FVA v Commissioner of Police, NSW Police Force - [2024] NSWCATAP 127 - NSWCATAP 2024 case summary — Zoe

NSWNSWCATAP

FVA v Commissioner of Police, NSW Police Force

[2024] NSWCATAP 127

NCAT Appeal Panel|2024-04-30

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Source facts

Court

NCAT Appeal Panel

Decision date

2024-04-30

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

5 iCare NSW v Webb [2023] NSWCATAP 192 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kudrynski v Orange City Council [2024] NSWCA 33 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Nathanson v Minister for Home Affairs [2022] HCA 26 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 Ros v Commissioner of Police [2020] NSWCATAP 70 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Vickery v Owners - Strata Plan No 80412 [2020] NSWCA 284 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 YHY v YHZ [2024] NSWCATAP 117 Texts Cited: None cited Category: Principal judgment Parties: FVA (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Appellant (Self-Represented) McCullough Robertson (Respondent) File Number(s): 2023/00305979 Publication restriction: The publication or broadcast of the name of the applicant is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2023] NSWCATAD 236 Date of Decision: 14 July 2023 Before: M Riordan, Senior Member File Number(s): 2023/00077447

[2]

Procedural History

In August 2022, the appellant made a request to the respondent under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to a call recording, call transcript and a complete Police incident report. The application itself identified the name of the caller and the names of the persons referred to in the call. The respondent determined that it would not be in the public interest to provide the call recording and further that an incident report did not exist. However, the respondent determined to release, in part, a Computer Aided Dispatch (CAD) Report.
The appellant filed with the respondent an application for internal review, but the original decision was not disturbed. The appellant also filed an application for external review by the Information and Privacy Commissioner, but the Commissioner concluded that the respondent's decision was justified and declined to make a recommendation.
The appellant then sought review by the Tribunal. The parties attended a case conference, where Senior Member McAteer noted in the orders: "The respondent will seek instructions of. (a) Whether bearing in mind that the identity of the caller may have already been provided by Police to the applicant, whether they can arrange for him to access the call recording under terms in s 72 (1) and (2) of the GIPA Act, (such as listening to the recording) and (b) Whether an officer with relevant expertise can meet with the applicant and explain, the call record documents to him in sufficient detail that the technical terms are clearly understood. (e.g. reference to 'Duplicate identified' etc)."
The matter was listed for hearing on 14 July 2023 (the Substantive Proceedings). The Substantive Proceedings were heard and determined by the Tribunal on that date (the Substantive Decision). Although the appellant was telephoned at the commencement of the hearing, the appellant did not participate in the Substantive Proceedings. There were a number of follow up decisions including: 1. 29 August 2023: this was an application to set-aside the Substantive Decision (the Set-aside Decision; [2023] NSWCATCD 235) 2. 15 September 2023: this was an application to reinstate the Substantive Proceedings (the Reinstatement Decision) 3. 26 September 2023: this was an application to set-aside the Reinstatement Decision.
The appeal of the Substantive Decision was partly heard on 2 February 2024. Various procedural rulings were made; and written reasons for those rulings were provided to the parties.

[4]

Consideration of the extension of time application

As to the appellant's first point, the written reasons were not in draft. The orders the subject of the Substantive Decision were made on 14 July 2023. The written reasons were provided on 16 August, at which point time for the appeal started to run.
An appeal may be brought against an "internally appealable decision": s 80 of the NCAT Act. An internally appealable decision is a decision of the Tribunal over which the Tribunal has "internal appeal jurisdiction" and this includes "any decision made by the Tribunal in proceedings for an administrative review decision" (which these proceedings were): NCAT Act s 32. Central to this is the concept of a decision. This term is inclusively defined in s 5 of the NCAT Act. Relevantly, it includes making an order: NCAT Act s 5(1)(a).
As explained in Vickery v Owners - Strata Plan No 80412 [2020] NSWCA 284 at [20]: "Before turning to the question of jurisdiction under s 232 of the Strata Schemes Management Act, it is convenient to identify the operation of the Tribunal Act. No doubt because of the broad scope of the functions conferred upon the Tribunal, there is no express statutory provision identifying the kind of decisions and orders which can be made. However, the term 'decision' is frequently used in the Act, including as the subject matter of proceedings by way of appeal. Thus, there is an external appeal jurisdiction to the Tribunal (s 31), an internal appeal jurisdiction within the Tribunal, from its own decisions (s 32) and appeals from the Tribunal to the Supreme Court (s 83). All refer to decisions of the Tribunal; the term 'decision' being defined in s 5(1) in the broadest terms. A decision includes making, or refusing to make an order or determination: s 5(1)(a)."
Each order of the Tribunal which is the subject of this appeal is a separate "decision". Time limits for each "decision" might rationally be different; as they are in this case.
Additionally, the fact that an application to set aside a decision had been made, did not stop time running in relation to the appeal period. It is notable that, for example, s 9(5)(a) of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulations) provides that a set aside application may not be lodged where an appeal has been filed, yet it does not say anything about the converse. Time to appeal the orders the subject of the Decision began to run from the time written reasons were provided: Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) r 25(4)(c). The appeal, insofar as it challenges orders made in the Substantive Decision was not filed within the requisite 28 days from 16 August 2023.
Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides the Tribunal with a discretion to extend time. Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 identifies the relevant principles at [19]-[20]. Of relevance is the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the extension, the prospects of the appeal and prejudice to the respondent. Before exercising the discretion to extend time, the Appeal Panel must be satisfied, on the material before it, that to not extend time would work an injustice.
As noted above, the respondent contends that there is no utility in granting the extension; but does not point to any prejudice caused by the delay.
Here, the delay was relatively short. Further, the delay was explained by the appellant in the sense that there was an application to set-aside the Substantive Decision on foot, which may have rendered the appeal of no utility. Whilst this is not sufficient to have stopped time running, it put the respondent on notice that the Decision was contested. For an unrepresented appellant, the explanation for the delay is reasonable.
On balance, since the delay is short, the respondent was aware the Decision was contested, no relevant prejudice is claimed and the appeal cannot be said to have no prospects, we extend time to appeal the orders in the Substantive Decision until 26 September 2023.

