FHG v Cumberland City Council; Cumberland City Council v FHG

REASONS FOR DECISION

1. These two appeals are from a decision of the Tribunal, published on 22 December 2021, determining an application for administrative review of a decision of the Council in respect of an application for information lodged by FHG pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The application for information comprised five separate requests for information. The background to FHG's application and the details of the specific requests are set out in paragraphs [2] - [16] of the Tribunal's decision. It is not necessary to repeat them.
2. In circumstances which were not fully explained to the Appeal Panel, a revised version of the decision was published on 18 February 2022. The revised version of the decision (with subsequent further amendments and confidential paragraphs redacted) is published on Caselaw (FHG v Cumberland City Council [2021] NSWCATAD 379). One change between the original decision and the revised version was the re-numbering of some paragraphs. References in these reasons to paragraphs of the decision are to the revised version as published on Caselaw.
3. The Tribunal determined in respect of requests numbered 1, 2 and 3: that FHG be provided with a number of documents; that access to documents identified as documents 1 and 6 be refused; and that the balance of requests 1, 2 and 3 be remitted to the Council for reconsideration in accordance with the Tribunal's reasons. The Tribunal directed that that reconsideration "shall include further searches and consideration of documents responsive to these requests, notably those which the Tribunal has indicated there are reasonable grounds for believing might exist."
4. Request 4 was also remitted for reconsideration in accordance with the Tribunal's reasons.
5. The Tribunal set aside the Council's decision with respect to access request 5 but determined that information responsive to that request was already available to FHG.
6. The Tribunal also made orders prohibiting the disclosure of FHG's name pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW). The Appeal Panel made similar orders at the commencement of the hearing of the appeal, and we will refer to the applicant in the first instance proceedings as FHG.

Extension of Time

1. FHG lodged his Notice of Appeal on 28 March 2022. The Council lodged its Notice of Appeal on 4 May 2022. Both Notices of Appeal were lodged after the time fixed by the Civil and Administrative Tribunal Rules 2014 (NSW) for the filing of an internal appeal.
2. The explanation proffered on both sides for the delay in filing their respective notices of appeal was that there was confusion and uncertainty arising from the fact that the Tribunal issued revised reasons for decision on 18 February 2022 and that the Council had raised with the Tribunal concerns regarding its correspondence sent to the Tribunal after the hearing.
3. The Council submitted: "Uncertainties with the judgment and intermingling issues with other proceedings led to multiple communications between the parties and the Tribunal. On 30 March 2022, in response to party correspondence regarding Proceedings Nos. 2021/69505 and 2021/356513, the parties were invited to advise the Tribunal if they wished to appeal the decision in Proceedings No. 2021/69505. The applicant in the original proceedings has since filed an appeal in respect of the decision on documents 1 and 6 (Proceedings No. 2022/88146). At the directions hearing for that appeal, the Council foreshadowed its own appeal and directions were made for both the applicant's appeal and the Council's foreshadowed appeal. The appellant says that the grounds of the appeal addressed at part 5C of this Notice of Appeal and the peculiar and extenuating circumstances relating to this appeal including post hearing correspondence abandoning aspects certain Council's submissions, the judgment omitting to address post hearing correspondence and overriding matters of procedural fairness warrant and justify an extension of time."
4. Although the explanations of both sides for the delay in filing their notices of appeal were not satisfactory - there should have been no confusion regarding the date of publication of the decision (we note that the time for filing an appeal had already expired by the time the revised reasons were published) and the Council's attempt to correspond with the Tribunal after the delivery of the decision was not appropriate - the parties did not ultimately oppose the grant of an extension of time for the lodgement of each appeal and we will extend time for the lodgement of both appeals.

FHG's late application to rely upon further evidence

1. We note that on 8 March 2023, while this decision was reserved, FHG wrote to the Appeal Panel stating that "new information has only just now come to my attention".
2. The Appeal Panel had not granted FHG leave to file that document and it should not have been filed.
3. In Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [57] - [61], the Court of Appeal, Allsop P, Giles JA and Tobias AJA, stated: "[57] … It is useful … to remind the parties (and through the publication of these reasons the profession and public generally) of the correct position that has been stated, over and over again, by the courts. The High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without, or outside, any leave given: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258; In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 at [19]-[23] and [53]-[54]; Dwyer v Commonwealth of Australia (1995) 31 ATR 48; Kirwan v Cresvale Far East Ltd (In Liq) [2002] NSWCA 395; (2003) 44 ACSR 21 at [340]; Chapman v Caska [2005] NSWCA 113 at [19]; Willis v Health Communications Network Ltd [2007] NSWCA 313; (2007) 167 IR 425 at [35]; Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [62]-[73]; Jackson v Conway [2000] FCA 1530; R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216 at [204]; and R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at [2]-[4]. [58] Notwithstanding these clear statements the practice still occurs. That the practice still occurs notwithstanding the regular statements of the courts that it should not is no reason not to continue to state clearly to the profession and the public the correct position. [59] Not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice. The practice is not legitimated by sending the material and in that material seeking leave. The proper course (unless prior leave, statute or court rule permits otherwise) is for the proceedings to be relisted so that an application to enlarge the record can be made and determined in open court: see In the matter of an application by the Chief Commissioner of Police (Vic) at [54] per Kirby J. [60] The appeal is not an occasion merely for a discussion of the issues so that the parties can go away to marshall and develop their ideas further, bearing in mind the discussion with the court. It is the time and place when and where argument, and sometimes decision, occurs. Once the appeal is reserved, the parties' rights to argument and to be heard have been exhausted. [61] The consequence of this is not only that sending submissions to the court is wrong, but also the court may (and generally will) ignore what has been sent."
4. We have not had regard to the letter sent to the Appeal Panel by FHG on 8 March 2023.
5. To the extent that the letter can be construed as an application to re-open the proceedings, we are not persuaded that it is appropriate to do so. We will explain our decision in this regard later in these reasons (see [97] - [99] below).

