FZS v Commissioner of Police, NSW Police Force

Cases Cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Australian Gas Light Co v Valuer‑General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139
Betzis v Commissioner of Police [2020] NSWCATAD 71
Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50
Chalik v Chalik [2025] NSWCA 136
Cheung v Commissioner of Police [2019] NSWCATAD 249
Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) CLR 194; [2000] HCA 47
Collins v Urban [2014] NSWCATAP 17
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Commissioner of Taxation (Cth) v Smorgon (1979) 143 CLR 499; [1979] HCA 67
Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89
Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48
D’Amore v Independent Commission Against Corruption [2013] NSWCA 187
Danis v Commissioner of Police, NSW Police Force [2021] NSWCATAD 311
DF v Attorney General’s Department [2002] NSWADT 164
Ellis v The Queen [2015] NSWCCA 262
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120
FZS v Commissioner of Police, NSW Police Force [2024] NSWCATAD 88
Galea v Galea (1990) 19 NSWLR 263
GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
GTK v NSW Treasury [2025] NSWCATAP 174
Hamod v New South Wales and Anor [2011] NSWCA 375
HCA 28; Commissioner of Taxation (Cth) v Smorgon (1979) 143 CLR 499; [1979] HCA 67
Hope v Bathurst City Council (1980) 144 CLR 1
House v The King (1936) 55 CLR 499; [1936] HCA 40
HQS v State of New South Wales [2026] NSWCATAD 119
Hurst v Wagga Wagga City Council [2011] NSWADT 307
John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Kudrynski v Orange City Council [2024] NSWCA 33
Leech v Sydney Water Corporation [2010] NSWADT 298
Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550
Marjanac v Plavsic [2014] NSWCATAP 63
Medlyn v Commissioner Police [2020] NSWCATAD 125
Miller v Director of Public Prosecutions [2012] NSWADT 38
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
MS Noun Construction Pty Ltd v Baker [2022] NSWCATAP 251
Murdoch v Commissioner of Police, NSW Police Force [2025] NSWCATAD 196
N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Public Transport Commission of New South Wales (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28
R v T, WA (2013) 118 SASR 382; [2014] SASCFC 3
Raven v The University of Sydney [2015] NSWCATAD 104
Robinson v Sydney West Area Health Service [2007] NSWADT 77
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Shapkin v Council of Law Society of New South Wales [2025] NSWCATOD 66
State of Victoria v R [2014] VSCA 311
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416
Transport for NSW v Searle [2018] NSWCATAP 93
Ugur v Public Guardian [2023] NSWCATAP 273
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Victoria v R [2014] VSCA 311
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Wollondilly Shire Council v Styles [2024] NSWCATAP 104

Category: Principal judgment

Parties: FZS (Appellant)
Commissioner of Police, NSW Police Force (Respondent)

Representation: Counsel:
K Mattes (Solicitor) (Respondent)
Solicitors:
Crown Solicitor (Respondent)
Appellant (Self-Represented)

File Number(s): 2024/00179483

Publication restriction: The disclosure of the name of the appellant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The appellant is to continue to be known by the pseudonym FZS.

REASONS FOR DECISION

The Appeal

Questions of law and leave to appeal

Standard of review

Determination of whether a decision under s 13 of the Act is discretionary

Ground 11

Relevant legislation

Must the function be an extant function?

Murdoch case

Whether the prosecuting function has ended

Appellant

Respondent

Consideration

Other aspects of “prosecuting functions”

Whether information can relate to two functions

Appellant

Respondent

Consideration

How wide an interpretation ought to be given

Appellant

Respondent

Consideration

“relates to”

Consideration

Disclosure of information during criminal proceedings

Appellant

Respondent

Consideration

Whether agency consent properly sought

Appellant

Respondent

Consideration

Role of alleged impropriety

Appellant

Respondent

Consideration

Whether “similar cases” allowed the disclosure of sound recordings

The documents cannot be protected as they contain the appellant’s information

Conclusion on Ground 11

Ground 1

Does Ground 1 raise a question of law

Determination of Ground 1

Ground 2

Ground 3

Ground 4

Ground 5

Ground 6

Ground 7

The findings were supported

Ground 8

The relevant findings and observations in the Decision about minors

Clause 3(g)

Clauses 1(d) and 1(g)

Consideration

Ground 9

Determination of Ground 9

Ground 10

Determination of Ground 10

Ground 12

Conclusion on the Appeal

Procedural fairness concerns of the appellant, the request for an adjournment and the consideration of the appointment of a guardian ad litem

Costs

Orders

REASONS FOR DECISION

1. The substantive proceedings concern a request under the G**overnment Information (*Public *Access) A**ct 2009 (NSW) (the Act) for the release of information relating to a surveillance device warrant issued on 13 May 2015, which authorised the use of two listening devices (the access application). The respondent identified the following records as containing information that was responsive to the access application (the records):

2. The Surveillance Device Warrant SD 15/0233 (the warrant).

3. Report in accordance with s 44 of the Surveillance Devices Act 2007 (NSW) (the s 44 report).

4. Affidavit of Detective Senior Constable Derek Kennedy (the Kennedy affidavit).

5. Sound recordings obtained under SD 15/0233 (the recordings).

6. In both its original decision and on internal review, the respondent refused access to the information in the records, on the grounds of an overriding public interest against disclosure. At the hearing at first instance, the respondent contended that the correct and preferable decision was to refuse access to all of the information contained in the records, for the following reasons:

7. The warrant and the recordings are excluded information of the Office of the Director of Public Prosecutions (ODPP) and, accordingly, conclusively presumed to be subject to an overriding public interest against disclosure.

8. There was an overriding public interest against disclosure of the s 44 report and the Kennedy affidavit, applying the public interest test under s 13 of the Act.

9. The Tribunal noted that the applicant no longer sought access to the warrant, as he had a copy of the warrant (at [180]) and proceeded on that basis; and otherwise affirmed the decision under review: FZS v Commissioner of Police, NSW Police Force [2024] NSWCATAD 88 (the Decision).

The Appeal

Questions of law and leave to appeal

4. An appeal of a decision other than an interlocutory decision may be brought, under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), on a question of law, or with leave of the Appeal Panel, on any other grounds.

5. As identified in several Appeal Panel decisions, the question of law must be a pure question of law; and must be articulated with precision as, absent leave to appeal being granted, it is the subject matter of the appeal: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]; Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [23].

6. The appellant raised various concerns about procedural fairness, and the appropriate approach the Appeal Panel should take to self-represented parties with limited access to legal resources. The approach the Appeal Panel takes is that identified in in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast), which was referred to with approval in Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(9)]. The Appeal Panel in Prendergast said at [12]:

“In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.”

7. The appellant also submitted that, as an unrepresented litigant with compromised access to legal resources, the Appeal Panel should, in effect, determine the appeal on the universe of materials that the appellant has had access to. He refers to Robinson v Sydney West Area H**ealth S**ervice [2007] NSWADT 77 at [59]:

“In Robinson v Wentworth Area Health Service (No 2) [2005] NSWADT 220 the Tribunal identified the appropriate comparative group in Ms Robinson’s case as being methadone addicts who have to attend the clinic who do not have her disabilities. While the Tribunal cannot make the applicant’s case for her, it is reasonable to imply from Ms Robinson’s evidence that by saying she is unable to meet the requirement of attending the clinic in person because of her chronic back pain and her Hepatitis C, she is comparing herself to those methadone addicts who do not have those disabilities. The Tribunal is a forum that has many self-represented parties appear before it. This requires the Tribunal to give attention to the specific difficulties that face self-represented parties. This in certain circumstances may mean that the Tribunal can rely on the evidence before it to draw conclusions that the party may not have articulated or submitted.”

8. The respondent emphasises that the correct approach was set out by the Appeal Panel in Prendergast, as extracted above, and Ugur v Public Guardian [2023] NSWCATAP 273 citing the observations of McCallum JA in Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] (Basten and Leeming JJA agreeing):

“[T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.”

9. Recently, the Court of Appeal in Chalik v Chalik [2025] NSWCA 136, observed that the type of assistance a court (and, by extension, a member of a tribunal) must provide to a self-represented party is limited to ensuring that the party understands the relevant practice and procedure of the court (or tribunal): Chalik v Chalik (Bell CJ, Payne and Free JJA) at [69]. The Court also said at [70]:

“In Bauskis v Liew [2013] NSWCA 297 at [69], Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant ‘does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant’. In Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:

‘suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.’”

10. The above approach, as reflected in the cases of Prendergast, Ugur v Public Guardian and Chalik v Chalik is the approach we take here. Subject to affording procedural fairness to all of the parties, the Appeal Panel must determine the issues according to law, and not a limited version of it, as accessed by a party who is not represented by a lawyer.

11. The Appeal Panel will consider the grounds of appeal, discern if a question of law arises and if so, then, subject to affording procedural fairness to the respondent, determine whether there has been an error on that question of law. If no question of law arises, the Appeal Panel will consider whether leave to appeal is to be granted; and if so, determine the ground to the extent leave is granted.

12. We see that this is in line with recent authorities, extracted above, in relation to duties of a decision-maker to an unrepresented party.

13. Insofar as leave to appeal is required, the principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of various Appeal Panels, often quoting the leading case of Collins v Urban [2014] NSWCATAP 17. It is only if the decision is affected by sufficient doubt, to warrant its reconsideration on appeal, that leave will be granted. Usually, it is appropriate to grant leave where there is an issue of principle, a question of public importance, or an injustice which is reasonably clear, and beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. It is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact: Collins v Urban at [84].

Standard of review

14. The Appeal Panel invited the parties to provide submissions in relation to whether the appeal was against a discretionary decision. The principles in that event were not in dispute. It is only if there is contended to be an error on a question of law that satisfies one of the errors in House v The King (1936) 55 CLR 499; [1936] HCA 40 that an appeal would lie as of right.

15. As noted in GTK v NSW Treasury [2025] NSWCATAP 174 at [23], following House v The King, the Appeal Panel must be satisfied of one of five types of errors, before disturbing the exercise of a discretion:

“(1) a mistake of law;

(2) the decision-maker acted on a wrong principle, or has not addressed themselves to the statutory question;

(3) a material mistake of fact has been made;

(4) an extraneous, or irrelevant, factor has been taken into account;

(5) a relevant, in the sense of mandatory, factor has not been taken into account.”

16. The real question, however, for the Appeal Panel is whether we are, here, concerned with an appeal from a discretionary decision, or not.

17. A discretionary decision is a decision in respect of which the law permits reasonable minds to differ (GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [26] (Kiefel CJ, Gageler and Jagot JJ)), and, accordingly, there might be more than one legally correct outcome. There may be circumstances where the Appeal Panel would have arrived at a different conclusion to that of the decision-maker, but there is nonetheless no appealable error by the decision-maker.

