Joseph v Kiama Municipal Council

Summary of the First Decision

1. The First Decision concerns the Respondent's application for orders setting aside the two summonses and records that the Appellant submitted that the Respondent must obtain the leave of the Tribunal as a necessary prerequisite to the Tribunal setting aside the Registrar's decision to issue the two summonses. At [28] the Tribunal records that it rejected that approach. At [33] the Tribunal recorded that on 5 June 2023 it had delivered an ex-tempore decision to the effect that the Tribunal was not satisfied that there was any utility in the documents that were sought by the summonses as they were not relevant to matters to be determined.
2. From [46] the Tribunal set out its written reasons for the decisions that had been made on 5 June 2023. The Tribunal recorded that the Appellant had relied upon s 32 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) for the purposes of submitting that the Respondent's application was, in effect, an internal appeal. Section 32(2) provides that the Tribunal has jurisdiction in proceedings for the exercise of its internal appeal jurisdiction in respect of ancillary and interlocutory decisions of the Tribunal. The Tribunal found that s 32(2) empowers the Tribunal to determine the Respondent's application and that a grant of leave to the Respondent in respect of the Respondent's application is not required. The Tribunal also stated that the Appellant's submission to the effect that the Respondent required a grant of leave in order to have the summonses set aside would involve contravention of the Tribunal's guiding principle as set out in s 36 of the NCAT Act.
3. At [48] the Tribunal recorded that it had set aside both summonses because it was not satisfied that there was any utility in maintaining them as the documents were not relevant to matters that the Tribunal was required to determine. At [49] the Tribunal recorded that the Respondent submitted that some documents were subject to a claim for legal professional privilege.
4. The Tribunal then considered the documents sought in the first of the two summonses (i.e. dated 22 February 2023) and noted at [54] that it specifically sought production of the Respondent's documents with respect to the current administrative reviews. At [59], the Tribunal found that of the six paragraphs describing the documents sought by the summons, all but paragraph 5 were protected by reason of those documents being properly the subject of a claim for legal professional privilege. The Tribunal referred to (and implicitly relied upon) s 119 of the Evidence Act 1995 (NSW). Section 119 concerns confidential communications made for the dominant purpose of the client being provided with professional legal services relating to proceedings.
5. We divert to comment that, subject to s 67 of the NCAT Act, the provisions of the Evidence Act may not apply to these proceedings: see s 4 of the Evidence Act and s 38 of the NCAT Act. However, it is our view that the relevant principles for the application of legal professional privilege including principles concerning waiver of privilege as recognised in the common law, apply whether or not the Evidence Act applies. In other words, the finding by the Tribunal that documents requested by the summons were protected from disclosure by s 119 of the Evidence Act was a finding that may be justified by having regard to the same principles applying at common law. Nevertheless, s 67 of the NCAT Act applies the Evidence Act in some respects and, where applicable, s 67 provides that documents may not be required to be adduced in evidence.
6. The Tribunal then turned to a consideration of the documents described by paragraph 5 of the summons. These concerned documents and emails from the Respondent to Mr and Mrs Spencer in relation to the GIPA applications lodged by the Appellant. At [61], the Tribunal found that these documents were also privileged from production having regard to the provisions of s 119 of the Evidence Act. The Tribunal also found at [62] that paragraph 5 sought production of documents that were outside the scope of the GIPA requests made by the Appellant and were not relevant to the current administrative reviews. The Tribunal found paragraph 5 to be in the nature of a "fishing expedition".
7. From [63], the Tribunal considered the documents sought by the second summons. The documents mentioned were described in paragraphs 8 to 11 of the summons. At the hearing of the appeals there was discussion as to whether the Tribunal erred in describing these documents as part of the first summons as opposed to part of the second summons. A copy of the second summons was included in the papers lodged in the appeal and the schedule of documents does not correlate with those described in [63]. The apparent error is of no consequence because the real issue is whether the Tribunal was in error in describing the documents as not having apparent relevance to a matter in issue.
8. At [65], the Tribunal found in relation to these documents that they were protected from production for the same reasons as given for the documents the subject of the Tribunal's determination concerning the first summons.
9. On 5 June 2023, the Tribunal published an order to the effect that the request by the Respondent to set aside the summonses to produce documents issued to Ms Stroud, General Manager, Kiama Municipal Council, was granted.

Transcript of the hearing on 5 June 2023

1. We have been provided with a poor-quality transcript of the hearing which occurred on 5 June 2023. The transcript is a somewhat unreliable record of the hearing. Firstly, it appears that the hearing was conducted by audiovisual or telephonic means and that there were considerable difficulties in the quality of the transmission resulting in gaps in the transcript. Secondly, the transcript does not identify each speaker although the identity of a speaker can be inferred in some cases. In other cases, there is some doubt as to who is speaking. Notwithstanding these difficulties it seems that the following occurred: 1. The documents responsive to the summons had been produced to the Tribunal's registry. Accordingly, the practical issue was whether the summonses should be dismissed (as proposed by the Respondent) in which case the documents could be returned to the Respondent. Alternatively, if the summonses were not dismissed the remaining matter would be the making of an order for access to be given to the Appellant. It appears that the basis for the Respondent's application to have the summonses set aside was that the documents were the subject of a claim for legal professional privilege (see page 181 of the transcript). The Appellant sought to challenge the claims for legal professional privilege and also submitted that he relied upon the assertion that privilege has been waived by reason of s 125 of the Evidence Act. 2. At page 183 of the transcript the Tribunal enquired as to the utility of requiring production of documents when it is firstly necessary to determine whether the documents are protected from disclosure by reason of legal professional privilege. It appears that counsel for the Respondent explained that what had been produced were two categories of privileged documents. One category were documents produced in response to the summonses. The second category was documents relevant to the Appellant's substantive applications for access to the Respondent's documents and which had been provided to the Tribunal on a confidential basis. One basis for the claim for confidentiality of those documents was that they included documents protected by legal professional privilege. The member foreshadowed that at the substantive hearing it would be necessary to consider whether documents in respect of which the Respondent claimed confidentiality were in fact documents which the Respondent was entitled to withhold on the basis of legal professional privilege. The Tribunal enquired about the utility of requiring production of documents in response to the summonses when the issue of access of those documents to the Appellant would be determined at the substantive hearing. 3. It appears from page 184 that there may have been documents produced in response to the summonses which were not included in the Respondent's confidential bundle for consideration at the substantive hearing. In other words, there was overlap, but not complete overlap, in relation to documents responsive to the summonses on the one hand and on the other hand documents lodged with the Tribunal on a confidential basis for consideration at the substantive hearing. 4. At page 185 the Appellant stated that the first summons was relevant to information that the Respondent had that justified it bringing an application for dismissal of the Appellant's review application. The Appellant said that the Tribunal had held that that application was untenable. We understand from material supplied in these appeal proceedings that the Respondent had made an application under s 109 of the GIPA Act that the Tribunal should be satisfied that the Appellant's application for review was frivolous, vexatious, misconceived or lacking in substance and that therefore the Appellant's application should be summarily dismissed. That application was unsuccessful, and the Appellant's application was not summarily dismissed. The transcript reveals at page 186 that the Appellant stated that the first summons goes to the issue of the making of the "unjustifiable application for dismissal". 5. At page 212 the Tribunal stated that with respect to both summonses there is no utility in the documents being sought by the summonses being produced, and the summonses were set aside. The Tribunal stated that any documents so produced could not be released to the Appellant until the Tribunal has determined in a confidential hearing whether or not a privilege claim applies. 6. The Tribunal then set aside both summonses. The Appellant asked for written reasons and the Tribunal said that reasons would be provided within 28 days.
2. We will now turn to recording the essential reasons given in the Second Decision.

