Infrastructure NSW & Department of The Premier and Cabinet v Mookhey

NCAT Appeal Panel|2018-04-06|Before: Dr J

Overview

The appellants appeal from an administrative review decision of the Tribunal, made on the papers, setting aside a decision to refuse to grant access to the respondent to three documents and ordering that the respondent be provided with access to the information in those documents within 28 days. A stay of those orders operates pending the outcome of this appeal. The decision was made by one of the appellants, Infrastructure NSW (INSW).
The Tribunal found that there were no reasonable grounds for the claim that the information was Cabinet information within the meaning of one or more of provisions of cl 2 of Schedule 1 to the NSW Government Information (Public Access) Act 2009 (GIPA Act). Some aspects of the Tribunal's reasoning in relation to the Cabinet information issue were challenged on the appeal. As appears below, we have rejected those challenges.
However, the appellants also complained that, having rejected the claim of Cabinet information, the Tribunal ought not to have proceeded to decide that a grant of access to the information was the correct and preferable decision. Instead, they say they ought to have been given the opportunity to rely upon alternative grounds upon which access should be refused. It was said that these alternative grounds would have been on the basis that there were public interest considerations against disclosure and, on balance, those considerations outweighed the public interest considerations in favour of disclosure: s 13 of the GIPA Act. Such a claim is to be contrasted with the conclusive presumption against disclosure which arises in relation to Cabinet information: s 14 (1) of the GIPA Act.
On first impression, the course that the appellants' contend the Tribunal should have taken would appear to be a somewhat cumbersome way in which to deal with an application for access to information, all the more so when the information sought is contained in only three documents.
However, in the particular procedural circumstances that occurred in this case, for the reasons set out below, we have decided that the Tribunal did err in not providing the appellants with an opportunity to advance such alternative grounds. The consequence is that the Tribunal's decision to order access to the information should be set aside and there should be a redetermination of the question of access after the appellants have had the opportunity to present their case based upon alternative grounds to the claim of Cabinet information.

Nature of the jurisdiction being exercised by the Tribunal

The matter came before the Tribunal as an application pursuant to s 100 of the GIPA Act for administrative review of a decision by INSW to refuse access to a range of information concerning the Housing Acceleration Fund (HAF)
Section 100 of that Act, relevantly, provides: Division 4 - Administrative review by Civil and Administrative Tribunal 100 Administrative review of decision by NCAT A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an "NCAT administrative review").
Subject to the modification in respect of a claim of Cabinet information referred to below, such an application required the Tribunal to decide what was the "correct and preferable decision" having regard to the material then before the Tribunal: s 63 of the Administrative Decisions Review Act 1997.
Pursuant to s 63, the Tribunal could decide to affirm, vary or set aside the decision and make a decision in substitution for it or remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: s 63(3).
However, because the decision of INSW was that access to the information should be refused on the basis that the information was Cabinet information, the task required of the Tribunal was modified by s 106 of the GIPA Act. That section provides: 106 Decisions about Cabinet and Executive Council information (1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter. (2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it. (3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter. (4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter. (5) The Premier is a party to any proceedings on an application under this section.
It can be seen, therefore, that the process involved in deciding what was the correct and preferable decision was a staged one. First, the Tribunal had to decide whether there were reasonable grounds for the claim of Cabinet information. Second, in the process of arriving at that decision, the Tribunal had to first determine whether the affidavit and other evidence established such grounds before it could look at the information itself. Third, if still not satisfied of such grounds after looking at the information, it had to reject the claim of Cabinet information and then proceed to decide what was the correct and preferable decision. Clearly, and there is no dispute about this, in arriving at the correct and preferable decision the Tribunal could have regard to any other grounds under the GIPA Act against the provision of access that were relied upon.
As will be seen below, before the Tribunal's decision, it became common ground between the parties that the Tribunal should not immediately proceed to order access to the information if it rejected the claim that the information was Cabinet information. It was implicit in this point of common ground that there were alternative grounds for refusal of access that INSW should, at least, have the opportunity to consider before access was provided.

Other relevant parts of the GIPA Act

In addition to s 100 and s 106 of the GIPA Act, other relevant provisions of that legislation provide as follows: Division 1 - Ways of accessing government information 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. …. Division 2 - Public interest considerations 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. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. …. 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. 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. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. …. Table …. 4 Business interests of agencies and other persons 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) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, (b) reveal commercial-in-confidence provisions of a government contract, (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, (e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). ….

