Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 | Case summary

[3]

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 | Case summary | Zoe

[53]

Other than in relation to an interlocutory decision, an appeal may be brought, under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), on a question of law, or with leave of the Appeal Panel, on any other ground.
From authorities such as Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 (Wilson) at [4] and [11] and Orr v Cobar Management Pty Limited [2020] NSWCCA 220 (Orr v Cobar) at [48] and [109] (albeit in differing contexts), Appeal Panels have routinely accepted that the question of law must be a pure question of law and not draw the Appeal Panel into an analysis of, or scrutiny of, the facts: Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [31]- [34]; Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [31]. Further, the question of law must be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 (Ferella) at [22]. Nevertheless, where an appellant is unrepresented, the Appeal Panel may, itself, subject to affording a respondent procedural fairness, discern if a question of law is raised: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [28].
Here the question that the Tribunal was concerned with was whether the Department had reasonable grounds for their claim. This is an objective test and not the exercise of a discretion; and therefore, the appeal is not limited to House v The King (1936) 55 CLR 499 at 504-505 style grounds. The parties did not suggest to the contrary.
Where leave to appeal is sought, then Appeal Panels routinely follow the approach taken in Collins v Urban [2014] NSWCATAP 17 (Collins v Urban) at [82]-[84], that there must be a clear basis for the grant of leave. The warrant for leave to appeal may be gleaned from the existence of a question of law or an important point of principle of general application, which is more than merely reasonably arguable and which is capable of affecting the outcome.

[72]

(1) Pursuant to s 3(1) of the Act, in order to "maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public..." (the Object).

(2) Pursuant to s 3(2)(a) of the Act, the Act must be interpreted and applied to further the Object.

(3) There is a presumption in favour of disclosure, unless there is an "overriding public interest against disclosure": s 5 of the Act.

(4) There is a general public interest in favour of disclosure: s 12(1) of the Act.

(5) Generally, whether there is a public interest against disclosure is the product of a weighing up exercise: s 13 of the Act. However, "it is to be conclusively presumed that there is an overriding public interest against disclosure" of the information described in Sch 1: s 14 of the Act.

(6) Information described in Sch 1 includes Cabinet information; as defined in cl 2 of Sch 1 to the Act.

(7) Whilst the Act, generally, concerns the disclosure of "government information" (as defined in s 4 of the Act) the exclusion with respect to Cabinet information is framed by reference to information "contained in" a document: Sch 1, cl 2; although, the exclusion in Sch 1 cl 2(4) refers, in part, to information per se (being purely factual material).

(8) The definition of Cabinet information is not the only definition which relies on the formulation information "contained in" a document: see for instance Sch 1 cl 3 and cl 5A. On the other hand, other clauses within Sch 1 operate by references to information simpliciter: see for instance Sch 1 cl 8 and cl 13.

(9) Exceptions to the definition of Cabinet information in the sunset clause are couched in terms of the document itself: whether the relevant document has been approved for public disclosure (paragraph (a)); or whether 10 years have passed since the creation of the relevant document (paragraph (b)).

(10) Pursuant to Sch 1, cl 1 of the Freedom of Information Act 1989 (NSW) (the precursor Act to the Act), documents "prepared for submission" to Cabinet, defined as Cabinet documents, were exempt from disclosure. However, the Act tightened the basis of the exclusion from production in relation to documents prepared for Cabinet, by including a dominant purpose test. In addition, a new class of documents were included in the definition of Cabinet information, those concerning documents created for a dominant purpose other than for Cabinet's consideration, which were nevertheless submitted to Cabinet for Cabinet's approval to use for that dominant purpose. Where the first mentioned amendment tightened the definition, this amendment expanded the definition, to capture documents which would not satisfy the new dominant purpose test; but are nevertheless prepared in order to be provided to Cabinet.

[76]

"But it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential. Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government. Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course. The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. Whilst there is increasing public insistence upon the concept of open government, we do not think that it has yet been suggested that members of Cabinet would not be severely hampered in the performance of the function expected of them if they had constantly to look over their shoulders at those who would seek to criticize and publicize their participation in discussions in the Cabinet room. It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. The latter may involve the exploration of more than one controversial path even though only one may, despite differing views, prove to be sufficiently acceptable in the end to lead to a decision which all members must then accept and support."

