Else v Sydney Trains

Time extended to rely on extra grounds of appeal

1. An internal appeal to the Appeal Panel must be lodged "within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later)": Civil and Administrative Tribunal Rules 2014 (NSW), cl 25(4)(c). The Appeal Panel may extend the time: NCAT Act, s 41. The considerations that the Tribunal must take into account when deciding whether to extend time include the length of the delay, the reason for the delay, the merits of the appeal and the extent of prejudice, if any, that the agency would suffer if an extension is granted: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
2. Ms Else was given the reasons for the decision on 12 March 2021 and filed the Notice of Appeal on 9 April 2021. She appealed within the 28-day time limit but sought to add two grounds of appeal after the 28 days had expired. Sydney Trains did not object to the amendment and the length of the delay is short. We extend the time for Ms Else to file an Amended Notice of Appeal to 5 May 2021.

Sydney Trains substituted as correct respondent

1. In the proceedings before the Tribunal, the respondent was named as "Transport for NSW". After Ms Else appealed, that respondent applied for an order that "Transport for NSW" be removed as a respondent and that "Sydney Trains" be substituted as the respondent: NCAT Act, s 44(1) and (2). Sydney Trains took no point in relation to the effect of the Tribunal's decision below and apologised to the Appeal Panel for any confusion. For the following reasons, we find that Sydney Trains is the correct respondent.
2. A person who is aggrieved by a reviewable decision of an "agency" may apply to NCAT for an administrative review of that decision: GIPA Act, s 100(1). An agency is defined to include a "public authority": GIPA Act, s 4. That term is defined to mean "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument": GIPA Act, Sch 4, cl 2(1)(b). Section 36(1) of the Transport Administration Act 1988 (NSW) constitutes "Sydney Trains" as a corporation with that corporate name. Sydney Trains is an incorporated body established for a public purpose under that legislation. There is no regulation declaring that Sydney Trains is a subsidiary agency of Transport for NSW: GIPA Act, Sch 4, cl 6 and Government Information (Public Access) Regulation 2018 (NSW), Sch 3. It follows that Sydney Trains is the correct respondent.

Statutory framework

1. In determining Ms Else's application to review Sydney Trains' decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: Administrative Decisions Review Act 1997 (NSW), s 63(1). Sydney Trains bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s 105(1).
2. The object of the GIPA Act is to open government information to the public by various means: GIPA Act, s 3(1). It is the intention of Parliament that the Act be interpreted and applied so as to further its object: GIPA Act, s 3(2). There is a presumption in favour of disclosure of government information: GIPA Act, s 5. Section 12 states that there is a general public interest in favour of disclosure. The note to that section lists several examples of public interest considerations in favour of disclosure. That list is not exhaustive.
3. For there to be an overriding public interest against disclosure of information, identified public interest considerations against disclosure must outweigh any public interest considerations in favour of disclosure. Section 13 sets out the public interest test: There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
4. The only relevant public interest considerations against disclosure are those listed in the table to s 14. On appeal, the two public interest considerations against disclosure which are contested are those in 2(d) and 2(f) of the table: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - . . . (e) endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle, (f) facilitate the commission of a criminal act (including a terrorist act within the meaning of the Terrorism (Police Powers) Act 2002)
5. If the Tribunal finds that there is an overriding public interest against disclosure, it must not disclose that information: GIPA Act, s 107(2).

Grounds of appeal

1. A useful way of categorising many grounds of appeal, whether on a question of law or otherwise, is to identify the stage of the adjudicative process to which the alleged error relates. There are three broad stages: making primary findings of fact, determining the law and applying a legal standard to the primary findings of fact: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Aronson and Groves, Judicial Review of Administrative Action, (6th ed Law Book Company 2017) at 201. Several grounds of appeal relate to the stage of the process where the Tribunal is determining the law. We will consider those grounds first, together with the two other grounds which identify a question of law: procedural unfairness and inadequate reasons. We will then move to the grounds which relate to applying the law to the primary findings of fact. Finally we will address the grounds of appeal relating to the making of primary findings of fact. Ms Else cannot appeal on these grounds unless we give permission.
2. Ms Else did not press grounds 2, 6 or 11.

