Dibb v Transport for NSW

Issues

1. The applicant has received copies of the valuation reports for 14 and 14A Bruxner Park Road. He does not dispute the redactions made to those documents of personal and financial information relating to the owners of those properties and other third parties. He disputes whether TfNSW had power to release the additional documents to him. He does not accept TfNSW's position that it does not hold planning reports, however does not wish to press any review of that aspect of the matter.
2. The applicant states that the purpose of his review application is his acquisition matter, and transparency for owners of properties subject to acquisition to understand the process and how the respondent agency approaches its obligations. His focus is on the values the respondent determines for acquisitions by agreement, which occur in the shadow of compulsory acquisition and generally do not involve a willing seller. If the cl 4(c) or (d) issues are not decided, that leaves it open for TfNSW to deny access on those grounds in other access applications. He states that the documents affect property that will become publicly owned, and the government should be held to account for how it spends its money.
3. The applicant seeks a declaration that cl 4(c), or cl 4, of the Table to s 14 of the GIPA Act is not a valid public interest ground against the disclosure of property reports obtained by the respondent for the purpose of compulsory acquisition, and costs.
4. The issues to be determined are: 1. Whether TfNSW had power to release to the applicant the valuation reports for 14 and 14A Bruxner Park Road; 2. Whether an order in the form sought by the applicant can, or should, be made; and 3. What order should be made in the proceedings.

Legislation

1. The object of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
2. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": GIPA Act, s 5. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information: GIPA Act, s 9(1).
3. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
4. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. In this matter TfNSW relied on the following public interest considerations in cl 3 and cl 4: 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, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … 4 Business interests of agencies and other persons 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 - … (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, …
5. In the determination of the administrative review application the burden of establishing that its decision is justified lies on the agency: GIPA Act, s 105(1).

Tribunal hearing

1. In support of his application for review the applicant contended that the reliance by TfNSW on cl 4(c) of the Table to s 14 of the GIPA Act was unfounded, because by virtue of the Land Acquisition (Just Terms Compensation) Act 1991 (the LA Act) that empowers TfNSW to acquire land, there is no overriding public interest against disclosure; the valuation reports do not have competitive commercial value to TfNSW; TfNSW is not engaged in a competitive activity; negotiations by TfNSW cannot be characterised as being commercial; the valuation methodology and rationale in the valuation reports do not constitute confidential information; the zoning information in the planning reports do not constitute confidential information; and access to those reports would not cause any detriment or prejudice to TfNSW.
2. The respondent filed its written submissions on 31 August 2021. In those submissions TfNSW submitted that the correct and preferable decision is to vary the decision of 24 June 2021 to account for the provision of the valuation reports on 27 August 2021, subject to the redactions of the personal and financial information of the owners of the relevant properties. The respondent submitted that reasonable searches had been conducted as required by s 53 of the GIPA Act, and TfNSW does not hold any further information falling within the scope of the access application. The respondent stated that the owners of 14 and 14A Bruxner Park Road and the authors of the valuation reports had been consulted; the owners, and one of the valuers, had raised no specific concerns in relation to release of the reports, and one of the valuers had not responded. The respondent concluded that despite the absence of concerns, since release under the GIPA Act is without limitations, the public interest against disclosure of personal and financial information weighed against disclosure, and that information should be redacted.
3. In submissions filed on 2 September 2021, after he had been provided with copies of the valuation reports for 14 and 14A Bruxner Park Road, the applicant maintained, and provided submissions in support of, the contentions raised in his review application. The applicant submitted that the release to him of the valuation reports for 14 and 14A Bruxner Park Road (dated 16 November 2016 and 26 October 2017; and 15 August 2017 and 20 November 2018, respectively) is a tactical manoeuvre by TfNSW intended to avoid the potential for a Tribunal decision that would be adverse to the claim that release of the reports could reasonably be expected to diminish the competitive commercial value of the information.
4. In submissions in reply filed on 17 September 2021 TfNSW submitted that the decision under administrative review by the Tribunal is the decision to refuse access to information pursuant to s 80(d) of the GIPA Act in response to the access application lodged on 29 April 2021. It has identified as relevant two public interest considerations against disclosure of the valuation reports that are the subject of the access application, namely cl 3(a) and (b) of the Table to s 14 of the GIPA Act. The applicant is not the owner of either 14 or 14A Bruxner Park Road, and in accordance with s 74 of the GIPA Act the respondent deleted from the records released to the applicant on 27 August 2021 pursuant to s 8 of the GIPA Act information that would otherwise result in there being an overriding public interest against disclosure. The respondent submitted that the orders sought by the applicant are not consistent with the available outcomes for the administrative review provided in s 63 of the ADR Act.
5. The applicant had raised in his written submissions a concern, based on the dates of the valuation reports and the timing of the acquisition process, that not all documents within the scope of the access application had been released. The respondent provided an affidavit affirmed on 31 August 2021 by Terry Green, Senior Manager Valuations and Acquisitions in the Property and Land Access Unit in the Infrastructure and Place Branch of TfNSW (ex A1). Mr Green gave oral evidence and was cross examined.
6. In summary, Mr Green's evidence was that it is part of his role to manage negotiations associated with acquisition of land for the purposes of Transport Infrastructure projects, and to co-ordinate and conduct searches for records held by the Property and Land Access Unit in response to requests for information under the GIPA Act. He also has specific responsibility for the acquisition of land in relation to the Coffs Harbour Bypass, and 14 and 14A Bruxner Road which commenced in 2016. In his affidavit Mr Green described the searches he undertook on receipt of a request on 4 May 2021, and after receiving a request on 16 August 2021 to conduct additional searches in relation to planning reports. Mr Green stated that planning reports are not routinely obtained by TfNSW in the course of land acquisition, and may be obtained in circumstances where planning is an issue that may affect the market value of a property; and no planning report was obtained by TfNSW in relation to the acquisition of 14 and 14A Bruxner Park Road.
7. In oral evidence Mr Green stated that a valuation would not necessarily be obtained if the hardship process under the LA Act had commenced, and only after the hardship request was approved. Mr Green stated that a planning report would not necessarily be obtained, and in some circumstances, for example a negotiated acquisition as opposed to a compulsory acquisition an owner's planning report may be accepted. Mr Green described the searches he had undertaken of paper hard copy files, and the archival searches could involve locating a file which could have a large number of pages. Mr Green stated that the valuation reports were the reports relied upon by TfNSW.

