I R Coleman SC ADCJ, Principal MemberJ Redfern PSM, Senior Member
Catchwords
APPEAL- Where Tribunal affirmed decision of agency declining to deal with
application to provide information pursuant to Government Information (public
Access) Act 2009- whether Tribunal constructively failed to exercise
jurisdiction- whether Tribunal erred on question of law- whether leave to appeal
Source
Original judgment source is linked above.
Catchwords
APPEAL- Where Tribunal affirmed decision of agency declining to deal withapplication to provide information pursuant to Government Information (publicAccess) Act 2009- whether Tribunal constructively failed to exercisejurisdiction- whether Tribunal erred on question of law- whether leave to appealshould be granted
Judgment (10 paragraphs)
[1]
For the reasons advanced in his primary and reply submissions, the Appellant submitted that the Tribunal failed to "weigh both sides of the statutory balance" and, by ignoring the "unchallenged evidence" upon which he relied, erroneously found that the balance of probabilities favoured the Respondent with respect to the "balancing act".
In summary, the Tribunal was submitted to have erred in law by:
[2]
"(a) failing to apply the statutory presumption of access under s5;
(b) misapplying the burden of proof under s60(3A)/(3B); and
(c) failing to engage in a comparative weighting of the relevant factors."
[3]
The Respondent's submissions, with respect to earlier grounds disputed each of the Appellant's contentions.
[4]
Reading the reasons of the Tribunal at first instance in the manner endorsed by the authorities, it is apparent that the findings made by the Tribunal at first instance were made on the balance of probabilities, and that the findings urged by the Appellant which were not made were on the basis that there was no, or insufficient reliable evidence supporting them to require the Tribunal to make those findings.
As discussed earlier, there is a material distinction between evidence of fact and the Appellant's no doubt genuinely held beliefs about the matters which he agitated at first instance and has re-agitated on appeal. For the reasons recorded earlier, the Appeal Panel does not find that any of the matters which the Appellant has identified was not adequately considered by the Tribunal at first instance. The evidence identified by the Appellant may or may not have supported findings in the terms asserted by him. The Appellant however has not demonstrated that, either by failing to make a finding in the terms of any finding asserted by him, or by making a finding in terms contrary to the findings sought by him, the Tribunal has erred in fact or been "plainly wrong".
As recorded earlier, the Tribunal at first instance, albeit not adopting, or being required to adopt the categorisation of the weight afforded particular matters, did not proceed in a manner inconsistent with Hickey and, more importantly, proceeded in a manner which was consistent with the requirements of the statute.
As the reasons of the Tribunal confirm, the Appellant has not made out the challenge identified in [274(a)] above. For the reasons recorded earlier, the Appellant has not made out the challenges identified in [274(b) or (c)] above.
For these, and the reasons recorded earlier, with respect to other challenges, this ground is not made out.
[5]
No ground of appeal having been made out, the appeal will be dismissed.
[6]
The Appellant sought leave to appeal on "any other ground" pursuant to s 80(1)(ii) on the basis that:
[7]
"(i) the Tribunal made errors of law and jurisdiction, including failure to correctly apply the mandatory balancing test under s60(3A) and 60(3B) of the GIPA Act;
(ii) there was a substantial miscarriage of justice, particularly in the exclusion or mischaracterisation of compelling evidence relating to personal injury and public health risk;
(iii) the decision failed to give weight to critical public interest and personal harm factors, despite the statutory obligation to do so under s60(3B);
(iv) the matter raises significant legal and systemic issues involving government oversight of faulty invitro diagnostic medical devices (IVDs), and the regulatory failures associated with their use - specifically the Trinity Biotech MARDX and NovaTec NovaLisa Lyme disease assays."
[8]
As will be apparent, the first three grounds on which the Appellant sought leave to appeal raised challenges which were agitated pursuant to the Appellant's grounds of appeal. If any of those grounds had been made out, the Appellant would be entitled to have his appeal upheld without requiring leave to appeal. Conversely, although not impossible, it is difficult to envisage that, as none of those grounds of appeal has found favour, there could be an independent basis for a grant of leave to appeal, having regard to the principles governing such applications. The Appellant has not established that, having failed to establish error on any of the questions of law raised by his first three grounds, anything could be achieved by granting him leave to re-agitate them. Other than on questions of law, they raise no "other" grounds of appeal. It is less than clear in what way the fourth point relied on by the Appellant could enliven the power to grant leave to appeal.