Determining the law - Grounds 1, 3, 4 and 14

1. Grounds 1, 2, 3 and 14 relate to the way the Tribunal interpreted cl 2(e) and 2(f) of the table to s 14 of the GIPA Act. To amount to a public interest consideration against disclosure, the agency must prove that disclosure of the information "could reasonably be expected" to "endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle" or "facilitate the commission of a criminal act". We will address the grounds of appeal relating to the meaning of "facilitate" and then those grounds that relate to the meaning of the phrase "could reasonably be expected".

Meaning of "facilitate"

1. Ground 3 is that the Tribunal misconstrued the word "facilitate" in clause 2(f) of the table to s 14 of the GIPA Act as meaning "make easier" without regard to how much easier, and without considering the use of the word in other parts of the GIPA Act.
2. The word "facilitate" is an ordinary non-technical word. In the past, the ordinary meaning of a word or its non-legal technical meaning has been regarded as a question of fact: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. If that is correct, Ms Else would need our permission before she could appeal from the Tribunal's finding as to the meaning of that word. In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395, the High Court cast some doubt on that proposition. More recently, authors Aronson, Groves and Weeks have expressed the view that "choosing from amongst a range of usages should always be an issue of law": Judicial Review of Administrative Action, (6th ed, Law Book Company 2017) at 219. We have taken that view in these proceedings. Ms Else does not need the Tribunal's permission to appeal on this ground.
3. At [68], the Tribunal held that: Facilitate is to be given its ordinary meaning, that is to make easier. In the context of clause 2(f), to make easier a criminal act by a person minded to carry out such an act: Griffin v Sydney Trains [2020] NSWCATAD 234, at [51].
4. The provision does not contain any contextual or other indication as to the degree to which disclosure could reasonably be expected to "facilitate" the commission of a criminal act. Contrary to Ms Else's submission that word, in context, does not have "multiple shades of meaning". Any degree of facilitation is sufficient.
5. A differently constituted Tribunal interpreted "facilitate" to mean "make easier" in Griffin v Sydney Trains [2020] NSWCATAD 234. Ms Else doubted whether, when applying the legal meaning of clause 2(f) to the facts of that case, the Tribunal adopted that meaning. Even if it did not, that does not make its finding as to the ordinary meaning of "facilitate" legally incorrect.
6. Ms Else quotes the Macquarie Dictionary online, 3rd edition as giving the word "facilitate" two meanings: to make easier or less difficult and to "help forward (an action, a process, etc.)" The entry for "facilitate" in the online Macquarie Dictionary is: 1. to make easier or less difficult; help forward (an action, a process, etc.). 2. to assist the progress of (a person): to facilitate the customer to find the right product.
7. Ms Else submits that the Tribunal should have given the word "facilitate" the meaning of "help forward". One reason she gave in support of that interpretation was that where the word "facilitate" appears in other parts of the GIPA Act, it makes little sense if it is interpreted as merely meaning "make easier".
8. Contrary to Ms Else's submission, the first meaning in the online Macquarie Dictionary is a single meaning, not two meanings. By adopting the definition of "make easier", the Tribunal was not "choosing from amongst a range of usages" as Aronson, Groves and Weeks put it, nor was it rejecting an alternative meaning. Both "make easier" and "help forward" describe the same activity. There was no error in the Tribunal adopting the ordinary meaning of "facilitate" based on the Macquarie Dictionary definition.