18. In relation to the different standards of appellate review, a discretionary decision attracts the standard described in House v The King at 504-5 (Dixon, Evatt, McTiernan JJ); [1936] HCA 40. By contrast, where there is only a single legally correct outcome, the correctness standard applies; as explained in Warren v Coombes (1979) 142 CLR 531 at 551-2 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.

19. The respondent submitted, in accordance with our view, that where a “conclusive presumption of an overriding public interest against disclosure” applies, “the Tribunal’s task is to determine whether the information is of a class that is relevantly ‘described’ in Schedule 1.” No exercise of discretion is involved. Accordingly, insofar as the appeal concerns the orders in relation to the warrant and the recordings, the correctness standard applies. The question is one of whether the records contain information that satisfies the statutory definition, or not. There is only one legally correct answer.

20. Insofar as the appeal concerns orders in relation to the s 44 report and the Kennedy affidavit, the Tribunal must undertake a different task.

21. Disclosure of information from these records falls to be considered under s 13 of the Act, which provides as follows:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

22. Section 12(1) of the Act provides that there is a “general public interest in favour of disclosure of government information”. Section 12(2) provides that there are no limits under the Act to what other public interest considerations favour disclosure and gives some examples in the Note to that section. Conversely, s 14(1) provides that Schedule 1 to the Act identifies information for which there is an overriding public interest against disclosure. Section 14(2) identifies that the only other public interest considerations that may be taken into account are listed in the Table to s 14.

23. Once the public interest considerations have been identified, then in a case where there is not a conclusive presumption, the Tribunal must weigh up the considerations to determine whether the public interest considerations against disclosure outweigh the public interest considerations favouring disclosure. It is by this weighing up process that the Tribunal determines whether there is an overriding public interest against disclosure.

24. On this issue, the respondent submitted, that we were indeed dealing with discretionary decisions. The respondent submitted that although it was a nuanced question, ultimately, we should be satisfied that the House v The King standard of review applies. This was primarily because the decision concerned the application of s 13 of the Act, which sets out a public interest test.

25. The respondent relied on what was said by the Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19:

“24 Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

25 The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

26 We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.”

26. The respondent referred to determining the public interest as, inherently, a “subjective task”; requiring the formation of judgements on matters on which minds may reasonably be expected to differ. In particular, so it was submitted, the attribution of weight to the considerations for and against disclosure and the balancing of these considerations against one another involves a discretionary judgement of the Tribunal.

27. The respondent relies on the observations in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94]:

“Ultimately, the balancing of these competing interests is a question [of] fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.”

Determination of whether a decision under s 13 of the Act is discretionary

28. We were not directed to, and nor did we find, a case where this question has been definitively considered.

29. Whether a decision would be described as discretionary or not was considered by the High Court in Coal and Allied Operations Pty Ltd v A**ustralian I**ndustrial R**elations C**ommission (2000) CLR 194; [2000] HCA 47 (Coal and Allied Operations), which concerned a power, once satisfied of certain matters, to terminate a bargaining period in an industrial dispute. At [20] it was said by Gleeson CJ, Gaudron and Hayne JJ:

“In the present case, the decision by Boulton J to terminate the bargaining period involved, in effect, two discretionary decisions. The first was as to his satisfaction or otherwise that the industrial action being pursued posed a threat for the purposes of s 170MW(3) of the Act. Although that question had to be determined by reference to the facts and circumstances attending the industrial action taken in support of claims with respect to a certified agreement, the threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity. In a broad sense, therefore, that decision can be described as a discretionary decision. And if Boulton J was satisfied that there was a threat for the purposes of s 170MW(3), that necessitated the making of a further discretionary decision as to whether the bargaining period should be terminated.”

30. The first question, which required “a degree of subjectivity”, was described as being “in a broad sense” discretionary.

31. Whilst we accept that the weighing up exercise required by s 13 of the Act, requires the application of a subjective judgement and that the decision-maker must decide what weight to give certain factors, ultimately, there is one legally correct answer: there either is an overriding public interest against disclosure, or there is not. The subjective evaluation process that goes into arriving at the conclusion does not detract from this.

32. In determining whether a decision is discretionary or not (in the sense of attracting the House v The King standard), “[t]he line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [49] (Gageler J).

33. We are therefore satisfied that the statutory task in s 13 of the Act of determining whether there is an overriding public interest against disclosure, which may, aptly, be described “in a broad sense” as being discretionary, does not attract the House v The King standard of review.

34. Accordingly, we apply the correctness standard insofar as the appeal concerns the application of s 13 of the Act.

35. We deal first with Ground 11, as this ground raises several complex issues.

Ground 11

36. Ground 11, in terms, provides as follows:

“Whether the sound recordings and other related documents previously used in a trial proceeding can be classified as a conclusively presumed that there is an overriding public interest against disclosure under 14(1) of the GlPA Act and had been misused in such a way to cause undue prejudice against the appellant during the Trial in 2019 over improper motives to exclude information by misusing such provisions.

(a) Sound recordings and other related documents previously used in a trial proceeding can not be classified as a conclusively presumed that there is an overriding public interest against disclosure under 14(1) of the GIPA Act.

(b) Common Law Rights to disclose documents that had been used against one liberty prevails over statutory provisions.

(c) Evidence of similar documents in other cases that had not been classified under 14(1) of the GIPA Act.

(d) Whether the Crown Solicitor had the same discretionary powers as the Director of Public Prosecutions delegation to release protected documents by consent.

(e) The Director of Public prosecutorial functions do not continue well after 7 years when trial proceedings and sentence has been finalised and the prosecuting functions have now ended.

(f) The Respondent supressing is false evidence by misusing the provisions within the GIPA Act for an improper purpose by classifying all of the contents of the document that has false evidence contained within that document as a conclusively presumed that there is an overriding public interest against disclosure.

(g) Whether a document that contains false evidence can be suppressed by classifying such a document as a conclusively presumed that there is an overriding public interest against disclosure.

(h) The words in the GIPA Act about excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency but that function has now been finalised and cannot be relied by the Respondent that it remains a function forever.

(i) The words in the GIPA Act about excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency but that function has now been finalised and cannot be relied by the Respondent that it remains a function forever.”

37. This ground raises the question of whether the Tribunal misconstrued s 14(1), and cl 1 of Sch 2 (prosecuting functions) of the Act. A misconstruction of the statute constitutes a question of law: Unique at [32] citing Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 at [66].

38. Another way of considering this ground is that the appellant is contending that on the facts as found, the information is not capable of satisfying the statutory definition of excluded information. This too raises a question of law: Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139 at 156; Hope v Bathurst City Council (1980) 144 CLR 1 at 7 and 10; Australian Gas Light Co v Valuer*‑*General (1940) 40 SR (NSW) 126 at 138; Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 at [9]-[13], [23(5)].

39. This ground raises a question of law irrespective of whether the correctness standard or the House v The King standard applies, because a misconstruction of statute is a House v The King ground.

40. This ground concerns the finding of the Tribunal that the recordings contain information which relates to the prosecuting functions of the ODPP: Decision at [67]. Whilst the appellant directs this ground to the “recordings and other related documents previously used in [the] trial proceeding”, the appellant clarified in oral submissions that he does not seek information pertaining to the warrant. We consider this ground in relation to the recordings; however, we note that, in any event, our findings in relation to the recordings as “excluded information” also apply to the other related documents, used in the trial.

41. The Tribunal said at [183]:

“Having reviewed the sound recordings in chambers, I am satisfied that they are information that relates to the prosecuting functions of the ODPP. Therefore, cl 1 of Sch 2 of the GIPA Act applies to them. It follows that under cl 6(1) of Sch 1 of the GIPA Act, I am satisfied that they are excluded information of the ODPP and the ODPP has refused to consent to disclosure.”

42. The appellant contends that the “sound recording evidence, including the transcripts and other related documents that had been previously used in a trial proceeding in 2019” are not “excluded information” under the Act, on numerous bases. The main issue adverted to by the appellant is that the Tribunal’s interpretation of “prosecuting functions” of the ODPP is impermissibly wide.

43. The respondent acknowledges that Ground 11 may be taken to raise a question of law, but submits that there is no relevant error of law in the Decision. The respondent rejects the appellant’s submission that the recordings cannot be excluded information of the ODPP, citing numerous tribunal decisions which illustrate the adoption of a wide interpretation of both “prosecuting functions” and information that “relates to” a function.

Relevant legislation

44. Section 14(1) of the GIPA Act:

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

45. Schedule 1 to the GIPA Act relevantly provides:

Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure

…

6 Excluded information

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

46. In cl 1 (Definitions) of Sch 4, “excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency”. Clause 1 of Sch 2 to the GIPA Act provides:

Schedule 2 Excluded information of particular agencies

Note.

Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.

1 Judicial and prosecutorial information

…

The office of Director of Public Prosecutions—prosecuting functions.

47. It follows that if the recordings come under the rubric of “prosecuting functions” of the ODPP, it is “excluded information” under Sch 2, cl 1 of the Act. It is then conclusively presumed that there is an overriding public interest against its disclosure, unless the ODPP consents to disclosure: the Act, Sch 1, cl 6(1). It is apparent that, here, the ODPP refused consent to disclosure: Decision at [183].

48. Therefore, the question is whether the recordings come under “prosecuting functions” of the ODPP. “Prosecuting functions” is not defined in the Act. However, the term “function” and “exercise a function” are defined in Sch 4, cl 1 as follows:

exercise a function includes perform a duty.

function includes a power, authority or duty.

Must the function be an extant function?

49. The appellant submitted that in order to be properly regarded as coming within the ODPP’s prosecuting function, the information must relate to a current prosecuting function.

50. Despite the shift in focus towards disclosure, as reflected in the Objects to the Act and various other sections (such as ss 7, 11 and 12(1)) and the following comments from the second reading speech of the Legislative Council for the Government Information (Public Access) Bill 2009, there are nonetheless clear exemptions – such as for information relating to the prosecuting functions of the ODPP. The second reading speech noted that (New South Wales, Parliamentary Debates, Legislative Council, 24 June 2009 (the Honourable Tony Kelly) at 16616, 16618 and 16618 respectively):

“The new legislation shifts the focus toward proactive disclosure.”

“These bills constitute a fundamental freedom of information revolution.”

“The bills mark a paradigm shift. Our public sector must embrace openness and transparency and Governments must forever relinquish their habitual instinct to control information.”

51. Despite a clear predisposition towards disclosure, there are clear cases where disclosure is not to be presumed: where there is a conclusive presumption against disclosure. See for instance, the Honourable Tony Kelly at 16616:

“The bills continue to ensure that the confidentiality required in respect of Cabinet information, law enforcement and safety information, sensitive commercial information and private information will be adequately protected. The new legislation specifies some information for which it is conclusively presumed that there is an overriding public interest against disclosure. Apart from these prescribed cases, agencies will be required to apply a public interest test on a case-by-case basis.”