The nature and scope of internal appeals

1. By virtue of s 80(2) of the NCAT Act, internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The principles applicable to the grant of leave to appeal were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84].
4. At [84] the Appeal Panel held: (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: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

FHG's Appeal

1. At the commencement of the appeal hearing, the Appeal Panel granted FHG leave to amend his grounds of appeal. As amended at the hearing of the appeal, FHG's appeal grounds were: "Appeal Ground 1: in respect to Documents 1, 2, 3, and 4, the Tribunal failed to refer or consider the operation and effect of section 29(1A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Appeal Ground 2: in respect to the redacted version of Document 1, the Tribunal reached a decision that was so unreasonable that no reasonable decision-maker would make it. Appeal Ground 3: in respect to Document 6, the Tribunal erred by not considering the form of access which could be afforded; alternatively by not referring or considering the operation of section 75 of the Government Information (Public Access) Act 2009."
2. Section 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (CYPCP Act) provides: 29 Protection of persons who make reports or provide certain information (1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons - (a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) no liability for defamation is incurred because of the report, and (c) the making of the report does not constitute a ground for civil or criminal liability against the person making the report, and (d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings) - (i) care proceedings in the Children's Court, (ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth, (iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal, (iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013, (v) proceedings under the Coroners Act 2009, and (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with - (i) the consent of the person who made the report, or (ii) the leave of a court or other body before which proceedings relating to the report are conducted, and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person. (1A) A certificate purporting to be signed by the Secretary that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report. (2) A court or other body cannot grant leave under subsection (1)(f)(ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice. (3) A court or other body that grants leave under subsection (1)(f)(ii) - (a) must state the reasons why leave is granted, and (b) must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed. (3A) The protections given by this section to a person who makes a report apply to - (a) any person who provided information on the basis of which the report was made, in good faith, to the person, and (b) any person who otherwise was in good faith concerned in making such a report or causing such a report to be made, in the same way as they apply in respect of the person who actually made the report. (4) Subsection (1)(f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report. (4A) Subsection (1)(f) also does not prevent the disclosure to a law enforcement agency of the identity of the person who made the report (the reporter), or information from which the identity of the reporter could be deduced, if - (a) the identity of the reporter, or the information, is disclosed in connection with the investigation of a serious offence or reportable conduct alleged to have been committed or done against a child or young person, and (b) the disclosure is necessary for the purposes of safeguarding or promoting the safety, welfare and well-being of any child or young person (whether or not the victim of the alleged offence). (4B) However, subsection (4A) does not apply unless - (a) a senior officer of the law enforcement agency to which the disclosure is made has, before the disclosure is made, certified in writing that obtaining the reporter's consent would prejudice the investigation of the serious offence or reportable conduct concerned, or (b) the person or body that makes the disclosure has, before making the disclosure, certified in writing that it is impractical to obtain the consent of the reporter. (4C) The person or body that discloses to a law enforcement agency the identity of the reporter, or the information from which the identity of the reporter could be deduced, is required to notify the reporter of the disclosure unless - (a) it is not reasonably practicable in the circumstances to do so, or (b) the law enforcement agency to which the disclosure is made has advised the person or body that notifying the reporter would prejudice the investigation of the serious offence or reportable conduct concerned. (5) (Repealed) (6) In this section - court includes a court exercising federal jurisdiction. law enforcement agency means any of the following - (a) the NSW Police Force, (b) the Australian Federal Police, (c) the police force of another State or Territory, (d) a person or body prescribed by the regulations for the purposes of this definition. report includes a report under sections 24, 25, 27, 120, 121 and 122. reportable conduct means - (a) reportable conduct within the meaning of Part 4 of the Children's Guardian Act 2019 or conduct referred to in clause 2 of Schedule 1 to the Child Protection (Working with Children) Act 2012, or (b) conduct occurring elsewhere than in New South Wales that, if occurring in New South Wales, would be reportable conduct under paragraph (a). senior officer means - (a) in relation to the NSW Police Force - a commissioned police officer within the meaning of the Police Act 1990, or (b) in relation to any other law enforcement agency - a person (or class of persons) prescribed by the regulations as a senior officer of the agency. serious offence means - (a) a serious indictable offence within the meaning of the Crimes Act 1900, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence under paragraph (a). Note - It is an offence under section 254 for a person to disclose any information obtained in connection with the administration or execution of this Act, except in certain circumstances. The maximum penalty is 10 penalty units (currently $1,100) or imprisonment for up to 12 months, or both.
3. Section 75 of the GIPA Act provides: 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following - (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

The Council's Appeal

1. The Council's appeal related to four documents, referred to as documents 2, 3, 4 and 18.
2. Before the Tribunal, the Council had initially taken the view that each of those documents were reports to which s 29 of the CYPCP Act applied. The Council provided a copy of document 18 to the Tribunal but did not "tender it in evidence". The Tribunal was not provided with copies of documents 2, 3 and 4.
3. After the hearing before the Tribunal, but before the Tribunal published its decision, the Council concluded that its view that documents 2, 3, 4 and 18 were reports to which s 29 applied was incorrect and wrote to the Tribunal to withdraw that submission. That communication did not come to the Tribunal's attention before it published its decision - which accepted (notwithstanding that the Tribunal had not seen documents 2, 3 and 4) - that documents 2, 3 and 4 were reports to which s 29 applied and that, pursuant to cl 10 of sch 1 to the GIPA Act, it was to be conclusively presumed that there is an overriding public interest against the disclosure of information contained in those documents.
4. At the commencement of the hearing the parties agreed that, in so far as the appeals related to the documents identified as documents 2, 3 and 4, the appeals would be resolved by the Appeal Panel making an order that document 3 should be released to FHG and documents 2 and 4 should be released with redactions requested by the Office of the Children's Guardian. Copies of documents 2 and 4 with those redactions were included in the Council's Bundle of Evidence filed for the appeals at tabs 23 and 24.
5. We will make orders to that effect, and it is, accordingly, not necessary to further consider those documents.
6. The Council maintains its appeal in relation to document 18. To understand the Council's appeal in relation to document 18, further background is necessary.
7. Document 18 was a 95 page report from Wise Investigative Services into allegations concerning misconduct by FHG. There were 1610 pages of attachments to the document, which were not provided to the Tribunal. The Tribunal described aspects of the document in its decision at [146] and, at [147], noted that: "Council has refused access to the entire report. I am unable to see how this decision was reasonably reached."
8. The Tribunal concluded: "152 On balancing the competing public interests, I have concluded that document 18 should be released subject to redactions of any identifying information relating to informants and children involved. 153 It will be necessary to again remit this part of the decision to Council to carry out the necessary redactions. 154 At the same time FHG's access application insofar as it relates to any fresh information located, … and the documents that should have been annexed to document 18, should be considered."
9. The Tribunal made no specific orders concerning document 18 but the Council submits that the direction that the Council's reconsideration of FHG's request is required to be conducted "in accordance with these reasons" involves an error of law or otherwise warrants the grant of leave to appeal.
10. The Council submits that it would be "procedurally unjust" to constrain the Council's reconsideration of the request by reasons which were delivered in circumstances where the Council had not understood that the Tribunal regarded document 18 as being part of the material which it was entitled to consider when making its decision. The Council's grounds of appeal stated: "Reliance on reasons in the judgment is procedurally unjust as the document was not in evidence so as to empower the Tribunal to give reasons and as the Tribunal did not have the benefit of full submissions from the parties on whether the document should be released in full, in part or not at all."
11. The Council maintained on the appeal that the whole of document 18, including its attachments, was "excluded information" of the Office of the Children's Guardian, so that there is a conclusive overriding public interest against disclosure of document 18 pursuant to clause 6 of Schedule 1 to the GIPA Act unless the Office of the Children's Guardian consented to the release of the document or any part of it.
12. Any issues concerning documents 2, 3 and 4 having been resolved by the parties' agreement on the appropriate orders, the appeals are concerned with three documents, those identified as documents 1, 6 and 18. FHG's first two grounds of appeal relate to document 1, his third ground of appeal relates to document 6, and the Council's appeal relates to document 18. It is convenient to address the grounds of appeal by taking each document in turn.