Summary of the Second Decision

1. From [4] of the Second Decision the Tribunal dealt with the background facts concerning the first GIPA request made by the Appellant to the Respondent (it being lodged on 15 March 2022). The Tribunal recorded at [5] that the Respondent decided on 12 April 2022 to release some documents to the Appellant. Later in October 2022, the Respondent conducted further searches and located additional documents, releasing some of them to the Appellant. Further on 26 May 2023, the Respondent made an additional disclosure (being the third disclosure) of documents to the Appellant. At [8] the Tribunal summarised the position with respect to disclosure of information to the Appellant as at 5 July 2023 by including a schedule describing each document by number together with particulars as to whether such document had been released or withheld, and, if withheld, the basis of so doing.
2. From [9] the Tribunal dealt with the second GIPA application lodged by the Appellant with the Respondent. The date of lodgment is stated to be 15 March 2023 but given the chronology the correct date is most likely 15 March 2022. At [10] the Tribunal recorded that the Respondent made a decision to release documents to the Appellant and to withhold other located documents. At [11] the Tribunal recorded that the Respondent made a further, additional disclosure of information on 26 May 2023. A further schedule is then set out which describes each document and whether it had been released or not.
3. From [12] the Tribunal dealt with the Appellant's third GIPA application stated to be lodged with the Respondent on 23 April 2023. The correct date is 23 April 2022.The Tribunal recorded from [13] that on 8 May 2022 the Respondent made a decision recording the location of three documents that fell within the scope of the request, and that those documents should be withheld (stating reasons for so doing).
4. From [14] the Tribunal recorded that the Appellant applied to the Information & Privacy Commissioner (IPC) for a review of the decision made on 8 May 2022 and subsequently the IPC made a recommendation that the Respondent should reconsider that decision by way of internal review. The internal review apparently occurred and the Respondent refused to provide access to part of the information sought because there was an overriding public interest against disclosure (see [16]).
5. On 26 May 2023 the Respondent made a further disclosure of information sought by the third GIPA application. One document was released, and two others were not disclosed to the Appellant because the Appellant already had access to them.
6. The Second Decision records some issues that arose during the substantive hearing on 5 and 6 July 2023 and because these issues are relevant to aspects of the appeal, we will record them in the following paragraphs.
7. The Appellant made an application that the Tribunal member recuse herself. The basis for the application is recorded from [21]. The Appellant submitted that the Tribunal member had made reference to the fact that the Appellant was a Senior Counsel and had once been a member of the Tribunal. The Appellant submitted that that revealed that the member had undertaken some research into the background of the Appellant.
8. The second submission, made by the Appellant in support of the recusal application, was to the effect that the member had described the application made by the Respondent in these proceedings for the Appellant's application to be summarily dismissed as an "historical" application and that the use of that term was intended to dismiss the relevance of that application.
9. The decision continues with a record of an exchange between the Tribunal and the Appellant concerning documents held in the Tribunal's registry.
10. From [38] the Tribunal recorded that the recusal application had been rejected during the course of the hearing and that the Tribunal had stated that it would provide reasons for its decision subsequently. The reasons are then contained in the following paragraphs.
11. From [42] the Tribunal stated that there was no proper basis for the Appellant's allegation that the Tribunal member could not have known that the Appellant was a legal practitioner. This conclusion was based upon evidence set out in [41] which contained information that the Appellant himself disclosed that he was a retired barrister and senior counsel. The Tribunal also rejected the Appellant's assertion that the Tribunal member made enquiries about the Appellant in order to ascertain that he was at one time a member of the Tribunal. The Tribunal member stated that it was her recollection that when this Tribunal was established from 1 January 2014, the names of all appointees were announced in an official release on the public record. We note that when the NCAT Act commenced it provided for members of a number of pre-existing Tribunals to be members of NCAT for the balance of their then current term: see schedule 1 to the NCAT Act.
12. From [48] the Tribunal recorded that a portion of the hearing occurred by way of a confidential hearing in the absence of the Appellant pursuant to s 107 of the GIPA Act and s 64 of the NCAT Act.
13. At [104] the Tribunal recorded that when the open hearing resumed the Tribunal advised the Appellant of the following determinations: 1. Document 1 of the second GIPA application should be disclosed to him subject to a redaction of Mrs Spencer's personal information and that 2. Documents sought under the summons to produce filed on 19 April 2023 are privileged under s 118 and/or s 119 of the Evidence Act and therefore would not be disclosed.
14. From [105] the Tribunal recorded the evidence of Ms Salviejo, an officer of the Respondent, who was cross-examined by the Appellant.
15. From [108] the Tribunal summarised the evidence of Ms Critcher, also an officer of the Respondent and who was involved in a consideration of the Appellant's GIPA applications. She too was cross-examined by the Appellant.
16. From [113] the Tribunal dealt with the evidence and the submissions of the Appellant.
17. During the course of the hearing, the Appellant submitted that the conduct of the Respondent engaged the provisions of s 112 of the GIPA Act. Section 112 is to the effect that if the Tribunal is of the opinion that an officer of an agency (relevantly in this case, an officer of the Respondent) has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act, then the Tribunal may bring that fact to the attention of the relevant Minister. At [195]-[196] the Tribunal recorded its view that s 112 did not mean that the Tribunal should conduct an investigation into the conduct of the Respondent and its officers whereas the Appellant submitted that his case supported the engagement of s 112, on the basis that the Respondent (particularly Ms Critcher and Ms Salviejo) did not act in good faith in determining the Appellant's GIPA requests.
18. From [200] the Tribunal dealt with the submission of the Appellant that he had been denied procedural fairness because Ms Salviejo did not consider further submissions and documents that he had lodged with the Respondent when she conducted the internal review of the decision with respect to the third GIPA application following the receipt of the recommendation of the IPC. The Tribunal found at [203] that there was no obligation on the Respondent to consider the Appellant's further submission and evidence in the context of an internal review that was being conducted, based upon the IPC's recommendation.
19. At [213] the Tribunal accepted the evidence of Ms Critcher with respect to the searches that she had conducted to locate documents that fell within the scope of the Appellant's three GIPA applications. At [215] the Tribunal found that Ms Critcher had conducted reasonable searches as required by s 53 of the Act.
20. With respect to the evidence of Ms Salviejo the Tribunal stated at [217] that her evidence was that she was required to review a decision made in respect of one document and that she did not consider any further searches were required because the documents that Ms Critcher had previously located were held in the Respondent's database. The Tribunal accepted the evidence of Ms Salviejo and the Tribunal found that it was satisfied that no further searches were required.
21. From [219] the Tribunal dealt with the relevant considerations for and against the disclosure of the information sought by the Appellant.
22. One group of factors requiring consideration are those set out in s 55 of the GIPA Act. That section provides that in determining whether there is an overriding public interest against disclosure of information in response to an access application an agency is entitled to take the following factors (the personal factors of the application) into account as provided by the section, namely: 1. the Applicant's identity and relationship with any person, 2. the Applicant's motives for making the access application, and 3. any other factors particular to the Applicant.
23. The personal factors can also be taken into account as factors in favour of providing the Applicant with access to the information (s 55(2)). The Tribunal recorded that the Appellant asserted that the Respondent had failed to adequately identify his "personal factors" as required by s 55. The Tribunal found at [224] that the Appellant did not disclose any of the personal factors in any of the three GIPA requests that were listed in his affidavit marked Exhibit A.
24. At [226] the Tribunal recorded that the Appellant had asserted that he was not advised of the fact that third-party consultation was being undertaken and obtained by the Respondent and that that failure revealed bias or perceived bias of the Respondent's decision-maker to make an adverse decision. At [227] the Tribunal rejected that submission and stated that a decision-maker cannot be criticised for failing to consider matters that were not put before them before the determination was made. Further, the Tribunal referred to the provisions of s 54(1) which provides that an agency must take such steps as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: 1. the information is of a kind that requires consultation under this section, and 2. the person may reasonably be expected to have concerns about the disclosure of the information, and 3. those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.
25. The Tribunal found at [229] that it was satisfied, given the nature of the information sought in the three GIPA requests, that s 54(1)(a), (b) and (c) were satisfied. At [230] the Tribunal described the Appellant's submissions concerning alleged bias or alleged cover-up of biased conduct by its alleged failure to identify the Appellant's personal factors in the decisions made with respect to the three GIPA applications as misconceived and without merit.
26. From [233] the Tribunal dealt with each of the documents and made findings in favour of or against disclosure. With respect to some documents, information had been redacted and the Tribunal was satisfied that that was appropriate as the redacted information contained a person's personal information. Other information was redacted on the basis that disclosure would constitute a contravention of the Copyright Act 1968 (Cth). The Tribunal found that the redaction in that respect was appropriate.
27. Some information was withheld on the basis that disclosure was required to protect a person's business, commercial, professional or financial interests. Other information was withheld on the basis that it contained confidential information protected by legal professional privilege.
28. It is clear that the Tribunal was engaged in an exercise of assessing whether documents should or should not be disclosed having regard to the considerations set out in s 14 of the GIPA Act. At [250] the Tribunal concluded that it was satisfied that the correct and preferable decision is to affirm the Respondent's decision of 12 April 2022, as varied on 10 April 2022 sic (the correct date is 10 October 2022) and 26 May 2023.
29. From [251] the Tribunal adopted the same analysis with respect to the second GIPA application and concluded that the correct and preferable decision is to affirm the Respondent's decision dated 6 May 2022 as varied on 26 May 2023.
30. From [263] the Tribunal considered the third GIPA application and at [270] found that the correct and preferable decision is to affirm the Respondent's decision dated 8 May 2022, as varied on 18 August 2022 and 26 May 2023.
31. From [271] the Tribunal considered s 112 of the GIPA Act. The Appellant had made submissions to the effect that the decisions made by Ms Critcher and Ms Salviejo were not made in good faith, but rather were infected by bias (perceived or actual) such that the matter should be referred to the relevant Minister. At [273] the Tribunal found that the decisions made by Ms Critcher and Ms Salviejo were "not optimal, as they appear to lack detail that displays their path of reasoning in relation to public interest considerations for and against the disclosure of the disputed information". However, the Tribunal stated at [274] that the reviewable decisions "indicate the public interest considerations that were relied upon and the weight that was afforded to each and the path of reasoning was sufficient as to enable the Applicant to prepare and lodge extensive submissions with the Tribunal". The Tribunal found that the lack of detail is not evidence of bad faith on the part of the decision-maker.
32. At [275] Tribunal found that both Ms Critcher and Ms Salviejo made a "real and genuine attempt to answer the requests for information and to perform their functions correctly".
33. At [276] the Tribunal found that it was satisfied that neither Ms Critcher nor Ms Salviejo failed to act in good faith in discharging their duty to properly determine the GIPA requests. The Tribunal declined to exercise the discretion conferred by s 112.
34. From [277], the Tribunal confirmed its conclusions, namely, that in respect of each of the three GIPA applications the correct and preferable decision was to affirm the Respondent's decisions.

Appeal from the First Decision

1. On 14 August 2023, the Appellant filed a Notice of Appeal in which the Appellant sought to have the orders made orally on 5 June 2023 set aside and that the Respondent be ordered to comply with the terms of the summonses to produce documents. The orders sought also sought an order that the further orders made on 9 August 2023 be set aside.
2. The grounds of appeal may be summarised as follows: 1. Ground 1: the Tribunal failed to comply with s 62(3)(a)-(c) of the NCAT Act in the written reasons dated 9 August 2023. This ground set out a detailed list of particulars with respect to the alleged failure to comply with s 62. The particulars are wide-ranging and, in some cases, overlap with other grounds. Some particulars are mere complaints that the Appellant did not agree with the Tribunal's decision: for example, particular a. asserts that there was a failure to set aside the summons to produce "given in particular its consequences". 2. Ground 2: the Tribunal erred in not requiring the Respondent to seek and obtain leave to appeal against the Registrar's decision to issue the two summonses. The Appellant submitted that the decision of the Registrar was interlocutory and that the "appeal" of the Respondent required a grant of leave. 3. Ground 3: the Appellant was denied procedural fairness in the following respects: in determining that the summonses lacked "utility", without regard to the Appellant's legal rights, including the Appellant's challenge to any claim of privilege, failure to give adequate reasons, failure to identify relevant issues, wrongly holding that "misconduct" is not a relevant issue, wrongly holding that the decision in Zonnevylle v New South Wales Department of Finance & Services [2015] NSWCATAD 175 at [42]-[52] controlled the future conduct of the hearing on merits, failure to have regard to schedule 1, clauses 5 and 5A of the GIPA Act, regulation 42(5)(a) and (6) of the NCAT Rules and failure to have regard to NCAT procedural direction 2 which requires compliance before claims of privilege, failure to consider "credit" as a relevant issue. 4. Ground 4: the Tribunal failed to correctly determine whether the Respondent never attended on the date of compliance and thus did not comply, whether there was a failure to determine what documents were subject to the claim for privilege, whether a waiver had occurred. 5. Gound 5: the Tribunal exceeded its power by adding further and new reasons to those given in the ex-tempore decision. 6. Gound 6: the Tribunal erred in stating that the date of the orders was 9 August 2023 when the order was made on 5 June 2023. 7. Ground 7: wrongly characterising a claim for privilege as a rule of evidence. 8. Gound 8: failure to provide procedural fairness by inspecting the documents to ascertain whether there has been compliance with the summons and whether privilege exists, and whether waiver was arguable. 9. Ground 9: wrongly deciding that the Tribunal does not have "power" to have produced summonsed documents which may or may not be subject to a claim for privilege. 10. Ground 10: wrongly deciding that the Spencers are not within the scope of the GIPA requests. 11. Grounds 11 to 16: if the above grounds are not determined to be questions of law, then the Appellant seeks leave to appeal. Then follows submissions as to why leave should be granted, having regard to the considerations requiring attention as expressed in Collins v Urban [2014] NSWCATAP 17 at [80]-[84]. In particular, the Appellant submitted that there is a public interest in ensuring that the Respondent is subject to scrutiny in relation to documents not provided until just before the hearing.

Consideration of the nature of the decision made on 5 June 2023

1. One of the points raised by the Appellant in the appeal is that the decision of the Registrar to issue the two summonses was an interlocutory decision and therefore the Respondent's application to have the summonses set aside was in the nature of an appeal requiring leave by reason of s 80(2)(a) of the NCAT Act.
2. In the First Decision the Tribunal considered the Appellant's argument from [46] and rejected the argument.
3. A Registrar has power to issue a summons either on the application of a party or at the direction of the Tribunal: s 48 of the NCAT Act.
4. It is our view that the Tribunal was correct in finding that the Respondent's application to set aside the summonses did not require a grant of leave as envisaged by s 80. The Tribunal has power under s 29 of the NCAT Act to make interlocutory decisions in proceedings (s 29(2)(a)). Section 32 of the NCAT Act deals with the Tribunal's internal appeal jurisdiction. It provides that the Tribunal has internal appeal jurisdiction over any decision made by the Tribunal in proceedings for a general decision or administrative review decision: s 32(1)(a). It also provides that the Tribunal has internal appeal jurisdiction over 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: s 32(1)(b). We agree with the Respondent that the Appellant has not identified any provision of the NCAT Act or the NCAT Rules which declares that a Registrar's decision to issue a summons pursuant to s 48 of the NCAT Act is an "internally appealable decision".
5. We also agree with the Respondent's submission that a decision by a Registrar to issue a summons is not a decision made by "the Tribunal". Section 9(1) of the NCAT Act provides that the Tribunal is constituted by the President, Deputy Presidents and other members described in s 9(1). Registrars are described as employees or staff of the Tribunal: s 22. The distinction between the Tribunal and a Registrar is maintained in rule 41 of the NCAT Rule. That rule provides that a Registrar may, at the direction of the President or a Division Head make certain listed interlocutory decisions of the Tribunal on behalf of the Tribunal. The listed interlocutory decisions do not include a decision for the issue of a summons but do include a decision concerning the setting aside of a summons or excusing compliance with a summons in connection with proceedings. Further, rule 41(4) provides that a decision of the Tribunal made by a Registrar under this rule is declared to be internally appealable for the purposes of s 32 of the NCAT Act if the decision would have been an internally appealable decision for the purposes of the Act had it been made by the Tribunal rather than the Registrar. We take this to mean that if the decision to set aside the summonses in this case had been made by a Registrar (as authorised by rule 41), then that decision would have been an internally appealable decision.
6. Our conclusion is that the Respondent is correct in its submission that an application to set aside a summons issued by a Registrar is an original application to be heard by the Tribunal (or a Registrar) at first instance to which leave to make the application (in this case by the Respondent) is not required. Accordingly, we reject ground 2 of the appeal.

