Jeray v Blue Mountains City Council

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Houda v Seraphim [2025] NSWCATAP 135

Jeray v Blue Mountains City Council [2021] NSWCATAD 67

Jeray v Blue Mountains City Council [2021] NSWCATAP 310

Jeray v Blue Mountains City Council [2022] NSWCATAD 343

Jeray v Blue Mountains City Council [2023] NSWCATAP 120

Jeray v Blue Mountains City Council [2023] NSWCATAP 325

Jeray v Blue Mountains City Council [2024] NSWCATAP 66

Jeray v Blue Mountains City Council [2024] NSWCATAD 342

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24

Kirk v Industrial Court (NSW) (2020) 239 CLR 531; [2010] HCA 1

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12

Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15

South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

The Owners - Strata Plan No 74835 v Pullicin (Costs) [2020] NSWCATAP 49

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Jeray v Blue Mountains City Council [2024] NSWCATAD 342

1. This is an internal appeal from the decision of the Tribunal constituted by Principal Member K Robinson made on 13 November 2024 in the Administrative and Equal Opportunity Division in proceedings between the appellant, Ivan Jeray (Mr Jeray) and the respondent, Blue Mountains City Council (the Council): Jeray v Blue Mountains City Council [2024] NSWCATAD 342 (the 13 November 2024 AEOD Decision). The Principal Member affirmed the Council's decision made on 19 November 2021 to refuse to deal with Mr Jeray's application made on 23 July 2020 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to information on the basis that to do so would be an unreasonable and substantial diversion of the Council's resources (the 19 November 2021 Council Decision and the Jeray access application respectively).
2. The substantive issue in the appeal is whether the Principal Member made a jurisdictional error by failing to disqualify herself on the ground of the reasonable apprehension of bias.
3. We are not satisfied that Mr Jeray has established the reasonable apprehension of bias of the Principal Member. Consequently, we have decided to dismiss the appeal and Mr Jeray's application that the Tribunal pays his costs of the proceedings at first instance and of the appeal (the Jeray costs application), and make procedural orders for the determination of the Council's application that Mr Jeray pay its costs of the appeal (the Council costs application).

The statutory provisions forming the background to the appeal

1. Part 4 Division 1 (ss 41-43) contains provisions dealing with the making of an access application. Section 41 deals with how an access application is made, and relevantly provides:

41 How to make an access application

(1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the formal requirements) for access applications -

...

(e) it must include such information as is reasonably necessary to enable the government information applied for to be identified.

1. Part 4 Division 3 (ss 51-56) contains provisions dealing with the process for dealing with access applications. Section 52 deals with the obligation of an agency to provide assistance with invalid applications, and relevantly provides:

52 Agency assistance with invalid applications

(1) The notification of an agency's decision that an application is not a valid access application must -

(a) include a statement of the reason why the application is not a valid access application (including reference to the relevant provisions of this Act), and

(b) if a reason is non-payment of the required application fee, invite the applicant to pay the fee, and

(c) if a reason is failure to provide required information, invite the applicant to provide the information, and

(d) notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application.

...

(3) An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application.

...

1. Part 4 Division 4 (ss 57-63) contains provisions dealing with deciding access applications. Section 60 deals with a decision to refuse to deal with an access application, and relevantly provides:

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) -

(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,

...

1. Part 5 Division 4 (ss 100-112A) contains provisions dealing with the review of decisions by the Tribunal. Section 104 deals with the right of appearance before the Tribunal, and relevantly provides:

104 Right of appearance before NCAT

(1) 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.

...

1. Part 5 (ss 40-48) of the Government Information (Information Commissioner) Act 2009 (NSW) (GIIC Act) contains miscellaneous provisions. Section 42 deals with the immunity of the Information Commissioner and others, and relevantly provides:

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.

...

1. On 29 July 2020, the relevant officer on behalf of the Council gave notice to Mr Jeray that the Jeray access application was invalid under s 41(1)(e) of the GIPA Act (the 29 July 2020 Council Decision).
2. On 11 September 2020, the Regulatory Officer on behalf of the Information Commissioner in her external review report dated 11 September 2020 decided that she was satisfied that the 29 July 2020 Council Decision was justified and decided to make no recommendation to the Council (the 11 September 2020 IC report).
3. On 17 March 2021, the Tribunal constituted by Senior Member RL Hamilton SC affirmed the decision of the Council to treat the Jeray access application as invalid and remitted the application to the Council to consider and decide whether to provide Mr Jeray with the list of information prepared by it in response to the application: Jeray v Blue Mountains City Council [2021] NSWCATAD 67 (the 17 March 2021 AEOD Decision);
4. On 8 October 2021, the Appeal Panel constituted by Deputy President Hennessy ADCJ and Senior Member Dr R Dubler SC set aside the 17 March 2021 AEOD Decision and the 29 July 2020 Council Decision, and remitted the Jeray access application to the Council to determine in accordance with its reasons: Jeray v Blue Mountains City Council [2021] NSWCATAP 310. The Appeal Panel at [19] held that the Tribunal in the 17 March 2021 AEOD Decision erred in the way it construed the identification requirement by focusing on the reasonableness of the application and the ability of Council to perform its functions, rather than s 41(1)(e) of the GIPA Act.
5. On 19 November 2021, the relevant officer on behalf of the Council made the 19 November 2021 Council Decision by giving notice to Mr Jeray that it had decided to refuse to deal with the Jeray access application under s 60(1)(a) of the GIPA Act because it would require an unreasonable and substantial diversion of its resources.