[78]

The cornerstone of this ground is that, for the purposes of the dominant purpose clause, once Cabinet gives its approval for a document to be used for the dominant purpose for which it was created, then that clause no longer has any work to do. This is for the reason, so the appellant contends, that once a document has been approved by Cabinet for its dominant purpose, then it ceases to retain its character as Cabinet information; primarily because it no longer requires the protection of the doctrine of Cabinet confidentiality, as that doctrine is understood and explained in Northern Land Council (quoted above at [35 ]). The appellant submits that by construing the dominant purpose clause in its context, particularly by having regard to the Object and its emphasis on open government, one inevitably reaches that result.
In this regard, the appellant essentially submits that the dominant purpose clause should not be construed more widely than necessary to allow it to protect Cabinet confidentiality; in particular, in order to maintain Cabinet solidarity and collective responsibility. The doctrine of Cabinet confidentiality provides the underpinnings or the rationale for the exemption; therefore, construing the definition of Cabinet information co-extensively with the requirement to protect Cabinet confidentiality (and not more expansively), is appropriate. Once approval has been given for a document to be used for its dominant purpose, the reason to protect it from disclosure is, effectively, spent: Cabinet solidarity and collective responsibility has been conserved. Accordingly, at that point, it ceases to be Cabinet information. The intention of Parliament, so it was submitted, can be gleaned from the extract from Hansard and especially the use of the word "until" (as extracted and emphasised above at [32 ]).
By way of example, the appellant highlights that, where (as here) documents are prepared to assist Ministers or departmental officials to answer questions when appearing at Budget Estimates hearings, and the documents have been approved by Cabinet for use for that purpose, then, self-evidently, there is no Cabinet confidentiality to protect.
Further, the information contained in the documents will (or, at least, likely will) be in the public domain. If the documents remain covered by the definition of Cabinet information, then, simultaneously, the information contained in them is also in the public domain. This creates a mismatch, which Parliament would not have intended. The appellant submits that we should not construe the dominant purpose clause to admit of such a mismatch.

[84]

(1) We would not replace the express definition found in the dominant purpose clause with concepts that derive from the doctrine of Cabinet confidentiality, that are not reflected in the text; even though we accept that that doctrine is part of the context in which we are construing the dominant purpose clause.

(2) The text of the dominant purpose clause is sufficiently transformed from the overarching doctrine of Cabinet confidentiality that we do not consider it necessary for the express definition of Cabinet information to align perfectly with the doctrine of Cabinet confidentiality, as described in Northern Land Council.

(3) As to this, we pause to note that cl 2(4)(a) and (b) of Sch 1 to the Act mirrors, to some extent, the doctrine of Cabinet confidentiality relied on by the appellant. Subparagraphs (a) and (b) of cl 2(4) provide an exclusion from the exclusion to the definition of Cabinet information for purely factual material, which is found in the chapeau to cl 2(4) of Sch 1 to the Act. This tells us that had the definition of Cabinet information intended to mirror, precisely, the doctrine of Cabinet confidentiality, there were other ways of framing the definition.

(4) On the appellant's construction, information contained in documents that otherwise satisfied the dominant purpose clause, would cease to be Cabinet information, as soon as approval is given for those documents to be used for their dominant purpose; even if, under the pertinent dominant purpose, those documents, or the information contained in them, might not be expected to be approved for public dissemination. That would be inconsistent with the sunset clause, to which we return below. Whilst we accept that in some cases the information might be expected to enter the public domain, in other cases this may not be expected; and we must construe the legislation consistently, in either case.

(5) The appellant's construction would have us read the words (or words to the effect of) "until approval is given" into the dominant purpose clause. In effect, the dominant purpose clause would read (our added words are in bold):

[101]

The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."

[103]

(1) First, the length of the delay is substantial, in the sense that the proposed new ground was not raised until we neared the conclusion of the hearing of the appeal and it required allowances to be made to file an amended notice of appeal and submissions.

(2) Second, the explanation for the delay is found in the contention that the appellant always intended to raise the point. In this regard, we note the respondents' submission that we should not accept this contention. They characterise the appellant as an experienced litigant and submit that we should infer that the failure to raise Ground 1A, initially, was deliberate.

(3) Ultimately, despite familiarity with litigation, the appellant is not a lawyer. Whilst we have duties to afford procedural fairness to all parties, represented and unrepresented, insofar as procedural fairness relates to an unrepresented party, we are particularly concerned to ameliorate prejudice: Unique at [68]-[72]. To this end, we would be loath to shut out a self-represented appellant from raising a ground of appeal, on the basis that we should infer a deliberate forensic choice was made; especially when that is denied by the appellant. We do not infer that an operative forensic choice, that once and for all foreclosed the appellant's right to rely on this ground, was made.