Consideration of the Appeal from the First Decision

1. It is not necessary to set out in detail the submissions of the parties as we are able to cut to the essential issues raised by the Appellant for the purposes of giving appropriate consideration to the merits of the appeal. In the course of so doing we will make reference to and indicate our conclusions with respect to the various grounds of appeal. In short, we are of the opinion that the appeal lacks merit and must be dismissed.
2. The first point to make is that this is an appeal from an interlocutory decision. Section 4 of the NCAT Act defines an interlocutory decision to be a decision concerning a number of specified matters. These include "the issue of a summons and any other interlocutory issue before the Tribunal". Accordingly, in respect of this appeal s 80(2)(a) of the NCAT Act is engaged. That provides that an internal appeal may be made in the case of an interlocutory decision of the Tribunal at first instance with the leave of the Appeal Panel. It is well established by many decisions of the Appeal Panel that in seeking leave to appeal against an interlocutory decision the Appellant must establish that the appeal raises an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable. These principles were recently articulated in the Appeal Panel decision in Commissioner of Police, NSW Police Force v Bonkain [2024] NSWCATAP 15; see in particular [13] and [14].
3. The above principles were first set out in this tribunal by the Appeal Panel in Collins v Urban (cited earlier) and with respect to the issue of a summons were considered in Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [37].
4. For reasons which we will articulate further, we are of the opinion that there is no issue arising out of the First Decision which raises an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable. We therefore propose to refuse leave.
5. The basis for the Tribunal's oral decision made on 5 June 2023 to dismiss both summonses was that the documents sought by the summonses were considered by the Tribunal not to be relevant to the matters to be determined. This is confirmed in [33] of the First Decision.
6. The Appellant's submissions dispute the Tribunal's view as to the scope of the relevant issues. In this regard the Appellant's submissions may be summarised as follows: 1. The Appellant sought to argue that the conduct of the Respondent fell within the scope of s 112 of the GIPA Act. 2. The Appellant also sought to argue that the documents sought by the summonses were relevant as to the credit of the Respondent's witnesses. 3. A relevant issue was the alleged misconduct of the Respondent including the alleged misconduct in making an unsuccessful attempt to have the Appellant's applications before the Tribunal summarily dismissed. 4. The test as to what is relevant is to be judged by the notion of "apparent relevance".
7. The Respondent's submissions succinctly summarised the relevant law as to relevance. The case cited by the Respondent is CPJ v University of Newcastle [2017] NSWCATAD 35 at [10]-[13] where Deputy President Hennessy LCM explained the circumstances in which a summons may be properly issued and the considerations relevant to setting aside a summons. Her Honour stated that it is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute. It is impermissible for a party to use a summons for "fishing", that is to say where a party attempts, by way of a subpoena, to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge. The question to be asked is whether there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another to the relevant evidence in the case.
8. As the First Decision records, at [22], the Appellant submitted that the purpose of the first summons concerned production of documents that the Respondent had that related to it bringing the application for summary dismissal of the Appellant's applications. In response the Tribunal member stated that that reason for the issue of the summons does not relate to the dispute over the production of documents pursuant to the GIPA applications. In our view, the Tribunal was correct in holding that a summons for the purpose articulated by the Appellant was not relevant to an issue before the Tribunal in its consideration of the GIPA applications.
9. The Appellant also sought to fortify his argument by submitting that he would be putting forward the case that the Respondent's conduct justified the Tribunal making a finding under s 112 of the GIPA Act that the Respondent had not dealt with the Appellant's applications in good faith. In our view, the fact that the Respondent made an unsuccessful application for summary dismissal relying upon s 109 of the GIPA Act is insufficient to ground the view that the Respondent had dealt with the Appellant's applications other than in good faith.
10. It is appropriate at this point to indicate our view as to the operation of s 112 of the GIPA Act. In the Appeal Panel decision in Zonnevylle v Department of Justice [2019] NSWCATAP 44, the Appeal Panel considered statements made by the Tribunal at first instance as to the operation s 112. At [46] of that Appeal Panel decision the Tribunal quoted aspects of the first instance decision (and later at [60] stated that the Tribunal had not misconstrued s 112). The relevant quotation recorded at [46] is to this effect: 1. Section 112 does not give the Tribunal power to carry out an enquiry into the officer's conduct that is separate from or additional to the administrative review proceedings. 2. While an Applicant may lead evidence that relates to the administrative review of the administrator's decision, no evidence is to be led, cross-examination permitted or summons issued in relation to conduct which does not arise as part of the administrative review. 3. The Tribunal cannot compel the production of information for the sole purpose of determining whether a referral under s 112 should be made. 4. The power in s 112 is only exercisable on the basis of materials already before the Tribunal in the course of conducting a review of a reviewable decision.
11. We have broken down the quotation from the first instance decision in Zonnevylle into subparagraphs because we are the opinion that by doing so the correctness of the Tribunal's approach to s 112 in the proceedings concerning this appeal is clear and obvious.
12. Accordingly, with respect to the summons to produce dated 22 February 2023 we are in agreement with the Respondent's submissions that having regard to the Appellant's explanation for the apparent relevance of the documents sought under that summons (i.e. to obtain documents relating to the Respondent's decision to make its unsuccessful application for summary dismissal of the Appellant's applications for review of the GIPA decisions) the Tribunal was correct to conclude that the summons lacked any legitimate forensic purpose and that it should be set aside.
13. In the First Decision the Tribunal considered the claim by the Respondent that the documents sought were subject to a claim for legal professional privilege. Our review of the transcript of the hearing on 5 June 2023 leads us to the conclusion that the issue of privilege was raised but not fully argued. The Respondent claimed that the documents, the subject of the first summons were protected by legal professional privilege. The Appellant argued that they were not and also argued that, if they were, privilege had been waived. The Tribunal indicated that the issue of privilege would be dealt with at the substantive hearing. That indication was appropriate with respect to the documents the subject of the GIPA application but was not appropriate for any other documents that would be responsive to the summons but not to the GIPA applications. That must be so as the summonses had been set aside. The Appellant submitted that he had suffered procedural unfairness by reason of the fact that the Tribunal indicated that it would deal with privilege at the substantive hearing.
14. In our view, the alleged procedural unfairness is inconsequential. That is because the documents being sought by the summons were, on the Appellant's own case, intended to demonstrate a basis for engaging s 112. Because of the ways s 112 is engaged in GIPA applications (as recorded in the Zonnevylle decision referred to above) the Tribunal was correct in its conclusion that the documents being sought were not apparently relevant to a matter in issue.
15. We will now turn to the second summons (dated 8 May 2023). At [26] of the First Decision the Tribunal set out the transcript containing the discussion concerning the Appellant's justification for this summons. It appears to us that the Appellant's motive in seeking the documents covered by this summons was to enable the Appellant to have access to the processes within the Respondent by which the Respondent dealt with the GIPA applications. The documents sought included documents relating to a GIPA application lodged by Mr & Mrs Spencer and the Appellant appears to have submitted that it is relevant that there be some comparison made between how the GIPA application lodged by the Spencers was handled by the Respondent as compared with how the GIPA applications of the Appellant were handled by the Respondent.
16. From [32] the Tribunal in the First Decision set out further extracts from the transcript in which the Appellant responded to a statement made by the Senior Member that she did not consider that additional evidence sought in the summons to produce documents will assist in the substantive hearing and specifically that she was not concerned with matters previously before the Tribunal in the application for summary dismissal. The Appellant responded by stating that there is "a relevance of bad faith being exercised". The Appellant went on to state that the application for summary dismissal was not "historical" (being the description used by the Senior Member) but was a matter reflective of the Respondent attempting to thwart his entitlement to a proper review.
17. It is our view that the Tribunal did not err in its determination that the documents sought by the second summons were not relevant to the matters to be determined by the Tribunal at the substantive hearing. Inconsistently with the approach in the Zonnevylle decision referred to above, the Appellant's purpose in requesting the second summons was to seek evidence supportive of his attempts to engage s 112.
