Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales

Procedural history of appeal proceedings

1. Three notices of appeal were lodged in relation to the Tribunal's decision of 16 January 2020 ("the Decision").
2. The Board lodged an appeal on 12 February 2020 against the Decision (appeal proceedings AP20/7117).
3. SunRice made an application on 26 February 2020 to be joined as a party to those proceedings pursuant to s 44(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). In the administrative review proceedings below, SunRice had exercised its right under s 104(3) of the GIPA Act to appear and be heard by the Tribunal as a person who could be aggrieved by a review decision of NCAT.
4. SunRice purported to commence its own appeal by lodging a notice of appeal dated 13 February 2020 (appeal proceedings AP20/17149). While not identical, there was considerable overlap between the grounds of appeal in the Notices of Appeal lodged by the Board (on 12 February 2020) and by SunRice (on 13 February 2020).
5. On 21 May 2020, Forbidden Foods lodged an appeal against aspects of the Decision (appeal proceedings AP 20/227787), and sought an extension of time for the lodgement of its notice of appeal under s 41 of the NCAT Act.
6. The Information Commissioner appears before the Appeal Panel in these appeal proceedings pursuant to s 104(1) of the GIPA Act.
7. The respective appeals of the Board and Forbidden Foods were heard on 5 and 30 June 2020 by audio-visual link due to the COVID-19 pandemic.

Preliminary issues

1. We turn first to the preliminary (or procedural) issues, namely: 1. The competency of the purported appeal brought by SunRice. 2. The statutory entitlement of SunRice to appear and be heard in the Board's appeal (and Forbidden Foods' proposed appeal) under s 104(3) of the GIPA Act. 3. The joinder of SunRice as a party to the Board's appeal and to Forbidden Foods' proposed appeal.
2. On 5 June 2020, after hearing oral argument (in addition to written submissions earlier filed and served), we dismissed appeal proceedings AP 20/7149 brought by SunRice against the Decision under s 55(1)(b) of the NCAT Act on the basis that those appeal proceedings were misconceived because we concluded that SunRice was not a party to the proceedings at first instance. We provide reasons in relation to the competency of the purported appeal AP20/07149 below.
3. Further, on 5 June 2020, we granted SunRice's application to be joined as a party, under s 44(1)(a) of the NCAT Act, to the Board's appeal in proceedings AP 20/7117, and we made an order to that effect. Towards the end of the second day of the appeal hearing on 30 June 2020, SunRice applied to be joined as a party to Forbidden Food's proposed appeal. We did not make an order at that time. We have decided to grant SunRice's application to be joined as a party under s 44(1)(a) to that proposed appeal (AP20/22787).
4. We reserved our decision as to whether SunRice had a statutory entitlement to appear and be heard in the Board's appeal (and Forbidden Foods' proposed appeal) under s 104(3) of the GIPA Act. We have decided that SunRice does not have any such entitlement for the reasons set out below.

Legislative provisions relevant to preliminary issues

1. The Decision is an "internally appealable" decision: NCAT Act, s 32(4). Section 80 of the NCAT Act deals with the making of internal appeals and relevantly provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note: Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1).
2. The Civil and Administrative Tribunal Rules 2013 (the NCAT Rules) specify the parties to an internal appeal as follows: 29 Parties to internal appeal The parties to an internal appeal are - (a) the appellant, and (b) any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance, and (c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and (d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and (e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules. Note. The member or members constituting the Tribunal at first instance cannot be made parties to an internal appeal - see section 44(3) of the Act.
3. Section 44 of the NCAT Act provides relevantly as follows: 44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has - (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party. … (4) The following persons may intervene and be heard in proceedings to which they are not already parties - (a) the Attorney General, (b) a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings, (c) any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings. …
4. The NCAT Rules also address the parties to administrative review proceedings, as follows: 27 Parties to proceedings for general decision or administrative review decision The parties to proceedings for a general decision or administrative review decision are - (a) the applicant, and (b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant) - the person or body in respect of whom the order or other decision is sought, and (c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and (d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and (e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules. Note. In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person or body referred to in paragraph (b).
5. Section 104 of the GIPA Act is as follows: 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. (2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14). (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.
6. Part 5 of Sch 3 (Administrative and Equal Opportunity Division) to the NCAT Act includes provisions relating to "special practice and procedure" in respect of certain GIPA Act proceedings, as follows: 9 Rights of representation and appearance … (4) The following persons have a right to appear and be heard in proceedings for the exercise of a Division function for the purposes of the Government Information (Public Access) Act 2009 - (a) the Information Commissioner, (b) the Privacy Commissioner, (c) any person who could be aggrieved by a decision of the Tribunal on an administrative review on an application made under Division 4 of Part 5 of that Act. A "Division function" means "a function of the Tribunal allocated to the Division by this Schedule": NCAT Act, Sch 3, cl 1(1).

