Eastman v Nepean Blue Mountains Local Health District

Appeal principles

1. Decisions of the Tribunal such as the decision before us are internally appealable decisions. An appeal to the Tribunal's Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Brahmbhatt v Osorio [2023] NSWCATAP 188 at [27]-[28].
2. To succeed in an appeal, the Appellant must demonstrate either an error by the Tribunal below on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
3. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28]. As explained in Collins v Urban [2014] NSWCATAP 17 at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact.

The Appellant's Notice of Appeal

1. We note the Appellant is self-represented. In those circumstances and in accordance with established appeal practice, we will follow the principles set out in Appeal Panel decisions such as Cominos v Di Rico [2016] NSWCATAP 5 and Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69. In Prendergast, the Appeal Panel said at [12]: "In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent."
2. Accordingly, we have carefully reviewed the material and submissions put forward by the Appellant and sought to give a beneficial construction to the grounds of appeal and submissions put forward. We have attempted where possible to distil the possible relevant contentions.
3. In accordance with these principles, we interpret the submissions and grounds of appeal of the Appellant as giving rise to the following issues for determination on appeal (which we will call 'appeal grounds'): 1. Whether the Tribunal erred in respect of the following questions of law: 1. Was the Appellant denied procedural fairness? 2. Were the Tribunal's reasons adequate in respect of its conclusions as to personal information? 3. Did the Tribunal correctly apply the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act)? 4. Did the Tribunal wrongly 'allow' a request from the Respondent to have the case dismissed? 5. Did the Tribunal correctly apply the law with respect to the conclusive presumption against disclosure? 1. Whether or not leave to appeal should be allowed in respect of the following issues: 1. Whether the Tribunal erred in concluding the agency's searches were reasonable; and 2. Whether the Tribunal erred in concluding there was an overriding public interest against disclosure. 1. Other substantially irrelevant assertions sought to be made by the Appellant: 1. Was the Appellant's right to appeal the Tribunal's 2022 decision denied? 2. Did the Tribunal fail to deal with an allegation of misconduct?

Appeal ground 1(a): Did the Tribunal deny the Appellant procedural fairness?