18. In the First Decision the Tribunal added a reason not conveyed orally at the hearing, namely that the documents were protected by legal professional privilege. The Tribunal stated at [65] that the reasons for rejection of the second summons were the same as in respect of the first summons (which included legal professional privilege). An issue of procedural unfairness arises as it does for the first summons but again the alleged unfairness is inconsequential because the operative reason behind the dismissal of the summons and the fact that the documents were not available at the substantive hearing was lack of apparent relevance.
19. We will now turn to each of the grounds of appeal, other than ground 2 which we have already determined.
20. Ground 1: this ground concerns the Appellant's submission that the Tribunal failed to comply with the requirement to give adequate reasons. The question of the adequacy of reasons delivered by this Tribunal was considered by the Court of Appeal in New South Wales Land & Housing Corporation v Orr [2019] NSWCA 231. When there is a request for a written statement of reasons, (as there was in this case), the Chief Justice (at [71]) said that the minimum characteristics of a written statement of reasons are set out in s 62(3) of the NCAT Act. That section provides as follows: 62 Tribunal to give notice of decision and provide written reasons on request … (3) A written statement of reasons for the purposes of this section must set out the following - (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
21. The Chief Justice also said at [66] that the function of an appellate court when considering the issue of adequacy of reasons is to determine "not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard". The court considered the detail of reasons required of this Tribunal for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal's decision other than on a question of law. Here, the decision being an interlocutory decision carries with it no right of appeal. The court stated that the reasons must be such as to provide a basic explanation of the fundamental reasons which led the Tribunal to its conclusion and need only go so far as is necessary to indicate to the parties why the decision was made so as to allow them to exercise such rights as may be available to them in respect of it.
22. In our view, it is clear that the reason the Tribunal set aside the summonses was based upon the Appellant's explanation as to the purpose of the summonses and the consequential determination by the Tribunal that the documents sought to be produced by the summonses were not apparently relevant to any issue in the proceedings. Specifically, the purpose of the summonses was to seek to provide evidence for a possible engagement of s 112 of the GIPA Act. Given the approach described in the Zonnevylle decision (cited earlier) this purpose was not permissible. The First Decision make this process of reasoning clear. Although other reasons were given in the First Decision concerning legal professional privilege, those reasons do not detract from the fundamental reason based on relevance and utility. This ground is rejected.
23. Ground 3: this ground is rejected. The reasons for the rejection are that the Tribunal did not misconstrue the fact that the summonses lacked utility given their purpose and nor did the Tribunal misconstrue the relevance of evidence concerning the operation of s 112.
24. Ground 4: one component of this ground asserts that the Tribunal failed to correctly determine whether the Respondent never attended on the date of compliance and thus did not comply with the summonses. Practical compliance occurred in the sense that the documents responsive to the summonses were produced and the issue before the Tribunal was whether the summonses should be set aside. There is no merit in this ground. A further component of ground 4 was that the Appellant submitted that there was a failure to determine what documents were subject to the claim of privilege and whether a waiver had occurred. As we stated earlier, the summonses were set aside on the basis of utility, meaning that they sought documents not apparently relevant to a matter in issue. Issues of privilege and/or waiver would not affect the outcome of the decision to set aside the summonses on the basis of lack of utility.
25. Ground 5: this ground concerns the Appellant's submission that the Tribunal exceeded its power by adding further and new reasons for those given in the ex tempore decision. The recent Court of Appeal judgment in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan no 64807 [2023] NSWCA 188 ("Sunaust") deals with the authority of the Tribunal to reopen a decision and publish a second decision. At [160] the majority held that there will be circumstances in which it may reopen a decision once pronounced and indeed there will be circumstances where the Tribunal should do so. Such a power falls within the breadth of the procedural powers conferred on the Tribunal under s 38 of the NCAT Act. Where the Tribunal is satisfied that it has failed to address one of the real issues in the proceedings before it, it may (and perhaps should) reopen the proceedings in order to give effect to the guiding principle set out in s 36 of the NCAT Act. In the proceedings under appeal, the Tribunal announced its decision that the summonses should be set aside and the Appellant immediately asked for written reasons. The Tribunal indicated that those reasons would be forthcoming later. In our view, it is arguable that the First Decision did not constitute a new decision, but rather constituted both a written record of the reasons given orally, and an elaboration of the Tribunal's decision based on additional grounds. Having regard to the Sunaust decision and the facts applicable to this matter, we are of the opinion that the Tribunal did not exceed any authority. This ground is rejected.
26. Ground 6: by this ground the Appellant seeks to make something out of the fact that the cover page of the First Decision states that the orders were made on 9 August 2023 when in fact the orders were made on 5 June 2023. A complete reading of the First Decision, particularly paragraphs [7] and [33] make it clear that the Tribunal heard the matter on 5 June and on that date made an ex-tempore decision by which the summonses were set aside. The First Decision was published on 9 August which explains the date on the cover page. This ground has no merit.
27. Ground 7: this ground asserts that there was a wrong characterisation by the Tribunal in describing privilege as a rule of evidence. In our view, this possible semantic infelicity is of no consequence and did not influence the Tribunal's analysis of the relevant issues. In our view a claim for legal professional privilege is both a common law right and where the rules of evidence apply, such a claim is regulated by the provisions of the Evidence Act. As stated earlier s 67 of the NCAT Act also incorporates provisions of the Evidence Act so as to permit the nondisclosure of privileged information. This ground is rejected.
28. Ground 8: this ground asserts that there was a failure to provide procedural fairness by the Tribunal inspecting documents for the purposes of assessing whether privilege exists. It appears that the Tribunal did not inspect the documents at the interlocutory hearing. In Hancock v Rinehart (Privilege) [2016] NSWSC 12 Brereton J considered a claim for privilege and, in so doing, whether the documents, the subject of the claim, ought to be inspected. At [31] his Honour stated that a party is not entitled to insist on the court inspecting documents it being a matter for the discretion of the judge, who will do so if there is good reason. In this case, the Tribunal, relying upon the purpose of the summonses as explained by the Appellant, ruled that the documents were not relevant to a matter in issue. In the circumstances, it is understandable that the Tribunal took the view that there was no need to inspect the documents at the time of the ruling which resulted in the summonses being dismissed.
29. Ground 9: this ground submits that the Tribunal erred in deciding that it does not have power to have summonsed, documents which may or may not be subject to a claim for privilege. At [61] the Tribunal stated that having determined that the documents were privileged (by the application of s 119 of the Evidence Act), it did not have power to compel the Respondent to produce such documents. As the Respondent's submissions point out such a view is consistent with the provisions of s 67 of the NCAT Act. That section provides: 67 Privileged Documents (1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995 - (a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence, (b) section 10 (Parliamentary privilege preserved), (c) Part 3.10 (Privileges) of Chapter 3. (2) In this section - disclosure of a document includes the following - (a) the provision of copies of the document, (b) the granting of access to the document, (c) the disclosure of the contents of the document. document includes a part of a document. NSW court has the same meaning as in the Evidence Act 1995.
30. Accordingly, in relation to this ground insofar as it concerns documents which have been determined to be privileged the Tribunal was correct in stating that it did not have power to require the documents to be disclosed by being produced. To the extent that the ground refers to documents which "may not" be subject to a claim for privilege, we do not think that the Tribunal said that it had no power in respect of such documents. This ground is rejected.
31. Ground 10: this ground asserts that the Tribunal wrongly decided that the Spencers were not within the scope of the GIPA requests. In our view that decision was open to the Tribunal given the Appellant's explanation for the relevance of documents concerning the Spencers' applications to the Respondent. This ground is also rejected.
32. Grounds 11 to 16: these grounds essentially repeat the earlier grounds but on the basis that if they do not raise questions of law, then the Appellant seeks leave. In our view the grounds do not raise an issue of principle or a question of public importance, nor is there a reasonably clear injustice going beyond something that is merely arguable. Nor, in our opinion, does the fact that the Respondent is a Council responsible for some aspects of the administration of government in a local government setting mean that, in this case, the issues raised by the Appellant are of general public importance. There is ample authority for the view that an appeal from an interlocutory decision on a matter of practice and procedure faces a high hurdle: see for example iCare NSW v Webb [2023] NSWCATAP 192 at [20].
33. Our conclusion is that the appeal from the First Decision requires leave, and that leave should be refused. The orders we make are: 1. Leave to appeal refused. 2. Appeal dismissed.

