Fahey v Hunter Water Corporation [2025] NSWCATAD 291;

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 19 December 2024

(2) Applicant's Outline of Submissions: Scope of Government Information (Public Access) Act 2009 s 60(1)(b) approach on review filed 6 June 2025 (Scope Submissions)

(3) Statement of Danial Fahey 6 June 2025, filed 6 June 2025

(4) Applicant's Outline of Submissions filed 25 July 2025

(5) Comparison of Applications: Applicant's aid memoir handed up 19 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) Evidence and Materials relied upon by the Respondent filed 25 March 2025

(2) Respondent's Submissions filed 8 July 2025

(3) Respondent's Submissions in Reply filed 15 August 2025 with Annexures A-E as follows:

(a) Annexure A - Internal review decision in First Application dated 25 February 2021

(b) Annexure B - Statement of Ms Tipene

(c) Annexure C - Comparison of access applications made by the Applicant

(d) Annexure D - Estimate of number of documents and effort for Second Applicant

(e) Annexure E - Mediation offer email dated 7 August 2025

(4) Table Comparison of the Applicant's three Access Requests handed up 19 August 2025.

1. The decision maker for the Respondent Ms Tipene, was cross examined by the Applicant's legal representative.

1. The Applicant has made three related applications to the Respondent for access to information. The procedural history of those applications is set out below.

1. On 26 August 2020 the Applicant made the First Application to the Respondent.
2. On 23 September 2020 the Respondent identified 380 documents within the scope of the First Application. The Respondent decided to release some information, withhold information due to an overriding public interest and that some information was already available to the Applicant.
3. The Applicant sought an external review of the Respondent's decision by the Information Privacy Commission (IPC). On 20 January 2021 the IPC finalised its review and made a recommendation that the Respondent make a new decision by way of an internal review in relation to its decision to refuse disclosure of 149 documents.
4. The Respondent then made an internal review decision on 25 February and 11 March 2021 and decided to release some additional information, withhold information due to an overriding public interest and that some information was already available to the Applicant. This resulted in 59 documents being withheld by the Respondent.
5. The Applicant did not seek further external review of this decision. In his Statement filed 6 June 2025 the Applicant sets out the medical and financial reasons at para 9 as to why he did not seek review by the Tribunal of the First decision.

1. On 26 May 2022 the Applicant made a Second Application to the Respondent.
2. On 11 January 2023 the Respondent decided to refuse to deal with the Second Application on the basis that to process the request would require an unreasonable and substantial diversion of the Respondent's resources.
3. The Applicant sought an external review of the Respondent's decision by the IPC. On 3 May 2023 the IPC finalised its review and made a recommendation.
4. On 21 July 2023 the Respondent made an internal review decision to refuse to process the Second Application on the basis that to process it would require an unreasonable and substantial diversion of resources. The Respondent estimated that there are more than 2,000 documents within scope of the request and that compliance with the Second Application will require in excess of 80 hours, and possibly in the range of 170 hours or more.
5. On 28 November 2023 the internal review decision was externally reviewed by the IPC, which made no recommendations.
6. The Applicant initially sought review by the Tribunal of the decision of the Respondent relevant to the Second Application but withdrew that application for review. The Applicant's Statement filed 6 June 2025 sets out the reasons why he withdrew the application at paras 11-13. The reasons included that he engaged a legal representative and it was decided that it would be more appropriate to withdraw the application and instead redraft the request with a narrower and more focused scope thereby accommodating the Respondent's request for a narrower scope.

1. On 12 April 2024 the Applicant made the Third Application to the Respondent.
2. On 24 May 2024 the Respondent decided to refuse to deal with the Third Application after previously deciding two applications that it says are the same or substantially similar and there are no reasonable grounds for believing that the agency would make a different decision on the application.
3. The Applicant applied for external review of the Third / Current Application by the IPC on 18 July 2024. On 25 November 2024 the IPC made its report and did not make any recommendations. The IPC found that the Respondent's decision was justified in relation to its decision to refuse to deal with the Third Application, on the basis that the access application was the same or substantially similar to a previous application decided by the Respondent, and there is no reason to anticipate that the Respondent would make a different decision on the Third Application.

1. The Respondent decided to refuse to deal with the Third and Current Application under s 58(1)(e) of the GIPA Act, with reference to s 60(1)(b).
2. Section 58(1)(e) of the GIPA Act states that:

58 How applications are decided

(1) An agency decides an access application for government information by -

.....

(e) deciding to refuse to deal with the application (see section 60), or

....

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) -

(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,

(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

....

(2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided.

(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.

(3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations -

(a) the estimated volume of information involved in the request,

(b) the agency's size and resources,

(c) the decision period under section 57.

(3B) Any consideration under subsection (3A) must, on balance, outweigh -

(a) the general public interest in favour of the disclosure of government information, and

(b) the demonstrable importance of the information to the applicant, including whether the information -

(i) is personal information that relates to the applicant, or

(ii) could assist the applicant in exercising any rights under any Act or law.