1. We accept that the question of whether or not the Appellant was denied procedural fairness raises a question of law: see Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13].
2. Section 7 of the Appellant's written submissions contain submissions alleging a denial of procedural fairness. The submission in this area was summarised as follows: "The decision by the Tribunal to deny or delay my questioning and request to ask questions during the Hearings had a 'practical' adverse effect on my ability to ascertain some relevant facts, to help me clarify important matters for my case and I contend that these can be seen as a failure to provide procedural fairness."
3. At the hearing we noted that no specific transcript references were provided in support of this general assertion.
4. Accordingly, a direction was made for the Appellant to provide written submissions which directed the Appeal Panel to specific parts of the transcript, along with submissions, as to how it is said those parts of the transcript exhibited a failure to provide procedural fairness to the Appellant. The agency provided submissions in response.
5. First, the Appellant submits that she was denied procedural fairness because the Tribunal considered the issue of whether or not her proceedings were vexatious pursuant to s 55(1)(b) of the NCAT Act without her having notice from either the Respondent or the Tribunal beforehand that that issue was going to be considered.
6. We do not need to decide whether or not the Respondent put the Appellant on notice of the issue. This is because the Tribunal was not satisfied that the proceedings were vexatious: at [103] of the Decision.
7. Accordingly, no 'practical injustice' can arise from any such alleged breach of procedural fairness (see remarks of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]) and we reject the submission.
8. Secondly, the Appellant made submissions with reference to the Tribunal's decision at [38]: "38 I have considered the Respondents submissions and the details provided by Mr Cupples, that outline the searches that were undertaken. Mr Cupples stated that the search terms included all staff who were involved in the investigation. It is apparent from the withheld information that the information from staff members who the Applicant has identified as a source of information was in fact captured by the search terms. The information that was located includes material from those officers."
9. The Appellant submits that the suggestion that the search terms included 'all staff' who were involved in the investigation was wrong and was not raised with the Appellant by the Respondent or the Tribunal. We accept that this submission may travel beyond a submission as to procedural unfairness.
10. We have considered Mr Cupples' evidence. It is plain that Mr Cupples' evidence and the submissions of the Respondent were not that the search term merely included the names of all staff who were involved in the investigation. The evidence was that to do so, for example, by simply searching the name of one of the persons involved in the investigation, without further search terms, would generate 13,000 emails and hence was not reasonably practicable.
11. The submission made by the Respondent was that the search term was broad enough so as to cover all relevant emails of all staff in respect of their involvement in the investigation.
12. Accordingly, it is clear to us that this is how paragraph [38] of the Decision should be read. That is, the Tribunal is confirming that Mr Cupples used search terms that would relevantly cover all staff who were involved in the investigation and that the confidential material reveals that in fact information from each of the staff identified by the Appellant as relevant was captured by the search terms that were used.
13. Accordingly, we are not satisfied there was any breach of procedural fairness or error in the statements made by the Tribunal at [38] of the Decision.
14. Next, the Appellant makes various criticisms of the Tribunal's 2022 decision. This is irrelevant, because, as the Appellant accepted at the hearing, there is no appeal from the 2022 decision before us.
15. Next, the Appellant complains about the statement at [19] of the Decision where it is indicated that some of the material by way of submissions 'far exceeded the 10-page limit' on the basis that her submissions did not exceed the page limit. We do not need to decide that issue, which is complex given the vast amount of material at different times submitted by the Appellant below, because we are confident that there was no practical injustice visited upon the Appellant. This is because the Tribunal nevertheless plainly considered all of the submissions put to it by the Appellant.
16. Next, the Appellant complains about the Tribunal's statements at [17]-[19] and [25] of the Decision: "17 Much of the Applicant's material has been presented in a way that is extremely difficult to understand. As best as I can understand that material, it is an attempt to revisit issues that have already been determined in the 2022 decision in circumstances where she disagrees with the determination. Alternatively, the material does not appear to be relevant to the issues that remain to be determined. If it is relevant, I have been unable to ascertain the relevance. 18 In an order to better understand the Applicant's position I directed her to provide an outline of her case. The outline was to comprise no more than ten pages and was to identify the issues which she considered to remain outstanding following the redetermination decision. This limit was imposed because of the voluminous material that she had previously filed, much of which is not relevant to the issues to be decided. 19 The Applicant has filed further material as directed. However, that material is again in a form that is extremely difficult to understand and it far exceeded the ten page limit that was instructed. … 25 In the present matter, the Applicant was given a reasonable opportunity to provide material in relation to her claims and to point to the evidence which she contends supports those claims. In the absence of a clear and precise identification of the issues that the Applicant contends remain for determination, even after further opportunity to clarify her case, I have been unable to ascertain the relevance of much of her material. Nevertheless, I have endeavoured to sift through her material in order to identify relevant issues that need to be considered. As best as I am able to understand her case, the Applicant appears to make the following points: …"