The history of the proceedings between the parties since the commencement of the 2022 AEOD proceedings

1. On 31 January 2022, Mr Jeray commenced proceedings 2022/00027706 in the Administrative and Equal Opportunity Division against the Council (the 2022 AEOD proceedings) by lodging an administrative review application form in which he sought a review of the 19 November 2021 Council Decision (the Jeray application).
2. On 28 February 2022, the Tribunal constituted by Senior Member S Montgomery made the following procedural orders (the 28 February 2022 AEOD orders):

"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 02 May 2022 at 10.30 am for 1 hour."

1. On 2 May 2022, the Tribunal constituted by Senior Member S Higgins made the following procedural orders (the 2 May 2022 AEOD orders):

"1 On or before 16 May 2022, Blue Mountains City Council is to give to the Tribunal, Ivan Jeray and the Information Commissioner written submissions.

2 Ivan Jeray is to give to the Tribunal, the Blue Mountains City Council and the Information Commissioner the following material: evidence including statements, documents and submissions on or before 20 June 2022. In his submissions, Ivan Jeray is to indicate whether, in his opinion, the matter is suitable for determination on the papers.

3 Blue Mountains City Council is to give to the Tribunal, Ivan Jeray and the Information Commissioner the following material: all evidence in reply, submissions and a summary of legal arguments on or before 04 July 2022. In his submissions, the Blue Mountains City Council is to indicate whether, in its opinion, the matter is suitable for determination on the papers.

4 The Information Commissioner is to give to the Tribunal, Ivan Jeray and the Blue Mountains City Council the following material: submissions on or before 18 July 2022.

5 The proceeding is listed for directions on 19 July 2022 at 9.30 am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney.

6 Notes:

The Tribunal noted:

(a) the applicant's request for an adjournment of today's case conference. That request was sent in by email late on Sunday afternoon, a copy of which was also sent to the respondent;

(b) the reason for the adjournment was that the applicant did not have access to a telephone. Hence he requested that he be able to attend a case conference in person. A similar request had been made in February 2022, at the first case conference in this matter;

(c) given the late notice for adjournment, the applicant and the respondent were advised by the Registry this morning that the matter would proceed this morning;

(d) in making the orders today, regard has been had to the applicant's adjournment request in that it was noted that he had not received any written submissions from the respondent;

(c) the respondent also noted that a further statement of Sean Doyle had been forwarded by mail to the applicant on 29 April 2022; and

(d) as the onus is on the respondent to satisfy the Tribunal that its decision is justified, a timetable was set for the matter to be progressed to be determined on the papers (subject to any views expressed by the parties), or at a hearing."

1. On 19 July 2022, the Tribunal constituted by Senior Member J Gatland made procedural orders (the 19 July 2022 AEOD orders) including:

"1 The Information Commissioner appears and has a right to be heard in these proceedings but is not a party.

2 Ivan Jeray is to give to the Tribunal, the Blue Mountains City Council and the Information Commissioner the following material: evidence including statements, documents and submissions on or before 16 August 2022.

3 Blue Mountains City Council is to give to the Tribunal, Ivan Jeray and the Information Commissioner the following material: any evidence in reply, submissions and a summary of legal arguments on or before 30 August 2022.

4 The Information Commissioner is to give to the Tribunal, Ivan Jeray and Blue Mountains City Council the following material: submissions on or before 30 August 2022.

..."

1. On 27 October 2022, the Tribunal constituted by Senior Member M Riordan affirmed the 19 November 2021 Council Decision: Jeray v Blue Mountains City Council [2022] NSWCATAD 343 (the 27 October 2022 AEOD Decision).
2. On 25 November 2022, the Tribunal constituted by Senior Member J Gatland set aside the 27 October 2022 AEOD Decision.
3. On 4 May 2023, the Appeal Panel constituted by Deputy President Hennessy ADCJ and Senior Member Dr R Dubler SC refused Mr Jeray's application for a summons to be issued to the Information Commissioner: Jeray v Blue Mountains City Council [2023] NSWCATAP 120.
4. On 14 December 2023, the Appeal Panel constituted by Deputy President Hennessy ADCJ and Senior Member Dr R Dubler SC relevantly refused leave to appeal against the 28 February 2022 AEOD orders and the 2 May 2022 AEOD orders: Jeray v Blue Mountains City Council [2023] NSWCATAP 325 (the 14 December 2023 AP Decision). The Appeal Panel at [35]-[46] gave the following reasons for this refusal to grant leave to appeal:

"Mr Jeray's submissions for requesting leave to appeal

[35] 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 Act 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.

[36] 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.

[37] 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.

[38] 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.

[39] 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] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (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.

[40] 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.

Consideration of application for leave to appeal

[41] 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.

[42] 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.

[43] 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.

[44] While the Information Commissioner has a right to appear, she is not obliged to do so: Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 157 at [47] - [51].

[45] 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.

[46] 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."

1. On 22 April 2024, the Appeal Panel constituted by Deputy President Hennessy ADCJ and Senior Member Dr R Dubler SC relevantly refused leave to appeal against the 28 February 2022 AEOD orders and the 2 May 2022 AEOD orders on the ground that the Tribunal denied Mr Jeray procedural fairness when making those orders: Jeray v Blue Mountains City Council [2024] NSWCATAP 66.
2. On 3 June 2024, the Tribunal constituted by Senior Member S Higgins made procedural orders (the 3 June 2024 AEOD orders) including:

"1 Ivan Jeray is to give to the Tribunal, Blue Mountains Council and the Information Commissioner the following material: evidence including statements, documents and submissions on or before 15 July 2024.