Preliminary issue (a): Competency of SunRice's purported appeal

1. Forbidden Foods challenged the competency of SunRice's appeal and sought dismissal of appeal proceedings AP20/07149 under s 55(1)(b) of the NCAT Act. SunRice and the Board opposed that dismissal application.
2. Whether the purported appeal commenced by SunRice is competent depends on whether SunRice was a party in the Tribunal proceedings below and thus a person who has standing to bring an internal appeal against the Decision under s 80 of the NCAT Act.

Submissions

1. SunRice's submissions: SunRice argued it was a "party" to the proceedings in the Tribunal below and as such may appeal the Tribunal's decision in its own right under s 80 of the NCAT Act (and is a proper respondent to the Board's appeal). If that argument were not accepted, SunRice argued that it was an intervenor in the proceedings below and an intervenor has the same privileges as a party, including the right to appeal the Decision in its own right. If those arguments failed, then SunRice requested joinder as a party to the Board's appeal under s 44(1)(a) of the NCAT Act, and later, also sought joinder to Forbidden Foods' proposed appeal.
2. As to its primary argument that SunRice was a party below, it contended that this was the effect of the orders made by the Tribunal below and the conduct of those proceedings as a whole, and that its arguments are consistent with the practical approach taken to identifying the parties to proceedings: see, eg Law Society of NSW v Jackson [1981] 1 NSWLR 730 at 735; Tran v R [2017] NSWCCA 93 (Tran) at [15]-[22]; Roth v Roads and Traffic Authority of NSW [2009] NSWSC 295 at [66]-[68].
3. Parties to administrative review proceedings in the Tribunal are specified in the NCAT Rules at r 27, and include at r 27(e), persons "treated as a party". SunRice argued it either was a party, or was treated as a party, to the administrative review proceedings commenced by Forbidden Foods on 6 May 2019 naming the Board as the respondent. At a case conference on 4 June 2019 in the proceedings below, S Montgomery, Senior Member, made various procedural orders, including the following notation: "Rice Marketing Board for the State of NSW will provide the Tribunal with contact details for SunRice Australia on 4 June 2019 The Tribunal will contact SunRice Australia, advise of its right to take part in the proceedings and ask for it to advise whether or not it wishes to do so. The Tribunal will inform the parties of any response received from SunRice." (emphasis added) SunRice said it then took part in the proceedings below, exercising all of the rights of a party. Each of the Board, Forbidden Foods and SunRice adduced evidence, cross-examined or had the opportunity to do so, and made written and oral submissions. The Tribunal also allowed SunRice to participate in closed hearings in the proceedings that excluded Forbidden Foods. The Tribunal ultimately made orders which materially affected SunRice's interests.
4. While SunRice conceded during the appeal hearing that it did not have the status of a "formal intervenor" in the Tribunal below, SunRice's alternative argument is that it nonetheless had the status of intervenor in those proceedings, with the same privileges as a party. SunRice points to the Tribunal's decision which refers to SunRice as the "first intervenor" and one of the "parties" on the cover sheets. SunRice also relies on the acceptance by the NCAT Appeals Registry for filing on 12 February 2020 of the Board's Notice of Appeal which refers to SunRice's "party status" as the "first intervenor" in the proceedings below.
5. It was argued that there is a general principle at law, not contradicted in the NCAT Act or the GIPA Act, that a person accepted as an intervenor becomes a party to the proceedings with all the privileges of a party. Thus such person can appeal, tender evidence and participate fully in all aspects of the argument. The person's position is quite different from that of an amicus curiae. Intervenors have been allowed to appeal: see eg Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 396E-F; Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWSC 285 at [42].
6. It was further contended that there is no distinction drawn in the NCAT Act between an intervenor and a party. The only sections of of that Act which mention intervention are: s 44; cl 2 of Sch 7; and s 34C(4)(e)(iii); and it was said these provisions provide no basis for any distinction between an "intervenor" and a "party", particularly not in the context of the appeal rights pursuant to s 80 of the NCAT Act. There are numerous provisions of the NCAT Act which refer to the rights of parties and it would be an "absurd consequence" if those rights were not accorded to a party which happened to be styled as an "intervenor", particularly where that party has a statutory right to appear and be heard.
7. The Board's submissions: The Board supported SunRice's contention that SunRice was a "party" to the administrative review proceedings under r 29(b) or r 29(e) of the NCAT Rules, with a right to bring an appeal in its own right pursuant to s 80 of the NCAT Act. This conclusion was argued to be consistent with the broad construction that superior courts have given to the term "party" in "analogous" legislative provisions.
8. Reliance was placed on Tran at [16]-[20] where the Court of Criminal Appeal found that a person who had participated in a hearing in a manner analogous to a formally recorded party (for example, by leading evidence or making submissions) is a "party" for the purposes of an appeal provision such as s 5F(3) of the Criminal Appeal Act 1912 (NSW) where the person is directly affected by orders made as a consequence of the hearing: Tran at [20].The Board argued that SunRice participated in the proceedings below in a manner analogous to a formally recorded party.
9. The interest that SunRice had in the subject matter of the proceedings would typically be considered sufficient to render it a "party". The information in issue had been supplied by SunRice to the Board. The information was of commercial sensitivity and value to SunRice. SunRice's interests are directly affected by the decision of the Tribunal regarding the release of information. It was both appropriate, and necessary, for SunRice to take a leading role in the conduct of the proceedings before the Tribunal. In particular, the Board was limited in its capacity to provide evidence of, and make submissions about, the commercial sensitivity of the information, the effect that the release of information would have on SunRice's operations, and the likely impact that release would have on the quality and quantity of information provided by SunRice to the Board. These are all matters of direct relevance when considering how the public interest considerations against disclosure in the Table to s 14 of the GIPA Act would apply.
10. While acknowledging that SunRice did not specifically apply to be joined as a "party" pursuant to s 44 of the NCAT Act, the Board argued that the exercise of the right to appear and be heard pursuant to s 104(3) of the GIPA Act in the proceedings below nonetheless gives SunRice the right to appeal the Tribunal's decision. The Board recognised that the Tribunal and the Appeal Panel has decided on previous occasions that where a person is only exercising its right to "appear and be heard", it does not have the right to appeal the Tribunal's decision: see CBL v Sydney Water Corporation [2016] NSWCATAD 287 (CBL) at [20]; Office of Environment and Heritage v Scenic NSW Pty Limited [2019] NSWCATAP 87 (Scenic NSW) at [16]. The Board contended that the Appeal Panel's obiter comments in Scenic NSW should not be followed in this case so as to preclude SunRice's appeal.