17. The Tribunal then sets out, in our view, a fair appraisal of the relevant issues being raised by the Appellant at the time in light of the written submissions that were filed.
18. The Appellant submits that, given the Tribunal had difficulty understanding the Appellant's material and the relevance of much of it, the Tribunal ought to have done more to enquire and question the Appellant about matters that it allegedly had difficulty in understanding.
19. The Appellant has directed our attention to parts of the transcript where the Appellant alleges the Tribunal should have made more enquiries of her.
20. The principles concerning the assistance that a Court, or a Tribunal, is required to give a self-represented litigant were considered by the Court of Appeal in Pollock v Hicks [2015] NSWCA 122 at [91]. "91 Ms Pollock's complaint raises the issue of the role of the Court in ensuring a fair hearing. The Court's duty to unrepresented litigants was examined by this Court in Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[316] by Beazley JA (as her Honour then was) where the authorities are collected. In Bauskis v Liew [2013] NSWCA 297 at [67]-[70] (Gleeson JA; Beazley P and Barrett JA agreeing), the following propositions which emerge from those authorities were identified. 'First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154. Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]-[53]. Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14.'"
21. We have reviewed the transcript in question and are not satisfied that the Tribunal breached any principle of law with respect to the amount of assistance a Court or Tribunal should give to a self-represented litigant.
22. The Appellant concedes in her submissions that she was given sufficient 'airspace' to present her submissions. Her complaint is that there should have been more enquiries made by the Tribunal to seek further clarification of the submissions that were put.
23. In our view, even where a party is not represented by a lawyer, it is not a breach of the duty in question for a Tribunal to listen to submissions made without unduly taking up the time of the Tribunal with numerous enquiries in respect of parts of those submissions which are unintelligible, misconceived or irrelevant. We are not satisfied that the Tribunal erred in the way in which it listened and responded to the Appellant's submissions below. Accordingly, we reject this contention of the Appellant.
24. Finally, the Appellant complains that the Tribunal failed to deal with 'many aspects of' the Appellant's case in its reasons. Some examples are provided in the submissions and particular emphasis is placed upon the 'key aspect' of the Appellant's case being described as 'agency misconduct' which it is alleged was not dealt with adequately in the Tribunal's reasons.
25. In our view, the Tribunal correctly stated the law in this regard at [20]-[22] of the Decision: "20 As Basten JA explained in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at paragraph [22], there is no obligation on the Tribunal to consider every piece of evidence presented. Some material may be irrelevant or misconceived. That appears to be the situation in this matter. 21 In the Administrative Decisions Tribunal Appeal Panel decision of University of New South Wales v McGuirk (No 1) (GD) [2005] NSWADTAP 65, the Appeal Panel stated: [25] ... The Tribunal is not required to go through large quantities of material in search of evidence that could possibly support the University's claim. That point was made clear by the High Court in Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 at 626 when the Court rejected a submission that a decision maker is obliged to sift through large volumes of written material in order to identify relevant submissions or evidence. The submission was described as suggesting: "... that a judge who has given a party a reasonable opportunity to state that party's claim for relief is under an obligation, without having the benefit of relevant and intelligible submissions, to extract from a mass of apparently non-supportive evidence any pieces of the evidence which could be regarded as supportive. The submission is misconceived. In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence, which supports it. But if the opportunity is not taken, the judge is not bound to set out in search for supportive evidence to support a claim which the party has failed to articulate intelligibly." 22 The Appeal Panel found that the Tribunal did not make an error by failing to sift through the filed material to identify relevant evidence and that the Tribunal did not make an error in failing to make a particular finding on the basis of that evidence."
26. We also note that the Tribunal at [25] of the Decision does refer to the Appellant making a case which involves claims that 'breaches and offenses by [Nepean Blue Mountains Local Health District] under legislation, reported and supported thus far, should see the people responsible for wrongdoing held to account'.
27. In our view, bearing in mind the principles referred to by the Tribunal above, the Tribunal did not fail in its duty to deal with all sufficiently identified and relevant aspects of the Appellant's case. We are not satisfied that the Tribunal failed to consider or adequately deal with the Appellant's case bearing in mind many submissions put were irrelevant and lacked substance.
28. In conclusion, we reject this ground of appeal.