FHG's grounds 1 and 2 - document 1.

1. The Tribunal dealt with document 1 at [114] as follows: "Next there is document 1, the letter from FACS (as it then was) to Council dated 18 March 2017. As it is claimed that this document is the subject of a conclusive overriding public interest against disclosure under cl 10 of Sch 2, it has not been disclosed to me. There is a letter from the Department of Communities and Justice, Legal, - the successor of FACS - written by a Senior Solicitor and dated 9 July 2021 objecting to the release of document 1 on the ground that release breach s 29(1)(f) of Children and Young Persons (Care and Protection) Act. Council maintains the same position. Given the nature of that letter and its central role to the investigations of FHG's conduct by Council, I think it probable that the letter contains information of the kind specified in s 29(1)(f). I am therefore satisfied that there is a conclusive presumption of an overriding public interest against disclosure with respect to document 1."
2. The Tribunal had earlier dealt with the submission by FHG that, by reason of s 105 of the GIPA Act, it was incumbent upon the Council to produce evidence that the information reported in a document to which it is claimed that s 29 applied was so reported in good faith.
3. Section 105 provides: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. (4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.
4. The Tribunal held, at [111]: "Section 105 of the GIPA Act places the burden of establishing that a decision is justified lies on the agency. To read that as extending to require an agency to negative every possible attack upon its decision making, to the extent of breaching legislated secrecy requirements, is to ask the impossible. Here for example, there is no evidence before the Tribunal as to who made the reports or their motivations for doing so. There is material that establishes that there were allegations made about FHG's conduct towards children, which were taken seriously by Council. FHG speculates that they might be fellow workers or supervisors, who he was in dispute with, and that their motivation was to tarnish his name."
5. FHG submitted that no evidentiary certificate, as permitted by s 29(1A), had been provided and that, accordingly: "95 … Council is not entitled to any prima facie evidence presumption nor can it point to the difficulties in establishing formal matters such as that the report was made by the maker in good faith. Instead, it is left to deal with the difficulties and all other uncertainties from having to establish such matters. Sec 105 of the GIPA Act places the burden of establishing that a decision is justified squarely on the agency."
6. FHG further submitted that, as the document had not been provided to the Tribunal: "109 … No evidence was before the Senior Member proving that the alleged report which was made to FACS was made in good faith or otherwise entitled to sec 29 protections. Further, there was limited evidence before the Tribunal that the letter from FACS to Council somehow contained information which either disclosed the complainant or the contents of the report."
7. FHG submitted that the letter from a solicitor employed by the Department of Communities and Justice was not sufficient evidence and that "the opinion of a senior lawyer is hardly an opinion, much less the requisite certificate 'signed by the Secretary'".
8. FHG submitted that: "there was simply no basis for the Senior Member to conclude as he did that 'I think it is probable letter contains information of the kind specified in s 29(1)(f).'"
9. FHG further submitted that there was evidence casting doubt upon the proposition that any allegations made against FHG were made in good faith. He submitted that: "The fact the FACS letter dated 18 March 2017 was made some 7 days after FHG made a bullying complaint against fellow two workers …; no complaints had been received by FACS at all prior to April 2017 and such complaint was anonymous is sufficient to cast a real question over the nature of the reports ultimately made and whether they meet the 'good faith' requirement."
10. The Council submitted: "18. Section 29(1A) provides a rebuttable means by which it can be established that a document relating to a child or young person is a report to which s.29 applies. The appellant's approach is flawed because: 18.1 Section 29(1A) provides an avenue by which the application of s.29 may be established. The Act does not say that it is the exclusive means by which the application of s.29 may be established and nor should it be read narrowly in that manner. 18.2 In the circumstances of this case, even if a s.29(1A) certificate was sought, it could not have properly been issued because document 1 is not 'a report [i.e. a ROSH (risk of significant harm) report] to which this section applies'. Rather, document 1 is a document that gives evidence of the contents of a report [i.e. a ROSH report] to which s.29 applies. 18.3 The protections afforded by s.29 are not limited to a report to which s.29 applies, in this case a ROSH report, but rather apply more broadly. See s.29(1)(d) which applies to evidence of the contents of the ROSH report and s.29(1)(e) which prevent a person being compelled to disclose or given evidence of the contents of the ROSH report." … 20.The Council rejects the appellant's position. Firstly, as already submitted there was no basis for a s.29 certificate to be properly issued. In terms of Council proving good faith, the difficulties confronted by it were acutely and accurately observed by the Senior Member, namely that: Reading s.105 of the GIPA Act to require an agency to negative every possible attack upon its decision making, to the extent of breaching legislated secrecy provisions, is to ask the impossible. The Council, as is the Tribunal, is prohibited from seeking to identify the report makers."
11. The Council submitted that FHG's submission - that there was a basis to conclude that the report or reports, the contents of which would be disclosed by the release of document 1, were not made in good faith - was "nothing more than speculation" based on flawed reasoning and "a series of personal grievances".
12. The Council further noted that, contrary to the statement in the Tribunal's decision, a redacted version of document 1 had been provided to the Tribunal as Confidential Exhibit R6.