11. Forbidden Foods' submissions: Challenging SunRice's right to bring its own appeal, Forbidden Foods argued that SunRice's participation in the proceedings below in the exercise of its "right to appear and be heard" under s 104(3) of the GIPA Act did not make it a party: Marrickville Council v Botany Council [2015] NSWCATAD 144 (Marrickville Council); CBL; Scenic NSW. In order to have become a "party to the proceedings", SunRice would have had to make an application for an order under s 44 of the NCAT Act to be joined as a party (and persuaded the Tribunal to exercise its discretion to give it the added status of a party). Reliance was placed on the Tribunal's comments in CBL at [20]; Marrickville Council at [20]; Scenic NSW at [14] about the effect of joinder. SunRice did not make any application for an order under s 44. It was represented by a large law firm and experienced counsel. A consequence of no order being made under s 44 was that no order for costs could have been made in respect of it. There is no reason why SunRice should not be bound by what the Appeal Panel could readily infer was a tactical decision not to seek to be joined as a party.
12. Information Commissioner's submissions: In detailed written submissions, after outlining relevant legislative provisions, the Commissioner contended that the role of third parties consulted under s 54 of the GIPA Act, commonly referred to as "third-party objectors", is directed towards informing the agency's independent consideration of the public interest test. Consultation for the purpose of identifying objections from third parties must take place before the agency undertakes the balancing exercise required by s 13 of the GIPA Act: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [36]. The Information Commissioner's Guideline 5: Consultation on public interest considerations under section 54 of the GIPA Act (Guideline 5) states that the public interest test to be applied by decision makers is paramount and not constrained by objections raised through consultation (paras 3.5-3.6): It is important that the third party understands the basis of an agency seeking their views and how consultation may assist the decision maker in applying the public interest test. The third-party objector is not required to conduct the public interest test; that is the responsibility of the decision maker. Rather they are provided with an opportunity to convey an objection during the course of the section 54 consultation process, with reference to the bases for consultation under that section.
13. In accordance with s 3(2)(b) of the GIPA Act, discretions with respect to third-party consultation should be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information (see Guideline 5 at para 1.25).
14. Certain rights of review are provided for third-party objectors in the GIPA Act, such as where an agency decides to release information over an objection made in the course of consultation (s 54(6) and (7)). Avenues for review by third parties are limited, for example the GIPA Act only permits a single internal review of any decision on an access application (s 88). The GIPA Act further extinguishes the right of internal review where external review of a decision has been sought (s 82(4) and (5)), and the right of review by the Information Commissioner where review is sought in the Tribunal (s 98).
15. The rights of third-party objectors, and the procedures for dealing with third parties, are distinguished from that of the applicant and decision-maker under the GIPA Act. This distinction is said to serve both the object of the GIPA Act and the principles to be applied in determining the public interest (s 15).
16. The Information Commissioner referred the Appeal Panel to decisions of the Tribunal, and of the former Administrative Decisions Tribunal (ADT), in which it was determined that persons with the right to appear and be heard under s 104(3) of the GIPA Act are not automatically parties to a review. These include: Black v Hunter New England Local Health District [2011] NSWADT 295; AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90; Marrickville Council; CBL; Scenic NSW; Anderson v Tweed Shire Council [2017] NSWCATAD 61. Each of these decisions concerned a person who had been consulted under s 54 of the GIPA Act and objected to the disclosure of information.
17. While the statutory right to appear and be heard may, at the Tribunal's discretion, extend to full participation rights, the Information Commissioner submits that the distinction between the right to appear and be heard under s 104(3) and having the status of a party is important, given that there is a low threshold of "any person who could be aggrieved by a decision of NCAT on a review [under Division 4 of Part 5]" under s 104(3) (CBL at [14]: "the test is not an onerous one"). Consequences of being a party for the purposes of the NCAT Act is be that a party would be entitled to appeal, may be liable for costs, and is entitled to request a written statement of reasons under s 62(2) of the NCAT Act.
18. Authorities that have considered the meaning of "party" have been decided under different statutory provisions or rules, including as to costs and standing to appeal in superior courts, should be regarded with caution in the statutory context of administrative review by the Tribunal under the GIPA Act (Yakmor v Hamdoush (No 2) [2009] NSWCA 284 at [41]), particularly given that the definition of "party" is enunciated in the NCAT Rules.
19. The Information Commissioner argued that, when exercising her right to appear and be heard in the Tribunal under s 104(1) and cl 9(4)(a) of Sch 3 to the NCAT Act, both in relation to an administrative review under Div 4 of Pt 5 of the GIPA Act and in appeal proceedings, she is not a party to those proceedings: see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [54]-[55] and DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114 at [11]. This interpretation of s 104(1) is consistent with the role of the Privacy Commissioner under s 55(6) of the Privacy and Personal Information Protection Act 1998 (NSW). In FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 at [14] the ADT found that the Privacy Commissioner's right of appearance in privacy proceedings before the Tribunal did not "confer the burdens and benefits of party status on the Privacy Commissioner".
20. The Information Commissioner made the further point that while she was described as "intervenor" in the proceedings below and in previous decisions of the Tribunal such as Taylor v Destination NSW [2017] NSWCATAD 272, the wording of the GIPA Act and NCAT Act is the "right to appear and be heard", rather than intervene. Moreover, the right to appear and be heard under s 104(1) should be distinguished from where an intervenor is joined as a party to proceedings, as considered, for instance, in the context of a dispute over business names in Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391.