(4) The third issue concerns prospects of success. The merit of the argument is considered in detail below. Ultimately, we have found against the appellant's construction, but do not consider the point was unarguable.

(5) The fourth issue concerns prejudice to the respondents. The respondents have had an opportunity to respond to the new Ground. Further, we note that the substance of Ground 1A was raised by the appellant in the Tribunal at first instance: it could not be described as a new invention. Whilst we accept that the respondents, for a time, considered they were not to be vexed again with this issue, here, the appellant has been clear that he was pursuing an appeal. Further still, the substance of the appellant's submissions mirror some of the arguments already engaged with, in relation to Ground 1.

[119]

The appellant submits that the answer to the question posed by Ground 1B is 'no'. This is on the basis that, on a simple reading of Sch 1 cl 2, the application of any exemption turns on whether public disclosure of the document has been approved by the Premier or Cabinet. The appellant asserts that whether the document has or has not been disclosed is irrelevant. He also notes that it is not in dispute that the subject document was approved for use at the Budget Estimates hearing on 4 March 2024, and asserts that his recollection of evidence given by Ms Ware during cross examination is that she confirmed no restrictions were placed on the use of the Notes at Budget Estimates.
The respondents agree that the answer to the question is 'no'; but highlight that the Tribunal did not find otherwise. Rather, the Tribunal's reasoning turned on whether disclosure was approved. The respondents suggest that Ground 1B is also premised on a blurring of the distinction made between documents and information. They submit that the appellant's assertion about Ms Ware's evidence takes the matter no further; at most, all it would mean is that some of the information contained in the Notes may have been disclosed, but that has no relevance to the sunset clause.
In response, the appellant repeats his assertion that the respondent's argument (outlined above at [66 ]) as to the distinction between information and documents relies on an erroneous construction of the clause.
For completeness, we note that the appellant asserted that his recollection of Ms Ware's evidence, given during cross examination, about whether any restrictions had been placed on the Notes' use, would be supported by the transcript. The respondents ordered the transcript after the appeal hearing, but it has not yet been produced. We do not consider it necessary to refer to the transcript to determine Ground 1B.
Ground 1B appears to raise a question of law in terms of the statute's construction. Nonetheless, it is not a question that arises "on" the appeal. It raises an arid point: Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 at [37]- [38]. As noted in Donohoe at [32]:

[132]

"30. Mr Patrick states that the Department has not established that the documents in question were in fact prepared for Cabinet's approval. He states that the emails from The Cabinet Office and Ms Ware's statements are insufficient to establish that the approval process was an instruction of Cabinet. Rather, it appears that it was The Cabinet Office, comprised of officials, which was determining what was brought to Cabinet rather than Cabinet itself which controls its own work and processes. He notes that matters are brought to Cabinet exclusively by the Premier, the Cabinet itself, or a Minister. In his submission it was up to the Department to produce as evidence a direction from Premier or Cabinet directing that Budget Estimates briefs must be approved by Cabinet or a committee of Cabinet. He submits that in the absence of such evidence I cannot be satisfied that the House Folder Notes were prepared for the purpose of being submitted to Cabinet for Cabinet's approval.

31. At the hearing Mr Patrick referred to Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719, a decision of the Administrative Appeals Tribunal in which it was held that the National Cabinet formed in response to the COVID-19 pandemic was not a committee of the Cabinet of the Commonwealth and thus did not constitute Cabinet for the purposes of the Freedom of Information Act 1982 (Cth). Given the context, that decision, while it contains important observations and findings about Cabinet and Cabinet committees, does not assist in determining whether the documents in question in this case fall within cl 2(1)(c).

32. I do not consider that the fact that the Department has not provided a copy of a directive from Cabinet or the Premier that Budget Estimates briefs must be approved by Cabinet or a committee of Cabinet is necessarily indicative of a lack of authority for the process. Ms Ware's evidence is that the process has been in place for many years and followed by successive governments. The fact that the March 2024 House Folder Notes were assigned a Cabinet number on submission and that eCabinet records that they were considered at the 28 February 2024 meeting are strong indicators that the documents were submitted for approval and were thus prepared for that purpose."

