Mr Jeray has appealed from procedural directions made by the Tribunal in proceedings under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). In the Tribunal proceedings below, the Information Commissioner exercised her right to appear and "be heard": GIPA Act and cl 9(4)(a) of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). When making procedural directions to prepare the matter for hearing, the Tribunal included the following statement:
The Information Commissioner appears and has a right to be heard in these proceedings but is not a party.
Mr Jeray submits that the statutory provisions allowing the Information Commissioner to appear and "be heard" are invalid. He seeks the removal of the Information Commissioner from the Tribunal proceedings and the appeal proceedings as well as other orders.
On 7 November 2022, after lodging the Notice of Appeal, Mr Jeray requested that a summons be issued to the Information Commissioner in the appeal proceedings. We have refused to issue the summons because the Information Commissioner is not competent or compellable to give evidence: Jeray v Blue Mountains City Council [2023] NSWCATAP 120.
Mr Jeray now applies for leave or permission for him to appeal from the procedural directions, which are interlocutory decisions. He also applies for two questions of law to be referred to the Supreme Court.
We have decided that the statement made by the Tribunal about the decision of the Information Commissioner to appear and be heard, is not an" internally appealable decision" as defined in the NCAT Act. Consequently the Appeal Panel does not have jurisdiction to hear an appeal from that statement.
In relation to the procedural directions to the parties and the Information Commissioner, the Tribunal made those directions to prepare the matter for hearing. Even accepting that the question of the validity of legislation raises a matter of public importance, for the reasons we give below, there is no injustice or readily apparent error. We have decided not to give Mr Jeray "leave" or permission to appeal from those directions.
For similar reasons, we have decided not to refer the questions of law Mr Jeray has identified to the Supreme Court. We also refuse Mr Jeray's application for us to disqualify ourselves from hearing his application that certain questions of law be referred to the Supreme Court.
Each of these issues has been determined "on the papers" without an oral hearing: NCAT Act, s 52.
Mr Jeray's remaining appeal ground is that the Tribunal denied him procedural fairness by failing to give him a reasonable opportunity to request that a summons be issued to the Information Commissioner. We will make directions for that ground of appeal to be determined so that the parties have an opportunity to provide submissions on that issue. Depending on the parties' views and our decision, that issue will either be determined "on the papers" or following an oral hearing.
[2]
Procedural background to the appeal
The relevant background to these proceedings is that in earlier proceedings Mr Jeray applied to the Blue Mountains City Council (the Council) for access to information under the GIPA Act. The information he sought related to records about the North Face 100/Ultra Trail event, a 100 km trail running event held annually in the Blue Mountains. The Council decided that Mr Jeray's application was not a valid access application because it did not include "such information as is reasonably necessary to enable the government information applied for to be identified": GIPA Act, s 41(1)(e).
Mr Jeray asked the Information Commissioner to review the Council's decision: GIPA Act, Part 5, Division 3. The Information Commissioner reviewed the decision and came to the following conclusion:
Accordingly I am satisfied that the Agency's decision that the access application is not valid is justified and I make no recommendations to the Agency.
Mr Jeray then applied to the Tribunal for an administrative review of the Council's decision. The Tribunal affirmed the decision: Jeray v Blue Mountains City Council [2021] NSWCATAD 67.
The Appeal Panel subsequently set aside the Tribunal's decision that the application was not valid and remitted an amended application to the Council for reconsideration: Jeray v Blue Mountains City Council [2021] NSWCATAP 310. The Council refused the application 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 applied to the Tribunal for an administrative review of that decision.
The Tribunal has made procedural directions to prepare the matter for hearing, but has not determined Mr Jeray's application for administrative review. In making procedural directions the Tribunal included the statement we quoted above in paragraph 1.
Mr Jeray now appeals to the Appeal Panel from that statement and from the procedural directions the Tribunal made when preparing the matter for hearing. Mr Jeray appeals from three directions made by the Tribunal on 28 February 2022 and six directions made on 2 May 2022. The 28 February 2022 statement and directions were that:
1. The Information Commissioner appears and has a right to be heard in these proceedings but is not a party.
2. Blue Mountains City Council is to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 22 April 2022.
3. The proceeding is listed for case conference on 2 May 2022 at 10.30 am for 1 hour.
The 2 May 2022 directions set down a timetable for the parties and the Information Commissioner to provide evidence, submissions and other material and listed the matter for further directions.
[3]
Grounds of appeal
The amended grounds of appeal are that:
1. The Information Commissioner cannot appear and be heard in the proceedings before the Tribunal because:
1. Section 104(1) of the GIPA Act is invalid as it impairs the independence and impartiality of the Information Commissioner given her conflicting role under Division 3 of Part 5 of the GIPA Act.