52. In construing an exemption, it would be inapposite to have regard to the, otherwise, pro-disclosure inclination of the Act. Otherwise, this risks undermining the exemption. This is the position, even though s 3(2) of the Act provides that the Act is to be interpreted and applied so as to further the object of the Act. This is because the Object, itself, highlights that access to government information may be restricted where (but only where) there is an overriding public interest against disclosure: the Act, s 3(1)(c).

Murdoch case

53. Before considering the submissions of the parties, it is useful to highlight a recent case of the Tribunal.

54. In Murdoch v Commissioner of Police, NSW Police Force [2025] NSWCATAD 196, the applicant was serving a lengthy custodial sentence, and wished to challenge both his conviction and the sentence imposed. The applicant sought information from the Commissioner of Police relating to the investigation which led to his conviction. The information was also held by the ODPP, in the brief of evidence served on the applicant at the time he was prosecuted, in 1987 (almost 40 years prior). The applicant was, at a prior time, in possession of the information that he now sought, but claimed that the physical files were since lost. The Tribunal found that the information related to the prosecuting function of the ODPP; and was “excluded information” under the Act; notwithstanding that the prosecution had long since ended.

55. The Tribunal in Murdoch noted as follows:

56. The prosecuting function was “instituting and conducting the prosecution” of the applicant (at [23]).

57. There is a “direct and substantial relationship” between the information and the function of instituting and conducting prosecutions. This relationship existed because the “brief of evidence is one of the mechanisms by which prosecutors comply with the obligations for disclosure of evidence to the accused in the prosecution of indictable offences under the Criminal Procedure Act 1986 (NSW). The brief of evidence contains the evidence on which the prosecution is based” (at [29]).

58. After noting that the brief of evidence was generated by the NSW Police Force and not the ODPP, the Tribunal adopted the reasoning in Betzis v Commissioner of Police [2020] NSWCATAD 71 (Betzis) at [36], finding that it is “irrelevant whether there was any involvement of the office of the DPP in producing the information” (at [30]).

59. That the information is required to be excluded information “in the hands of the Commissioner” (at [31]). The Tribunal found that excluded information includes information held by one agency that is the excluded information of another agency, “[d]espite what was said by the Tribunal in EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94 at [32]-[33]”.

60. The Tribunal, in Murdoch, noted that “[e]ven if that result is ‘curious’ or ‘unfair’, the Tribunal must determine and apply its understanding of the applicable law. If there is an anomaly or injustice, that is a matter for the legislature to address” (at [10]).

Whether the prosecuting function has ended

Appellant

57. The appellant contends that the Director of Public Prosecution’s prosecutorial functions “do not continue well after 7 years when trial proceedings and sentence has been finalised and the prosecuting functions have now ended”.

58. The appellant, in oral submissions, contended that his criminal proceedings have already concluded: they occurred 10 years prior, and, pursuant to s 7 of the Court Information Act 2010 (NSW), criminal proceedings are concluded when the accused person is discharged, acquitted, or the court makes a finding that the accused person is guilty.

Respondent

59. The respondent submits that the fact that a prosecution has concluded “does not alter the character of information” as information that “relates to” the ODPP's prosecuting functions. The respondent submits that this was “implicit” in the Tribunal's conclusions in Murdoch, as the material in issue in Murdoch was sound recordings and other statements dating from 1986, included in a prosecution brief of evidence for offences for which the applicant was convicted in 1987.

Consideration

60. As detailed above, the Tribunal in Murdoch found that information contained in the prosecutorial brief prepared by the ODPP for the prosecution of the access applicant, was excluded information under the Act, notwithstanding the passing of almost 40 years since the conviction of the applicant. The Tribunal found that there existed a direct and substantial relationship between the information sought and the ODPP’s function of instituting and conducting prosecutions (at [29]).

61. The Act is silent on the need for any temporal connection to the prosecuting functions. Further, there is nothing in the text of the Act, construed in context, that would suggest that the prosecuting functions must be “extant”.

62. Notably, the Act provides that information access requests can be made to defunct agencies (as any government information taken to be held by the former agency is instead taken to be held by the successor agency: Sch 4, cl 14). The Act envisions that information access requests may be made for information from earlier periods of time: the Act does not impose a temporal limitation on information being considered “government information”.

63. We see no principled basis to depart from the Tribunal’s approach in Murdoch.

Other aspects of “prosecuting functions”

Whether information can relate to two functions

Appellant

64. The appellant submits that “signing on oath an affidavit in order to apply for a surveillance device warrant and then to record a phone conversation” are functions of the NSW Police Force, and not the functions of the ODPP.

Respondent

65. The respondent submits that the mere fact that the NSW Police Force prepared the documents for the prosecution brief, does not mean that the brief is no longer properly considered “excluded information”. The respondent submits that an analogy may be drawn with the Tribunal's consideration of coronial briefs prepared by the NSW Police Force for the Coroner, comprising evidence obtained in the investigation of a death, in the matter of Betzis.

66. The respondent highlights that, in Betzis*,* the Tribunal accepted that all information contained in the brief was “excluded information” of the Coroner, as it related to the exercise of the Coroner's judicial functions. In particular, so it is said, the Tribunal was satisfied that the Coronial Brief was integral to the Coroner's decision-making process in dispensing with an inquest and was, therefore, information that related to the Coroner's judicial functions. In finding the information to be excluded information, the Tribunal is said to have found that:

67. “[the] fact that the document was prepared by the NSW Police Force arising out of its investigations into the death...does not detract from its character as information prepared for and relied upon by the Coroner in the exercise of her judicial functions under the Coroners Act” (at [36]);

68. the fact that access to most of the Coronial brief had been provided through other means (that is, by service on interested parties) had no bearing on whether the information was excluded information under the Act (at [37])**; and

69. the fact that the information was also held by the NSW Police Force in its E@gle.i system did not alter the character of the information as excluded information of the Coroner (at [41]).

Consideration

67. We follow the approach of the Appeal Panel in Betzis that merely because information relates to one function does not mean that it does not also relate to another function; including one that would mark the information as excluded information.

68. Accordingly, we are satisfied that the mere fact that the information relates to functions of the police is not a reason to exclude it from relating to prosecuting functions of the ODPP.

How wide an interpretation ought to be given

Appellant

69. The appellant submits that a wide meaning of “prosecuting functions” as to encompass the surveillance device and related documents is not supported by the legislative intention, including the purpose of the Act. The appellant submits that the respondent has not established a legislative intent “to not disclose Trial Court documents to a principal party to the proceedings”. The appellant contends a literal interpretation should not be applied, as this would produce an unsatisfactory and unintended result of, so we apprehend the appellant’s submission, “prosecuting functions” extending to any document.

70. The appellant submits that the Act “should be interpreted and applied so as to further the object of this Act, and that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information”, and that, under s 32 of the Interpretations Act 1987 (NSW), the phrase “prosecuting functions” should not be construed so as to exceed the power conferred by the GIPA Act.

71. Instead, the appellant submits that the use of extrinsic materials to support the interpretation of “prosecuting functions” is required in order to prevent the respondent from impermissibly extending “prosecuting functions” to any document. Otherwise, so it is said, the respondent can rely on a “mere assertion” that a document falls under its “prosecuting functions”.

72. Some of the extrinsic aids that the appellant proffers as examples include that the functions of the Director of Public Prosecutions is contained in s 7 of the Director of Public Prosecutions Act 1986 (NSW), which is “silent” on prosecuting functions including surveillance device warrants to record a phone conversation. A further example is r 2.22 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), which provides that reasonable assistance is to be provided by the prosecutor to a defendant appealing a conviction, in certain circumstances.

73. Finally, the appellant submits that if multiple constructions are available, and “if one construction will manifest an injustice of a civil right and the other avoid it, the latter construction should be adopted”, citing Public Transport Commission of New South Wales (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350 (Gibbs J); [1975] HCA 28; Commissioner of Taxation (Cth) v Smorgon (1979) 143 CLR 499; [1979] HCA 67 and State of Victoria v R [2014] VSCA 311 at [61] for this proposition.

Respondent

74. The respondent submits the Tribunal has appropriately given a wide interpretation to both what constitutes the prosecuting functions of the ODPP and the phrase "relates to", and that records that are included in a prosecution brief of evidence are plainly information that relates to the exercise of the ODPP's prosecution functions.

75. The respondent relies on the cases of DF v Attorney General’s Department [2002] NSWADT 164 and Miller v Director of Public Prosecutions [2012] NSWADT 38 (Miller).

76. The respondent submits that in DF v Attorney General's Department, the Tribunal, considering an equivalent provision under the (now repealed) Freedom of Information Act 1989 (NSW), found that “prosecuting functions” extended beyond in-court conduct of a prosecution, to cover all the professional and administrative tasks connected with the preparation of a case for trial and its outcome, including review of the outcome and taking any further action in respect of the case (such as a decision to appeal, and the appeal).

77. The respondent submits that this analysis was applied with respect to the construction of Sch 2 to the GIPA Act in Miller, with the Tribunal accepting that "prosecuting functions" should be given a wide meaning. While acknowledging that not all functions of the ODPP were prosecuting functions, the Tribunal found that documents which were generated in the context of a complaint about the manner in which the ODPP had exercised its prosecuting functions, were sufficiently connected to the exercise of those functions as to be excluded information for the purpose of s 43 of the GIPA Act.

Consideration

78. In the decision below, the Tribunal, in considering the scope of the DPP’s prosecuting functions, noted that regard “may be had to the Director of Public Prosecutions Act 1986 and particularly Pt 3, which sets out the principal and other functions of the Director, Deputy Director and Solicitor for the Director” (Decision at [68]). These principal functions and responsibilities included the instituting and conducting of prosecutions (Decision at [68]). The Tribunal noted that the ODPP “confirmed that both the SDW and the recordings were included in the brief of evidence held by the ODPP in relation to the criminal proceedings involving the applicant” (Decision at [74]). The Tribunal further noted that “this is also reflected in the brief indexes prepared by NSW Police Force and the ODPP with respect to charge H61444788” (at [74]). The Tribunal then concluded that the information is excluded information of the ODPP for the purposes of the Act (at [74]).

79. On the facts as found, the recordings were integral to the prosecutorial function. On any view of how widely or narrowly the provision should be construed, material in a prosecutorial brief falls within its reach.

80. Whilst the appellant contends that any prosecuting function ended years ago and there is no appeal on foot, such that the prosecuting function might be considered to have been finalised, we do not consider that this of its own, takes the records beyond the ambit of the exemption. As discussed above, there is no basis to construe prosecuting function as requiring an extant function.

