McNeill v Clarence Valley Council [2025] NSWCATAP 184 | Case summary

McNeill v Clarence Valley Council [2025] NSWCATAP 184 | Case summary | Zoe

[51]

On 5 March 2024, Mr Craigh McNeill (the appellant) made an access application under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) to Clarence Valley Council (the Council or the respondent). In response to the access application, the respondent provided certain documents and withheld (or redacted) other documents on the basis that information contained in those documents is subject to "an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)" under s 14 and cl 5(1) of Sch 1 to the GIPA Act. We refer in these reasons to legal professional privilege or privilege.
On 13 May 2024, the appellant sought administrative review of the decision made by the respondent on 4 April 2024. The respondent subsequently reconsidered its 4 April 2024 decision, and issued a reconsideration decision on 1 July 2024 (referred to in these reasons as the "1 July 2024 Decision"). The Administrative and Equal Opportunity Division (AEOD) of the NSW Civil and Administrative Tribunal (the Tribunal or NCAT) affirmed the 1 July 2024 Decision: see McNeill v Clarence Valley Council [2024] NSWCATAD 325. It is this Tribunal decision which is under appeal.
The appellant says that the Tribunal made errors on questions of law and errors relating to the merits of the decision. For errors on questions of law, no leave to appeal is required under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). For his grounds which do not involve error on questions of law, the appellant seeks leave to appeal: NCAT Act, s 80(2)(b).
The respondent submits that the appeal brought by the appellant has no basis in fact or law. The respondent says it has searched and released documents held by it, other than those withheld because they contain excluded information in respect of which there is a conclusive presumption against disclosure under the GIPA Act at Sch 1, cl 5.
For the reasons which follow, we have decided to allow the appeal on several grounds which raise questions of law (and to grant leave to appeal on the merits in relation to a further ground). We set aside the Tribunal's decision, with the matter to be reconsidered by the AEOD in accordance with the guidance provided in these reasons for decision. Further evidence is to be allowed in the reconsidered Tribunal proceedings.

[52]

In 2022 and 2023, there were communications between Yamba Community Action Network Inc. (Yamba CAN) and the respondent concerning the possible demolition and rebuilding (or refurbishment) of a community centre. On 19 December 2022, the law firm Sparke Helmore was engaged by the respondent in relation to allegedly defamatory statements made by several members of Yamba CAN about Council staff, including the General Manager Ms Black. On 18 July 2023, a Concerns Notice relating to alleged defamatory statements made by Yamba CAN (and requesting rectification action) was issued by the law firm, containing the opening statement that "We act for Clarence Valley Council". At some point in the second half of 2023, Ms Black in her private (or individual) capacity retained the law firm to act on her behalf (and not on behalf of the respondent).
On 5 March 2024, the appellant lodged an access application with the respondent for government information under the GIPA Act, resulting in the respondent's first decision dated 4 April 2024. In relation to the request for information about the Concerns Notice dated 18 July 2023 and associated correspondence between the respondent and Sparke Helmore (Request 1), the appellant was informed that his request concerned Ms Black's "private matter" and that this information "is considered private and confidential" and "not within the scrutiny of Council". In relation to other parts of the access request (Requests 2, 3, 4 and 5), the respondent provided documentation held by the respondent, with redactions made on the basis that information is subject to legal professional privilege, relying on the public interest consideration against disclosure of such information under cl 5(1) of Sch 1 to the GIPA Act.
Following directions made by NCAT after a case conference on 3 June 2024, the respondent undertook further searches in response to the access application. The respondent issued the 1 July 2024 Decision, producing further documents. The respondent indicated that the Concerns Notice "is not a document Council has in its document management system or any record of". As to other documents which were held by the respondent, access was refused because the respondent determined that information is subject to an overriding public interest against disclosure (legal professional privilege). In that notice of decision, the respondent included the statement that Ms Black "was the client in this client-lawyer relationship; therefore her privilege is legally protected, even if she was acting in a private matter or in her capacity as a General Manager". The respondent further stated that Ms Black "expressly decided not to waive her legal privilege". These same statements had been included in the respondent's earlier 4 April 2024 decision.
Additional documents responsive to the access application were provided to the appellant on 21 August 2024.

[72]

While the Tribunal records issue (1) as whether the Concerns Notice was held by the respondent, it is apparent from the Reasons, and from a review of the transcript of the hearing, that the Tribunal understood the requested information was not confined to the Concerns Notice.
In relation to issue (1), the appellant contended that the respondent did not conduct adequate searches for the requested information. The Tribunal stated that the appellant bore the "practical onus" of establishing that there are reasonable grounds that further documents exist and are held by the respondent. In cross-examination, the appellant questioned the Council's witness about whether the respondent had used metadata searches for the requested information. The Council's witness explained the search process she had adopted and that she did not know how she could search metadata, but that she had conducted reasonable searches. The Tribunal accepted the respondent's evidence, and was satisfied that reasonable searches had been carried out by the respondent as required by s 53 of the GIPA Act.
The Tribunal found that the documents relating to the Concerns Notice were not held by the respondent (Reasons at [134]). While the Tribunal does not refer specifically to the Concerns Notice at [134], read in the context of the entirety of the Reasons, we understand the Tribunal's reference to "the documents relating to the Concerns Notice" to include the Concerns Notice itself.
In relation to issue (2), the appellant contended that the respondent's claim for legal professional privilege was invalid because the respondent's General Manager had disclosed the information (including the Concerns Notice and letters from Sparke Helmore) to Clarence Valley Councillors and had therefore waived privilege, and that it was in the public interest for the respondent to produce the documents subject to the privilege claim. It is apparent from the Tribunal's Reasons at [30] that the appellant had a copy of legal advice over which the respondent had claimed privilege which had been given to him by a Councillor and not by the respondent.
The Tribunal upheld the claim for legal professional privilege in respect of the withheld documents held by the respondent. The Tribunal stated at [138] of the Reasons that it was satisfied there was no evidence that Ms Black had waived her claim for legal professional privilege, nor did she authorise any Councillor to release any information relating to the Concerns Notice to the appellant. The Tribunal was "satisfied that there is a conclusive presumption that there is an overriding public interest against disclosure of those documents": [139].

[74]

An appellant is required to identify with precision the question or questions of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 (Ferella) at [6], [22]; Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [48]; Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Wollondilly) at [28]. Absent leave to appeal, the question of law is the subject matter of the appeal, and the ambit of the appeal is confined to it: Ferella at [3], [22]. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [30]-[34], an Appeal Panel helpfully provided some examples of questions of law (derived from case law), noting that the list provided was not intended to be exhaustive.
A question of law in the context of s 80(2)(b) should be interpreted similarly to "a question of law alone" or a "pure question of law". It excludes questions of mixed fact and law and, of course, questions of fact (at least unless they are facts of a jurisdictional nature): see eg Wollondilly at [23]. It may be appropriate and necessary, on appeal when a question of law arises as to whether proceedings were procedurally fair, to make findings about what occurred at the hearing: Donohoe v Albulario [2025] NSWSC 9 (Donohoe) at [33].
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 (Collins) at [84]. It is only if the decision is affected by sufficient doubt to warrant its reconsideration on appeal, that leave will be granted. Usually, it is appropriate to grant leave where there are issues of principle, questions of public importance or matters of administration or policy; an injustice which is reasonably clear and beyond what is merely arguable, such that it would be unjust to allow the Tribunal's findings to stand; a factual error that was unreasonably arrived at and clearly mistaken; or where the Tribunal went about its fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed (see also Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]).

[84]

(1) Misconstruction of GIPA Act - meaning of government information: Whether the Tribunal misdirected itself as to the meaning of "record" or "government information" in the GIPA Act by considering that information that may be located within Council records relating to "private" matters fell outside the purview of the GIPA Act.

(2) Misconstruction of ss 105 and 53 of GIPA Act: Whether the Tribunal misconstrued the GIPA Act (at ss 105 and 53), or failed to apply correct legal principles (or applied wrong legal principles), in the assessment of evidence in finding that the respondent had conducted reasonable searches. This is relevant to the Tribunal's review of the agency's decision that requested government information is "not held by" the respondent.

(3) Misapplication of GIPA Act in the consideration of legal professional privilege and waiver of privilege: Whether the Tribunal erred in its consideration of legal professional privilege (and its waiver) in relation to withheld information, by failing to carry out the required statutory task (or not applying the correct legal test) contemplated by the GIPA Act (including Sch 1, cl 5). The Tribunal failed to determine what legal professional privilege was claimed when and by whom, with follow on effects to waiver considerations, and failed to ensure, or be satisfied, that the respondent complied with Sch 1, cl 5(2) which requires an agency to consider whether it would be appropriate to waive legal professional privilege. The Tribunal also failed to give reasons in respect of these issues.

(4) Misconstruction of s 54 of the GIPA Act: Whether the Tribunal misconstrued s 54, or failed to apply the correct legal principles, when considering the consultation which took place between the respondent and Ms Black under that statutory provision.