2. The Information Commissioner has already impaired her independence and impartiality in the proceedings before the Tribunal given she has:
1. carried out an external review of the respondent's decision to consider the applicant's GIPA application as invalid under Division 3 of Part 5 of the GIPA Act; and
2. agreed with the respondent that the applicant's GIPA application is invalid for the same reasons now argued by the respondent to refuse to deal with his GIPA application.
1. The appellant has been denied natural justice/procedural fairness because the Tribunal did not provide the applicant with a reasonable opportunity to seek a summons and obtain and peruse the information sought by it before he was required to submit his evidence and written submissions.
The orders Mr Jeray seeks include that the Information Commissioner be removed from the proceedings, that the Tribunal declare that s 104(1) of the GIPA Act is invalid, that Mr Jeray be given a reasonable opportunity to request that a summons be issued and that the Tribunal is to perform its obligatory duties to assist him as a self-represented person.
[4]
Preliminary issues
The preliminary issues are:
1. Should the Appeal Panel dispense with a hearing and, if so, on which issues?
2. Is the statement about the appearance of the Information Commissioner in the proceedings an "internally appealable decision"?
3. Should the Appeal Panel give Mr Jeray permission to appeal from the Tribunal's procedural directions?
4. Should the Appeal Panel refer certain questions of law to the Supreme Court ; and
5. Should the Appeal Panel recuse itself from consideration of that issue?
Once these preliminary issues have been determined, the only outstanding issue in the substantive appeal is whether the Tribunal denied Mr Jeray procedural fairness by failing to give him a reasonable opportunity to request that a summons be issued to the Information Commissioner. We make the following directions in relation to that issue:
1. By 29 January 2024, the appellant is to file and serve any submissions on ground 2 of the appeal including submissions as to whether a hearing should be dispensed with.
2. By 12 February 20024, the respondent is to file and serve any submissions on ground 2 of the appeal including submissions as to whether a hearing should be dispensed with.
3. The Information Commissioner may make submissions on this issue at the same time as the respondent if she so chooses.
[5]
Should the Appeal Panel dispense with a hearing and if so, on which issues?
Under s 50(2) and (3) of the NCAT Act:
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first -
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
. . .
After delivering the decision refusing to allow Mr Jeray to summons the Information Commissioner in these appeal proceedings, we invited the parties and the Information Commissioner to provide submissions as to whether a hearing should be dispensed with. Both the Information Commissioner and the Council considered that the Tribunal could adequately decide the matter on the basis of the written material. They have maintained that view in relation to all the preliminary issues.
Mr Jeray opposes a hearing on the papers for each of the preliminary issues. He submits that those issues should be heard together and in person before the substantive appeal so as to allow him to "peruse evidence". There is no evidence to be perused and no issues of fact in contention. Each of the preliminary issues is a legal question. In this case having an 'in person' hearing on legal issues increases the costs to the parties. Mr Jeray is self-represented, but he has clearly articulated his submissions in written form. Taking into account the parties' and the Information Commissioner's submissions about a hearing 'on the papers', we are satisfied that the preliminary issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
The parties have been given a reasonable opportunity to be heard and otherwise have their submissions considered. That is the case despite Mr Jeray's submission that he has not been given an opportunity to respond to the Council's submissions regarding the Appeal Panel's questions as to whether the "statement" and procedural directions are internally appealable decisions.
We extended the time for the parties to make submissions on those issues to 24 November 2023. We directed the parties to make submissions concurrently rather than sequentially because this issue was raised by the Tribunal, not by a party, and to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 38(2).
[6]
Is the statement about the appearance of the Information Commissioner in the proceedings an "internally appealable decision"?
Mr Jeray has purported to appeal from the following statement made by the Tribunal when giving directions to the parties and the Information Commissioner:
The Information Commissioner appears and has a right to be heard in these proceedings but is not a party.
That statement restates the effect of s 104(1) of the GIPA Act and cl 9(4)(a) of Sch 3 to the NCAT Act. Section 104(1) of the GIPA Act provides that:
The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division.
The NCAT Act also gives the Information Commissioner the right to appear and be heard in proceedings under the GIPA Act: NCAT Act, Schedule 3, clause 9(4) provides that.
(4) The following persons have a right to appear and be heard in proceedings for the exercise of a Division function for the purposes of the Government Information (Public Access) Act 2009 -
(a) the Information Commissioner,
(b) the Privacy Commissioner,
(c) any person who could be aggrieved by a decision of the Tribunal on an administrative review on an application made under Division 4 of Part 5 of that Act.