[5]

Grounds of Appeal

The Appellant's grounds of appeal are as follows: "1. Tribunal made an error of law by interpreting the relevant section of the Act incorrectly and failed to give relevant and proper reasons. 2. Tribunal made an error of law by failing to take into account the factors stipulated by the statute and further failed to respond to a substantial argument advanced by the Applicant. 3. Pursuant to s53(4) of the Act, there has been a failure by the Tribunal to comply with the provisions of the Act and the procedural rules in relation to the conduct of the proceedings including publishing the original decision without even notifying the parties. 4. On the face of the decision and reasons of Tribunal's original decision of 14 July 2023, it is clearly recorded that there was 'No Appearance' from the Applicant when the decision was made at the hearing conducted on 14 Jul 2023 and hence Tribunal erred in making the original decision and not considering s55(1)(c) of the NCAT Act. 5. Tribunal had failed to make specific findings about a critical matter. Clearly a different result would have followed if that finding had been made, and therefore that a substantial miscarriage has occurred. Tribunal failed to take into account directly relevant evidence available to it. 6. New Information which has come to the light and is highlighted in the Applicant's submissions dated 14 Sep 2023 [see annexures] which also accounts to a misleading and deceptive conduct of the decision-maker and the Respondent's legal representative. Decision-maker clearly ignored this critical aspect while making the decision on reinstatement application and then on set-aside application on the reinstatement decision. 7. Reinstatement is also required for the Cross-examination of key witnesses from NSW Police Force who provided the Affidavit and has knowledge of how CAD system works. 8. The evidence including any CAD reports provided by the Respondent appears to be fraudulent and misleading. 9. Tribunal failed to offer a hearing on the applications of the Applicant for set-aside; reinstatement and then set-aside applications."
The appellant filed a separate sheet with the Notice of Appeal setting out the orders challenged on appeal. These are: "A. Orders issued 26 September 2023: 1. The application for set-aside decision made by the Tribunal on 15 September 2023 is refused. 2. The application Principal Member Simon be disqualified from determining the set aside application is refused. B. Orders issued on 15 September 2023: 1. An oral hearing of the applications for non-publication and for reinstatement of the proceedings is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The application for non-publication of the set aside decision and reasons for that decision is dismissed. 3. The application to reinstate the proceedings is dismissed. C. Orders issued on 29 August 2023 1. An oral hearing of the application is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The amended application for set-aside and stay of the Tribunal decision is dismissed. 3. The application for non-publication of the Tribunal decision made on 14 July 2023 and the written reason is refused D. Orders issued on 14 July 2023 1. Order that the decision under review is affirmed."
The appellant also identified, in oral submissions, the sections of the acts, the subject of each Ground.

[6]

