Efremov v NSW Health Administration Corporation [2026] NSWCATAD 11;

1. The Applicant submits that the Tribunal should reject the Respondent's Dismissal Application and find that the Respondent's non-disclosure of Document 6 in a proper original format without altering the record and not releasing all related email attachments constitutes a reviewable decision under s 80(d) and s 80(e) of the GIPA Act. The Tribunal should order the Respondent to disclose all files attached to the email(s) from which Document 6 originated, with full indexing, metadata and chain of custody evidence. The Applicant also seeks costs on the basis that the Respondent's mishandling of the matter unreasonably prolonged proceedings.
2. For the reasons that follow, the Applicant's Review Application is misconceived and lacking in substance and is dismissed.

1. The Applicant relies on written submissions and oral submissions made at the hearing.
2. The Applicant relies on the following documents:

(1) Administrative Review Application form filed 2 May 2025

(2) Applicant's Submission in Opposition to Respondent's Strike-Out Application filed 21 August 2025.

1. The Respondent relies on written submissions and oral submissions made at the hearing.
2. The Respondent relies on the following documents:

(1) Application for Miscellaneous Matters filed 25 July 2025

(2) Submissions of Respondent in support for miscellaneous matters Application filed 25 July 2025

(3) Respondent's Tender Bundle filed 25 July 2025

(4) Reply Submissions of Respondent filed 5 September 2025.

1. The Tribunal's jurisdiction to review decisions made by an agency under the GIPA Act derives from s 100 of the GIPA Act, read with ss 28 and 30 of the NCAT Act and ss 7 and 9 of the Administrative Decisions Review Act 1997 (ADR Act).
2. Section 100 of the GIPA Act provides that a person aggrieved by a "reviewable decision" of an agency may apply to the Tribunal for administrative review of that decision.
3. Section 80 of the GIPA Act sets out which decisions under the GIPA Act are "reviewable decisions" as follows:

Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part -

(a) a decision that an application is not a valid access application,

(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,

(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

(d) a decision to provide access or to refuse to provide access to information in response to an access application,

(e) a decision that government information is not held by the agency,

(f) a decision that information applied for is already available to the applicant,

(g) a decision to refuse to confirm or deny that information is held by the agency,

(h) a decision to defer the provision of access to information in response to an access application,

(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),

(j) a decision to impose a processing charge or to require an advance deposit,

(k) a decision to refuse a reduction in a processing charge,

(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,

(m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).

1. Under s 63 of the ADR Act the Tribunal must decide what the correct and preferable decision is having regard to the material before it.
2. Section 36 of the NCAT Act sets out the guiding principle relevantly as follows:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings to the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it:

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to cooperate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:

(a) a party to proceedings in this Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in the proceedings in the Tribunal.

1. Section 53(1) of the GIPA Act provides that 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.
2. Section 72(1) of the GIPA Act provides that access to government information in response to an access application may be provided in any of the following ways:

(a) by providing a reasonable opportunity to inspect a record containing the information,

(b) by providing a copy of a record containing the information,

(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

Powers to refuse to review, deal further and dismiss proceedings

1. Section 55(1)(b) of the NCAT Act provides that the Tribunal may dismiss proceedings that they Tribunal considers are frivolous or vexatious or otherwise misconceived or lacking in substance.
2. Section 109 of the GIPA Act provides that the Tribunal may refuse to review or to deal further with a review of a decision of an agency if satisfied that the application is frivolous, vexatious, misconceived or lacking in substance.

1. The Respondent bears the onus to establish that an applicant's administrative review application should be dismissed: Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53].
2. When considering summary dismissal, the Tribunal must take the Applicant's case at its highest. EJE v Department of Education [2023] NSWCATAD 132 at [42].
3. The four categories (vexatious, frivolous, misconceived, lacking in substance) in s 55(1)(b) in the NCAT Act (also contained in s 109 of the GIPA Act) should be given a "reasonably broad connotation" to give the Tribunal a broad power to deal with abuses of its processes, "conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings": Appeal Panel in BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66].
4. The Appeal Panel in Davis v NSW Minister for Health [2023] NSWCATAP 211 at [31] cited the following examples of meanings given in previous decisions to the phrase "lacking in substance":

(1) "an untenable proposition of law or fact": Rabel at 109 (Ormiston JA) in relation to s 44C of the Equal Opportunity Act 1984 (Vic);

(2) "complaints that are obviously hopeless or obviously undeserving of relief": Rabel at 104 (Tadgell JA);

(3) "a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim": GVR v Department of Health, Housing and Community Services (Human Rights and Equal Opportunity Commission, Wilson P, 23 August 1993, unrep) in relation to the Racial Discrimination Act 1975 (Cth), cited with approval by Von Doussa J in Nagasinghe v Worthington [1994] FCA 1387; (1994) 53 FCR 175 at 178; [1994] FCA766;

(4) "proceedings in respect of which it is readily apparent that they are hopeless and bound to fail": Chopra v Department of Education and Training (2019) 60 VR 505; [2019] VSCA 298 at [134] (Tate, Whelan and Kyrou JJA) in relation to the Civil and Administrative Tribunal Act 1998 (Vic), s 75(1)(a);

(5) a claim that is "not reasonably arguable": Zouk at [45] (Ipp JA, Beazley and Bryson JJA agreeing) in relation to the Strata Schemes Management Act 1996 (NSW), s 185(4).