(5) Failure to afford procedural fairness: Whether the Tribunal failed to afford the appellant procedural fairness in the conduct of the hearing by curtailing his cross-examination and oral submissions in the manner contended.

[89]

At the appeal hearing, the appellant sought leave to rely on four affidavits as new evidence in the appeal. He said this evidence could not have been obtained with reasonable diligence in the Tribunal proceedings below; that there is a high degree of probability that, if admitted, there would have been a different result in those proceedings; and the evidence is credible, referring to the factors set out in ZND v ZNE [2020] NSWCATAP 34 at [62]. In our view, not all of these features need be present before an Appeal Panel may decide to admit further evidence in an appeal which is a rehearing under s 80(1) of the NCAT Act. An Appeal Panel has discretion to admit further evidence if the interests of justice require it.
We gave leave for admission of the McNeill Affidavit which contains evidence about the conduct of the Tribunal's hearing, with transcript excerpts, because it is relevant to his procedural fairness appeal ground and could not have been obtained with reasonable diligence in the proceedings below.
The appellant did not press for admission of an affidavit sworn by a deponent, described by the appellant as an information technology professional, about metadata searching. The appellant said the affidavit would be relevant in the event of a new hearing or rehearing of the administrative review application.
We reserved our position on the admission of two further affidavits on which the appellant sought to rely - the Shephard Affidavit, and an affidavit of William Day, former Councillor of Clarence Valley Council, affirmed 30 January 2025 (the Day affidavit). The Day affidavit relates to the deponent's searching of his email account when he was a Councillor of the respondent and his belief at the time that it was the respondent which had issued the Concerns Notice of July 2023 and not Ms Black. The Shephard Affidavit contains information about the receipt by Mr Shephard (Chairperson of Yamba CAN) of the Concerns Notice dated 18 July 2023 from Sparke Helmore, and exhibits correspondence with Sparke Helmore, emails, social media posts, timelines, reports and transcripts. At [30] of the Shephard Affidavit, the deponent refers to a report by the NSW Information and Privacy Commission (IPC) of August 2023 (exhibited at CS-1) in relation to Clarence Valley Council's decision on a different access application and says that similar issues (about the adequacy of searches) are raised in respect of the Council's response to the appellant's access application made on 5 March 2024.
The respondent submitted that that Shephard and Day affidavits are not relevant to the reviewable GIPA decision because they contain background and opinion on the evolution of the Concerns Notice, which is a document which the Tribunal below accepted was not information held by the respondent.
The appellant did not provide any reason as to why he could not have adduced the material in the Shephard and Day affidavits in the Tribunal proceedings at first instance, other than the fact he was unrepresented at that time. Subject to one exception, we are not persuaded that we should grant leave for the admission of this further evidence because it could have been obtained with reasonable diligence in the Tribunal proceedings. The exception relates to Mr Shephard's evidence at [30] of the Shephard Affidavit and the accompanying Exhibit CS-1. The appellant relies on this evidence as relevant to his costs application, and we allow the tender of this material on that basis.

[95]

Firstly, we make the observation that, in affirming the respondent's 1 July 2024 Decision, the Tribunal should not be taken to have agreed with the facts found or the reasons provided by the respondent in that notice of decision. The Tribunal's affirmation of the respondent's reviewable decision is an affirmation of the ultimate conclusions reached, not the reasoning process or fact-finding by the respondent as set out in the 1 July 2024 Decision.
Secondly, while the appellant does not contend in this appeal ground that the Tribunal's reasons are inadequate, we think the principles applied in relation to adequacy of reasons provide useful guidance when reading the written reasons of the Tribunal in the decision under appeal. The courts have indicated that allowances should be made when reviewing the adequacy of reasons of tribunals: see eg New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) at [70]. For example, written Tribunal reasons should be read fairly, and considered in their entirety. Further, "there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic); Orr at [77].
In terms of its findings (as set out in the Reasons), the Tribunal accepted the affidavit and oral evidence of the Council's witness (Ms Moar) in reaching a state of satisfaction that reasonable searches had been conducted and "the documents relating to the Concerns Notice were not held by the respondent" (Reasons at [134]). That evidence is described by the Tribunal at [52] - [104] of the Reasons. The witness indicated that searches were made of the respondent's document management system (ECM platform), which was described as "recording formal correspondence between the respondent and customers/constituents and other regulatory agencies". The witness also gave evidence, recorded at [62] of the Reasons, that "the respondent does not hold a copy of the Concerns Notice because it was a personal matter between the General Manager and two members of Yamba Can Inc. The Concerns Notice and invoice are not stored in the ECM."
At [66] of the Reasons, the Tribunal observed that Ms Moar had given evidence that the Concerns Notice "is not held by the respondent because it relates to a personal matter involving the General Manager and two members of Yamba CAN Inc".
That part of Ms Moar's evidence, as recorded at [62] of the Reasons and referred to by the Tribunal at [66], is somewhat ambiguous or unclear. On the one hand, Ms Moar stated that the respondent "does not hold" a copy of that document because it relates to a "personal matter". She gave evidence, on the other hand, that the Concerns Notice was not located by the searches conducted, and that she was of the view that reasonable searches had been conducted.
Read fairly and considered in their entirety, we do not think the Tribunal's Reasons state a conclusion, or otherwise indicate, that it considered information that may be located within Council records relating to "personal matters" is outside the purview of the GIPA Act (because it does not meet the definition of "government information"). Rather, in making its finding that the documents relating to the Concerns Notice (which we think includes the Concerns Notice) were "not held by" the respondent, we understand the Tribunal to have accepted Ms Moar's evidence that the Concerns Notice (and documents relating to it) were not stored on the ECM, and that reasonable searches had been conducted.
We understand the Tribunal's statement at [66] of the Reasons, referred to above, to be a description of the respondent's evidence, rather than a view endorsed or accepted by the Tribunal that information relating to a "personal matter" that may be located on Council records, falls outside the purview of the GIPA Act.
This appeal ground fails.

[106]

The appellant submits the Tribunal failed to apply the principles as set out in Wojciechowska, including at [37]-[38] and [44] of that decision. He says that, on the evidence before it, the Tribunal was on notice that the respondent had failed to conduct reasonable searches as required by s 53. He submits that the Tribunal failed to apply the GIPA Act correctly by insisting on the access applicant bearing the "practical onus" to establish there were reasonable grounds for belief that further documents existed and were held by the respondent. It is further submitted that the Tribunal needed to consider any evidence "which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency": Wojciechowska at [44](3).
The appellant says that the respondent's email systems (we take this to mean both staff and Councillor email accounts) should have been searched given the terms of the access application, and it was not reasonable for the Tribunal to accept evidence about searches that were confined to the respondent's document management system (ECM). The issue of email (and metadata) searches was raised at the hearing. There was evidence before the Tribunal that emails (responsive to the access application) existed that were not identified by the respondent's searches. That evidence was a signal to the Tribunal that there were relevant Council records not saved within the ECM (including an invoice for legal services; emails sent by staff), and therefore a search confined to the ECM was not a sufficient nor reasonable search because other information responsive to the access application was likely be held by the respondent outside the ECM.
The respondent submits that that it is against Council policy to search staff and Councillor emails in response to an access application, as this is considered duplication (since business emails should be saved in the ECM in accordance with the Information Management Policy) and an invasion of privacy. Instead, it is the practice of the Governance Officer to contact relevant staff who may have knowledge related to the access application to advise of any other documents or emails in their possession that may exist outside the ECM. The respondent says that duplicate searches of email accounts would not be required if Councillors and staff complied, as they are required to do, with the Council's information management policy.