Questions of law or leave to appeal

An appeal lies as of right on final and ancillary decisions on a question of law or leave may be given to extend the appeal to the merits; or in the case of interlocutory decisions: NCAT Act s 80. To the extent that a question of law is raised, the question is the subject matter of the appeal and is required to be expressed with precision; although that requirement is treated with some leniency in the case of an unrepresented appellant and in such circumstances, the Appeal Panel may consider, for itself, the questions of law: see for instance, Cominos v Di Rico [2016] NSWCATAP 5 at [13]. The respondent submits that no question of law is raised; and further, leave has not been sought.
The respondent submits that the interlocutory decisions, for which leave is required, include those relating to stays, member disqualification and non-publication orders. The Appeal Panel accepts that these types of decisions are interlocutory decisions.
However, here, there are two types of decisions that potentially fall into the category of ancillary decisions, for which leave to appeal would not be necessary in the event there was an appeal on a question of law: the decision not to set-aside the Substantive Decision and the decision not to reinstate the Substantive Proceedings.
An ancillary decision and an interlocutory decision are defined at s 4(1) of the NCAT Act as follows: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. … interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal.
The power to set-aside a decision is found in clause 9 of the NCAT Regulations.
The Appeal Panel in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 concluded that a decision under cl 9 is an ancillary decision (at [40]). We respectfully agree for the reasons therein considered (at [28] to [40]). It is a decision consequent on a decision determining a matter.
On the other hand, a decision not to reinstate a matter under s 55(2) of the NCAT Act is interlocutory: Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 at [49]. Further, as extracted above, the decision to reinstate a matter under s 55(2) is consequent upon a dismissal of proceedings under s 55(1)(c) of the NCAT Act. It is not a decision consequent upon a decision determining the matter. It is a decision consequent upon a decision which summarily dismisses the proceedings: it is consequent upon an interlocutory decision.
Leave has not been sought to appeal the interlocutory decisions. However, as the appellant is unrepresented, the Appeal Panel has considered whether leave should be granted. In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35], the Appeal Panel identified various principles that have been applied when determining whether to grant leave to appeal an interlocutory decision. Relevantly, these include whether the interlocutory decision effectively determines rights, whether there is an error of principle resulting in a substantial injustice, or whether the matter is one of practice and procedure.
Particularly as the Substantive Decision and the refusal to set-aside the Substantive Decision are the subject of this appeal, the Appeal Panel has not been able to identify an error of principle or substantial injustice, arising from the interlocutory decisions, that will not be canvassed in the substantive appeal. Leave to appeal the interlocutory decisions is refused.
The remaining orders for which leave to appeal is not necessary, if the appeal is on a question of law, are as follows: 1. The order the subject of the Substantive Decision affirming the decision under review. 2. The order refusing the application to set-aside the Substantive Decision (part of order 2 of 29 August 2023, the Set-aside Decision).
Leave to extend the appeal to the merits with respect to these decisions has not been sought. However, as the appellant is unrepresented the Appeal Panel considered whether leave to extend the appeal to the merits should be granted.
Several cases in the Tribunal have considered when the Appeal Panel might grant leave to extend to the merits: Ros v Commissioner of Police [2020] NSWCATAP 70 at [20]-[23], Collins v Urban [2014] NSWCATAP 17 at [82]-[84], Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [44]-[46]. See too Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 at [33]-[34] (Mason P).
In short, the appellant must identify something more than that the decision was arguably wrong. Ordinarily, it is necessary to identify some point of principle or question of public importance, or to point to something that indicates an unorthodox approach to the facts, a finding that was unreasonably arrived at, or a clear injustice.
Save with respect to the issue discussed below regarding s 73(2) of the GIPA Act, no basis of principle (other than the asserted questions of law) has been identified. Subject to hearing from the parties in relation to s 73(2) of the GIPA Act (discussed below), leave is not granted to extend the appeal to the merits.

[7]

Materials and additional evidence before the Appeal Panel

The appellant sought to rely on two affidavits from the appellant: the first filed 2 February 2024 and the second 11 March 2024. The respondent contended that we should receive this material as submissions only. The appellant contends that the documents are in affidavit form and are indeed evidence. Further, there has been ample time for the respondent to file her own material in reply to the affidavits and that there could be no prejudice in the Appeal Panel now receiving the material as evidence. The appellant further contends that the absence of reply material lends additional evidential weight to the filed affidavits.
The respondent contends that there was no order for additional evidence and that many of the factual assertions in the material are not agreed and are strongly contested, but this is not the forum to deal with such challenges and the material should be received as submissions only.
Where an Appeal Panel determines an appeal by way of a new hearing, the Appeal Panel may receive additional evidence on an appeal and there is no requirement that the evidence be "fresh" in the sense of not being reasonably available at first instance: NCAT Act s 80(3). However, the anterior question is whether the Appeal Panel considers that the grounds of appeal warrant a new hearing. In relation to each ground, the Appeal Panel is not so satisfied: either the appeal ground is not meritorious or may be dealt with conveniently other than by a new hearing.
As explained by the Appeal Panel in Yuen v Thom [2016] NSWCATAP 243 at [14]-[22], there may be instances where, even without a new hearing, it is appropriate for the Appeal Panel to receive additional evidence, even if that evidence might strictly have been available at the date of the original hearing. An example given (at [21]) is where the evidence might be relevant to proving a breach of procedural fairness: also see Ros v Commissioner of Police [2020] NSWCATAP 70 at [29]-[43]. However, this would be the exception.
Here, save for one aspect, the Appeal Panel receives the two affidavits as submissions.
Insofar as the affidavits annex emails to or from the respondent or the Tribunal, they will be received in evidence, to the extent that they are relevant to the appellant's grounds in relation to s 55(1)(c) and s 38(5) of the NCAT Act (considered below).
In addition to the affidavits of the appellant, the Appeal Panel had written and oral submissions from the appellant.
The respondent relied on a folder of materials which included the affidavits before the Tribunal at first instance. The respondent also relied on oral and written submissions.