2 Blue Mountains City Council is to give to the Tribunal, Ivan Jeray and the Information Commissioner the following material: all evidence in reply, submissions and a summary of legal arguments on or before 29 July 2024.

3 The Information Commissioner is to give to the Tribunal, Ivan Jeray and Blue Mountains City Council the following material: submissions on or before 05 August 2024.

...

5 Notes:

The Tribunal notes that the decision the subject of review in this application is the decision made by the respondent on 19 November 2021 (refusal to deal).

...

On 22 July 2022, the Information Commissioner also provided written submissions. The applicant requested that it be noted that he objects to the submissions of the Information Commissioner. The applicant was advised that his objections, if pressed, would be dealt with at the hearing of his application. ..."

1. The 13 November 2024 AEOD Decision comprised the following orders (the 13 November 2024 Orders) and reasons for the decision (the 13 November 2024 Reasons):

"(1) The decision under review is affirmed.

(2) An oral hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013."

1. The Principal Member in the 13 November 2024 Reasons relevantly:

(1) summarised the material before the Tribunal ([15]-[17]) including the written submissions of the Information Commissioner lodged on 22 July 2022;

(2) rejected Mr Jeray's submissions that the 2022 AEOD proceedings could not proceed on the ground of the reasonable apprehension of bias by the Tribunal (29]-[34]):

"Procedural matters

[29] Mr Jeray contends that following a previous decision of the Tribunal in these proceedings, Jeray v Blue Mountains City Council [2022] NSWCATAD 343 he cannot be given a fair hearing in this review.

[30] The test for determining apprehended bias is whether "a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [8]; [2000] HCA 63; 205 CLR 337 at p 345.

[31] I am not satisfied there is any basis on which an independent observer might reasonably apprehend the Tribunal would be biased in this review following the making and setting aside of a decision by another member and I therefore reject Mr Jeray's submissions as to bias of the Tribunal.

[32] Mr Jeray also objected to the participation of the Information Commissioner, who provided submissions, and made allegations as to alleged bias of the Commissioner without any factual basis.

[33] The Information Commissioner has a right to appear and be heard in this review under s 104(1) of the GIPA Act and cl 9(4)(a) of Schedule 3 to the CAT Act. Therefore the written submissions of the Information Commissioner is relevant material before the Tribunal in this review.

[34] Mr Jeray also alleges bias on the part of the Tribunal because the Tribunal permits the Information Commissioner to participate in the proceedings. I am not satisfied there is any basis on which an independent observer might reasonably apprehend the Tribunal would be biased in this review because the Information Commissioner is exercising the Commissioner's statutory right to appear and be heard. I therefore reject Mr Jeray's further submissions as to bias of the Tribunal."

1. On 18 December 2024, Mr Jeray as the appellant commenced proceedings 2024/00470840 against the Council as the respondent by lodging a notice of appeal in which he appealed against order 1 of the 13 November 2024 Orders.
2. On 24 January 2025, the Appeal Panel constituted by Deputy President G Sarginson made procedural orders for the hearing of the appeal including granting leave to Mr Jeray to rely on the Amended Ground of Appeal and Orders Sought lodged on 22 January 2025:

"Amended Ground of Appeal

The Tribunal could not hear and determine case no. 2022/27706 because the Tribunal allowed the Information Commissioner to continue to appear and be heard in the proceedings as an amicus curiae under section 104 (1) of the Government Information (Public Access) Act 2013 and her submissions to be influenced by the submissions and evidence of the parties when she has a demonstrated bias in the matter, which give rise to a reasonable apprehension of bias of the Tribunal.

Amended Orders Sought

1. That the appeal be allowed.

2. A declaration that the Tribunal did not and does not have the jurisdiction to hear and determine case no. 2022/27706 because it has compromised its independence in the matter.

3. That order 1 made by the Tribunal in case no. 2022/27706 on 13 November 2024 be set aside.

4. That the Tribunal pay the appellant's costs in case no. 2022/27706 and for the appeal."

1. On 1 August 2025 at 10:16 AM, Mr Jeray sent an email to the Registrar which was in the following terms:

"Please urgently inform the Appeal Panel that I will not be attending the hearing this morning and rely on my filed written submissions and evidence for the appeal. Thank you."

1. We had the following documents before us on behalf of Mr Jeray:

(1) Notice of Appeal lodged on 18 December 2024;

(2) Amended Grounds of Appeal and Amended Orders Sought lodged on 22 January 2025;

(3) Appellant's Submissions lodged on 10 April 2025 (the Jeray Appeal Submissions);

(4) Appellant's Evidence lodged on 10 April 2025 which comprised 13 documents (the Jeray Appeal Evidence).

(1) Reply to Appeal lodged on 20 January 2025;

(2) Amended Reply to Appeal lodged on 20 February 2025;

(3) Respondent's Submissions on Appeal lodged on 5 May 2025 (the Council Appeal Submissions).

1. At our request the Council's counsel provided us with a copy of Mr Jeray's evidence before the Principal Member which comprised documents 1 to 8 of the Jeray Appeal Evidence.

1. Section 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) allows a party to proceedings in which the Tribunal makes an internally appealable decision, to appeal the decision to an Appeal Panel. An administrative review decision is an internally appealable decision: NCAT Act, s 32(1)(a) and (4). The decision of the Tribunal was an administrative review decision under s 30(5) of the NCAT Act and is therefore appealable to an Appeal Panel.
2. Internal appeals against an internally appealable decision may be made in the case of any kind of decision (including an ancillary decision) other than an interlocutory decision as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: NCAT Act, s 80(2)(b).
3. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed or dismissed: NCAT Act, s 81(1)(a).

