Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell

Background

1. In August 2014 the Applicants lodged a joint application with the Tribunal seeking the following orders: 1. an order pursuant to section 110 of the GIPA Act that the Respondent not be permitted to make an access application to any of them under the GIPA Act without first obtaining the approval of the Tribunal; and 2. in the alternative, an order under the same provision that the Respondent not be permitted to make an access application to any of them under the GIPA Act for government information related to the City to Soil Project without first obtaining the approval of the Tribunal.
2. It seems that the Respondent has been making numerous access applications to the Applicants in relation to a program known as the City to Soil Project. It also seems that the Respondent is using that process in an attempt to obtain evidence to support his belief that there has been corrupt conduct in relation to that project.
3. The Applicants contend that a restraint order would have the effect of requiring the Respondent to satisfy the Tribunal that any future applications are reasonable, providing a very worthwhile "safety valve".
4. The Applicants' grounds for the application are essentially that the Applicants are agencies for the purposes of the GIPA Act, and that Mr Powell has made at least 3 access applications that lack merit in the previous 2 years. The Applicants tendered evidence to support that contention. They rely on access applications that have been made to each of the Applicants, the NSW Office of Environment and Heritage (OEH) and NSW Environmental Protection Authority (EPA).
5. The essential precondition is that the Respondent has lodged at least three unmeritorious" access applications in the previous 2 years. Once that precondition is satisfied, section 110(1) confers a broad discretion on the Tribunal as to whether a restraint order should be made.

The Information Commissioner's Submissions

1. Ms Cathy Mclnnes provided submissions on behalf of the Information Commissioner. In part she submitted: The Information Commissioner is of the view that if an agency is seeking to assert that applications are lacking in merit based on one of the grounds in section 110(2) these decisions need to be assessed by the Tribunal. The grounds and reasons for the specific decisions should be provided to the Tribunal. Grounds and reasons should establish the assessments made by the agency in coming to the decision, including why an application has been refused entirely, searches conducted for information, how fees and charges have been established, including any notices given to the applicant and any financial hardship assessments made. The Information Commissioner observes that it is open to an agency to refuse an application in its entirety under section 60(1) of the GIPA Act. Section 60(1) provides for the following reasons for refusing an access application in whole or part: a. Dealing with the application would require an unreasonable and substantial diversion of the agency's resources; b. The agency has already decided a previous application for the information concerned (or the information is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application; c. The applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989, d. The applicant has failed to pay an advance deposit that is payable in connection with the application; e. The information is or has been the subject of a subpoena or other order of a court for the production of documents as is available to the applicant as a result of having been produced in compliance with the subpoena or other order. Section 60(1 (a) and (b) would assist the Tribunal in its consideration of the grounds and reasons for an agency in refusing an application in its entirety, as provided by section 110 (2)(a). The Information Commissioner notes that the Tribunal, under section 110 is not required to make a declaration that the person making access applications which are regarded as lacking in merit is a "vexatious applicant". The Information Commissioner notes that other information access jurisdictions have considered the issue of vexatious applicant declarations where there have been findings or orders that applicants have engaged in access applications that result in an abuse of access. In particular there was a declaration by the Australian Information Commissioner (Professor John McMillan) in the Department of Defence and W [2013] AlCmr 2 (17 January 2013). In considering whether to make a declaration that W was a vexatious applicant the Australian Information Commissioner observed at [12]: The policy that underlies this new Information Commissioner function is apparent, to some extent, from the terms in which it is conferred by the FOI Act. The FOI Act confers an important legal right upon members of the public to obtain access to government information. However, that legal right should not be abused by conduct that harasses or intimidates agency staff, unreasonably interferes with the operations of agencies, circumvents court imposed restrictions on document access, or is manifestly unreasonable. The Australian Information Commissioner noted that there is general case law and legislation allowing courts and tribunals to declare litigants as vexatious, but observed the tension between information access legislation and the conduct of some applicants ... I note that there is an extensive body of case law on the power of courts and tribunals to declare either proceedings or a litigant to be vexatious. (See Attorney-General of NSW v Wentworth (1988) 14 NSWLR 481; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256.) There is general legislation in some Australian jurisdictions, (See vexatious Proceedings Act 2005 (Qld); Vexatious Proceedings Act 2008 (NSW); Vexatious Proceedings Restriction Act 2002 (WA)) and specific provisions in most statutes that regulate Civil proceedings. (See Federal Magistrates Court Rules 2001 (Cth) reg 13.11; Administrative Appeals Tribunal Act 1975 (Cth) s 42B. The case law and legislative prescription provides valuable examples of behaviour that has been treated as vexatious or an abuse of process. However, caution is required in applying to FOI requests principles developed in another context. A request for access to documents held by a government agency can be different in nature to legal proceedings commenced by one individual against another. Questions that can arise in the civil litigation context - to do with a person's motive in commencing proceedings, their relationship with or attitude towards the other party, the legal merit of a claim, and the utility of the proceedings - are not usually relevant in an FOI context (for example, FOI Act s 11(2)). The FOI Act also enables agencies to limit the administrative cost or burden of access requests by imposing an access charge (s 11A(1)(b)) or denying access on a practical refusal ground (s 24(1 )(b)). On the other hand as noted above in [13], it is now relatively easy and can be cost-free for a person to make multiple FOI requests that can be disruptive and resource-intensive for agencies. The Information Commissioner's view is access applications under the GIPA Act continue to need to be assessed individually, and on the specifics of the access application for information. Section 55 of the GIPA Act allows an agency to take into account the motives of an applicant when considering the personal factors of the access request as part of the considerations in favour and against disclosing information. The Information Commissioner notes that persistent and repeated access applications by individuals for the same or similar government information may be behaviour that impacts on an agency's ability and resources to promote open access to information to the public generally. However, any access decisions made by agencies must consider the objects of the GIPA Act that is, to promote open access to government information. There is an explicit presumption for disclosing government information unless the balance against disclosure outweighs the balance for disclosing the information.
2. For the reasons I set out below, I do not totally agree with the Information Commissioner's submissions. I am satisfied that the precondition has been met. It is therefore a question of whether the application should be granted in the circumstances of this matter.

The Applicants' case

1. Mr Bradbury appeared on behalf of the Applicants. He provided written and oral submissions in support of their case. Affidavit evidence was also provided on behalf of each of the Applicants. Affidavits were provided by: 1. Ms Deborah Ferguson, the Manager Executive Services of Palerang Council; 2. Mr William Warne, the Executive Manager - Legal and Risk at Queanbeyan City Council; 3. Ms Maria Timothy, the Manager Governance at Goulburn Mulwaree Council; 4. Ms Alice Menyhart, the solicitor with the day to day carriage of the application.
2. Those who provided affidavits also appeared at the hearing; gave evidence and was cross-examined.
3. Mr Powell made submissions on his own behalf.

The evidence of Alice Menyhart

1. Ms Menyhart is a solicitor employed by Bradley Allen Love Lawyers, the firm which represents the Applicants in these proceedings. She was responsible for the-day-to-day carriage of the matter.
2. Ms Menyhart provided evidence in regard to her contact with the OEH and the EPA in regard to GIPA Act access applications brought by the Respondent to those agencies. She also annexed to her affidavit copies of correspondence between those agencies and the Respondent in regard to those access applications.
3. Those annexures show that the Respondent had made access applications to the OEH which fell within the section 110 definition of the types of applications that are to be regarded as having lacked merit.
4. Ms Menyhart did not vary her evidence under cross-examination in any material sense.

The evidence of Deborah Ferguson

1. Ms Ferguson is the Manager Executive Services of Palerang Council. Her roles at the Council include processing and responding to formal and informal access applications made under the GIPA Act. Palerang Council is a small Council with no dedicated GIPA unit. Her responsibilities under the GIPA Act are one of about ten roles that she performs. In that role she has had numerous dealings with the Respondent. For example, in the period between August and October 2014 the Respondent had sent over 600 emails. All of those emails were in relation to a program known as the City to Soil project. Her evidence was that there was also a steady stream of emails in November 2014.
2. Ms Ferguson referred to eighteen formal and one informal access applications brought by the Respondent under the GIPA Act. Access application from the Respondent constituted the overwhelming majority of all access applications received by Palerang Council. Ms Ferguson said that some of the access applications from the Respondent were broad requests that were very time consuming. As an example, she referred to an access application brought on 10 July 2014 in which the Respondent sought: 1. Any information in any record of any nature whatsoever held by Palerang Council recording the source description, number, purchase cost, storage costs transportation costs, inventory entries or other detail relating to the Mobile Garbage Bins vented bins and compostable bags purchased for or by Palerang Council for use in the City to Soil project including any tender information for supply issued by Palerang Council for any of the above items, before during or after the City to Soil project. 2. Any information in any record of any nature whatsoever held by Palerang Council indicating the destination (intermediate or final) of any organic waste material currently collected by it or any contracted party or agent within the Palerang Shire or elsewhere under the City to Soil project or otherwise and any contracts in relation thereto.
3. Ms Ferguson estimated that the time required to process that access application was between 40 to 50 hours. She determined that this would require an unreasonable and substantial diversion of Council's resources. As the Respondent declined to narrow the scope of his application she decided, to refuse the application under section 60(1)(a) and 60(4) of the GIPA Act.
4. In response to questions from the Respondent, she elaborated on the process that she undertook. It is clear from her evidence that she has found her interactions with the Respondent to be difficult. She has found some of his correspondence offensive and upsetting in that it called her integrity into question in a way that she considered unfair.
5. Ms Ferguson provided a table showing the outcome of 17 access applications brought by the Respondent. This showed that: Of the 17 applications made by the Respondent I decided, on behalf of Palerang Council: a. to grant access to some or all of the information sought in respect of the following 5 applications; Application dated 29 July 2013; Application dated 5 September 2013; Application dated 6 September 2013; Application dated 17 September 2013; Application dated 17 July 2014. b. to refuse access to the information sought in the application dated 27 February 2014 on the basis that there was an overriding public interest against disclosure of the information; c. to refuse to deal with the application from the Respondent dated 10 July 2014 in its entirety under section 60(1)(a) of the GIPA Act because dealing with the application would have required an unreasonable and substantial diversion of the agency's resources. d. to refuse to deal with the following 3 applications from the Respondent in their entirety under section 60(1)(c) of the GIPA Act because the applicant failed to pay the advance deposit that was payable in connection with the applications: Second Application dated 6 September 2013; Application dated 12 September 2013 Application dated 24 March 2014 e. that none of the information applied for was held by Palerang Council under section 58(1)(b) of the GIPA Act in respect of the following 7 applications from the Respondent; Application dated 8 July 2013; Second Application dated 8 July 2013; Third Application dated 6 September 2013; Application dated 1 October 2013; Application dated 26 February 2014; Application dated 5 March 2014; Application dated 17 March 2014.
6. Ms Ferguson provided explanations in relation to the decisions that she had taken in relation to the Respondent's access applications.
7. The Respondent cross-examined Ms Ferguson. He challenged her approach to dealing with his access applications and put to her that much of the work she undertook was unnecessary and costly and contrary to the objective, set out in section 3 of the GIPA Act, that that the discretions conferred by the Act be exercised, as far as possible, "so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information". Ms Ferguson denied the Respondent's assertion that she had failed to meet that objective.
8. In response to the Respondent's criticism of some of her decisions were inconsistent (e.g. her decisions in relation to a request for a memorandum of understanding between a Mr Richard Graham and Palerang Council), Ms Ferguson insisted that she was required to process the application in the terms that it was made and to not guess what the Respondent had intended it to mean. She did not agree that she should have sought clarification from him as she was able to deal with the application in the terms that it was made.
9. In relation to the Respondent's criticism of some of her decisions that documents he had requested were not held by the council, in circumstances in which he argued that there was good reason to believe that the documents would exist, Ms Ferguson explained the process she followed in order to locate the requested documents and also explained how she was able to conclude that the documents were not held.
10. She explained the processes that she had to follow in processing the access applications. She did not accept the Respondent's contention that she should have adopted a different approach to the processing of those applications and she was not shaken in her view that her actions were reasonable in the circumstances.

The evidence of William Warne

1. Mr Warne is the Executive Manager - Legal and Risk at Queanbeyan City Council. His role includes processing and responding to formal and informal access applications made under the GIPA Act. He said that his role in relation to the GIPA Act is only a small part of his overall duties.
2. Mr Warne stated that since June 2014 Queanbeyan City Council had received 5 access applications from the Respondent all of which sought information relating to the City to Soil Project. He further stated that the Respondent has indicated that he intends to make further access applications to the Council.
3. Mr Warne stated that he had been offended by comments that the Respondent had made in correspondence to him.
4. In regard to the Respondent's 5 access applications, Mr Warne had decided, 1. to provide access to some or all of the information sought in the application dated 26 June 2014; 2. to refuse to deal with the following 2 applications under s60(1)(c) of the GIPA Act: 1. Second Application dated 26 June 2014; and 2. Application dated 1 July 2014. 1. to refuse to deal with the application dated 19 June 2014 pursuant to section 51(1)(b) of the GIPA Act on the basis that the application was not valid; 2. to refuse to deal with the application dated 22 October 2014 pursuant to s58(1)(b) of the GIPA Act on the basis that the information sought is not held by the Council.
5. In his affidavit Mr Warne set out the details of the various access applications and the processing of the applications. In the annexures to his affidavit he provided documentation with respect to his delegated functions as well as the documentation relating to the access applications and the processing of those applications.
6. In response to the Respondent's criticism of some of his decisions Mr Warne explained the process that he had adopted and the reasons for the information he had provided. He did not agree that he had provided false information as the Respondent suggested.
7. In response to the Respondent's criticism that he had requested a $90 payment in relation to a document that could be downloaded for free from the internet, Mr Warne stated that he processed the applications in accordance with the GIPA Act.
8. When asked about why he had combined with Ms Timothy and Ms Ferguson in regard to this section 110 application, Mr Warne explained that when they were meeting in regard to other matters they had discussed the fact that there had been a number of access applications from the Respondent and that those applications were tying up considerable time and resources. They discussed the implications for the Applicants and decided that the section 110 application was warranted. When asked how Ms Timothy had reacted, he said that she had agreed with the course of action.
9. Mr Warne explained the processes that he had to follow in processing the access applications and how charges associated with processing of access applications are calculated. He did not accept that he should have adopted a different approach to the processing of the Respondent's applications.

The evidence of Maria Timothy

1. Ms Timothy is the Manager Governance at Goulburn Mulwaree Council. She has held that position since September 2014. Prior to that she held the position of Governance Coordinator from February 2012. Her role includes processing and responding to formal and informal access applications made under the GIPA Act.
2. Her duties in relation to the GIPA Act take up about 10% of her work time.
3. Since June 2014 Goulburn Mulwaree Council has received 9 formal access applications from the Respondent. All of the applications seek information relating to the City to Soil Project. Of the 9 applications, 5 were not determined within the statutory timeframe and the Council is therefore deemed to have decided to refuse to deal with the applications under section 63 of the GIPA Act. The Respondent referred 3 of those decisions to the Information and Privacy Commission for review.
4. Ms Timothy stated that the remaining four access applications were not valid applications because they did not contain enough detail to enable her to identify the information that was being sought. She said that the Respondent had indicated that he intends to make further access applications to the Council.
5. Ms Timothy annexed a copy of each of the Respondent's access applications to her affidavit and provided an explanation of the steps, if any, that were taken in relation to each of those applications. She said that all the GIPA Act access applications that had been received by Goulburn Mulwaree Council had been lodged by the Respondent.
6. In her evidence before the Tribunal Ms Timothy stated that she found comments made by the Respondent to be offensive and that he had sent offensive comments about her to a number of people and that he had published them. She said that she felt harassed by his calling her integrity into question in public without any substantiation.
7. Ms Timothy was unable to provide answers to most of the questions put to her under cross-examination. In that respect her evidence amounted to little more than placing the Respondent's access applications before the Tribunal.

The Applicants' submissions

1. Mr Bradbury provided written submissions on behalf of the Applicants.
2. He notes that section 110 does not contain any description of the factors that might be taken into account by the Tribunal in exercising its discretion to make a restraint order.
3. He submits that the scope of the Tribunal's discretion is to be found by considering the provisions of section 110 in the context of the GIPA Act as a whole and, in particular, having regard to the objects of the GIPA Act. Section 3(1)(b) of the GIPA Act provides that the discretions conferred by the Act are to be "exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information."
4. A balancing exercise is required between conferring a legally enforceable right to access and ensuring that access applications do not unreasonably interfere with agency operations.
5. Mr Bradbury submitted that the following matters are relevant matters for consideration in the exercise of the discretion under section 110: 1. The total number of access applications (including but not limited to applications which lack merit) that have been made; 2. The fact that the applications are all in one way or another seeking information about the same thing, the City to Soil project; 3. The amount of information the agencies have provided in response to those applications; 4. The resources of the agencies; and 5. The conduct of the access applicant.
6. Mr Bradbury made submissions in relation to each of those factors.
7. Mr Bradbury also made submissions in relation to those provided by the Information Commissioner. The Applicants disagree with the Information Commissioner's submissions suggesting that the making of an application under section 110 requires the Tribunal to assess each decision that an application made by the Respondent is lacking in merit.

The Respondent's submissions

1. Mr Powell made oral submissions on his own behalf. He submitted that the GIPA Act is intended to allow people to obtain information. It provides an enforceable right to do so.
2. He submitted that the Tribunal should not make the order sought. He said that making the order would simply make more administrative work and it would not stop him from getting a friend to act on his behalf.
3. He argued that the Applicants are misusing the GIPA Act and in doing so are forcing him to take more steps. He noted that Mr Warne wanted to charge him $500 to tell him that there were no figures held in response to one of his requests. He further said that he is attempting to expose fraud and he is placed at a disadvantage because to do so he needs to approach the agency where he contends the fraud has occurred. He said that there is no alternate way to address information that is inconvenient to the agency.
4. He submitted that each of the Applicants is trying to suppress individual's rights. In regard to the evidence that he had sent over 600 emails to Palerang Council he said that most of the emails were requesting a reply.

Discussion

1. The making of a restraint order has the practical effect of restricting the ability of a person to access government information in accordance with the GIPA Act. The right to seek access to government information is an important one and for that reason a restraint order will not be made lightly.
2. As noted above, I am satisfied on the evidence before me that the preconditions for an order under section 110 (3) of the GIPA Act are made out.
3. I note that the Applicants disagreed with the Information Commissioner's submissions suggesting that the making of an application under section 110 requires the Tribunal to assess each decision that an application made by the Respondent is lacking in merit. I agree with Mr Bradbury in that regard.
4. In my view it is necessary for the Tribunal to be satisfied that the required number of unmeritorious applications have been made in the previous 2 years. However, I do not agree that the Tribunal is required to assess each decision. As Mr Bradbury observed, to do so would be to provide the Respondent with an alternative review mechanism. I do not accept that that is the intention of section 110.
5. I also note that Mr Bradbury queried the relevance of the passages cited from Department of Defence and W given the absence of any requirement in the Act to find that the respondent is "vexatious". This issue was the subject of some discussion by Senior Member McAteer in Pittwater Council v Walker. I do not propose to revisit the issue in this matter other than to say that I agree with the Information Commissioner's submission that persistent and repeated access applications by individuals for the same or similar government information may be behaviour that impacts on an agency's ability and resources to promote open access to information to the public generally.
6. I agree with the substance of Mr Bradbury's submissions in relation to the relevant consideration in regard to the Tribunal's exercise of its discretion under section 110 of the GIPA Act. It appears from the decision in Pittwater Council v Walker that these are the types of consideration that Senior Member McAteer took into account in determining that application.
7. I also note and agree with the observation of Deputy President Constance in Sweeney v Australia Information Commissioner [2014] AATA 539 that the impact on the individual should be proportionate to the interests which the decision-maker is seeking to protect.
8. In regard to the relevant considerations I make the following observations:

The total number of access applications made by the Respondent

1. The Respondent has made a total number of 37 formal access applications to the Applicants and OEH in the last two years. Of those, 18 applications were regarded as lacking merit within the meaning of section 110.
2. I note that in regard to the access applications that the Respondent lodged with Goulburn Mulwaree Council, not a single access application had been processed.
3. In the circumstances, it is difficult to see how Goulburn Mulwaree Council has been placed at any significant disadvantage by the Respondent's access applications.
4. Similarly, it is difficult to see how the five access applications that Queanbeyan City Council received from the Respondent would have placed that council at any significant disadvantage.
5. In my view if either Goulburn Mulwaree Council or Queanbeyan City Council has been placed at a disadvantage it would be as a result of the Respondent's conduct rather than the number of access applications that he has brought to the council.
6. In contrast, it is apparent that Palerang Council has been subjected to a considerable burden as a result of the Respondent's access applications and also as a result of his conduct towards officers of the council.

The subject matter of the applications

1. Each of the Respondent's access applications is, in one way or another, seeking information about the same thing. That is, the City to Soil project. The Respondent is attempting to obtain information to support his contention of corrupt conduct in relation to that project.
2. It appears that the Respondent has adopted this approach as a kind of service to the wider public.
3. I am unable to comment on whether or not the Respondent's belief is warranted. However, it appears that there may be some basis for his belief that requested information should have been held by one or more of the Applicants but it has not been provided. Nevertheless, corruption is not the only possible explanation for that result. For example, it may be that the searches undertaken were insufficient or it may be that the council's record keeping is inadequate.
4. I have no basis for concluding that any of the officers who gave evidence was deliberately withholding information that fell within the scope of any of the access applications and to which the Respondent was entitled.

The Applicants' responses to the applications

1. The Applicants and OEH have provided information to the Respondent in response to seven formal access applications. The Applicants' evidence shows that the Respondent has been provided with a substantial amount of information in relation to the City to Soil Project.
2. I note however the comments I have made above in relation to how the Goulburn Mulwaree Council failed to deal with the Respondent's access applications.
3. I also note the Respondent's assertion that he had great difficulty in obtaining a response to his correspondence from each of the Applicants. This appears to be a reflection of the breakdown in communication between the parties. It seems to be an issue that has arisen as a result of the acrimonious relationship between the Respondent and various officers of the Applicants.

The resources of the Applicants

1. The Councils each have limited resources to devote to the processing of access applications.
2. Palerang Council is a small Council with no dedicated GIPA unit. The formal access applications received by the Council from the Respondent in the last 18 months represent over 75% of the total number of formal GIPA applications Palerang Council received in that period.
3. Queanbeyan City Council is a medium sized Council that also does not have a dedicated GIPA unit. Instead, GIPA applications are dealt with by the Legal and Risk team in addition to the team's other functions. On average Queanbeyan City Council receives between 6-12 GIPA applications per annum. In the current year the Respondent has already made five such applications.
4. Goulburn Mulwaree Council is also a medium sized Council that does not have a dedicated GIPA unit. GIPA applications made to Goulburn Mulwaree Council are dealt with by the Governance team in addition to the team's other functions.

The conduct of the Respondent.

1. The Respondent clearly believes that his inquiries will uncover corruption. It appears that this belief has been the motivation for his access applications and has also been the context for his dealings with each of the Applicants on a more general level.
2. Mr Bradbury provided detailed submissions in which he addressed the Respondent's conduct in some detail. He submitted: "In corresponding with the councils and the OEH the respondent has engaged in conduct that is unacceptable, including use of insulting language and making unsubstantiated allegations against agency staff. While the subject of the correspondence is, in some instances, relevant to the access applications, the respondent's conduct has the capacity to interfere with agency operations by impacting the health and wellbeing of agency staff."
3. Mr Bradbury provided a number of examples of the Respondent's conduct which demonstrate the accuracy of those comments. These examples included:

• allegations by the Respondent that officers of the Applicants had engaged in unprofessional conduct ;
• a complaint that the Respondent had adopted a "threatening and intimidatory tone" during a telephone conversation;
• an email in which the Respondent accused the General Manager of Queanbeyan City Council of lying and accommodating corruption;
• the Respondent's comment to an officer that "you're on sick leave I see, you'll feel a lot sicker by the time I've publically exposed you";
• the Respondent's reference to the General Manager of Palerang Council, Mr Peter Bascomb, as "Bathscum";
• the Respondent's claim that Mr Warne had misled him about several City to Soil matters and his description of Mr Warne as "an incompetent deceiver";
• the Respondent's email to Ms Timothy in which he accused her of lying to DBO and ICAC; and
• the Respondent's email to Gordon Plath at OEH in which he stated "I think you are a liar, in short". The Respondent also accuses Mr Plath of influencing an OEH officer to refuse a GIPA application.

1. It was readily apparent from the evidence and the demeanour of those witnesses who appeared at the hearing that they found the Respondent's conduct to have been offensive and intimidatory.
2. It was also apparent from the manner in which the Respondent conducted his cross-examination that he has little regard for each of those officers.
3. I note Mr Bradbury's submission that a restraint order would have the effect of requiring the Respondent to satisfy the Tribunal that any future applications are reasonable, providing a very worthwhile "safety valve".

The appropriate form of order

1. As noted above, I invited the parties to make submissions in regard to the appropriate form of order should I determine that an order is warranted. In particular I invited submissions in relation to whether or not this Tribunal has the power to make orders of the kind made by the Commonwealth Administrative Appeals Tribunal in Re Sweeney and Australian Information Commissioner & Ors [2014] AATA 531.
2. Mr Bradbury provided useful submissions on those questions. He submitted: The applicants accept that the Tribunal has the power to make an order of the kind made by the AAT in Sweeney, its power to do so comes either expressly from section 58 of the Civil and Administrative Tribunal Act 2013 or is a power that is implied in the power to make the order conferred by section 110 of the Government Information (Public Access) Act 2009. Section 58 of the NCAT Act provides, relevantly, that a power of the Tribunal to make an order includes a power to make the order subject to such conditions as the Tribunal specifies. This power is wide enough to enable the Tribunal, when making an order under section 110 of the GIPA Act, to do so subject to conditions of the kind imposed in Sweeney. Alternatively, even if there was no express power to impose conditions on an order made under section 110 of the GIPA Act, the discretionary nature of the power to make such an order means that it is open to the Tribunal to impose conditions that are not inconsistent with the purpose for which the power was granted: see Johns v Australian Securities Commission (1992) 178 CLR 408 (at 428-429 per Brennan J and 469-470 per McHugh J); see also North Sydney Council v Michael Standley & Associates P/L (1998) 43 NSWLR 468 (at 475-476 per Mason P). The evident purpose of the power to make a restraint order under section 110 of the GIPA Act is to ensure that the making of access applications by an individual applicant do not impose an unreasonable burden on the agencies to whom those applications are made. In the applicants' submission, it would be consistent with that purpose for an order to be made that falls short of requiring the Tribunal's approval to the making of any application for access but which, instead, sets the parameters within which access applications may be made without first having to obtain the Tribunal's approval. Using the orders made in Sweeney as a guide, the applicants submit that, if the Tribunal is of the view that it would not be appropriate to make an order in the terms set out in paragraphs 1 or 2 of their Application filed on 27 August 2014, it should consider making an order in the following terms: 1. This order is made under section 110 of the Government Information (Public Access) Act 2009 (the Act) and shall remain in force until [date that is 2 years from date of decision]. 2. Whilst this order is in force, Mr Powell may only make an access application (as defined in section 4(1) of the Act) to Palerang Council, Queanbeyan City Council or Goulburn Mulwaree Council (the Councils),without having first obtained the approval of the Tribunal, in accordance with the following terms and conditions: a) Not more than one access application is to be made to any of the Councils in any 3 month period; b) An access application must not be made to any of the Councils within 14 days of having made a previous application to that Council; c) An access application shall not seek access to more than 3 documents; d) An access application shall not be made in respect of a document or documents the subject of any previous access application; e) An access application shall not contain material that is not essential to the making of the application in accordance with the Act; f) An access application shall not contain any offensive, abusive, threatening or insulting language; g) All correspondence with the Councils in relation to any access application shall be in writing only and shall not contain any offensive, abusive, threatening or insulting language; h) Any access application to the Councils is to be made by post and not by email or in person. 3. The Councils are not required to consider any access application made by Mr Powell that does not comply with the terms and conditions set out in paragraph 2(a) to (g).
3. I agree with that approach, with one variation. I would allow the Respondent to lodge one access application to each of the Applicants in each two month period. That is, a maximum of six access applications to each of the Applicants in any calendar year.
4. In my view this is consistent with the Respondent's view that he should be able to seek access to information held by the Applicant councils in circumstances where he is attempting to expose corruption. It also has the benefit of limiting the demands placed on the Applicants' resources and removing the need for direct contact between the Respondent and officers of the Applicants. It should result in a lessening of the tension that has resulted from the need for each of the parties to deal directly with each other.
5. As the Respondent' correctly identified, the orders originally sought by the Applicants would place an additional administrative burden on both the Applicants and the Tribunal for little benefit.
6. In my view, the proposed orders should achieve a reasonable balance between the needs of all parties.

Orders 1. This order is made under section 110 of the Government Information (Public Access) Act 2009 ("the GIPA Act") and shall remain in force until 2 years from the date of this decision. 2. Whilst this order is in force, Mr Powell may only make an access application (as defined in section 4(1) of the GIPA Act) to Palerang Council, Queanbeyan City Council or Goulburn Mulwaree Council ("the Councils"), without having first obtained the approval of the Tribunal, in accordance with the following terms: 1. Not more than one access application is to be made to each of the Councils in any two month period; 2. An access application must not be made to any of the Councils within 14 days of having made a previous application to that Council; 3. An access application shall not seek access to more than 3 documents; 4. An access application shall not be made in respect of a document or documents the subject of any previous access application; 5. An access application shall not contain material that is not essential to the making of the application in accordance with the GIPA Act; 6. An access application shall not contain any offensive, abusive, threatening or insulting language; 7. All correspondence with the Councils in relation to any access application shall be in writing only and shall not contain any offensive, abusive, threatening or insulting language; 8. Any access application to the Councils is to be made by post and not by email or in person. 3. The Councils are not required to consider any access application made by Mr Powell that does not comply with the terms and conditions set out in paragraph 2(a) to (h). 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

Amendments 07 April 2015 - Typographical error on coversheet, paragraph 95 and order 2, word "without" to be included 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: 07 April 2015