[9]

Inadequacy of reasons

To the extent that this ground raises the question of whether the Tribunal failed to give adequate reasons, that may raise a question of law: Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Wollondilly) at [29]. However, it is necessary to identify the particular question: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Wollondilly at [29].
We have taken the particular question here to be whether the statutory duty under s 62 of the NCAT Act has been satisfied; or whether the reasons otherwise were sufficient to alert the appellant to the facts, law and reasoning process for the decisions. As to the last point, there is still some uncertainty in the Tribunal as to whether there is always a duty to provide reasons. On its face, s 62 of the NCAT Act itself only envisages two scenarios where written reasons are required: first, where there has been a request to provide a written statement of reasons; and second, where written reasons are in any event provided. It is not necessary to determine the extent of the Tribunal's duty to provide reasons here as written reasons were provided. See too Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [58].
Here a statement of reasons was requested via email correspondence with the Registry on 15 August.
Section 62(2) of the NCAT Act relevantly provides: 62 Tribunal to give notice of decision and provide written reasons on request … (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.
With respect to each of the Substantive Decision and the Set-aside Decision, the Appeal Panel is satisfied having regard to the reasons for decision that there is no inadequacy of reasons. In each case, the Tribunal identified the facts, the law and the reasoning process: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [71] per Bell P (Ward JA agreeing).
The appellant disagrees with the reasons, but that raises a challenge to the merits of the decisions and not the adequacy of reasons given.

[11]

Public interest

The appellant submits that the Tribunal, in the Substantive Decision, misinterpreted ss 13 and 14 of the GIPA Act in that the Tribunal treated the considerations identified by the respondent that tended against disclosure as being, in effect, conclusive: at [31] of the affidavit of 11 March. The appellant contends that the error was repeated or not rectified in the subsequent decisions.
To the contrary, the Tribunal identified the public interest considerations in favour of disclosure and noted too that the respondent accepted that they should be given weight. These are set out at [83] of the Decision: "The respondent identified the public interest considerations in favour of disclosure under s 12 of the GIPA Act are being: (1) The Statutory presumption in favour of the disclosure of government information (ss 5 and 12 of the GIPA Act); (2) The general right of the public to have access to government information held by agencies unless there is an overriding public interest against disclosure of the information (s 9 of the GIPA Act); and (3) The information sought, or at least some of it, relates to the applicant."
In addition, the Tribunal said at [137] of the Substantive Decision: "The reviewable decision identified relevant public interest factors in favour of disclosure of the disputed information. I agree with those public interest considerations and I agree that these should be given some weight."
The following factors were identified in the respondent's decision dated 1 September 2023: "Public interest considerations in favour of disclosure In accordance with section 12 of the GIPA Act, I have taken into account the following public interest considerations in favour of disclosure of the information: • The statutory presumption in favour of the disclosure of government information. • The general right of the public to have access to government information held by the agencies. • The release of the information requested could reasonably be expected to promote accountability of this agency."
Further, the Tribunal considered the matters that the respondent pointed to that tended against disclosure. These were set out at [86] of the Substantive Decision: "The respondent, identified the following public interest considerations against disclosure, namely that disclosure could reasonably be expected to: (1) Prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d) to the table in s 14(2) of the GIPA Act); (2) Reveal an individual's personal information (cl 3(a) to the table in s 14(2) of the GIPA act); and (3) Contravene an information protection principle under the PPIPA or a HRIPA (cl 3(b) of the table in s 14(2) of the GIPA Act)."
The Tribunal considered whether the considerations raised by the respondent should be given weight and determined that they each should be given weight: at [138]-[151].
The Tribunal set out at [124] the following: "In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the 'public interest test' under s 13 requires agencies to start with the presumption in favour of disclosure of information and: (1) identify the public interest in favour of disclosure (s 12); (2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information."
In summary, there is a presumption in favour of disclosure which may be rebutted where there is an overriding public interest against disclosure: GIPA Act s 5. Further, an applicant has a legally enforceable right to disclosure, unless there is an overriding public interest against disclosure: GIPA Act s 9.
There can only be an overriding public interest against disclosure "if (and only if)" there are public interest factors against disclosure; and then only where, on balance, those negative factors outweigh "the public interest considerations in favour of disclosure": GIPA Act s 13. Unless there are public interest considerations against disclosure (which are set out in s 14) there is nothing to balance. Once public interest factors against disclosure have been identified, the balancing exercise must be performed: the negative factors must be balanced against the public interest factors in favour of disclosure: GIPA Act s 13.
The Tribunal had regard to the step-by-step procedure that was required under the GIPA Act and determined that there was an overriding public interest against disclosure (at [153]) and affirmed the decision under review (at [154]).
Given this approach, the Appeal Panel is satisfied that the Tribunal did not apply any of the factors, referred to by the respondent, conclusively and performed the requisite weighing up or balancing exercise.
There was, accordingly, no error of the kind submitted by the appellant.
However, in forming the view that there was an overriding public interest against disclosure, the Tribunal did not consider s 73(2) of the GIPA Act.
Whilst access under the GIPA Act is to be unconditional, in the sense that an agency may not impose conditions on the use or disclosure of the information (s 73(1) of the GIPA Act), a "condition may be imposed as to how a right of access may be exercised" if it would "avoid there being an overriding public interest against disclosure of the information": GIPA Act s 73(2). The Tribunal did not consider whether a condition would, in this case, have avoided the overriding public interest against disclosure.
The respondent has not had an opportunity to provide submissions on the impact of s 73(2) of the GIPA Act on the decision-making process. The Appeal Panel will hear the parties further in relation to whether an agency (and the Tribunal) must consider s 73(2) of the GIPA Act when performing the balancing exercise required under the GIPA Act when imposition of a condition might avoid an overriding public interest against disclosure, and whether failure to do so, in this case, led to appealable error.