Appeal ground 1(b): Did the Tribunal provide adequate reasons in respect of its conclusions as to personal information?

1. The Appellant contends that the reasoning of the Tribunal in respect of its conclusions as to personal information were inadequate (section 3, Appellant's submissions of 13 March 2024). To the extent that the Appellant questions the adequacy of reasons given by the Tribunal in the 2022 decision, that decision is not under appeal. To the extent that she questions the adequacy of the Tribunal's reasons in certain respects in the 2023 decision, the Respondent counters that the Tribunal's reasoning is adequate.
2. An issue which arises is whether the question of adequacy of reasons raised by the Appellant amounts to a question of law for which no leave to appeal is required, or whether leave is required on that ground. Other than the Respondent making a passing reference in its submissions to the Appellant's "purported question of law" regarding provision of adequate reasoning by the Tribunal, there are no submissions before us as to whether the question raised by the Appellant amounts to a question of law for the purposes of s 80(2)(b) of the NCAT Act, or whether leave to appeal is required.
3. Depending on the precise arguments put by an appellant, an allegation that reasons are inadequate may amount to a challenge to the merits of the Tribunal's decision, for which leave to appeal is required. Simply alleging that the Tribunal's reasons are inadequate may not be sufficient to identify a question of law.
4. That said, there have been a number of Appeal Panel decisions which have proceeded on the view that, even in the absence of a request made under s 62 of the NCAT Act for written reasons, whether there has been a failure to provide adequate reasons amounts to a question of law for the purposes of s 80(2)(b): see e.g. Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244 at [11]-[18], [27]-[30]; Starr v Johnson [2023] NSWCATAP 190 at [23].
5. While the question cannot be regarded as free from doubt (see e.g. Starr v Johnson [2022] NSWCATAP 190 at [37]-[53]) or authoritatively determined by the Courts in NSW, we are prepared to accept, for the purposes of this appeal, that the question of whether or not the Tribunal's reasons are adequate in the sense complained of by the Appellant is a question of law and leave to appeal is not required. We do so taking a generous approach in assessing whether the Appellant's notice identifies a question of law, and in the absence of submissions from the parties on the point.
6. The Tribunal is not a court. It is a Tribunal of substance not form. The Tribunal (including the Appeal Panel) is required to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: see s 38(4) of the NCAT Act; Moloney v Taylor [2016] NSWCA 199 at [30]-[33]; Actol Pty Ltd v Rise Products Pty Ltd; Rise Products Pty Ltd v Actol Pty Ltd [2023] NSWCATAP 259 at [72].
7. As Griffiths AJ observed in Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(9)] with respect to s 83(1) of the NCAT Act and the need to identify a question of law on an appeal from the Tribunal to the Supreme Court: "Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has "a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge". It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]-[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example, Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12])."
8. We agree with the comments of the Appeal Panel in Actol at [73] to the effect that the observations of Griffiths AJ concerning s 83(1) of the NCAT Act apply with equal force to s 80(2)(b) of that Act and the identification of questions of law for internal appeals within the Tribunal.
9. Turning to the 2023 decision, the Tribunal correctly identifies from [65]-[68] the relevant public interest considerations against disclosure that relate to revealing personal information, the definition of personal information, the limits and, relevantly, the exemptions regarding the disclosure of personal information. Having cited the relevant provisions, the Tribunal carefully considers and provides its reasoning from [70]-[73] to support the conclusion that the information in question is personal information.
10. The Tribunal then provides reasoning from [74] to [76] to support its decision that none of the exceptions in s 18(1)(a) to (c) of the PPIP Act are engaged and as s 18(1) applies to the personal information, it follows that the release of the personal information contained within the withheld documents could reasonably be expected to contravene an information principle under the PPIP Act.
11. Having provided reasons, the Tribunal found that the factors against disclosure outweigh those in favour: [78] of the Decision.
12. In our view, the reasons of the Tribunal plainly were adequate, and we reject this ground of appeal.
13. We also consider the Tribunal's reasons were "sufficient in law" (as that phrase was used in Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 by Basten JA at [23]). Insofar as the Tribunal was obliged to address the elements for a written statement of reasons in s 62(3) of the NCAT Act, the decision of the Tribunal concerning its conclusions on personal information and why s 18(1) of the PPIP Act applied in respect of the withheld documents sets out its findings with reference to the evidence before it, the law to be applied, and the reasoning process that led to its conclusions (see e.g. New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 as to the minimum content of written reasons).
14. If we are wrong on there being a question of law in the circumstances of this appeal, and leave to appeal is required under s 80(2)(b), then we are not satisfied that the Appellant has made out a case for a grant of leave.

Appeal ground 1(c): Did the Tribunal correctly apply the PPIP Act?

1. At section 3 of the Appellant's submissions of 13 March 2024, the Appellant raises without elaboration, whether or not the Tribunal erred in its consideration of the relevant provisions of the PPIP Act. In particular, the Appellant disagrees with the conclusion of the Tribunal that none of the exceptions in s 18(1)(a)-(c) are engaged and therefore s 18(1) of the PPIP Act applies to the personal information.
2. For the reasons given above, we are not satisfied that the Tribunal misapplied the relevant provisions of the PPIP Act and accordingly dismiss this ground of appeal.

Appeal ground 1(d): Did the Tribunal wrongly 'allow' a request from the Respondent to have the case dismissed?