Document 1 - Consideration

1. We do not accept FHG's submissions regarding s 29(1A) of the Children and Young Persons (Care and Protection) Act. In our view the provision of a certificate pursuant to that sub-section is not an exclusive means of proof that a document contains information subject to the provisions of s 29.
2. Sub-section (1A) was inserted into s 29 of the CYPCP Act by cl 3 of Sch 1 to the Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2000 (NSW).
3. The objective of the amendment, as expressed by the Minister for Community Services in the Second Reading Speech was: "courts and tribunals are increasingly asking my department to justify whether a disclosure is in fact a report of abuse and so liable to protection. To justify this decision, departmental officers are being required by these courts and tribunals to disclose details of the report, thereby defeating the entire purpose of the provision. This amendment proposes to introduce an efficient way of avoiding this difficulty without removing the opportunity of someone to challenge a departmental decision as to what is a report.": NSW Parliament, Hansard, Legislative Assembly, 21 June 2000 p 7373 (see also Legislative Council, 11 October 2000 p 8954.)
4. The statute does not state that the provision of a certificate is the only means by which the fact that a document is a report to which s 29 applies may be established. The second reading speech suggests that sub-s (1A) was intended to provide "an efficient way" of avoiding any need to disclose details of the report in order to prove that it is a report to which s 29 applies. We see no reason to construe the enactment of s 29(1A) as impliedly excluding other means of establishing that a document is a document to which s 29 applies.
5. As the Council submitted, there will be cases where a certificate is neither available nor appropriate. The prohibition on the admission of evidence extends not only to a report but also to evidence of the contents of a report and to information from which the identity of the person who made the report could be deduced. The effect of s 14(1) and cl 10 of sch 1 to the GIPA Act is that the information contained in a report to which s 29 applies cannot be disclosed in response to a request under the GIPA Act. We do not consider that it could have been intended that any agency, asked to disclose information to which s 29 might apply, must obtain a certificate from the Secretary of the Department of Communities and Justice in respect of the report from which the information originates before it can conclude that the information to which access is sought is a report to which s 29 applies or includes information contained in a report to which s 29 applies. Nor do we consider that the Tribunal, conducting a review of a decision of the agency, should be in a different position.
6. In Siu v Department of Family and Community Services [2016] NSWCATAD 115 at [27], the Tribunal stated: "[A] s 29(1A) certificate is proof that the document is a report to which s 29 applies in the absence of evidence to the contrary … The Tribunal is entitled to look into the contents of the documents to which a s 29(1A) certificate applies in order to determine whether s 29 in fact applies to the information in the documents: Adams v Department of Family and Community Services [2016] NSWCATAD 46; Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13 at [41]-[43]."
7. In that case the Tribunal examined the document in respect of which a certificate had been issued and determined that the document itself was "evidence to the contrary" which established that the document was not a "report" to which s 29 applied.
8. In our view it will generally be appropriate, whether or not a s 29(1A) certificate has been provided, for the Tribunal to inspect the document said to be a report, or to include information contained in a report, to which s 29 applies and determine whether that proposition is established.
9. We do not agree with the proposition upon which the Council appears to have proceeded, that s 29(1)(d) of the CYPCP Act prohibits the Tribunal from receiving and considering, on a confidential basis, any document to which s 29 is said to apply.
10. In determining an application for administrative review of a decision of an agency concerning a request under the GIPA Act, the Tribunal is required by s 63 of the Administrative Decisions Review Act 1997 (NSW) to reach the correct and preferable decision. It is frequently said that the Tribunal "stands in the shoes of" the agency (see, for example: ERJ v South Eastern Sydney Local Health District [2022] NSWCATAD 260 at [86]; EQZ v Kari Ltd [2022] NSWCATAD 221 at [7] and [114]; Walker v Northern Beaches Council [2021] NSWCATAD 251 at [89]; Tisdale v Cumberland City Council [2021] NSWCATAD 132 at [39] and [66]) and "remakes the decision, as if it were the administrator" (Walker v Northern Beaches Council; Tisdale v Cumberland City Council).
11. To fulfil its obligation pursuant to s 63 on an application for review of a decision to refuse to disclose information pursuant to the GIPA Act, the Tribunal would ordinarily need to have access to the documents the subject of dispute. The Tribunal is obliged by s 107 of the GIPA Act to ensure that information for which there is an overriding public interest against disclosure is not disclosed, in the reasons for decision or otherwise, and is required to "receive evidence and hear argument" in the absence of the public, the applicant and the applicant's representative if the Tribunal is of the opinion that it is necessary to do so to prevent the disclosure of information "for which there is, or for which there could be or is claimed to be" an overriding public interest against disclosure.
12. In our view the provision to the Tribunal of the documents, the subject of an application to the Tribunal for administrative review of a decision that the documents should not be disclosed (in response to a request for information pursuant to the GIPA Act), does not involve the admission of those documents as evidence in the proceedings. The documents are the subject matter of the application. Without access to the documents the Tribunal cannot be placed "in the shoes of" the agency and cannot remake the decision under review "as if it were the administrator". Section 29 of the CYPCP Act should not be construed so as to preclude the provision to the Tribunal of documents to which it is claimed that s 29 applies, for the purposes of an application for administrative review of an agency's decision that the documents should not be disclosed.
13. It is commonplace for a Court or Tribunal, where a question arises whether a document is admissible in evidence, to receive and inspect the document, to determine whether the document is admissible. See State of New South Wales v Jackson [2007] NSWCA 279 at [24].
14. As FHG's written submissions pointed out, the "Access to government information" page on the Tribunal's website includes the statement, under the heading "Step 5: Attend a case conference": "In addition the agency will give to the Tribunal the documents under review on a confidential basis: (a) documents considered to be subject to a conclusive overriding public interest against disclosure to be sent to the Tribunal in a sealed envelope marked 'conclusive presumption documents' (b) documents considered to be subject to a non-conclusive overriding public interest against disclosure to be sent to the Tribunal in a sealed envelope marked 'non-disclosure documents'."
15. That statement does not constitute a rule binding on the parties or the Tribunal but does indicate the usual practice in proceedings under the GIPA Act and the Tribunal's expectations of the parties.