[13]

Section 12

On the other hand, the appellant also contends that the Tribunal erred in failing to consider the public interest factors in favour of disclosure as required by s 12 of the GIPA Act (at [36] of the affidavit of 11 March). The Appeal Panel has interpreted this as raising the question of law as to whether the sections were misconstrued.
Section 12 identifies that there is a general public interest in favour of disclosure and identifies further that the Act does not limit consideration of any specific types of public interest and gives examples of some specific types of public interest. However, s 12 of the GIPA Act refers not only to the "general public interest", but also to "any other public interest considerations in favour of the disclosure": s12(2). There are then a series of examples of other public interest considerations in the Note to s 12.
Section 12 is couched in the negative: i.e., nothing in the Act limits the taking into account of "other public interest considerations". Further, it does not expressly say the decision maker must take into account "any other public interest considerations". Nevertheless, the mandatory nature of this provision is gleaned from the requirement in s 13 to balance the public interest coupled to the express reference in 12 to there being both general and other public interest considerations.
Identifying whether there are "other" public interest considerations is a mandatory step in the balancing exercise. To fail to consider whether there are "other" public interest factors would evince a misapprehension of the statutory task.
As extracted above, the Tribunal accepted the statutory presumption in favour of disclosure, as required by s 5 of the GIPA Act; and referred, generally, to the public interest in disclosure in s 12 of the GIPA Act.
The examples in s 12 of the GIPA Act make plain that there may be any number of different aspects to the public interest that might favour disclosure and depending on what they are, they may weigh on the balance differently.
Here, of immediate relevance is the example given at (d) "The information is personal information of the person to whom it is to be disclosed." There is a significant public interest in disclosing to an individual the personal information of that person: FCZ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 16 at [172], Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95 at [90], Charles v SafeWork NSW [2023] NSWCATAD 259 at [105]. Put another way, there is a public interest in an individual's right to their personal information.
The expression personal information is defined in the GIPA Act in cl 4 of Sch 4. In essence, it is information (or an opinion) about a person whose identity is apparent or can reasonably be ascertained from the information (or opinion). It was accepted by the Tribunal and the respondent that the call recording, which is described by the respondent as being a "welfare check" of the appellant is, at least in part, personal information of the appellant: see for instance, at [83(3)] of the Substantive Decision.
The Tribunal expressly accepted that there were "other" public interest factors that would favour disclosure, including that the information included some personal information of the appellant and that release of the information could reasonably be expected to increase accountability of the agency: at [3], [137].
Accordingly, there was no error in the construction of these provisions, as submitted by the appellant.

[15]