1. At paragraph 01.13 of her written submissions the Appellant contends that a question of law arises as to whether or not the Tribunal was able to hear a request from the agency to have her proceedings dismissed as opposed to the Tribunal deciding, as we understand it, on its own motion to seek to have the proceedings dismissed given the wording of s 55(1) of the NCAT Act.
2. We are prepared to accept that this raises a question of law as to the statutory construction of s 55(1) of the NCAT Act.
3. In our view, this contention or ground of appeal is misconceived. The Tribunal did not act outside the parameters of the NCAT Act in considering the agency's application for the Appellant's proceedings to be dismissed. Further and in any event, as noted above, the Tribunal did not dismiss the proceedings pursuant to s 55(1) of the NCAT Act. Accordingly, we reject this ground of appeal.

Appeal ground 1(e): Did the Tribunal correctly apply the law with respect to the conclusive presumption against disclosure?

1. The Tribunal found pursuant to s 40(1) of the GIPA Act that there was a conclusive presumption against release of various documents on the basis of an overriding public interest against disclosing the relevant government information as described relevantly in Schedule 1 to that Act.
2. The Appellant in her written submissions seeks to raise, as a question of law, whether or not the Tribunal took: "Into consideration all the relevant facts as per the particulars in this matter in accepting that the overriding secrecy laws should apply over the public interest to allow for the rightful and legitimate disclosure of certain information held by the Agency to a complainant?"
3. We have carefully considered the Appellant's written submissions and are satisfied that the Tribunal took into account the relevant factors as would have been required by law under the GIPA Act in finding that there was a conclusive presumption against release of various documents. We are not satisfied that the Tribunal misapplied the relevant provisions of the GIPA Act.
4. The Appellant also seeks to raise as a question of law the following: "Has an offence under the GIPA Act, Schedule 2 due to the subjective decision of the Respondent to disclose some information to me in the original decision that is of the kind and source (investigation information) as held by the agency, for which it is subject to the same exclusions to disclosure due overriding secrecy laws by which other information is being excluded on that same basis?"
5. First, there is no basis for the submission that an offence under the GIPA Act has been committed. Secondly, as we understand the Appellant's submission, the Appellant seeks to question the legality of withholding some information on the grounds of the conclusive presumption against disclosure when other pieces of information that could have potentially been the subject of such presumption were disclosed.
6. In our view, no error has been demonstrated to have been made by the Tribunal. In short, a party such as the Health Care Complaints Commission may consent to the release of some material the subject of the presumption against disclosure but not all of the information in that category. Accordingly, it is not wrong of the Tribunal to release some material otherwise the subject of the conclusive presumption against disclosure whilst withholding other pieces of information that are the subject of the conclusive presumption.
7. Accordingly, we reject this ground of appeal.

Should leave to appeal be granted for other grounds raised?

1. We set out earlier in these reasons the principles which govern the grant of leave to appeal for the purposes of s 80(2)(b) of the NCAT Act.
2. In our view, in respect of each of the issues raised by the Appellant which requires leave to appeal, no issues of principles are involved nor are any questions of public importance involved.
3. The issue is whether or not the Appellant has demonstrated a basis for leave to appeal based upon an injustice which is reasonably clear. In particular, we note for a grant of leave to be given by the Appeal Panel, the Appellant must demonstrate something more than that the Tribunal was arguably wrong: see Pohli v Wearne [2014] NSWCATAP 78 at [32].

Appeal ground 2(a): Did the Tribunal err in finding the searches to be reasonable?

