Klaric v Commissioner of Police

Tribunal's decision - the issues and the orders

1. The Tribunal identified the decision under review as the Commissioner's decision of 16 August 2018, as supplemented by the decision of 4 June 2019. The Tribunal then identified the issues, in general terms, as being whether the Commissioner: (a) holds the information sought by Mr Klaric; (b) can refuse to deal with aspects of the access application because he has already decided a previous application (s. 60(1)(b) GIPA Act); and (c) can refuse access to some information on the basis that there are public interest considerations against disclosure and, in particular, whether there is an overriding public interest against disclosure in circumstances where it could reasonably be expected disclosure would: (i) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14 Table, cl 1(d)); (ii) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (s 14 Table, cl 1(e)); (iii) prejudice the effective exercise by the agency of the agency's functions (s 14 Table, cl 1(f)); (iv) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (s 14 Table, cl 1(g)); (v) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (s 14 Table, cl 1(h)); (vi) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (s 14 Table, cl 2(b)); and (vii) reveal an individual's personal information (s 14 Table cl 3(a)).
2. The Tribunal made the following orders: (1) The Tribunal notes that the information sought by the applicant in Item 25 was released to the applicant during the hearing. (2) The Tribunal also notes that the information redacted from the cover sheet of the s150 pdf file referred to in Item was agreed to be released to the applicant. (3) The decision of the respondent is otherwise affirmed.

The appeal

1. Mr Klaric presented five broad grounds of appeal. First, he said that it had not been a fair hearing. Secondly, many of the points made in the decision are incorrect. Thirdly, the Tribunal accepted that certain documents do not exist, when they do exist. Fourthly, release of redacted parts of certain documents is in the public interest. Fifthly, the decisions were against the weight of evidence. Later in his submissions, Mr Klaric challenged the Tribunal's findings about the Commissioner's decision to refuse to deal with his application to the extent that it was substantially the same as a previous application he had made in 2013. Mr Klaric requested a "re-trial" because the Tribunal has made error in judgment and has been deceived or influenced by the police.
2. Mr Klaric is entitled to appeal from the Tribunal's decision "on a question of law": Civil and Administrative Tribunal Act 2013 (NCAT Act), s 80(2). The Appeal Panel must give permission, or 'leave' before a person can appeal on grounds other than a question of law: NCAT Act, s 80(2) and Collins v Urban [2014] NSWCATAP 17.
3. In the process of addressing Mr Klaric's grounds of appeal, we will make findings as to whether he has identified a question of law and, if not, whether we should allow him to appeal.

Why was the hearing unfair?

1. The first ground of appeal is that the Tribunal conducted an "unfair hearing" because there was a confidential hearing and "the final decision was made without my presence and I was not invited or informed of the meeting." Mr Klaric received a copy of a letter from the solicitors for the Commissioner dated 9 July 2019 advising that they had requested that the matter be relisted for a further confidential hearing. Mr Klaric says he did not receive any notice of the confidential hearing from the Tribunal and did not attend that hearing.
2. The Tribunal heard this matter on 9 May 2019. Following that hearing, the Tribunal directed the Commissioner to file and serve any further evidence and submissions in relation to Item 20. The Tribunal gave Mr Klaric an opportunity to respond to that material. The Tribunal also directed that the parties advise whether a further oral hearing is required in relation to Item 20.
3. Police undertook further searches and made a supplementary decision on 4 June 2019 in relation to Item 20. Police gave Mr Klaric access to some further information. By letter dated 9 July 2019, the Commissioner asked that the matter be re-listed for a further confidential hearing and provided a copy of that request to Mr Klaric. The Tribunal did not advise Mr Klaric that a confidential hearing had been scheduled or that his attendance was not required.
4. Mr Klaric characterised the Tribunal's decision as 'non-independent' because "it was influenced by the party who holds the information". However, he is not accusing the Tribunal of "colluding with police but that NCAT was deceived by police."

Legal principles

1. The Tribunal is subject to the rules of natural justice - otherwise known as procedural fairness: NCAT Act, s 38(2). In particular, the Tribunal "is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": NCAT Act, s 38(5). That requirement means that, in general, all parties attend the hearing and the hearing is open to the public: NCAT Act, s 49(1). However, the Tribunal has power to order that "a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason": NCAT Act, s 49(2).
2. The Tribunal may also exclude a party from a hearing. Under s 64(1)(d) of the NCAT Act, the Tribunal may prohibit disclosure to a party of "evidence given before the Tribunal or of the contents of a document lodged with the Tribunal or received in evidence": NCAT Act, s 64(1)(d). In proceedings under the GIPA Act, the Tribunal "must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure": GIPA Act, s 107(2).