The Respondent opposed the granting of leave to appeal and submitted, in reliance upon the passage in Collins v Urban to which we have earlier referred, that no recognised basis for a grant of leave to appeal was established by the Appellant. For the reasons recorded above, it is necessary to refer only to the Respondent's submissions with respect to the fourth ground on which the Appellant sought leave to appeal.
It was submitted that the Tribunal at first instance was required to decide the correct and preferable decision on the material before it in accordance with s 63 of the ADR Act. That was submitted to involve deciding whether to "affirm the decision, vary the decision, set aside the decision and make a decision in substitution of it, or set aside the decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal" pursuant to s 63(3) of the ADR Act.
The Respondent submitted that the Tribunal was not required to "decide the merits of the Lyme disease testing conducted by the Respondent, or any broader allegations about the Respondent's alleged use of faulty medical devices".
In his submissions in reply, the Appellant reiterated asserted errors of law in the decision of the Tribunal at first instance.
[9]
In view of the Appeal Panel's decision with respect to the first three grounds on which the Appellant seeks leave to appeal, it is necessary to record only that granting leave to appeal with respect to those challenges could have no utility as they raise errors on questions of law which have not been made out, and would not be made out on any other recognised basis. None of the recognised grounds for granting leave to appeal is accordingly able to be found to have been made out. The Appellant has not established a basis for granting leave to appeal on any ground not involving asserted errors on questions of law.
It remains to consider whether the fourth ground on which the Appellant seeks leave to appeal has merit. The Appellant submits that his appeal raises questions of public importance or matters of policy which might have general application. The Tribunal at first instance found, and the Appellant has not disputed that there may be "some limited general public interest" in the information to which the Appellant seeks access.
For the reasons recorded in the context of the Appellant's grounds of appeal, the Appeal Panel does not find that the qualified finding by the Tribunal at first instance was erroneous. Whilst, in its evaluative determination, it may have been open to the Tribunal to find that there was greater general public interest in the information, that is not the test, and the evidence does not establish that the Tribunal's finding was plainly wrong.
Moreover, as the decision in Collins makes clear, granting leave to appeal does not mean that the ground on which leave to appeal is granted is necessarily meritorious, simply that it is a ground worthy of consideration by the Appeal Panel. Had the Tribunal at first instance failed to find that there was any general public interest in the information, that, in accordance with the authorities identified earlier, may have constituted error on a question of law and enlivened appellate intervention. Raising questions of public importance is not, without more, a basis for appellate intervention, even if leave to appeal is granted. In this case, granting leave to appeal on the basis that the Appellant raises a question of public importance would not enliven appellate intervention.
In view of the Appeal Panel's decision with respect to the Appellant's grounds of appeal, the Appellant cannot demonstrate "an injustice which was reasonably clear, in the sense of going beyond merely what is arguable". The Tribunal at first instance may have come to a different decision with respect to the "balancing exercise" but, at its highest, that is "merely what is arguable" about the decision. Nor, having rejected the various challenges to the Tribunal's decision agitated by the Appellant pursuant to his grounds of appeal can the Appeal Panel accept that the Appellant has identified "an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral".
The Appellant's grounds of appeal assert errors on questions of law, none of which challenges the Appeal Panel finds to have been made out. In reality, other than in the various ways asserted by the Appellant's grounds of appeal, he has not identified "error" not involving a question of law. There is no injustice in allowing the Tribunal's findings to stand in view of the Appeal Panel's decision with respect to the various grounds.
A recurring theme in the Appellant's grounds of appeal is that the Tribunal at first instance made a factual error that was "unreasonably arrived at and clearly mistaken" or went 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 the decision to be reviewed.
As explained in the Appeal Panel's consideration of a number of the Appellant's grounds of appeal, the Tribunal at first instance, for reasons which it adequately revealed, accepted the evidence of the Respondent's officer with respect to the time that it was estimated that it would take agency staff to respond to the Appellant's GIPA application, and the likely diversion of agency staff from other functions to attend to the application. The Tribunal at first instance recorded the number of hours which had already been spent addressing the Appellant's GIPA requests, and the number of documents which had been produced. None of those findings of fact has been challenged in the appeal. The Tribunal recorded why it accepted the opinion evidence of the agency's officer, and did so in a manner which has not been shown to have been erroneous.