16. For the foregoing reasons we do not consider that the Tribunal erred in failing to refer to or consider the operation and effect of s 29(1A) of the CYPCP Act.
17. However, as noted above, the Council had provided a redacted copy of document 1 to the Tribunal. The redacted document was identified at the hearing before the Tribunal as "Confidential Exhibit R6". It does not appear that an unredacted copy was provided to the Tribunal.
18. In our view the Tribunal erred in not considering whether "Confidential Exhibit R6" was a document to which cl 10 of sch 1 to the GIPA Act applied, that is whether the document was a report to which s 29 of the CYPCP Act applied or included information contained in a report to which s 29 applied. "Report" is defined in s 3 and in s 29(6) of the CYPCP Act. Relevantly for these proceedings, such a report would have been a report made under s 24 or s 27 of the CYPCP Act, that is a report to the Secretary of the Department of Family and Community Services (as it was at the relevant time) by a person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm.
19. We have examined Confidential Exhibit R6.
20. It is clear that Confidential Exhibit R6 is not a report to which s 29 applies. It is a letter from the Department of Family and Community Services.
21. Before the Tribunal, the Council relied on a letter from a Senior Solicitor at the Department of Communities and Justice dated 9 July 2021, which objected to the release of document 1 on the ground that its release would breach s 29(1)(f) of the CYPCP Act.
22. We have set out above (at [35]) paragraph [114] of the Tribunal's decision. The Tribunal concluded: "Given the nature of that letter and its central role to the investigations of FHG's conduct by Council, I think it probable that the letter contains information of the kind specified in s 29(1)(f). I am therefore satisfied that there is a conclusive presumption of an overriding public interest against disclosure with respect to document 1."
23. Section 29(1)(f) prohibits the disclosure of the identity of a person who made a report to which s 29 applies. We note that the identity of that person may not be information contained in the report. A report made anonymously may not contain any information about the identity of the person who made the report. The conclusive presumption in cl 10 of sch 1 to the GIPA Act is limited to "information contained in a report". The identity of an informant who does not identify themselves in their report may be the subject of other public interest considerations against disclosure (specifically clause 2(a) of the Table to s 14 of the GIPA Act), but it is not protected by cl 10 of sch 1.
24. On our review of Confidential Exhibit R6, that is the redacted version of document 1, we are satisfied that there is no information in the parts of the letter which have not been redacted which could identify any person who made a report to which s 29 applies.
25. It is not apparent to us on the face of Confidential Exhibit R6 that it contains any information contained in any report to which s 29 applies. The document identifies that a report has been received, but does not appear to disclose any information contained in that report. For that reason, we consider that the Tribunal erred in not directing the disclosure of the redacted version of document 1.
26. The Tribunal may have made an error of law in not taking into account relevant material, being Confidential Exhibit R6, or by applying the wrong test, that is whether the letter contained information of the kind specified in s 29(1)(f) rather than whether it disclosed information contained in a report to which s 29 applies. FHG submitted that the decision not to direct disclosure of the redacted version of document 1 was unreasonable in the sense that no reasonable decision maker would make it. We do not consider it is necessary to go so far and we do not do so.
27. Were we incorrect in concluding that the failure to order disclosure of the redacted version of document 1 involved a question of law, we would nevertheless grant FHG leave to appeal to that extent, as the finding that "the letter contains information of the kind specified in s 29(1)(f)" was, insofar as it applies to the redacted version of the document, reached without consideration of the document and is clearly incorrect.
28. In a statement dated 9 August 2021 tendered in the Tribunal, Ms Carol Karaki, an employee of the Council with responsibility for determining applications under the GIPA Act, stated that the Council did not oppose the disclosure of the redacted version of document 1. We will order that the redacted version of document 1 be disclosed to FHG.
29. As defined by his amended grounds of appeal, FHG's appeal in respect of the unredacted version of document 1 was limited to the asserted failure of the Tribunal to refer to or consider the operation and effect of s 29(1A). We have concluded that the Tribunal did not err in that respect.
30. However, FHG's submissions on the appeal also maintained that the Council had not provided evidence to meet its obligation under s 105 of the GIPA Act to satisfy the Tribunal that document 1 included information contained in a report to which s 29 of the CYPCP Act applied. The redacted version of the document states that the Defendant had received a "risk of harm report alleging that a class of children … are at risk of harm." The letter continues "The details of the information received are as follows". Except to the extent that the following paragraphs refer to FHG, they have been redacted in Confidential Exhibit R6, the redacted version of document 1. The statement that "the details of the information received are as follows" is a clear indication that the letter includes information contained in a report made pursuant to s 24 or s 27 of the CYPCP Act.
31. FHG maintained that the Council had not established that the report referred to in the letter was submitted in good faith.
32. We agree with the Tribunal that s 105 of the GIPA Act does not require an agency to "negative every possible attack upon its decision making".
33. There is nothing in the redacted version of document 1 to suggest the report to which it refers was not made in good faith. Nor does the material relied upon by FHG amount to more than speculation or suspicion.
34. FHG submitted that, unless there was an obligation on an agency which relies upon cl 10 of sch 1 to the GIPA Act to prove that the relevant report was made in good faith, the requirement of good faith would be meaningless.
35. The answer to that submission is that the requirement of good faith has a practical significance in the operation of sub-paragraphs (a), (b) and (c) of s 29(1), which provide protection to the maker of the report from civil and criminal consequences. We do not consider that an agency (or the Tribunal), in considering whether a conclusive presumption arises in respect of a report, or a document which includes information contained in a report, made under ss 24 or 27 of the CYPCP Act, is required to seek or obtain positive evidence that the report was made in good faith. The content of a report, or the circumstances surrounding the making of the report may raise a question whether the report was not made in good faith. In those circumstances further investigation may be necessary. But a need for further investigation is not triggered by mere speculation or suspicion.
36. Although we consider it would have been preferable for the Tribunal to have received and considered the unredacted version of document 1 (on a confidential basis), we do not consider that FHG has established either of the grounds upon which he challenged the decision to refuse disclosure of the parts of the document 1 which have been redacted in Confidential Exhibit R6. Accordingly, FHG's appeal in respect of the unredacted version of document 1 must be dismissed.