Consideration

1. The Tribunal formed the opinion, set out in s 107(2) of the GIPA Act, that it was necessary to receive evidence and hear argument in the absence of Mr Klaric to prevent the disclosure of information for which there is an overriding public interest against disclosure. Having formed that opinion, the Tribunal was required to exclude Mr Klaric from the hearing. By doing so, it did not make an error of law.
2. The Tribunal did not tell Mr Klaric that a confidential hearing was being held or that his attendance was not required. The Tribunal could have done so without breaching s 107(2) of the GIPA Act. However, the fact that the Tribunal did not give Mr Klaric notice of a hearing that was to be held in his absence, does not breach the rules of procedural fairness.
3. Mr Klaric characterised the Tribunal's decision as 'non-independent' because "it was influenced by the party who holds the information". This assertion does not fit within any of the procedural fairness rules about bias or apprehended bias. An apprehension of bias will exist if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues in dispute: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR at 344 [6]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at 146 [21]. Mr Klaric's submission that the Tribunal was somehow deceived by police does not identify a question of law.

Refusal to deal with part of the application - Items 1-12

Legal principles

1. Relying on s 60(1)(b) of the GIPA Act, the Commissioner refused to deal with Items 1 - 12 of the present application. That provision allows an agency to refuse to deal with an access application if: (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application.
2. The Tribunal has power to review a "decision to refuse to deal with an access application": GIPA Act, s 80(c).

Tribunal's decision

1. The Tribunal set out the terms of Mr Klaric's previous application under the GIPA Act dated 10 October 2013. Mr Klaric requested: [A] copy of all the records, personal information, notes, opinions, remarks et cetera held, about myself, in the Police files and computer systems that are accessible to the Police, including the information available to the Police on their vehicle mobile data terminals. Basically all information and records linked to my name.
2. The Tribunal noted at [11], that in response to that application, the Commissioner had provided Mr Klaric with certain information relating to the period before 19 June 2013. The Tribunal described each item and the reasons for the Commissioner's decisions at [12] - [23]. In relation to items 8 and 9, the Tribunal wrote at [23], that: The Commissioner states that no notebook entry by Constable Cairns or a COPS record or other information was located in response to the 2013 application.
3. The Tribunal also recorded Mr Klaric's submissions including that some of the information he requested exists and is held by the Commissioner and that some of the information provided is not authentic.
4. At [31], the Tribunal was satisfied that "the information sought in the present application is substantially the same as that sought in the 2013 access application." The second part of the test in s 60(1)(b) is that "there are no reasonable grounds for believing that the agency would make a different decision on the application."
5. The Tribunal summarised Mr Klaric's submission at [33]: Mr Klaric insists that there is other information which exists which should have been produced in response to the 2013 application. As was apparent at the hearing, however, this is speculation on his part. The Commissioner's response to the 2013 application was to provide certain information to Mr Klaric. Mr Klaric sought internal review of that decision and on that review was in fact provided with further information. Other information was withheld as the Commissioner formed the view that there was an overriding public interest consideration against disclosure. Mr Klaric has not provided any submissions or evidence which would indicate that that decision was in error. Indeed, as noted above, the Information Commissioner was satisfied that the Commissioner's decision was justified.
6. The Tribunal came to the following conclusion at [34]: I am satisfied that insofar as the present application seeks access to information which pre-dates 19 June 2013, there are no reasonable grounds for believing that the agency would make a different decision on the present application. Both components of s 60(1)(b) of the GIPA Act are therefore established in relation to items 1 to 12.

Mr Klaric's submissions

1. In relation to items 7 - 10, Mr Klaric submitted that the Commissioner only provided one small pocket book page in response to his application and claimed that no further information is held. Mr Klaric states that more pages were written "because the transcript and the length of my recording testifies and is evidence of there being more notes." Mr Klaric submits that there must be records for this incident when a lengthy formal investigation was conducted into the conduct of police officers. He compares this with the 93 pages of investigation notes that were provided in relation to another incident.
2. As well as submitting that the Commissioner holds more information about him, Mr Klaric submitted that some of the information provided in response to Items 7 - 10 is false. He alleges that police falsely claim that he said and did things that he did not say or do. Mr Klaric says he has dash cam video and audio evidence which support his version of events. That material was not before the Tribunal.
3. Mr Klaric submitted that "it is not right for NCAT in just agreeing with the police and claiming a particular item was previously dealt with and rejected and therefore it will not be dealt with again because there is no reason why a different outcome will be decided this time." He says he wants to "get these false records released so that I can have them corrected and stop the police continually targeting me with false accusations and arrests." Mr Klaric's comment on the Tribunal's finding is that, "of course it was previously knocked back. Why would police want to release information that will expose unlawful behaviour. That is why they rejected it the first time and second time and through the Information Commissioner and not through NCAT."