1. The following issues arise for determination in this appeal:

(1) whether the appeal is on a question of law;

(2) the Principal Member made a jurisdictional error on the ground of apprehended bias;

(3) the Jeray costs application;

(4) the Council costs application.

1. Whether the Tribunal made a jurisdictional error will often raise a question of law: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [32(8)].
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) the High Court addressed jurisdictional error and materiality in the context of an appeal against an administrative decision. The plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) at [2]-[16] expounded the principles. Relevantly to this appeal they said (citations omitted):

"Jurisdictional error and materiality

[2] Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute.

[3] ... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

[4] ... Only by construing the statute so as to understand the limits of the statutory conferral of decision-making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision-making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).

...

[6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. ..."

1. We are satisfied that Mr Jeray is in substance contending that the Principal Member made a jurisdictional error on the ground of apprehended bias and accordingly the appeal is on a question of law within s 80(2)(b) of the NCAT Act. It follows that Mr Jeray's appeal is as of right.
2. If Mr Jeray establishes that the Principal Member made a jurisdictional error on the ground of apprehended bias, then it follows, having regard to the principles in LPDT at [2]-[4], [6] that the appeal will be allowed, and the 13 November 2024 AEOD Decision will be set aside.

Whether the Principal Member made a jurisdictional error on the ground of apprehended bias

1. The amended ground of appeal raises the question of whether the Principal Member made a jurisdictional error on the ground of apprehended bias. Before considering the amended ground of appeal, we have set out the applicable legal principles with respect to apprehended bias, and then summarised the evidence of Mr Jeray and the submissions of the parties.

1. The High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) definitively stated the principles with respect to apprehended bias.
2. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 (QYFM) the High Court repeated these principles. Kiefel CJ and Gageler J at [37]-[38] made the following observations (citations omitted):

"[37] The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability".

[38] Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer."

1. Gordon J at [67]-[73] made the following observations (citations omitted):

"Test for apprehended bias

[67] As this Court held in Ebner v Offıcial Trustee in Bankruptcy, a judge is disqualified, subject to qualifications relating to waiver or necessity, "if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The Ebner test has two steps: first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

[68] Four aspects of the test are critical to observe. First, it is an objective test: it does not require a conclusion about the judge's actual state of mind or an assertion of actual bias. The principle gives effect to the requirement that justice should both be done and be seen to be done.

[69] Second, it is a test of possibility, not probability - whether the fair-minded lay observer might reasonably think that the judge might be biased. It has even been said that the fair-minded lay observer is generally taken to be mistaken because decision-makers will rarely be biased in the ways attributed to them, as the observer might have appreciated if fully apprised of the operation of a particular decision-maker. That said, a finding of apprehended bias is "not to be reached lightly". In determining whether an apprehension of bias arises, relevant considerations include "the legal, statutory and factual contexts in which the decision is made" and "the nature of the decision ..., what is involved in making the decision and the identity of the decision-maker".

[70] Third, the test is not prescriptive about the ways in which a reasonable apprehension might arise. "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty". Indeed, the apprehension may not even be of a consciously impartial mind. The test encompasses apprehension of unconscious bias: "the hypothetical observer would recognise that judges are human, not a 'passionless thinking machine' or robot just assessing information".

[71] Fourth, the adjective "lay" in relation to the fair-minded observer is critical - "[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer" with the knowledge and professional self-appreciation of a lawyer (105), let alone that of an experienced judge. The fair-minded lay observer is a member of the public because the principle is concerned with maintenance of public confidence in the justice system. "[I]t is the court's view of the public's view, not the court's own view, which is determinative".

Knowledge of the fair-minded lay observer

[72] The fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it was made (108), and the circumstances leading to the decision. The fair-minded lay observer is taken to have "a broad knowledge of the material objective facts", as distinct from a detailed knowledge of the law or of the character and ability of the decision-maker. In considering whether an allegation of apprehended bias on the part of a judge is made out, "the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case".

[73] As the test is objective, the state of mind of the judge in question is irrelevant. So too are the reasons for judgment given by the judge ex tempore or published by the judge after the trial. The test turns on the facts and circumstances that might give rise to the apprehension of bias at the time of the hearing and determination. ..."

1. Edelman at [162], Gleeson J at [225]-[226], and Jagot J at [293] referred to the test in Ebner.
2. More recently the plurality of the High Court (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) in Director of Public Prosecutions (Vic) v Smith [2024] HCA 32; (2024) 98 ALJR 1163 at [92] referred to the threefold test in Ebner, citing QYFM at [38].

1. The Jeray Appeal Evidence comprised the following 13 documents (omitting the second column headed "Page Nos."):

Appellant's GIPA application submitted on 23 July 2020

Respondent's notice of appellant's invalid GIPA application dated 29 July 2020

Information Commissioner's external review report dated 11 Sep 2020

Appellant's complaint about Information Commissioner's external review dated 13 Sep 2020

Information Commissioner's response to appellant's complaint dated 29 Sep 2020

Respondent's notice to possibly refuse to deal with the appellant's GIPA application dated 26 Oct 2021

Respondent's notice to refuse to deal with the appellant's GIPA application dated 19 Nov 2021

Page 41 of Information and Privacy Commission's Annual Report 2022-23 (see "NCAT activities")

