Durie v Wollongong City Council

Factual background

1. The Tribunal made the following findings about what had happened to the cat. The cat was originally cared for by a woman named Vicki after being abandoned by the original owners. From 2009, the cat was apparently cared for by several people in the surrounding neighbourhood, including Ms Durie. Vicki moved interstate in July 2014. On 30 July 2014, the cat was taken to the RSPCA Unanderra Pound. Staff completed the seizure form, recording the owner's address as "? 26 [Vicki's former address]". The name, address and signature of the person who delivered the cat to the animal shelter were also recorded on the seizure form.
2. On 2 August 2014, Ms Durie contacted the staff at the animal shelter and told them that the cat was "owned' by the complex where Ms Durie lives. The cat was released to Ms Durie's care after she paid the relevant fees. Ten months later, in June 2015, the cat went missing. A vet who carried out an autopsy at Ms Durie's request, determined that the cat had been killed by an acute high force blunt trauma to the head.

The issues before the Tribunal

1. The Tribunal identified the issue as being whether there is an "overriding public interest against disclosure" of the personal details of the person who delivered the cat to the animal shelter. There will be an overriding public interest against disclosure if "there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure": GIPA Act, s 13. The Tribunal decided that the factors against disclosure outweighed the factors in favour of disclosure.

Factors in favour of disclosure

1. The Tribunal relied on the following two factors against disclosure: 1. disclosure could reasonably be expected to reveal the personal details of the third party; 2. disclosure of the information could reasonably be expected to contravene the information privacy principle in the Privacy and Personal Information Protection Act 1998 (NSW), s 18.
2. There was no dispute that giving Ms Durie access to the information would reveal the third party's personal details. Because the third party has objected to disclosure, and there was no evidence which would attract any other exceptions set out in s 18 of the Privacy and Personal Information Protection Act 1998, the Tribunal held that the second factor weighed strongly against disclosure.
3. No grounds of appeal challenged the Tribunal's reliance on these two factors.
4. The Tribunal identified the factors in favour of disclosure as: 1. the general public interest in favour of disclosure: GIPA Act, s 12(1); and 2. some "personal factors of the application" including that Ms Durie and others had cared for the cat and arranged for her release from the shelter: GIPA Act, s 55(2).
5. The Tribunal may take into account the "personal factors of the application" as being either for or against disclosure: GIPA Act s 55(1) and (2). Those factors are: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant.
6. The Tribunal found that Ms Durie's identity alone did not weigh in favour of disclosure. In relation to her motives for making the access application, the Tribunal found that her motives "appear to be to gain redress or revenge against the person whose identity is sought": Durie v Wollongong City Council [2016] NSWCATAD 288 at [60]. The Tribunal concluded that Ms Durie's motives did not weigh either in favour of or against disclosure.
7. Ms Durie told us at the Appeal Panel hearing that she disagreed with the Tribunal's finding that she was seeking revenge. She said that her motivation was to find out who killed the cat and to clear her name. Ms Durie stated that after the cat had died, another resident had made what she regarded as a vexatious complaint to the police about her, and that the police had decided not to take any action. Ms Durie described herself as a "victim of crime". Ms Durie indicated that she suspected the person who made the complaint had delivered the cat to the animal shelter, or was possibly linked to the person who delivered the cat to the animal shelter, and may have been involved in a deliberate act that killed the cat.
8. Ms Durie did not challenge the Tribunal's factual finding about her motivation in the Notice of Appeal. Even so, we have addressed that ground of appeal below. Ms Durie is self-represented and the Council had an opportunity to respond to it verbally during the hearing.
9. The Tribunal did not accept Ms Durie's submission that one factor in favour of disclosure was that "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": GIPA Act, s 12(2)(e). Ms Durie submitted that the act of delivering the cat to the shelter was misconduct and the failure to disclose the reasons for it being delivered was negligent as was the Council's failure to make inquiries at Vicki's former address.
10. The Tribunal decided that the act of delivering the cat to the shelter was not the act of Council and that there was no basis for suggesting that it was improper. The Tribunal found that there was no evidence as to what reasons, if any, the third party gave to the receiving officer for delivering the cat to the animal shelter. The Tribunal held that, even if reasons were not given, any failure to give reasons for delivering the cat was not the act of Council. The Tribunal held that it was likely that the receiving officer had reason to believe that enquiries at Vicki's former address would not reveal the identity of the cat's owner or carers. In those circumstances, it was not negligent for the Council to refrain from making inquiries of those occupants, and to concentrate its resources on making inquiries of another source.
11. At the appeal hearing, Ms Durie submitted that the Tribunal had not given enough weight to her claim that the Council was negligent. That was not a ground of appeal Ms Durie identified in the Notice of Appeal. For the reasons we have already given, we will address that ground below.
12. A related ground of appeal was that the employee of Council who accepted the cat did not "verify the bona fides of the person delivering the cat". According to Ms Durie, no driver's licence number or date of birth was recorded on the form.

