Jeray v Blue Mountains City Council

NCAT Appeal Panel|2023-03-10

Introduction

The question in these proceedings is whether the Information Commissioner can be summonsed to attend and give evidence or produce documents in these internal appeal proceedings. For the reasons we give below, the answer is that the Information Commissioner cannot be required to give evidence or produce documents in these proceedings, and we refuse to issue the summons Mr Jeray has requested.
The relevant background to these proceedings is that Mr Jeray applied to the Blue Mountains City Council (the Council) for access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act.) The information sought relates to records about the North Face 100/Ultra Trail event, a 100 km train running event held annually in the Blue Mountains. After various decisions by Council, the Information Commissioner and the Tribunal, the Appeal Panel set aside the Council's decision that the application was not valid and directed the Council to make a new decision: Jeray v Blue Mountains City Council [2021] NSWCATAP 310. The Council refused Mr Jeray's application again, this time because "dealing with the application would require an unreasonable and substantial diversion of the agency's resources": GIPA Act, s 60(1)(a). Mr Jeray has applied to the Tribunal for an administrative review of that decision.
When preparing the matter for hearing, the Tribunal made several directions. Mr Jeray has appealed to the Appeal Panel of the Tribunal against nine of those directions and is seeking various orders. We will refer to those proceedings as the substantive appeal. The substantive appeal will not be determined until publication of these reasons about Mr Jeray's application for a summons.

Application for an adjournment

On 8 March 2023, two days before the hearing, Mr Jeray applied for an adjournment on the ground that the Appeal Panel should resolve the summons issue before determining the substantive appeal. He submitted that he had not been given a reasonable opportunity to obtain and submit relevant evidence. The application for an adjournment was refused on 8 March 2023 and Mr Jeray was told that the issues raised may be dealt with by the Appeal Panel at the outset of the hearing.
On the morning of the hearing Mr Jeray emailed the Tribunal apologising for not attending the hearing in person and pressing his application for an adjournment on the same grounds as outlined in his original application. The Appeal Panel asked the Registry to contact Mr Jeray and request that he appear by phone. He did so, explaining that he was relying on the grounds he had provided in his request for an adjournment. Further discussion took place, and the Appeal Panel made the following (amended) order: The appellant's application to issue a summons be determined on the papers under s 50(2) of the NCAT Act.
At the hearing on 10 March 2023, Mr Jeray requested an opportunity to reply to the Information Commissioner's submissions of 24 January 2023. We directed that he give the Tribunal, the Council and the Information Commissioner any submissions in reply by 11 April 2023. On that basis, Mr Jeray agreed that the Appeal Panel should dispense with a hearing and determine the summons issue 'on the papers'. We are satisfied that the issues for determination can be adequately determined by considering the written submissions and the other documents before the Appeal Panel: NCAT Act, s 50. There was then no need to adjourn the hearing in relation to the application for a summons to be issued.

What are the general rules about issuing a summons?

The general rule is that a party may apply for a Registrar to issue a summons requiring a person to attend and give evidence and/or attend and produce documents or other things: Civil and Administrative Tribunal Act 2013 (NSW), (NCAT Act), s 48(3). We set out s 48 in full below: (1) A summons for the purposes of this Act may be issued by a registrar - (a) on the application of a party to the proceedings, or (b) at the direction of the Tribunal. Note - See also section 46(2)(b). (2) The fee (if any) prescribed by the regulations is payable for the issue of a summons on the application of a party to the proceedings. (3) Such a summons must be signed by a registrar or as otherwise prescribed by the procedural rules and may require the person to whom it is addressed - (a) to attend and give evidence, or (b) to attend and produce documents or other things, or both.
The Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) require a party applying for a summons to be issued, to complete the "approved form". Clause 34(1) of the NCAT Rules provides that: 34 Issue of summons (1) An application by a party to proceedings for a summons under section 48 of the Act must be made in or to the effect of the approved form.
NCAT Procedural Direction 2, entitled "Summons" sets out the procedure when applying for a summons to be issued and for objecting to a summons. For example, paragraph 7 provides that: Any party to proceedings in the Tribunal can apply for the issue of a summons.

Does the Tribunal have power to give directions when a Registrar has refused an application for a summons?

Mr Jeray highlighted paragraph 4 of Procedural Direction 2 which states that: Nothing in this Procedural Direction prevents the Tribunal from giving any directions concerning the issue, service or compliance with a summons that the Tribunal considers appropriate in any particular proceedings before the Tribunal.
According to Mr Jeray, that paragraph implies that the Tribunal is not prevented from giving any directions when the summons is issued but cannot give directions when the summons is applied for. That submissions is not consistent with the legislative scheme we have outlined or the fact that, under s 38(1) of the NCAT Act: (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
The Tribunal has power to give directions when a Registrar has refused an application for a summons. That is what happened in this case.