Consideration

1. It was not disputed that the information the subject of the access application, as amended (see [2] above), is government information held by an agency: GIPA Act, s 4(1). The respondent has decided that the applicant can be provided with the valuation reports for 14 and 14A Bruxner Park Road, subject to redactions which he is not disputing, and has provided those reports to him. The applicant decided not to press that part of the narrowed application in which he sought access to invoices. As noted above, at the conclusion of Mr Green's oral evidence, the applicant stated that he did not want to press that part of his review application relating to the searches undertaken, stating it would only delay the issue.
2. Accordingly, the only issues requiring consideration are whether the respondent had power to release the valuation reports to the applicant, and whether the Tribunal can, or should, make a declaration in the terms sought by the applicant.

Whether there is power to release the reports to the applicant

1. The respondent relied on s 8 of the GIPA Act, which provides: 8 Informal release of government information (1) An agency is authorised to release government information held by it to a person in response to an informal request by the person (that is, a request that is not an access application) unless there is an overriding public interest against disclosure of the information. (2) An agency can release government information in response to an informal request subject to any reasonable conditions that the agency thinks fit to impose. (3) An agency cannot be required to disclose government information pursuant to an informal request and cannot be required to consider an informal request for government information. (4) An agency can decide by what means information is to be released in response to an informal request. (5) An agency can facilitate public access to government information contained in a record by deleting matter from a copy of the record to be released in response to an informal request if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record. (6) The functions of an agency under this section may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.
2. The respondent submitted that the decision the subject of the application for review was made on 24 June 2021, and that in the course of preparing submissions and evidence for the Tribunal proceedings the respondent formed the view that there was no reason to withhold the documents, and made an informal release under s 8 of the GIPA Act.
3. The applicant submitted that the respondent has impliedly made a new reviewable decision, which it is prohibited from doing, and it could not make a new decision on its own initiative, referring to s 82(5) of the GIPA Act which provides: (5) There is to be no internal review of a decision that is or has been the subject of an administrative review by NCAT as provided by this Part.