105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. …. Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure …. 2 Cabinet information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents: (a) a document that contains an official record of Cabinet, (b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet), (c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given), (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions, (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet, (f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e).

The information to which access is sought

INSW's decision in respect of the respondent's application for access to information was made on 22 July 2016. By that decision, INSW withheld access to 53 documents. Of these 51 documents were withheld on the basis that they contained Cabinet information. Initially, the respondent confined his application for administrative review to the information in the two documents withheld on grounds other than that they contained Cabinet information. Later, in October 2016, the respondent extended his application for access to all 53 documents. Still later (in April 2017), after the respondent had been served with the appellants' evidence and submissions in the Tribunal proceedings, the respondent abandoned his application for administrative review in respect of all but 3 documents. These three documents were referred to in the proceedings as Documents 1, 5 and 11.These three documents were amongst the 51 documents which INSW had decided should be withheld on the basis that they contained Cabinet information - a position that INSW maintained before the Tribunal. As a consequence, the Tribunal only needed to determine a dispute in relation to these three documents.
These three documents were described by the Tribunal as: [24] Documents 1, 5 and 11 are business cases prepared by Roads and Maritime Services and Transport for NSW for three separate infrastructure projects which were proposed to be funded as part of the Housing Acceleration Fund, using Restart NSW funds. The business cases were submitted to [INSW] as part of the process of securing approval by Cabinet for funding under Restart NSW. [INSW] reviews business cases in order to make a recommendation to the Treasurer to seek funding from Cabinet.
The following uncontroversial matters concerning the nature of these documents and the circumstances in which they came to exist appear, largely, from the Tribunal's reasons.
INSW is a Government agency established by s 5 of the Infrastructure NSW Act 2011 (NSW). The functions of INSW include to prepare and submit to the Premier, certain infrastructure strategies and plans and to review and to evaluate proposed major infrastructure projects. In addition, amongst the money permitted to be paid out of the Restart NSW Fund was money approved by the Treasurer upon the recommendation of INSW in respect of the costs of any project that the Treasurer was satisfied promotes a purpose of the Fund: s 8 of the Restart NSW Fund Act.
Restart NSW is the NSW Government's dedicated infrastructure fund which funds key major infrastructure projects in NSW.
The HAF is a NSW Government initiative that funds essential infrastructure projects in and around identified growth areas in order to accelerate the construction of, and accessibility to, housing in those areas.
As a matter of practice, INSW does not recommend a project unless it is supported by a business case: [25]. Once INSW has reviewed a business case, it prepares and submits a written recommendation to the Treasurer for submission to Cabinet based on the content contained in the business case. The submission will typically contain extracts from the business case and, on occasion, the entire business case will be submitted to Cabinet: [26].
NSW Treasury "Guidelines for Capital Business Cases: Policy and Guidelines Paper, December 2008" provide that public sector agencies "must prepare business cases to support the mandatory requirements for capital related resource allocation decisions of Government, including construction projects and property and accommodation projects": [29].

The Cabinet information claim

Before the Tribunal, INSW claimed that the information contained in each of these three documents was Cabinet information because it was contained in a document of the kind described in cl 2(1)(b) of Schedule 1 of the GIPA Act as follows: (b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet), (Written submissions dated 9 January 2017, para 38(a)).
INSW also claimed that the information in each of Documents 1 and 11 (but not Document 5) was Cabinet information because it was contained in a cl 2(1)(d) document, which clause provides: (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions. (Written submissions dated 9 January 2017, para 41(a)).
Furthermore, INSW claimed that the information in each of the three documents was Cabinet information because it was contained in a cl 2(1)(e) document, which clause provides: (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking or has been recommended to take, on the matter in Cabinet, (Written submissions dated 9 January 2017, para 43(a)).
With regard to each of these submissions, INSW relied upon the affidavit evidence of Ms Jones, the Chief Operating Officer and Deputy Chief Executive Officer of INSW.

The Tribunal's conclusions

The Tribunal's decision dealt only the Cabinet information issues. Having rejected the claim of Cabinet information, the Tribunal decided it was appropriate to determine what was the correct and preferable decision. This was because it rejected a submission from the appellants that it should remit the matter to INSW for reconsideration of any alternative grounds for refusal of access. The Tribunal did not refer to the appellants' alternative submission that there should be a further hearing of the Tribunal to deal with alternative grounds for refusing access.
The Tribunal's reasons relevant to the appeal were as follows: 1. The Tribunal summarised the outcome of the application in the opening two paragraphs as follows: [1] This was an application to [INSW] under the [GIPA Act], for access to information. [INSW] claimed that there was an overriding public interest against disclosure of the information because it was Cabinet information. [2] I have found that INSW has not established reasonable grounds for its claim that the information is Cabinet information. Accordingly, I have decided the correct and preferable decision is to provide the applicant with access to the information sought. 1. As to the cl 2(1) (b) documents claim, the evidence did not establish that there were reasonable grounds for the claim that the dominant purpose of preparing Documents 1, 5 and 11 was the submission of the whole of each of these documents to Cabinet for its consideration: [40]. 2. As to the cl 2(1)(d) documents claim, INSW had not discharged the burden of establishing that Documents 1 and 11 contained information that revealed, or tended to reveal, information concerning earlier decisions or deliberations of Cabinet about other infrastructure projects. In this regard, the Tribunal made reference to the general nature of Ms Jones' evidence, that the respondent (applicant below) had not pointed to the parts of the document which were said to reveal such matters, the Tribunal had looked at the documents and had identified some material in each document which may be the material relied upon, but such material contained no reference to a Cabinet decision or deliberation: [44]-[49]. 3. Having rejected the claim of Cabinet information, it was not prepared to confine the orders to setting aside the INSW decision and remitting the matter to INSW for reconsideration on the basis that the appellants say that there may be alternative grounds for a finding there is an overriding public interest against disclosure: [60]-[64]. The Tribunal reasoned that where it has conducted a review it generally seeks to finalise that review at the time of the decision, that this was consistent with s 36(1) of the Civil and Administrative Tribunal Act (20013) (NCAT Act) and the power to remit a matter was generally not exercised so as to enable the decision maker to make another decision if the Tribunal finds that its first decision is not justified: [62]. The Tribunal considered that the appropriate course for an agency to take, where an agency anticipates that the primary grounds on which it relies may not succeed, is to make submissions as to the application of alternative grounds or to seek orders at an early stage that the matter be determined in two stages. The Tribunal said that had INSW wished to rely upon the considerations in the table to s 14 of the GIPA Act it could have done so as an alternative basis to its primary submission that the information was Cabinet information: [63]. 4. The Tribunal concluded: [64] I do not consider that it would be appropriate to remit the matter to [INSW] now. It has the onus of persuading the Tribunal that there were reasonable grounds for its Cabinet information claims and it has not discharged that onus. It follows that the applicant should be granted access to the information in Documents 1, 5 and 11.
The Tribunal ordered that the decision of INSW in respect of the information in Documents 1, 5 and 11 be set aside and, in substitution for that decision, INSW was to provide the applicant with access to that information within 28 days of the date of the decision: Order 2.

Grounds of appeal

The appellant advanced four grounds of appeal on the basis that these raised questions of law and that, therefore, the appeal was made as of right: s 80(2) (b) of the NCAT Act.
Those grounds of appeal were as follows: Ground 1: The Tribunal erred in determining to release Documents 1, 5 and 11 since it failed to in substance apply the applicable standard of review specified in s 106(3) of the Government Information (Public Access) Act 2009 ("the GIPA Act") in determining that the "correct and preferable decision" was to order the release of the documents. Ground 2: The Tribunal denied the Respondents procedural fairness in its refusal to allow the Respondents to put on further evidence and submissions on the issue of the "correct and preferable decision" under s 106(3) when the Respondents had indicated their intention to put on such further evidence and submissions, and where that intention was the express basis upon which the respondents agreed to a hearing on the papers. Ground 3: The Tribunal erred in law in its construction of 106(1) and cl 2(1)(d) of Sch 1 to the GIPA Act by applying a different standard to claims under cl 2(1)(d) rather than under other subparagraphs of cl 2(1) for the purposes for the determination required by s 106(1), and accordingly erred in its decision in ordering the release of Documents 1 and 22. Ground 4: In the alternative to Ground 3, the Tribunal erred in determining that there were not reasonable grounds for the claims that Documents 1 and 11 were within cl 2(1)(d) of Sch 1 to the GIPA Act, and accordingly, erred in determining to order the release of these documents.
The Appellant contended that the Appeal Panel should make the following orders: 1. Set aside order 2 of the Tribunal's orders made on 29 November 2017. 2. In place of that order, affirm the decision of Infrastructure NSW to refuse access to the information in Documents 1 and 11. 3. Order that the matter be remitted back to the Tribunal to be determined according to law.
It can be seen that proposed Order 2 was based upon a successful challenge to the Tribunal's conclusion that the appellants had not established that there were reasonable grounds for the claim that the documents fell within cl 2(1) (d) of Schedule 1.