A "Division function" means "a function of the Tribunal allocated to the Division by this Schedule": NCAT Act, Sch 3, cl 1(1).
A party to proceedings may appeal to the Appeal Panel against an "internally appealable decision". Section 80 of the NCAT Act provides that:
80 Making of internal appeals
(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.
The scope of the Tribunal's internal appeal jurisdiction is set out in section 32 of the NCAT Act. Section 32(1) provides that:
32 Internal appeal jurisdiction of Tribunal
(1) The Tribunal has internal appeal jurisdiction over -
(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and
(b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.
A party may appeal to the Appeal Panel, with leave, from an interlocutory decision: NCAT Act, s 80(2)(a). "Interlocutory decision" is defined in s 4(1) to include "the joinder or misjoinder of a party to proceedings" and "any other interlocutory issue before the Tribunal".
The statement set out at paragraph 1 above, is not an internally appealable decision within the meaning of that term in the NCAT Act because it is not a decision at all. It is a statement to the parties advising them of the fact that the Information Commissioner has exercised her statutory right to appear and be heard. There is no statutory or other basis on which the Tribunal is empowered to regulate the Commissioner's right of appearance. It follows that the statement is not an internally appealable decision, interlocutory or otherwise, and the Appeal Panel has no jurisdiction to hear an appeal from that statement.
[7]
Should the Appeal Panel give Mr Jeray permission to appeal from the Tribunal's procedural directions?
[8]
Procedural directions are interlocutory decisions
All the procedural directions from which Mr Jeray appeals are "interlocutory decisions" as defined in s 4(1) of the NCAT Act. The directions include directions addressed to the parties to serve submissions and other material on the Information Commissioner and directions for the Information Commissioner to serve submissions and other material on the parties. They are not final decisions because the Tribunal has not determined Mr Jeray's application. Mr Jeray needs the Tribunal's permission to appeal from an interlocutory decision: NCAT Act, s 80(2).
[9]
Basis on which leave to appeal from interlocutory decision may be given
The Appeal Panel summarised the basis on which leave should be given to appeal from an interlocutory decision in Collins v Urban [2014] NSWCATAP 17 at [84].
The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
[10]
Mr Jeray's submissions for requesting leave to appeal
Mr Jeray's ground for requesting leave to appeal are as follows:
1. Both the Information Commissioner's right to appear and be heard and the validity of s 104(1) of the GIPA Act are being contested.
2. The Appeal Panel has not yet considered the meaning of s 104(1) of the GIPA Act and has tentatively expressed its reservations about the Tribunal's interpretation of the Information Commissioner's participative role under s 104(1). See Rice Marketing Board for the State of NSW v Forbidden Foods Pty Limited [2020] NSWCATAP 182 at [120].
3. Section 104(1) of the GIPA Ac and its association with s 44 of the NCAT Act and clause 27 of the NCAT Rules require clarification by the Appeal Panel.'
4. The Information Commissioner's specific reasons for appearing, role and position in the proceedings before the Tribunal require clarification.
5. The appellant has been denied natural justice/procedural fairness because he has unfairly not been provided with a reasonable opportunity to seek a summons and obtain and peruse the information sought by it before he was required to submit his evidence and written submissions.
Mr Jeray submits that the statutory provisions which give the Information Commissioner the right to appear and be heard before NCAT are invalid. His reasoning is that they impair the independence and impartiality of the Information Commissioner given her conflicting role under Division 3 of Part 5 of the GIPA Act. That Division, which includes ss 89 - 99 of the GIPA Act, entitles a person aggrieved by an agency's decision to have the Information Commissioner review the decision. Section s 89(1) provides that:
A person aggrieved by a reviewable decision of an agency is entitled to have the decision reviewed by the Information Commissioner under this Division.
If the Information Commissioner undertakes a review she may then "make such recommendations to the agency about the decision as the Information Commissioner thinks appropriate": GIPA Act, s 92(1). For example, under s 93(1), the Information Commissioner "may recommend that the agency reconsider the decision that is the subject of the Information Commissioner's review and make a new decision as if the decision reviewed had not been made". However, the agency is not bound to reconsider the decision, or to make a new decision consistent with the Information Commissioner's recommendation: GIPA Act, s 93(2). In certain circumstances, the Information Commissioner may refuse to review an agency's decision: GIPA Act, s 96.
Mr Jeray submits that the Information Commissioner may have expressed an opinion as to the merits of the Council's decision when undertaking a review of the decision. If the Information Commissioner is then entitled to appear and be heard in Tribunal proceedings about the same agency's decision, her independence and impartiality is compromised.