Meaning of "could reasonably be expected"

1. Ms Else submitted that the Tribunal erred by not interpreting cl 2(f) to the table to s 14 of the GIPA Act in the context of that provision and the table as a whole. As well, Ms Else submitted that the Tribunal did not apply that provision so as to further the object of the GIPA Act. According to Ms Else, if the Tribunal had taken that approach, it would have interpreted cl 2(f) to mean that the adverse consequence (the commission of a criminal act) must be more likely to occur if the information is disclosed, than if it is not disclosed. Instead, the Tribunal considered it sufficient if a person could make some use of the information to commit a criminal act.
2. Ms Else quoted various uncontentious legal principles relating to statutory construction in support of her submission that cl 2(f) to the table in s 14 should be considered as a whole and in context. Ground 4 is that if the Tribunal had interpreted clause 2(f) in the way Ms Else suggests, it would have taken into account matters including: 1. whether there are other ways of committing the criminal act that are as easy or easier than a way that involves the use of the information, such that non-disclosure makes no real difference to whether the criminal act would occur; 2. whether the criminal act remains sufficiently difficult even when the information is available, so that the criminal act is not facilitated in any real sense; and 3. whether it is realistic to think that a bad actor would use the information to commit the criminal act.
3. The Tribunal identified three criminal acts as being relevant to the agency's position: 1. any act of interfering with the IEDR system itself; (Decision at [75]) 2. graffiti offences and acts of vandalism; (Decision at [76]) 3. any act of terrorism. (Decision at [77].
4. The Tribunal considered Ms Else's submission at [52] of the decision: In reaching this conclusion, I have considered Ms. Else's submission that it is implausible or (to paraphrase) far-fetched that anyone would use the technical information relating to the IEDR system to delay, disrupt or compromise passenger safety on the train network because there are less risky and more effective ways of achieving those outcomes. Even if that is true, and the risk of the expected effect is low, the agency does not need to establish that the submitted effects are more likely than not, more probable than not, or that there is greater than a 50% chance of endangerment. Instead, the burden that falls on the agency is to show that the chance, possibility, or risk of the submitted effects occurring is a real one, a chance that is 'fair', sufficient or worth noting'; an expectation that is reasonably based: Department of Agriculture and Rural Affairs v Binnie [1989] V.R. 836 at [840] and [841]. In my view it cannot be said, based on Mr. Ale's evidence and my consideration of the disputed documents, that the expectation of the claimed effect is 'irrational, absurd or ridiculous'. (Emphasis added.)
5. Ms Else characterised the last sentence as being a finding that it is sufficient if there is a reasonable expectation that the information could be used to commit a criminal act, even if it is implausible or far-fetched that the information would be used in that way.
6. The phrase "irrational absurd or ridiculous" comes from the judgment of Bowen CJ and Beaumont JJ in Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 interpreting a similar phrase in the Freedom of Information Act 1982 (Cth). At 190, their Honours said: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
7. In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 445-456; [2006] HCA 45 Hayne J endorsed this passage, adding the following observations at [61] (footnotes omitted): In Attorney‑General's Department v Cockcroft the Full Court of the Federal Court considered the operation of s 43(1)(c)(ii) of the Act - a provision which contained the words "could reasonably be expected to prejudice the future supply of information". In their joint reasons, Bowen CJ and Beaumont J rightly pointed out that it was undesirable to attempt any paraphrase of these words. Thus when their Honours said, as they did, that the words required a "judgment to be made by the decision‑maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act".
8. By finding that the relevant expectation is not "irrational, absurd or ridiculous", the Tribunal was borrowing from the language used in Cockcroft. The Tribunal did not find that an expectation that is not irrational, absurd or ridiculous, is therefore "reasonable". We note the observation of Hayne J in McKinnon that the Federal Court was merely drawing an emphatic comparison.