Discussion and findings

1. Section 7 of the GIPA Act authorises proactive release of government information, to be publicly available either free of charge or at the lowest reasonable cost to the agency, unless there is an overriding public interest against disclosure. Section 8 of the GIPA Act authorises an agency to release information held by it to a person in response to an informal request, unless there is an overriding public interest against disclosure of the information. To do so in appropriate circumstances is consistent with the objects of the GIPA Act.
2. The term "informal request" is not defined, however s 8(1) makes it clear that an informal request is a request that is not an access application. An "access application" is, as defined in s 4(1) of the GIPA Act, an application for access to government information made under Part 4 of the GIPA Act that is a valid access application.
3. There are differences between an informal request and an access application, not least being that a person who makes an access application has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act, unless there is an overriding public interest against disclosure of the information, while under s 8(3) of the GIPA Act an agency cannot be required to consider an informal request, or to disclose information pursuant to an informal request. Further, while release of government information in response to an informal request may, under s 8(2), be made "subject to any reasonable conditions that the agency thinks fit to impose", the use or disclosure of information to which access is provided in response to an access application under Part 4 of the GIPA Act cannot, other than in relation to how a right of access may be exercised or in relation to access to medical or psychiatric information, be made subject to conditions: GIPA Act, s 73.
4. The documents before the Tribunal confirm that the application made by the applicant on 29 April 2021 was an access application, and determined as such on 24 June 2021 in accordance with the requirements of Part 4 of the GIPA Act. It was not an informal request to which s 8 of the GIPA Act might apply, so as to authorise release of the valuation reports to the applicant as an informal release.
5. The GIPA Act confers power on an agency to reconsider a decision made in response to an access request, in specified circumstances: 1. If an agency finds that information or additional information is held by it after deciding an access application, the agency can make a further decision that replaces or supplements the original decision: GIPA Act, s 58(3); 2. A person aggrieved by a "reviewable decision", that is, a decision as specified in s 80 of the GIPA Act, is entitled to an internal review of the decision by the agency that made the decision (unless made by the principal officer of the agency), to be done by making a new decision: GIPA Act, s 84(1). However, there is to be no internal review of a decision "that is or has been the subject of" an administrative review by the Tribunal: GIPA Act, s 82(5); 3. If an agency has not decided an access application within the time specified in s 57, and there is a deemed refusal to deal with the application, the agency may continue to deal with the application and subsequently decide the application, its decision then being a "late decision": GIPA Act, s 63; and 4. An agency may reconsider its decision on the recommendation of the Information Commissioner if the reviewable decision has been the subject of a review by the Information Commissioner under Div 3 of Part 4 of the GIPA Act: GIPA Act, s 93.
6. The circumstances in which an agency may reconsider its decision once an application has been made to the Tribunal for administrative review under Div 4 of Part 4 of the GIPA Act are specified in the GIPA Act, and under the Administrative Decisions Review Act 1997 (the ADR Act). First, the Tribunal may allow an agency further time to decide an access application if the decision the subject of review is a deemed refusal decision because the access application or internal review was not decided within time, and the Tribunal may deal with the administrative review application as if it were an application for review of the subsequent decision: GIPA Act, s 108. Secondly, the Tribunal can remit a decision to the agency for reconsideration under s 65 of the ADR Act, and if the decision is varied or a new decision is made, the application is taken to be an application for review of the varied or new decision.
7. None of those circumstances apply in the present proceedings. The Tribunal is not satisfied that the release by TfNSW of the valuation reports for 14 and 14A Bruxner Park Road in the context of these Tribunal proceedings was authorised under the GIPA Act.
8. That then raises the question of how the Tribunal should determine the application for review, in circumstances where the applicant has now obtained from the respondent all the information remaining in contest in the administrative review proceedings.
9. Having released the valuation reports to the applicant with redactions of personal and financial information, relying on the factors in cl 3(a) and (b) of the Table to s 14 of the GIPA Act, TfNSW submits that the correct and preferable decision in relation to those reports is that the decision under review should be varied to account for the provision of the documents to the applicant. It is clear that TfNSW is no longer of the view that there is an overriding public interest against disclosure based on the arguments under cl 4(c) and (d) on which it relied in the decision of 24 June 2021, and as to which it would bear the onus under s 105 of the GIPA Act.
10. Notwithstanding that position, the applicant seeks from the Tribunal a declaration that cl 4(c), or cl 4, is not a valid public interest ground against the disclosure of property reports obtained by TfNSW for the purpose of compulsory acquisition.