(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.

...

1. Section 80(c) of the GIPA Act provides that this decision is a reviewable decision.
2. Section 100 of the GIPA Act says that a person who is aggrieved by a reviewable decision of an agency may apply to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of the decision.
3. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1) GIPA Act.
4. 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. The Tribunal may affirm, vary, set aside or remit the administratively reviewable decision.
5. The guiding principle for the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36 Civil and Administrative Tribunal Act 2013.
6. Under s 3(2)(b) of the GIPA Act, discretions conferred by that Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. Section 3 states that:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by -

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament -

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. There are two issues to be determined in applying s 60(1)(b) of the GIPA Act:

(a) whether the agency has already decided a previous application for information concerned in the present application, or information that is substantially the same as that information, and

(b) whether there are reasonable grounds for believing that the agency would make a different decision on the application.

Klaric v Commissioner of Police [2020] NSWCATAD 47 at [30] upheld on appeal in Klaric v Commissioner of Police [2020] NSWCATAP 153 (Klaric appeal)

1. Whether the Current Application seeks the same or substantially the same information as a previous application requires a comparison of the information sought: Beveridge v Cessnock City Council [2020] NSWCATAD 306 at [163]- [166] and GHW v Commissioner of Police, NSW Police Force [2024] NSWCATAD 215 at [55].
2. When reviewing a decision under s 60(1)(b), the Tribunal is not required to assess the merits of the previous decision. Rather, the Tribunal is required to be satisfied that there are no reasonable grounds for believing that the agency would make a different decision on the application. It is an error for the Tribunal to embark on a re-hearing of the merits of previous applications. Klaric appeal at [31] - [32].
3. Whether there are reasonable grounds for believing the agency would make a different decision on the current application requires consideration of whether the grounds of the previous refusal continue to apply: Buttrose v NSW Trustee and Guardian [2025] NSWCATAD 107 at [46]- [47].
4. In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] (Cianfrano), a decision relating to the former Freedom of Information Act 1989, the Tribunal identified nine non-exclusive factors to be taken into account in assessing whether a request includes an unreasonable and substantial diversion of resources:

(a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in Re Borthwick at 35)

(b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick)

(c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications

(d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost

(e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application

(f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria)

(g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns

(h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made

(i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.

1. The Tribunal in the decision of Colefax v Department of Education and Communities (NSW) (No 2) [2013] NSWADT 130 at [25] confirmed that most of the considerations identified in Cianfrano are equally applicable to a consideration under the GIPA Act. However the Tribunal considered that caution should be exercised with respect to the 40-hour threshold nominated in Cianfrano noting that there are a number of cases in which a greater burden on agency resources has been allowed. In addition to these factors, the Tribunal noted at [26] that an access applicant under the GIPA Act has a statutory right to access government information, and the Act instructs that discretions under it be exercised so as to enhance its objects. These legislative provisions apply with respect to applications under the GIPA Act and may result in the differing weight and importance being accorded to the Cianfrano factors.
2. It is appropriate to have regard to whether or not the previous decision was the subject of administrative review: Dezfouli v Commissioner of Police, NSW Police Force [2024] NSWCATAD 15 at [102].
3. Whether parties are close to reaching an agreement regarding the narrowing of scope is a relevant factor in deciding to remit a matter: GHW v Commissioner of Police [2024] NSWCATAD 215 at [53].
4. The power of an agency to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist an applicant to narrow their request: Singh v Legal Aid Commission (No2) [2015] NSWCATAD 5 at [102].

1. The Applicant submits that the Respondent has failed to demonstrate that s 60 of the GIPA Act applies to the current application.

Applicant's position on the First Application when compared to the Current Application

1. The Applicant submits that the First Application was not a previous application that sought the same, or substantially the same, information to the Current Application. The Applicant submits that the First Application was a 'catch all' request that sought to capture "all information related to [the Applicant's] employment". While references to discreate categories of information were drafted as guidance to ensure that material was appropriately captured, the request was effectively unlimited in time, document type and scope.
2. The Applicant contends that the Current Application takes a substantially narrower approach than the First and Second Applications, specifying discrete classes of documents including his employee file and other defined date ranges for other classes of documents.
3. The Applicant contends that the fact that the Current Application does not seek to capture all documents in the manner that the First Application shows that it is not the same request for the same or substantially the same material.
4. The Applicant also contends that of the categories of documents sought, they capture matters that may not have been within the scope of the First Application including information that refers to medical conditions of the Applicant's wife and children. The First Application is also limited in scope to the Applicant's employment context, but the current application, in the Applicant's submission, is not so limited. Finally the Applicant submits that records may have been created since the Applicant's employment with the Respondent ceased in December 2020.
5. The Applicant submits that the Respondent has not discharged its onus to show that there are no reasonable grounds for believing the Respondent would make a different decision on the Current Application. The Applicant points to the documents withheld in the First Application in 2020 in reliance on a range of exemptions and contends that the Respondent has not addressed why the balance remains the same given the passage of time.
6. The Applicant also points to the Applicant's ongoing concerns regarding his property and contends that there are reasonable grounds to believe that further documents may exist which were not within the scope of the First Application in 2020. If there are further documents within scope, there are reasonable grounds to believe that a decision would be different.
7. The Applicant also points out that the First Application was not subject to administrative review by the Tribunal for reasons related to the Applicant's health. The Applicant submits that Klaric as cited in the Respondent's submissions, is not authority for the proposition that any weight should be given to the fact that an IPC review has occurred.