1. At section 2 of the Appellant's submissions dated 13 March 2024, the Appellant contends that the Tribunal erred in its 2023 decision in finding that the searches undertaken by the agency were sufficient. In our view, this ground does not raise a question of law and leave to appeal is required.
2. Section 53 of the GIPA provides: 53 Searches for information held by agency The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
3. The Tribunal dealt with the issue of sufficiency of searches in the Decision in some detail. The Tribunal cited some key principles on which it relied, deriving from earlier Tribunal decisions concerning s 53 of the GIPA Act, as follows: "32 In Walker v Roads and Maritime Services [2019] NSWCATAD 177 Senior Member Blake summarised the principles applicable to considering whether the searches undertaken by an agency are reasonable. He stated at paragraph [87]: The Tribunal has applied the following principles in considering the reasonableness of searches undertaken by an agency: 1. what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]; 2. that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; 3. the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28]. … 34 In Klaric v Commissioner of Police [2020] NSWCATAD 47, Senior Member Ransome noted at paragraph [33]: In reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches to locate relevant documents. The Tribunal has generally applied the approach of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) 1 OAR 464. In that decision the Commissioner outlined a two-stage approach to the question of what constitutes an adequate search. The first is to consider whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency. If that question is answered in the affirmative, then to consider whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances. (See Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5; McClymont v Department of Family and Community Services [2017] NSWCATAD 202.) 35 In Webb v Port Stephens Council [2018] NSWCATAP 224 the Appeal Panel stated at paragraph [36]: Where there is relevant and credible material presented to support the decision, in practical terms, a burden will fall on the challenger to try and overcome or undermine the case from the agency. 36 The Appeal Panel stated at paragraph [37]: the applicant has what is sometimes referred to as a "practical onus" to establish the existence, or possible existence, of further information. 37 In Alam v Insurance and Care NSW [2020] NSWCATAD 148 Senior Member Higgins stated at paragraph [55]: In [my] opinion, s 53 of the GIPA Act does not require the agency to provide specific details of search engines or algorithms of its electronic data systems. Nor, in my opinion, was it necessary for the respondent to provide any information or an explanation of this kind. What is required, in order to discharge its onus that its search efforts were reasonable, an agency must identify the electronic systems and platforms on which it retains information of the kind sought by the access applicant and what searches were conducted on those systems and platforms for the information sought."
4. After referring to those principles, the Tribunal then stated as follows: "38 I have considered the Respondent's submissions and the details provided by Mr Cupples, that outline the searches that were undertaken. Mr Cupples stated that the search terms included all staff who were involved in the investigation. It is apparent from the withheld information that the information from staff members who the Applicant has identified as a source of information was in fact captured by the search terms. The information that was located includes material from those officers. 39 The Respondent does not dispute that some of the information that has been located is incomplete. However, Mr Cupples stated that the Respondent does not hold a complete copy of that information and the information that has been provided to the Applicant is a copy of what is held. 40 He said that there is no indication that a complete copy is held elsewhere or that other versions are held. He further submitted that the state of the Respondent's records is not a reviewable decision. I agree with those submissions. 41 I do not agree with the Applicant's assertion that the scope of the searches that the Respondent was required to undertake is too narrow. As has been noted, I directed the Respondent to undertake further searches for information held by the agency that has a clear relationship to the investigation. I am satisfied that the Respondent has complied with that direction. I do not accept that the scope has been construed too narrowly. 42 I accept the Respondent's assertion that further searches would be unlikely to locate further information related to the investigation. In the circumstances I am satisfied that the searches undertaken are reasonable. In my view, the Respondent has satisfied its obligation to undertake reasonable searches."
5. At [3] of the Decision, the Tribunal cites the 2022 decision at [134]-[135]: "134 The Applicant has sought "all documentation in regards to the investigation". This is a much broader scope that merely the investigation information. The expression "in regards to" is to be given its ordinary meaning. It is a comparable expression to "in relation to". The expression has an expansive meaning. 135 In my view the access application should be construed as a request for information where there is a clear connexion between the information and the investigation. This might for example include email or other correspondence that makes reference to the investigation. The time range is defined by the words "Feb 2014 to present". As noted, section 53 of the GIPA Act provides that an agency is only required to provide access to held by the agency when the application is received. The words "to present" should be construed as meaning the date on which the December request was received. It is unlikely that relevant information would be held for the period February 2014 up until the time that Ms A self-reported."
6. We note that the Appellant complains about the scope of searches undertaken which flow from the 2022 decision. According to the Appellant, the Tribunal should have expanded the scope of the searches undertaken from its 2022 decision. However, in our view, the Tribunal did not err in this regard. Having already determined the issue, there was no valid basis for the Tribunal to reconsider the decision already made in the previous hearing. The scope of searches was directed from the 2022 decision and, as that decision has not been appealed, it was not wrong for the Tribunal to continue that scope from the 2022 decision.
7. The Appellant complains that the Tribunal at [3] of the Decision, citing [135] of the 2022 decision, held the view that the Access Application should be taken to request information where 'there is a clear connection between the information and the investigation'. In terms of any complaint as to how the 2022 decision was construed and whether or not it was construed too narrowly, we are not satisfied that the conclusion of the Tribunal at [135] was not open to the Tribunal. We are not satisfied that leave to appeal should be granted to raise this issue.
8. The Appellant contends that the searches were not reasonably made as the time range and search terms were too narrow. In oral addresses, the Appellant focused in particular on paragraph [38] of the 2023 decision. In particular, the Appellant submits that staff members identified by the Appellant as a source of information were in fact not captured by the search terms. The Appellant, however, was unable to identify any document provided to the Tribunal at first instance whereby staff members were identified by the Appellant as a source of information that were in fact not captured by the search terms as alleged.
9. As explained above, the agency used search terms which would capture relevant emails by the staff members identified so far as those staff members were involved in the investigation. The Appellant has failed to satisfy us that this was an unreasonable approach given that to use the staff members' names as a stand alone search term would yield far too many results to be reasonably practicable.
10. Finally, the Appellant submits that the Tribunal was incorrect in failing to direct the agency to search other locations or use other search tools to find alleged 'lost' records. In this regard, the Appellant made the following submission at paragraph 02.16 of her submissions of 13 March 2024: "I believe the Tribunal was incorrect to not direct the respondent to search other locations or with other efficient search tools for 'lost' records, such as from the Ministry of Health or the SCCT. In my Access Application(s) I identified that some of the information I sought may likely be held with the SCCT."
11. In our view, the Tribunal correctly identified the relevant provisions of the GIPA Act at [31]-[32] of its Decision. The Tribunal provides reasons at [38]-[42] of the Decision as to its findings on the reasonableness of the searches.
12. In our view, the conclusion of the Tribunal that the scope was found to be adequate (at [41]) and that the searches undertaken were reasonable (at [42]), was open to it on the material before it.
13. Accordingly, bearing in mind the principles enunciated above with respect to the grant of leave to appeal, we are not satisfied that we should grant leave to the Appellant to raise these contentions or ground of appeal.