Sections 55(1)(c) and 38(5)(c) of the NCAT Act

Section 55(1)(c) of the NCAT Act provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
Where a matter has been dismissed under this section, the Tribunal may reinstate the proceedings under s 55(2) which provides: 55 Dismissal of proceedings … (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.
The appellant submitted that there are several relevant considerations which were ignored by the Tribunal when determining not to dismiss this matter for failure to appear and instead hearing and determining the matter on a final basis (for instance, at [38]-[39], [44]-[45] of the affidavit of 11 March).
The substantive question of law raised by the appellant is whether there was a breach of procedural fairness when the Tribunal heard and determined the proceedings in the absence of the appellant. Whether there has been a breach of procedural fairness may raise a question of law: see for instance, Kudrynski v Orange City Council [2024] NSWCA 33 at [52].
The question of law of whether there was jurisdictional error also arises. A jurisdictional error by a Tribunal may arise on breach of a condition of making the decision, including, where the Tribunal fails to observe a requirement of procedural fairness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) at [3]. Whilst some errors, of their very nature will be jurisdictional (such as where there is bias), in other cases, the potential to affect the decision will be inherent in the nature of the error (such as unreasonableness in the final result), in still other cases, it will be necessary to demonstrate that the error could, realistically, have affected the result (such as with procedural unfairness): LPDT at [6] and [9]. A breach of procedural fairness will constitute a jurisdictional error, only if the error is material to the Tribunal's decision: Nathanson v Minister for Home Affairs [2022] HCA 26 (Nathanson) at [1].
The Appeal Panel in YHY v YHZ [2024] NSWCATAP 117 recently considered whether there was a material breach of procedural fairness in circumstances where, due to administrative error on the part of the Tribunal's Registry, the Member did not have the appellant's written material before her when making a decision reviewing a guardianship order.
Notably, the Tribunal is required to provide a reasonable opportunity for the parties to be heard: NCAT Act s 38(5)(c). Following on from this, in this case, the particular question of law is whether the Tribunal took such measures as were "reasonably practical" to ensure the parties had a "reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": NCAT Act s 38(5)(c). If not, the next question is whether the error was material to the Tribunal's decision.
To determine this, it is necessary to consider the procedural history. At [41] of the Substantive Decision, the Tribunal recounts that Principal Member Simon made an order the day before the hearing refusing a request to amend the timetable on the papers and refusing a request for an "extension of time". It is apparent that the Tribunal considered this to be a refusal to grant the adjournment. This was a misunderstanding on the part of the Tribunal.
In the interlocutory decision dated 23 February 2024, this Appeal Panel also misapprehended the position, citing that the adjournment request had been dismissed (at [24]).
Nonetheless, Principal Member Simon had not refused the adjournment request. This is apparent from a close reading of the Set-aside Decision (at [3] and [30]) and the terms of the order of 13 July 2023, which provided as follows: "1. The requests for the extension of time are refused. Note: The applicant has previously been granted an extension of time. The matter remains listed for hearing and the issue in relation to the summons will be dealt with at the hearing. Any further application in relation to an extension of time will be dealt with at the hearing."
It is also reflected in the text of an email which Principal Member Simon directed the Registry send to the parties. The email is set out by the Tribunal at [44] of the Substantive Decision. It says: "On 13 July 2023, Principal Member Simon instructed the Registry to issue the following email to the parties: The contents of the email from the applicant dated 13 July 2023 are noted. The email does not demonstrate that it has been copied to the Respondent and it is unclear if they are on notice of the requests being made. The application for adjournment, the review of the refusal to issue the summonses and the application for extension of time will all be dealt with by the Tribunal Member at the hearing on 14 July 2023. The parties are on notice that they are expected to attend and the matter may proceed in the absence of either party." (Emphasis added)
The parties were notified, amongst other things, that the application for an adjournment would be dealt with at the hearing. The email also put the parties on notice that they were expected to attend and that the matter "may" (not would) proceed in their absence.
Once the matter was called on for hearing, it was apparent that the appellant was not present, despite being on notice to attend. The Tribunal telephoned the appellant. When the appellant mentioned the outstanding adjournment request the Tribunal said (as recorded at [52]): "You made an application for an adjournment and that application was refused by Principal Member Simon and you have decided not to attend."
The appellant attempted to refresh his adjournment request whilst on the phone. He mentioned he wanted to cross-examine a witness and that there were other outstanding issues. However, the Tribunal's misunderstanding that the adjournment request had already been refused was reiterated multiple times in the telephone call to the appellant.
It cannot be said that the appellant had an opportunity to put his case for an adjournment. Further, at [114]-[117] of the Substantive Decision, the Tribunal said: "[114] In this matter, it is important to remember that the applicant's request to adjourn the hearing was refused by PM Simon and he was specifically advised that the issues that he raised would be considered at the hearing. However, the applicant ignored that advice and sent two further email requests for an adjournment to the Registry, both being sent outside its operating hours. He then failed to attend the hearing and he declined to participate in the hearing by telephone or in person. [115] Section 38(5) of the NCAT provides that the Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. [116] I am satisfied that the parties were given a reasonable opportunity to be heard or otherwise to have their submissions considered in the proceedings. However, in the applicant's case, he did not file any submissions and he declined to participate in the hearing. Section 38 does not impose any obligation on the Tribunal to ensure that a party takes advantage of an opportunity to be heard. [117] For these reasons, I determined that it was appropriate that the matter should proceed in the absence of the applicant." (Emphasis added)
The Appeal Panel is satisfied that the appellant's adjournment request was not considered by the Tribunal.
The first question for the Appeal Panel is whether the failure to consider the adjournment request at the Substantive Proceedings led to a breach of procedural fairness. The second question is, assuming that there was a breach of procedural fairness, whether it could, realistically, have made a difference to the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at pp 145-146; LPDT at [6].