[113]

The appellant essentially contends that the Tribunal made a further error in the application of ss 105 and 53 of the GIPA Act by failing to consider evidentiary material which might tend to prove that (further) requested information exists and is held by the respondent. That evidence relates to emails which emerged after the 1 July 2024 Decision which were located in email inboxes (staff and Councillor emails) and not stored on the respondent's document management system, the ECM.
As the Appeal Panel said in Wojciechowska at [43] in relation to the matter before it, a relevant issue for the Tribunal's consideration was whether material had emerged since the respondent's searches were undertaken, and the reviewable decision made by the agency, to suggest that requested information exists and is held by the agency. In Wojciechowska at [44](3), the statutory task under the GIPA Act in making the "correct and preferable" decision about requested information not held by the agency included the consideration of evidence "which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency". We agree that, in an appropriate case, this will be required.
On the evidence before the Tribunal, the respondent's searches were confined to the respondent's ECM. It is apparent from that evidence that only some emails may be stored on the ECM (via a manual uploading process which does not involve any automatic uploading of emails). The respondent did not conduct searches of staff (or Councillor) email accounts. It is not apparent from the evidence before the Tribunal that the General Manager Ms Black was consulted about whether there were emails responsive to the access application on her Council email account. This is despite the respondent's submission on this appeal that it is Council practice to contact relevant staff who may have knowledge related to the access application to advise of any other documents or emails in their possession that may exist outside the ECM.
The respondent submits that it is against Council's policy to search staff and Councillor emails in response to an access application. The policy referred to was not in evidence before the Tribunal. In any event, the existence of an internal Council information management policy (such as that described by the respondent) does not alter the statutory obligation on an agency to undertake reasonable searches as required by s 53. What constitutes a reasonable search will depend on the circumstances. Section 53(2) requires "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". Depending on the particular access application, a reasonable search (for the purposes of s 53) may require the searching of relevant staff email accounts, and/or the making of proactive inquiries of Councillors about emails held on their Councillor email accounts, notwithstanding internal Council information management policies.
The inadequacy of the respondent's searches was squarely raised by the appellant. He also raised an issue about conducting metadata searches of emails when questioning the Council's witness (Tcpt, p 15(21-24)). The evidence of the Council's witness, Ms Moar, via her affidavit and oral evidence demonstrated that there were Council records responsive to the access application which were not stored on the ECM, but were instead stored on staff (and Councillor) email accounts. This evidence includes:

[115]

The Council records described above at items (1) and (2) emerged after the issue of the respondent's 1 July 2024 Decision, indicating that (further) requested information was held on staff and Councillor email accounts (and not stored on the ECM). There is no indication in the Tribunal's Reasons that it addressed this aspect of the evidence before it. Where relevant evidence is important or critical to the proper determination of the matter and it is not referred to by the Tribunal Member, the Appeal Panel may infer that the Tribunal Member overlooked the evidence or failed to give consideration to it.
On our review of the evidence before the Tribunal, we think it is clear that the Tribunal was on notice that there may be other records responsive to the access application located in staff email inboxes, such as the inbox of the General Manager, Governance Officer, and Corporate Service Officer, as well as in Councillor email inboxes.
The onus at all times is on the agency to prove it does not hold the requested information, and this requires the agency to do all reasonable searches (which do not require a "substantial and unreasonable diversion of the agency's resources"), as are appropriate in the particular circumstances of the access application. The Tribunal must determine whether those searches are reasonable, as part of the overall determination of whether requested information is not held. Whether the Tribunal made an error in this regard will depend on the circumstances.
We do not think that a failure to comply with each of the steps of the statutory task, as outlined in Wojciechowska at [44], will necessarily amount to an error on a question of law (if that is the contention). However, we think the Tribunal's failure to consider relevant evidence which tends to prove that searches confined to the ECM are not sufficient searches, is an error in respect of which we should grant leave to appeal on the merits.
In terms of the requirements for leave to appeal, we consider that, in reaching a state of satisfaction that the searches carried out were reasonable, the Tribunal's fact-finding process miscarried. The fact-finding process was carried out in "such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed": Collins at [84](2)(e). The Tribunal failed to consider evidence before it which was material to the question of whether reasonable searches had been conducted.
Having granted leave, we consider the Tribunal made an error on the merits in making a finding that reasonable searches had been conducted, for the purposes of s 53 of the GIPA Act, despite evidence that steps were not taken (eg asking employees and Councillors to search their emails), and that requested information had been found on emails of staff and a Councillor, being emails that were not stored on the ECM. This was evidence that might tend to prove that the respondent's searches confined to the ECM were not reasonable searches for the purposes of s 53 in the circumstances of this case.
Having arrived at that finding (that reasonable searches were conducted) erroneously, that finding had the real potential to affect the outcome of the Tribunal's review of the respondent's decision about information not held by the respondent.
The appeal therefore also succeeds on this further ground.

[119]

The appellant challenges the Tribunal's conclusion that Documents 1a, 2, 3 and 4 are protected from disclosure under the GIPA Act on the basis of legal professional privilege. He says the Tribunal did not consider who held privilege at what point, which affected waiver considerations (including compliance with the mandatory requirement in the GIPA Act at Sch 1, cl 5(2)). Nor did the Tribunal give reasons, or clear reasons, in its consideration of legal professional privilege and waiver.
The appellant submits that where a claim of legal professional privilege is made involving an agency, there is a requirement for an agency to consider under cl 5(2) of Sch 1 whether it will waive privilege in government information (in view of the object of the GIPA Act). He says that the "duty to consider" in cl 5(2) is a mandatory requirement, which must be adverted to in the Tribunal's reasons. The Tribunal's failure to identify who held privilege (and why) in relation to the documents and to record in its written reasons that the respondent had considered the appropriateness of maintaining or waiving its privilege, is a failure to apply the correct legal principles in the GIPA Act and an error of law.
The appellant says the Tribunal acknowledged that there was initially a solicitor-client relationship between Sparke Helmore and the respondent, a retainer that was later terminated. The point at which the respondent ceased to be a client, and Ms Black in her private capacity became the client of the law firm, is a critical one. The Tribunal's reasons do not consider where that point in time is, and which documents are on "either side". For documents created before that point, the respondent was required to consider whether it would be appropriate to waive privilege. The appellant says "appropriate" in this context means with consideration of furthering the object of the GIPA Act, including the promotion of open government.
The appellant says that if the Tribunal meant that Ms Black had common interest privilege together with the respondent for a period of time (referring to Roberts-Smith v Fairfax Media Publications Pty Limited (No 23) (2021) 417 ALR 221; [2021] FCA 1460 (Roberts-Smith)), this has not been established in this case. Even if this were the case, the Tribunal was still obliged to consider and give reasons why it was satisfied that Sch 1, cl 5(2) had been complied with, in circumstances where the Tribunal was aware, or should have been aware, that the respondent held privilege over at least some of the documents in question. If the Tribunal meant to find that Ms Black did not waive her personal privilege and did not waive (on behalf of the respondent) privilege it held in relevant communications, the Tribunal erred in not identifying the distinction and giving clear reasons.
The appellant refers to Document 1a (referred to at [135] of the Reasons) which dates to December 2022, approximately six months prior to the events which sparked the issuance of the Concerns Notice. Given this, and based on its own reasoning in [137] of the Reasons, and the statements of Ms Black in an email to Councillors on 30 August 2023 referring to advice from Sparke Helmore (Document 4), it was not reasonable for the Tribunal to maintain that Ms Black personally had privilege over these documents in December 2022 and that the respondent had none. The purported decision by Ms Black not to waive "her privilege" (referred to at [138] of the Reasons) applies only to documents which came into existence at a time she personally had a solicitor-client relationship with the law firm.
The respondent submits that it is not relevant who the client was at any particular time, because any and all confidential communications made between a lawyer and client for the dominant purpose of providing legal advice is protected by the privilege under cl 5(1) of Sch 1 to the GIPA Act. Each communication between Sparke Helmore and the respondent, and Sparke Helmore and Ms Black (regardless of when this occurred), is independently protected by legal professional privilege. The respondent says that Ms Black did not consent to waiving her legal privilege, nor consented to the respondent (in her delegated capacity as the Council's General Manager) waiving its privilege for the initial legal advice sought from Sparke Helmore. Those communications are subject to a conclusive presumption against disclosure pursuant to s 14 of the GIPA Act, such that the "public interest test" set out in s 13 is not enlivened.
The respondent further submits that Ms Black was always "the client" in the matter in which the law firm was retained, on the basis that employees of a client are also a client by virtue of the definition of "client" in s 117(1)(b) of the Evidence Act 1995 (NSW).
In his reply submissions, the appellant reiterates that it is relevant who the client is (or was) at any particular time because of cl 5(2) of Sch 1, which requires an agency holding privilege to consider whether it would be appropriate for privilege to be waived. The appellant rejects the proposition that Ms Black personally was always the client of Sparke Helmore. The appellant submits that the definition of client in s 117(1)(b) of the Evidence Act allows an employee to be "the client" for the purposes of representing a corporation or other body, but (as here) it does not mean that every Council employee (approximately 400 staff) is a client or holds privilege separate to the respondent's privilege. It does not follow that Ms Black (who represented the respondent in its dealings with Sparke Helmore as General Manager) simultaneously held legal professional privilege in her individual capacity.

