Dibb v Transport for NSW

Legislation

1. The main provisions considered in the decision to which the appeal relates are:

GIPA Act 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. 14 Public interest considerations against disclosure 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. 111 Referral of systemic issues to Information Commissioner NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.

The decision

1. The Tribunal identified the following issues to be determined.
2. First, whether there is power to release the valuation reports to the appellant.
3. Secondly, whether a declaration that cl 4(c) or cl 4(d) is not a valid public interest ground against the disclosure of property reports obtained by the respondent for the purpose of compulsory acquisition, can or should be granted.
4. Thirdly. what orders should be made.
5. In respect of the first issue, whether there is power to release the reports to the appellant, the Tribunal referred to s 8 of the GIPA Act. The Tribunal found an informal request by the person for the release of government information was not an access application, under Part 4 of the GIPA Act. The Tribunal canvassed the circumstances in which an agency may reconsider a decision in response to an access request and found that none of those circumstances applied in this case. It concluded that it was not satisfied that the release by the respondent of the two valuation reports on 27 August 2021 was authorised under the GIPA Act.
6. Secondly, the appellant sought a declaration that cl 4(c) or cl 4(d) is not a valid public interest ground against the disclosure of property reports obtained by the respondent for the purpose of compulsory acquisition. This was sought notwithstanding that the respondent was no longer of the view that there were public interest considerations against disclosure.
7. The Tribunal found that there was no power to make a declaration in the terms sought. It found that there was no indication in s 63 of the Administrative Decisions Review Act 1997 (ADR Act) that the Tribunal's powers extended 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.
8. Even if there were such power, the Tribunal was not satisfied that if would be appropriate to do so. This was because there was no dispute between the parties on any issue relating to the access application. The Tribunal decided that 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 the proceedings or determine the agency's approach to any future access applications made to it.
9. Thirdly, the Tribunal considered the appellant's submission that it should effectively investigate whether an offence had been committed under ss 116, 117 and 118 of the GIPA Act, evaluate whether an officer of the respondent failed to exercise good faith and refer the respondent under s 111 of the GIPA Act to the Information Commissioner.
10. The Tribunal found that s 111 does not give the Tribunal power to carry out an inquiry or investigate whether an offence may have been committed under ss116-120 of the GIPA Act: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [52] and [57] and further, that there was no indication in any of the documents that any officer of the respondent has failed to exercise good faith, warranting such a referral.
11. The Tribunal found that the appropriate course was to vary the decision under review to provide access to the valuation reports subject to the redaction of personal and financial information.

Grounds of Appeal

1. First, the appellant submitted that the correct and preferable decision would have been for the Tribunal to have disregarded the unauthorised new decision made by the respondent on 27 August 2021 and to have confined its review to the decision made by the respondent on 24 June 2021. The decision not to decide the application based on the 24 June 2021 decision resulted in 'a constructive failure to exercise jurisdiction, in that the material issue presented to the Tribunal for determination was not resolved.'
2. Secondly, in respect of the Tribunal's decision that s 63 of the ADR Act did not indicate that it had powers to make declarations that might apply to the determination by the respondent of future access applications, the appellant contended that s 63 only applies to the respondent's decision made on 24 June 2021 and not the purported decision on 27 August 2021.
3. Thirdly, the appellant referred to the finding that the GIPA Act does not confer power on the Tribunal to carry out an inquiry into an agency's conduct,. He then submitted 'yet it is clear that ss 111 and 112 of the GIPA Act empowers the Tribunal to refer reasonable apprehended systemic and/or bad faith issues to the Information Commissioner or the Minister for Regional transport and Roads'.
4. Further, the appellant submitted that the Tribunal's finding that there was no indication in any documents before the Tribunal that any officer of the respondent has failed to exercise good faith with any function conferred by or under the GIPA Act was made 'despite submissions made by the appellant that should have reasonably met a prima facie threshold of an absence of good faith'.

Appellant's submissions

1. The appellant's written submissions addressed first, the 27 August 'decision'; secondly, a decision made under Queensland legislation in which, the appellant stated the claim that the disclosure of valuation reports would prejudice the financial or property interests of the State, was rejected; thirdly, the evidence supporting a s 111 referral; and finally, reasons why the conduct of the respondent is a matter of public importance.
2. In relation to the 27 August release, the appellant questioned the respondent's 'motive' for attempting to change its decision, which the appellant submitted 'warrants particular scrutiny by the Appeals Panel.'
3. Similarly, in the appellant's submissions in reply, he stated that 'the first instance review hearing, and now this appeal before the Appeal Panel remains about the bona fides of the respondent's reviewable decision made on 24 June 2021 which still stands. The interim release of some reports does not extinguish that reviewable decision or the need to review it'.
4. In the appellant's submissions in reply, the appellant contended that he made no formal request under s 8 for the documents which were provided on 27 August 2021, as was asserted by the respondent in its written submissions. The respondent relied upon a telephone discussion between an officer of the respondent and the appellant in mid-August during which the request had been made by the appellant.
5. This issue was further agitated in oral submissions. The respondent was represented by the solicitor, Ms Jeyasingam, who had the telephone conversation with the appellant in mid-August.
6. Ms Jeyasingam conceded at the hearing that she may have misunderstood or misinterpreted the appellant as, during that conversation, having made an informal request for the two valuation reports.
7. In relation to the third matter, the appellant's submissions were directed to the conduct of the respondent which he described in various terms including dishonest and unfair.
8. Finally, the principal reason the appellant gave for the appeal raising matters of public importance was the unfairness and lack of transparency in the approach of the respondent in determining the value of land it acquires. The appellant emphasised that the conduct of the respondent was unethical and plainly dishonest.

The respondent's submissions

1. The respondent submitted that the appeal ought to be dismissed as futile because the Appeal Panel does not have jurisdiction to deal with the purported appeal or because the purported appeal is not competent pursuant to s 55(1)(b) Civil and Administrative Tribunal Act 2013 (the CAT Act).
2. The respondent submitted that if the Appeal Panel decides to deal with the appeal, the appellant has not substantiated any of the grounds of appeal and the appeal should be dismissed.
3. In support of the respondent's contention that the appeal is futile, the respondent submitted that there is no dispute that the appeal is moot. The information to which the appellant sought access was made available prior to the hearing on 27 August 2021.
4. Further, the respondent submitted that the purpose of the appeal appears to be for the appellant to seek guidance in future disputes of a similar character.
5. The respondent referred to a number of High Court decisions and those of other superior courts which have consistently held that the courts do not have the power to deliver advisory opinions: see for example Re: Judiciary and Navigation Acts (1922) 29 CLR 257 at 256-267).
6. The respondent relied on Belmont & Flores [2020] FamC.AFC 290 at [19-20]: It is not the role of an appellate court to give prospective advisory opinions. It's role is necessarily, by statute, constrained to determining whether there is an appealable error in existing orders, and if there is, making or fashioning the appropriate appellate response to it. As desirable as it might be, to be able to resolve looming disputes between the parties in advance of them arising, that is not the function of an appellate court. It follows that the current appeal is futile.
7. The respondent then referred to a number of decisions of Appeal Panels to the effect that the general rule for moot appeals (where there will be no practical consequence for the parties) is that they should not be entertained: see for example Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139.
8. In Feeney, the Appeal Panel stated that a single factor in favour of determining that appeal was that it raised a question of general importance to all public sector agencies about the proper meaning of s 60(1)(e) of the GIPA Act. That factor was not sufficient to displace the general rule that such appeals should not be entertained.
9. The respondent also relied on s 36(1) of the CAT Act which provides that the guiding principle is to facilitate the just, quick and cheap resolution of the real issues in the proceeding. It submitted that there are no real issues remaining in these proceedings.
10. The respondent also made submissions about the finding of the Tribunal that the release of information on 27 August 2021 was unauthorised.
11. While we do not understand that the respondent has cross-appealed the decision by the Tribunal that the release on 27 August 2021 was unauthorised, the respondent made submissions about that matter. The respondent submitted that the release of information in the course of a proceeding is in accordance with s 36 of CAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceeding. It referenced a number of decisions of the Tribunal in which, it contended, none of the comparable actions of the public sector agency were deemed unauthorised: for example Pearson v Commissioner of Police, NSW Police Force [2019] NSWCATAD 113 at [9, 26].
12. The respondent did not engage with the issue of whether an appeal lay from a decision of the Tribunal not to refer the matter to the Information Commissioner under s 111. Instead, the respondent submitted that it is open to the appellant to lodge a complaint with the Information Commissioner under s 17 of the Government Information (Information Commissioner) Act 2009 as an alternative to a s 111 referral.

Submissions of the Information Commissioner

1. The Information Commissioner did not appear in the proceedings before the Principal Member, however s 104(1) of the GIPA Act provides for the Commissioner to be heard in these proceedings. The Information Commissioner made submissions about the grounds of appeal concerning the referral to the Information Commissioner under s 111 and whether the release of information on 27 August 2021 was unauthorised by the GIPA Act.
2. The Information Commissioner submitted that s 111 is an administrative review function conferred on the Tribunal under Div 4 of Part 5 (review of decisions) of the GIPA Act. It provides a discretion on the Tribunal, conditional on the Tribunal forming the relevant opinion as to whether there are systemic matters, not confined to the particular access dispute, and therefore, whether to refer the matter to the Information Commissioner.
3. The Information Commissioner submitted that the consideration of a discrete issue about how an agency has dealt with particular information (such as its manner of recording and maintaining CCTV) has not been considered a systemic issue: see Shoebridge v Commissioner of Police NSW Police Force [2013] NSWADT 302 at [61-62].
4. Further: The Information Commissioner has taken the view that 'systems' includes 'policies', 'practices' and 'arrangements' instituted by an agency to exercise their responsibilities under the GIPA Act. Upholding the GIPA Act includes to ensure the operationalisation of these responsibilities in applying processes and sound systems for governance and accountability.
5. The Information Commissioner submitted that the referral of 'systemic' matters under s 111 could be a matter outside s 5 and s 32 of the CAT Act and s 9 and s 63 under the ADR Act. The Information Commissioner submitted In these circumstances it would be appropriate for the Appeal Panel to determine whether the Tribunal's opinion formed on any indicative systemic issues for exercising referral under s 111 could constitute a ground of appeal under s 80 of the CAT Act.
6. In relation to the release of the information on 27 August 2021 under s 8 of the GIPA Act, the Information Commissioner submitted that such release was firstly, not a reviewable decision made under Part 4 of the GIPA Act and secondly, within the factual circumstances presented, s 8 was not available as the mechanism by which the respondent could release the additional information to the appellant.
7. The Information Commissioner supported the decision of the Tribunal that the release of information on 27 August was unauthorised by the GIPA Act.
8. The Information Commissioner disagreed with the respondent's submissions that the cases identified in [40] of the respondent's submissions establish Tribunal authority to endorse s 8 informal release of information in circumstances where the access application is the appropriate mechanism under the GIPA Act for facilitating release of information following the commencement of administrative review of a reviewable decision under s 100.
9. The Information Commissioner gave detailed reasons for her submissions set out above, for which the Appeal Panel is grateful. However, given the decision made by the Appeal Panel, it is unnecessary to set them out in more detail in this decision.

Scope and nature of internal appeals

1. By virtue of s 80(2) of the CAT Act internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exhaustive list of questions of law being: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.