9. The Tribunal's construction of both "could reasonably be expected" and "facilitate" is not inconsistent with the object of the GIPA Act or the meaning of the words in context. If the Tribunal finds that disclosure of the information could reasonably be expected to facilitate the commission of a crime (or to have any of the other adverse outcomes listed in the table to s 14) the Tribunal must determine whether those considerations outweigh the public interest considerations in favour of disclosure. It is at that stage that the competing public interest considerations are weighed.
10. This ground of appeal also raises the issue of the nature and probity of the evidence required to establish that disclosure of the information could reasonably be expected to have one of the effects in the table to s 14. The Appeal Panel outlined the relevant principles in Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 at [53] - [59] and we adopt those passages in these reasons. By summarising the authoritative case law on the meaning of the phrase "could reasonably be expected" the Tribunal did not misconstrue that phrase.
11. Ground 1 is that the Tribunal misconstrued the meaning of cl 2(d) of the table to s 14 of the GIPA Act. At [64] and [65], the Tribunal made the following finding: While acknowledging that a claim of endangerment or prejudice is a serious matter that requires "grave assessment (which) must be closely scrutinised and not easily accepted", I am persuaded, on the evidence, and having considered the content of the disputed documents, that the release of the information about the IEDR system could provide assistance to or make it easier for a well-informed person to endanger the systems for protecting the life and safety of train passengers, staff and members of the public. I am also satisfied, for the same reasons, that the disclosure of the technical specifications of the IEDR system in each of the disputed documents which I have identified above, could cause detriment to or disadvantage the agency's existing emergency and safety procedures for passengers and staff travelling on a train. (Emphasis added.) Accordingly, I am satisfied that clause 2(d) of the Table in section 14 applies to the disputed information, other than items [3], [5], [7], [9], [10], [12], [14], [16] and [35].
12. Ms Else submitted that the Tribunal is treating clause 2(d) of the table to s 14 as if it were worded like clause 2(f). Clause 2(f) requires that disclosure of the information could reasonably be expected to facilitate the commission of a criminal act. According to Ms Else, for 2(d) to be applicable, the endangerment or prejudice must arise as the result of the disclosure itself. Contrary to the Tribunal's reasoning, it does not depend on the actions of a well-informed person.
13. As to the first point, in our view clause 2(d) does envisage a person doing something with the information which could reasonably be expected to endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle. Mere disclosure cannot have any such effect. The information disclosed would need to be used in some way. The Tribunal did not make a legal error by interpreting clause 2(d) as involving some action by a "well informed person".
14. Ms Else acknowledges that ground 14 overlaps with, and to some extent repeats, grounds 3 and 4. She submits that the Tribunal has dissected cl 2(f) into its component parts by first identifying the criminal acts that could make some use of the information; concluding that thereby the criminal act is facilitated by the use of the information and then finding that release of the information could reasonably be expected to facilitate that criminal act. Instead, the Tribunal should have interpreted the clause as a whole and made a decision which accorded with the objects of the legislation. If the Tribunal had interpreted the provision in that way, it would have found that there was not public interest against disclosure because the adverse consequence is not likely to occur even if access is granted.
15. This ground of appeal does not relate to the way the Tribunal determined the law, but to one of the primary findings of fact that it made. That finding was that disclosure of certain information could reasonably be expected to facilitate the commission of a criminal act. This ground of appeal is essentially that the evidence does not support that finding. We will address that ground below noting that leave is required to appeal on a ground other than a question of law.