Whether a declaration in the terms sought by the applicant can or should be granted

1. The applicant submits that the Coffs Harbour Bypass has been in the acquisition phase for almost 20 years, and requires the full or partial acquisition of about 151 properties. He submits that it has stifled the planning and development of the regions in Coffs Harbour affected by it; that the selected route has resulted in the need to resume many greenfield properties that would otherwise have eventually expanded the city's perimeter; that in about 2001 Planning NSW moved for Coffs Harbour City Council to rezone the greenfield properties identified for resumption to that of "special infrastructure", with the consequence of a depressive effect on the value of those properties as well as to properties in the proximity of the Bypass route.
2. The applicant submits that acquisition by agreement is the primary basis on which TfNSW acquires properties, in the financial year ended 30 June 2020 being 91% of acquisitions; and that the values determined in that process do not technically meet the market value definition as the acquisitions occur in the shadow of compulsory acquisition and generally do not involve a willing seller. He submits that there is a strong inference that TfNSW has adopted an unofficial policy of restricting access to the valuation reports it obtains on properties to be acquired. The applicant submits that access to valuation reports of other properties being released to affected landowners in close proximity allows those landowners to make evaluations and comparisons on the considerations that support the market value opinions for those properties. He submits that the respondent is, as a government agency, expected to deal honestly and fairly with landowners in the acquisition process, and transparency of meaningful information in relation to establishing the market value of a property is non-existent.
3. The applicant submits that by reason of its submissions of 31 August 2021 the respondent has been unable to establish that release of the valuation reports would adversely impact its so-called business interests, in which case there is no overriding public interest against disclosure, and has considered the futility of relying on cl 4(c) of the Table to s 14 for denying access to the requested reports. Instead of just conceding the error in having raised cl 4(c) the respondent has attempted to deflect the grounds for review from cl 4(c) to that of cl 3(a) and (b) of the Table. He states that he has another access application for reports presently on foot, currently being reviewed by the Information Commissioner, based on other grounds for access denial, and unless a formal and published decision on the legitimacy or otherwise of a denial of access based on cl 4(c) is made by the Tribunal in this matter, the respondent will likely continue to raise cl 4(c) in future similar access applications for stalling and frustration purposes.
4. In oral submissions the applicant referred to s 5(1)(e) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), which includes in the definition of "decision", "making a declaration, demand or requirement". He submitted that a declaration would give guidance to the public and affected landowners.
5. The respondent submits that the decision under administrative review by the Tribunal is the decision to refuse access to information pursuant to s 80(d) of the GIPA Act in response to an access application lodged by the applicant on 29 April 2021. The respondent has identified as relevant two public interest considerations against disclosure of the valuation reports which are the subject of the access application, namely cl 3(a) and (b) of the Table to s 14 of the GIPA Act. In accordance with s 74 of the GIPA Act, the respondent deleted from the records released to the applicant on 27 August 2021 information that would otherwise result in there being an overriding public interest against disclosure of the record, relying on those public interest considerations against disclosure.
6. The respondent submits that the Tribunal's role in considering an application for external review is subject to the GIPA Act and the ADR Act. The Tribunal's role is to decide what is the correct and preferable decision, having regard to the material before it. As such, the Tribunal's role is to consider whether in light of the respondent's decisions of 24 June 2021, 17 August 2021 and 27 August 2021, the correct and preferable decision is the partial release of the valuation reports for 14 and 14A Bruxner Park Road on the basis that disclosure of the information could be expected to reveal an individual's personal information (cl 3(a)) and contravene an Information Protection Principle under the Privacy and Personal Information Protection Act 1998 (cl 3(b)). The respondent submits that the applicant has confirmed that he did not and does not seek access to personal information of third parties; and the review of the valuation reports conducted by the respondent in August 2021 and the passage of time identified no public interest against disclosure based on cl 4(c) and 4(d) of the Table to s 14 of the GIPA Act.
7. The respondent submits that the orders sought by the applicant are not consistent with the available outcomes provided in s 63 of the ADR Act following an administrative review by the Tribunal. It is beyond the scope of the ADR Act for the Tribunal to restrict the consideration by an agency of future decisions. The GIPA Act is confined to consideration of information the subject of an access application including the public interest considerations relating to disclosure, at a particular point in time. Even if there were power to make the orders sought by the applicant, the Tribunal should not make a decision that pre-empts or applies to future decisions, each of which would be made on its own merits.