Applicant's position on the Second Application when compared to the Current Application

1. The Applicant contends that the Second Application, like the First Application, was a form of catch all request for "full records" of the Applicant, as well as a list of defined categories, and "contained some further enlargement" by way of references to "any and all other records related" to the Applicant and "any and all recordings" of the Applicant.
2. In contrast the Applicant contends that the Current Application takes a substantially narrower approach and does not seek to capture all documents in the manner that the Second Application did. This shows that it is not the same request for the same material, nor is it substantially the same. The Second Application is also limited in scope to the Applicant and in the Applicant's submission, does not pick up information sought about his family as sought in the Current Application.

Applicant's position on whether there are reasonable grounds for believing that the Respondent would make a different decision on the Current Application

1. The Second Application was refused on the basis it would require a substantial and unreasonable diversion of resources. As the current application seeks less material than the Second Application, the Applicant contends that the time to process will be less. The Applicant also submits that the Respondent has not lead evidence that provides a reliable estimate of processing time for the Current Application.
2. Accordingly, the Applicant contends that there are reasonable grounds for believing the Respondent would make a different decision on the Current Application based on the difference in scope alone.

1. Finally the Applicant contends that even if the conditions for the exercise of discretion under s 60(1)(b) are found by the Tribunal to be met, the Respondent has failed to demonstrate that the discretion should in fact be exercised.
2. The Applicant submits that the exercise of discretion would be contrary to the objects and purposes of the GIPA Act on the basis that refusing to consider an application because an unrepresented Applicant had previously made an overly wide request, then withdrawn that request to make a narrowed one, flies in the face of the objects and purposes of the Act.
3. The Applicant also submits that the Tribunal is entitled to take into account the personal factors of the application under s 55(2) of the GIPA Act. The Applicant contends that the information sought would provide information about complaints, potential issues relating to his property and matters relating to the Applicant's employment, and weigh in favour of granting access and not exercising the discretion against the Applicant.
4. The Applicant contends that the Respondent's submission regarding the absence of discussions to narrow the access application, does not bear on whether an agency should refuse to deal with an application.

1. The Respondent contends that the correct and preferable decision is to refuse access to paras [3], [4], [6] - [10] and [13] of the Applicant's Current Application in accordance with ss 58(1)(e) and 60(1)(b) of the GIPA Act. This is on the basis that the Respondent has already decided two previous access applications for the information concerned or information that is substantially the same as that information and there are no reasonable grounds for believing that the Respondent would make a different decision on the Current Application.
2. In relation to paras [5] and [11] of the Current Application and in accordance with section 58(1)(b) of the GIPA Act, the Respondent states that no additional documents falling in scope of the request were held by the Respondent other than documents previously identified in response to the Applicant's previous access applications. The Respondent understands that this is not contested by the Applicant.
3. The Respondent agrees that the First and Second Applications are not made on completely identical terms however the Respondent submits that the two Applications are made on substantially similar terms to the Current Application. While it is the Respondent's submission that both the First and Second Applications are the same or substantially the same as the Current Application, the Respondent contends that it is only necessary for the Tribunal to find that one of the two previous applications are the same or substantially the same as the Current Application, in order for s 60(1)(a) of the GIPA Act to be made out.

Respondent's position on the First Application when compared to the Current Application

1. The Respondent submits both the First and Current Applications seek substantially the same material. The First Application was for "all information related to [the Applicant's] employment at Hunter Water Corporation...". The Current Application largely consists of requests for material that is similarly related to the Applicant's employment at Hunter Water Corporation. In the Respondent's view, this means that all of the material in the Current Application that is related to the Applicant's employment, which it submits is the majority of the material, is material that is also within scope of the First Application.
2. The Respondent refutes the Applicant's contention that there are requests for information contained in the Current Application that were not covered previously.
3. In relation to the Applicant's submission that there will be additional records created after the Applicant's employment ended, the Respondent undertook additional searches and confirms that no additional documents since December 2020 were found.
4. The Respondent disputes the Applicant's contention that the information sought in the Current Application is not limited to the employment context and that additional documents may now exists that did not exist at the time of the First Application relating to "the Applicant's concerns about the damage caused to his property". The Respondent contends that the Current Application similarly does not appear to capture documents generally related to damage or alleged damage to the Applicant's property.