Can the Information Commissioner make submissions as to whether or not the summons should be issued?

Mr Jeray submits that the Information Commissioner must be added as a party to these proceedings under s 44 of the NCAT Act before she can make a submission on the summons application.
The Information Commissioner is entitled, as any other person in a similar position would be entitled, to be heard as an objector on the question of whether a summons addressed to them should be issued. There is no requirement for a potential witness to be joined as a party.

Is the Information Commissioner legally permitted to give evidence in these proceedings?

The competence of a witness refers to whether a witness is legally permitted to give evidence. The general rule that a person is competent to give evidence does not apply to the Information Commissioner or a member of her staff: Government Information (Information Commissioner) Act 2009 (NSW) (GIIC Act) s 41. By s 41(1) neither the Commissioner nor a member of her staff is permitted to give evidence in respect of "any information obtained by the Commissioner or member of staff in the course of the exercise of legislative functions". 41 Commissioner, officer or expert as witness (1) Neither the Commissioner nor a member of staff of the Commissioner is competent or compellable to give evidence or produce any document in any legal proceedings in respect of any information obtained by the Commissioner or member of staff in the course of the exercise of functions under this or any other Act. (2) Subsection (1) does not apply to any legal proceedings - (a) under section 27 (Limits on coercive powers because of privilege etc), 42 (Immunity of Commissioner and others) or 43 (Offences), or (b) under Part 3 of the Royal Commissions Act 1923, or (c) under Part 4 of the Special Commissions of Inquiry Act 1983. (3) This section applies to a person whose services are engaged under section 16 in the same way as it applies to a member of staff of the Commissioner.
The Tribunal has briefly considered s 41 of the GIIC Act on two occasions. In Lonsdale v University of Sydney [2015] NSWCATAP 277 at [18], the Appeal Panel held that: While the Tribunal's decision in relation to the summons to the Information Commissioner is within the scope of this appeal, the law is that the Commissioner is neither competent nor compellable to give evidence or produce any document in legal proceedings in respect of any information obtained by the Commissioner or a member of staff in the course of the exercise of functions under any Act (including the GIPA Act): see Government Information (Information Commissioner) Act 2009, s 41. That provision disposes of that issue. We will not consider any further the Tribunal's decision(s) as they relate to that summons.
The Tribunal had come to the same view a few months earlier: Pittwater Council v Walker (10 March 2015)[2015] NSWCATAD 34 at [19].
Similar exceptions to the rule that a competent person can be compelled to give evidence are in s 35(1) of the Ombudsman Act 1974 (NSW) and s 165(1) of the Police Act 1990 (NSW). In Kaldas v Barbour [2017] NSWCA 275, the Court of Appeal considered the application of those provisions to certain Notices to Produce directed to the Ombudsman. Basten JA at [379] and Macfarlan JA at [380] held that neither of those provisions was invalid and that Notices to Produce directed to the Ombudsman should be set aside.
Mr Jeray submits that the word "obtained" in s 41(1) means that the Information Commissioner must comply with a summons to produce evidence "held", as distinct from "acquired", by the Information Commissioner. He submits that s 41 does not provide a blanket exemption from the general requirement to comply with a summons. Only evidence "obtained" by the Commissioner is exempt.
The purpose of s 41 is to protect the integrity of the Information Commissioner's functions including her complaint handling and investigative functions. Disclosure of information is closely regulated by Part 3, Division 5 of the GIIC Act.
The word "obtained" should be given its ordinary meaning. A dictionary definition may be used as a guide when determining its ordinary meaning: Pearce and Geddes, Statutory Interpretation in Australia, (9th ed, 2019 LexisNexis) at 3.33. The Macquarie Dictionary defines "obtained" as: verb (t) 1. to come into possession of; get or acquire; procure, as by effort or request: he obtained a knowledge of Greek.
In context, "obtained" means the information that the Information Commissioner has in her possession at the time the summons is served, and which was obtained in the course of the exercise of legislative functions. That information may have been obtained from external sources, or it may have been generated internally. It makes no difference.
The information Mr Jeray asks for in the summons is all documents that refer to the Information Commissioner appearing and being heard in each of the three identified proceedings in the Tribunal. That information would have been "obtained by the Commissioner in the course of the exercise of functions" under the GIPA Act. The Information Commissioner is not competent or compellable to give that evidence or provide that information. Having reached that conclusion, there is no need to consider whether the summons has a legitimate forensic purpose.

Orders 1. A hearing is dispensed with. 2. Mr Jeray's application for a summons to be issued is refused. 3. Within 7 days after publication of these reasons, the appellant, the respondent and the Information Commissioner may make submissions as to whether the Tribunal should dispense with a hearing on the substantive appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 09 May 2023 - Corrections made to legislation reference in paragraphs 23, 24 and 28 Typographical error in orders corrected 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: 09 May 2023

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