[135]

(1) The Tribunal's findings were not based on an "unparticularised understanding" of an official. They were based on the following:

(a) The evidence of Ms Ware, "a senior civil servant, within the Department which prepared the Notes, who was responsible for receiving requests from Cabinet for documents of this kind and submitting those documents to Cabinet for their approval".

(b) Contemporaneous emails from the Cabinet Office.

(2) This provides a clear evidentiary basis for the Tribunal to infer the relevant purposes for which the Notes were prepared.

(3) Ms Ware was cross examined at the hearing, which gave the Tribunal the opportunity to evaluate her evidence.

(4) The email referred to at [90 ] above set out the usual process for Budget Estimates which has been followed by successive governments.

(5) A "binding and current direction" of Cabinet would not advance matters beyond the email, where the evidence was that the email reflected established practice.

(6) To the extent that the appellant sought to reformulate Ground 2 at the hearing of the appeal "to the effect that the relevant purpose must be that of Premier or the Cabinet office", that submission should be rejected. The focus of the dominant purpose clause is on the purpose of the preparation of the document. There is no support, in the text of the dominant purpose clause, for the appellant's contention that the only relevant purpose is that of the Premier or Cabinet. Further, the words in the dominant purpose clause "whether or not the document is actually submitted to Cabinet" provide a strong textual indication that the relevant purpose is that of the author and the senior public servants within the relevant Department.

(7) Ms Ware was best placed to give direct evidence about the purpose of the relevant documents; the evidence provided by Ms Ware was more probative than the evidence the appellant says should have been tendered.

(8) In any event, there is evidence to support a finding of the required purpose, even if the appellant's construction as to whose purpose is relevant, was correct.

[141]

The evidence was not challenged per se, in the sense that Ms Ware's credit was not undermined and what she said was not contradicted. As the appellant made plain, he was not challenging Ms Ware. He was challenging the capacity of the evidence she gave to establish the necessary fact that the relevant documents were prepared "for the purpose of ... being submitted to Cabinet for Cabinet's approval", as a necessary step in establishing that the Notes met the definition of Cabinet information under the dominant purpose clause. In essence, the appellant contends that, as Cabinet controls its own work and processes, it is Cabinet that must direct what is to be prepared for Cabinet. Accordingly, only a binding direction from Cabinet could prove that the Notes were prepared for Cabinet's approval. It follows, so it was submitted, that to prove the necessary fact, the only evidence capable of doing so was an instruction from Cabinet.
Evidence is probative of a fact in issue if it could rationally affect the assessment of the probability of the existence of that fact. Under a "no evidence" ground, we are concerned with whether there was "no" probative evidence of the fact in issue.
Whilst we accept that evidence of a binding direction may constitute sufficient probative evidence to prove that a document was prepared for Cabinet's approval, we do not consider it to be necessary evidence, or the only type of evidence that is probative of the fact in issue. Even assuming that a document may only be prepared for Cabinet, if Cabinet (or the Premier) has, itself, required it, we reject the contention that without such a direction, the respondents must fail in proving that the Notes were prepared for Cabinet's approval. This is to say, that even assuming the appellant's construction to be correct, we reject the contention that evidence of a binding instruction from Cabinet is necessary to prove that a document is prepared at Cabinet's "command".
The evidence of Ms Ware was of practice. Evidence of established practice is an orthodox way of proving matters of fact: Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721 per Asprey JA (Mason JA agreeing). This was relevant evidence; relevant in the sense that it was rationally capable of affecting the Tribunal's assessment of whether a document had been prepared for Cabinet's approval; even in the sense asserted by the appellant.
The evidence of the contemporaneous emails from the Cabinet office (and not Cabinet itself, as the appellant emphasises) was also capable of grounding an inference that Cabinet, itself, sought to approve the Notes for their dominant purpose (assuming that to be necessary).
Having regard to the evidence, as extracted above, we are satisfied that the evidence relied on at first instance was probative of the fact in issue; namely, that the Notes were prepared for Cabinet (even assuming there to be a need that the Notes must be prepared, at the command of Cabinet). The "no evidence" ground therefore fails.
For completeness, it is to be recalled that on review of a decision concerning Cabinet information, the Tribunal is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter: s 106(1) of the Act. In other words, the test is whether the Department had a reasonable basis for its claim and not whether the claim was made out per se.
Ground 2 is dismissed.

Patrick v Secretary, Department of Communities and Justice

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