With respect to him, the Appellant's contention that there was conflict between the evidence of the Respondent's officer with respect to the time which would be required to attend to his GIPA request and the evidence upon which he relied with respect to the actual and potential subject matter of the request did not involve a conflict of evidence- they addressed different factors. In its various findings which have been earlier referred to, the Tribunal made a number of findings of fact which were consistent with the Appellant's contentions but made findings of fact which were not. Nothing to which the Appellant has referred establishes that the Tribunal erred in relation to the fact finding exercise in any of the ways identified in Collins. Leave to appeal will be refused.
[10]
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.
Parties
Applicant/Plaintiff:
Efremov
Respondent/Defendant:
NSW Health Administration Corporation [2026] NSWCATAP 34;
Legislation Cited (4)
Access) Act 2009
Decisions Review Act 1997
Administrative Tribunal Act 2013
Information (Public Access) Act 2009
Cases Cited (58)
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 593 [2003] FCAFC 184
In view of the nature and history of the proceedings, and the Appellant's grounds of appeal and submissions in support of them, it is necessary to refer extensively to the reasons for the decision of the Tribunal at first instance.
The Tribunal identified [1], accurately, that the Appellant sought access to information held by the Respondent in relation to "medical devices which were used to test for Lyme disease in the period 2013 to 2024". The Tribunal identified the proceedings [2] as an application for administrative review of the decision of the Respondent to refuse to deal with the Appellant's application to access information in reliance on s 60(1)(a) of the GIPA Act on the grounds that "to do so would require an unreasonable and substantial diversion of the Respondent's resources".
The Tribunal identified [3], accurately, that it had jurisdiction to review the Respondent's decision pursuant to s 55 of the ADR Act (the decision) to refuse to deal with the Appellant's application, being a reviewable decision by an agency in accordance with s 80(c) of the GIPA Act. The Tribunal identified, accurately, that it had jurisdiction to deal with the application pursuant to s 100 of the GIPA Act.
The Tribunal recorded [4], uncontroversially, that the Respondent is a statutory body representing the Crown, as per s 9(2)(f) of the Health Administration Act1982 (NSW), and falls within the definition of agency as per s 4(1) and clause 2 of Schedule 4 of the GIPA Act.
After identifying the material before it, the Tribunal identified the issues for determination [10] as, identifying and taking into account any matters falling within the scope of s 60(3A) of the GIPA Act, and then determining whether, on balance, those matters outweighed matters falling within s 60(3B) of the GIPA Act in reviewing the Respondent's decision to refuse to deal with the Applicant's application.
The Tribunal referred [11] to the decision in Else v Ministry of Health[2021] NSWCATAD 381 at [54] where it was held that "It is only where matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency's resources".
(2012) 246 CLR 92
(1997) 48 NSWLR 430
(2018) 351 ALR 1
(2011) 243 CLR 588
(2000) 205 CLR 337
(1971) 125 CLR 296
(1979) 144 CLR 513
(1986) 162 CLR 24
(1996) 185 CLR 259
(1986) 161 CLR 513
(1998) 194 CLR 355
(2018) 361 ALR 206
(1986) 161 CLR 141
(1955) 92 CLR 496
(1987) 10 NSWLR 247
The Tribunal identified [12]-[16] the legislative framework which governed the proceedings before it, and recorded [12] that s 105 of the GIPA Act "places the onus on the Respondent to satisfy the Tribunal that its Decision was justified. The function of the Tribunal is to hear the matter de novo and to reach a view itself, unrestrained by the view taken by the primary decision maker".
The Tribunal referred [13] to s 3(1) of the GIPA Act, which "provides for the proactive release of government information by agencies, and gives members of the public an enforceable right to access government information, subject to certain exceptions. There is a presumption in favour of disclosure as per s 5 of the GIPA Act, and it, generally, cannot be made subject to conditions (s 73 of the GIPA Act)".
Section 12 of the GIPA Act, to which the Tribunal then referred [14], was said to provide "that there is a general public interest in favour of the disclosure of government information, and s 9 of the GIPA Act provides applicants with a legally enforceable right to access such information, unless there is an overriding public interest against disclosure per s 13 of the GIPA Act".
Section 58 of the GIPA Act, to which the Tribunal referred [15] was described as providing "a range of options for agencies when determining access applications" which included, but were not limited to deciding to provide access, refusing to provide access because of an overriding public interest against disclosure, or refusing to deal with the application.
The Tribunal referred [16] to the provisions of s 60 of the GIPA Act, which sets out the circumstances in which an agency can refuse to deal with an application for access. The section provides: