Norkin v University of New England

NCAT Appeal Panel|2022-04-22|Before: Health J

Disclosure to the Appellant of the confidential affidavits and material filed by the Respondent in these proceedings is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 371 Date of Decision: 15 December 2021 Before: J Gatland, Senior Member File Number(s): 2020/00221116

Introduction

This is an Appeal by the Appellant against a decision of the Tribunal of 15 December 2021 (the Decision).
The Appellant sought access from the Respondent (the University) pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to the following information: The 'name (business or personal) of the contractor of the [Respondent] who conducted the GTE assessment…'.
The Appellant wants to know the name of the contractor engaged by the University (the Contractor) to assist in making enquiries as part of a Genuine Temporary Entrant (GTE) assessment which is part of the enrolment process for a foreign student.
On 7 May 2021, a delegate of the University determined that the Appellant was not to have the information he requested released to him.
Pursuant to s 63 of the Administrative Decisions Review Act 1997 (NSW), the Tribunal decided to affirm the University's decision of 7 May 2021.

Background

The University's decision was made after a third-party consultation pursuant to GIPA Act, s 54. The authorised decision maker recorded that: I have consulted with the third party who has confirmed that the information you seek is their personal information and their business, commercial, professional and financial information and they object to its release to you for the reasons that I have set out below.
Before the Tribunal, the University read and relied upon three affidavits from two witnesses. The first witness was the Director of UNE International (the Director). The Director made two affidavits, one was confidential, the other not. The non-confidential evidence was received in an open hearing and the Director was cross-examined. In addition, the Tribunal read and heard evidence from the Director in a confidential session in the absence of the Appellant.
The third affidavit, read by the University was confidential and was made by the Chief Communications Officer of the Contractor to the University whose name was sought by the Appellant pursuant to his request.
The Tribunal summarised the non-confidential evidence of the Director relevantly as follows: 15. The effect of the Director's oral evidence given at the hearing, including under cross-examination, was that University's use for GTE assessments arises from its participation in a framework known as the Simplified Student Visa Framework (SSVF). 16 Relevantly, the SSVF sees the University making its own inquiries as to whether a prospective international student might qualify for a grant of a student visa in the event that a formal offer of admission is made. By way of explanation of what a student visa application may entail, the Director's nonconfidential affidavit exhibited an overview of the Subclass 500 Student Visa from the Department of Home Affairs website. Exhibited to her non-confidential affidavit was a factsheet for educational providers concerning the SSVF. The Director's non-confidential affidavit mirrored the oral evidence given at the hearing on this issue. 17 The GTE assessment process features an "evidence level" which is allocated to each registered educational provider based on the "migration outcomes" of international students enrolled with the education provider in the previous six month period. (1) Migration outcomes include, according to the Director's evidence, the number and the rate of student visa applications which are refused due to fraud and which are lodged overseas. (2) Each country from which prospective students come is also allocated an "evidence level" based on the migration outcome of that country. 18. The Applicant cross-examined the Director about the different treatment of students depending on their nationality. The Director conceded that students were indeed treated differently in accordance with the evidence levels pertaining to their home country and that this was according to the requirements notified by the Department of Home Affairs. … 20 The Director's oral evidence about the GTE assessment process and evidence levels was to the following effect: (1) The University is the decision-maker in the GTE assessment process; (2) The University uses a contractor's report and recommendations as part of the relevant material to be considered in the GTE assessment process; (3) Only employees of the University liaise with students, student migration agents, and the GTE assessment contractors. There is no contact directly between the students or student migration agents and GTE assessment contractors. 21 As part of the steps taken by the University to undertake a GTE assessment process of prospective students from countries with a high immigration risk, the Director gave evidence that the University engages an external contractor to inquire or give recommendations about four things; (1) Firstly, whether the applicant is a genuine student; (2) Secondly, whether the applicant has an appropriate level of English; (3) Thirdly, whether the applicant has sufficient funds to support themselves and their dependants while living in Australia; and (4) Finally, whether the applicant is a genuine temporary entrant to Australia. … 23 The non-confidential evidence of the Director was further to the effect that there existed an industry practice of confidentiality with respect to engagement and name of the GTE assessment contractors. The Director's evidence was to the effect that the University and other institutions she is aware of never disclose the identities of the contractors engaged for GTE assessments. Specific to the University of New England, the Director's evidence was that there is no contact made between a contractor and prospective students or any person representing a prospective student. 24 None of the Director's evidence concerning the GTE assessment process or the use of contractors was challenged by the Applicant in cross-examination, nor was the Director's evidence on this topic illogical or unlikely. On that basis, I accept as a matter of fact, the matters set out concerning the GTE assessment process, the evidence levels maintained by the University, the checking process which the external contractor undertakes at the request of the University, the fact that the University never discloses the identity of the external contractor and that there is no contact made between the external contractor and any prospective student in the course of the contractor's work. 25 In non-confidential written evidence, the Director expressed concerns about the fact that release of the Contractor's name would be unconditional. The concern arose because the Applicant is a registered education agent whose role is to recruit and assist international students in applying to universities and other institutions in Australia. This evidence is relevant to considerations under GIPA Act, s 15(e) and s 55 and I have taken account of the concerns expressed by the Director relevant to those provisions. … 28 The Director's non-confidential evidence was that the University performs GTE assessments diligently in order to keep the evidence level for the University as low as possible. According to the Director's evidence, a low evidence level gives the University a competitive advantage in the "international student recruitment market" since, the lower the evidence level required, the less documentation a student may need when applying for a student visa. The Director's evidence was that applying to an education provider with a low evidence level is particularly attractive to students applying from countries which have a high evidence level. The Director under cross-examination gave evidence which was consistent with the non-confidential affidavit.
The Tribunal made the following further relevant findings: 1. that the Contractor was engaged by the University on a confidential basis to undertake tasks that were sensitive in nature pertaining to the GTE assessment: see [26(1)]; 2. the University needs to maintain confidentiality with respect to the identity of the contractors it engages for this purpose: see [26(2)]; 3. the role played by the Contractor is pivotal to the integrity of the GTE assessment system and the desirability that such contractors are not identified or subject to the stated concerns of lobbying, pressure or the payment of bribes: see [26(3)]; 4. the University has a genuine commercial and reputational interest in ensuring it retains a low evidence level with respect to the international student recruitment market: see [30]; 5. the release of the Contractor's details could reasonably be expected to compromise the integrity of the GTE assessment process undertaken by the University and to which it receives assistance from the Contractor: see [68]; 6. it could reasonably be expected that, if the integrity of the GTE assessment process were compromised then this would impair the ability of the University to recruit students who originate from high immigration risk countries; 7. the evidence establishes that the disclosure of the Contractor's name would prejudice the University's commercial and business interests: see [71]; 8. disclosure of the Contractor's name will inevitably reveal the fact that the Contractor undertakes this type of work which it has contracted to do on a confidential basis and that the individuals who undertake these tasks as employees of the Contractor will also be identified: see [86]; 9. the University has established that this public interest consideration against disclosure applies to the information requested by the Appellant; 10. on disclosure of the Contractor's name there is a likelihood of detrimental impact on the competitive position of the University and that this consideration applies in favour of there being an overriding public interest against disclosure: see [102]; and 11. release of the Contractor's name will not enhance government accountability, nor will the release of the name provide further information to the Appellant or the public concerning the policies and practices of the University: see [108].

Notice of Appeal

The Appellant, who was self-represented, put forward six grounds of appeal in his Notice of Appeal. These were said to be errors of law and leave to appeal was not sought in the Notice of Appeal. The Appellant confirmed and emphasised in his oral address to us that he was not seeking leave to appeal in respect of any of his grounds of appeal.
Ms Tipene, solicitor, appeared for the University.

Ground 1

Ground 1 is as follows: Tribunal ignored my written submission that function of GTE assessment is not vested to Respondent according to the law.
The Appellant elaborated on this ground of appeal in his submissions by making two points as follows: 1. "paragraphs [15] - [28] and [30] of the Decision do not entertain at all my arguments at paragraph 1 of my written submissions made on 30.08.2021 that SSVF, which allows the Respondent to conduct GTE pre-assessment, contradicts common law"; 2. the Tribunal did not consider another argument the Appellant made, namely that the University "was not able to prove that its 'binding policy' SSVF was published: 'there is no evidence before us which establishes that the policy itself, that is the SSVF, was published before the end of May 2018" (DQV v University of New England [2021] NSWCATAP 208 at [68]). To bind the citizen by law, the terms of which he has no means of knowing, would be a mark of tyranny. (Barwick CJ, Watson v Lee (1979) 144 CLR 374 at 5."
The Appeal Panel notes that the Tribunal discussed the GTE assessment process in a number of places, including: 1. at [14] - [28], when discussing the University's evidence; 2. at [66] and [107(1)], where the Tribunal accepts that the GTE assessment process is one of the functions undertaken by the University based on the evidence provided by the University's witness, being the Director; 3. at [24], where the Tribunal notes, the Director's evidence 'concerning the GTE assessment process' was not challenged by the Appellant during cross-examination.
We note that the Appellant's written submissions dated 30 August 2021 were before the Tribunal and the Tribunal refers to these written submissions at [80]. In our view, any failure to refer expressly to all of the issues raised in these written submissions does not constitute an error of law.
The Tribunal is not required to itemise and discuss every submission that is made by a party in the making of its decision and the failure to itemise and deal with every such submission is not an error of law.
Section 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a written statement of reasons, given on request by a party under s 62(2), must set out: 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based; 2. the Tribunal's understanding of the applicable law; and 3. the reasoning processes that lead the Tribunal to the conclusions it made.
In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), Bell P at [55] stated, while the operation of s 62(3) of the NCAT Act 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)".
Bell P went on to state at [72] that while s 62(3) provides a "useful starting point" as to what is required in a statement of reasons, it "still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".
In Orr, the NSW Court of Appeal went on to confirm (at [73) - [75] and [77]), in addition to s 62(3) of the NCAT Act, the following is required in order for reasons to be adequate: 1. while a detailed exposition of every element of the evidence and arguments is not necessary, a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is required; 2. it is not necessary to detail each factor found to be relevant or irrelevant, or to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference to what is found is appropriately clear, and the basis of the decision is made apparent; 3. the reasons must indicate to the parties why the decision was made, and allow them to exercise any rights that may be available to them in respect of the decision (including any avenue of appeal); 4. the reasons must provide an explanation connecting any findings of fact with the decision reached; and 5. it is not necessary to decide each factual issue in isolation from the others, and expressing conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.
Further, the NSW Court of Appeal in Orr at [77], stated that reviewing the adequacy of a decision maker's reasons, the Appeal Panel: 1. should not read passages from the reasons for decision in isolation from others to which they may be related; 2. must read the reasons fairly and as a whole; 3. should not inspect the reasons with a fine-tooth comb attuned to identifying error; and 4. should have a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the Tribunal's thoughts or verbal slips (Orr at [77]).
The Tribunal is not required to deal with every single legal submission or legal argument that may be put forward in written submissions. As provided for in s 62(3) of the NCAT Act the starting point is the obligation to set out the Tribunal's understanding of 'the applicable law'.
In our view, the contention that was raised by the Appellant in his written submissions, to the effect: 1. that the Simplified Student Visa Function (SSVF) may contradict the common law or any common law rights; or 2. that the supposed 'open finding policy', being the SSVF, cannot be proven to have been published; has no relevance to the Tribunal's function in reviewing the decision made by the University under the GIPA Act not to disclose the name of the Contractor.
In our view, even if a failure to consider these issues could constitute an error of law any express consideration of them, given their lack of relevance, would not affect the outcome of the Decision.
In our view, the Tribunal's reasoning process was logical and defensible. The Decision: 1. identified the issues; 2. identified the relevant law; 3. had regard to the parties' evidence and authorities; 4. discussed the parties' submissions in relation to each of the relevant issues for determination; 5. outlined the Tribunal's findings and conclusions on the basis of the parties' material and any relevant authorities the Tribunal found to be persuasive; and 6. reached a conclusion.
In conclusion, any failure to deal with the contentions put forward in the written submissions as outlined in this ground of appeal does not constitute an error of law.
Accordingly, we reject ground 1.

Ground 2

Ground 2 is as follows: Lack in reasoning - published reasons do not explain how release of contractor's name would prejudice exercise of GTE function and commercial interests of Uni and contractor.
The Appellant submits that at [65]-[72] and [103]-[104] of the Decision the Tribunal did not explain how a publication of the Contractor's name could compromise the integrity of the GTE assessment. The Appellant submits that the paragraphs are 'a conclusion only'.
In our view, the Tribunal provided adequate reasons for its Decision consistent with the law as outlined in Orr and as discussed by us above. The issue of whether the disclosure of the information could reasonably be expected to prejudice the effective exercise of the function of the University (under s 14(1)(f) of the GIPA Act), was discussed by the Tribunal at [65] - [72] of the Decision.
We note that the Tribunal: 1. identifies the relevant public interest consideration against disclosure (at [65] and at [47] - [60]) generally in relation to the relevant test under the GIPA Act; 2. discusses the function of the University, having regard to the Director's evidence about the function: at [66] and [67]; and 3. discusses the harm the University could reasonably expect to suffer as a consequence of the disclosure of the information: at [69].
Based upon the evidence of the Director, the Tribunal found that the release of the Contractor's details could reasonably be expected to compromise the integrity of the GTE assessment process: at [68].
The Tribunal then also found that it could reasonably be expected that, if the integrity of the GTE assessment process were compromised, then this would impair the ability of the University to recruit students who originate from high immigration risk countries.
Having set out the relevant evidence of the Director, which supports the conclusions and findings made by the Tribunal, in our view, the Tribunal has provided sufficient and adequate reasons for its conclusion in this regard and no error of law has been demonstrated.
We also note that, as the Tribunal pointed out at [69], the Appellant 'did not challenge the Director's evidence on any aspect concerning this point'.
Accordingly, we reject ground 2.

Ground 3

Ground 3 is as follows: Grave breach of natural justice. Tribunal refused to provide me a redacted version of confidential affidavits and conduct cross-examine of witnesses, including original decision maker.
The Appellant provided some elaboration of this ground in his written submissions as follows: I requested and expected to be served with REDACTED version of affidavits. My right to conduct (cross?) examination of original decision maker whose decision was under review and formed part of the file was denied.
In relation to the confidential evidence filed by the University under s 64(1)(d) of the NCAT Act, the University submits it was open (and appropriate) for the Tribunal to take certain evidence of the University in a confidential session and in the absence of the Appellant in order to comply with s 107(2) of the GIPA Act.
Section 107 of the GIPA Act provides, relevantly, as follows: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in reasons for the decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
The Tribunal gave effect to this obligation by making an order under s 64 of the NCAT Act.
Section 64 of the NCAT Act provides, relevantly, as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
Section 64(1)(d) of the NCAT Act is an express exception to s 38(2) of the NCAT Act which provides that the Tribunal is bound by the principles of procedural fairness.
Before making an order under s 64(1)(d) of the NCAT Act, the Tribunal must be satisfied that it is "desirable" to do so by reason of the confidential nature of the evidence or the document or for any other reason.
The word "desirable" has been interpreted with regard to the most basic common law precept of open justice (see State of New South Wales (Justice Health) v Dezfouli (2008) NSWADTAP 69 at [61], which referred to s 75(2) of the then Administrative Decisions Review Act 1997 (NSW), the precursor to s 64 of the NCAT Act).
In Bellamy v Bellamy (2018) NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d) of the NCAT Act: Section 64(1)(d) is a provision which applies generally to the proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.
In our view, it was open to the Tribunal, and was not an error of law, to find that it was desirable for the Tribunal to make an order under s 64(1)(d) of the NCAT Act in respect of the University's confidential evidence because, absent such an order, the disclosure of information would disclose information subject to an overriding public interest against disclosure under the GIPA Act.
Accordingly, we reject this part of ground 3.
The second aspect of the Appellant's submission with respect to ground 3 is that he was denied the opportunity to cross-examine the 'original decision maker whose decision was under review'.
The original decision maker was not called to give evidence by the University in the proceedings before the Tribunal. The evidence chosen to be put forward by the University was that of the Director and the Contractor (whose evidence solely was given on a confidential basis).
The University is free to conduct its case and lead its evidence as it chooses. There is no obligation to call and have available for cross-examination the original decision maker.
This was confirmed in Lonsdale v University of Sydney [2015] NSWCATAP 27, where the Appeal Panel commented that the respondent agency will choose how to present its case so as to meet the burden of proof. There is no requirement for the respondent agency to call a particular witness, such as the delegate who made the primary decision under the GIPA Act.
In our view, this aspect of ground 3 is misconceived. The University's decision not to call the delegate who made the primary decision does not amount to a denial of procedural fairness to the Appellant.
Accordingly, we reject ground 3.