Ground 1 of the appeal

As we understood it, the appellants all but accepted that the real error they advanced under Grounds 1 and 2 of the appeal was that, having rejected the claim of Cabinet information, the Tribunal failed to give them an opportunity to advance alternative grounds for refusing access. That this was so, is apparent from the appellants' written submission that "the real difficulty" with the alleged substantive failure to address the correct and preferable stage of decision making, the subject of Ground 1 of the appeal, was the denial of this opportunity.
Nevertheless, as we understood it, Ground 1 of the appeal was maintained as a stand-alone ground of appeal. As such, in our opinion, it can be disposed of, shortly. We reject it. In our view, a decision to allow access (as the correct and preferable decision) plainly followed from a conclusion by the Tribunal that it was not satisfied that there were reasonable grounds for the claim of Cabinet information if the Tribunal, correctly, treated the Cabinet information issues as the only points it was prepared to entertain. The real issue on the appeal was whether the Tribunal erred in so doing.
Accordingly, we turn to deal with Ground 2 of the appeal.

Ground 2 of the appeal

The appellants submissions in relation to Ground 2 of the appeal included: 1. The Tribunal denied the appellants procedural fairness by proceeding to determine the correct and preferable decision and ordering that the documents be released in circumstances where the basis upon which the appellants, with no protest from the respondent, had approached the hearing, was that in the event that the Tribunal determined that there were not reasonable grounds for the claim of Cabinet information the matter should be remitted to INSW or the appellants would be entitled to adduce further evidence and make submissions concerning the correct and preferable decision. 2. Had the Tribunal formed the view that it would not allow the appellants to adduce further evidence and make further submissions on alternative grounds the appropriate course would have been for the Tribunal to warn the appellants at that point and allow them to make submissions on the issue. 3. The Tribunal was wrong to refer to a failure of INSW to ask for the proceedings to be determined in two stages at the first case conference on 21 October 2016 when at a subsequent directions hearing on 10 January 2017 both INSW and the Premier were contending that the proceeding should be determined in two stages. 4. The observation by the Tribunal about the need for persuasive reasons to support a request made in submissions for a second opportunity to argue in favour of non-disclosure flew in the face of the staggered procedure prescribed in s 106. 5. The present case was an excellent example why the course contemplated by the Tribunal that INSW could have relied upon the s 14 Table considerations as an alternative basis to its primary submission based upon Cabinet information was, in fact, wholly inappropriate. In this regard, the appellants pointed to the waste of the work that would have been required in respect of the original 53 documents in issue, in circumstances where having seen INSW's case the respondent abandoned virtually all of its claim, save in respect of three documents. 6. All that the appellants needed to show in order to succeed on the appeal was that the denial of procedural fairness deprived them of the possibility of a successful outcome. In order to negate that possibility, it was necessary for the Appeal Panel to find that a properly conducted hearing could not possibly have produced a different result: Ferraro v Lambert [2017] NSWCATAP 162 at [64]-[65]. It was submitted that without having the benefit of the appellants' evidence and submissions on the point it was impossible to conclude that there could not have been a different outcome.
In oral submissions, Mr Birch for the appellants, took the Appeal Panel through relevant aspects of the procedural history of the hearing before the Tribunal as set out below.
We note that the appellants do not contend that there was error by the Tribunal in deciding not to remit the matter for reconsideration by INSW. Neither of the parties contends that this should be an outcome of the appeal.