1. The Appeal Panel in Davis at [53] agreed with the view in BDK that a "reasonably broad connotation" should be given to the meaning of each of the four categories of proceedings listed in s 55(1)(b) of the NCAT Act. The Appeal Panel stated at [53-54] that:

"[53] We agree with the view expressed by the Appeal Panel in BDK that a "reasonably broad connotation" should be given to the meaning of each of the four categories of proceedings listed in s 55(1)(b) of the NCAT Act. Ms Davis is correct that the phrase "lacking in substance" can mean proceedings where it is found that the initiating claim or application is based on an "untenable proposition of fact or law" or "is not reasonably arguable". However, there is nothing in the text, context or purpose of s 55(1)(b) of the NCAT Act to suggest that these are the only findings which might justify the conclusion that the proceedings are lacking in substance. A range of findings could potentially justify a conclusion that proceedings are "lacking in substance", including that the proceedings "would be of no practical effect", or that the initiating application was based on an "untenable proposition of fact or law" or was "not reasonably arguable". Equally, a range of findings could potentially justify a conclusion that proceedings are "vexatious", "frivolous" or "misconceived" (see, e.g., the analysis of Roden J about the term vexatious in Attorney General v Wentworth at 491).

[54] Section 55(1)(b) of the NCAT Act empowers the Tribunal to govern its own processes, to ensure that its processes are not abused and to ensure that its resources are applied to resolving real, not confected, amorphous or nebulous disputes. The Tribunal arguably could have dismissed the Application on the basis that, while not initially, it had become vexatious (although not intended to be) or misconceived because any "success" achieved by Ms Davis could have had no practical effect due to the passage of time and the expiration of the Public Health orders. Proceedings, such as this one, which beg the question "So what?", in essence lack legal substance and therefore have "no practical effect".

1. The Tribunal may refuse to deal with a GIPA administrative review application found to be misconceived and lacking in substance under s 109 of the GIPA Act, and dismiss the matter under s 55(1)(b) of the NCAT Act: Choi v University of Technology Sydney [2019] NSWCATAD 176; Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30 at [57-59].

Allegation that Document 6 was provided to the Applicant in altered form

1. The Applicant submits that Document 6 was provided to him by the Respondent in an altered form. This is because the metadata of the file states that it was "modified" on 7 April 2025 at 8:18am and last saved by an officer of the Respondent who was the decision maker for the GIPA application.
2. The Applicant submits that:

"Under s 80(d) of the GIPA Act, this constitutes a decision to provide access to information that is inaccurate, incomplete, out of date or misleading and is personal to the applicant."

1. The Respondent provided documentary evidence as part of its Tender Bundle showing that:

(1) on 16 May 2025 the Respondent's officer who made the GIPA decision wrote to the Applicant explaining that he renamed the document as "document number 6" as part of his administrative work in making the decision to release the document in response to the application. The officer stated that there were no other changes made to the document other than to retitle it to correspond with the reference number it was associated with in the schedule of documents.

(2) on 15 July 2025 the Respondent's solicitor wrote to the Applicant regarding this matter. The Respondent's solicitor explained to the Applicant that the metadata showed that it was modified by the Respondent's officer to rename the document "Doc 6" as part of the officer's administrative work in responding to the Applicant's GIPA request. The Respondent states that:

There were no other changes made to the document other than to retitle it to correspond with the reference number it was associated with in relation to the schedule of documents released in response to the GIPA application.

1. While the Respondent considered that it had satisfied its obligations under s 72(1) of the GIPA Act by providing a copy of the document, the Respondent's solicitor nevertheless provided a copy of the file to the Applicant with its original name and instructed that it was downloaded from an email stored on NSW health Pathology's Systems.

1. The Tribunal accepts the Respondent's submission, based on correspondence contained in the Tender Bundle from the Respondent's officer and solicitor, that the only modification of Document 6 was to rename it. The GIPA Act does not prevent the Respondent from renaming Document 6 in order to identify it in its Schedule of Documents index. There is no evidence of any alteration of any record for the purpose of preventing the disclosure of the information.
2. Section 80(d) of the GIPA Act provides that a reviewable decision is a decision to provide access or to refuse to provide access to information in response to an access application. In this case access to Document 6 was provided to the Applicant as the Respondent provided a copy of the document, in accordance with s 72(1)(b) of the GIPA Act.
3. The Applicant appears to contend that the manner in which Document 6 was provided, saved with a different name to the original file name, constitutes a failure to provide access to the document that is reviewable under s 80(d) of the GIPA Act. That argument is misconceived as access has been given by providing a copy of the document.
4. In any event, even if contrary to the finding at [32] above it could be said that providing a copy of a file saved under a different name is a refusal to provide access to the document, a copy of the file with the original name has since been provided to the Applicant by the Respondent. As a result, based on the Appeal Panel decision in Davis, there is no utility in the proceedings which lacks legal substance and have no practical effect.