Appeal ground 2(b): Did the Tribunal err in finding there existed an overriding public interest against disclosure?

Did the Tribunal fail to have regard to the Appellant's personal information?

1. At paragraph 01.15 of her written submissions, the Appellant contends that the Tribunal did not have due regard to her personal information as a factor favouring release. This does not raise an issue of law and leave to appeal is required.
2. In our view, leave to appeal should not be granted in respect of this contention or ground of appeal. The Tribunal acknowledged the personal information of the Appellant was involved and afforded this consideration 'significant weight' at [60]-[62] of the Decision.
3. In our view, the Appellant's contention that the Tribunal erred in this regard is unsustainable and leave to appeal to raise it should not be granted.

Error in applying the balancing exercise in respect of the public interest test under the GIPA Act

1. The Appellant complains that the Tribunal failed to properly exercise the balancing act required between the public interest and the considerations in favour of disclosure and those against disclosure. In particular, the Appellant complains about the Tribunal's acceptance and reliance upon the affidavit evidence of Mr Gregory Driver in respect of the Tribunal's satisfaction about the existence of a duty of confidentiality in respect of some of the material received by the Respondent: see, for example, [89], [91] and [92] of the Decision.
2. We note that the complaint made by the Appellant in particular is that the affidavit refers to a 2018 policy which was not the policy that applied at the time of the relevant investigation (the investigation having been undertaken prior to 2018). Accordingly, the Appellant submits that the Tribunal should not have given significant weight to the evidence contained in the affidavit.
3. The Appellant describes the affidavit as being 'false or misleading', which the Appellant alleges is an offence and hence a question of law arises. In our view, there is no basis for the allegation that an offence has been committed by Mr Driver in the swearing of his affidavit. No question of law arises and leave to appeal is required to raise this issue.
4. We are also of the view that the Appellant has misunderstood or misstated the evidence given by Mr Driver in the Tribunal proceedings. At [64] of the Decision, the Tribunal referred to that part of Mr Driver's affidavit where he described the role of the Workforce People and Culture unit within the agency in relation to misconduct investigations. Mr Driver said that: "[a]n investigation into alleged misconduct is to be conducted in accordance with the applicable NSW Health Policy Directive. The current applicable policy is PD2018/031 Managing Misconduct". Mr Driver did not indicate in his affidavit that PD2018/031 was the policy directive in place at the time of the investigation in question which took place prior to 2018.
5. In our view, it was open to the Tribunal to place significant weight on Mr Driver's affidavit. Bearing in mind the principles regarding leave to appeal as outlined above, we are not satisfied that leave to appeal should be allowed to raise this question of fact. Accordingly, we reject this ground of appeal.