Consideration

1. Mr Klaric does not dispute that the Commissioner has already decided a previous application for the information in Items 1 - 12. His appeal is about the merits of the previous decision. Mr Klaric continues to allege that the Commissioner holds more information than it has given to him and that some of that information is false.
2. When reviewing a decision under s 60(1)(b), the Tribunal is not required to assess the merits of the previous decision. In relation to Mr Klaric's application, the Tribunal was not required to review the Commissioner's previous decision that he did not hold certain information. Nor was the Tribunal required to review the truth or falsity of what is written in the information provided by the Commissioner. Rather, the Tribunal is required to be satisfied that there are no reasonable grounds for believing that the agency would make a different decision on the application.
3. The Tribunal understood the meaning of s 60 and correctly applied it to the facts of this case. It would have been an error for the Tribunal to embark on a re-hearing of the merits of Mr Klaric's previous applications. Mr Klaric has not identified a question of law or given a persuasive reason for us to grant leave to appeal on a question other than a question of law. This ground of appeal is dismissed.

Legal principles

1. The Tribunal has power to review "a decision that government information is not held by the agency": GIPA Act, s 80(e). The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. The Tribunal noted that, in reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches (at [65]). It also recognised that the agency has the burden to justify its decision that it does not hold information, and that this issue is different from whether its search for information was sufficient.
2. Section 53 provides that: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

Tribunal's decision

1. The Tribunal identified the following information as not being 'held' by the Commissioner: 1. Item 13: On 14 August 2015, police officers knocked on Mr Klaric's door. Mr Klaric says he heard a female voice on Sergeant O'Connor's radio say, "take extreme caution against the male occupant of this residence, he has severe warnings against him." The Tribunal's understanding of Mr Klaric's request for information in Item 13 was that he was seeking information upon which the statement he said he heard over radio was based. The Tribunal summarised the evidence of Matthew Smith, Senior Advisory Officer, infoLink, NSW Police Force about Mobile Data Terminals in police vehicles and noted that police maintained that they had provided Mr Klaric with all the relevant COPS event records, with certain redactions. 2. Item 18: Mr Klaric seeks the notebook records relating to the 14 August 2015 incident prepared by Sergeant O'Connor which he says must exist. Mr Smith gave evidence that no details of any such calls are recorded in the COPS event relating to the incident and that NSW Police Force does not have a record of telephone calls made by police officers when performing their duties. 3. Item 21: Mr Klaric seeks access to all police records relating to an incident on 31 December 2016. Mr Smith gave evidence that there were no incidents involving Mr Klaric recorded for this date on the COPS database. Mr Klaric does not accept that in circumstances where he was interviewed at Merrylands Police Station for running into two police women with his vehicle, that no information exists. 4. Item 23: Mr Klaric requested that he be given access to the notebook entry made by Constable Leahy in relation to an incident on 30 July 2017. Mr Smith gave evidence that no notebook entry by Constable Leahy has been located. 5. Item 26: Mr Klaric requested information made about him by Gerald Luck during an interview at the police station on 30 July 2017. At [59], the Tribunal wrote that: "Mr Klaric also seeks any notebook notes or computer entries made by Gerald Luck regarding his interview with him at the police station (Item 26). He states that a record should have been made of the interview. Mr Smith states that he contacted Constable Gerald Luck to undertake a search for any entry related to Mr Klaric on 30 July 2017. Constable Luck informed him that no records are held. The Commissioner submits that no record of the interview is held." Mr Klaric is convinced on the basis of information produced in response to another investigation that Gerald Luck would have created notes and paperwork following the interview. He would also have been interviewed during the formal investigation and notes would have been created.
2. At [69] - [71], the Tribunal set out its reasoning and conclusions about information that Mr Klaric submitted was 'held' by the Commissioner: "While it is unfortunate the documents relevant to Item 20 of Mr Klaric's request were not identified until close to the time of the first hearing, I am not satisfied that the fact that particular document was located establishes that other material exists. Mr Klaric makes various assertions that certain information that he seeks, primarily notebook and other entries relating to various incidents, should exist. The assertion appears to be made on the basis of his belief that in the normal course of policing these entries and records would be made. I accept these assertions are reasonable in order to at least establish the possibility that information of the kind sought exists. It remains to consider therefore whether in all the circumstances the search efforts made by the Commissioner to locate the requested documents have been reasonable. Mr Matthew Smith has set out the steps which were taken to identify information caught by the access request made by Mr Klaric. This involved searches of the COPS database and contact with the Fairfield Police Area Command and the Ryde Police Area Command seeking access to records held in relation to Mr Klaric, including notebook entries. Mr Smith also made direct contact with other areas of the NSW Police Force and individual officers in relation to some items requested by Mr Klaric. I am satisfied that the searches that were undertaken by the Commissioner were reasonable. Undertaking additional searches would involve a substantial and unreasonable diversion of resources of the respondent, and accordingly need not be undertaken. I am therefore satisfied that the decision that the Commissioner does not hold information is justified."