Procedural unfairness

1. The fifth ground of appeal is that the Tribunal denied Ms Else procedural fairness and/or a fair hearing because of the hearsay character of some or all of Mr Roy Ale's evidence. In his first statement at [7], Mr Ale gave the following evidence: Where I give evidence about matters about which I have been informed otherwise than by way of my direct observations and experience or review of documentation, I state how I have become informed of these matters. I believe those matters to be true and correct.
2. In his written statements Mr Ale asserted that if the information Ms Else sought was disclosed, it could be used to gain control of the operating system of the train. For example, at 49.4 of his statement, Mr Ale stated that: If these documents were publicly released, someone who wished to do harm, was sufficiently technically experienced or qualified, and had knowledge of the public components of the rail network, could employ the knowledge identified in paragraph 49 to: . . . 4. compromise the operating system of the train.
3. When Ms Else asked Mr Ale about this evidence in cross-examination, he conceded that he had relied on input from unnamed subject matter experts in his team. Ms Else expressed her concern to the Tribunal that these experts were not witnesses, so she could not cross-examine them.
4. Ms Else submitted to the Appeal Panel that as a self-represented party the Tribunal had a duty to ensure that she understood that she had the option of seeking an adjournment. The purpose of the adjournment would have been to summons the subject matter experts Mr Ale mentioned, to give evidence. According to Ms Else, the combination of previously undisclosed hearsay evidence and the failure of the Tribunal to ensure that she was aware of the options available, can only be remedied by remitting the matter to a differently constituted Tribunal to hear again.
5. At [51] of the decision, the Tribunal found that the fact that Mr Ale "consulted members of his team on the electronic and mechanical aspects of the IEDR system in preparing his statement" does not "undermine his overall evidence as to the particular effects that could reasonably be expected if the disputed documents were released".
6. Among other things, procedural fairness requires the Tribunal "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": NCAT Act, s 38(5). Giving a party a reasonable opportunity to present his or her case includes offering a self-represented party an adjournment, where appropriate, even if it is not requested: Italiano v Carbone and Ors [2005] NSWCA 177. In Italiano v Carbone, an amended cross-claim was served on Mr Italiano two days before the hearing. The Court of Appeal held that the Tribunal should have offered Mr Italiano an adjournment to allow him more time to present his defence to the cross claim.
7. Mr Ale's concession during cross-examination, and the way the Tribunal dealt with it, does not raise a procedural fairness issue. Consequently, it was not necessary to offer Ms Else an adjournment to afford her procedural fairness. She was on notice of the evidence that Sydney Trains would present and was given a reasonable opportunity to respond to that evidence. She was not taken by surprise by any late change to the case Sydney Trains was presenting. Sydney Trains, not Ms Else, bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s 105(1). Ms Else's objection relates to the probative value of Mr Ale's evidence.