FHG's ground 3 - document 6

1. The Tribunal addressed document 6 at paragraphs [122] - [126] of its decision. The critical findings were at [122] and [125]: 122 Document 6 is an anonymous, handwritten note that makes specific allegations about FHG's conduct towards named children. The author's handwriting is distinct and will be recognisable to anyone who knows it. Disclosure will likely reveal the identity of the informant to anyone who recognises the handwriting. In this regard, it is important to remember that disclosure of information under the GIPA Act is unconditional: s 73. It has been described as disclosure to the world. In addition, it is clear that disclosure would reveal the names of children who were alleged to be victims of misconduct. The disclosure of such allegations, where their identities are known would not be in their best interest. It would publicly out them as potential victims of abuse. In my view, these factors against disclosure deserve significant weight. … 125 If document 6 were not in an individual's recognisable handwriting I would take the view that it should be released with any identifying information relating to children redacted. Because it is in identifiable handwriting, I have reached the conclusion that the considerations against disclosure outweigh those in favour.
2. FHG's amended grounds of appeal in relation to document 6 were that the Tribunal failed to consider the form of access which could be provided and, alternatively, that the Tribunal failed to refer to or consider the operation of s 75 of the GIPA Act.
3. Effectively, FHG submits that the Tribunal should have directed the Council to provide a typewritten version of document 6 (with any identifying information relating to children redacted).
4. Section 75 of the GIPA Act, which we have set out above, would have permitted the Council, had it considered it appropriate, to have provided access to the information in document 6 by creating a new document. FHG submits that the Tribunal erred by failing to direct the Council to do so.
5. The Tribunal did not address the effect of s 75.
6. Mr McFadzean, who appeared for the Council, did not submit that the Tribunal, seeking to identify the preferable decision in light of the public interest in disclosure of government information, could not have concluded that the Council should create a fresh document, in the exercise of its power to do so under s 75.
7. Mr McFadzean submitted that the Tribunal was not obliged to do so, and it could not be said that the Tribunal had erred in the exercise of its discretion.
8. However, if the Tribunal had been asked to direct the Council to create a fresh document, it did not explain why it did not.
9. As the Appeal Panel noted in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 at [9(2)]: "… a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]- [25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 at [34]."
10. At the hearing of the appeal, the parties could not agree whether FHG had requested the Tribunal to order the Council to create a typed version of document 6. Although the Council had provided to the Appeal Panel a recording of the hearing at first instance, neither party had provided a transcript, notwithstanding that the Appeal Panel had directed on 13 April 2022 that the parties provide a typed transcript of the relevant parts of the hearing "if … what happened at the hearing is being relied upon."
11. Nevertheless, the Appeal Panel directed at the conclusion of the hearing of the appeals: "2 The parties have leave to file with the Appeal Panel and serve on the other party by 22 December 2022 a transcript of any part of the hearing at first instance which may be relevant to the application of s 75 of the Government Information (Public Access) Act 2009 (NSW)."
12. FHG sought an extension of time to comply with that order and the time for FHG to comply was extended to 12 January 2023. Nevertheless, on 17 January 2023, FHG wrote to the Tribunal and the Council "provid[ing] notice that I do not intend on providing any part of the ~10hr transcript from the initial hearings in these proceedings because the task is too onerous in my current limited capacity".
13. In those circumstances, we proceed on the basis that FHG did not raise before the Tribunal any explicit request that the Tribunal direct the Council to provide a typewritten version of document 6.
14. Even if the Tribunal had a discretion to direct the Council to create a typewritten version of document 6 (whether pursuant to s 75 of the GIPA Act or otherwise), it cannot be said that the Tribunal erred in failing to exercise that discretion if the Tribunal was not asked to exercise the discretion. Nor can the Tribunal be said to have failed to afford natural justice or constructively failed to exercise its jurisdiction in the sense outlined in Goncalves v Bora Developments and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088.
15. We note that FHG's late submission, received on 8 March 2023, sought to raise as "new information" the fact that FHG claimed to have become aware of the identity of the author of document 6. As noted above, we have not had regard to FHG's letter of 8 March 2023. Even if that letter is understood as an application to re-open the appeal, there is in our view no basis upon which such an application should be allowed.
16. The principles applicable to an application to re-open a case after the decision has been reserved were outlined by the Appeal Panel in Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221 at [38] - [40]: 38 Relevant considerations obtaining on an application to re-open a party's case after a judgment stands reserved were considered by Brereton J in Chao v Chao (No 2) [2008] NSWSC 612 in which His Honour said at [2]: "For present purposes, the principles governing such an application are to be found in the judgment of Goldberg J in Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. They may be summarised as follows. The Court has a discretion to grant a party leave to re-open its case after final submissions have been concluded and the Court has reserved its decision. The ultimate question is whether the interests of justice are better served by allowing or rejecting the application. It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. It will also be relevant to consider the materiality of the proposed additional evidence, and whether it could by reasonable diligence have been discovered before, or at least any explanation for its not having been adduced earlier. If there was a deliberate decision made not to call the evidence when it ought to have been called in the ordinary course of proceedings, that will typically tell decisively against allowing a reopening, although there is no hard and fast rule requiring the Court to reject an application even where the decision not to call a witness or tender a document was a deliberate one." 39 The issue had previously been considered by Austin J in ASIC v Rich [2006] NSWSC 826 in which His Honour said at [18]: "The defendants submitted a list of matters that they claimed to be relevant to the exercise of the court's discretion to permit the plaintiff in a civil penalty proceeding to adduce further evidence after it has closed its case. I accept their list as a useful statement of relevant discretionary factors, applicable in such a case as the one before me. The list is as follows: (a) the nature of the proceeding; (b) whether the occasion for calling the further evidence ought reasonably to have been foreseen; (c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; (d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief; (e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case; (f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time; (g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs; (h) the public interest in the timely conclusion of litigation; (i) what explanation is offered by the plaintiff for not having called the evidence in chief." 40 These factors were applied by Harrison J in N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2012] NSWSC 31 at [15]ff and Stevenson J in The Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682 at [42]. Stevenson J said in Brookfield at [43] although the factors provide a useful guidance the relevant discretion must ultimately be exercised having regard to all the circumstances of the case (referring to Taouk v Louis (No. 1) [2014] NSWSC 656 per Darke J at [11]).
17. In this context, we note the following: 1. The fact that FHG now claims to be aware of the identity of the author of document 6 does not establish that he is so aware. Any leave to FHG to re-open the appeal to raise this claim would require the parties to file further evidence and substantially delay the determination of the appeal. 2. The claimed new information is not relevant to the Tribunal's decision under appeal. The Tribunal's reasons for refusing access to document 6 were not predicated upon the possibility that FHG might identify the author from the handwriting. Rather the public interest against disclosure to which the Tribunal referred was the likelihood that "disclosure will likely reveal the identity of the informant to anyone who recognises the handwriting" [emphasis added]. As the Tribunal noted, disclosure of information pursuant to the GIPA Act is unconditional, it is not limited to the applicant. 3. The claimed new information is not relevant to the grounds of appeal as amended by FHG at the hearing. FHG's grounds of appeal were directed to the manner of disclosure and the failure to order the creation of a fresh document. FHG did not seek to rely upon any question of law arising in relation to the Tribunal's conclusion that disclosure of document 6 would permit the identification of an informant by anyone who recognised the handwriting.
18. Our conclusions regarding FHG's third ground of appeal, as set out above, have the consequence that it is not necessary that we consider the question whether the Tribunal has jurisdiction, on an application for review of a decision not to disclose information, to direct the agency holding the information to create a new record.
19. As we have noted above, Mr McFadzean did not argue that the Tribunal did not have the power to direct the Council to create a typewritten version of document 6. However, there are at least two first instance decisions of the Tribunal which explicitly hold that the Tribunal does not have jurisdiction to direct an agency to exercise its discretion pursuant to s 75 of the GIPA Act to create a new record of information. See: Bellamy v Transport for NSW [2019] NSWCATAD 54 (sub-paragraphs (18) and (19) under the heading "Applicable Legislation"); and Mino v Legal Aid NSW [2015] NSWCATAD 245 at [35].
20. There are also statements in other first instance decisions of the Tribunal which appear to proceed on the assumption that the Tribunal does have jurisdiction to require an agency to create a new record pursuant to s 75(1) to give effect to the decision of the Tribunal in the re-exercise of its discretion. See: Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34 at [116] - [120]; O'Grady v Sutherland Shire Council [2020] NSWCATAD 50 at [48] - [54]; Walker v Northern Beaches Council [2021] NSWCATAD 251 at [116] - [118]; and Evans v Chief Commissioner of State Revenue [2022] NSWCATAD 307 at [62] - [68].
21. FHG's written submissions, prepared by Ms K Young of counsel acting pro bono, relied on the judgment of the Full Federal Court in Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442. In that case the question arose whether, in reviewing a decision of the Commissioner to disallow certain deductions, the Administrative Appeals Tribunal was able to exercise the discretion conferred upon the Commissioner by s 177F of the Income Tax Assessment Act 1936 (Cth) to determine that, where a tax benefit had been obtained by a taxpayer in connection with a scheme to which Part IVA of the Act applied, a deduction to which the tax benefit was referable should not be allowable. The Court held, at 453: "… in determining an objection to an assessment, the Commissioner is entitled to make a determination under s 177F of the Act; and thereafter to give effect to that determination by an appropriate decision under s 186. By force of s 43 of the Administrative Appeals Tribunal Act, the Tribunal has all the powers and discretions that are conferred by s 186 of the Income Tax Assessment Act upon the Commissioner. … Once it is understood that, in exercising his powers under s 186, the Commissioner would have been free to exercise a discretion under s 177F of the Income Tax Assessment Act, it follows that, in reviewing the Commissioner's decision under s 186, the Tribunal is free to exercise that same discretion if, upon the material then before it, it seems proper to take that course."
22. FHG submitted that s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) was in comparable terms to s 63(2) of the Administrative Decisions Review Act 1997 (NSW) which provides: "(2) For this purpose [ie determining the correct and preferable decision as required by s 63(1)], the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision."
23. FHG submitted that Fletcher v Federal Commissioner of Taxation was authority that: "[A]s the Tribunal stands in the shoes of the decision-maker/agency (ie Council) on an internal review, it is permitted to exercise the same discretions if upon the material before it it seems proper to take that course."
24. Because it is not necessary to determine this issue, and particularly because it was not the subject of submissions from the Council, we consider it would not be appropriate that we seek to resolve it. The question should await determination in proceedings where the question can be fully argued.