“relates to”

81. The appellant contends that the ambit of this expression should not be construed too broadly.

82. The respondent submits that records that are included in a prosecution brief of evidence are plainly information that “relates to” the exercise of the ODPP's prosecution functions.

83. The respondent submits that the Tribunal's approach in Miller also reflects the broad interpretation that has been given to the words “relates to”, when considering whether information relates to a Sch 2 agency's nominated functions. The respondent adverts to the approach taken by the Tribunal in N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33 (N (No 2)) in relation to the interpretation of the words “relate to” in a provision under the (now repealed) F**reedom of I**nformation Act.

84. The Tribunal in N (No 2) found “[t]his interpretation of ‘relate to’ is similar to that adopted in relation to the words ‘in connection with’ in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 upon which counsel for the respondent relied by way of analogy…I agree with counsel for the respondent that the words ‘relate to’ have a similar broad connotation” (at [32]-[33]). The respondent submits that this analysis has been applied to the GIPA Act*,* as outlined by the Tribunal in Betzis at [34]:

“The expression ‘relate to’ has been held to be one of broad import: see, for example, Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 11. This Tribunal has generally held that the phrase ‘relating to’ and similar expressions is a broad one to be construed with the widest import (Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19]-[23]; Pertsiniclis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]). As the Tribunal noted in Watson v NSW Trustee and Guardian [2015] NSWCATAD 139, at [15], in each case, the question is the extent to which the information in issue has a connection with a specified function.”

85. The respondent submits that records that are included in a prosecution brief of evidence are plainly information that “relates to” the exercise of the ODPP's prosecution functions, as a brief of evidence is the mechanism by which prosecutors comply with the obligations for disclosure of evidence in the prosecution of indictable offences under the Criminal Procedure Act 1986 (NSW). Information within a brief is said to “thus has a direct, causal connection” to the exercise of the ODPP's functions in the prosecution of indictable offences. The respondent submits that the Tribunal has recently “confirmed” that information contained in a prosecutorial brief is excluded information of the ODPP in Murdoch at [29].

Consideration

86. Here, the information relates directly to the prosecuting functions. As part of the brief of evidence by which the ODPP is performing its functions, the information relates in an integral way to the relevant functions.

87. As noted above, we are satisfied that the mere fact that the information relates to functions of the police is not a reason to exclude it from relating to prosecuting functions of the ODPP; including where this would cause the information to be “excluded information”.

Disclosure of information during criminal proceedings

Appellant

88. The appellant submits that the documents had been previously used in court proceedings, which has altered their confidentiality.

Respondent

89. The respondent submits that even where information within the brief has been served on a person, or adduced into evidence, or played in open court, this does not alter the characterisation of the information as “excluded information”, citing Betzis at [37] and Murdoch at [34] as authorities for this proposition. The respondent submits that these considerations are properly considered “factors” which might have “some bearing on the ODPP's consideration of whether to consent to the disclosure of the excluded information, where there has been consultation as required by Sch 1 cl 6(2)”. Nevertheless, the respondent emphasises that cl 6(3) of Sch 1 “makes it clear that any decision of the ODPP to refuse consent to disclosure is not reviewable by the Tribunal”.

Consideration

90. The fact that the material has been disclosed to the access applicant by some other means, does not affect the analysis.

91. The information either is or is not within the ambit of the exclusion. There is no exception to the exclusion for information that is in the public domain; or otherwise known to the access applicant.

92. The analysis of “excluded information” under the Act is as follows. An applicant makes an access application under s 41 of the Act. The agency decides the application in one of the ways provided for in s 58. Here, the respondent agency has decided to refuse to provide access to the information because there is an “overriding public interest against disclosure” under s 14(1). There is an overriding public interest against disclosure because the appellant’s application is an application for government information described in Sch 1, in particular, cl 6 of Sch 1, which provides that “[i]t is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of”. To determine whether the information the subject of an access application is excluded information of an agency, one goes to the definition in cl 1 of Sch 4 of “excluded information”, which says that it is information that relates to any function specified in Sch 2 in relation to the agency. Clause 1 of Sch 2 identifies that for the ODPP, it is the prosecuting functions. Therefore, if the access application seeks information that relates to prosecuting functions of the ODPP, then that information is excluded information.

93. It is irrelevant to that analysis whether that information is already in the public domain, or not. There is no analysis required of whether the access applicant is aware of the information, has the information via another source, or whether the information is in the public domain, or not. For the operation of this exclusion, it is necessary only to decide whether the information fits the description of “excluded information” of an agency, in this case, the ODPP.

Whether agency consent properly sought

Appellant

94. The appellant submits that the letter said to evidence refusal of consent by the ODPP is “improper”, as it is a letter from the Deputy Crown Solicitor which provides “no indications that the Deputy Crown Solicitor had sought for consent from the Director of Public Prosecutions and the Attorney General to release these documents”. The appellant submits that the Director of Public Prosecution is required to consult with the Attorney-General. This interpretation of the statute is said to be supported by the use of s 25 of the Director of Public Prosecutions Act 1987 (NSW) as extrinsic materials.

95. Because the proper process has not been followed, so it is said, cl 6(3) of Sch 1 to the GIPA Act does not apply, as to do so would not be in the interests of justice.

Respondent

96. The respondent maintains that the issue of consent is not within the jurisdiction of the Tribunal.

Consideration

97. The respondent contends that cl 6(3) of Sch 1 “makes it clear that any decision of the ODPP to refuse consent to disclosure is not reviewable by the Tribunal”. Clause 6(3) of Sch 1 to the Act provides:

A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

98. Here consent was sought and refused. From the Tribunal’s perspective, there was nothing to review; and we see no basis to affect the appeal.

Role of alleged impropriety

Appellant

99. The appellant contends that the respondent is relying on the information relating to “prosecuting function” for an “improper purpose”, and to “hide” “corruption”.

Respondent

100. The respondent submits that, insofar as the appellant alleges impropriety in the manner in which the prosecution was conducted, the manner in which his trial proceeded, and his conviction, that these are matters that can be pursued by other avenues, and do not give rise to a right to access information which is subject to an overriding public interest against disclosure under the Act.

Consideration

101. Once satisfied that the information is excluded information, that is the end of the analysis for the Tribunal. It is not for the Tribunal to consider whether this result serves some other purpose.

Whether “similar cases” allowed the disclosure of sound recordings

102. The appellant contended there are other cases in which applicants were granted access to sound recordings, namely Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48 (Cousins) and Cheung v Commissioner of Police [2019] NSWCATAD 249 (Cheung). Cousins involved telephone call recordings between the paramedic (who was the applicant) and triple zero, and Cheung concerned body-worn footage of a police officer conducting a traffic stop on the applicant.

103. These cases concern s 14(2), rather than s 14(1), of the GIPA Act. Section 14(2) requires the decision-maker to determine whether there is an overriding public interest against disclosure of government information. It is to be contrasted from s 14(1), which does not involve a balancing exercise by the decision-maker: if information is determined by the decision-maker to answer the description of “government information described in Schedule 1”, then it is conclusively presumed that there is an overriding public interest against disclosure. Furthermore, the cases did not involve surveillance recordings and related documents used in criminal proceedings.

104. Further, to the extent that the appellant submitted it was necessary to weigh up the factors, this was not here necessary where the records are conclusively presumed to be subject to an overriding public interest against disclosure because they are excluded information of the ODPP. It was not necessary for the Tribunal to then consider the application of the Surveillance Devices Act to the recordings.

The documents cannot be protected as they contain the appellant’s information

105. The recordings record phone calls between the appellant and the complainant in the criminal proceedings. The appellant submits that the recordings and related documents cannot be protected as they contain his own personal information. Authority for this proposition is said to derive from the Australian Law Reform Committee Report of 1995 on the Freedom of Information Act 1982 (Cth).

106. However, where information is excluded information, there is no exception to the exclusion from disclosure.

Conclusion on Ground 11

107. We have found that the recordings were integral to the prosecuting functions of the ODPP. We have rejected the appellant’s contention that the prosecuting functions must be extant, and found that there is no temporal element in prosecuting functions. The fact that the material has been disclosed to the appellant by some other means, and allegations of impropriety on the part of the respondent in relying on the information as excluded information, does not affect the information constituting excluded information under the Act. Furthermore, we have noted that the non-consent by the ODPP to the disclosure is not reviewable by the Tribunal.

108. Ground 11 is dismissed.

109. We turn now to consider the remaining grounds of appeal.

Ground 1

Does Ground 1 raise a question of law

110. Before setting out the terms of Ground 1, it is useful to put this ground in context. The appellant alleges that there were words inserted into the transcript of the recordings, that were placed in evidence in his proceedings before the District Court of NSW, leading to his conviction. These words were described as “three invented words”. The appellant contends that these invented words, which found their way into the transcript of the recordings, “must be” at odds with the recordings; and therefore, demonstrate fraud and corruption.

111. In terms, Ground 1 provides as follows:

“The Senior Tribunal Member had failed to consider the appellants indispensable, established and very compelling evidence of corruption located within protected documents including further evidence of corruption remaining within the protected documents.

(a) The Senior Member had erred into what constitutes corruption which had caused inadequate inspections be conducted causing a serious miscarriage of justice.

(b) The Senior Tribunal Member had erred with a reasonable duty to report corruption and misconduct.

(c) The tribunal erred at para [66] of ("the original decision") stating the exhibits will be considered is contrary to a statement made at para [146] of ("the original decision") inferring that there is no current complaint against a public officer or in any event, such a complaint would be beyond the Tribunals jurisdiction.

(d) There is no indication within ("the original decision") that the presiding Senior Tribunal Member had carefully checked phone recording transcripts against the audio recordings to a required standard which was authorised by another Senior Tribunal Member for lawful inspections be made to the protected documents.

(e) Whether wilful blindness had eroded the Senior Tribunal Members considerations into making the correct and preferable decision on such complaints of corruption established within the protected documents according to exhibit evidence.

(f) The Senior Tribunal Member had disregarded Parliaments intentions that protected documents is no longer a protected documents when established corruption exists within those protected documents.

(g) The Senior Tribunal Member had failed to consider that disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.”

112. By this ground, the appellant contends that the Senior Member failed to consider his submission that the Tribunal should take into account a relevant public interest consideration, that the information in the recordings could reasonably be expected to reveal or substantiate corruption in the course of criminal proceedings; which is said to be a factor contained at item (e) of the Note to s 12 of the Act:

12 Public interest considerations in favour of disclosure

(1) There is a general public interest in favour of the disclosure of government information.

(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note.

The following are examples of public interest considerations in favour of disclosure of information—

…

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

113. By this ground, the appellant also submits that the Tribunal failed to consider his submission that the evidence of fraud transformed the character of the government records from being privileged, confidential or protected, to not being so. The appellant submits that the Tribunal missed the point, as he was not trying to prove corruption, but rather, he was trying to point to the evidence of corruption to prove that the documents were no longer protected.