Appeal ground 3(a): Was the Appellant's right to appeal the 2022 decision denied?

1. In the Appellant's submissions dated 13 March 2023 at section 1 (pages 1-3) the Appellant puts forward purported grounds of appeal to the effect that she has been denied an opportunity to appeal the 2022 decision. She asserts that she was under the misapprehension that the Tribunal would revisit the issues she had raised in the 2022 decision in her application for review of the redetermination decision and that the Tribunal in the 2023 decision should have allowed these issues to be reopened.
2. This appears to raise two contentions, each of which are misconceived.
3. First, whether the Tribunal erred in not permitting a rehearing of the issues already decided in the 2022 decision and, secondly, whether the Appellant thereby was denied a right to appeal the 2022 decision.
4. In respect of the second issue, it is clear that the Appellant was not denied the opportunity to appeal the 2022 decision. It was always open to her to appeal the 2022 decision and, if done so out of time, to seek an extension of the time within which to lodge such an appeal pursuant to s 41 of the NCAT Act. We note the Appellant has not lodged an appeal either in time or out of time in respect of the 2022 decision.
5. At the appeal hearing, it was pointed out to the Appellant that her Notice of Appeal only deals with an appeal of the 2023 decision and that there was accordingly no basis upon which the Appeal Panel could look at whether or not the 2022 decision was wrongly decided. The Appellant accepted this position and limited her appeal to a challenge of the 2023 decision.
6. In respect of the contention that the Tribunal in its 2023 decision ought to have revisited or re-agitated issues determined in the 2022 decision or regarded them as still outstanding, the Tribunal dealt with this submission at [22], [43]-[44] of the Decision as follows: "22 The Appeal Panel found that the Tribunal did not make an error by failing to sift through the filed material to identify relevant evidence and that the Tribunal did not make an error in failing to make a particular finding on the basis of that evidence. … Are there Issues identified for consideration in the 2022 decision that remain outstanding? 43 The Applicant noted that paragraph [22] of the 2022 decision made reference to issues that were to be determined. The issues to be determined were identified as (a) the issue of scope of the access application, (b) the adequacy of searches and (c) the Respondent's refusal to release withheld information. Those issues were discussed and resolved in the 2022 decision. 44 I do not agree with the Applicant that issues that were identified in the 2022 decision remain for determination."
7. There was no error in the approach and conclusion of the Tribunal in this regard. Accordingly, we reject this contention or ground of appeal.

Appeal ground 3(b): Did the Tribunal fail to deal with an allegation of misconduct?

1. The Appellant, in section 6 of her written submissions, complains about the failure of the Tribunal to deal with certain aspects of the Appellant's case relating to 'agency misconduct'. The Appellant in that section summarises her complaint as follows: "The specific considerations set around the fact that it is apparent from the details available to me and my first-hand knowledge of the broad situation, as reported in my submissions, that NBNLD, the Respondent, is suspected of acting deceptively in its attribution, and apparent management of the original 2014 Investigation situation as a 'complaint', apparently, forcedly 'made' in my name."
2. The majority of the submissions relate to the 2022 decision and are accordingly irrelevant to the appeal before us.
3. Further and in any event, there is no proper basis for the allegation that the Respondent was acting 'deceptively'. As a result, there was no error of law in the Tribunal not dealing with this submission, nor any other type of error we can discern. Accordingly, we reject this ground of appeal.

Orders

1. We make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed.

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: 27 May 2024