Relevant procedural history

On 20 September 2016, the respondent filed an application for administrative review. The first case conference took place on 21 October 2016. At that time, the respondent expanded his application to extend to all 51 documents found by INSW to fall within the request for access and to be Cabinet information. Various directions were made at this case conference, including to start with the provision by INSW of the evidence it relied upon.
As a consequence of the claim of Cabinet information, and pursuant s 106(4) and (5) of the GIPA Act, the Premier was joined as the second respondent. At the time of the first case conference, INSW was represented by Henry Davis York. Following the joinder of the Premier, the NSW Crown Solicitor came to represent both INSW and the Premier in the proceedings. This occurred in late December 2016.
In accordance with revised directions, shortly before a delayed second case conference held on 17 January 2017, the appellants filed and served their evidence and submissions.
That evidence consisted of an affidavit from Ms Jones. The appellants written submissions (dated 9 January 2017) set out the submissions that the document contained Cabinet information and concluded with a section on the topic of "Orders sought". This section included the following submissions: 45. In the event that the Tribunal is not satisfied that there were reasonable grounds for the classification of one or more documents as Cabinet information, the first respondent submits that the appropriate course would be to set aside the decision with respect to those documents, and to remit the matter back to INSW for reconsideration (pursuant to either s 63(3)(d) or s 65 of the Administrative Decisions Review Act 1997). It is clear from the affidavit of Ms Jones that there may be alternative grounds for finding that there is an overriding public interest against disclosure of the information in issue in this case (see for example, her discussion regarding the confidentiality of the IIAF process at paragraphs 31 and 32). INSW should have the opportunity to give further consideration to this issue: remittal is the most appropriate way to achieve that end. [our emphasis] 46. In the alternative, INSW should be given the opportunity to adduce any further evidence necessary, and to make submissions before the Tribunal as to whether or not documents may be released to the applicant, prior to the Tribunal determining what is the correct and preferable decision with respect to documents that it does not consider have been properly classified as Cabinet information.
On the appeal, without objection, the appellants read an affidavit sworn by Ms Mattes, a solicitor employed by the Crown solicitor, dated 2 March 2018. The affidavit included an account of an exchange between the Tribunal and the parties' representatives at the case conference on 17 January 2017. This exchange was as follows: On 17 January 2017, I appeared by telephone for the respondents at the second case conference in this matter, before Senior Member Lucy. Mr Maheswaran appeared by telephone for the applicant. During that case conference, an exchange occurred in words to the following effect: Senior Member: Is this a matter that can be dealt with on the papers? Maheswaran: The applicant's preliminary view is that he will not be seeking to cross-examine Ms Jones, and the matter can be dealt with on the papers. Mattes: In light of the applicant's position that cross-examination may not be necessary, the matter can probably be dealt with on the papers. However, I note that the respondents have submitted that, if the Tribunal is not satisfied that there were reasonable grounds for the classification of documents as Cabinet information, then the matter should be remitted back to the respondent for reconsideration as to whether the documents should otherwise be withheld, or alternatively, that the respondents should be given the opportunity to adduce further evidence and make further submissions on the issue of what is the correct and preferable decision. Those submissions are made from paragraph 45 of the respondents' written submissions. Senior Member: I will refer to that submission in the orders. Mattes: On that basis the respondent consents to the matter being dealt with on the papers. However, I think it would be a good idea for the parties to be given liberty to apply to the Tribunal for a hearing, if either party forms the view that a hearing would be necessary. Senior Member: I agree with that approach.
There was no challenge to the accuracy of this evidence from Ms Mattes. We accept it as correct.
At the end of the case conference on 17 January 2017, the Tribunal made orders including that: 2. The applicant file and serve evidence and submissions by 3 February 2017; 3. The respondents file and serve material in reply, if any, by 17 February 2017; 4. By consent, the matter is to be determined "on the papers". (The Tribunal notes the respondent's submission at para 45 and further notes that consent to the matter being dealt with on the papers is given subject to this submission); 5. The parties have liberty to make an application for oral hearing by 24 February 2017 by writing to the Tribunal and requiring that the matter be listed for directions for this purpose; 6. If neither party applies as per Order 5, the matter is reserved as at 25 February 2017; 7. The respondents to file the documents withheld pursuant to cll. 2.3 and 2.4 the AEOD Direction 6 by 23 January 2017. The publication or disclosure of the confidential material provided to the Tribunal by the respondent, including to the applicant, is prohibited until further order of the Tribunal.