Discussion and findings

1. The Tribunal's jurisdiction to review a reviewable decision of an agency under the GIPA Act is conferred by s 100(1) of that Act, which provides that a person who is aggrieved may apply to the Tribunal for an administrative review "under the ADR Act" of the decision. The task of the Tribunal in determining an application for an administrative review under the ADR Act of an administratively reviewable decision, including a decision under the GIPA Act, is to decide what the correct and preferable decision is, having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADR Act s 63(1).
2. For that purpose, the Tribunal may exercise all the functions conferred or imposed by any relevant legislation on the administrator who made the decision: ADR Act, s 63(2).
3. Section 63(3) provides: (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
4. The respondent's decision of 24 June 2021 was based on the position that there was an overriding public interest against disclosure relying on the matters in cl 4(c) and (d) of the Table to s 14 of the GIPA Act. The respondent contended that the valuation reports prepared for 14 and 14A Bruxner Park Road were prepared for the purpose of commercial negotiation with the owners of those properties, for which the compulsory acquisition negotiations were ongoing; and that disclosure of the information would have a detrimental effect on TfNSW's ability to competitively negotiate the ongoing property negotiations for the project including the applicant's property, and prejudice TfNSW's legitimate business and commercial interests due to the commercial advantage to parties who had not yet reached settlement with TfNSW.
5. The respondent's position now is that a review of the valuation reports in August 2021 and the passage of time has identified no public interest considerations against disclosure as provided in cl 4(c) or (d) of the Table to s 14, and it does not rely on those public interest considerations against disclosure. However, there is information in those reports for which there is a public interest consideration against disclosure as provided in cl 3(a) and (b) of the Table to s 14 of the GIPA Act. That information can be redacted, so that the valuation reports can properly be released to the applicant.
6. While the making of a declaration is included in the definition of a "decision" under the NCAT Act, that does not of itself confer any power on the Tribunal to make such an order. The GIPA Act, that is, the "enabling legislation" that confers administrative review jurisdiction on the Tribunal, does not specify the orders that may be made by the Tribunal on an application under s 100 for review of a reviewable decision of an agency under s 80 of the GIPA Act; and so s 63(3) of the ADR Act applies. The Tribunal's powers on administrative review under the ADR Act as conferred by s 63(3) do not in terms include a power to make a declaration. The powers conferred by s 63(3) of the ADR Act are to be exercised having regard to the task of the Tribunal as stated in s 63(1), that is, to determine what is the correct and preferable decision on administrative review of the "administratively reviewable decision" that is the subject of the administrative review application. In the present proceedings that was the decision of the respondent on 24 June 2021, and the subsequent decision notified on 17 August 2021 at the direction of the Tribunal.
7. There is no indication in s 63 of the ADR Act that the Tribunal's powers extend beyond the making of a decision on the administrative review application before it to the making of a declaration that might apply to the determination by the respondent of future access applications. The Tribunal accepts that the question of construction of cl 4(c) of the Table to s 14 of the GIPA Act may arise in future access applications under the GIPA Act for access to information relating to property valuations held by the respondent. The obligation on the agency is to determine any such future applications in accordance with the requirements of Part 4 of the GIPA Act, on the merits of the particular case. And the Tribunal would be required, on an application initiated by an aggrieved person, to determine an administrative review in respect of any such determinations in accordance with s 63 of the ADR Act and the requirements of the GIPA Act.
8. The Tribunal is not persuaded that there is power to make a declaration in the terms sought by the applicant. Even if there were such a power, the Tribunal is not satisfied that it would be appropriate to do so in this matter. As noted above, in these proceedings under the GIPA Act, the respondent bears the onus of establishing that its decision is justified: GIPA Act, s 105(1). There is no dispute between the parties on any issue relating to the access application made by the applicant. The respondent does not rely on the public interest considerations against disclosure in cl 4(c) or (d) in relation to the government information the subject of these proceedings. Whatever conclusion the Tribunal might come to as to the application of those provisions could have no practical consequence or bearing on the outcome of these proceedings, or determine the agency's approach to any future access applications made to TfNSW.

Other orders sought

1. In his written submissions the applicant urged the Tribunal to: (a) pursue a line of enquiry relating to potential offence conduct by a person or persons referred to under ss 116, 117 and 118 of the GIPA Act; (b) evaluate whether an officer of the respondent has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act, and if so dealt with in accordance with the GIPA Act; (c) evaluate whether a systemic issue is indicated in relation to the determination of access applications by the respondent, and if so dealt with in accordance with s 111 of the GIPA Act.
2. In oral submissions the applicant submitted that the Tribunal has the ability to trigger inquiries, and TfNSW has a well-established stand of preventing release of information.
3. The respondent submits that there is no evidence of bad faith, and the decision under review was based on the information at the time, has been considered for release, and has been released.
4. Section 111 of the GIPA Act does not give the Tribunal power to carry out an inquiry into an agency's conduct that is separate from or additional to the administrative review proceedings: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [52]. The Tribunal has no power to investigate whether any offence may have been committed under ss 116-120 of the GIPA Act: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [57]. There is no indication in any of the documents before the Tribunal that any officer of the respondent has failed to exercise good faith any function conferred by or under the GIPA Act.