[122]

The appellant says Sch 1, cl 5(2) is a mandatory requirement. The plain construction of cl 5(2) in using the words "is required" should be taken to mean a positive duty to consider: see SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20], in which the High Court said the starting point for ascertainment of the meaning of a statutory provision is the text of the provision considered in light of its context and purpose.
We agree with the appellant that Sch 1, cl 5(2) imposes a duty on a GIPA Act agency, and compliance with the sub-clause is mandatory in that sense. Where an agency holds privilege in relevant communications, cl 5(2) requires that the agency consider whether it is appropriate to waive privilege (eg by way of a knowing and voluntary waiver by the agency).
The agency can be expected to address its compliance with this statutory requirement in its notice of decision determining an access application. The person or persons with authority to consider that issue (i.e. the appropriateness of waiving privilege) for the agency can be expected to make that decision for the agency unaffected by personal or individual interests.
It is accepted that the agency's ultimate decision on whether (or not) to waive the privilege is not reviewable by NCAT (Sch 1, cl 5(3)). As to whether that decision (and/or the way in which the agency has considered the appropriateness of waiver) would be amenable to judicial review in the Supreme Court of NSW is a separate question.
While an agency holding privilege is bound to consider the appropriateness of waiver, there will be some (limited) circumstances where such agency will not be permitted (at law) to make a voluntary decision to waive privilege without the consent of others. Where a joint privilege exists, for example, all privilege holders must consent to a waiver of privilege: see eg Farrow Mortgage Services Pty Ltd (In Liq) v Webb and Others [1996] NSWSC 259; (1996) 39 NSWLR 601 (Farrow) at 608.
While not developing the submission further, the appellant contends that, when considering the appropriateness of waiver (as required by Sch 1, cl 5(2)), an agency is to consider the "objects and purpose" of the GIPA Act. As earlier noted, the statutory "object" of the GIPA Act is found at s 3. When an agency considers whether it would be appropriate to make a knowing and voluntary waiver of privilege in accordance with Sch 1, cl 5(2), we are of the view that it would not be impermissible for the agency to have regard to the public interest in encouraging or promoting access to government information.
However, whether an agency is required to consider the object of the GIPA at s 3 in this context, is a separate question. This is an issue which the Tribunal may need to decide upon reconsideration of the appellant's administrative review application. Without expressing a view as to whether an agency must consider the object of the GIPA Act at s 3, we make the following brief observations.
Section 3(2)(a) of the GIPA Act states that Parliament's intention is that the GIPA Act "be interpreted and applied so as to further the object of" the Act. The object of the Act "is to open government information to the public" by "authorising and encouraging the proactive public release of government information by agencies" (s 3(1)(a)), "giving members of the public an enforceable right to access government information" (s 3(1)(b)), and "providing access to government information is restricted only when there is an overriding public interest against disclosure" (s 3(1)(c)). Whether the combined operation of the GIPA Act at ss 3(1)(a), (b) or (c), 3(2)(a) and Sch 1, cl 5(2) requires an agency to consider the appropriateness of a voluntary waiver of privilege in a way which encourages disclosure of requested information, is a question that should be determined by the Tribunal after having received submissions from the parties.
As to s 3(2)(b) of the GIPA Act, that sub-section states that it is Parliament's intention that the "discretions conferred by" the GIPA Act "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information". Where an agency holds privilege in requested government information, we do not think that a decision to waive privilege (eg through a knowing and voluntary waiver), or a decision not to waive privilege, involves the exercise of a discretion "conferred by" the GIPA Act. Rather, it is an incidence of holding that privilege at general law. Accordingly, we do not see that s 3(2)(b) provides assistance in the present context. However, in the absence of submissions on the point, we express no concluded view.

[124]

Clause 5 (headed "Legal professional privilege") of Sch 1 to the GIPA Act provides, at cl 5(1), that it is to be conclusively presumed that there is an overriding public interest against disclosure of information "that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)", unless the person in whose favour the privilege exists has waived the privilege. Clause 5(2) then uses the term "legal professional privilege".
The view has been taken in a number of Tribunal decisions that, when applying cl 5 of Sch 1 to the GIPA Act, the test of whether information is privileged from production in legal proceedings on the ground of "client legal privilege (legal professional privilege)" is to be determined by reference to the client legal privilege provisions in Division 1 of Pt 3.10 of the Evidence Act, and not by the common law of legal professional privilege. Section 118 of the Evidence Act provides for "legal advice privilege" and s 119 of that Act for "litigation privilege", with relevant definitions contained in s 117. Section 122 of that Act addresses loss of client legal privilege, and is therefore relevant to waiver considerations.
Where Tribunal decisions dealing with the application of cl 5 of Sch 1 to the GIPA Act have not addressed the issue of whether the Evidence Act provisions (or the common law) apply, this may have been the case because the conclusion would have been the same no matter which law was applied. It is accepted that, in most cases, whether the Evidence Act provisions or the common law applies will make no material difference.
The issue as to whether the Evidence Act provisions apply has arisen in several Appeal Panel decisions. There is no judicial decision of which we are aware which provides authoritative guidance. In AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [20], an Appeal Panel considered that the provisions of the Evidence Act apply to the determination of the question of whether there is conclusive presumption that there is an overriding public interest against disclosure of information under cl 5(1) of Sch 1. That Appeal Panel stated at [21], as cl 5(1) of Sch 1 refers to "information that would be privileged from production in legal proceedings on the ground of client legal privilege", the applicable provision of the Evidence Act is 131A which applies ss 118 and 119 of that Act with necessary modifications.
In the later decision in Transport v NSW & Ors v Robinson [2018] NSWCATAP 123 at [42]- [46], the issue arose on an appeal as to whether s 122 of the Evidence Act (loss of client legal privilege) or the common law position (as to exceptions to waiver) set out in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 was the applicable test. The Appeal Panel in that matter indicated that it did not need to decide the issue because of a concession made by Senior Counsel that, regardless of the applicable test, the result would have been the same.
In ECN v Commissioner of Police [2020] NSWCATAP 267, the Appeal Panel constituted there noted that it was common ground between the parties in those proceedings that the use of words "client legal privilege" in Sch 1, cl 5 indicates that the GIPA Act adopts the Evidence Act test in relation to the existence of client legal privilege and waiver of privilege, citing a number of first instance Tribunal decisions in which that view had been taken. At [42], that Appeal Panel said that position was questioned on appeal in Transport for NSW v Robinson [2018] NSWCATAP 123, however, ultimately the Appeal Panel there determined that it was not necessary to determine whether the application of cl 5 is by reference to the common law or Evidence Act for the purpose of resolving that appeal.
Here, the Tribunal below did not state whether it was applying the Evidence Act provisions. For the purposes of this appeal we will assume that the Evidence Act provisions apply to the existence of privilege and its waiver or loss (without finally deciding the issue). On this assumption, the respondent's privilege claim is based on "legal advice privilege" in s 118 of the Evidence Act (noting definitions included in s 117) and on the assumption that s 122 of that Act (loss of client legal privilege) applies as relevant to waiver considerations.
The elements of the s 118 "advice privilege" require there to be:

[140]

Insofar as the appellant contends that the Tribunal failed to give reasons, or clear reasons, that may amount to an allegation that the Tribunal's written reasons are inadequate and raise a question of law. However, it is preferable that the actual and specific question of law is identified with precision. That position is reinforced where the appellant is legally represented: Ferella at [22]; Wollondilly at [29].
The question might be whether the statutory duty under s 62 of the NCAT Act has been satisfied; or whether the reasons were "sufficient at law" (see Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 per Basten JA at [23]; Wollondilly at [32]). Noting that s 38(2) of the NCAT Act preserves the rules of natural justice, a failure to provide adequate reasons may represent a failure to consider key evidence and/or submissions and therefore constitute a denial of procedural fairness or it may reveal a constructive failure to exercise the jurisdiction: see GTK v NSW Treasury [2025] NSWCATAP 174 at [37] and cases therein referred to.
Where a party makes a request for a written statement of reasons under s 62(2) of the NCAT Act (or where Sch 6, cl 11 applies), there is a statutory obligation on NCAT to provide a written statement of reasons which meets the requirements of s 62(3) (except where s 62(2A) applies). Section 62(3) provides that a written statement of reasons (for the purposes of s 62) must set out: (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; and (c) the reasoning processes that led the Tribunal to the conclusions it made.
Whether there is a duty to provide a written statement of reasons which meets the requirements of s 62(3) in other circumstances is not settled. Where no request is made under s 62(2) and written reasons are in any event provided, it is arguable that those written reasons must comply with s 62(3): see Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [57] where Wright J considered that if written reasons were voluntarily provided, they should comply with s 62(3); see also discussion in the recent Appeal Panel decision of GTK v NSW Treasury [2025] NSWCATAP 174 at [26]-[38].
Even where there is no obligation to provide reasons which meet the requirements of s 62(3) of the NCAT Act, we are cognisant of the guidance provided by the Court of Appeal in Orr about what constitutes adequate reasons in the NCAT context. While it is accepted that written statement of reasons do not require lengthy or elaborate reasons, in Orr, Bell P (as the Chief Justice then was) acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess", which in relation to NCAT are supplied by s 62(3) of the NCAT Act (at [71]). His Honour said, while the operation of s 62(3) is "arguably" confined to reasons supplied pursuant to a request by a party,"[i]t is not unreasonable...to suppose that s 62(3) supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2)": Orr at [55] per Bell P; see also Ward JA (as then President then was) at [112].