Consideration

1. There is no doubt that on 27 August 2021, the appellant received the documents he had sought in his amended access application. It follows that there will be no practical consequences for the parties if this appeal is decided.
2. We agree with the decision in Feeney that the general rule for moot appeals is that they should not be entertained. This appeal became moot on 27 August 2021, that is the day the documents were released to the appellant, before the Notice of Appeal was filed on 23 November 2021.
3. In Feeney, the Appeal Panel stated that a single factor in favour of determining that appeal was that it raised a question of general importance to all public sector agencies about the proper meaning of s 60(1)(e) of the GIPA Act. That factor was not sufficient to displace the general rule that such appeals should not be entertained.
4. We then turn to consider whether there is any question of general importance to all public sector agencies which arises in this appeal. The appellant submitted that as a government agency, the respondent is expected to deal honestly, fairly and beyond reproach within landowners in the acquisition process. The appellant referenced a September 2016 report by the Customer Service Commissioner which, he said, found that the common concerns of landowners was that they did not believe they received fair market value and that the valuations were inconsistent.
5. The appellant also contended that the current Parliamentary Inquiry on land acquisition in NSW is indicative of the endemic problems with the respondent's land acquisition process.
6. The appellant's principle submission concerns the exercise of the respondent's compulsory acquisition powers and its use of cll 4(c) or (d) to resist access to information.
7. We are not persuaded that the application of cll 4(c) or (d) by the respondent in those circumstances is of general importance to all public sector agencies.
8. Further, we accept the long and distinguished line of authorities to the effect that courts and Tribunals cannot give advisory opinions. We accept that submissions of the respondent that the purpose of the appeal appears to be for the appellant to seek guidance in future disputes of a similar character.
9. We reject grounds 1 and 2 of the Appeal.
10. It is unnecessary for us to consider whether the release of information under s 8 of the GIPA Act was unauthorised.
11. We then turn to the third ground of appeal, whether the Tribunal erred in law in not referring the matter to the Information Commissioner under section 111.
12. As the Tribunal correctly found at [57], s 111 does not give the Tribunal power to carry out an inquiry into an agency's conduct that is separate from, or additional to, any administrative review proceedings: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [52]. Further, allegations of a breach of the GIPA Act, including systemic breaches of the GIPA Act, do not provide a source of jurisdiction for the Tribunal: Zonnevylle v Minister for Education [2019] NSWCATAD 28 at [58].
13. The discretion to make a referral to the Information Commissioner under section 111 is conditional on the Tribunal forming the relevant opinion as to whether there are systemic matters, not confined to the particular access dispute, and therefore, whether to refer the matter to the Information Commissioner.
14. The Tribunal stated at [57] that there was no indication in any documents before the Tribunal that any officer of the respondent has failed to exercise good faith with any function conferred by or under the GIPA Act. The Tribunal then declined to make the referral.
15. The asserted ground of appeal was that that decision was made 'despite submissions made by the appellant that should have reasonably met a prima facie threshold of an absence of good faith'.
16. In order to succeed on this ground of appeal, we must be satisfied that the Tribunal erred in law. By reference to the questions of law set out earlier, we are not persuaded that the Tribunal 1. identified the wrong issue or asked the wrong question; 2. applied a wrong principle of law; 3. failed to take into account relevant (i.e., mandatory) considerations; or 4. took into account an irrelevant consideration.
17. There was evidence before the Tribunal to support the finding of fact that there was no evidence of a failure to exercise good faith, in particular that of Mr Green, an officer of the respondent who was responsible for the acquisition of land in relation to the Coffs Harbour Bypass.
18. Finally, the decision made not to refer the matter to the Information Commissioner under s 111 was not so unreasonable that that no reasonable decision-maker would make it.
19. We conclude that the Tribunal made no error of law in not referring the matter to the Information Commissioner under s 111 of the GIPA Act.
20. We note the Information Commissioner's submissions that an appeal may not lie from a decision not to refer a matter under s 111. We further note that the respondent made no submissions as to that matter. In the circumstances where this important matter was not fully argued before us and our finding that no error of law has been made, we make no findings in that regard.
21. We dismiss the appeal on the ground that it is moot and therefore futile.

Costs

1. The appellant submitted that costs should be paid by the respondent under s 60(3)(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.
2. The respondent submitted that there are no special circumstances in these proceedings that warrant an award of costs.
3. In light of our decision to dismiss the appeal, we reject the appellant's submission that the respondent should pay his costs.
4. We accept the respondent's submission that there are no special circumstances that warrant an order of costs. We order that each party is to pay its own costs.

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 29 March 2022 - Pursuant to s 63 Civil and Administrative Tribunal Act 2013 - Representation for Respondent corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2022