114. The respondent submits that Ground 1 does not raise a question of law, and leave ought not to be granted to rely upon it. However, on a fair reading of the appellant’s ground, he is contending that the Tribunal failed to consider a critical submission and evidence, that was material to the Decision. Whether there has been a material breach of procedural fairness is a question of law that arises on the appeal: Kudrynski v Orange City Council [2024] NSWCA 33 at [52].

115. For the purposes of this question, it is of no moment whether the decision appealed from attracts the House v The King grounds, as it goes to the efficacy of the hearing process. A material breach of procedural fairness constitutes a jurisdictional error: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1] (Kiefel CJ, Keane and Gleeson JJ), [45] (Gageler J); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

116. In particular, having regard to the way Ground 1 is put, it is that the Tribunal erred in failing to consider the evidence of corruption, when Parliament’s intention was that “protected documents” are no longer protected from disclosure, “when established corruption exists within those protected documents”, or when disclosure of the information could reasonably be expected to reveal or substantiate that an agency has engaged in misconduct.

117. We accept that Ground 1 raises a question of law.

Determination of Ground 1

118. The appellant contends that there are indications in the Decision that the Tribunal did not consider his contentions that the accuracy of transcripts of the recordings was relevant to the access application.

119. The Tribunal said at [181]-[183]:

“181 The applicant also argues that the Tribunal should review the sound recordings in order to ascertain the accuracy of the transcripts presented in his criminal trial in the District Court of NSW.

182 This Tribunal does not have jurisdiction to review the accuracy of evidence relied upon in the District Court proceedings, although I note that the transcripts lodged by the applicant in these proceedings indicate that the Court spent considerable time during the trial in verifying the accuracy of the transcribed sound recordings.

183 Having reviewed the sound recordings in chambers, I am satisfied that they are information that relates to the prosecuting functions of the ODPP. Therefore, cl 1 of Sch 2 of the GIPA Act applies to them. It follows that under cl 6(1) of Sch 1 of the GIPA Act, I am satisfied that they are excluded information of the ODPP and the ODPP has refused to consent to disclosure.”

120. Further, the Tribunal at [189]-[191] said as follows (original emphasis):

“189 The applicant invoked s 12 of the GIPA Act in his grounds for review and referred to ‘possible police misconduct or corruption’, alleges that ‘warrant information was not disclosed in the trial proceedings by NSW Police or the trial prosecutor’ and raises ‘suspicion of the police records, maybe a false instrument’.

190 However, the respondent argued that there is nothing in the material before the Tribunal that would support a finding that disclosure of the disputed information ‘could reasonably be expected to reveal or substantiate’ misconduct (using the language of (e) to the note to s 12(2)). However, it accepted that the applicant's concerns regarding the conduct of the criminal proceedings, and his subsequent motivation for seeking access to information, are personal factors that add weight to the public interest considerations in favour of disclosure.

191 I accept the respondent’s submissions that the evidence before me does not support a finding that disclosure of the disputed information could reasonably be expected to reveal or substantiate misconduct by the NSWPF.”

121. Whilst the Tribunal does not set out, in terms, the appellant’s contention that evidence of corruption undermines the protected nature of records, it cannot be said that the Tribunal failed to consider, in the requisite sense, the appellant’s evidence and submissions concerning the alleged disparity between the recordings and the transcript.

122. First, it is plain, from [183] of the Decision, that the Tribunal reviewed the recordings. Second, after noting that the applicant was raising concerns about inaccuracies, the Tribunal stated its reason for finding that cl 1 of Sch 2 of the GIPA Act applies, as being due to the Tribunal’s satisfaction, after a review of the recordings, “that they are information that relates to the prosecuting functions of the ODPP” (Decision at [183]). Third, the Tribunal accepted the respondent’s contention, and rejected the appellant’s contention that the material before the Tribunal supported a finding that disclosure of the disputed information “could reasonably be expected to reveal or substantiate misconduct” (Decision at [191]).

123. It is apparent from the Decision that the Tribunal dealt with the concept of corruption and fraud within the concept of misconduct. The Tribunal adopted the wording of “misconduct” from (e) to the Note to s 12(2) of the GIPA Act as all-encompassing, to deal with the appellant’s contention of “misconduct or corruption”.

124. In rejecting the contention that there was evidence to be found in the recordings which supported a finding of misconduct, the factual basis for the appellant’s submission that evidence of corruption should undermine the characterisation of protected documents was rejected; even if the Tribunal might otherwise have been satisfied that the contention, as a matter of construction of the Act, was open. There was no need to expressly reject the appellant’s contention.

125. Ultimately, the Tribunal accepted that the appellant’s concerns regarding conduct leading to his conviction, and his motivation for seeking access to the information, were personal factors that added weight to the public interest considering in favour of disclosure decision (Decision at [190]).

126. The question for the Appeal Panel is whether the Tribunal correctly apprehended the appellant’s submissions and considered the evidence in relation to it.

127. It is not necessary for a Tribunal to refer to every argument of a party: D’Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [230] (Beazley P, Bathurst CJ and Bathurst JA agreeing); (2013) 202 ALR 242 citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]-[47] (French, Sackville and Hely JJ).

128. In light of the foregoing, it is apparent that the Tribunal, in fact, had regard to the appellant’s evidence and submissions, and therefore there is no error on the question of law raised by Ground 1.

129. Ground 1 is dismissed.

130. For completeness, whilst this ground was run as raising a question of law, as it was underpinned by the way the Tribunal viewed the facts, we turned our minds to whether we ought to consider leave to appeal. However, we do not see this as a matter that would warrant leave to appeal, even if the recordings are as contended, as we do not see the prospects to be sufficient and do not apprehend a wider point of principle beyond the impact to this case.

131. Furthermore, the Appeal Panel noted, during the hearing, that the Appeal Panel would review the recordings, if it were relevant to one of the grounds of appeal. As we have determined that there is no error on a question of law, and that we would not grant leave to appeal, it is not necessary to so do.

Ground 2

132. Ground 2, in terms, provides as follows:

“The Tribunal Members had not considered the appellants strongest factual material of the identified corruption established within the protected documents causing procedural fairness.

(a) The reliable evidence from the Supreme Court regarding surveillance warrants not on file should of been an important fact finding exercise but not been considered in order to disclose the document under the GIPA Act at section 12(2)(e).

(b) During the hearing the Tribunal refused to accept the Telecommunications (Interception and Access) Act was relevant to the real issues in dispute.

(c) The Tribunal had disparaged the appellants complaints regarding of NSW Police's non-compliance regarding procedures in phone tapping a Telecommunications lawful including validity requirements as not part of a GIPA review and decision is contrary to section 12(2)(e)the GIPA Act.

(d) The Tribunal failed to consider section 40(3)-(9) within the SD Act the exemptions that do apply to the appellants complaints of NSW Police corruption.

(e) Tribunal had made no specific findings on the appellants material questions of fact and preferred mainly rely on the Respondents findings.”

133. Ground 2 is also couched as a material breach of procedural fairness. Again, the appellant asserts that the Tribunal did not consider the appellant’s factual material said to point towards corruption; albeit it focusses on slightly different aspects.

134. The appellant asserts that the Tribunal has wrongly ignored complaints regarding the NSW Police’s purported non-compliance regarding procedures in phone tapping, that the Supreme Court, itself, did not have the surveillance warrants on file, and that the Tribunal failed to consider ss 40(3)-(9) of the Surveillance Devices Act, which provides exemptions to the information sought, due to the appellant’s complaints of corruption.

135. However, it is apparent that the Tribunal indeed had regard to the appellant’s submissions; yet concluded in a manner contrary to them. One aspect of the appellant’s contentions is that the Tribunal simply accepted the respondent’s submissions. A fair reading of the Decision is that the Tribunal, having identified the principles from other cases and having reviewed the evidence, was not merely blindly accepting the respondent’s submissions. The Tribunal was considering the evidence and principles raised.

136. As was the case with Ground 1, the Tribunal rejected the appellant’s contention that there was a sufficient basis to find that the materials “could reasonably” be expected to reveal or substantiate misconduct (which we read to apprehend corruption and fraud): Decision at [191]. Put another way, the Tribunal rejected the appellant’s asserted factual basis which underpinned his contentions. Even assuming the legal arguments as to the relevance of evidence of corruption on the Act and the Surveillance Devices Act could be made out, there was no sufficient basis, in fact, to make good those arguments.

137. No material breach of fairness is discernible.

138. Whether the Tribunal was right or wrong as to that factual basis, is not a matter for an appeal on a question of law. For completeness, we note that we do not see this as a matter that would warrant leave to appeal, as we do not see the prospects to be sufficient and do not apprehend a wider point of principle beyond the impact to this case.

139. Ground 2 is dismissed.

Ground 3

140. Ground 3, in terms, provides as follows:

“The Senior Tribunal Member had misunderstood the powers given under the NCAT, ADR and GIPA Acts to report misconduct of an agency.

(a) The Senior Tribunal Member failed to apply the relevant legislation provisions regarding the real issues in dispute according to NCAT 63(1)(a)(b) & (2).

(b) Failed to consider an injustice which is practically plain, clear and not peripheral, however the indecisions of the Tribunal is allowing corruption remain suppressed.

(c) The Senior Tribunal Member failed to consider s 64 of Administrative Decisions Review Act 1997 [NSW] of relevant policy in force.”

141. This ground contends that the Tribunal misunderstood the powers given to it under the relevant Acts concerning misconduct of an agency. One way of construing Ground 3 is that the appellant is contending the Tribunal asked itself the wrong questions or misconstrued the relevant Acts in relation to its powers concerning corruption and misconduct, including in its duty to report misconduct.

142. Assuming this to be sufficiently particularised, it would raise a question of law: whether the Tribunal identified the wrong issue or asked the wrong question raises a question of law (Prendergast at [13] cited in Unique at [30]), and whether the construction of a statute arrived at by the Tribunal at first instance was wrong in some identified way also raises a question of law: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union at [66] cited in Unique at [32].

143. However, the Tribunal was not satisfied there was evidence of misconduct: Decision at [191]. As detailed above, this is wide enough to apprehend the appellant’s argument concerning corruption and fraud.

144. Accordingly, there is no error in this regard, as the factual premise for it is against the appellant. We would not grant leave to appeal on the question of fact of whether there was corruption, or evidence of corruption, and as we do not see that this ground could affect the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146; [1986] HCA 54.

145. Ground 3 is dismissed.

Ground 4

146. Ground 4, in terms, provides as follows:

“The Tribunal had not adequately considered the appellants questions of public interest importance including Parliaments intentions concerning section 3(2)(b) of the GIPA Act whereby the weight of the considerations against disclosure was too excessive compared to the considerations in favour of disclosure was far too disproportionate.