[141]

We turn to consider the Tribunal's findings and conclusions on the respondent's claim for legal professional privilege in relation to the withheld information, in light of the principles we have outlined above.
As already noted, the Tribunal did not state whether it applied the Evidence Act provisions as to the existence of client legal privilege and waiver or loss of privilege. While we do not know, we will assume for present purposes that the Tribunal intended to apply the Evidence Act provisions to determine the respondent's privilege claim. When deciding a privilege claim under the GIPA Act, the Tribunal should make clear what provisions it is applying (and why) to determine that claim.
As the Tribunal correctly indicated at [103] of the Reasons (reproducing an interchange between the appellant and the Senior Member at the hearing), the relevant time for determining privilege (and the relevant solicitor-client relationship) is when the documents are created.
The Tribunal found that there was a solicitor-client relationship between Sparke Helmore and the respondent at the time initial legal advice was sought from Sparke Helmore. The Tribunal then found that when the respondent determined that it could not initiate defamation proceedings, from that point onwards there was a (new) solicitor-client relationship between Ms Black personally and Sparke Helmore.
However, the Tribunal made no findings about the dates of which those separate solicitor-client relationships were established or ceased, by reference to Documents 1a, 2, 3 and 4, and no express findings about who held privilege in relation to each of those documents and on what basis.
From a fair reading of the Reasons, we think there is an implied finding that the respondent held privilege in Document 1a (see the Table at [108] of the Reasons) because that withheld document is identified as the initial advice sought from Sparke Helmore by the respondent in December 2022, and the Tribunal found there was a solicitor-client relationship between Sparke Helmore and the respondent at that time.
However, for Documents 2, 3, and 4, it is not possible to infer from the Reasons any implied findings that the respondent held privilege in those communications. Those documents relate to, or refer to, legal advice sought at later dates (from July 2023). It is not stated in the Reasons whether the Tribunal found some or all of those documents were created at a point in time when there was a solicitor-client relationship between Sparke Helmore and the respondent, or at a later time when there was a solicitor-client relationship between Sparke Helmore and Ms Black personally. Further, it was not identified whether there had been consideration of joint or common interest privilege.
In respect of Document 1a (implied finding that the respondent held privilege), there is nothing contained in the Reasons to indicate that the Tribunal turned its mind to the respondent's compliance with the statutory obligation in cl 5(2) of Sch 1. Moreover, and noting that the issue of the respondent's loss of privilege had been squarely raised by the appellant, the Tribunal made no finding about waiver or non-waiver of the respondent's privilege.
We note the respondent's submission that Ms Black did not consent to waive "her legal privilege" nor consented to the respondent (through Ms Black as the Council's General Manager) waiving its privilege for the initial legal advice sought from Sparke Helmore. That is not what the Tribunal found. The Tribunal found that Ms Black had not waived "her claim for LPP" (at [138] of the Reasons). The Tribunal did not make a finding (express or implied) that the respondent had objected to waiving privilege, or that it had not lost privilege, in relation to Document 1a.
Insofar as the Tribunal said at [138] there is no evidence before it that established that Ms Black has waived "her claim for LPP", it is not clear which of the documents in question the Tribunal's statement relates to. In the absence of an explanation of how the Tribunal reached the conclusion that Ms Black has not waived "her" privilege, we are reluctant to treat that statement as a finding that Ms Black held privilege in relevant communications at a time before her retainer with the law firm commenced (and after termination of the retainer between the law firm and the respondent).
However, if the Tribunal meant that it was Ms Black personally, and only Ms Black, who held privilege because the relevant communications came into existence after termination of the solicitor-client relationship between Sparke Helmore and the respondent, that was not stated. We do not think such a finding can be implied. If we are wrong and that finding can be implied (and that Documents 2, 3 and 4 came into existence after termination of the solicitor-client relationship between Sparke Helmore and the respondent), that would not be a finding available on the evidence which was before the Tribunal.
It is an error on a question of law for the Tribunal to make a finding of fact where there is no evidence to support that finding. Where the Tribunal draws inferences that are not available from the facts as found (or agreed) in the absence of evidence, that will also amount to an error on a question of law: see eg Minister for Immigration & Multicultural Affairs v Al‑Miahi [2001] FCA 744; (2001) 65 ALD 141; [_2_001] FCA 744 at [34] cited in Unique at [32](1).
Alternatively, if what the Tribunal meant was that Ms Black held privilege in documents created at a point in time when the respondent held a retainer with the law firm, this was not stated, and no finding made (or reasoning process exposed) about the basis on which she held privilege.
In terms of appeal ground 3, we consider that the Tribunal failed to undertake the required statutory task by its failure to make findings of fact on material issues that arose for determination in the Tribunal's review of the respondent's decision to withhold requested government information in Documents 1a, 2, 3 and 4.
We do not accept the respondent's submission that it is not relevant who the client was at any particular time because each communication between Sparke Helmore and the respondent, and between Sparke Helmore and Ms Black personally, is protected by legal professional privilege. The identity of the client (or clients) in the client-lawyer relationship is critical in determining who holds privilege in requested government information, who can waive or lose privilege, and whether the agency has complied with the obligation in Sch 1 cl 5(2) where it holds privilege in relevant communications. The Tribunal's consideration of legal professional privilege (including its waiver or loss) in the GIPA Act context is premised on the determination of these key issues.
Based on the respondent's 1 July 2024 Decision, the case of both parties in the administrative review application, and the evidence before the Tribunal, we consider the following factual and legal issues (at a minimum) arose for consideration in the Tribunal proceedings:

[144]

We have taken the appellant's appeal ground to relate primarily to the Tribunal's failure to carry out its statutory task by not making the required factual findings, and/or by failing to apply the correct legal principles, in determining the respondent's privilege claim.
While the appellant raised the lack of reasons (or clear reasons) in relation to this appeal ground, he did not submit that the Tribunal breached its statutory duty in s 62 of the NCAT Act, or otherwise breached a duty to give adequate reasons. There was no request made under s 62(2) in the administrative review proceedings at first instance, rather the Tribunal's written reasons were provided voluntarily. We said earlier that there is no settled law on whether NCAT is under a duty to provide a written statement of reasons which meets the requirements of s 62(3) of the NCAT Act in these circumstances.
We earlier referred to the guidance provided by the Court of Appeal in Orr about what constitutes adequate reasons in the NCAT context. We acknowledge that, in providing reasons for decision, the Tribunal must ensure that it does not disclose information for which there is an overriding public interest against disclosure: GIPA Act, s 107(1). Nonetheless, applying the principles enunciated by Bell P in Orr, the Tribunal's failure to set out material findings of fact, and to expose its reasoning process, which led to its conclusion on the respondent's claim for privilege, and ultimately the Tribunal's affirmation of the respondent's decision to withhold requested information, does not conform with the "minimum characteristics" that a Tribunal's reasons might be expected to possess.
Even if no duty to give reasons exists, if the Tribunal had made the required findings, it would be expected that the Tribunal would give reasons for those findings, thereby exposing its reasoning process. The Tribunal did not give reasons as to why the respondent did not hold privilege in Documents 2, 3 and 4 (nor why Ms Black did hold privilege in Docs 1a, 2, 3 and 4) that can be inferred from the Reasons. The Tribunal's failure to give reasons further supports our view that the Tribunal did not make the critical findings required for the determination of the respondent's privilege claim under the GIPA Act, and that the Tribunal thereby failed to answer the relevant statutory questions or to apply the correct legal principles.

[145]