What orders should be made

1. As discussed above, the valuation reports to which access was sought under the GIPA Act have been released to the applicant, with redactions which he does not contest. It is arguable that the Tribunal may have power to refuse to deal further with the administrative review under s 109 of the GIPA Act, which provides: 109 NCAT may refuse to review decision NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance.
2. The applicant opposed such a course, submitting that the application is not frivolous or vexatious and is entirely justified; the fact that the respondent has provided the reports is of no consequence, because there was no power to make another decision.
3. The respondent submits that there is power to dismiss the application under s 109, as having obtained access to the information the application is without merit.
4. In Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30 (Fearnley) the Tribunal considered s 109 of the GIPA Act, referring to the decision of the Appeal Panel in BDK v Department of Education and Communities [2015] NSWCATAP 129 on the equivalent provision in s 55(1)(b) of the NCAT Act which also uses the terms "frivolous, vexatious, misconceived or lacking in substance". The Appeal Panel commented at [66] that a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b), noting that the intent of the provision is "to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass". The Tribunal in Fearnley noted at [47] that reviews under the GIPA Act are a good example of the nature of the proceedings, and applicable legislation, having a significant impact on whether proceedings are frivolous, misconceived or lacking in substance.
5. Were there no utility in the continuation of the proceedings, it may be that they could be characterised as "lacking in substance", in the sense discussed by the Tribunal in Fearnley at [50], namely, as not reasonably arguable. However, having concluded that there was no basis under the legislation for the respondent to make a new decision to release the reports with redactions, and in circumstances where the respondent has in effect consented to release of the information to the applicant in the form in which it has been provided, the Tribunal agrees with TfNSW that the appropriate course is to vary the decision under review to provide access to the reports subject to the redaction of personal and financial information.
6. The Tribunal has considered the copies of the valuation reports as provided to the Tribunal on a confidential basis. The material redacted from the Valuation Reports for 14 Bruxner Road (16 November 2016) and 14A Bruxner Park Road (15 August 2017, 20 November 2018) relates to personal or financial information of an individual or individuals other than the applicant.
7. The Tribunal concludes that the correct and preferable decision in relation to the access application for valuation reports for 14 and 14A Bruxner Road is to vary the decision under review to provide access to the reports, subject to the redaction of personal and financial information.

Costs

1. The applicant seeks an order for costs, referring to s 60(3)(c) of the NCAT Act. The respondent submits that there are no special circumstances in the proceedings that warrant an award of costs, and that each party is to pay their own costs.
2. The general principle with respect to costs of proceedings in the Tribunal is that each party should pay their own costs: NCAT Act, s 60(1). The Tribunal may only award costs where it is satisfied that there are special circumstances that warrant an award of costs: NCAT Act, s 60(2). In determining whether there are special circumstances, the Tribunal may have regard to the factors set out in s 60(3), which provides: … (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant.
3. An opportunity is provided for the applicant to provide submissions in support of his application for costs, if that application is pressed, and for a response by the respondent to any such submissions.

Orders

1. The Tribunal orders: (1)The decision under review is varied, and access is to be provided to the valuation reports for 14 and 14A Bruxner Park Road Korara NSW, subject to the redaction of personal and financial information at the following pages: 1. 14 Bruxner Park Road, 16 November 2016: p 6; 2. 14A Bruxner Park Road, 20 November 2018: pp 12, 13, 27, 28, 45, 46; 3. 14A Bruxner Park Road, 15 August 2017: header, and pp 1, 3, 8, 9, 10, 27, and Letter of Instruction. (2) Any submissions in support of an application for costs are to be provided to the Tribunal and the other party no later than 14 days after the publication of these reasons. (3) Any submissions in response are to be provided to the Tribunal and the other party no later than 14 days after the date referred to in (2). (4) The parties' submissions are to include any submission as to whether a hearing is required on costs. Subject to considering any such submissions, the Tribunal proposes to dispense with a hearing and determine any application for costs on the basis of the documents provided to the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2021