Appellant's submissions filed in lower NCAT on 18 July 2024

1. The Council in the 29 July 2020 Council Decision (which is document 2 of the Jeray Appeal Evidence) contended that the Jeray access application was invalid under s 41(1)(e) of the GIPA Act because Mr Jeray had not provided enough information for the Council to identify the records he was seeking.
2. The Information Commissioner in the 11 September 2020 IC report (which is document 3 of the Jeray Appeal Evidence) was satisfied that the 29 July 2020 Council Decision was justified and decided to make no recommendation to the Council for the following reasons:

(1) she was satisfied that the Council in the 29 July 2020 Council Decision had complied with s 52(1) of the GIPA Act;

(2) she was satisfied that the Council had provided assistance to Mr Jeray by suggesting general topics relating to the scope of the Jeray access application, as well as suggesting a time frame or date range that the application relates to;

(3) she was satisfied that the Council had complied with s 52(3) of the GIPA Act in providing reasonable assistance to Mr Jeray.

1. Mr Jeray in his email sent on 13 September 2020 to the Information Commissioner (which is document 4 of the Jeray Appeal Evidence) asserted that the Regulatory Officer had failed to conduct a proper and valid external review.
2. The Acting Director Investigation and Reporting on behalf of the Information Commissioner in her letter dated 29 September 2020 to Mr Jeray (which is document 5 of the Jeray Appeal Evidence) contended that the conduct of the Regulatory Officer in undertaking the external review was in keeping with the IPC Service Charter and her functions (the 29 September 2020 IC letter). In this letter the Acting Director, while acknowledging that the Regulatory Officer did not provide her reasons in detail, asserted that it was clear that she was satisfied by the reasons provided by the Council for why the Jeray access application was invalid under s 41(1)(e) of the GIPA Act.
3. The Council in its letter dated 26 October 2021 to Mr Jeray (which is document 6 of the Jeray Appeal Evidence) advised that it might decide to refuse to deal with the Jeray access application because it would require an unreasonable and substantial diversion of its resources, and invited him to amend its scope by 10 November 2021.
4. The Council in the 19 November 2021 Council Decision (which is document 7 of the Jeray Appeal Evidence) advised that it had decided to refuse to deal with the Jeray access application because it would require an unreasonable and substantial diversion of its resources, estimated to be a minimum of 640.97 hours and cost of $19,229.00.
5. Page 41 of the IPC Annual report for 2022-2023 (which is document 8 of the Jeray Appeal Evidence) under the heading "NCAT activities" referred to the role of the Information Commissioner in administrative reviews applications to the Tribunal where a person was not satisfied with a decision in respect of the formal access application under the GIPA Act.
6. The 28 February 2022 AEOD orders, the 2 May 2022 AEOD orders, the 19 July 2022 AEOD orders and the 3 June 2024 AEOD orders (which are documents 9 to 12 of the Jeray Appeal Evidence) have already been set out.
7. Mr Jeray in his submissions lodged on 18 July 2024 (which is document 8 of the Jeray Appeal Evidence) submitted that the 2022 AEOD proceedings should not proceed for the following four reasons:

(1) first, there was reasonable apprehension of bias of the Tribunal because of the 27 October 2022 AEOD Decision;

(2) second, the Information Commissioner demonstrated bias by the 11 September 2020 IC report. Consequently, she has compromised her independence in the matter and has, in effect, become an opposing party. She is therefore deceiving and/or misleading the Tribunal that she can now independently "assist" the Tribunal as amicus curiae. Consequently, she, as did the previous Information Commissioner, has and continues to act in bad faith before the Tribunal, the parties and the public, and has breached s 42(1) of the GIIC Act. The Tribunal should have removed the Information Commissioner from the 2022 AEOD proceedings on her initial appearance;

(3) third, the Information Commissioner's role as arnicus curiae has also been compromised because the Tribunal continues to order the parties to provide a copy of their submissions and evidence to the Information Commissioner, which wrongly allows an opportunity for the Information Commissioner's submissions and evidence to be inappropriately influenced by the parties' submissions and evidence. Amicus curiae should be restricted to independently assisting the Tribunal and thus not be affected by the private issues between the parties otherwise the role of amicus curiae transforms into that of a party in the proceedings;

(4) fourth, the second and third reasons also give rise to a reasonable apprehension of bias of the Tribunal because the Tribunal continues to wrongly allow itself to be influenced by the submissions and evidence of a biased amicus curiae (namely, the Information Commissioner) in the 2022 AEOD proceedings, who has also wrongly been given by the Tribunal an opportunity for her submissions and evidence to be inappropriately influenced by the parties' submissions and evidence.

1. Mr Jeray in the Jeray Appeal Submissions made the following submissions:

(1) the following three questions of law must be answered:

(a) did the Information Commissioner have a pre-existing bias when she appeared in the 2022 AEOD proceedings?

(b) if the answer to question 1 is yes, does section 104 (1) of the GIPA Act give the biased Information Commissioner the right to continue to appear and be heard in the 2022 AEOD proceedings?

(c) if the answer to question 2 is no, do the Tribunal's decisions to allow the biased Information Commissioner to continue to appear and be heard and her submissions to be influenced by the parties' submissions and evidence in the 2022 AEOD proceedings give rise to a reasonable apprehension of bias of the Tribunal?

(2) as to the first question, the answer is "yes" for the following reasons:

(a) it is necessary to take into account the following six facts:

"1. On 29 July 2020, the Respondent decided the Appellant's GIPA application of 23 July 2020 (Appellant's evidence - document no. 1) to be invalid under section 41(1)(e) of the GIPA Act because it is effectively too broad in scope and therefore unreasonable: Appellant's evidence - document no. 2.