(a) There are no indications within the Tribunals considerations relating to the appellants balance in favour of disclosure considerations by the public authorities to maintain and advance a system of responsible Government that is open, accountable, fair and effective.

(b) The decision does not encourage [permit] the proactive public release of government information by agencies to members of the public with fair and just access.

(c) The Tribunal placed far too much weight against the non-disclosure notions of the GlPA Act by not applying the statutory objectives so as to further promote the Parliamentary purposes and intentions of the GIPA Act

(d) The Tribunal had placed very little focus in their discretions conferred by the GIPA Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

(e) The Tribunal failed to consider the question of public importance on the appellants disputes in relation to improper administrative and policy functions.

(f) Public scrutiny of an organisation when complaint of misconduct balance in favour of disclosure was not considered by the Tribunal.”

147. At its heart, this ground concerns the weight given to various factors. Whilst it is couched in terms of a misconstruction of statute, we see that it is about the balancing exercise that the Tribunal conducted in determining that there was an overriding public interest against disclosure.

148. The respondent contends that the Tribunal’s determination that there was an overriding public interest against disclosure was a discretionary decision, and that the appellant has not pointed to a House v The King style error. As set out above at [34], we are not satisfied that a House v The King error is required. This ground should, therefore, be determined on the correctness standard.

149. For the reasons expressed above, the conclusion that there is an overriding public interest against disclosure, is a question of fact. We see that, at heart, this ground is a complaint about the fact-finding exercise conducted by the Tribunal, notwithstanding that the appellant has referred to misconstruction of the statute. Errors in the balancing exercise are therefore errors of fact-finding, and leave to appeal is required. We would not grant leave to appeal, as we do not see that it raises a question of public importance; nor do we see it has more than arguable prospects.

150. If we are wrong, and the Tribunal’s decision under s 13 of the Act is a discretionary decision, then we would not find that this ground raises a House v The King ground, as this ground concerns a question of weight to be applied in respect of factors that are not prohibited factors. Therefore, assuming that House v The King captures the applicable standard, this ground would not raise a question of law that arises on the appeal. Leave would be required, and refused, because this ground does not raise an error on which a discretionary decision may be overturned.

151. Leave to rely on Ground 4 is refused.

Ground 5

152. Ground 5, in terms, provides as follows:

“The Tribunals excessive intervene during the appellants cross-examination of a witnesses evidence within an affidavit line of questioning was restricted; however the appellants line of questioning was relevant to a merits review.”

153. This ground concerns whether there was a breach of procedural fairness on the basis that the Tribunal wrongly curbed the cross-examination by the appellant of a witness. As mentioned above, if there is a material breach of procedural fairness, that will raise a question of law which arises on the appeal. This ground goes to the efficacy of the hearing as a material breach of procedural fairness constituting jurisdictional error. It is a question of law that arises on the appeal irrespective of the standard of appellate review.

154. Excessive intervention by a decision-maker may lead to a miscarriage of justice: R v T, WA (2013) 118 SASR 382; [2014] SASCFC 3 at [38] (Kourakis CJ) cited in Ellis v The Queen [2015] NSWCCA 262 at [65]. Chief Justice Kourakis in R v T, WA identified three ways in which a judge’s intervention may be excessive and lead to a miscarriage of justice:

155. the questioning unfairly undermines the proper presentation of a party’s case (the disruption ground);

156. the questioning gives an appearance of bias (the bias ground); and

157. the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).

158. The transcript from the hearing below is not before the Appeal Panel.

159. The Tribunal’s role is to manage the hearing process. To the extent that some questions ought to have been allowed, the appellant has not demonstrated, and we have not been able to discern, that, had he been allowed to put other questions, this would have materially affected the outcome.

160. Ground 5 is dismissed.

Ground 6

158. Ground 6, in terms, provides as follows:

“The Appellant received an unfair hearing due to the Senior Tribunal Member disregarding her role in making appropriate orders to employ section 74 of the Government Information (Public Access) Act 2009 [NSW].

(a) The Respondent and Tribunal had not established any facts that if redactions were applied to the protected documents, then on how those redactions could not nullify the sensitive information.

(b) The Respondent and Tribunal did not take into account that the appellant was not seeking for any identifying or sensitive information within the protected documents.

(c) The Tribunal had not considered within the decision the appellants assertions that the 14(1) can be nullified according to other NCAT cases in favour of disclosure including of redactions.

(d) No appropriate reasonable explanations were provided either by the Respondent and Tribunal on how redactions could not nullify cl(1)(d)(f)&(g); ci 2(b); cl 3(a)(b) &(g); cl 6(1)(2).

(e) The onus of proof by the Respondent had not been established according to law on how redactions regarding cl 6(1) & 6(2) could not nullify the sensitive information.

(f) Whether the Tribunal Members had considered a quick and cheap resolution into the dispute by making the appropriate redaction orders in support of the relevant statutory objectives of Parliament.”

159. This ground concerns the Tribunal’s finding that redacting the records would not overcome the application of cl 3(a) to the table to s 14(2) of the GIPA Act. The Tribunal said at [222]:

“Based upon my perusal of the disputed information during the confidential hearing, I am satisfied that these records contain the personal information of individuals other than the applicant and that the redaction of the names and identifying details of those individuals will not overcome the application of cl 3(a), particularly as the applicant is already aware of their identities.”

160. Under s 14(2), the public interest considerations against disclosure are listed in the table. Clause 3(a) to the table to s 14(2) of the GIPA Act provides as follows:

3 Individual rights, judicial processes and natural justice

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—

(a) reveal an individual’s personal information,

161. The respondent submits that this ground relates to a finding of fact, and leave is required, which should not be granted, as none of the matters in Collins v Urban would support a grant of leave in this case.

162. The respondent submits that the Tribunal did turn its mind to the question of whether the information could be released in redacted form. Further, there was evidence before the Tribunal that redaction was not a means of overcoming concerns regarding disclosure, as the appellant put this issue to the respondent’s witness in cross-examination. Furthermore, the respondent submits that it is “implicit in the Tribunal's reasons” that it did not consider any of the other public interest considerations against disclosure could be overcome by redaction.

163. Had the Tribunal not considered this at all, then the appellant’s contention that a question of law arises, might have been made out. However, in light of what we have extracted above, from [222] of the Decision, the Tribunal did indeed turn its mind to the question. The ground therefore cavils with the Tribunal’s factual finding that redactions would not suffice; or it raises a mixed question of fact and law. Leave is indeed required.

164. We would not grant leave to appeal, as we do not see that it raises a question of public importance; nor do we see it has more than arguable prospects.

165. Leave to rely on ground 6 is refused.

Ground 7

166. Ground 7, in terms, provides as follows:

“The onus of proof had not been established fairly according to principles of law of what can reasonably expected arguments whilst an Inmate is in prison without access to online resources.”

167. Ground 7 concerns whether the Tribunal has unfairly transposed the onus of proof; and failed to take into consideration what can reasonably be expected of a self-represented party who is an inmate at a correctional facility with limited access to computers and legal research.

168. We have already considered the Appeal Panel’s role in relation to its requirements to assist self-represented litigants. In relation to the Tribunal’s role more generally, the Appeal Panel’s comments in Unique at [69]-[71] are apposite. Notably, the role of the Tribunal is to redress procedural disadvantage of an unrepresented litigant. However, the Tribunal is not to provide them with an advantage because they are unrepresented. Rather, the duty is to ameliorate the procedural disadvantage suffered by a party not represented by a lawyer: Hamod v New South Wales and Anor [2011] NSWCA 375 at [309]-[311] (Beazley JA, Giles JA and Whealy JA agreeing), and see also the observations of Court of Appeal in Chalik v Chalik at [69] discussed above.

169. To the extent that this ground raises a question of law relating to whether the Tribunal breached its duty to assist an unrepresented party, no error is discernible. To the extent this ground raises the question of whether or not the Tribunal misconstrued its role, we discern no error.

170. At heart, we see this ground as raising a challenge to the merits of the decision, and therefore requiring leave to appeal. We would not grant leave to appeal as we do not see it raising a matter of public importance or having more than reasonable prospects of success. An appeal is not an opportunity for a party to re-run their case: Marjanac v Plavsic [2014] NSWCATAP 63 at [29]; MS Noun Construction Pty Ltd v Baker [2022] NSWCATAP 251 at [17].

171. One other aspect of this ground is that the Tribunal misinterpreted the expression “could reasonably be expected” when construing the various public interest considerations against disclosure.

172. The Tribunal found that cll 1(d) and (g) apply (at [215]), cl 2(b) applies (at [220]) cl 3(a) applies (at [222]), cl 3(b) applies (at [223]), and cl 3(g) applies (at [226]). The chapeaus to cll 1 and 2 to the table are the same “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)—”, whilst the chapeau to cl 3 is similar “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—”.

173. The appellant submits that the Tribunal erred in relying, solely (as we apprehend the submission to be), on the respondent’s assertions that the information “could reasonably be expected” to have one or more of the effects contained in the table to s 14. This is because, so it is said, it will not be sufficient for the decision-maker to proffer the view; it must be supported in some way, with authority for this proposition said to be Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven v The University of Sydney [2015] NSWCATAD 104 at [53], referred to in Transport for NSW v Searle [2018] NSWCATAP 93 at [68(4)].

The findings were supported

174. However, the reasons make clear that the Tribunal, in determining that the various clauses to the table in s 14 applied, considered the respondent’s submissions, the respondent’s evidence (including the evidence of Detective Inspector Karl Leis (D/I Leis) and the Kennedy affidavit), and the approach of the Tribunal in numerous other similar matters.

175. The appellant also contends that the Tribunal did not take into account the appellant’s submissions concerning the appellant’s current custody arrangements and his practical limitations as to how he may access, use and disclose information. In other words, the fact that he cannot “disclose” any disclosed information, should have been taken into account. To the extent this raises a question of misconstruction of the statute, it raises a question of law: Unique at [32] citing Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union at [66].

176. However, the Tribunal correctly adverted to the relevant principles that the expression “could not reasonably be expected to” has been considered in a number of cases to involve an objective test: Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] citing Neary v State Rail Authority [1999] NSWADT 107; Flack v Commissioner of Police*, New South Wales Police* [2011] NSWADT 286 at [41]. The Tribunal in Leech v Sydney Water Corporation (at [25], quoted in the Decision at [81]) explained the objective test as:

“Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.”

177. On the basis of those authorities, it was appropriate for the Tribunal to proceed with the analysis on the basis of the likely effect of disclosure at a broader level than simply in the case of person in the circumstances of the appellant.

178. No error on any question of law is discerned.

179. Ground 7 is dismissed.

Ground 8

180. Ground 8, in terms, provides as follows:

“The Appellant asserts that the Complainant (CE) was over 18 years old and an Adult when NSW Police executed the Surveillance Devices Warrant.”