On this appeal, the respondent contends that Ms Black held legal professional privilege in all of the withheld information, including from the time the law firm was first retained by the respondent in December 2022, because she was an "employee" of the Council, relying on the extended definition of "client" in s 117(1)(b) of the Evidence Act.
This contention appears to have been raised for the first time in the respondent's reply submissions on the appeal. This was not a submission included in the respondent's written submissions in the Tribunal proceedings below. We do not know if the respondent made this submission orally during the confidential hearing on the documents the subject of the privilege claim. If it was a submission made during the confidential hearing, it is not a submission which was addressed by the Tribunal in its written reasons.
As to the respondent's contention that Ms Black was always "the client" (or alternatively, "a client") in the matter in which the law firm was retained from December 2022, this submission would seem to be consistent with statements made by the respondent in the 1 July 2024 Decision: that Ms Black was "the client in this client-lawyer relationship: therefore, her privilege is legally protected, even if she was acting in a private matter or in her capacity as a General Manager" and further, that "Ms Black expressly decided not to waive her legal privilege". The basis for the respondent's belief that Ms Black was "the client" or that the privilege protected was "her privilege" in respect of documents created when she was acting in her capacity as General Manager, was not stated.
It is not clear whether the respondent submits, in this appeal, that Ms Black held privilege separately to the respondent's privilege; it is also not clear why any privilege held by Ms Black as an employee of the Council would be "her" legal privilege, and not the respondent Council's legal privilege.
It can be accepted that, when acting in a private matter, Ms Black was a client of the law firm (from the time her solicitor-client relationship with the law firm commenced). However, it is difficult to see how the extended definition of "client" in s 117(1)(b) of the Evidence Act means that Ms Black was "the client" of the law firm at the time the respondent retained the law firm to provide legal services to the respondent, and not Ms Black.
Section 117(1)(b) provides an extended definition of "client" for the purposes of Division 1 (Client legal privilege) of Pt 3.10 (Privileges) of the Evidence Act. Extended definitions are also provided for "lawyer" and "party". The explanatory memorandum of the Evidence Bill 1995 (NSW) states that "clause 117 defines, for the purposes of the proposed Division, the terms client, confidential communication, confidential document, lawyer and party. The definition of client has a wide meaning, including, for example, government employees (Cf. Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54)."
Where a corporation or other body is a client within the meaning of s 117(1)(a) ("a person or body who engages a lawyer to provide legal services..."), the body will act through its employees or agents in seeking external legal advice from a lawyer, and receiving and dealing with that advice. In the case of a local government council, senior employees including the General Manager will typically represent such a council in the council's retainer with the external lawyer. Subject to waiver considerations, the resulting confidential communications are protected from disclosure due to the protections afforded by client legal privilege under s 118 of the Evidence Act. The extended definition in s 117(1)(b) ("client" includes an employee or agent of a client") is broad to protect the privileged communications of bodies seeking legal advice (as instructed by employees or agents), it does not mean that employees or agents are taken to be clients in their own right (or in their private or individual capacity) or that there are two clients (here, the respondent's General Manager and the respondent Council).
Section 117(1)(b) and s 118 of the Evidence Act operate such that if an employee acts on behalf of their employer in communications with a lawyer, then the communications between a lawyer and the employee of a client, should be taken to be communications between a lawyer and a client. On the material before this Appeal Panel, the respondent's submission that Ms Black was always "the client" of Sparke Helmore from December 2022 is difficult to sustain. However, this will be a matter for the Tribunal to consider on its reconsideration of the administrative review application.

[147]

This appeal ground is that the Tribunal misconstrued s 54 of the GIPA Act, or failed to apply the correct legal principles, in respect of the statutory consultation process carried out by the respondent with Ms Black.
Firstly, the appellant submits that the obligation on the agency in s 54(1) and (2) to consult with relevant persons requires a written notification and response. He contends that there is a standard of "reasonableness" that should be applied in the interpretation of s 54, such that "reasonably practicable" steps (referred to in s 54(1)) requires consultation in writing. Therefore, in the circumstances of this matter, he says that there should have been written notification and responses between the agency and Ms Black about waiver (or potential waiver) of legal professional privilege held by the respondent, or by Ms Black in an individual capacity, or by both.
The appellant says that, insofar as the respondent consulted with Ms Black in her personal capacity, it did so through a statutory process under s 54 in the GIPA Act which has a statutory object of open and transparent government, and this mandates that consultation is recorded in writing. At [138] of the Reasons, it is stated that Ms Black expressly decided not to waive her legal privilege, however there is no documentary evidence of that. The appellant also submits that Ms Black, in her personal capacity, was required to be consulted in writing under s 54(2A) as a mandatory requirement.
The respondent contends that there is no error by the Tribunal. Section 54 requires persons with reasonable concerns about disclosure to be consulted, there is no requirement for this to be in writing. Ms Black was a person who was considered to have reasonable concerns about disclosure under s 54(1) and 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.
The respondent submits that Ms Black was consulted and expressly objected to waiving privilege on behalf of the respondent in her capacity as General Manager and on her own behalf in her personal capacity. We noted earlier in these reasons that, insofar as the respondent says that Ms Black objected to waiving privilege on behalf of the respondent in her capacity as General Manager, the Tribunal did not make such a finding. While there is an implied finding that the respondent holds legal professional privilege in Document 1a, no finding was made that the respondent held privilege in the remaining documents. No findings were made about waiver (or objection to waiver) by the respondent of privilege it holds in Document 1a (or of any privilege it holds in respect of Documents 2, 3 and 4).
Nonetheless, we agree with the respondent's submission in relation to this appeal ground that consultation with an affected person under s 54(1) and (2) does not mandate consultation in writing, and we do not consider that the taking of "such steps... as are reasonably practicable" in s 54(1) requires consultation in writing. Other than the written notice required by s 54(2A) in circumstances contemplated by that sub-section, there is no requirement contained in s 54 for consultation to be conducted by way of written notification and response between the agency and the person affected (within the meaning of s 54(2)).
Insofar as the appellant submits that Ms Black, in her personal capacity, was required to be consulted in writing under s 54(2A) as a mandatory requirement, we do not consider that the asserted non-compliance with s 54(2A) raises a question of law.
Appeal ground 4 is not made out.

[150]

Whether there has been a breach of procedural fairness will generally raise a question of law: see eg Kudrynski at [52]; YHY v YHZ [2024] NSWCATAP 117 at [23]. A question of law may arise even where it is necessary to make findings about what occurred at the hearing: Donohoe.
In determining proceedings before it, NCAT is under a duty to afford procedural fairness to the parties. Procedural fairness requires that NCAT give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act, which expressly requires the Tribunal to observe the rules of natural justice). Reflected in s 38(5)(c) of the NCAT Act, those rules require NCAT 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".
It is well established that NCAT must conduct a hearing that gives procedural fairness to all parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice: see eg SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26], [29]. How the requirement for procedural fairness is satisfied will depend on the circumstances of the particular case and the particular parties.
Section 38(5)(c), and the principles of procedural fairness imported by s 38(2) of the NCAT Act, require NCAT to give a party a reasonable opportunity, not every requested opportunity, to be heard or otherwise to have the party's submissions considered.
A failure to accord procedural fairness must be material and be capable of affecting the decision: see eg Kudrynski at [49]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1], [33]. The question whether any such error was material to the Tribunal's decision also raises a question of law.
Here, if the Tribunal breached the requirements of procedural fairness by denying the appellant the right to ask relevant questions or make relevant submissions in the manner contended by him, the question then would then arise whether the Tribunal's error was material to its decision, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [6]-[7]. The High Court said in that case that "realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Meeting the threshold of materiality "is not demanding or onerous": LPDT at [14].
We have already noted the appellant's status as a self-represented party before the Tribunal at first instance. This raises the question of the extent of the duty on NCAT to assist a self-represented party in administrative proceedings such as those conducted in the Tribunal at first instance. In Chalik v Chalik [2025] NSWCA 136 (Chalik) at [67]-[72], the Court of Appeal recently considered the extent of the duty on a court to assist a self-represented party in civil proceedings. The Court (Bell CJ, Payne JA, Free JA) rejected the proposition stated in an earlier Court of Appeal decision in MHT v State of New South Wales [2025] NSWCA 122, that a court has an "obligation to ensure" that an unrepresented party does not, "because of lack of legal skill, fail to claim rights or put forward legal arguments". That statement "significantly overstates a court's responsibility to an unrepresented litigant and is far too absolute in its use of the expression "an obligation to ensure ...": Chalik at [68].
In Chalik, the Court reviewed previous decisions of intermediate appellate courts which have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: at [69].
In Bauskis v Liew [2013] NSWCA 297 at [69], in which Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant "does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant". Further, in Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:

[153]

The appellant submits that the Tribunal denied him procedural fairness in the conduct of the Tribunal's hearing, by (i) curtailing cross-examination such that he was prevented from asking reasonable and relevant questions of the Council's witness; and (ii) failing to act in accordance with s 38(5)(a), (b) and (c) of the NCAT Act, eg by "halting" submissions, and acting with too much formality. The appellant further submits that, by reason of (i) and (ii), the Tribunal failed to act justly in accordance with s 36 of the NCAT Act.
The appellant says that the conduct of the Senior Member during the hearing, by disallowing some of his questions during cross-examination and "shutting him down", made him feel intimidated, and that he was unable to carry on with questions and not allowed to make submissions effectively. He relies on parts of the transcript of the Tribunal's hearing, submitting that the conduct of the Senior Member was unreasonable and confrontational, as well as confusing for a person who is not legally trained.
He says the Tribunal prevented him, through its rulings, from asking relevant questions, and his inability to continue questioning the Council's witness materially affected the outcome on the administrative review. While the appellant does not say that the Tribunal's procedural rulings, considered individually, were wrong, he submits that the exchanges recorded in the transcript to which he refers were, in a cumulative sense, oppressive on him, and his ability to respond and make submissions was worn down by the Tribunal's rulings. He states that he is not a legally trained advocate, and the things he wanted to say about the case, were material and capable of changing the outcome of the hearing.
The appellant says that the Tribunal failed in its obligation to assist him; contravened s 38(5)(c) of the NCAT Act by failing to ensure he had a reasonable opportunity to be heard; and failed to act justly in accordance with s 36 of the NCAT Act by preventing him from asking further questions and stopping his oral submissions by making assumptions about what he was about to say.
The respondent submits that the Tribunal's limiting of the appellant's questions during cross-examination to those relevant to the GIPA review and within NCAT's jurisdiction is not a breach of procedural fairness. The Tribunal's control of the appellant's questioning during cross-examination of the Council's witness, and of the proceedings more generally, was in accordance with NCAT's guiding principle in s 36 of the NCAT Act, and that allowing "irrelevant, convoluted and unreasonable" questions would not achieve the just quick or cheap resolution of the real issues in the proceedings. It is submitted that there was no requirement for the Senior Member to take an alternative approach to the inappropriate questions of the appellant during his cross-examination of the Council's witness.
The respondent also says that it was repeatedly explained to the appellant that the Tribunal proceedings were limited to the reviewable GIPA decision, and he was repeatedly instructed on the limits on NCAT's jurisdiction, particularly that the respondent's compliance with the State Records Act 1998 (NSW) and the Local Government Act 1993 (NSW) was not relevant to the issues for determination in the Tribunal's administrative review proceedings in this matter. The respondent also says that the appellant is an experienced litigant and that this was his third such GIPA Act appeal pursuing the same issues outside of NCAT's jurisdiction. The respondent submits that it is difficult to see how the disallowance of questions concerning the respondent's record-keeping practices or compliance with the State Records Act or Local Government Act could have materially affected the outcome given NCAT's lack of jurisdiction in these respects.