2. On 11 September 2020, the Information Commissioner's external review of the Respondent's decision of 29 July 2020 concluded "that the Agency's decision that the access application is not valid is justified:" Appellant's evidence - document no. 3.

3. On 29 September 2020, in response to the Appellant's complaint of 13 September 2020 (Appellant's evidence - document no. 4), the Information Commissioner affirmed its decision of 11 September 2020 that it was satisfied that the reasons provided by the Agency for why the Appellant's GlPA application was invalid under section 41(1) (e) of the GIPA Act: Appellant's evidence - document no. 5.

4. On 18 October 2021, the Appeal Panel sets aside the lower Tribunal's decision of 17 March 2021 affirming the Respondent's decision of 29 July 2020 and considered the appellant's GIPA application to be valid. It also considered the Respondent was effectively arguing the Appellant's GIPA application was unreasonable due to its broad scope rather than being invalid: Jeray v Blue Mountains City Council [2021] NSWCATAP 310 at [15]- [20}.

5. After its initial notice of 26 October 2021 to possibly refuse to deal with the Appellant's GIPA application (Appellant's evidence - document no. 6), on 19 November 2021, the Respondent decided to refuse to deal with the Appellant's GIPA application under section 60 (1) (a) of the GIPA Act because it is effectively too broad in scope and therefore unreasonable: Appellant's evidence - document no. 7.

6. As stated in the Information and Privacy Commission's 2022-23 Annual Report, the Information Commissioner appears before the Tribunal in the role of amicus curiae to assist the Tribunal with the interpretation of the relevant legislation and issues of law: Appellant's evidence - document no. 8."

(b) combining these facts results in the following conclusions:

"1. Having agreed for the same reasons with the Respondent's decision of 29 July 2020, the Information Commissioner's external review of 11 September 2020 and response of 29 September 2020 have effectively agreed with the Respondent's decision of 19 November 2021 that the Appellant's GIPA application is too broad in scope and therefore unreasonable.

2. The agreement between the Information Commissioner and the Respondent that the Appellant's GIPA application is too broad in scope and therefore unreasonable means the Information Commissioner has taken a position and therefore has compromised her independence in the matter.

3. As the Information Commissioner had compromised her independence, she was unable to appear before and be heard in the lower Tribunal in case no. 2022/27706.

4. By appearing in case no. 2022/27706, the Information Commissioner effectively became a party in the proceedings due to her position or bias in support of the Respondent's decision that considered the Appellant's GIPA application is unreasonable and was therefore unable to impartially carry out her role as amicus curiae.

5. By appearing, being heard, accessing the parties submissions and evidence and making written submissions in case no. 2022/27706 when she had a pre-existing bias in the proceedings, the Information Commissioner has acted in bad faith and undermined the integrity of her office."

(3) as to the second question, the answer is "no" for the following reasons:

"Section 104(1) (of the GIPA Act) grants the Information Commissioner the right to appear and be heard in any proceedings, including on appeal, before the Tribunal in relation to a review under Division 4 of Part 5 of the GlPA Act. However, that right is not plenary. Section 104 (1) neither says whether the right to appear and be heard in any administrative review proceedings before the Tribunal is indefinite nor that the Tribunal cannot limit that right. Section 104 (1) only gives the Information Commissioner the right to initially appear and be heard in proceedings before the Tribunal. Her ongoing appearance and submissions in proceedings are still discretionary upon the Tribunal's leave, which subsequently permits the parties to object to her doing so in accordance with the rules of procedural fairness. The Tribunal's discretion also allows the parties to object again to her ongoing appearance and submissions later in the proceedings by filing a miscellaneous application should other circumstances arise.

If section 104 (1) does not allow the Tribunal the discretion to decide whether the Information Commissioner should be permitted to continue to appear and be heard in proceedings in circumstances where she should not be permitted to do so (for example, when she is acting in bad faith as an amicus curiae because she has a bias in the proceedings) then section 104 (1) would undermine the integrity and impartiality of the Tribunal and would consequently be invalid: Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 and South Australia v Totani [2010] HCA 39. ..."

(4) as to the third question, the answer is "yes" for the following reasons:

(a) it is necessary to take into account the following three facts:

"1. The lower Tribunal's orders allowed the Information Commissioner to continue to appear, be heard and not be a party and required the parties to provide a copy of their written submissions and evidence to her before she provided her written submissions to the lower Tribunal: Appellant's evidence - document nos. 9-12.

2. The lower Tribunal's decision of 13 November 2024 considered the written submissions of the Information Commissioner and considered them to be relevant material: Jeray v Blue Mountains City Council [2024] NSWCATAD 342 at [17] and [32]-[33].

3. The Appellant's written submissions dated 18 July 2024 informed the lower Tribunal that he objected to the lower Tribunal allowing the Information Commissioner's continued appearance, submissions and access to the parties' written submissions and evidence due to her bias in the proceedings (as evidenced by the Appellant's appeal proceedings in case no. 2022/157358) and that the proceedings should not continue as it gave rise to a reasonable apprehension of bias of the lower Tribunal: Appellant's evidence - document no. 13."