Inadequate reasons

1. Ground 13 is that the Tribunal did not give any reasons for rejecting three of her submissions. Section 62 of the NCAT Act provides that: (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following - (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
2. For the purpose of these proceedings, we accept that the Tribunal is obliged to provide reasons in accordance with this provision, despite the fact that the Tribunal provided reasons without Ms Else requesting reasons. The Court of Appeal explained this issue in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, Bell P (Ward JA agreeing) at [55]: Section 62(3) of the CAT Act only applies, in terms, to "a written statement of reasons for the purposes of this section." Arguably, that confines its operation to reasons supplied pursuant to a request by a party for reasons after having been notified of a decision by the Tribunal. It is not unreasonable, however, to suppose that s 62(3) supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2).
3. We adopt the following principles summarised by the Appeal Panel in Pemberton v Commissioner of Police, NSW Police Force (No 2) [2021] NSWCATAP 230 at [93] - [96]: 95 It is accepted that written statement of reasons do not require lengthy or elaborate reasons, but a judge (or Tribunal Member) "is obliged to state generally and briefly the grounds which have led him or her to the conclusions reached concerning the disputed factual questions and to list the findings on the principle contested issues": Oh v Café Great Pty Ltd [2018] NSWCATAP 291, at [5] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259. In JCB Enterprises, at [10] to [12], the Appeal Panel noted the following about the requirement to include in the statement of reasons any important/critical and conflicting evidence to the determination of a matter: 10. In Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441 Meagher JA identified three fundamental elements of a statement of reasons. The first was that a judge should "refer to relevant evidence". His Honour held that "where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it." Meagher JA went on to say that, "Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to". 11. In Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Samuels JA also used the word "critical" to describe the kind of evidence to which a decision maker should refer. His Honour held that it would be an error of law for a judge to ignore evidence which was "critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge." Finally, reasons need only meet a "minimum acceptable level". In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Basten JA held at [48] that: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality
4. Firstly, Ms Else submitted that the Tribunal did not give any reasons for rejecting her submission that "facilitate" only means "make easier" rather than "substantially easier" or "help forward". The Tribunal referred to that submission at [62] but did not expressly reject it. In our view, the reasons for rejecting that submission are implicit in the Tribunal's reasoning and that is sufficient. The Tribunal adopted the dictionary definition: "make easier". As we have pointed out, in the context of cl 2 to the table to s 14 of the GIPA Act, there is only one definition of facilitate, not two. Interpreting "facilitate" as meaning "make substantially easier" does not accord with the ordinary meaning of that word. Not giving that explanation expressly, does not make the reasons inadequate because reasons should not be construed in an over-zealous fashion: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
5. Secondly, the Tribunal failed to explain why alternative ways of committing a criminal act were not relevant. The Tribunal summarised Ms Else's submission on this issue at [55]: The risks to public safety identified by the agency are not real and substantial risks because there is alternative, easier, lower-risk ways of causing delays to or disrupting a train, which Transport NSW did not address in its evidence.
6. The Tribunal addressed this issue at [62] in a passage we have already quoted: In reaching this conclusion, I have considered Ms. Else's submission that it is implausible or (to paraphrase) far-fetched that anyone would use the technical information relating to the IEDR system to delay, disrupt or compromise passenger safety on the train network because there are less risky and more effective ways of achieving those outcomes. Even if that is true, and the risk of the expected effect is low, the agency does not need to establish that the submitted effects are more likely than not, more probable than not, or that there is greater than a 50% chance of endangerment.
7. Contrary to Ms Else's submission, the Tribunal did not find that alternative ways of committing a criminal act were not relevant. The Tribunal found that even if the risk of the expected effect is low, the agency may be able to discharge the onus of proving that disclosure of the information "could reasonably be expected" to facilitate the commission of a criminal act. The Tribunal's reasoning on this issue was not inadequate.
8. Thirdly, the Tribunal failed to explain why concessions made by Mr Ale and Mr Beavan that some evidence was wrong, did not undermine the credibility of other evidence. At [61], the Tribunal held that: The fact that Mr. Ale conceded and accepted in oral evidence before the Tribunal that disclosure of the disputed information about the IEDR system could not enable a well-informed person to gain control of the speed of a train or cause the train to crash, does not undermine the validity of the other evidence he presented. Nor does the fact that Mr. Ale consulted members of his team on the electronic and mechanical aspects of the IEDR system in preparing his statement undermine his overall evidence as to the particular effects that could reasonably be expected if the disputed documents were released.
9. In relation to Mr Beavan's evidence, the Tribunal held at [76], that: Secondly, I am satisfied, on the basis of Mr. Beavan's evidence, and from my examination of the confidential annexures, that it could reasonably be expected that the disclosure of the design and engineering information about the IEDR system could have the effect, both generally and in this particular case, of facilitating (that is, making easier) graffiti offences and acts of vandalism. Mr Beavan's evidence establishes that there have been numerous cases of vandalism on Sydney Trains over the past five years which have involved improper interference with the emergency door mechanisms. According to Mr. Beavan, graffiti offences and organised acts of vandalism are becoming increasingly more sophisticated in their targeting of access systems and the disclosure of the disputed information could assist, in a material way, someone who is minded to carry out such offences. I accept his evidence. While Mr Beavan made some concessions about the extent of his understanding of the functioning of the train's IEDR system and the possibility that there were other ways in which a person could stop a train, I do not consider that those concessions undermine the substance of his evidence.
10. Mr Ale conceded, when the issue was raised by Ms Else before the hearing, that it was not correct to say that information about the IEDR system could be used to control the speed of the train. Mr Beavan, who is security expert, conceded that he did not have a detailed technical understanding of the IEDR system and that alternative means were available to stop a train. The Tribunal concluded that neither concession undermined the validity or substance of their remaining evidence. The Tribunal summarised that evidence at [22] - [29] of the decision. Ms Else had an opportunity to cross-examine each of the witnesses on that evidence.
11. Although not stated expressly, the reason the Tribunal accepted the remaining evidence was that it was credible and withstood Ms Else's cross-examination. There was no basis for drawing an inference that because concessions were readily made in relation to some evidence, the remaining evidence was unreliable. Not giving that explanation expressly, does not make the reasons inadequate because reasons should not be construed in an over-zealous fashion: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