[16]

Procedural fairness

The first question, as stated above, is whether there was a breach of procedural fairness in the Tribunal failing to consider the adjournment request.
There are several factors which complicate the analysis. On the one hand, the appellant was advised to appear. He did not appear. On the other hand, he was advised that the application for an adjournment would indeed be considered at the hearing. Additionally, the Tribunal phoned the appellant, whereupon he refreshed his adjournment application.
Here, the Tribunal found that the appellant had no valid excuse for not being present and had simply chosen not to attend. The Tribunal also held that the fact that the respondent had the onus, that the matter had been listed some substantial time earlier and that the respondent was ready to proceed (including with her witness present) all supported the Tribunal's decision to hear and determine the matter in the appellant's absence. However, fundamental to that decision was the incorrect premise that the adjournment request had been refused. That this wrong premise was fundamental to the Tribunal's decision to proceed is evident from the Substantive Decision at [114]-[117] as extracted above.
In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 59; [2002] HCA 11 (Bhardwaj), the Immigration Review Tribunal proceeded to hear and determine a matter in the absence of the visa applicant when, due to administrative error on the part of the Tribunal, the visa applicant's adjournment request had been overlooked. The Tribunal reheard the matter and the question that ultimately went to the High Court of Australia was whether the Tribunal had no power to re-hear the matter. The Court found that the Tribunal indeed had power. The Tribunal had intended to give the visa applicant an opportunity to appear and by administrative error this had been denied.
The then Chief Justice, Gleeson CJ in Bhardwaj said at [14]: "As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him."
Here, as the history of the matter demonstrates, the Tribunal intended to give the appellant the opportunity to make his adjournment request at the hearing and, due to a misunderstanding or miscommunication, denied him that opportunity.
However, whether there has been jurisdictional error or whether the appellant was denied procedural fairness and the consequences of such, depends on the statute.
The NCAT Act provides at s 38(5)(c) as follows: 38 Procedure of Tribunal generally … (5) The Tribunal is to take such measures as are reasonably practicable - … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
The issue is not affected by the fact that the appellant did not appear at the hearing. The Tribunal by order of 13 July 2023, referred the adjournment request to the Tribunal hearing the matter. It remained an outstanding application at the commencement of the hearing.
Whilst there might have been very good reasons to dismiss the adjournment application in the appellant's absence, the adjournment application was not abandoned; a matter made plain by the appellant when he was phoned by the Tribunal.
The Appeal Panel has considered whether the fact that the Tribunal phoned the appellant when this was not necessary should affect the analysis; but has determined it does not. The facts remain: the Tribunal did indeed call the appellant, he reagitated the adjournment request and it was not dealt with.
In the circumstances of the Tribunal's indication that the outstanding adjournment request would be dealt with at the hearing and where it was pressed by the appellant, it cannot be said that the Tribunal afforded the appellant procedural fairness or abided by s 38(5)(c) of the NCAT Act.
This case is distinguishable from cases where adjournment requests have been refused shortly before hearing; and where in those circumstances, it was found that the decision was not legally unreasonable or that there was no breach of procedural fairness: Gould v The King [2023] NSWCCA 103, EFQ v Medical Council of New South Wales [2021] NSWCA 167.
Here the Tribunal failed to do what the Tribunal intended to do, which was to determine the adjournment request.
Whether the Tribunal could have, of its own motion, reheard the matter (as the Tribunal did in Bhardwaj) is not a matter the Appeal Panel is concerned with. The matter is now on appeal.

[18]

Was the adjournment request hopeless?

It is not for the Appeal Panel to speculate on what would have happened had the Tribunal determined the adjournment request. It is sufficient if we are satisfied that it may have been granted.
Here, we have an unrepresented litigant. As is plain from the transcript of the call recording revealed in the Substantive Decision, he considered himself unavailable due to commitments in the Supreme Court involving searching the registry for documents in relation to a hearing on the next business day. This is supported by the following emails: 1. On 14 July 2023 at 11:30 AM, the appellant emailed to the Associate: "I've attended the Registry today to inspect the court file for the above matter and have been advised that the court file is now at the Justice … chambers. As just discussed, please can I ask you to give me a call on … when you have a chance to check with His Honour if the court file can be dropped at the L5 Registry or for me to access it at the chambers?" 1. The Associate responded on 14 July 2023 at 11:40 AM: "I have left a message on your mobile. Your file has been taken to the Registry and you can inspect it there."
Further, one of the factors relied upon by the appellant for an adjournment was that the appellant required one of the respondent's witnesses, Senior Sergeant Gaskell, for cross-examination. It is uncontentious that as of 1 June 2023, it appeared to the parties that Senior Sergeant Gaskell may not be available at the hearing on 14 July 2023. By 26 June, the witness unavailability seemed still to be an issue. This was adverted to by Principal Member Simon in the Set-aside Decision, at [23]-[24].
The following emails support this position: 1. On 1 June 2023, the respondent emailed to NCAT Registry: "Dear Registry We refer to the above matter, in which we act for the Commissioner, and the orders of the Tribunal made on 1 May 2023. … Unfortunately, S/Sgt Ian Gaskell may be unavailable on the scheduled hearing date. We note Order 3 which requires the Applicant to provide their material, including notice of any witnesses required for cross-examination on or before 26 June 2023. We will wait to hear from the Applicant once they have had a chance to consider the Respondent's material but we will approach the Tribunal regarding orders for a new hearing date if the Applicant requires S/Sgt Gaskell for cross-examination." (Emphasis added) 1. On 26 June 2023, the appellant emailed the respondent's solicitor: "I note Sgt Aaron Gaskell's unavailability on the scheduled Hearing date which I would like to notify that Sgt Aaron Gaskell would be required for the cross-examination at the hearing and that would require orders for a new hearing date." (Emphasis added) 1. By email dated 26 June 2023, the respondent's solicitor emailed the appellant: "We have sought instructions from our client and will respond as soon as we can."
The Appeal Panel is not aware of when the appellant was first advised that the witness would be made available at the hearing. Certainly, on the morning of the hearing in the telephone call with the Tribunal, the appellant was told the witness was indeed available. This did not cause him to change his plans and appear.
On balance, the Appeal Panel is satisfied that the adjournment request was not hopeless.