Overview of grounds of appeal

1. Ms Durie can appeal against the Tribunal's decision on a question of law: NCAT Act, s 80(2)(b). Because Ms Durie did not have a lawyer, we have tried to identify any questions of law that arise from the Tribunal's decision: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. She has also asked for permission, or "leave" to appeal on grounds other than questions of law: NCAT Act, s 80(2)(b).
2. Ms Durie's grounds of appeal on questions of law are: 1. the Tribunal was wrong to find that one of her motivation's in making the application under the GIPA Act was "revenge"; 2. the Tribunal gave insufficient weight to her claim that the Council was negligent; 3. the information supplied to the Tribunal from the Council and the third party is not enough to substantiate the true identity and intent of the third party when surrendering the cat.

Finding of revenge

1. The question whether there is any evidence of a particular fact or whether a particular inference can be drawn from facts as found are questions of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR at 355 per Mason CJ (with whom Brennan J agreed). A factual finding for which there is no evidence will be an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [91] per Hayne, Heydon, Crennan and Kiefel JJ.
2. Part of Ms Durie's evidence to the Tribunal below was a five page document providing a chronology of events from 2009. That document describes various neighbourhood disputes about the cat. Ms Durie admits that she accused one resident of killing the cat. In her opinion, two residents were "playing a very nasty game with me and (cat's name deleted) is stuck in the middle". Ms Durie reported the cat's death to the police but was told that she needs more evidence before any action can be taken. She thinks that if the identity of the person who took the cat to the shelter is revealed, that will provide further relevant information for her to take to the police.
3. At [44] of the Tribunal's reasons for decision, part of Ms Durie's written material was re-produced as written, except for the material in brackets: She also found her way to [the applicant's] complex as she was a cat that luved to visit many people - A NEIGHBOURHOOD CAT WITH A BEAUTIFUL FRIENDLY SOUL! Not a nuisance cat! But I am aware of one person who intensely hates cats and LIKES TO GIVE ORDERS AS TO HOW OTHER PEOPLE SHOULD LIVE AND I WAS TOLD THAT IT WAS HIGHLY LIKELY THAT HE TRAPPED AND TOOK HER TO THE POUND IN GREAT MALICE TO HER CARER! NOT BECAUSE HE WAS CONCERNED FOR HER WELFARE WALKING DOWN [Vicki's street] WHICH WAS TOLD TO THE POUND! ..... The meanness and cruelty inflicted on my cat and myself prior to and post her death has me in a state of depression for which i have sought professional help. I believe the release of the information i seek would bring some justice for myself and the cat which is ALL I am trying to obtain.
4. On the basis of the material outlined above, and other material before the Tribunal, the Tribunal found that Ms Durie's motivation "appears to be to gain redress or revenge against the person whose identity is sought".
5. The evidence supports a finding that Ms Durie strongly suspects a particular person of killing her cat and wants that person to be charged with an offence. The evidence also supports a finding that Ms Durie has been adversely affected by the behaviour of other residents who she says have harassed and intimidated her. That evidence is sufficient for the Tribunal to draw an inference that Ms Durie is motivated to gain redress or revenge. While revenge is not an inference that the Appeal Panel would have drawn from the evidence, there was some evidence to support that inference and the inference was open to be made. The Tribunal has not made an error of law in doing so.
6. Ms Durie may also request the Tribunal's permission to appeal from the finding that she is motivated by revenge on grounds other than a question of law. One basis on which permission to appeal may be given is if the Tribunal has made a factual error that was unreasonably arrived at and clearly mistaken: Collins v Urban [2014] NSWCATAP 17 at [84]. Despite the fact that Ms Durie denies that she is motivated by revenge, we are not persuaded that that finding was clearly mistaken. It is an inference which was open for the Tribunal to draw on the basis of all the evidence.