The Council's Appeal - document 18

1. We have outlined above the basis of the Council's appeal concerning document 18. The Tribunal determined (at [152] - [153] which we have extracted above at [30]) that document 18 should be released "subject to redactions of any identifying information relating to informants and children involved."
2. The Council provided to the Appeal Panel a transcript of two parts of the hearing at first instance. The first extract discloses that Mr McFadzean stated that he "only wish[ed] to tender or read certain folio numbers …" and the Tribunal observed "That's excluding every document that you wish to remain confidential?" Mr McFadzean responded that he had taken out two documents, including document 18.
3. The second extract records part of the evidence of Ms Karaki when the Tribunal asked her about document 18. The transcript discloses the following exchange: Mr McFadzean: "I just need to interject at the moment only because this document isn't yet in evidence." Senior Member: "Ah, that's right it's not." Mr McFadzean: "If you recall, that's not something that I read into evidence on the Council's position is that it's covered by s 29 and is not admissible." Senior Member: "Yeah, you're right, I'm sorry."
4. The Council submitted: "10. The Council's primary submission in these proceedings in respect of document 18 is that in making its decision, the Tribunal was not empowered to provide reasons, or to make orders dealing with document 18, because the document was not in evidence. True it is that the document not being in evidence was based upon the Council's incorrect understanding at the time of the hearing that the document was inadmissible due to s.29(1)(d) of the Care and Protection Act but the Council submits that its error of understanding, which was not refuted by FHG or ruled against by the Tribunal during the hearing, did not create a power for the Tribunal to deal with a document that was not in evidence."
5. The Council sought orders on the appeal which directed the Council to disclose those parts and only those parts of document 18 (and its attachments) to the disclosure of which the Office of the Children's Guardian consented.
6. The Council sought to rely upon a letter from the Office of the Children's Guardian dated 31 May 2022, consenting to the disclosure of a number of the annexures to document 18, provided certain redactions were made. That letter was obtained after the hearing at first instance and clearly was not part of the evidence before the Tribunal.
7. FHG opposed the Council's appeal on five grounds: (1) That the Council was seeking impermissibly to change the basis for refusing disclosure.
8. FHG referred to the decision of the Appeal Panel in Commissioner of Police, New South Wales v Barrett [2015] NSWCATAP 68 at [47]. "47 In our view, the scheme of the GIPA Act is such that there is no unilateral general power given to the agency to change a final decision. The Act has a complex scheme of review - internal review, the possibility of external review by the Information Commissioner, and external review by the Tribunal. It would undermine this scheme if an agency could unilaterally alter the decision at any stage of the review process. In our view, the provisions of the Act proceed on the basis that a decision once made binds the agency, and remains the decision under review, unless clear statutory mechanisms are utilised to alter it."
9. FHG noted that, in the decision under appeal, the Tribunal had held that the Council was restricted to the grounds relied on for refusing FHG access to information in the internal review decision. (2) Secondly, FHG submitted that the fact that the Council did not "tender" document 18 in evidence did not prevent the Tribunal considering the document and making a determination as to whether it should be disclosed.
10. FHG referred to the guidance on the Tribunal website (set out at [60] above) and submitted that "such documents once provided to the Tribunal by the administrator becomes 'material before it' for the purposes of section 63 of the ADR Act. Such material does not need to be separately filed with the Tribunal at the final hearing. Such a procedure while common in civil adversarial litigation is not necessary in these types of applications."
11. FHG submitted that: "the fact the parties engaged in an unnecessary process of tend[er]ing documents at [the] formal hearing does not mean that such material that was already given to the Tribunal was relevantly "no longer" material before the Tribunal. Council's submissions to the contrary are wrong. The member was entitled to take the report into account in the manner in which he did." (3) Thirdly, FHG submitted that the Council was not entitled to raise a new argument for the first time on appeal. (4) Fourthly, FHG submitted that the letter from the Office of the Children's Guardian was new evidence, which should not be admitted on appeal. (5) Fifthly, FHG submitted that the Council had had the opportunity to make submissions concerning document 18 and there was no basis to conclude that there had been any denial of procedural fairness.
12. FHG submitted that "the focus of an enquiry about procedural fairness is on avoiding "practical injustice". It is not 'an abstract notion' (referring to Raslan v Pan [2015] NSWCATAP 12 at [28], which cited Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs: Ex part Lam (2003) CLR 1 at [37]) and that "It is therefore relevant to consider whether the alleged breach of procedural fairness would have made any difference to the outcome of the case" (citing Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145).
13. FHG pointed to the evidence of Ms Karaki and the Council's initial outline of submissions filed on 14 July 2021, both of which identified the public interest considerations against disclosure of document 18 upon which the Council relied.
14. FHG submitted: "142 In this case, there has been no "practical injustice" at all. All that has happened is that Council has found another ground to re-argue points relating to Document 18."
15. In submissions in reply, the Council pointed out that its submissions to the Tribunal at first instance had referred to clause 6 of sch 1 to the GIPA Act.
16. In respect of FHG's objection to the Council relying upon evidence that was not before the Tribunal, the Council referred to s 80(3) of the NCAT Act and submitted that the Appeal Panel should exercise the power under s 80(3) to permit the further evidence to be given in a new hearing.
17. That submission ignores the fact that, to exercise the power in s 80(3), the Appeal Panel would first need to uphold the Council's appeal against the orders of the Tribunal.
18. In respect of the proposition that document 18 was before the Tribunal, even though the Council expressly did not tender it in evidence, the Council submitted: "18 The parties understanding during the hearing, … that document 18 was not in evidence gives rise to matters of procedural fairness. In particular: 18.1 Oral submissions concerning document 18 were fleeting … 18.2 The absence of full submissions on document 18, … was not conducive to the Tribunal providing considered and proper reasons, or to the satisfaction of s 38(5) of the Civil and Administrative Tribunal Act 2013 to ensure that the parties had reasonable opportunity to be heard or otherwise have submissions considered in full. … 18.3 To the extent that written evidence and submissions were available that went beyond the incorrect s 29 position, there is no evidence that such material, albeit potentially incomplete, was considered by the Tribunal …"