Respondent's position on the First Application when compared to the Current Application

1. In relation to information about the Applicant's wife and children's medical conditions, the Respondent states that the Second Application contains a request for "Any record, note, email or document that either includes and/or makes any opinions, reference, inference and/or alludes to any medical condition of [the Applicant's] family members." The Respondent contends that this covers the same material requested at paragraph [13](a) of the Current Application which asks for "Any document in the possession of HWC that refers to any medical condition or asserted medical condition of [the Applicant's] wife, irrespective of whether such document directly states their names." Accordingly, the Respondent says that the Applicant's statement that the Second Application "does not pick up information sought about his family" is erroneous.

Respondent's position on whether there are reasonable grounds for believing that the Respondent would make a different decision on the Current Application

1. The Respondent rejects the Applicant's claim that the Current Application is narrower, asserting it remains broad and unfocused.
2. The Respondent submits that repeated requests for substantially the same documents within the same timeframe provide no reasonable basis to expect a different outcome. Access was refused in the First Application on multiple grounds in s 14 of the GIPA Act and Schedule 1 clause 5 (legal professional privilege).
3. The Respondent submits that the passage of time since the First Application does not affect the applicability of the exemptions. The withheld material includes correspondence with the insurer regarding the Applicant's worker's compensation claim, internal deliberative communications and legal advice.
4. The Respondent maintains that the material remains sensitive and the effect of disclosure could reasonably be expected to prejudice the supply of confidential information, prejudice the deliberative process, prejudice agency functions, found an action for breach of confidence, prejudice audits, investigations or reviews, prejudice any court proceedings, diminish the competitive commercial value of information, and prejudice legitimate business commercial professional or financial interests.
5. The Applicant seeks documents concerning their past performance management and workers compensation claim. While factual and administrative records containing the Applicant's personal information were released during the original and internal review decisions, the remaining material primarily involves internal deliberations and legal advice. These matters remain ongoing, and the Respondent considers that the passage of time has not reduced sensitivity or altered the application of public interest factors under s 14 of the GIPA Act. Regarding the documents subject to 3rd party consultation the Respondent confirmed that the insurer's position remains unchanged and they continue to object to disclosure of the material.
6. The Respondent relies on a statement from the decision-maker Ms Tipene who was cross examined by the Applicant. Ms Tipene's evidence is that in making the decision on the Current Application she was satisfied that the three applications are the same or substantially similar and there was no evidence that suggested there were any reasonable grounds to believe the Respondent would make a different decision on the Current Application. Ms Tipene also states that there is no evidence before her that the passage of time since the earlier applications has had any impact on the decisions made in these matters and is unaware of any evidence that would suggest there are reasonable grounds to believe that the Respondent would make a different decision on the Current Application.
7. The issue of searches was the subject of the Applicant's cross examination of Ms Tipene. In response to the Applicant's contention that the Respondent did not complete searches for the Current Application, other than in relation to the information requests at paras [5] and [11], the Respondent says it relied on the previous searches undertaken in the course of the Second Application due to substantially the same material falling within both Applications and provided the search record. The Respondent's evidence is that its internal review decision to refuse to process the Second Application on the basis that to do so would be an unreasonable and substantial diversion of the Respondent's resources was based on an accurate time estimate set out in the internal review decision.
8. The Respondent submits that the Tribunal can be satisfied that the previous grounds for refusal still apply. The Respondent points to the external reviews conducted by the IPC and submits that the Tribunal should have regard to the fact that the IPC has previously been satisfied with the Respondent's internal review decision made in response to the Second Application.

Respondent's position on the exercise of discretion

1. The Respondent acknowledges that discretion to refuse an application under s 60(1)(b) of the GIPA Act must be exercised consistently with the Act's objectives. In this case, multiple similar applications have already been determined, the Applicant declined to narrow the scope, and significant resources - approximately 204 hours - have been expended. The decision to refuse was reasonable, given the duplication, absence of new issues, and the need to manage resources efficiently.
2. In relation to the Applicant's submission that personal factors of the Applicant ought to be considered by the Tribunal in accordance with section 55(2) of the GIPA Act the Respondent submits that this is not correct. This is because section 55(2) of the GIPA Act relates to determining whether there is an overriding public interest against disclosure of information in response to an access application. This is irrelevant to the decision under review in this matter which is a decision to refuse to deal with the application under section 60(1)(b) and should be disregarded.
3. The Respondent submits that while the Applicant makes a number of points regarding the importance of the information to him, in a s 60(1)(b) matter the Tribunal is not required to engage with the information or specific documents sought under the access application to a level that would require them to identify particular public interest considerations such as those outlined in the Applicant submissions, citing Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [46].
4. In relation to the Applicant's contention that whether an Applicant has agreed to revise the scope of the request is not a relevant consideration, the Respondent points to GHW where the Tribunal did consider the fact that the parties are close to reaching agreement regarding the narrowing of scope as a relevant factor in a decision to remit the matter.