Application for leave to appeal

1. Grounds 7 - 10 relate to the Tribunal's findings of primary fact, especially the fact that disclosure "could reasonably be expected" to produce certain adverse consequences. Ms Else challenges the weight the Tribunal attributed to the evidence in support of that finding. It is an error of law for the Tribunal to make a primary factual finding when there is no evidence to support that finding and the finding is "crucial to . . .(the) decision": Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. Similarly, if the Tribunal makes a finding "in the face of the evidence" that will constitute an error of law: Bugeja v Hatgiantounio [2002] NSWCA 132 at [9]. However, Ms Else has not submitted that that is the case. Consequently, these grounds of appeal do not give rise to a question of law and leave is required: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at [155]-[156].
2. The Appeal Panel has set out the circumstances where it may be appropriate to grant leave to appeal in Collins v Urban [2014] NSWCATAP 17 at [84]: [84] The general principles derived from these cases can be summarised as follows: 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: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. Matter of public importance.

Too much weight to evidence of Mr Ale and Mr Beavan

1. Ms Else submitted that the fact that Mr Ale relied on other members of his team as subject matter experts should have led the Tribunal to "distrust all of Mr Ale's technical claims, and to discount his evidence accordingly". She also submitted that Mr Ale corrected two matters he gave evidence about and failed to consult with his subject matter experts before asserting the matters requiring correction.
2. Sydney Trains' response to these grounds of appeal was firstly that Mr Ale was the Associate Director, Fleet Program Delivery at Sydney Trains. He was not presented as an expert engineer witness. He said that he had consulted with subject matter experts before identifying his concerns including engineers, brake experts, systems experts and reliability experts. According to Sydney Trains, it was unsurprising that that evidence was presented through Mr Ale given the broad range of technical areas from which the concerns were based. Sydney Trains conceded that evidence of that kind may be given less weight than evidence from the subject matter experts themselves. However, there was no basis to discount his evidence entirely.
3. Secondly, credibility is not necessarily affected just because a witness makes appropriate corrections or concessions. Ms Else did not cross examine Mr Ale as to his candour or put to him that his remaining evidence should not be accepted because of the corrections he made.
4. Thirdly, Sydney Trains submitted that the assertion that Mr Ale failed to consult with his subject matter experts before asserting the matters requiring correction must fail. That proposition was not put to him and he did concede that he had not spoken to a particular expert in connection with one aspect of his evidence. He said that he should have contacted that expert. His evidence was that he had otherwise consulted with the subject matter experts in the course of identifying his concerns.
5. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). Evidence that would otherwise be inadmissible under common law principles and the Evidence Act 1995, can be admitted but that evidence must be logically probative and "not mere suspicion or speculation": Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 18; [1980] FCA 85. The Tribunal accurately outlined the principles relating to proof of questions of fact at [18] - [19] of the reasons.
6. We have decided not to give Ms Else permission to appeal on any ground that does not identify a question of law. There were real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect. The Tribunal gave prominence to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 at [59]. The Tribunal's factual findings were not clearly mistaken or unreasonably arrived at, nor did the Tribunal go about the fact finding process in a way that was likely to produce an unfair result. There is no issue of principle or question of public importance other than those principles and questions which routinely arise and are dealt with under the GIPA Act.

Ground 12 - insufficient weight to public interests in favour of disclosure

1. This ground of appeal is that the Tribunal gave insufficient weight to the public interest in seeing that the IEDR system has been correctly designed and implemented such that it will work properly in a serious accident.
2. The public interest considerations in favour of disclosure were not contested. At [76], the Tribunal expressly gave "considerable weight" to the protection of public and passenger safety. This ground of appeal is not made out.

Orders

1. Transport for NSW is removed as the respondent to these proceedings.
2. Sydney Trains is substituted as the respondent.
3. The time for lodging an appeal on grounds 13 and 14 is extended to 5 May 2021.
4. Leave to appeal on a question other than a question of law is refused.
5. The Tribunal's orders are affirmed.
6. 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. 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: 19 August 2021