(b) by allowing the Information Commissioner to continue to appear and be heard and requiring the parties to provide a copy of their written submissions and evidence to her, the Tribunal not only provided her with an opportunity for her written submissions to be influenced by the parties' written submissions and evidence but also with an opportunity for her written submissions to influence the Tribunal's decision in the 2022 AEOD proceedings;

(c) the principle of apprehension of bias is expressed in Ebner at [6];

(d) given the Tribunal has allowed the Information Commissioner to continue to appear and be heard and her written submissions to be influenced by the parties' submissions and evidence (and thus given an opportunity to influence the Tribunal's decision in the proceedings) when she has a bias in favour of the Council's decision to refuse to deal with the Jeray access application, a fair-minded lay observer would not only reasonably apprehend that the Information Commissioner might not bring an impartial mind as an amicus curiae (who effectively became a party on her appearance) in the 2022 AEOD proceedings but consequently that the Tribunal might also not bring an impartial mind in deciding the Jeray application in the proceedings. The Tribunal's decisions to allow the biased Information Commissioner to act in bad faith in support of the Council in the proceedings, infected the integrity, credibility and impartiality of the Tribunal, which compromised its standing to hear and determine the proceedings;

(5) as the Tribunal was unable to hear and determine the 2022 AEOD proceedings but carried on despite his ongoing objections to the appearance and submissions of the Information Commissioner and opposition to the proceedings continuing, the Tribunal should pay his costs of those proceedings and of the appeal.

1. The Council Appeal Submissions made the following submissions:

(1) it makes the following three initial points:

(a) first, if as is sought in the appeal, the Tribunal has no jurisdiction to hear the 2022 AEOD proceedings, what is to happen to the Jeray access application? As it stands the Council's decision is to refuse the documents under s 60 of the GIPA Act. If the Tribunal has no role to play, that status quo becomes permanent;

(b) second, it is not explained how the Tribunal at first instance can have no jurisdiction but the Appeal Panel, on appeal from that decision, has the relevant jurisdiction. Of the orders sought, (1) and (3) seek to exercise jurisdiction over the Tribunal below but (2) seeks to confirm there was never jurisdiction in the Tribunal below;

(c) third, many of the issues now raised were addressed by decisions of an earlier constituted Appeal Panel;

(2) if Mr Jeray in the amended ground of appeal contends that there was an error in allowing the 2022 AEOD proceedings to continue, this contention is wrong for the following two reasons:

(a) first, Mr Jeray was an active participant in the proceedings and never made the submission that they proceedings should not be determined. Although he contended against the Information Commissioner's appearing, he did not contend that the consequence of appearing resulted in the Tribunal losing the jurisdiction to determine the proceedings. It is not open to him to invoke that issue, not pressed below, on this appeal;

(b) second, in any event, the Tribunal has to determine, and is statutorily obliged to determine, matters that fall within its jurisdiction and come before it: Pt 3 of the NCAT Act. Nothing about the grounds raised in this appeal changes that position;

(3) the ground in the first of Mr Jeray's questions should be dismissed for the following reasons:

(a) there is no evidence to support any suggestion of bias by the Information Commissioner. The six facts relied on by Mr Jeray merely exhibit the information Commissioner discharging her office. They also do not support the conclusions submitted by Mr Jeray for the following reasons:

(i) the mere fact that he does not like the outcome of the position taken by the information Commissioner does not support a lack of independence;

(ii) he presumes lack of independence of the information Commissioner is established, but then states without authority that it somehow prevents her complying with s 104 of the GIPA Act;

(iii) contrary to his submission that by appearing the Information Commissioner effectively became a party, s 104 of the GIPA Act is clear, and conclusive, that she does not become a party and is effectively amicus curiae;

(iv) he submits, without any proper basis cited, that the Information Commissioner has acted in bad faith by discharging her obligations under s 104 of the GIPA Act;

(b) the Information Commissioner prepared thorough and considered reports in the usual way. Further, no other evidence is identified as supporting a finding of bias or prejudice by the Information Commissioner;

(c) no evidence is pointed to by Mr Jeray, nor submission made that develops, how the test in Ebner at [8] is satisfied in relation to the Information Commissioner in her discharge of the function under s 104 of the GIPA Act in the 2022 AEOD proceedings;

(4) the ground in the second of Mr Jeray's questions should be dismissed for the following reasons:

(a) Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 (Kable) and South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 (Totani) relate to legislative powers of the States and the fetter on them by the Commonwealth Constitution;

(b) he has not said how those authorities advance the submission that s 104 of the GIPA Act does not grant a biased Information Commissioner the right to appear as an amicus curiae;

(c) the right of Information Commissioner to appear is not in the hands of the Tribunal, but s 104 of the GIPA Act expressly allows for it. His submission that the right is only an initial right is a misreading of the section's plain language. Even if there was bad faith or bias, the clear language of the provision must be given effect to, and the Information Commissioner is entitled to appear as she did in the 2022 AEOD proceedings;

(5) the ground in the third of Mr Jeray's questions should be dismissed for the following reasons:

(a) nothing in the dispositive part the 13 November 2024 Reasons at [35]-[48] relates to the fact of the Information Commissioner appearing or making submissions;

(b) he has not demonstrated - by admissible evidence or submissions on the point - how that reasoning is affected, let alone impugned, by the fact of the Information Commissioner appearing or making submissions;

(6) it is not aware of any power to, and there is no reason for, the Tribunal to pay Mr Jeray's costs of any proceedings;

(7) Mr Jeray should be ordered to pay the Council's costs of the appeal. It is unnecessary to summarise the submissions in support of the Council costs application.

1. The grounds in the first and second of Mr Jeray's questions in the Jeray Appeal Submissions are in the substance the same as Mr Jeray's alternative submission in the 14 December 2023 AP Decision at [40]. The Appeal Panel at [41]-[46] did not consider this alternative submission in refusing leave to appeal against the 28 February 2022 AEOD orders and the 2 May 2022 AEOD orders.
2. The Council the 29 July 2020 Council Decision decided that the Jeray access application was invalid under s 41(1)(e) of the GIPA Act because:

"You have not provided enough information for Council to identify the records you are seeking. You have not specified a time frame/date range and you have not provided any information about the type of records/documents you are seeking access to in relation to this event."