The order made concerning dispensing with a hearing (Order 4) does not fully reflect the above exchange with the Tribunal. This is because the order refers only to the appellants' submission in paragraph 45 (dealing with remittal to INSW) and does not refer to paragraph 46 (dealing with an alternative, namely an opportunity to present evidence and submissions on alternative grounds).
It may well be that there was some misunderstanding at the time between the Tribunal and Ms Mattes as to the stance that the appellants were really taking about "the matter" (the language used in Order 4) that the appellants agreed could be dealt with on the papers. In this regard, we note that neither in the orders made on 17 January 2017, nor in the reasons for decision, did the Tribunal refer to the appellants alternative position to a remittal, namely that they be given the opportunity to advance at a second stage before the Tribunal alternative grounds for refusing access. Nor did Order 4 make it clear whether the contingent issue about remittal was a matter that it was agreed could be determined on the papers.
Unfortunately, clarity was not assisted by the absence of any application by the appellants at the hearing on 17 January 2017 for the determination of the Cabinet information issues as a separate matter in advance of final determination of the proceedings. Instead, a point about further issues was raised in the context of a question from the Tribunal about determining the matters on the papers.
Nevertheless, in view of Ms Mattes uncontroversial evidence of the exchange with the Tribunal, it does seem to us that the appellants were, in substance, indicating to the Tribunal that they did not agree that the whole of the matter concerning the question whether or not the respondent was to be provided with access to the information should be dealt with on the papers. As we interpret what occurred, the appellants were in substance conveying to the Tribunal that they were content for the Cabinet information issues to be determined on the papers but wished to be given an opportunity to, at least, consider if access should be refused on alternative grounds and either make a new decision about this or, if they considered there were such alternative grounds, advance them in a subsequent hearing by the Tribunal. The reasons given for the appellants' reservation about a decision being made on the papers were not rejected by the Tribunal at that time.
After some delay, the respondent (applicant below) filed and served his evidence and submissions in late April 2017. By these submissions, the respondent withdrew its application for administrative review in respect of all documents, save for Documents 1, 5 and 11.
This narrowing of the dispute made a determination of any and all issues concerning the dispute about access a less burdensome one for the parties and the Tribunal. However, this did not provoke any response from either of the parties designed to try and ensure that all issues about access to the information should now be dealt with by the Tribunal. For example, the respondent expressed no disagreement with the courses suggested in paragraphs 45 and 46 of the appellants' written submissions.
On the contrary, as appears from the respondent's submissions below, it became common ground between the parties that if the Tribunal found that there were no reasonable grounds for the claim of Cabinet information, then the matter should be remitted to INSW for the making of a new decision and in that regard INSW should have an opportunity to consider alternative grounds upon which to refuse access.
As to this, as we have said, the respondent's written submissions took no issue with what the appellants had said in paragraphs 45 and 46 of their written submissions. The respondent then said in the final paragraph of the submissions: 35. The Applicant seeks orders as follows: a. pursuant to s 106 of the GIPA Act, that the Respondent did not have reasonable grounds for the Respondent's claim that the Business Cases were Cabinet Information, b. that the Business Cases are not Cabinet Information, c. that the Application be remitted for determination by the Respondent, and d. any other order the Tribunal deems appropriate.
Hence, by the Order set out in paragraph 35 c, the respondent agreed there should be a remittal to INSW for a new decision to be made if the claim of Cabinet information was rejected.
On 26 May 2017, the appellants (respondents below) served a further affidavit from Ms Jones and written submissions in reply. This material dealt only with the issue whether Documents 1, 5 and 11 should be withheld on the basis that they contained Cabinet information.
As neither party made an application for an oral hearing, the Tribunal proceeded to deal with the dispute on the papers.