Scope of Application for Administrative Review: paras [5] and [11] of the Current Application are not the subject of these proceedings

1. The Current Application at para [5] sought "any document created as a result of, or for the purposes of, Mr Fahey's claim for worker's compensation made in regards to his injury that occurred from or about 1 November 2019." At para [11] of the Current Application the Applicant sought "All correspondence between Hunter Water Corporation and any of the following third parties referring to Danial Fahey sent from 1 October 2019 to present: Lake Macquarie City Council, the Environmental Protection Authority, Energy and Water Ombudsman (NSW), [a member of Parliament], iCare, Allianze, any investigator appointed for the purpose of a workers compensation investigation and any firm based in the Hunter region that provides recruitment services."
2. The Respondent made a decision on paras [5] and [11] under s 58(1)(b) of the GIPA Act that no additional documents are held by the Respondent which are responsive to the Current Application other than documents identified in response to the Applicant's previous access applications. The Applicant's submissions in these proceedings did not address the issue and the Respondent understood that the Applicant does not contest this decision.
3. At the hearing the Applicant confirmed to the Tribunal that the decision of the Respondent on paras [5] and [11] of the Current Application is not the subject of these proceedings. Accordingly, the Tribunal does not make any findings in relation to paras [5] and [11] of the Current Application.
4. The following paragraphs of the Current Application remain in dispute: [3], [4], [6] - [10] and [13].

Is the Current Application for the same or substantially the same information decided in a previous application: the First Application?

1. Parts of the Current Application, while more particularised, largely request a subset of the information requested in the First Application.
2. Comparing the applications the Tribunal is satisfied that the information sought in the Current Application at paras [3],[4] and [6], is substantially the same as that sought in the First Application. That information is about the Applicant's performance, his medical and health conditions and complaints made against him.
3. The Current Application at para [3], seeks access to employment records including the Applicant's employee file and documents relating to health and performance. In particular para [3] seeks a copy of the Applicant's employee file, any document that refers to his health, any document that refers to his performance as an employee including achievement plan, career development plan, mid-cycle performance reviews, final review and rating and annual performance ranking for years ending 30 June 2018, 2019 and 2020. Also any document prepared for the Applicant's end of probation review and any document created in 2018 recording or referring to any demotion of the Applicant.
4. The First Application sought employment records including documents related to health and performance at paras [1]-[11]. In particular, the First Application sought final signed performance reviews and any notes held on these, any notes, emails, recordings or documents (records) related to any performance discussion held or planned to be held on return from sick leave, any records held on his two medical disabilities disclosed and discussed at Hunter Water and by Hunter Water staff, his workers compensation file on his claim made in November 2019, any records for any meetings held in relation to probation in the first 6 months of employment, records in regards to discussions held on his wellbeing between 1 July 2018 and 20 June 2019 and records on his two role changes. The First Application also used "catch all" terms to seek "any other records" on his employment with the Respondent not already released and held by either the Human Resources Team or the Work Health and Safety teams and "any other records" on his employment not included in the specific requests and not already released.
5. Comparing the First Application with the Current Application, the Tribunal is satisfied that para [3] of the Current Application is a subset of the information previously sought in the First Application at paras [1]-[11] of that Application and is a request for substantially the same information. All of the information sought in the Current Application at para [3] is responsive to the First Application which sought both specific information and "any other records" relating to the Applicant's employment.
6. The Current Application also seeks at para [4], to the extent not already captured by his employee file, all records of any investigation undertaken into the Applicant during the period 20 January 2018 to 10 December 2020.
7. The First Application at para [5] sought a "Copy of the report from external mediator in 2018, for the mediation session between myself held after I was falsely accused of being racists [sic]. Any other notes or records held on this matter."
8. The Tribunal is satisfied that the First Application is sufficiently broad to encapsulate, either in para [5] or in the general "catch all" request for "any other records" on the Applicant's employment in paras [10] and [11], the matters raised by para [4] of the Current Application. The request at for "any other records" at paras [10] and [11] of the First Application is to be read in the context of the categories of information requested elsewhere in the First Application. Those categories included accusations made against the Applicant. Accordingly, the Current Application is for the same or substantially the same information.
9. The Current Application also seeks at para [6] (if not captured by para [3] (the Applicant's employee file or any document that refers to the Applicant's health)), all documents referring to any medical condition of the Applicant's, including but not limited to a letter provided by the Applicant to the Respondent in March 2019 sent by email recording the Applicant's diagnosis, any record of a meeting between the Applicant and the Manager for Work Health and Safety and any record relating to a meeting between the Applicant and certain named persons on or about 21 March 2019.
10. The First Application at para [4] sought any notes, emails, records or equivalent held on his two named medical disabilities. While the Current Application is a more specific request for certain documents, the Tribunal is satisfied that the information sought at para [4] of the First Application encompasses the information sought at para [6] of the Current Application.
11. To the extent that the Current Application at para [6] seeks information regarding "any medical condition" of the Applicant which may go beyond the Applicant's two medical disabilities named in para [4] of the First Application, the Tribunal is satisfied that information on "any medical condition" is captured by paras [10] and [11] of the First Application requesting "any other records held by either the Human Resources Team or the Work Health and Safety teams" and "any other records on my employment."
12. Based on a comparison of the applications the Tribunal is not satisfied that the information sought in the Current Application at paras [7], [8], [9], [10] and [13] is substantially the same as that sought in the First Application. These parts of the Current Application seek information about complaints made by the Applicant, a particular leave request and medical conditions of the Applicant's wife and children. The First Application was about the Applicant's performance, his medical and health conditions and complaints made against him.
13. The Current Application at paras [7] and [8] requests a complaint made by the Applicant provided to named persons in or around February 2018 concerning a junior staff member, including but not limited to making derogatory remarks about the Applicant's speech. All records of any investigation into the complaint are also requested.
14. The Current Application at para [9] requests records relating to the Applicant taking a "show day" on a different day to the Agency-planned day during October 2019 and includes a description of the record sought and who it was sent from or to during that period (the leave matter).
15. Paragraph [10] of the Current Application seeks all records created for the purposes of, or in the course of, an investigation into a complaint made by the Applicant to the Executive for Legal in July 2020 in regards to public comments made by Respondent staff directed at the Applicant on 14 December 2019 and in regards to his person and property on or about 22 April 2020.
16. The First Application did not specifically refer to complaints made by the Applicant and matters relating to leave. The catch all requests at paragraphs [10] and [11] of the First Application for "any other records held by either the Human Resources Team or the Work Health and Safety teams" and "any other records on my employment" are capable of including the information requested in the Current Application regarding complaints made by the Applicant and matters relating to leave.
17. The Tribunal does not have before it comprehensive evidence of the searches undertaken by the Respondent in the First Application. The Respondent's original decision of 23 September 2020 makes only a general reference to conducting searches to identify information falling within the scope of the application. There is nothing before the Tribunal to demonstrate that all systems containing any complaints information and correspondence on leave were considered to be in scope of the Applicant's request for "any other records on my employment." No search record is included in the decision on the First Application.
18. As stated at para [93] above, the Tribunal considers that the catch all request in the First Application for "any other records" is to be read in the context of the categories of information requested elsewhere in the First Application. Those categories were about performance, his medical and health conditions and complaints made against him. The Tribunal cannot be satisfied that the catch all request includes (or was taken by the Respondent to include) a request for information on complaints made by the Applicant or the specific leave matter, which are not referred to elsewhere in the First Application.
19. The Current Application also requests at para [13] information that refers to any medical condition or asserted medical condition of the Applicant's children or wife, irrespective of whether such document directly states their names.
20. Without further context the Tribunal cannot be satisfied that this is a request for employment information (as opposed to information about his property complaints) that is substantially the same as that requested in the First Application. While there is insufficient material before the Tribunal to make a finding on the matter, the Tribunal has regard to the Applicant's contention that the First Application is limited in scope to the Applicant's employment context, but the Current Application is not so limited.