Grounds of Appeal from the Second Decision

1. The Appellant lodged a Notice of Appeal on 21 September 2023 from the Second Decision. The Respondent submitted that the grounds of appeal are prolix and difficult to understand. We are not unsympathetic to that view but are of the opinion that we are able to summarise the grounds of appeal, which we do in the following paragraphs. The grounds of appeal are identified by the paragraph numbers contained in the Notice of Appeal. Those paragraph numbers commence with paragraph 4 and conclude with paragraph 18.
2. Paragraph 4: this ground submits that the Tribunal failed to provide procedural fairness in the following respects: 1. The member failed to recuse herself following the first recusal application and further failed to consider the second recusal application. 2. The member was biased because she used the transcript to prepare her decision whereas the Appellant was in the position of having to submit written submissions without the benefit of the transcript. The Appellant submits that the use of the transcript by the member was an act of bias, or apprehension of bias. In our view this ground is self-evidently absurd. 3. The Tribunal failed to properly consider evidence tendered by the Appellant, namely Exhibits A to F and MFI 4 and cross-examination. 4. The Tribunal erred in its acceptance of the Respondent's conduct as "neutral" in the context of the Respondent's review in May 2023 in abandoning the terms of the "many offensive findings of the decision-makers", including the failure of the Tribunal to consider the Respondent's application for summary dismissal of the Appellant's review applications as being evidence of the lack of bona fides of the Respondent's decision-makers. 5. The failure of the Tribunal to consider the Appellant's reopening of the recusal application. 6. The Tribunal wrongly determining the Respondent's claim for legal professional privilege in a confidential hearing in the absence of the Appellant without an opportunity to lead evidence contrary to the Respondent's claim including the failure to consider evidence of waiver or Exhibit D which concerned the review applications. 7. The failure to consider that a claim for legal professional privilege cannot just be asserted and must be proven. 8. The Tribunal's refusal to permit evidence and cross-examination concerning s 112 yet conversely considering s 112. 9. The Tribunal wrongly characterising the nature of s 112, perversely finding a lack of detail is not evidence of bad faith, wrongly determining that the Respondent did not owe the Appellant procedural fairness by revealing its consultation with a third party and giving the Appellant an opportunity to respond. 10. The failure to give adequate reasons. 11. The failure to weigh evidence not favourable to the Respondent.
3. Paragraph 5: the Tribunal rejected submissions by the Appellant but had regard to the Respondent's submissions filed on 17 July 2023, those submissions being three days late. This is evidence is that the Tribunal was biased.
4. Paragraph 6: the Tribunal erred in not considering the Appellant's submissions on credit and further erred in not considering the Appellant's evidence (Exhibit A) on lack of credibility of the Respondent's decision-makers.
5. Paragraph 7: the Tribunal erred by limiting cross-examination based upon its determination of relevant matters and further wrongfully relied upon the decision in Zonnevylle v Department of Education [2017] NSWCATAD 214.
6. Paragraph 8: the Tribunal erred at [193] in citing the decision in Zonnevylle v Department of Justice [2019] NSWCATAP 44 and at [195] the Zonnevylle decision is stated by the Tribunal as the decision to which the Tribunal drew attention to at the hearing on 5 June. The error of the Tribunal was that at the hearing on 5 June another Zonnevylle decision was in fact referred to and relied upon, namely a Zonnevylle case with the citation [2017] NSWCATAD 214.
7. Paragraph 9: the Tribunal erred in determining that Ms Salviejo did not have a duty to provide procedural fairness to the Appellant by her consideration of material provided by the Appellant and the Independent Privacy Commission (IPC). A similar failure by Ms Critcher was wrongly not considered.
8. Paragraph 10: the Tribunal erred in excusing the Respondent's lack of compliance with s 54 of the GIPA Act. The Appellant further submits that the same evidence is ignored or diminished when s 55 is considered.
9. Paragraph 11: the Tribunal erred in stating that the personal factors of the application were not disclosed to Ms Salviejo when she reconsidered the "June determination". The Tribunal ignored the Appellant's submissions made to Ms Salviejo: see Annexure C to the affidavit of October 2022 being exhibit A. In that evidence personal factors were set out.
10. Paragraph 12: the Tribunal erred in failing to have regard to the fact that the Respondent chose not to cross-examine the Appellant in relation to the Appellant's evidence and "Yet adverse inferences were drawn which had not been put to the Appellant": see [209] and [210] of the Second Decision.
11. Paragraph 13: the Tribunal erred in considering what prompted the review by the Respondent and what inferences should be drawn as to the determinations made in the first place. The Appellant submits that the findings of the Tribunal at [203] and [275] are perverse.
12. Paragraph 14: the Appellant submits that the finding by the Tribunal of satisfactory compliance with s 53 of the GIPA Act by the Respondent fails to acknowledge that the Appellant challenged such finding in Exhibits A and D. The Appellant submits that the fact that only one of eight councillors responded to Ms Critcher's request for documents is more than sufficient evidence to significantly challenge the assertion of compliance with s 54. Similarly, the Tribunal erred in accepting the evidence of Ms Salviejo that she was justifiably not undertaking any further searches: see [218] of the Second Decision.
13. Paragraph 15: the Tribunal erred in not considering the provisions of the Local Government Act 1993 (NSW) (see [121]) or considering whether there had been non-compliance with the terms of settlement between the Respondent and the Spencers.
14. Paragraph 16: the Tribunal wrongfully asserted at [127] that the Appellant had failed to address relevant case law on the question of whether or not personal information had been revealed for the purposes of the GIPA Act when, in fact, the onus was on the Respondent to make its case, and failed to consider paragraph 81 of the Appellant's affidavit in Exhibit A. The Tribunal's failure included failure to have regard to the IPC Guidelines.
15. Paragraph 17: the Tribunal failed to provide adequate reasons for its decisions with respect to each of the documents in question: see [233]-[270] of the Second Decision.
16. Paragraph 18: at [134] the Tribunal erred in casting the onus on the Appellant to identify the need for "objective" evidence to support a claim under clause 3(f) whereas there is a need for the Respondent to determine whether an objection to disclosure received from a third party is objectively based by reason of the serious nature of the allegation as well as the authorities identified at [135] of Annexure A. That paragraph cites Dezfouli v NSW Police Force [2018] NSWCATAP 264 at [37] and Newcastle City Council v Newcastle Residents Action Group [2018] NSWCATAP 254 at [59]. We do not think that the Appellant is correct in stating that the Tribunal cast the onus on the Appellant. From [181] the Tribunal set out "relevant legal principles". Those principles include approval of the principle that the onus is on the agency to demonstrate on real and substantial grounds that disclosure of information should not occur: see [187].
17. The Respondent has filed a Reply to Appeal, which is to the effect that the grounds of appeal are not clearly explained by reference to the reasons contained in the Second Decision and that, to the extent that leave is required for any ground, no basis justifying a grant of leave has been put forward by the Appellant.
18. It is necessary to deal with three objections raised by the Respondent to evidence tendered by the Appellant.
19. First is an Application for Leave to Appeal filed on 14 August 2023. In our view this is an application and it is not appropriate to treat it as fresh evidence. Accordingly, the Respondent's objection is dismissed.
20. The second objection is to an affidavit of the Appellant dated 17 August 2023. This affidavit concerns submissions which the Appellant requests the Appeal Panel to consider based upon the Appellant's review of the sound recording of the hearing on 5 June 2023. In particular, the Appellant takes issue with respect to the Tribunal's mention of and reliance upon one of the Zonnevylle decisions. The context was the Senior Member's consideration of how s 112 of the GIPA Act would be engaged and the extent to which evidence directed towards the engagement of that section would be permitted. We have already in this decision set out our view which is consistent with the member's view as to the operation of s 112 and, in particular, the extent to which evidence may be permitted ultimately relevant to s 112. Accordingly, the substance of the points made by the Appellant in the affidavit have been determined by us. It is not necessary to formally refuse leave for disallowing the Appellant's tender of the affidavit. This is because it is an affidavit in substance containing submissions based upon the Appellant's review of what occurred at the hearing on 5 June.
21. The Respondent also objected to an affidavit of the Appellant, dated 12 September 2023. The substance of that affidavit is to the effect that the Appellant could not obtain a copy of the transcript of the hearing on 5 June 2023, and that the Appellant submitted that the findings of the Tribunal as contained in the First Decision were unreliable, thus providing further evidence of actual bias or giving rise to an apprehension of bias by the Tribunal member. We of the view that this affidavit is in the nature of submissions, and it is inappropriate to refuse the Appellant leave to rely upon the affidavit.