Respondent's submissions on Ground 2

The respondent made brief submissions about Ground 2 of the appeal. No issue was taken about the procedural facts. Three points were made as follows: 1. The appellants had not indicated any other evidence or submissions it would have made had it been afforded the opportunity to do so which could have possibly produced a different result with respect to the finding the Tribunal made under s 103(3) of the GIPA Act. 2. In circumstances where the appellants were able to present the evidence of Ms Jones which fully set out the connection between the Business Cases and the cabinet process and the Tribunal satisfied itself that the correct and preferable decision was that the overriding public interest against disclosure should not apply, further evidence and submissions from the appellants could not have possibly produced a different result. 3. Section 38(4) of the NCAT Act operated to allow the Tribunal, having regard to the substantial merits of a case, with reference to extensive evidence from a suitably qualified public servant, to decide what was the correct and preferable decision under s 103, without having reference to further submissions or evidence from the appellants.
Section 38(4) of the NCAT Act provides: 38 Procedure of Tribunal generally (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms,
More importantly, however, section 38(5) of the NCAT Act provides: (5) The Tribunal is to take such measures as are reasonably practicable: …. (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
Accordingly, we do not agree that s 38(4) supplants the need for the Tribunal to comply with the requirements of procedural fairness, which it seems was the effect of the respondent's submission.
It can also be seen than none of these submissions from the respondent really engaged with whether procedural unfairness had occurred.

Appellants' reply submissions

In reply to the respondent's point that the possibility of a different outcome had not been established, the appellants referred to what they had said in paragraph 45 of their written submissions to the Tribunal (set out above) about a confidentiality issue arising from Ms Jones' evidence about the confidentiality of the INSW process.
In addition, the appellants said that if they had been given the opportunity to do so they would have led further evidence to establish the position that the correct and preferable decision was to find that there was an overriding public interest against disclosure on the basis that the documents contained confidential and commercially sensitive information - they referred to s 14(2) of clause 4 of the Table in s 14 of the GIPA Act.

Conclusion on Ground 2

Based upon the procedural facts set out above, we think the Tribunal did err by proceeding to finally determine the dispute on the papers without giving the parties the opportunity to present argument (and, perhaps, any relevant evidence) about the appellants' alternative proposals for remittal or further hearing by the Tribunal, as set out in paragraphs 45 and 46 of their written submissions dated 9 January 2017.
In this regard, in our view: 1. based upon the appellants' written submissions dated 9 January 2017 and what occurred at the case conference on 17 January 2017, the Tribunal could reasonably have been expected to appreciate that the appellants were not consenting to a final determination of the dispute on the papers and, if necessary (because the Tribunal was against them on the Cabinet information point), wanted an opportunity to, at least, consider relying upon alternative grounds for refusing access; 2. based upon the respondent's written submissions in reply of 22 April 2017, in arriving at its decision, the Tribunal should have appreciated that both parties did not think that the dispute should be finally determined on the papers and that both parties thought that, if necessary (because the Tribunal was against the appellants on the Cabinet information point), INSW should have the opportunity to, at least, consider relying upon alternative grounds for refusing access; and 3. based upon the written submissions of the parties, in arriving at its decision, the Tribunal should have appreciated that neither party had presented their arguments upon the issue, if it arose, whether there should be a remittal to INSW or a further hearing before the Tribunal.
In these circumstances, in our view, procedural fairness required that, at least, the Tribunal should give the parties an opportunity to be heard on the course that it should take given that it had decided against the appellants on the Cabinet information point. This would have enabled a debate to occur about the merits of the options that were, potentially, available to the Tribunal. During such debate, if necessary, issues could have been addressed about some of the views expressed by the Tribunal in paragraphs 60 to 64 of its reasons. Also, the Tribunal could have been reminded of the specific option put forward by the appellants (in the alternative) for a further hearing before the Tribunal.
From the appellants reply submissions on the appeal, it would seem likely that if such an opportunity to be heard had been given, the appellants would have informed the Tribunal that it did wish to put forward alternative grounds to the Tribunal and to adduce further evidence in support. Given this position, and the respondent's acceptance in his written submissions that the appellants should have an opportunity to rely upon alternative grounds (albeit by remittal), it would have been difficult for the Tribunal to resist the conclusion that a further hearing about alternative grounds should take place.
For the reasons advanced by the appellants, we think it is impossible to conclude that the outcome of such a new hearing would have been no different, namely that the information would have been ordered to be released to the respondent.
Accordingly, we agree with the appellants that the decision to provide access should be set aside and the matter should be remitted to the Tribunal for determination according to law.
However, for the reasons given below concerning Grounds 3 and 4 of the appeal, we think that the Tribunal's decision rejecting the claim of Cabinet information should be affirmed.