Is the Current Application for the same or substantially the same information decided in a previous application: the Second Application?

1. Section 60(1)(a) of the GIPA Act refers in the singular to where "the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant." It is only necessary for the Tribunal to find that one of the two previous applications (or parts thereof) sought the same or substantially the same information as the Current Application, in order for s 60(1)(a) of the GIPA Act to be made out.
2. While not necessary, the Tribunal also finds that the Current Application at paras [3],[4] and [6], seeking information about the Applicant's performance, his medical and health conditions and complaints made against him is substantially the same as the information sought in the Second Application. In particular, the Second Application is in broad terms and sought "a full and complete employment file", any record that "makes reference, inference or alludes to Mr Danial Fahey in his capacity of employment", his "professional or personal character, personal conduct, or conduct as an employee", "performance as an employee", "alleged investigation in [sic] Mr Danial Fahey for any matter in any period", "opinions, reference, inference and / or alludes to any medical condition of Mr Danial Fahey" and any and all "other records related to" the Applicant.
3. The Tribunal finds that the Current Application seeking information at para [9] regarding a particular leave matter, is the same or substantially the same information sought at para [1.1] of the Second Application requesting "a full and complete employee file, which should include all employee records..." The request appears as the first item in the list of requests in the Second Application. A complete employee file is expected to include records related to leave applications.
4. The Tribunal finds that the Current Application at para [13] seeking information that refers to any medical condition or asserted medical condition of the Applicant's children or wife, is the same or substantially the same information requested in the Second Application at para [5] for any record, note, email or document that "either includes and/or makes any opinions, reference, inference and/or alludes to any medical condition of" the Applicant's "family members."
5. The Tribunal further finds that paras [7], [8], and [10] of the Current Application which seek information about complaints made by the Applicant is not substantially the same as the information sought in the Second Application. While the information sought in the Second Application is broadly framed, to the extent that it is particularised, it is focused on the conduct of the Applicant referring to his "personal character", "personal conduct", "conduct as an employee", "performance as an employee", "actual or alleged investigation in [sic] the Applicant" and his conduct in any other interactions with the Respondent not in the capacity of an employee. Requests in the First Application for "any record or document or equivalent that makes reference, inference or alludes to Mr Danial Fahey in his capacity of employment" and any and all "other records related to" the Applicant, must be read in that context.