1. We accept that the Information Commissioner in the 11 September 2020 IC report assumed the correctness of the construction of s 41(1)(e) of the GIPA Act asserted by the Council the 29 July 2020 Council Decision.
2. We do not accept Mr Jeray's submission that, because the Information Commissioner in the 11 September 2020 IC report assumed the correctness of the construction of s 41(1)(e) of the GIPA Act asserted by the Council the 29 July 2020 Council Decision, and in the 29 September 2020 IC letter accepted the accuracy of the Council's construction of s 41(1)(e), she effectively agreed with the 19 November 2021 Council Decision. The two Council Decisions involved the application of different provisions of the GIPA Act: s 41(1)(e) in the case of the 29 July 2020 Council Decision, and s 60(1)(a) in the case of the 19 November 2021 Council Decision. Mr Jeray has adduced no evidence of any such agreement. His submission is based on speculation and is rejected.
3. As Mr Jeray has not established the necessary foundation of an agreement between the Council and the Information Commissioner, we reject his submission that she compromised her independence. Further, we reject his submission that she was unable to appear in the 2022 AEOD proceedings. She had statutory right to appear pursuant to s 104(1) of the GIPA Act. Even if, contrary to our finding, Mr Jeray had established that the Information Commissioner compromised her independence, her statutory right to appear in the 2022 AEOD proceedings pursuant to s 104(1) of the GIPA Act would have been unaffected.
4. Moreover, we reject the submission of Mr Jeray that the Information Commissioner has acted in bad faith (apparently within s 42(1) of the GIIC Act) and undermined the integrity of her office by appearing, being heard, accessing the parties submissions and evidence and making written submissions in the 2022 AEOD proceedings. She fulfilled the role permitted under s 104(1) of the GIPA Act.
5. As we have given a negative answer to the first of Mr Jeray's questions, this is sufficient to dispose of the appeal. It follows that the appeal should be dismissed pursuant to s 81(1)(a) of the NCAT Act.

1. If it had been necessary to consider the second of Mr Jeray's questions, we would have given an affirmative answer to the question.
2. The plurality (Kiefel CJ, Nettle and Gordon JJ) of the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (SZTAL) at [14] stated the principles of statutory construction (with citations omitted):

"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."

1. The passage in SZTAL at [14] has been cited with approval in many subsequent authorities in various courts as well as in the Appeal Panel: see for example Houda v Seraphim [2025] NSWCATAP 135 at [55].
2. In Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 at [21], the Appeal Panel summarised the principles of statutory construction, including passage in SZTAL at [14].
3. We do not accept that there is anything in the text, context and purpose of s 104(1) of the GIPA Act that indicates that the right of appearance of the Information Commissioner is limited to the right to appear initially and is thereafter discretionary upon the Tribunal's leave. Mr Jeray cited no authority for his submission which we reject.
4. We do not accept that Kable and Totani have any relevance to this appeal. These authorities relevantly establish that it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description: Kirk v Industrial Court (NSW) (2020) 239 CLR 531; [2010] HCA 1 at [96] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Commissioner of Police v Sleiman and AVS Group of Companies Pty Ltd (2011) 78 NSWLR 340; [2011] NSWCA 21 at [214]- [215] (Sackville AJA with Allsop P at [1] and Handley AJA at [2] agreeing).

1. If it had been necessary to consider the third of Mr Jeray's questions, we would have given a negative answer to the question.
2. Having regard to the threefold test in Ebner set out in QYFM at [38], we would not have been satisfied that there was a reasonable apprehension of bias of the Principal Member. Mr Jeray would not established that any of three criteria for the following reasons:

(1) it is fanciful to suggest that because the Information Commissioner might not bring an impartial mind as an amicus curiae, the Principal Member might also have brought an impartial mind in conducting an administrative review of the 19 November 2021 Council Decision;

(2) he did not articulate the logical connection between any factor and the apprehended deviation by the Principal Member in conducting an administrative review of the 19 November 2021 Council Decision;

(3) the apprehension from the perspective of a fair-minded lay observer was unreasonable. The fair-minded lay observer would understand that the Information Commissioner had a right to appear under s 104(1) of the GIPA Act, whereas the Principal Member was the decision-maker.

1. We are not satisfied that there is any power for the Appeal Panel to make an order that the Tribunal pay his costs of any proceedings in the Tribunal. Even if such a power existed, we would not have exercised the power in favour of Mr Jeray in respect of the costs of the appeal in which he has been unsuccessful. Further, the Appeal Panel has no power to make a first instance costs order on appeal: The Owners - Strata Plan No 74835 v Pullicin (Costs) [2020] NSWCATAP 49 at [5]- [9]. It follows that the Jeray costs application should be dismissed.

1. As we have decided to dismiss the appeal, it is appropriate to make procedural orders to enable the Council costs application to be decided.

(1) The appeal is dismissed.

(2) The application of the appellant that the Tribunal pays his costs of the proceedings at first instance and of the appeal is dismissed.

(3) In relation to the application of the respondent that the appellant pays its costs of the appeal:

(a) the appellant is to lodge and serve any submissions in response limited to three pages within 14 days of this decision;

(b) the respondent is lodge and serve any submissions in reply limited to two pages within 28 days of this decision;

(c) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application.

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

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.