[160]

As that cross-examination continued, a number of the appellant's questions were disallowed because they were questions about issues which the Senior Member indicated were outside NCAT's jurisdiction (particularly issues which related to the respondent's obligations under the State Records Act and the Local Government Act), or on the basis that he was making submissions, rather than asking questions of the witness. At one stage the appellant asked precisely the same question ("how does the Council typically document decisions and discussions on matters of public interest?") which only shortly before the Member had disallowed, explaining her ruling that the question related to the State Records Act and not about the GIPA Act which is about access to documents (Tcpt, p 18(17), 18(34)). At times the Senior Member was blunt (eg "Do I really need to repeat my previous ruling?" Tcpt, p 19(26)).
We do not accept the appellant's submission that his questions regarding the respondent's obligations (or record-keeping practices) under the State Records Act were relevant to the records which the respondent held at the time the access application was lodged, or that it was obvious that his questions (which were disallowed) were laying a foundation for relevant questions that would then be put to the witness. In sum, the appellant has not made out a case that he was prevented from asking relevant questions on the adequacy of searches.
Another example raised by the appellant, where he contends he was "shut down" or curtailed in his cross-examination of the Council's witness, relates to metadata searches (including searches of emails). He says a critical issue was a lack of searches of emails, and the fact that he was not allowed to continue questions was unfair and materially affected the outcome of the administrative review.
From our review of the transcript at pp 15-16, we do not agree with the appellant's submission that he was not allowed to continue questions relating to metadata searches, or searches of emails. Starting at p 15(14) of the transcript, he asked the witness several questions about her searches for documents (including emails) by metadata. The witness indicated that she did not know how to search metadata. The Senior Member specifically asked him "Do you have anything else to ask of this witness about searches before you move on?" (Tcpt, p 16). The appellant said to the Senior Member "I believe that metadata is classified as one of the best practices for searching fields for information". The Senior Member replied: "You can make that submission but what is your expertise on metadata searching? Have you put on any evidence about it?". The appellant replied: "No, we'll move on" (Tcpt, p 16).
While the appellant submits that he was prevented from asking questions of the witness about how to search metadata (which went to the issue of whether or not reasonable searches had been conducted), we do not consider that he was prevented from asking further questions of the witness about the way she conducted her searches.
While the appellant has referred us to excerpts from the transcript which point to Tribunal rulings which he describes as "cumulatively oppressive", it is apparent from other parts of the transcript that the Senior Member did explain the limitations of the appellant's cross-examination of the Council's witness. It was made clear to him that his questions needed to be relevant to the issues arising for determination given NCAT's limited jurisdiction. On most occasions where a question was disallowed, the Senior Member gave a brief explanation for the ruling.
As far as we can discern from our review of the transcript, we do not think that he was prevented from asking relevant questions about how the respondent searched for records responsive to the access application (being records held by the respondent at the time the access application was made on 5 March 2024). On several occasions the Senior Member asked the appellant if he had any further questions for the witness.
In our view, there was no failure by the Tribunal to afford procedural fairness to the appellant in the conduct of the hearing on the basis asserted.

[165]

The respondent contends that the appellant has "extensive experience in the Tribunal and other civil and criminal proceeding in other state courts" and that he was put on notice by the respondent, and the Tribunal, on numerous occasions, that the issues and orders he was pursuing were outside NCAT's jurisdiction. In response, the appellant says that his willingness to take on a certain number of public interest matters in courts and tribunals does not equate with experience or skill.
Regardless of the appellant's level of experience or skill as a litigant in NCAT (or courts), he has not made any compelling argument that the Tribunal failed to comply with the obligation in s 38(5)(a) to ensure that parties understand the nature of the proceedings. Nor has the appellant referred us to any part of the transcript where he requested the Tribunal to explain aspects of procedure, and where the Tribunal failed to do so contrary to s 38(5)(b).
We have already observed that the Senior Member explained, prior to the appellant's cross-examination of the Council's witness, the two issues that were before the Tribunal, the Tribunal ensured that the appellant had understood that point and then explained that questions (during cross-examination) outside of those parameters would be disallowed. The Senior Member's approach was consistent with taking reasonable measures to ensure that the appellant understood the nature of the proceedings under s 38(5)(a) of the NCAT Act.
The appellant submits that the Tribunal did not assist him to present his case with as little formality and technicality as possible and that he was substantially prevented from being heard, making submissions and seeking answers to questions. In support of his contention that his submissions were "halted", he accepts that, when the time came for oral submissions, the Senior Member asked, "Mr McNeill, what do you say?". However, he says that he did not understand that this was his opportunity to make oral submissions. He also says that, because of the Tribunal's formality, he was unable to say the things "he had raised previously", although he did not elaborate further.
We turn again to the transcript of the hearing. Shortly after the conclusion of oral evidence, the Senior Member informed the parties of the next steps in the hearing, and proceeded to look at the documents submitted by the appellant (Tcpt, p 23(22)). After some exchanges between the Senior Member and the appellant about the documents contained in his tendered document bundle, the Senior Member confirmed with the appellant that the submissions lodged on 16 July 2024 (and bearing the date 10 July 2024) headed "Application to NCAT for Disclosure of Information Related to the Concerns Notice dated 18 July 2023" were his only written submissions and that no further written submissions were filed (Tcpt, p 26(31)-27(10)). We will refer to these written submissions of the appellant as the 16 July 2024 submissions.
The Senior Member then proceeded to hear oral submissions from the respondent, before turning to the appellant (Tcpt, p 28(28)):

[166]

"SENIOR MEMBER: Okay, Mr McNeill, what do you want to say?

APPLICANT: I'd urge the tribunal to recognise the broader implications of these issues on public trust and governance. The Clarence Valley council's actions have demonstrated a pattern of inadequate documentation, selective information disclosure and inconsistent application of legal principles.

SENIOR MEMBER: Sorry, are you reading from a document?

APPLICANT: Yes.

SENIOR MEMBER: Where do I find that document?

APPLICANT: It's just a document that I've put together.

SENIOR MEMBER: Right, then please take it more slowly so that I can take note of it, since you didn't file it in written submissions.

APPLICANT: Okay. Would you like me to start at the start?

SENIOR MEMBER: You want the tribunal to take notice of the broader public interest, yes?

APPLICANT: Yep. The Clarence Valley Council's actions have demonstrated a pattern of inadequate documentation.

SENIOR MEMBER: Okay, I'm going to stop you there. If you're going to read from a script that refers to the notice that I've already ruled beyond the scope of this review, then I invite you to skip ahead, because you were about to lapse into the State Records Act.

APPLICANT: Okay.

SENIOR MEMBER: This is the difficulty with preparing a speech.

APPLICANT: I respectfully request that NCAT orders a thorough review of council's record-keeping practices--

SENIOR MEMBER: You do not have the power to do so. Can you move on please?

APPLICANT: Could NCAT recommend that the IPC or the Information Commissioner review the council?

SENIOR MEMBER: No. There's no evidence before me to support such a referral. In any event, I haven't completed - that is something I can consider by exercise of discretion, only when I have completed the administrative review, and I am yet to consider the confidential documentation in your absence.

APPLICANT: Okay. Look, I thank you for your attention on these matters and I look forward to your deliberation and decision that will uphold the principles of good governance and public accountability.

SENIOR MEMBER: I will apply the principles under the GIPA Act in making my determination..."