Whether there are no reasonable grounds for believing that the agency would make a different decision on the application

1. In summary, the Tribunal has found that all requests for information in the Current Application are the same or substantially similar to requests made in either the First or Second Application, with the exception of paras [7], [8] and [10] which seek information regarding complaints made by the Applicant:

(1) Current Application paras [3], [4], and [6] seek substantially the same information as the First Application (the Applicant's performance, his medical and health conditions and complaints made against him).

(2) Current Application paras [7], [8], [9], [10], and [13] are not substantially the same as the First Application (complaints made by Applicant, leave request, family medical conditions).

(3) Current Application para [3], [4], [6], [9] and [13] is substantially the same as the information sought in the Second Application (Applicant's performance, his medical and health conditions and complaints made against him, leave matter, medical conditions of children or wife).

(4) Current Application paras, [7], [8] and [10] (complaints made by the Applicant), are not substantially the same as the Second Application.

1. Accordingly s 60(1)(b) of the GIPA Act does not apply to paras [7], [8] and [10] of the Current Application which seek information regarding complaints made by the Applicant and must be processed by the Respondent.
2. The Tribunal must now consider whether there are no reasonable grounds for believing that the Respondent would make a different decision on the remaining information sought in the Current Application at paras [3], [4], [6], [9] and [13], found to be the same or substantially similar to the First or Second Applications.
3. The Tribunal accepts the Respondent's submission and the evidence of the decision maker Ms Tipene that there are no reasonable grounds for believing that the Respondent would make a different decision on the information sought at paras [3], [4] and [6] of the Current Application. That information is in relation to the Applicant's performance, his medical and health conditions and complaints made against him.
4. This is because:

(1) the Respondent has already processed a request in the First Application for the same or substantially the same information and found some 380 documents were responsive to the First Application.

(2) following IPC review and internal review, the Respondent ultimately refused access to 59 documents on the basis of public interest considerations or a conclusive presumption against disclosure on the basis of legal professional privilege.

(3) on the Respondent's submissions, as the remaining material primarily involves internal deliberations and legal advice related to ongoing matters, the Tribunal accepts that the passage of time is unlikely to reduce sensitivity or alter the application of public interest factors having regard to the clauses in the Table to s 14 of the GIPA Act relied on by the Respondent in making the decision on the First Application.

(4) the Respondent has confirmed it does not intend to waive privilege.

(5) regarding the documents subject to 3rd party consultation the Respondent confirmed that the insurer's position remains unchanged and they continue to object to disclosure of the material.

1. The Tribunal found that the information requested at paras [9] and [13] of the Current Application were for substantially the same information as the information sought in the Second Application (leave matter, medical conditions of children or wife).
2. In relation to the requests related to the leave matter at para [9] of the Current Application, the Tribunal is not satisfied that there are no reasonable grounds for believing that that the Respondent would make a different decision.
3. This is because the Respondent decided not to deal with the Second Application on the basis that it would require an unreasonable and substantial diversion of the agency's resources. The information requested at para [9] of the Current Application has now been particularised by the Applicant. It specifies the month of October 2019 and asks for certain correspondence between named individuals. The Tribunal therefore considers that there are reasonable grounds for believing that the request is capable of being processed by the Respondent without requiring an unreasonable and substantial diversion of the agency's resources.
4. In relation to the information requested at para [13] of the Current Application found to be the same or substantially the same as information sought in the Second Application, the Tribunal accepts the evidence of Ms Tipene. At the hearing Ms Tipene gave evidence of the difficulty in searching for documents without any names, requiring the Respondent to cast a large net. While documents relating to medical conditions can be captured, they would need to be reviewed to see if they relate to the application.
5. Searches conducted in relation to the Second Application found around 2,000 documents responsive to the Applicant's request. However the Tribunal does not have information before it as to how many documents are likely to be retrieved from a search related to medical conditions, and how many would need to be individually reviewed in order to ascertain if they refer to any medical condition or asserted medical condition of Mr Fahey's children or wife, "irrespective of whether such a document directly states their name."
6. Nonetheless, the Tribunal considers that there are no reasonable grounds for believing that the agency would make a different decision on the request in para [13] of the Current Application. This is because of the inevitable resources involved in searching and reviewing information based on the vague terms of the request. The Tribunal considers that Cianfrano applies, where the Tribunal found that that a relevant factor in a decision on whether dealing with the application would require an unreasonable and substantial diversion of the agency's resource includes

...do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' ...