In his written submissions, Mr Jeray refers to the rule of procedural fairness about apprehended bias. That rule is that a judge or other decision maker should disqualify themselves from making a decision if "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 [emphasis added]": Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Mr Jeray submits that because the Information Commissioner agreed with the Council's decision that his initial application was not valid, there is at least a perception of bias, if not actual bias. On that basis s 104(1) and Schedule 3, clause 9(4) of the NCAT Act are invalid.
We understand Mr Jeray's alternative submission to be that the Information Commissioner should not be permitted to appear and be heard in this case because her independence and impartiality has, in fact, been impaired because she agreed with the Council that his application was not valid for the same reasons now argued by the Council to refuse to deal with his GIPA application. For that reason, the Tribunal should not allow the Information Commission to appear and be heard in the current proceedings.
[11]
Consideration of application for leave to appeal
The long title to the Government Information (Information Commissioner) Act 2009 (NSW) is:
An Act to create the office of Information Commissioner; and for other purposes.
Under s 4, the Governor may appoint an Information Commissioner. Section 14 provides that, "The Commissioner has such functions as may be conferred or imposed on the Commissioner by legislation." The GIPA Act confers the following functions on the Information Commissioner:
17 Role of Information Commissioner
The Information Commissioner has the following functions in connection with the operation of this Act -
(a) to promote public awareness and understanding of this Act and to promote the object of this Act,
(b) to provide information, advice, assistance and training to agencies and the public on any matters relevant to this Act,
(c) to assist agencies in connection with the exercise of their functions under this Act, including by providing services to assist with the lodgment, handling and processing of access applications,
(d) to issue guidelines and other publications for the assistance of agencies in connection with their functions under this Act,
(e) to issue guidelines and other publications for the assistance of the public in connection with their rights under this Act (including rights of review),
(f) to review decisions of agencies pursuant to Part 5,
(g) to monitor, audit and report on the exercise by agencies of their functions under, and compliance with, this Act,
(h) to make reports and provide recommendations to the Minister about proposals for legislative and administrative changes to further the object of this Act.
Section 104(1) of the GIPA Act gives the Information Commissioner the "right" to appear and be heard in certain proceedings. In Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [84] the Appeal Panel referred to s 104 as conferring "automatic" rights of appearance. At [119] the Panel offered the tentative view that that role is not limited to "assisting the Tribunal with respect to the applicable law, policies and guidelines, and issues of construction of the GIPA Act." The Appeal Panel did not express a concluded view on the scope of the Information Commissioner's role when appearing and being heard.
While the Information Commissioner has a right to appear, she is not obliged to do so: Zonnevylle v Secretary, Department of Education [2022] NSWCATAD157 at [47] - [51].
When the Information Commissioner is making an administrative decision, she should disqualify herself if there is a reasonable apprehension of actual or apprehended bias. However, by appearing and being heard in Tribunal proceedings, the Information Commissioner is not making a decision. The Tribunal is the decision maker. No actual or potential impartiality on the part of the Information Commissioner disqualifies her from participating in the proceedings. In any case, even if there was an actual or potential conflict, Mr Jeray has not identified any legal principle to support his submission that legislation is invalid when it impairs independence or impartiality, either generally or in the circumstances of this case. Nor are we aware of any such principle.
For those reasons, in our view, while the validity of legislation is a matter of public importance, there is no 'injustice' or 'readily apparent error' in this case: Collins v Urban [2014] NSWCATAP 17 at [84]. That is because there is no arguable case for invalidity of the provisions allowing the Information Commissioner to appear and be heard. On that basis we refuse to give leave for Mr Jeray to appeal from the procedural directions.
[12]
Should the Appeal Panel refer certain questions of law to the Supreme Court?
Before the Tribunal directed the parties to file submissions on the questions we have dealt with above, Mr Jeray applied for the Appeal Panel to refer two purported "questions of law" said to arise in these proceedings, to the Supreme Court for "the opinion of the Court": NCAT Act, s 54. That section is as follows:
54 References of questions of law to Supreme Court
(1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.
(2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred.
The purported questions of law relate to the meaning and validity of s 104(1) of the GIPA Act (giving the information Commissioner a right to appear and be heard in NCAT proceedings) and s 42(2) of the Government Information (Information Commissioner) Act 2009 (NSW) (GIIC Act) which prevents a person from bringing civil or criminal proceedings against the Information Commissioner, in respect of certain matters, without the leave of the Supreme Court. Section 42(2) of the GIIC Act is as follows:
42 Immunity of Commissioner and others
(1) Neither the Commissioner nor a member of staff of the Commissioner is liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.
(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) cannot be brought against the Commissioner or a member of staff of the Commissioner without the leave of the Supreme Court.