[167]

From the transcript excerpt above, the appellant seemed to understand at the time that it was his opportunity to make oral submissions when the Senior Member asked him what he wanted to say. The transcript excerpt above does not support the appellant's contention that he was prevented from making oral submissions, except at one point when he submitted that the Council's actions "have demonstrated a pattern of inadequate documentation". At that point the Senior Member asked him to "skip ahead" and indicated her view that he was "about to lapse into the State Records Act".
While the appellant says the Senior Member wrongly assumed he was about to make oral submissions about issues related to the State Records Act, he did not then attempt to explain to the Senior Member why the oral submission he wanted to make did relate to GIPA Act issues (as opposed to record-keeping responsibilities of an agency under the State Records Act).
It should be further noted that the appellant initiated the conclusion of his closing oral submissions. The Senior Member did not cut him off or tell him to stop his submissions.
We are unable to accept the appellant's submission that he was prevented from making submissions on the issues that arose for consideration on the administrative review. He had made written submissions prior to the hearing (in accordance with Tribunal case management directions). He had an opportunity to make oral submissions at the hearing after the Tribunal had taken evidence (both documentary and oral).
The Tribunal's duty to afford procedural fairness, and to provide parties with a reasonable opportunity to be heard (as required by s 38(5)(c)) does not extend to making the case for that party. As we said earlier, similar principles as referred to by the Court of Appeal in Chalik apply in administrative proceedings in NCAT.
In support of his contention that he was not permitted reasonable opportunity to make submissions, the appellant refers to the decision of ZGW v ZGX [2018] NSWCATAP 297 at [41]- [51] in which an Appeal Panel found there had been no breach of s 38(5)(c) of the NCAT Act and no practical injustice in that case in circumstances where the Tribunal at first instance allowed a party to speak to documents which had not been adduced as evidence in the proceedings. In contrast here, the appellant says that the Tribunal did not comply with s 38(5)(c) because it did not afford him the opportunity to be heard.
The Appeal Panel decision in ZGW v ZGX cannot be taken as authority for the proposition that a party should be permitted to make oral submissions on issues which are not relevant to the particular proceedings before the Tribunal, or which relate to matters outside NCAT's jurisdiction. That case depends on its own facts, and in our view, is not comparable to the present matter.
In sum, we do not think that the evidence before us, supports the appellant's submission that the Tribunal failed to provide the appellant with a reasonable opportunity to be heard and have his submissions considered, contrary to s 38(5)(c) of the NCAT Act, in the manner which he contends.
For the above reasons, we are of the view that the Tribunal did not fail to act in accordance with s 38(5)(a), (b) and (c) of the NCAT Act.

[180]

The appellant contends, firstly, that "special circumstances" warranting a costs order exist because of the nature and complexity of the appeal proceedings (s 60(3)(d)). He says the issues raised about legal professional privilege including the operation of the GIPA Act at Sch 1, cl 5 are complex (and, in some respects, unusual), and in that sense, the circumstances may be described as "out of the ordinary". Internal appeals in NCAT often involve complex issues of law or fact, and this factor is not sufficient, of itself, to warrant a costs order in the appellant's favour.
Secondly, the appellant refers to the conduct of the respondent in the AEOD proceedings below, which he says necessitated the bringing of his appeal. He says the respondent's failure to conduct reasonable searches, together with the fact that the respondent was on notice of the inadequacy of its searches, establishes special circumstances to warrant a costs order under s 60(2). We understand the appellant to rely on the matters set out at s 60(3)(f) and (g) as a basis for special circumstances.
The appellant submits that the evidence presented to the Tribunal at the hearing demonstrates that it was unreasonable not to conduct searches of the Council's email system including searches of relevant staff email accounts. In his affidavit at [30], Mr Colin Shephard deposes that the IPC wrote of its dissatisfaction with searches conducted by Clarence Valley Council in response to an access application made by Yamba CAN in relation to different subject-matter because the Council did not search email accounts. The appellant contends that the respondent was put on notice by the IPC for the same shortcomings that are observed in this matter, and that the IPC Review Report of August 2023 was in close proximity in time to the respondent receiving the appellant's access application in this matter, i.e. 5 March 2024.
In determining whether there are special circumstances warranting an award for costs under s 60(3)(f) of the NCAT Act, we may have regard to whether a party has refused or failed to comply with the duty imposed by s 36(3) of that Act. Under s 36(3)(a), parties are required to co-operate with NCAT to give effect to the guiding principle in s 36(1) (which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings), and for that purpose, to participate in NCAT processes and comply with NCAT orders and directions.
The appellant says the respondent failed to assist the Tribunal to arrive at a just outcome, as required by s 36(3)(a) of the NCAT Act, because it did not inform the Tribunal that it had failed to search relevant staff email accounts (and therefore it had not conducted reasonable searches). The appellant further submits that the failure of the respondent to give clarity to the appellant, and to the Tribunal, regarding the different types of legal professional privilege applying to the relevant documents, and the identity of the privilege holder at relevant times, are circumstances which are "out of the ordinary".
On the material before us, we do not consider there is a sound basis for the submission that the respondent failed to comply with its obligation in s 36(3)(a) of the NCAT Act. There is nothing in the respondent's conduct in these appeal proceedings (or in the Tribunal proceedings below) which demonstrates a failure to comply with Tribunal processes or any failure to co-operate with this Appeal Panel (or with the Tribunal below).
Insofar as the appellant raises the points above described as matters which we should have regard to under s 60(3)(g) of the NCAT Act (i.e. "any other matters that the Tribunal considers relevant"), we are not persuaded that these matters amount to special circumstances such as to warrant a costs order in the appellant's favour.
The appeal is allowed because we have decided that the Tribunal misconstrued ss 105 and 53 of the GIPA Act and made an erroneous finding that reasonable searches had been conducted, and separately, that the Tribunal erred in its consideration of the respondent's legal professional privilege claim. These were errors made by the Tribunal. While the respondent may have confused or misunderstood aspects of the GIPA Act provisions concerning legal professional privilege in its 1 July 2024 Decision, ultimately it was a matter for the Tribunal to make the necessary findings and to explain those findings with respect to the privilege claim made.
We earlier noted that the appellant relies on the IPC Report dated August 2023 (the IPC Report) as relevant to his costs application. The IPC Report relates to an access application made by Yamba CAN to Clarence Valley Council, and not to the appellant's access application in this matter.
We have considered the contents of the IPC Report. It includes comments which point to shortcomings in the way the Council handled the access application in question, and states: "a reasonable search for records under section 53 of the GIPA Act relevant to this part of the access application could be email accounts of relevant staff members...": Report at [74]. However, the Report does not make comments of wider application about the way which Clarence Valley Council conducts searches in response to access applications generally.
It is not clear from the appellant's submissions whether he seeks to rely on the IPC Report to demonstrate a "systemic issue" about the way the respondent conducts searches in response to access applications such as to ground a potential referral under s 111 of the GIPA Act. That section permits NCAT to refer "any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally".
In his oral submissions at the Tribunal hearing, the appellant asked the Tribunal to order "a thorough review of council's record-keeping practices" and, in this context, asked the Tribunal to make a recommendation to the IPC or the Information Commissioner that the respondent be the subject of a review (Tcpt, p 29(19)). The appellant may have had in mind a referral under s 111 (or s 112) of the GIPA Act. However, he made no specific submission about those provisions in the GIPA Act.
From the material before us, the appellant did not put forward a clearly articulated submission to the Tribunal below that there were, or are, "systemic issues", for instance, in the way in which the respondent deals with access applications under the GIPA Act. While the IPC Report appears to have been in evidence before the Tribunal below, the appellant did not ask the Tribunal to consider the IPC Report in relation to a potential s 111 (or s 112) referral, nor did he raise the contents of, or the relevance of, the IPC Report in his submissions to the Tribunal.
For the sake of completeness, we note that in the Tribunal proceedings below and prior to the hearing, the appellant had lodged further documents dated 2 September 2024 which appear to be in the nature of submissions (in addition to his 16 July 2024 written submissions). In one of those documents, the appellant said that the Information Commissioner had previously found that this Council's searches were "not reasonable", with apparent reference to the IPC Report which he had included in a large bundle of documents. However, at the Tribunal's hearing, when the Senior Member asked the appellant if the 16 July 2024 submissions were his only submissions, the appellant confirmed that he relied only on the 16 July 2024 submissions. The 16 July 2024 submissions cannot be read to include any clearly articulated argument about referral of this Council under ss 111 or 112 of the GIPA Act, and the IPC Report is not mentioned in the 16 July 2024 submissions. Further, the appellant made no mention of the IPC Report in his oral submissions at the Tribunal's hearing.
In the context described above, we do not consider that the IPC Report provides support for the appellant's application for costs on the appeal.
We see no reason to depart from the usual costs rule that each party bear its own costs. Accordingly, we dismiss the appellant's application for costs in the appeal.

McNeill v Clarence Valley Council

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