Mr Klaric's submissions

1. As outlined above, on appeal, Mr Klaric reiterated the basis for his belief that certain information should exist. He criticised the Tribunal's acceptance that "certain documents don't exist."

Consideration

1. Contrary to Mr Klaric's understanding, the Tribunal did not find that "certain documents don't exist". Rather, the Tribunal accepted that Mr Klaric's assertions establish the possibility that information of the kind sought does exist. But the Tribunal was satisfied, on the basis of all the evidence including that of Mr Smith, that the decision that the respondent does not hold information was justified. In coming to that conclusion, it took into account that the searches undertaken on behalf of the respondent were reasonable. Mr Klaric has not identified any question of law or other error in relation to the Tribunal's finding. This ground of appeal is dismissed.

Overriding public interest against disclosure in relation to redacted information - notebook entry of 17 July 2016, 30 July 2017 COPS report and item 20

Legal principles

1. There is a presumption in favour of disclosure of information unless there is an "overriding public interest against disclosure": GIPA Act, s 5. There is a general public interest in favour of the disclosure of government information: GIPA Act, s 12. There will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: GIPA Act, s 12 and 14.
2. Section 12 gives various examples of public interest considerations in favour of disclosure including that: (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
3. The public interest considerations against disclosure are set out in a table to s 14 of the GIPA Act. The Tribunal correctly summarised the effect of these provisions at [80] - [85].

Tribunal's decision

1. At [72], the Tribunal described the redactions the Commissioner made relying on overriding public interest considerations against disclosure: Redactions were made to two documents released to Mr Klaric in the 16 August 2018 decision - the notebook entry by Constables Osbourne and Moran about the 17 July 2016 incident and the COPS report of the 30 July 2017 incident. Redactions were also made to the documents released in the 4 June 2019 decision in relation to Item 20.
2. The Tribunal agreed with the parties' characterisation of the public interest considerations in favour of disclosure. The Commissioner highlighted the following two factors: that the records generally contain information which relates to Mr Klaric or which is known to him; and the public has a general right to access government information held by agencies. In his supplementary decision of 4 June 2019, the Commissioner also identified the general public interest in the disclosure of information which could reasonably expect to reveal or substantiate that an agency or member of that agency has been engaged in misconduct or negligent, improper or unlawful conduct. Mr Klaric also highlighted that consideration.
3. The Tribunal dealt first with the notebook entry of 17 July 2016 and the 30 July 2017 COPS report. The Tribunal noted that confidential evidence was provided by Senior Constable Debbie Taylor-Johnson in relation to the redacted information. The Tribunal summarised that evidence at confidential paragraphs [88] to [92]. The Tribunal reached the following conclusions in relation to Items 13, 17 and 23 at [93] - [96]: I agree with the submission of the Commissioner that there is a significant public interest in ensuring that no prejudice is suffered by the NSW Police Force in exercising its crucial policing functions and that this public interest consideration against disclosure should be given substantial weight. I am also mindful, as the Commissioner has noted, that the information may be described as the personal information of Mr Klaric which is a factor in favour of disclosure which should also be given considerable weight. Some information in the 30 July 2017 COPS report was redacted on the basis that its disclosure would reveal personal information (cl 3(a)). The information concerned is information about victims and witnesses. While the victims and witnesses are police officers whose names have been disclosed, I am satisfied that the redacted information is personal information about them which has not already been publicly disclosed as it concerns addresses, telephone numbers and other personal identifiers. I am therefore satisfied that disclosure of the information could reasonably be expected to reveal an individual's personal information. The public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. [NOT FOR PUBLICATION] Mr Klaric has not advanced any particular argument about why he should be provided with the personal information of the officers concerned other than to rely on the public interest considerations in favour of disclosure as discussed above.
4. The Tribunal separately considered item 20. That item was the subject of the supplementary decision made on 4 June 2019. The Commissioner released, with redactions, a report of an investigation into a complaint Mr Klaric had made against police. The Commissioner relied on several public interest considerations against disclosure in the Table to s 14. Detective Chief Inspector Newton gave confidential evidence about the investigation of complaints about police officer misconduct. The Tribunal accepted that evidence.
5. At [103] to [108], the Tribunal identified and balanced the public interest considerations against disclosure and the public interest considerations in favour of disclosure. The Tribunal affirmed the Commissioner's decision "other than in relation to the information which the Commissioner released or agreed to release to Mr Klaric during the course of the proceedings."

