resolve that controversy.
4. Mr Danis has not identified the particular task the Tribunal was unable to undertake because it had not viewed the DVD. Nor has he articulated how that resulted in the Tribunal being unable to "make evidence-based decisions".
5. The contention that the Tribunal was obliged to view the DVD is misconceived.

(4) The finding that cl 3(g) of the Table to s 14 applied, was made on the basis of "no evidence" and, in addition, contradicted the finding that cl 3(f) applied

1. Mr Danis contends: 1. there was "no evidence" to support the finding that it would not be in the best interests of the child to disclose the DVD; and 2. the finding that cl 3(g) of the Table to s 14 of the GIPA Act applied, contradicts the finding that cl 3(f) did not apply.

No evidence to support the finding that disclosure of the DVD could not reasonably be expected to be in the best interests of the child to disclose the DVD

1. The question posed by cl 3(g) was whether disclosure of the DVD could reasonably be expected to "not be in the best interests of the child". In answering that question, the Tribunal was required to make an evaluative judgement and undertake a predictive exercise.
2. At [104], the Tribunal correctly stated that the question posed by cl 3(g) was whether disclosure of the DVD to "the world at large", not Mr Danis, could reasonably be expected to not be in the best interests of the child. The Tribunal did not have independent evidence about the likely effect on the child of disclosure. However, there was material before the Tribunal from which to draw an inference about the likely effect of disclosure on the child. This included information about the child, his age and current circumstances; the context in which the subject interview occurred; the nature of the disclosures made by the child and the subsequent acrimonious family law proceedings between his parents. In addition, we note that Annexure I to Mr Danis' affidavit made on 28 January 2020, contains an extract of the transcript of the subject interview, in which the child told Police he was concerned that the DVD being shown to various family members (not Mr Danis).
3. The contention that there was no evidence to support the finding that disclosure of the DVD could reasonably be expected to "not be in the best interests of the child" is rejected.

Contradictory findings

1. 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.
2. 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.
3. 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.

Summary

1. We are not persuaded, as contended by Mr Danis, that the impugned findings (contentions 1, 2 and 4(a)) are based on "no evidence" or are against the weight of evidence. Nor are we satisfied that the Tribunal was required to view the DVD, or that findings made by the Tribunal about cll 3(g) and 3(f), are inconsistent and contradictory.
2. Ground 3 fails.

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

1. 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."
2. 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.
3. 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.
4. 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.

Applicable principles

1. 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.
2. 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.
3. 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]).
4. 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".
5. 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".

Consideration

1. Applying the principles stated in Orr and, where relevant, the additional authorities cited by Mr Danis, we consider whether, as Mr Danis contends, the Tribunal failed to explain or adequately explain the basis for its decision.

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

1. 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.
2. 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.
3. 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].
4. 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].

Decision that cll 1(g), 1(g); 3(a) and 3(g) of the Table to s 14 applied

1. Mr Danis contends that the Tribunal failed to give adequate reasons for finding that cll 1(g), 3(a) and 3(g) of the Table to s 14 applied.
2. In each case, as required by s 62(3) of the NCAT Act, the Tribunal set out its findings on material questions of fact, referred to the evidence or other material on which those findings were based and the reasoning process that led it to the conclusions it made. The Tribunal gave cogent and persuasive reasons for the facts found and conclusions reached.
3. The contention that the Tribunal failed to give adequate reasons for each of these decisions is rejected.

Decision that para (e) of the Note in s 12(2) did not apply

1. At [101]-[119], the Tribunal considered whether the public interest considerations in par (a), (b) and (e) to s 12(2) applied, concluding that all but 12(e) applied.
2. Mr Danis' contends that the Tribunal failed to give reasons for finding that para (e) did not apply. He asserts that the evidence he adduced establishes that the partner of his former wife assaulted his son, and the NSWPF had "engaged in misconduct" by failing to prosecute his former wife's partner.
3. As set out at [62] above, the Tribunal gave two reasons for finding that disclosure of the DVD could not reasonably be expected to reveal or substantiate that the NSWPF had "engaged in misconduct or negligent". First, the alleged misconduct occurred after the child's interview by Police [115]; and second, that the evidence on which Mr Danis relied did not establish a reasonable basis for concluding that the disclosure of the DVD could reasonably be expected to reveal Police misconduct at [117].
4. The Tribunal was not required, as Mr Danis appears to assert, to address each piece of evidence he adduced. The Tribunal was entitled to deal with that evidence, at a global level. The explanation for the finding that disclosure of the DVD could not reasonably be expected to reveal or substantiate that the NSWPF had "engaged in misconduct or negligent", while not detailed was adequate.