An email attaching Document 6 and other attachments in the same email were not provided to the Applicant on the basis that they were "out of scope."

1. This concern appears to have arisen out of the correspondence of 15 July 2025 from the Respondent's solicitor to the Applicant. In that correspondence the solicitor provided a copy of the file with its original name and instructed that it was downloaded from an email stored on NSW health Pathology's Systems. The Applicant then responded to the solicitor on 16 July 2025 asserting that there was a "discrepancy" in the explanations of the file origin that the Respondent had provided, which he alleged "raises serious concerns about the chain of custody and integrity of the record."
2. On 17 July 2025 the Applicant informed the Respondent's solicitor that he wanted the original email in which the document was attached. The Applicant also seeks the other files attached to the same email that were not disclosed on the basis that they were out of scope.
3. The Respondent did not provide the email or other files attached to the same email that it considered were out of scope.
4. The Applicant submits that the Respondent's withholding of attachments from the email is a further decision under ss 80(d) and (e) of the GIPA Act, namely

(1) a decision that certain information was "not held" or "out of scope"; and

(2) a decision to provide incomplete access contrary to s 53(1).

1. The Respondent states that the email in question is an administrative email brought into being after the Applicant's access application was received. As it was not held at the time the access application was received, in accordance with s 53(1) of the GIPA Act it is not in scope.
2. The Respondent also states that there were two documents attached to the administrative email which did not fall within the scope of the access application. The Respondent submits that its assessment that a document does not fall within the scope of an access request is not a reviewable decision for the purpose of s 80 of the GIPA Act.

1. It is usual administrative practice for agency officers to email the agency's decision maker, for their consideration, any documents as attachments that may be responsive to an access application made under the GIPA Act. The solicitor for the Respondent has submitted that the email in question in this case, falls within that category and was therefore created after the access request was received.
2. While the Tribunal was not provided with a copy of the administrative email, the Tribunal is satisfied with the Respondent solicitor's explanation, as it accords with usual administrative practice, and solicitors have professional duties to the Tribunal.
3. In accordance with s 53(1) of the GIPA Act, there is no obligation on the Respondent to provide access to information that comes into being after the access application is received. Accordingly, this part of the Applicant's argument is without legal basis.
4. As to the other two documents attached to the administrative email which the Respondent has decided is not within scope, the Tribunal is not able to review that decision. That is because the Respondent's assessment that a document does not fall within the scope of an access request is not a reviewable decision under s 80 of the GIPA Act.

The Respondent's GIPA Decision failed to index all records responsive to his GIPA application as the Schedule of Documents did not list all attachments to emails.

1. The Applicant submits that the Schedule of Documents included in the Respondent's Notice of Decision of 1 April 2025, did not list all attachments to the relevant emails. The Applicant contends that the failure to index the attachments "deprived the Applicant of procedural fairness and contravenes the statutory obligation to account for all responsive records."
2. The Respondent submits that all documents identified within the scope of the application, including emails and their attachments, were released to the Applicant, but for Document 19.
3. The Respondent submits that the administrative practices of the Respondent, including the extent to which an index is provided, do not constitute a reviewable decision under s 80 of the GIPA Act. Accordingly, the Tribunal does not have jurisdiction to determine the Applicant's complaints about the Respondent's failure to index attachments to emails which were released to him in full (including attachments).

1. The decision of the Respondent to index only the email without listing the attachments contained in those emails, is not a "reviewable decision" under s 80 of the GIPA Act as that matter does not fall within any of the terms of that provision.

The Respondent has engaged in systemic misconduct evidenced by other proceedings.

1. The Applicant submits that previous GIPA applications made by him and determined by the Tribunal show a pattern of misconduct where the Respondent omits material files from indexing and disclosure, frustrates access rights, and seeks to characterise omissions as being out of scope.
2. The Respondent denies any wrongdoing and submits that contrary to the Applicant's submission, the Respondent did not take the position in those previous proceedings that attachments to emails were "out of scope" due to their dates, but withheld information on the basis that is was excluded information.

1. The Tribunal at first instance does not have jurisdiction to review the conduct of an agency in previous GIPA cases that have been determined by the Tribunal. The Applicant has not provided any basis that would enliven the Tribunal's jurisdiction under s 80 of the GIPA Act.

1. For the reasons set out above the Tribunal finds that the Applicant's Review Application is misconceived and lacking in substance. It does not identify a reviewable decision to invoke the Tribunal's jurisdiction, is without legal basis or would be of no practical effect.

(1) In accordance with s 109 of the GIPA Act the Tribunal refuses to review or to deal further with the Review Application as the Tribunal is satisfied that the Review Application is misconceived and lacking in substance.

(2) In accordance with s 55(1)(b) of the NCAT Act the Tribunal dismisses the proceedings as the Tribunal considers they are misconceived and lacking in substance.

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.