Appellant's submissions

1. In the following paragraphs we summarise the Appellant's submissions. To the extent that the summary does not follow the grounds of appeal summarised earlier, that is because the Appellant's submissions do not follow those grounds.
2. The Appellant submitted that the Tribunal failed in its consideration of whether the documents which the Respondent sought not to disclose, because they were privileged, to have regard to ss 121 and 125 of the Evidence Act. Both sections deal with circumstances in which privilege may be lost.
3. The Second Decision records that the Tribunal considered whether some documents were privileged in a confidential hearing. At [104(2)] the Tribunal recorded its determination that the documents sought under a summons to produce documents filed on 19 April 2023 were privileged "under ss 118 and/or 119" of the Evidence Act. We take this to mean the first summons and that the 19 April 2023 was the date of the Respondent's application to set aside the summonses was lodged with the tribunal. At [199] the Tribunal stated that in relation to the second summons it had already determined in its First Decision that the documents sought by that summons were privileged by ss 118 and/or 119. The Tribunal went on to say that "there was no evidence before me that supports a decision that ss 118 and/or 119 should not be applied." The Appellant submitted that the Tribunal had shifted the onus onto him in circumstances where there was no evidence of privilege. Further, this occurred in a confidential hearing.
4. We divert to comment that what is stated at [48(2)] of the Second Decision is odd having regard to the fact that both summonses had been set aside prior to the substantive hearing in July. At [48(2)] the Tribunal states that it is in dispute as to whether documents that the Respondent lodged with the Tribunal in answer to a summons are properly subject to a claim for legal professional privilege under ss 118 or 119 of the Evidence Act. As the summonses had already been set aside on the basis of lack of utility (i.e. relevance to matters in issue), further consideration appears to have been unnecessary.
5. Accordingly, it is our view that the issue at the July hearing of whether documents are privileged or, if privileged, whether that privilege has been waived, must only be applicable to documents lodged by the Respondent with the Tribunal on a confidential basis pursuant to its obligations under the GIPA Act and not to documents responsive to the summonses.
6. The Appellant's submissions submit that the Tribunal's determination with respect to privileged documents failed to identify evidence in support of privilege and failed to give reasons. The Appellant also submitted that the Tribunal failed to consider whether there had been waiver of privilege having regard to ss 122 and 125 of the Evidence Act. Although at [198] the Tribunal acknowledged the Appellant's submissions concerning loss of privilege the Tribunal did not make a finding with respect to waiver other than to say at [199] that there is no evidence that supports a decision that ss 118 or 199 should not be applied. The Appellant submitted that the elision between conducting an investigation under s 112 and a review in which evidence emerges supporting the preconditions of s 112 have led to error.
7. In addition, the Appellant submitted that the decision of the Tribunal to conduct a confidential hearing (as recorded at [49] of the Second Decision) was not explained or justified, having regard to the rule of open justice. The Appellant relied upon comments made in the ECR v Public Guardian [2021] NSWCATAD 141 [12]-[24].
8. We note that in the ECR case the Public Guardian objected to lodging certain documents as required by s 58 of the Administrative Decisions Act 1997 (NSW) (the ADR Act). The Tribunal considered the effect of s 64 of the NCAT Act, which gives to the Tribunal power to restrict disclosure of evidence where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of evidence. The Tribunal decided that the principle of open justice is adequately safeguarded by the fact that the party seeking access to information had been informed of the substance of the information held by the Respondent and that the affected party was not deprived of the opportunity to put his case (having been informed of the substance of the information). The Tribunal also made reference to the Appeal Panel decision in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 where the Tribunal spoke of the "comparative breadth of the criterion of 'desirability'" (being the word used in s 64).
9. The Appellant further submitted that the Tribunal failed to review or consider why it was that the Respondent undertook further reviews after the initial review and further documents were produced.
10. The Appellant made submissions concerning that, in the view of the Appellant, the Tribunal only selectively extracted portions of the evidence of Ms Salviejo (who was cross-examined by the Appellant). A similar complaint was made about the extracted portions of the evidence of Ms Critcher.
11. The Appellant submitted that the transcript of the cross-examination of Ms Salviejo demonstrates that her conduct with respect to the Appellant's applications evidence a lack of good faith. Her evidence commences at page 114 of the transcript. She described her position as Governance Coordinator with the Respondent and that she was in that position from 31 January 2002 until 11 May 2023. She reviewed the Appellant's three applications under the GIPA Act. The Appellant made reference to the following aspects of Ms Salviejo's evidence: 1. That she had decided not to reconsider the first two decisions of Ms Critcher because she (Ms Salviejo) thought that the criticisms of them by the independent reviewer were not justified (page 129 of the transcript). 2. One of the reasons that she did not reconsider the first two decisions of Ms Critcher was because of the Appellant's prior conduct (page 129). 3. Ms Salviejo said that she did not reconsider the Council's determinations following the Independent Privacy Commissioner's recommendation because she knew that the Appellant would take the Respondent to NCAT anyway (page 130). She said that the Respondent had already spent hours dealing with the Appellant's GIPA applications over time and that she thought the Appellant would take his applications to NCAT in any event. 4. At page 130 of the transcript Ms Salviejo agreed that she wanted to make a point because the Respondent had "had enough". That is why she instructed the solicitors to try to institute proceedings under ss 109 and 110.
12. The Appellant submitted that extracts from the transcript implicate Ms Salviejo as abusing her power to determine GIPA applications on personal grounds rather than merit.
13. The Appellant made submissions of a similar nature with respect to the evidence given by Ms Critcher. Ms Critcher's evidence starts at page 168 of the transcript. She gave her position as a Governance Officer at the Respondent. The Appellant submitted her evidence was unreliable. She had never read the IPC report.
14. The Appellant further submitted that the decision by the Respondent to review its position in May 2023 should have been subject to further enquiry by the Tribunal. The Appellant submitted that the Tribunal should have considered a number of questions concerning the review, such as who decided to undertake the review, was it limited or at large?
15. The Appellant took issue with the findings of the Tribunal at [215] where the Tribunal found that Ms Critcher conducted reasonable searches as required by s 53 of the GIPA Act. The Appellant's submissions point to evidence that Ms Critcher did not follow up on a request for information from all councillors of the Respondent in relation to documents held by them and that the scope of her searches was inappropriately narrowed by the failure to include reference to the "Spencers" in her searches. The Appellant submitted that the Tribunal's acceptance of the Respondent's evidence and its conclusion that searches were reasonable, disclose an absence of any real consideration or evaluation of the testimony.
16. The Appellant submitted that the Tribunal erred in finding that there were no personal factors included in the Appellant's applications when there were such factors included in the Appellant's evidence.
17. The Appellant made further submissions concerning s 112 of the GIPA Act and submitted that the Tribunal had failed to evaluate the evidence which was tendered relevant to s 112. The Appellant submitted that the Tribunal erred in its decision that the Respondent's decision-makers acted in good faith by failing to consider evidence and submissions which had been presented to the Tribunal.
18. The Appellant's submissions continue with the criticism that the Tribunal's decision involved mere conclusions as to whether documents should or should not be disclosed without giving reasons.

Respondent's Submissions

1. The Respondent provided written submissions. We are in agreement with the substance of those submissions and there is no need to set them out separately. Rather in the paragraphs that follow we set out our views and, to the extent necessary, acknowledge the Respondent's submissions.