(3) The Supreme Court is not to grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.
The purported questions of law that Mr Jeray is seeking to have referred to the Supreme Court are:
1. Is 104(1) of the GIPA Act invalid given the Information Commissioner's conflicting role under Div 3 of Part 5 of the GIPA Act?
2. Does the Supreme Court grant the Appellant leave [under s 42(2)] of the GIIC Act to pursue ground 1b of his amended notice of appeal dated 16 August 2022) and as further amended by his written submissions (dated 28 September 2022) filed in the NCAT?
[13]
Should the Appeal Panel recuse itself from consideration of this issue?
In his written submissions about referring a question of law to the Supreme Court, Mr Jeray stated that;
The appellant notes NCAT Deputy President Hennessy made a statement at the Appeal Panel directions hearing on 4 August 2023 indicating (without any reason) the Deputy President was of the view that the appellant does not require leave of the Supreme Court of NSW to pursue amended ground 1b. Consequently and respectfully, the Deputy President's statement disqualifies the Deputy President from deciding the appellant's amended application for the two questions of law to be referred to the Supreme Court of NSW for its determination. By implication, the appellant also respectfully considers NCAT Senior Member Dubler is also of the same view that leave is not required and should too be disqualified at given the Senior Member did not also (with Deputy President Hennessy) raise this critical issue in Jeray v Blue Mountains City Council [2023] NSWCATAP 120. The appellant notes Kaldas v Barbour [2017] NSWCA 275 was referred to in Jeray v Blue Mountains City Council [2023] NSWCATAP 120 at [26].
We accept that the statement attributed to the Deputy President was made. It remains the view of the Appeal Panel that Mr Jeray does not require the leave of the Supreme Court to pursue appeal ground 1b. That is because that ground of appeal does not amount to civil proceedings against the Information Commissioner. The proceedings are between Mr Jeray and the Council. The Deputy President made the statement in an effort to ensure that Mr Jeray understood the nature of the proceedings he has brought: NCAT Act, s 38(5)(a). Those efforts do not justify Deputy President Hennessy or Senior Member Dubler recusing themselves from hearing this application.
[14]
Consideration of whether questions of law should be referred to Supreme Court
The first purported question of law is said to arise in these proceedings because one of Mr Jeray's grounds of appeal (ground 1a) is that:
The Information Commissioner of NSW cannot appear and be heard in the proceedings before the Tribunal because 104(1) of the GIPA Act is invalid, as it impairs the independence and impartiality of the Information Commissioner given her conflicting role under Division 3 of Part 5 of the GIPA Act.
Mr Jeray submits that the Appeal Panel does not have jurisdiction to determine the validity of legislation because there is no specific power to that effect either under the NCAT Act, ss 3 and 63 or the Administrative Decisions Review Act 1997 (NSW)(ADR Act), s 3 and 32.
As to the second question, Mr Jeray says he cannot pursue another ground of appeal (ground 1b) unless the Supreme Court grants leave under s 42(2) of the GIIC Act for him to bring civil proceedings against the Information Commissioner. That ground of appeal is:
The Information Commissioner cannot appear and be heard in the proceedings before the Tribunal [under section 104(1) of the GIPA Act] because the Information Commissioner has already impaired her independence and impartiality in the proceedings before the Tribunal given she has:
a. carried out an external review of the respondent's decision to consider the applicant's GIPA application as invalid under Division 3 of Part 5 of the GIPA Act and
b. agreed with the respondent that the applicant's GIPA application is invalid for the same reasons now argued by the respondent to refuse to deal with his GIPA application.
Under s 54(1) of the CAT Act, the Appeal Panel may "refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court." (Emphasis added.) Even if it can be said that these questions arise in the proceedings, we have decided not to refer the questions because, for the reasons we have given, the likelihood that they will be answered in the way Mr Jeray contends is negligible.
[15]
Orders
1. A hearing is dispensed with on each of the preliminary issues.
2. Leave to appeal from interlocutory decisions is refused.
3. The Tribunal makes the following directions:
1. By 29 January 2024, the appellant is to file and serve any submissions on ground 2 of the appeal including submissions as to whether a hearing should be dispensed with.
2. By 12 February 2024, the respondent is to file and serve any submissions on ground 2 of the appeal including submissions as to whether a hearing should be dispensed with.
3. The Information Commissioner may make submissions on this issue at the same time as the respondent if she so chooses.
[16]
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
[17]
Amendments
14 December 2023 - Order 3 (2) year should read 2024
14 December 2023 - Order 3(2) at the end should read 2024 as well
14 December 2023 - Paragraph 34 - administrative error
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 December 2023