Mr Klaric's submissions

1. Mr Klaric disagrees with the Tribunal's conclusion. He says that the release of his information would be in the public interest "because it would expose police misconduct, and the release of the requested documents would definitely compromise and prejudice the police when their bad deeds were exposed, something they don't want." He disputes that the release of the requested information will prejudice the police in the effectiveness, integrity, prevention, detection of crime and the enforcement of the law.

Consideration

1. Mr Klaric is at a disadvantage in making submissions about information that has been redacted because he does not know what the information is about. We have reviewed the Tribunal's reasons, including the confidential parts of those reasons. We are satisfied that the Tribunal made relevant findings of fact, accurately stated the law and correctly applied the law to the facts as found. These grounds of appeal are dismissed.

Mr Klaric's submissions

1. Item 25 requests that the names of three police officers who he says arrived at the scene following an incident in West Ryde on 30 July 2017. He said that one officer arrived in vehicle RY 16 and another in RY 15. The orders the Tribunal made included the following notation: The Tribunal notes that the information sought by the applicant in Item 25 was released to the applicant during the hearing. (Emphasis added.)
2. The background to the Tribunal's notation is at [58] of the decision: Mr Klaric states that other police officers arrived at the scene of the incident and he requests that he be given their names (Item 25). Following the hearing Mr Klaric was provided with the names of the officers in the relevant vehicles. (Emphasis added.)
3. At [108], the Tribunal affirmed the Commissioner's decision "other than in relation to the information which the Commissioner released or agreed to release to Mr Klaric during the course of the proceedings."
4. The notation in the orders suggests that police gave Mr Klaric the information during the hearing, whereas at [58], the Tribunal states that police gave the information following the hearing. Paragraph [108] suggests that the material was "released or agreed to (be) released . . . during the course of the proceedings." Mr Klaric states that he did not receive any information until after the hearing. That inconsistency in the Tribunal's decision is immaterial and does not justify giving permission to appeal. More significant is Mr Klaric's contention that he was not provided with the information he requested.
5. Mr Klaric says he gave police a physical description of the officers and the number plate of the vehicles they were driving. Following the Tribunal's first hearing, the Commissioner provided Mr Klaric with the names of two police officers who were driving vehicle RY 16. The letter to Mr Klaric added that "it can be confirmed that neither of those officers was at the scene." According to Mr Klaric, those officers fit the physical description he provided and were at the scene. Mr Klaric submitted that he was not provided with the names of the officers who were present and that the Commissioner was wrong to deny that the officers he described were at the scene.

Consideration

1. Mr Klaric may apply for access to "government information": GIPA Act, s 9. "Government information" is defined in s 4 to mean "information contained in a record held by an agency." An agency is "not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information": GIPA Act, s 75(1). But an agency is not required "to create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency": GIPA Act, s 75(2)(c). It follows that the Commissioner is not obliged to answer a question such as who was at a particular place at a particular time. The limit of the Commissioner's obligation is to provide a record held by the agency which provides that information.
2. In this case, the Commissioner provided Mr Klaric with the name of police officers who were driving vehicle RY16. We assume that that information was contained in a record of some kind. The Tribunal noted that the information had been provided to Mr Klaric at [58] of the reasons and in the notation to the order. The Commissioner also volunteered the information that certain police officers were not at the scene. The Commissioner was not required to provide that information under the GIPA Act because it was not part of any record.
3. It follows that Mr Klaric has not identified any legal or factual error in relation to this aspect of the Tribunal's decision. The only qualification to that conclusion is that the Tribunal made an immaterial factual error about when the Commissioner gave Mr Klaric the information.

Orders 1. Leave is refused for Mr Klaric to appeal on questions other than questions of law. 2. The appeal is dismissed.

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: 27 July 2020