Insufficient weight given to Council's negligence

1. The Tribunal made a factual finding that the Council was not negligent. In those circumstances, it cannot be said that the Tribunal gave insufficient weight to that consideration. Even if the Tribunal had found that the Council was negligent, the weight to be given to a particular consideration in favour of disclosure is a matter for the decision-maker: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J. Accordingly, no question of law arises in relation to the weight the Tribunal attributed to considerations in favour of disclosure.

Identity and intent of third party

1. Ms Durie asserts that the information supplied to the Tribunal from the Council and the third party is not enough to substantiate the true identity and intent of the third party when delivering the cat.
2. There was confidential evidence before the Tribunal as to the identity and intent of the third party. Ms Durie was not provided with that information because the Tribunal formed the view that there was an overriding public interest against the disclosure of that information: GIPA Act s 107(2). The Tribunal set out the details of the confidential evidence and its findings in the reasons at [52] - [54]. On the basis of that evidence the Tribunal found at [55], that the person's decision to deliver the cat to the shelter was not motivated by malice of any kind.
3. There was evidence to support the Tribunal's finding as to the identity and intent of the third party.

Leave to Appeal

1. Ms Durie requires leave to appeal on a ground other than a question of law. Ms Durie seeks that leave, relying on the following grounds: 1. the failure of the receiving officer at the pound to verify the bona fides of the person delivering the cat as no driver's licence number or date of birth confirming their identity has been acknowledged on the form; 2. the person who delivered the cat to the pound may have information in relation to the subsequent fatality of the cat which could bring a criminal to justice; 3. public interest in this matter has intensified through articles published in the Sunday Telegraph and the Daily Mail online; and 4. various matters referred to in documents attached to Ms Durie's application for her appeal.
2. The general principles applicable to the question of whether leave should be granted to an applicant to appeal on grounds other than a question of law were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84]: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, …
3. The grounds relied on by Ms Durie in support of her application for leave do not fall within any of these categories.

Failure to verify identity

1. Ms Durie asserts that there was a failure by the employee of the Council who received the cat to verify the bona fides of the person delivering the cat. No driver's licence number or date of birth confirming that person's identity was acknowledged on the form.
2. This ground of appeal does not raise a question of law. It goes to the merits of one of the public interest considerations in favour of disclosure - whether disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in negligent or improper conduct: GIPA Act, s 12(2)(e). The Tribunal addressed Ms Durie's submissions on that point, finding that the evidence did not support a finding of negligence or misconduct by the Council.
3. Ms Durie appears to assert that it is the fact of the missing information that demonstrates negligence or improper conduct. It is clear on the face of the redacted version of the form provided to Ms Durie that this information is missing. Disclosure of the information sought by Ms Durie can add nothing to whether or not the lack of such information constitutes negligent or improper conduct. We refuse to give Ms Durie permission to appeal on this ground.
4. In relation to Ms Durie's second ground, the Tribunal found at [55] that the person who delivered the cat was not motivated by malice and it was highly unlikely that that person was involved in the cat's death. Accordingly, Ms Durie's motivation for requesting access to the identity of that person is highly unlikely to "bring a criminal to justice". We refuse to give Ms Durie permission to appeal on this ground.
5. As to the third ground, Ms Durie has not explained how media interest is a proper ground on which leave ought to be granted and we are not aware of any such basis.
6. As none of the circumstances that must ordinarily be present for the Appeal Panel to grant leave to appeal on grounds other than a question of law are applicable to the present case, Ms Durie's application for leave to appeal is refused.
7. As we have refused permission to appeal on a ground other than a question of law, we have not taken into account any of the fresh evidence filed by Ms Durie or the Council.

Orders 1. The time for lodging the Notice of Appeal is extended to 9 January 2017. 2. The decision of the Tribunal is affirmed. 3. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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: 13 July 2017