181. By this ground, we apprehend that the appellant contends that the Tribunal was wrong in considering that the information sought pertained to an individual who was, at the relevant time, a minor; and that this was a relevant consideration in relation to cll 1(d), 1(g) and 3(g) of the table to s 14(2).

The relevant findings and observations in the Decision about minors

182. The Tribunal discussed evidence given by a D/I Leis. D/I Leis gave evidence by an affidavit, and gave oral evidence during the hearing. It is apparent that D/I Leis was also cross-examined by the appellant. The Tribunal, in discussing D/I Leis’ evidence, noted that he gave evidence that members of the public are often reluctant to report a matter to police, particularly when “reporting allegations of sexual abuse and/or incidents that have occurred when they are, or were, minors…It is critical in these cases that NSWPF can give assurances that their information will be treated confidentially as far as possible and that their privacy will be protected” (Decision at [38]).

Clause 3(g)

183. The Tribunal found that, certain information in the Kennedy affidavit relates to an individual who was, at the relevant time, a minor. The Tribunal noted that “the Tribunal has held that cl 3(g) may apply even where the person to whom the information relates is no longer a child: see Medlyn and Danis” (Decision at [123]). Accordingly, the Tribunal accepted that cl 3(g), which expressly refers to minors, applied (Decision at [123]).

184. The respondent submits that the Tribunal's conclusion that cl 3(g) applied as a public interest consideration against disclosure of information, notwithstanding that the relevant individual is no longer a child, is consistent with the approach taken by the Tribunal on previous occasions, and relied on the cases of Medlyn v Commissioner Police [2020] NSWCATAD 125 and Danis v Commissioner of Police, NSW Police Force [2021] NSWCATAD 311, cited by the Tribunal in the Decision, as examples.

185. In Medlyn v Commissioner Police, the Tribunal found (at [116]) that “[o]n this basis, I am also satisfied that this public interest consideration against disclosure applies even though at the time consideration is given to whether the information should be disclosed, the child about whom the personal information relates is no longer a child. The fact the person is no longer a child is nevertheless a factor to be taken into account in balancing where the competing public interest lays”.

Clauses 1(d) and 1(g)

186. The Tribunal also noted D/I Leis’ evidence that there were additional protections in place for matters involving allegations of sexual assault and offences against minors (Decision at [210]) as a relevant consideration for finding that cll 1(d) and 1(g) of the table to s 14(2) were established (Decision at [215]).

Consideration

187. To the extent this ground alleges that the individual was not of a certain age at a certain time, that raises a question of fact and we would not grant leave to appeal, as we do not consider the requisite test in made out.

188. It is not a matter of public importance wider than this case, although we accept it is critically important to the appellant; it is important to any appeal against conviction. Further, in these proceedings, there are not more than arguable prospects.

189. To the extent this ground raises a question of misconstruction of the statute, in the sense that the provisions are not applicable on the undisputed facts of this case, we discern no error.

190. Leave to rely on ground 8 is refused; the ground is otherwise dismissed.

Ground 9

191. Ground 9, in terms, provides as follows:

“The Tribunal had gone about the facts finding process in such an abhorrent manner that it had resulted in an unfair hearing and also had caused to an incorrect decision.

(a) The Tribunal had rejected the appellant's attempts to use of extrinsic materials in the interpretation of Acts and statutory rules.

(b) The Senior Tribunal Members decision had not effectively applied the common law 'binding principles' that requires decision making of particular facts in dispute to also have a proper relationship with the intentions of the legislature.

(c) Had the Senior Tribunal Members decision been affected by an apprehension of bias and if that complaint should be assessed by using the reasonable lay observer test.

(d) The Tribunal had given selective considerations into the Applicant's weaker disputed legal arguments and avoided the strong indisputable legal arguments.

(e) The Tribunals use of the word rambling within ("the original decision") may express of a predisposition of the appellants Supplementary Submissions clouding the decision making processes of the presiding Member.

(f) The Tribunal did not assist the self-represented appellant in Tribunal procedures.

(g) The Tribunal disregarded the facts that that appellant was at major disadvantage with on-demand access to a computer including Case Law and preferred to criticise the appellants Submissions and contrary to s 15(d) of the GIPA Act.

(h) The Beneficial provisions of the NCAT Act and ADR Act including the GIPA Act had not been given sufficient weight the best determine the correct and preferred decision.

(i) The Tribunal had applied an incorrect balancing weight in favour of disclosure with an indispensable and important common law right to a fair trial that is depriving the Appellant with a successful Supreme Court Criminal Appeal proceeding.”

192. The respondent submits that this ground does not raise a question of law, and leave to appeal is required. The respondent submits that there is no basis for the grant of leave.

193. This ground raises several discrete points:

194. First, there is a contention that the hearing process failed, on the basis that the fact-finding process went awry. To the extent that it contends a material breach of procedural fairness, that would indeed raise a question of law: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1] (Kiefel CJ, Keane and Gleeson JJ), [45] (Gageler J); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

195. Next, the appellant contends that the Tribunal erred in rejecting the appellant’s submission that other Acts should be used as extrinsic materials to aid the interpretation of the provisions under the Act. It is contended that the balancing exercise between ss 14(1)-(2) of the Act and the legislative intent, as contained in the Object of the Act, appears to raise a misconstruction of statute. To this extent, the ground raises a question of law: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union at [66]; cited in Unique at [32(2)].

196. Further, the appellant contends that the Tribunal and the respondent used an instrument “known” to be a “false official instrument”, and are thereby perverting the course of justice. By “false official instrument” we apprehend the applicant is referring to the warrant, which he steadfastly maintains was invalid. However, the validity of the warrant is not a matter that the Tribunal was seized of. As to this aspect, the Tribunal held (Decision at [24] and [130]), correctly, that the Tribunal did not have jurisdiction to determine the validity of the warrant, and said that the Tribunal “is restricted to conducting an administrative review of the reviewable decision under the GIPA Act”. To determine this aspect of the appeal, it would be necessary to, first, arrive at a conclusion as to the validity of the warrant. The Tribunal’s administrative review jurisdiction is limited to the types of decisions which the NCAT Act or enabling legislation gives the Tribunal jurisdiction to review: Shapkin v Council of Law Society of New South Wales [2025] NSWCATOD 66 at [41] citing Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [62]-[63]. We are here concerned with the Tribunal’s administrative review jurisdiction (NCAT Act, s 30; the Act, s 100). A challenge to the validity of the warrant, even as a precursor to the review of a decision that the Tribunal indeed has jurisdiction to determine, would be an example of what is referred to as a collateral attack: Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89 at [289]-[321]. Notwithstanding that the appellant contends that he is not, in these proceedings, seeking to challenge the warrant, we see that it is indeed an impermissible challenge to the warrant. Accordingly, this is not a question of law that arises “on” the appeal: NCAT Act, s 80; U**nique at [25(1)].

197. The appellant also submits there is an apprehension of bias, which would also raise a question of law: Unique at [32(3)]. The appellant makes the contention on the following bases:

(a) he was not allowed to make closing submissions, (b) the Tribunal’s use of the word “rambling” to describe the appellant’s submissions (Decision at [142]), (c) “excessive interventions” during cross-examination, (d) the Tribunal did not tell the appellant her name, (e) the hearing ended 4 hours early.

194. The respondent further submits as follows: that the Tribunal approached the task of making determinations of fact in an entirely conventional and appropriate manner, and did not err in the manner contended; the Tribunal managed the proceedings in a manner entirely consistent with the guiding principle under s 36 and the Tribunal's power to determine its own procedure under s 38 of the NCAT Act; and there is no basis for the appellant's contention of bias, either of actual bias or a reasonable apprehension of bias. The respondent apprehends the appellant’s contentions regarding a “false official instrument” to be a reference to the surveillance device warrant, the legality of which the Tribunal correctly recognised as being outside its jurisdiction. The respondent submits that the accompanying contention of perversion of the course of justice is scandalous, and ought to be rejected.

Determination of Ground 9

195. As noted above, the questions raised by this ground that go to procedural fairness, which include the contentions regarding apprehended bias, indeed raise questions of law. Further, the reference to misconstruing s 14 of the Act raises a question of law.

196. As to the first point, we note that there are several aspects of a hearing process that might affect a decision. If there is excessive questioning, or pejorative comments, by the Tribunal, which have created a real danger that the hearing was unfair, then the judgment (or decision) must be set aside: Galea v Galea (1990) 19 NSWLR 263 at 281 (Kirby ACJ, Meagher JA agreeing).

197. Whilst we do not have the transcript of the hearing, we have not been persuaded that the hearing process failed, from the submissions made by the appellant describing the asserted failures. The factors that the appellant points to, to demonstrate bias, do not go far enough. It was not entirely clear whether the appellant relied on actual or apprehended bias. In FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120*,* the Appeal Panel said at [17]-[34]:

“General Principles

17 A decision made where there is proved to be actual or apprehended bias constitutes jurisdictional error rendering the decision invalid regardless of the effect the bias had on the decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6].

18 As identified in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [83] (per Gaudron J) the requirement that courts be and appear to be impartial dictates the result that a decision-maker is disqualified by actual bias and, also, by the appearance of bias.

19 Nevertheless, judicial officers must discharge their duty to sit and resist acceding too readily to suggestions of appearance of bias, encouraging parties to believe that by seeking the disqualification of a decision-maker they may obtain an outcome more favourable to them: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 (per Gibbs CJ).

20 The High Court noted in Ebner (at [19]) that as a result of a decision-maker’s duty to exercise the judicial functions an ‘objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case’.

Actual Bias

21 The onus of demonstrating grounds for recusal on the basis of actual bias lies with the party asserting it: Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107 (per French J) cited with approval in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [37] (per Gleeson CJ and Gummow J).

22 The focus of an enquiry into actual bias is upon whether the judge is sufficiently impartial to permit justice to be done: QYFM at [120] (per Edelman J)

23 A finding of actual bias requires a finding that a judge was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’: Jia Legeng at [72].

24 A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun) at 127 (per Burchett J). As was said by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97] (and the authorities cited therein), a claim of actual bias must be distinctly made and clearly proved, should not be made lightly, and requires cogent evidence.

25 Actual bias requires an “assessment of the state of mind of the judge in question”: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. The only person truly capable of knowing whether actual bias is present in the person’s mind is the subject judge, but an objective assessment must also be undertaken by the subject judge and others: QYFM at [115]-[120].

26 Actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at 289-290 (per Finkelstein J).

27 In Jia Legeng, Hayne J noted that bias may be occasioned by an interest in the outcome, by affection or enmity, or by prejudgment: at [183]. His Honour set out several distinct elements underlying the assertion that a judge has prejudged or will prejudge an issue on the basis of an opinion they hold (at [185]):

(1) First, there is a contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.