Ground 4

Ground 4 is as follows: Partial contracting out of purported governmental function (preparation of GTE assessment report) does not make that ultra vires activity as non-governmental in nature. See Offshore processing case HCA 2010.
The Appellant focused upon paragraph [80] of the Decision which is as follows: 80. Contrary to the Applicant's submissions, the exclusion of a name from the definition of personal information does not squarely apply in this case. The Applicant seeks disclosure of "the name (business or personal) of the contractor who conducted the GTE assessment ... ". In AFW v WorkCover Authority (NSW) [2013] NSWADT 51, a document called the "key personnel register" which recorded the names of scheme agents was released by order of the Tribunal. The basis of that release was the finding that the scheme agents were in fact exercising public functions of the agency. The activities of the Contractor and its staff do not amount to the exercise of public functions of the University. It was established, from the Director's evidence, that the University exercises the public function, it undertakes the assessment and relies on the Contractor and the Contractor's staff to assist in some aspects of the GTE assessment process.
The Appellant submits that the Tribunal failed to evaluate what he described as conflicting evidence from the Director. This evidence is contained in paragraphs 15, 16 and 25 of the non-confidential affidavit of the Director. In this evidence, the Director refers to the University acting 'as a clearing house'; to the fact of engagement of 'an external contractor to undertake GTE assessments' and to the fact that 'the GTE assessment in that matter was conducted by the same contractor the subject of these proceedings…'.
The Appellant also submits that some of the relevant parts of the University's operative procedures refer to the 'University's contracted third party undertaking the GTE assessment'.
Finally, the Appellant submits that even if the Tribunal is correct in concluding that the assessor only makes recommendations by providing a report, such recommendations are covered by the rules of natural justice, subject to judicial review, so therefore there is a public function involved: citing in support Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41.
The contention that there was 'conflicting evidence' in respect of the finding of the Tribunal at [80], does not raise any error of law. This is sufficient for us to dismiss this ground of appeal.
In any event, based on the material before the Appeal Panel, we are satisfied that the Tribunal's finding at [80] was reasonably open to it based upon the Director's evidence, which we note was not challenged during cross-examination.
We note that the Director, as stated by the Tribunal in its Decision, gave the following evidence: 1. the University engages an external contractor to inquire or give recommendations about four things: at [21]; 2. no contact is made between a contractor and prospective students or any person representing a prospective student: at [23]; and 3. none of the Director's evidence concerning the GTE assessment process or the use of contractors was challenged by the Appellant during cross-examination at [24].
We note and reiterate that the Appellant made it clear he was only pursuing errors of law. Even if he had applied for leave to appeal from the finding at [80], we would not have granted leave to appeal.
Finally, to the extent that a legal argument is raised by the Appellant suggesting there was some breach of the rules of natural justice in the GTE assessment process, in our view, this contention can have no bearing on, or relevance to, the issues that were to be decided by the Tribunal under the GIPA Act.
Accordingly, we reject this ground of appeal.