1. The Tribunal notes for completeness that a preliminary view was provided advising the Applicant that dealing with the Second Application would require an unreasonable and substantial diversion of the Respondent's resources. This was based on the searches conducted and the estimate of time required (in excess of 80 hours and possibly in the range of 170 hours or more).
2. In accordance with s 60(4) of the GIPA Act, before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The Respondent gave the Applicant a reasonable opportunity to amend but the Applicant did not do so.
3. In addition, as recently as 7 August 2025, the Respondent invited the Applicant to provide more information regarding the specific documents sought so that the Respondent could consider further searches to confirm whether any documents are in fact held by the Respondent that have not already been released to the Applicant. That the Applicant did not do so indicates that the Respondent would continue to be limited to searching on the vague terms set out at para [13] of the Current Application.
4. The Tribunal has also taken into account, the considerations under s 60(3B) of the GIPA Act. That provision requires the Respondent to consider whether the impact on resources on balance, outweighs the public interest in favour of disclosing government information and the demonstrable importance of the information to the Applicant, including whether the information is personal information that relates to the Applicant or could assist him in exercising any rights under any Act or law.
5. The Applicant contends that the information sought would provide information about complaints, potential issues relating to his property and matters relating to the Applicant's employment. Beyond that, the Tribunal does not have material that goes to the importance of his request for any medical condition or asserted medical condition of Mr Fahey's children or wife, "irrespective of whether such a document directly states their name."
6. Without anything further, on balance the Tribunal considers that these factors would not alter the Respondent's decision to refuse the Application.
7. In summary:

(1) the Tribunal is satisfied that there are no reasonable grounds for believing the Respondent would make a different decision on the request for information at paras [3], [4], [6] and [13] of the Current Application

(2) the Tribunal is not satisfied that there are no reasonable grounds for believing the Respondent would make a different decision on the request for information at para [9] of the Current Application.

Whether the discretion in s 60(1)(b) of the GIPA Act ought to be exercised

1. Having found that s 60(1) is made out in relation to paras [3], [4], [6] and [13] of the Current Application, there remains whether the discretion to refuse to deal with those parts ought to be exercised.
2. Both parties acknowledge that discretion to refuse an application under s 60(1)(b) of the GIPA Act must be exercised consistently with the Act's objectives.
3. The Applicant submits that the exercise of discretion would be contrary to the objects and purposes of the GIPA Act on the basis that refusing to consider an application because an unrepresented Applicant had previously made an overly wide request, then withdrawn that request to make a narrowed one, flies in the face of the objects and purposes of the Act.
4. However, a person who makes a "catch all" application is not thereby prevented from making future applications. The terms of each application must be considered in each case to determine whether they are in fact for the same or substantially the same information. In addition, the decision maker must be satisfied in each case that there are no reasonable grounds for believing that the agency would make a different decision on the application.
5. In the exercise of discretion, contrary to the Applicant's submission, the Tribunal is not entitled to take into account the personal factors of the application under s 55(2) of the GIPA Act, as that provision does not arise in these proceedings. However the Tribunal accepts it may generally take into account that the importance of the information to the Application personally, as factors weighing in favour of not exercising the discretion against the Applicant.
6. While the information sought at paras [3], [4], [6] and [13] may be of importance to the Applicant, the Respondent has already processed two previous applications and provided access to documents.
7. Having regard to Singh, the power to refuse to deal with an application is a powerful one, and should only be used as a last resort after making every attempt to assist an applicant to narrow their request. In this case, the Respondent made multiple attempts to have the request narrowed.
8. The GIPA Act recognises that the right to access information is not absolute, and is modified to the extent that agencies are not required to process multiple applications for the same or substantially the same information, or to process applications which require unreasonable and substantial diversion of resources.
9. The Tribunal considers that the discretion ought to be exercised to refuse to deal with paras [3], [4], [6] and [13] of the Current Application. The Tribunal has found that there are no reasonable grounds for believing that the Respondent would make a different decision on the Current Application. In all of the circumstances of the current proceedings, including that the Tribunal has found that there are no reasonable grounds for considering the Respondent would make a different decision, it would be ineffective to require the Respondent to deal with that part of the Current Application. To do so would be contrary to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

1. For the reasons set out above the Tribunal finds that the correct and preferable decision is to affirm the decision in part and to set aside in part.
2. Section 60(1)(b) of the GIPA Act applies to paras [3], [4], [6] and [13] of the Current Application. The Tribunal exercises its discretion to affirm the Respondent's decision to refuse to deal with that part of the Applicant's Current Application.
3. Section 60(1)(b) of the GIPA Act does not apply to paras [7], [8] [9] and [10] of the Current Application. The Tribunal sets aside that part to the Respondent's decision refusing to deal with that part of the Applicant's Current Application. The Respondent must deal with paras [7], [8] [9] and [10] of the Current Application.

(1) The decision under review to refuse to deal with the requests for information contained in paras [3], [4], [6] and [13] of the Applicant's Current Application is affirmed.

(2) The decision under review to refuse to deal with the requests for information contained in paras [7], [8] [9] and [10] of the Current Application is set aside.

(3) The Respondent must deal with the requests for information contained in paras [7], [8] [9] and [10] of the Current Application within 28 days of the date of this decision.

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.

25 November 2025 - Redaction of medical identifiers from paragraph [89] and [94].