Consideration of the Second Decision

1. The Appellant's appeal is regulated by s 80 of the NCAT Act. In summary, that section provides that an appeal may be made to an Appeal Panel in respect of a decision (other than an interlocutory decision) as of right on any question of law or with leave of the Appeal Panel on any other grounds. The Appellant has submitted that the grounds of appeal raise questions of law (thus not requiring leave) and to the extent that those submissions are rejected as not raising questions of law, the Appellant also seeks consideration of the same grounds on the basis that leave should be granted.
2. We agree with the Respondent's submission that it is essential to consider the function of the Tribunal in hearing and determining the Appellant's applications for administrative review of the Respondent's access decisions pursuant to s 100(1) of the GIPA Act and s 63 of the ADR Act. In our view the Tribunal correctly identified its function and scope. Firstly at [125] the Tribunal stated that it was required to make a decision de novo and to make the correct and preferable decision based on the evidence before it. The Tribunal, not the Respondent, becomes the decision-maker. At [195] the Tribunal stated that its role was to conduct an administrative review of the decisions made in relation to the Appellant's three GIPA applications and not to conduct an investigation into the conduct of the Respondent and its officers. The Tribunal noted at [195] that s 112 of the GIPA Act imposed upon the Tribunal a power to consider upon completion of the administrative review whether the Respondent's conduct lacked bona fides and whether a report should be sent to the relevant minister. The Tribunal's description is, with respect, correct and displays no error.
3. We will firstly consider the Appellant's submissions concerning the fact that the Tribunal member did not recuse herself upon the Appellant's application to do so.
4. The basis for the Appellant's application for recusal was twofold. Firstly, the Appellant submitted that the fact that the Senior Member made reference to the Appellant's professional background would give rise to an understanding in the mind of a reasonable bystander that there had been some enquiry made in order to assist the Tribunal to understand the background of the matters in dispute. The second was that the Senior Member described the Respondent's application to summarily dismiss the Appellant's review applications as "historical". The Appellant submitted that that description demonstrated "prejudgment". With due respect to the Appellant, we are of the opinion that the assertion that the Senior Member conducted an enquiry into the Appellant's background is baseless. The Appellant's own evidence disclosed his position as senior counsel. At [43] of the Second Decision the Senior Member stated that she recalled that there was reference in the Tribunal's annual report to the fact that the Appellant was a member of the Tribunal as at January 2014.
5. As the Respondent's submissions point out actual bias is proved by establishing that there are strong grounds to suppose that the decision-maker has so acted that he or she cannot be expected to fairly discharge his or her duties: Bakauta v Kelly (1989) 167 CLR 568 at 584. Additionally, as the Respondent's submissions state, it is necessary to establish, in order to prove bias in the form of prejudgment, that the decision-maker's state of mind is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration & Multicultural Affairs v Jya Legeng (2001) 205 CLR 507 at [72]. The test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision-maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. We do not see how the Senior Member's reference to the Appellant's professional background could form a basis for recusal given the fact that the Appellant had disclosed part of his professional background, and the other part was known to the Senior Member from publicly available information.
6. We take it that the Senior Member's description of the Respondent's application for summary dismissal as "historical" was intended to mean that that application was no longer of relevance to the matters in dispute and to be determined by the Senior Member. In our view that view was correct. We have already indicated the role of the Tribunal in considering s 112 of the GIPA Act and that the Tribunal's approach to that issue was in our respectful view in conformity with previous decisions.
7. In our view the key issue in dispute between the Appellant, on the one hand, and the Tribunal's approach to the Appellant's GIPA applications on the other hand, has arisen because the Appellant has viewed the GIPA applications as vehicles for his desire to expose what he perceives to have been inappropriate conduct on behalf of the Respondent in its dealing with the development applications lodged by the Spencers. The Appellant's views in this respect appears to have been the motive behind the requests for the issue of summonses and the Appellant's objection to the constraints which the Tribunal may have imposed upon the Appellant in cross-examining the Respondent's witnesses.
8. This difference of opinion apparently caused the Appellant to lodge supplementary submissions on 28 July 2023 in which the Appellant renewed the application for recusal. The Tribunal did not consider the submission because it was filed late and without leave. To the extent that the submissions of the Appellant relied upon the Appellant's view as to the operation of s 112 and the fact that the Tribunal had indicated a contrary view there was no basis for recusal. The Tribunal had expressed a view and, in our opinion, that view was correct.
9. In short, in refusing the applications for recusal there was no error displayed by the Tribunal and this ground is rejected.
10. A further ground for the Appellant's appeal is to the effect that the Tribunal failed to properly consider the Appellant's submissions and evidence in respect of the three review applications. We do not agree for the reasons that follow.
11. In the Second Decision there is a detailed schedule of the documents sought by reference to number and a brief description of the particulars relevant to each document. This included whether the document had been released and, if not released, a brief statement of the reasons for that decision.
12. Obviously, some constraint needs to be applied by the Tribunal in setting out its reasons in relation to documents not fully disclosed or only partly disclosed as detailed reasons might inadvertently make the disclosure objected to by the Respondent. Accordingly, to the extent that the Appellant's submissions submit that the Tribunal's reasons are inadequate, we do not agree. The reasons are sufficiently detailed to enable consideration to be given to the process of reasoning adopted by the Tribunal. To the extent that the submissions assert that the Tribunal failed to give "proper, genuine and realistic real consideration" to the material tendered by the Appellant, this complaint comes back to the fundamental dispute between the parties which we described earlier. The Tribunal's function is limited to a consideration of the GIPA applications and for the reasons earlier stated is not an enquiry into the conduct of the Respondent except to the extent that s 112 might be engaged and require the Tribunal's consideration.
13. We will now turn to the Appellant's submissions concerning the Respondent's claim for legal professional privilege over some of the documents sought to be accessed do by the Appellant.
14. One of the points raised by the Appellant was that legal professional privilege must be "proved" and not merely asserted. In the proceedings at first instance, the affidavit of a solicitor, Tomas Bush dated 11 April 2023 was tendered and his evidence was not contested. Mr Bush is a solicitor employed by the solicitor acting for the Respondent. In that affidavit he annexed a letter to the Appellant dated 5 April 2023 to which is attached a schedule of documents within the scope of the Summons to Produce. The schedule contains a brief description of each document followed by a brief explanation for the claim for privilege. Although the summons was set aside on the basis of lack of utility, this affidavit nevertheless demonstrates that the Respondent went to some trouble in supporting its claims for privilege. More importantly in the Respondent's confidential bundle of documents considered by the Tribunal at a confidential hearing there are documents in respect of which a claim for privilege is asserted. The Respondent's submissions state that during the confidential hearing, the Tribunal inspected relevant documents over which the Respondent claimed privilege and heard submissions. The Tribunal then ruled upon each of the Respondent's claims for privilege concerning each document. All of this is consistent with the proposition that the Tribunal required proof of privilege and not mere assertion.
15. The Appellant submitted that there was a denial of procedural fairness because the Appellant had been denied the opportunity to lead evidence contrary to the Respondent's claims for privilege and, in particular, the opportunity to adduce evidence establishing waiver. From the outset, the Appellant was highly critical of the Respondent's conduct and had the opportunity to put forward a case establishing that the Respondent's conduct was such as to waive the privilege in documents otherwise protected by legal professional privilege. We have already stated that the Tribunal's views on the operation of s 112 of the GIPA Act were correct and to the extent that that approach limited the ability of the Appellant in cross-examining the Respondent's witnesses, there was no denial of procedural fairness. The Appellant had an opportunity to tender evidence and put forward submissions to the effect that the Respondent's conduct constituted waiver. In short, we are of the view that there was no procedural unfairness suffered by the Appellant.
16. Nor did unfairness arise because of the fact that the Tribunal invoked its powers under s 107(2) of the GIPA Act to hold a confidential hearing in respect of the Respondent's claim for privilege in the absence of the Appellant. The Tribunal was appropriately exercising a statutory power designed to fairly adjudicate upon the Respondent's claims without, in the course of so doing, giving up the confidential information to the Appellant.
17. A further ground of appeal with respect to the Second Decision concerns the operation of s 112. We have already set out earlier our views about the operation of that section and that in our view no error was committed by the Tribunal at first instance. Further, the Tribunal did in fact consider s 112 following the completion of the administrative review applications. This commences at [271] of the Second Decision. The Tribunal was somewhat critical of Ms Critcher and Ms Salviejo stating that their decisions were "not optimal" and lacking detail of their "path of reasoning". However, the Tribunal found that their conduct was not evidence of bad faith.
18. The Respondent's submissions include reliance upon the decision in Saggers v Environment Protection Authority [2013] NSWADT 204 (Saggers) where the Tribunal held that the concept of "good faith" includes a subjective element. The Respondent submitted that if the relevant officer, in carrying out their functions under the GIPA Act, made a real and genuine attempt to answer the request for information and to perform the function correctly the officer will have exercised their functions in good faith: see Saggers at [50]-[51]. The question arises whether the evidence of Ms Salviejo summarised earlier was sufficient for the Tribunal to have concluded that the Respondent did not act in good faith. In our view the decision of the Tribunal was open on the evidence. Although it appears from the evidence that Mr Salviejo did not have a favourable impression of the Appellant, it cannot be said that the Tribunal's finding was contrary to the evidence or without an evidentiary basis.
19. A further submission made by the Appellant was that the Tribunal's reasons were inadequate. We have already dealt with this complaint insofar as it concerned the First Decision. In so doing, we made reference to and relied upon the decision in New South Wales Land & Housing Corporation v Orr [2019] NSWCA 231.
20. We agree with the Respondent's submissions that the reasons given by the Tribunal comply with the Tribunal's obligations and in particular comply with s 62(3) of the NCAT Act. As the Respondent's submissions state, the Tribunal's reasons identify the particular documents withheld from disclosure to the Appellant and give particular reasons for the withholding. The Tribunal did so by reference to the considerations listed in s 14 of the GIPA Act. Any more detailed reasons would run the risk of disclosing the very information the Respondent sought to be kept confidential.
21. We have reviewed the Appellant's extensive grounds of appeal recorded earlier in this decision and are of the view that all have been considered and reasons given for their rejection. Some grounds lack the necessary level of specificity to enable fair consideration. An example is the ground described in paragraph 4(3) where it is submitted that the Tribunal failed to consider the Appellant's evidence in exhibits A to F and MFI 4. Other grounds are caught up in the dispute concerning the way the Tribunal dealt with s 112 of the GIPA Act. An example is the Appellant's ground that the Tribunal erred in treating as "neutral" the Respondent's review in May 2023 and then abandoning the "offensive findings" of the Respondent's decision makers. Another example is the ground at paragraph 11 that asserts that the Tribunal erred in determining that the Appellant's personal factors were not provided when they were included in submissions to Ms Salviejo. Again, they concern the Appellant's desire to show that s112 should be considered because the Respondent's decision makers lacked good faith.
22. In conclusion, we are of the view that all grounds of appeal should be rejected and that the appeal must be dismissed.
23. We have not specifically considered whether the grounds of appeal raise questions of law or require leave. This is because on either basis we are of the opinion that the grounds lack merit.

Costs

1. At the hearing of the appeal, the Respondent submitted that if the appeals are dismissed costs should follow the event. In our tentative view that may not be correct and the correct position is arguably that the party seeking costs must establish that there are special circumstances warranting an award of costs: see s 60 of the NCAT Act. In the circumstances, we will make directions for there to be the filing of brief submissions concerning costs. They will be limited and the parties should be aware that, in the absence of an application to to set aside this direction, submissions in excess of 20 pages will not be considered.

Orders

1. The final orders of the Tribunal are as follows: 1. In respect of both appeals, leave to appeal refused. 2. Both appeals dismissed. 3. If the Respondent seeks costs of the appeals the Respondent must file and serve written submissions not exceeding 20 pages within 21 days. 4. If the Appellant opposes the Respondent's costs application the Appellant must file and serve submissions within 21 days thereafter, such submissions not to exceed 20 pages. 5. The submissions shall include whether the parties consent to the Tribunal determining costs on the papers and thus making an order for a further hearing to be dispensed with.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2024