Ground 5

Ground 5 is as follows: Tribunal has weaken my argument (par. 106, 62(3) and 108) about RIGHT under APP 12 to access.
The Appellant expanded upon this in his written submissions as follows: At par. 105 Tribunal concluded: "No prejudice is disclosed concerning the Applicant's relevant interests. However, I note that the application appears to stem from the fact that the Applicant's name and information was provided to the Contractor, and he wished to know who had received his information". It is not just a "wish" it is a legal right to access to information under 12 APP.
In our view, this ground of appeal is misconceived. Australian Privacy Principle 12 (see Schedule 1 of the Privacy Act 1988 (Cth) (the Privacy Act)) refers to applications for access to personal information. However, the University is not a relevant entity for the purposes of the Privacy Act. The Appellant has no rights under the Privacy Act to seek access to his personal information as it is held by the University.
The finding of the Tribunal at [105] that no prejudice to the Appellant's interests was identified, was being considered by the Tribunal in respect of consideration of the harm test in cl 4(d) of the table to s 14 of the GIPA Act.
Clause 4(d) of the table to s 14 is an example of a public interest consideration against disclosure. That provision requires a decision maker to determine whether disclosure of information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial affairs.
It may be that 'any' person, for the purposes of cl 4(d) of the table to s 14 of the GIPA Act, could include an access applicant and the Appellant. The Tribunal at [105] made a finding that there was no evidence before it that the disclosure of the name of an external third-party contractor to the University could reasonably be expected to prejudice the Appellant's legitimate business, commercial, professional or financial affairs. There does not appear to be any difficulty or error or even dispute about this finding.
Also, in our view, there can be no error in the Tribunal's comment that it was the Appellant's wish to know who had received his information.
Finally, it has not been made clear to us that the references to paragraphs [106], [62(3)] and [108] of the Decision in ground 5 in the Notice of Appeal have any relevance to the complaint made about the Tribunal's finding at [105].
Accordingly, we reject ground 5.

Ground 6

Ground 6 is as follows: Tribunal treats NCAT decisions as legally binding precedents (see par 50, 51, 52, 55, 57... 84, 101). See Viro v R HCA 1978.
The only elucidation of this ground of appeal came in the Appellant's written submissions in the following sentence: Tribunal's decisions are only "authority" for the parties of those proceedings.
In our view, this ground of appeal is misconceived. The Appellant submits that the Tribunal considered itself to be bound by previous decisions referred to by the Tribunal in its Decision and that this is an error of law. However, it is plain that the Tribunal has not in any way considered itself to be bound, as a matter of legally binding precedent, to follow any of these previous decisions of the Tribunal.
There is no express statement to this effect anywhere in the Tribunal's Decision.
There can be no error of law involved to the extent that the Tribunal has referred to and decided to follow, other decisions of the Tribunal.
For example, the Tribunal at paragraphs [50], [51], [52], [55] and [57] has discussed the relevant sections of the GIPA Act and merely, and correctly, cited authorities which discuss those relevant sections: for example, Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286; Hurst v Wagga Wagga City Council [2011] NSWADT 307 and Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80.
In respect of the authorities referred to at [84] and [101], the Tribunal did not consider itself to be bound by the authorities referred to in those paragraphs. The Tribunal, in fact, distinguished the facts in the case before it from those cases and made findings accordingly.
Whilst not relevant, we note that the Appeal Panel has ruled by reference to the Tribunal's constituting legislation, that it is appropriate for members of the Tribunal sitting at first instance in the Tribunal to consider themselves bound to follow decisions of the Appeal Panel on questions of law: see Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [196].
Accordingly, we reject ground 6.

Additional Arguments

The Appellant in his written submissions, purported to raise at paragraphs (a) to (d), some 'additional arguments'.
These additional 'arguments' are not connected to any of the existing six grounds of appeal. Those grounds are not part of the Appellant's Notice of Appeal.
The University strongly objected to the Appellant being able to raise new matters at such a late stage in the proceedings.
The Appellant did not seek leave to amend his Notice of Appeal to add any additional grounds of appeal. Further, the Appellant did not elaborate on these 'additional arguments' in his oral address to us. The intended meaning of these 'additional arguments' is confusing and unclear.
In our view, the University would be prejudiced if we sought to deal with these additional arguments as raising new grounds of appeal. Further, none of the additional arguments raise any error of law.
Accordingly, we decline to grant the Appellant leave to raise any of the so-called additional arguments.

Orders

The Appeal Panel orders are: 1. Appeal is dismissed. 2. Publication of the confidential affidavits and material filed by the Respondent in these proceedings is prohibited. 3. Disclosure to the Appellant of the confidential affidavits and material filed by the Respondent in these proceedings is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2022

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