(2) Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue.

(3) Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.

28 His Honour observed, at [186], that allegations of actual bias through prejudgment often fail at the third step. This is because, notwithstanding whatever preconceived opinions are held or even expressed by the decision-maker, it does not follow that the evidence will be disregarded.

29 These principles would equally apply to a decision-maker in the Tribunal.

Apprehended Bias

30 The test for whether a judge should disqualify themselves by reason of apprehended bias is the objective “double might” test, that is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 (Johnson) at [11] affirmed in Ebner at [6].

31 In terms of apprehended bias, the application of this principle requires two steps, as explained in Ebner at [8].

(1) First, it requires the identification of what it is said might lead the judicial officer to decide the case other than on its legal and factual merits.

(2) Second, it is necessary to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

32 Once those two steps are taken, the reasonableness of the asserted apprehension of bias can be assessed: Ebner at [8].

33 The “fair-minded lay observer” is a hypothetical member of the public because the principle is concerned with the maintenance of public confidence in the justice system: QYFM at [71] citing Webb v The Queen (1994) 181 CLR 41 at 52; [1994] HCA 30. They are taken to be aware of the legal, statutory and factual context in which the decision is to be made: BW v Secretary, Department of Communities and Justice [2024] NSWSC 1354 at [144] (per Faulkner J) citing Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23]. The reasonableness of the apprehension of the fair-minded lay observer is considered “in the context of ordinary judicial practice”: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [12] citing Johnson at [13]; see also Kirby J's comments in Johnson at [53].

34 These principles would equally apply to a decision-maker in the Tribunal.”

198. To the extent apprehended bias is suggested, the logical connection between the asserted circumstances and the feared deviation has not been identified.

199. To the extent actual bias is alleged, the burden is high. We do not consider that the contentions the appellant makes about the conduct of the hearing rise high enough, to permit us to conclude the Tribunal had a closed mind.

200. This is particularly so, in light of the reasons by which the Tribunal explained why the appellant’s contentions did not succeed.

201. As to the asserted misconstruction of statute, we discern no error in the Tribunal’s construction. Further, as referred to above in relation to Ground 2, to the extent that this ground relies on there being evidence of fraud or corruption, then the factual underpinning for the ground is undermined. Further still, to the extent it relies on the warrant being invalid, then that too, as discussed above, is not an available underpinning.

202. Otherwise, we see that this ground cavils with the Tribunal’s determination on the merits. We do not see that this ground raises issues of public importance beyond this case and do not see other than arguable prospects. Leave to rely on Ground 9 to extend the appeal to the merits is refused.

203. Ground 9 is dismissed.

Ground 10

204. Ground 10, in terms, provides as follows:

“A substantial error of law had occurred by the Tribunal to not correctly apply the public interest test principles to weigh up the competing grounds as set out in s12, s13, especially regarding the provisions of s15 of the GIPA Act.

(a) Especially at section 15(d) of the GIPA Act.

(b) The STM failed to consider the appellants real issues in dispute regarding his public interests grounds in favour of disclosure, which is contrary to s12(1)(2)(a)(b) & esp. at s12(1)(2)(e).”

205. The Tribunal applied the public interest test under s 13 of the Act to the Kennedy affidavit and the s 44 report, and was “satisfied the public interest considerations against disclosure…outweigh those in favour of disclosure and that there is an overriding public interest against disclosure of this information” (Decision at [228]).

206. The appellant submits that the Tribunal erred by putting insufficient weight on public interest considerations in favour of disclosure information, contained in (a) and (e) of the Note to s 12(2) of the Act.

207. The appellant contends that the Tribunal erred by not considering s 15(d) of the Act, because he had sought, in his written submissions, that the Tribunal apply this provision. Section 15(d) of the Act provides as follows:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles—

…

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

208. The respondent submits that the appellant, by this ground, disagrees with the weight attributed to the considerations for and against disclosure, and that the Appeal Panel would not interfere with this discretionary exercise of the Tribunal except where there is a House v The King style error. The respondent submits that no such error has been identified.

209. The respondent submits that the appellant has not explained how the Tribunal erred or acted in a manner inconsistent with s 15(d) of the Act.

210. Further, the respondent contends that leave should not be granted, as the appellant would need to demonstrate more than that the Tribunal was “arguably wrong” in the conclusion arrived at: Ugur v Public Guardian [2023] NSWCATAP 273 at [22] citing Collins v Urban.

Determination of Ground 10

211. The first aspect of this ground goes to the Tribunal’s weighing up exercise. It goes to the merits of the Tribunal’s decision. Accordingly, leave is required. We would not grant leave, as we do not see that there are more than arguable prospects and there is no issue of wider importance, than to this case.

212. The other aspect, however, concerns whether the Tribunal acted contrary to s 15(d) of the GIPA Act. If House v The Kin**g applies (we think it does not), then this could amount to the Tribunal taking into account a prohibited (irrelevant) factor: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J); [1986] HCA 40. The Act expressly provides that the risk of misinterpretation must not be taken into account. However, we cannot see how or where the Tribunal took such a factor into account.

213. To the extent this submissions fixes upon the appellant’s misunderstanding of the Act, whilst the Decision indicates the Tribunal may have considered that the appellant had misunderstood aspects of the Act, we do not discern that this infected the weighing up process; nor introduced a prohibited factor into the weighing up exercise.

214. In terms of the correctness standard, which we consider applies, this aspect of this ground raises a question of whether the Tribunal misconstrued the statute by failing to abide by the proscription against taking the risk of misunderstanding into account. However, we discern no error on that question of law. Similarly, we do not discern error to the extent that this ground concerns the appellant’s misunderstanding.

215. Ground 10 is dismissed.

Ground 12

216. Ground 12, in terms, provides:

**“**The appellant is deprived online access to independently research cases under section 14 Table provisions that are related to the legal principles that are in favour of present cases request of obtaining surveillance device warrant documents causing incomplete submissions and procedural unfairness.

(a) Section 14 Table under 1(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

(b) Section 14 Table under 1(f) prejudice the effective exercise by an agency of the agency's functions.

(c) Section 14 Table under 1(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

(d) Section 14 Table under 2(b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law.

(e) Section 14 Table under 3(a) reveal an individual's personal information

(f) Section 14 Table under 3(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.

(g) Section 14 Table under 3(d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness.

(h) Section 14 Table under 3(g) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed.

(i) Section 14 Table under 6(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

(j) Section 14 Table under 6(2) The public Interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.”

217. To the extent that this ground raises a material breach of fairness in relation to the conduct of the application at first instance due to the circumstances of the appellant having limited access to legal resources and time to research, these have been discussed above in relation to a tribunal’s duty to accord procedural fairness and how far that extends. The same considerations apply here.

218. We discern no material breach and this ground is dismissed.

Conclusion on the Appeal

219. The appeal is dismissed.

Procedural fairness concerns of the appellant, the request for an adjournment and the consideration of the appointment of a guardian ad litem

220. The appellant raised concerns about his ability to prepare for and present his arguments before the Appeal Panel due to his lack of computer access to legal resources and word processing facilities. This was accommodated, in part, by an adjournment of the hearing and extensions of time for the appellant to file additional submissions. Just prior to the resumed hearing, the appellant sought another extension of time and a long and unspecified adjournment of the resumed hearing due to his ongoing privations in relation to internet and computer access. Furthermore, the limitations on his access to computers is exacerbated by lockdowns at the correctional facility where he is currently. There was also a suggestion that he may soon be moved to a different correctional facility, which would occasion further disruptions to his ability to prepare and present his appeal. Prior to the hearing, the Appeal Panel refused the adjournment. The Appeal Panel nonetheless foreshadowed that, if pressed, an adjournment application would be entertained at the commencement of the resumed hearing, and invited the parties to make submissions in relation to whether the Tribunal should appoint a guardian ad litem (GAL) for the appellant, as discussed in HQS v State of New South Wales [2026] NSWCATAD 119.

221. A further adjournment application was heard at the commencement of the resumed hearing. After a brief adjournment to allow the Appeal Panel to consider its decision, the Appeal Panel refused the application for an adjournment, with reasons to follow. The hearing of the appeal then resumed. The reasons that the adjournment was refused were because: the appellant was not able to identify when he would be available for another hearing; the appellant had filed two sets of lengthy written submissions, with amended grounds of appeal; and the appellant was available there and then for the resumed hearing, and was prepared to present oral arguments. Furthermore, given that there was a possibility that his availability would be compromised in the future, due to the foreshadowed lockdowns and his move to a new correctional facility, and taking into account the prejudice to the respondent in having to prepare and appear again in an adjourned hearing, the just and efficient course was to continue the hearing.

222. With respect to a GAL, the appellant was not averse to the Appeal Panel appointing a GAL, and the Appeal Panel considered that there was an indication that the appellant was suffering from an incapacity which may warrant the appointment of a GAL. The incapacity does not arise from any cognitive incapacity to prepare and present his case, but from the combined effect of what the appellant describes as his lack of effective access to computer and internet resources and the ongoing lockdowns at the correctional facility. For instance, he stated that he was unable to do an internet search for materials that would be freely available on the respondent’s website. There was no dispute that the appellant does not have access to the internet. However, as this is an appeal, there would be a real question over whether material that was not before the Tribunal at first instance would be relevant and admissible on the appeal. The appellant suggested that there were logs on the respondent’s website that revealed what information had been disclosed under other access applications. This was said to potentially affect the balancing exercising required in determining whether there was an overriding public interest against disclosure of the information, if the information we are here concerned with has already been released. However, we saw this to be mere speculation. We therefore were not persuaded that this was a reason to make an order for the appointment of a GAL. Additionally, while there was no dispute that there would be future lockdowns, we see that that consideration served to increase the desirability of continuing the hearing of the appeal without further delay.

223. In summary, the Appeal Panel proceeded with the hearing without the appointment of a GAL for the following reasons:

224. the matter was ready for hearing;

225. the appellant had filed comprehensive and relevant submissions;

226. the appellant was available and able to present his oral argument;

227. the result of any internet searches that a GAL might undertake would be of uncertain utility, and likely inadmissible on the appeal;

228. the respondent was ready to proceed;

229. the appointment of a GAL would require an adjournment, and when the appeal might be resumed was uncertain; and

230. there had already been delays, and there was an interest in finalising the appeal.

Costs

224. Neither party expressed an intention to make a costs application in the event they were successful. We make no order as to costs.

Orders

225. The Appeal Panel makes the following orders:

226. Leave to appeal on grounds 1, 2, 3, 4, 6, 8, 9 and 10 is refused.

227. Otherwise, the appeal is dismissed.

228. The disclosure of the name of the appellant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The appellant is to continue to be known by the pseudonym FZS.

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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

[2000] HCA 47