Overriding public interest against the disclosure of the DVD

1. Mr Danis contends that the Tribunal failed, as required, to give adequate reasons for its ultimate conclusion (Issue 5) that "the Commissioner has established that there is an overriding public interest against the disclosure of the DVD".
2. The Tribunal approached that question by first, determining what weight to attribute to the public interest considerations in favour of disclosure under s 12(1). It attributed "significant weight" to each of those considerations, noting at [126] that the presumption in favour of disclosure (under s 5), and the public's legally enforceable right to government information (under s 9), are "key considerations in view of the overall objectives of the GIPA Act".
3. At [128], the Tribunal attributed "significant weight" to the "personal factors of the application" favouring access, identified at [121] of its Reasons.
4. At [129], [130] the Tribunal attributed "significant weight" to the applicable public interest considerations against disclosure, cll 1(d), 1(g), 3(a), 3(g) of the Table to s 14:
5. Applying that analysis, the Tribunal concluded at [132]: "the public interest considerations against the disclosure of personal and sensitive information relating to a child given in confidence that could prejudice the supply of confidential information in the future about alleged assaults should be given greater weight."
6. The reasons given by the Tribunal for its ultimate conclusion as set out immediately above were more than adequate to expose the reasoning path which led it to that decision.

Ground 5: Apprehended and actual bias

1. By ground 5, Mr Danis contends that the Tribunal was and appeared to be biased against him. The Commissioner disagrees.
2. At the hearing of the appeal, in answer to the Commissioner's complaint that he had failed to particularise the basis for the contention that the Tribunal was and appeared to be biased, Mr Danis stated that he relied on the reasons given by the Tribunal for its decision and the Tribunal's conduct during the cross-examination of Detective Ferns. Specifically, the Tribunal's: 1. Purported failure to address his submissions about Detective Ferns' credibility; 2. Interruption of the cross-examination of Detective Ferns; 3. Misapplication of the law and failure to consider authorities cited by Mr Danis.

Apprehended bias

1. 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.
2. 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].
3. 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]).
4. 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.

(1) Purported failure to address Mr Danis' submissions about Detective Ferns' credibility

1. Mr Danis contends that the Tribunal failed to deal with his submissions about Detective Ferns alleged lack of credibility and that this demonstrates bias. It will be recalled that Mr Danis raised the issue of Detective Ferns' credibility in several grounds of appeal. At [66] the Tribunal stated, "I do not propose to outline the particular categories of attack on Detective Ferns' evidence in these reasons".
2. As discussed above, we reject Mr Danis' contention that the Tribunal's treatment of Mr Danis' submissions about Detective Ferns' credibility discloses a failure to give adequate reasons and/or a failure to consider a "substantial, clearly articulated argument relying upon established facts". In addition, we reject the contention that the finding that Detective Ferns was a reliable witness was against the weight of evidence.
3. This ground rests on the assumption that the Tribunal was "wrong" to reject Mr Danis' submissions about Detective Ferns' credibility, and "wrong" to deal with his arguments in what Mr Danis considers to be a perfunctory manner.
4. Mr Danis appears to say that the impartial observer would necessarily agree with his analysis and therefore conclude that the Tribunal might be biases biased. Missing from that hypothesis is any attempt to engage with the second and third steps Gageler J identified by in Isbester. Even if, for argument's sake, it is accepted that the fair-minded lay observer agreed with Mr Danis' analysis of the Tribunal's assessment of the evidence given by Detective Ferns, being fair-minded and not unduly suspicious, we are not satisfied that as a consequence they might apprehend that might have caused the Tribunal to deviate from "a neutral evaluation" of the merits of Mr Danis' case. In any event, such apprehension in our view could not be characterised as reasonable.

(2) Interruptions during Mr Danis' cross-examination

1. 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.
2. 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)
3. 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.

(3) The Tribunal misapplied the law and failed to consider case law identified by Mr Danis

1. The test of apprehended bias is directed not to the correctness of the outcome, but to the apparent fairness of the process: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209].
2. This contention raises much the same argument as made in relation to Contention 1. Even if the fair-minded observer were to accepted the premise of this contention, we are not satisfied that as a consequence, they might apprehend that the Tribunal's purported misapplication of the law or purported failure to consider the cases cited by Mr Danis, might have caused the Tribunal to deviate from "a neutral evaluation" of the merits of Mr Danis' case.

Conclusion

1. We are not persuaded that the fair-minded lay observer might reasonably apprehend on the basis of each of the above contentions, individually or cumulatively, that the Tribunal might not have brought an impartial mind to the determination of Mr Danis' application or the individual questions it was required to decide in making that determination. This aspect of the ground is rejected.

Actual bias

1. Mr Danis alleges actual bias. He bears the onus of demonstrating actual bias. It is a heavy onus to discharge: per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 520.
2. In support of this ground, Mr Danis repeats the arguments advanced above in support of the claim of apprehended basis. He appears to contend that the only rational explanation for the findings about which he complains, the Tribunal's interventions in the cross-examination of Detective Ferns and the ultimate decision to affirm the Commissioner's decision, was that the Tribunal was ill-disposed towards him. That "evidence" falls a long way short of supporting a finding of actual bias.
3. The claim of actual bias is not established.

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

1. 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.
2. 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.
3. 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".
4. 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.
5. 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.

Consideration

1. 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".
2. 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.
3. However, for the following reasons we are unable to accept Mr Danis' submission.
4. 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.

Orders 1. The appeal is dismissed. 2. Leave to appeal is refused.

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

Amendments 09 March 2021 - Coversheet amendment representation 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: 09 March 2021