Grounds 3 and 4

These grounds were concerned with Documents 1 and 11, but not Document 5.
Firstly, the appellants submit that the Tribunal erred by applying a different standard to the issue of reasonable grounds for the claim of Cabinet information under to cl 2(1)(d) than it said it would have done for a claim (not made) based on cll 2(1)(a) or (b).
Secondly, the appellants submit that the Tribunal erred because it was not open to the Tribunal to reject Ms Jones' affidavit evidence in circumstances where she had not been cross examined and there were no other reasons given apart from the reason that her evidence was only evidence of her opinion.
For the reasons set out below, we do not agree with these submissions.
We do not accept the point about applying a different standard, which was founded upon the Tribunal's remark that "it is more likely" that the Tribunal will need to look at the documents themselves where the claim is about the contents of a document, as is the case with the claim under cl 2(1)(d).
The appellants criticise the Tribunal on the basis that the Tribunal should consider whether there are reasonable grounds based upon the state of the affidavit evidence before it and any cross-examination, and not with regard to the fact that it can subsequently look at the documents under s 106(2).
However, we do not think there was error by the Tribunal in having "regard to" the power to require production of the information in arriving at the stage 1 decision prescribed by s 106(2) because it did so in circumstances where it was, clearly, addressing the correct questions, namely whether there were reasonable grounds for the claim and whether the affidavit evidence was sufficient to satisfy it that such grounds existed.
In making the remark which is criticised by the appellants, the Tribunal, correctly, directed itself to the nature of the claim, based as it was upon what the document revealed and contrasted such a claim with a claim, for example, based upon the purpose behind the preparation of a document, rather than its content. Understandably, in our view, the Tribunal pointed out that in these contrasting situations it would, probably, be more difficult to persuade the Tribunal that there were reasonable grounds for the claim without looking at the document than would be the case with some of the other categories of claim.
In reasoning in this way, the Tribunal was applying the correct approach to the review, namely whether there were reasonable grounds for the claim, and whether the affidavit evidence was sufficient to satisfy it to that degree.
In this regard, it can be seen that the Tribunal's reasoning began by addressing the affidavit evidence of Ms Jones: (at [45] and [46]).
That evidence did not go beyond a statement as to her ultimate conclusion. In her first affidavit, dated 6 January 2017, Ms Jones deposed (at [46(a)]): Furthermore, I determine that: a) Documents 1 and 11 contain information that reveals, or tends to reveal earlier decisions or deliberations about other infrastructure projects, such that the Cabinet Information Presumption also applies having regard to Sch. 1 cl 2(1)(b) of the GIPA Act …
In her second affidavit dated 26 May 2017, Ms Jones' evidence went no further on the issue as to what the documents revealed. She deposed (at [14]): Specifically, Documents 1 and 11 reveal decisions made by Cabinet regarding the allocation and distribution of funds from the Housing Acceleration Fund. Details of these decisions have not been announced, and this information is not, as far as I am aware, in the public domain. Accordingly, I determine that disclosure of these documents would reveal, or tend to review, earlier decisions of Cabinet.
As the Tribunal pointed out (at [47]), it was open to the appellants to provide confidential evidence to further assist the Tribunal in making its decision, but the appellants did not do so.
In view of this evidence, we think the Tribunal was correct in deciding to examine the documents for itself.
Given the generalised and limited nature of this evidence, and the problems confronting the respondent in testing the evidence without knowing the contents of the documents, the absence of cross - examination was not significant.
As is clear from the reasons, once the Tribunal had looked at the documents, it could not discern what the appellants were relying upon. In this regard, we note that on the appeal no point is raised to the effect that the Tribunal was incorrect about what it found or had overlooked some material part of the documents.
For these reasons, we reject Grounds 3 and 4 of the appeal.

Orders

For the above reasons, we make the following orders on the appeal: 1. The Tribunal's rejection of the claim that the information in Documents 1, 5 and 11 is Cabinet information is affirmed. 2. Set aside Orders 1 and 2 of the orders made on 29 November 2017. 3. Remit the matter to the Tribunal for determination according to law.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2018

Administrative Tribunal Act 2013(NSW)

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