Document 18 - Consideration

1. In our view, document 18 was before the Tribunal. The document was identified by the Council as a document containing information meeting the terms of FHG's requests. The Tribunal's obligation on review was to determine whether the information in the document should be disclosed.
2. The Tribunal was entitled to look at document 18 and reach a conclusion regarding whether the public interest considerations against disclosure of its contents outweighed the public interest considerations in favour of disclosure.
3. However, the approach adopted by the Council, and not corrected or contradicted by the Tribunal, arising from the exchanges set out at [108] - [109] above, may suggest that the Council was not accorded procedural fairness when the Tribunal undertook consideration of document 18 and recorded the conclusions set out in paragraphs [147], [152] and [153] (set out at [29] - [30] above).
4. Nevertheless, as FHG submitted, the Tribunal had determined that it was not open to the Council to rely upon considerations which it had not identified in its internal review decision:
5. At [65] - [70] the Tribunal stated: "65 The information Commissioner submitted that Council, in both Ms Karaki's statement and in its own submissions, was seeking to substitute a new decision (Ms Karaki's preferred position) for the internal review decision which is the subject of the administrative review application. The information Commissioner relied on the decision of the Appeal Panel in Commissioner of Police, New South Wales Police Force v Barrett [2015] NSWCATAP 68. … 66 The Appeal Panel noted that the GIPA Act and the ADR Act made provision for more than one decision to be made. Section 58(2) and (3) provide: (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 67 Council has not made a further decision in this case. 68 In Barrett, the Appeal Panel explained that, at [54] to [59] - 54. The agency in this instance chose to notify its change of decision in respect of item 6 as it related to John in the body of its detailed written submissions at para [64] in these words: On reflection, the respondent's position is that Mr Barrett should not have been informed no intelligence reports were held (s 58(1)(b)). Instead the respondent should not have confirmed or denied whether intelligence reports were held in relation to Mr Barrett (s 58(1)(f)). 55. This is not, we consider, an acceptable way of announcing a change of position. There should have been a clear separate notice given. Had that occurred, the Tribunal would then have been required to consider, after hearing from the review applicants, whether a new decision should now be permitted to be substituted as the decision under review, or the s 65 mechanism possibly used. As to the latter, directions could have been given to confine the time within which this was to occur so as not to delay unduly the finalisation of the proceedings in the Tribunal. 56. From our review of the file what appears to have occurred is that the Tribunal only became aware of the agency's change of position when it began to read the submissions as a whole, in circumstances where the timetable for submissions from both sides and a reply from the agency was completed in July 2013, almost eight months after the agency had announced its proposed change of decision. 57. In support of its right to substitute a new decision after a matter reaches the Tribunal, the agency's appeal submissions referred to the case-law in administrative review tribunals on the right of parties to rely on any relevant material recognised by s 63 of the ADR Act, including material that was not available or in existence at the time the matter was before the administrator. We referred to that case-law in our recent decision in Commissioner of Police v Joseph [2015] NSWCATAP 9 at [26]-[28]. 58. The present case is one where a new decision is sought to be substituted for the reviewable decision that founded the review application. It is not a case involving the lodgment of additional material in support of the decision that founded the review application. Nor is it a case of the kind Joseph was, where the decision (refusal of licence) remained the same but the agency sought to rely on a further ground additional to the two that it had previously relied upon, and which was founded in the same material that supported one of the other grounds. In this case the agency was seeking to invoke another statutory provision permitting a decision different in kind to the one that had founded the review application. 59. A proposal to substitute a new statutory decision requires a careful response, and the procedure set out in s 65 of the ADR Act would often be appropriate to use. If a new decision is to be made there needs to be a clear process followed that ensures that clarity prevails as to what the new reviewable decision is, and obtains the benefit of any incidents that attach to the making of a new decision, such as (where applicable) the provision of reasons, and the provision of any new material that is relied upon. 69 The similarities between the situation confronting the Appeal Panel in Barrett and those in this case are obvious. The major difference is that the change was first notified in the statement of a witness Ms Karaki, and then adopted in Council's submissions. Given the gross deficiencies in the initial internal review (e.g., the failure to identify the information in issue, the failure to identify public interest considerations in favour of disclosure, and the failure to balance the public competing interests) the problems with that decision are obvious. The method chosen to add additional grounds for the decision to refuse FHG access to information does not comply with the GIPA Act and is impermissible. Council is restricted to the grounds relied on for refusing FHG access to information in the internal review decision. 70 I add that the principle in Barrett does not prevent Council from abandoning grounds stated in the internal review and consenting to the release of information. It is aimed at preventing grounds for refusing access shifting and changing outside the ordered process set out in the GIPA Act, and thereby complicating the administrative review process."
6. The Council did not challenge those conclusions.
7. Accordingly, it is apparent that, even if the Council had understood that the Tribunal considered document 18 to be before it and able to be reviewed, it could not have relied upon the basis for non-disclosure which it now asserts.
8. It follows that it cannot be said that the Council's misunderstanding of the status of document 18 could have had any effect on the outcome of the proceedings. There has been no "practical injustice" to the Council.
9. The Council's appeal must be dismissed.
10. The orders of the Tribunal remitted FHG's application to the Council for reconsideration in accordance with the Tribunal's reasons. The reasons required the release of document 18 "subject to redactions of any identifying information relating to informants and children involved". The Council remains bound to comply with that direction.

Costs

1. The parties sought an opportunity to be heard on the question of costs. We will make directions for the filing of submissions on costs.

ORDERS

1. Our orders will be: 1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication or disclosure of the name of the appellant in proceedings 2022/00088146, referred to in these reasons for decision as FHG, is prohibited. 2. The time for filing the appeal in proceedings 2022/00088146 be extended pursuant to s 41 of the Civil and Administrative Tribunal Act to 28 March 2022. 3. The time for filing the appeal in proceedings 2022/00128177 be extended pursuant to s 41 of the Civil and Administrative Tribunal Act to 4 May 2022. 4. Order 2(a) made by the Tribunal in proceedings 2021/0069505 on 22 December 2021 is varied to read: "The applicant be provided with unredacted copies of the documents identified in Ms Karaki's statement of 14 July 2021 as documents numbered 3, 5, 10, 11, 15, 16, 17, and 20 and with copies of the documents there identified as documents numbered 1, 2 and 4 with redactions as incorporated in the copies of those documents respectively identified as Confidential Exhibit R6 and Tabs 23 and 24 in the Cumberland City Council's bundle of evidence filed for proceedings 2022/00128177." 1. The appeals are otherwise dismissed. 2. Either party may, within 14 days of the date of publication of these reasons, file and serve submissions, not exceeding five pages, and any evidence relied upon in support, seeking an order in relation to the costs of either or both appeals. 3. If either party files submissions pursuant to order (6), the other party may file and serve submissions not exceeding five pages in response to any such submissions, and any evidence relied upon in support, within a further 14 days. 4. Any submissions filed in accordance with orders (6) and (7) should address the issue whether the question of costs can be determined on the basis of the written submissions and without a further hearing. 5. If neither party files submissions in accordance with order (6) there will be no order in relation to the costs of either appeal. 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: 30 March 2023