[20]

The balancing exercise

The Tribunal (at [137]) considered the factors that weighed in favour of access. These included the statutory presumption in favour of disclosure, the general right of the public to have access to government information and that the release of the information may promote the accountability of the respondent. The Tribunal also accepted that the information (at least in part) contained the appellant's personal information.
Nonetheless, overpowering weight was given by the Tribunal to the nature of a "000" call and the public interest in non-disclosure of these types of calls and that the call contained the personal information of three people other than the appellant.
As to the first point, the Tribunal (at [140]) accepted what was said in Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80 (Camilleri) that, for the purposes of determining whether there was a public interest consideration against disclosure because release of a "000" call may prejudice the supply to the respondent of confidential information, a broad operational approach must be taken. Further, the Tribunal accepted that the respondent treated such calls as being confidential. The Tribunal also appeared to accept that there was no relevant difference between a "000" call which is a welfare check and a "000" call in which a crime is reported: at [93]-[94]. Accordingly, the Tribunal gave this factor significant weight: at [143].
Whilst the Appeal Panel has some concerns that a "000" call should be treated as a single block of information, we accept, for these purposes (without deciding) that the approach in Camilleri is correct and that an operational viewpoint is taken when considering whether disclosing a "000" call itself would tend against the public interest because of cl 1(d) of table 1 in s 14 of the GIPA Act. That clause provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions
Nevertheless, the weight to be given to this factor might depend on factors such as whether the personal information of the other persons is already known to the appellant and too the type of access that might be granted and whether a condition to access might be imposed.
Notably, access cannot be provided on conditions as to the use or disclosure of the information: GIPA Act s 73(1). The Tribunal (at [100]) recorded the respondent's submission that disclosure under the GIPA Act was disclosure to the public at large, because conditions on how the appellant might use the information could not be imposed. So much may be accepted.
However, the respondent may give consideration to different forms of access and where a condition as to how a right of access might be exercised would avoid there being an overring public interest against disclosure of the information, such a condition may be imposed: GIPA Act ss 72 and 73(2). It is possible to provide disclosure in a number of ways, including by simply giving an applicant access to hear a recording, or part of the recording or by creating a written transcript of it that could be given to an applicant to review (but not take home): GIPA Act s 72. Section 74 of the GIPA Act provides the ability to make redactions.
As noted above, it is not apparent that this was considered by the Tribunal.
Further, even in Camilleri it was noted that the confidential status of the call might change over time: at [24]. Here, it might be submitted that the fundamental confidential nature of the "000" call had, in this case, not been preserved.
As to the last-mentioned point, the appellant submits that one factor that is relevant is that the names of the caller and the other persons the subject of the call were known by the appellant. Some support for this might be gleaned from the fact that the application for access to government information sought access to a specified "000" call recording and provided particulars.
Nevertheless, we do not consider it appropriate that we provide confirmation one way or the other whether the appellant was correct in believing that he knew the names of the persons whose identities had been redacted in the CAD report. That will be a matter for submissions on remittal, if that is the outcome of the appeal.
It is not necessary to speculate on the outcome of any consideration of different forms of access, it is sufficient to say that we cannot dismiss the possibility that the appellant's participation at the hearing and providing oral submissions could have made a difference to the outcome, given what the appellant says were the live issues he was concerned about.
Had the adjournment application been granted (and we do not say that this was inevitable or even likely, but merely possible), the appellant would have been able to participate in the adjourned hearing, cross-examine, and make submissions. This may well have exposed "other" public interest factors; or the ones already considered may have weighed in the balance differently. Further, submissions on the form of access and conditions on how access was to be exercised, may have generated a different outcome.
As the respondent has not had an opportunity to address the Appeal Panel on whether there was practical injustice, particularly in light of ss 73(2) and 74 of the GIPA Act, the Appeal Panel will hear the parties in relation to this.

FVA v Commissioner of Police, NSW Police Force

At a glance

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Judgment (26 paragraphs)

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Legislation Cited (4)

Cases Cited (33)

Cited By (16)