Consideration

1. Parties to an NCAT internal appeal are specified in r 29 of the NCAT Rules, and include at r 29(b) a party to first instance proceedings and at r 29(e) a person "required to be… treated as a party" to those proceedings. In administrative review proceedings, under r 27(e) of the NCAT Rules, the parties include "any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules".

Role of third-party objectors in legislative scheme

1. The GIPA Act recognises the rights of third parties where government information concerns them, and contains provisions requiring consultation in certain circumstances, including where it is reasonably practicable (s 54(1) and (2)). The purpose of consultation under s 54 is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection (s 54(4)). Although the views of third parties as to the determination of the public interest test and release of information are not determinative, objections are required to be taken into account by the agency decision-maker (s 54(5)).
2. In addition to consultation rights conferred by s 54, third-party objectors can bring their own review proceedings to the Tribunal in specified circumstances; and in administrative reviews instituted by the decision-maker or access applicant, objectors (who meet the test of a "person who could be aggrieved") have available to them the right conferred by s 104(3) to appear and "ventilate any arguments in support of their position or otherwise": Walker v Gosford City Council [2016] NSWCATAD 207 at [31]. Given NCAT's power to control its own procedure, and to inform itself as it thinks fit (NCAT Act, s 38(1) and (2)), the participation of persons appearing and being heard under s 104(3) may vary from case to case. It may extend to a full right of participation, including the ability to call evidence: CBL at [18] citing Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24.
3. In a review under s 100 of the GIPA Act, for the purpose of making the correct and preferable decision having regard to the material then before it (s 63(1) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act)), the Tribunal "stands in the position of the decision-maker": Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327 (Fine) at [46]. Therefore, the Tribunal may have regard to any objection and reasons for objection to the disclosure of information in determining the public interest test under ss 13 and 14 of the GIPA Act.
4. We agree with the Information Commission that it is evident that the rights of third-party objectors, and the procedures for dealing with objections of third parties, in the statutory scheme are distinguished from the rights of the access applicant and the decision-maker. There are nonetheless avenues through which the Tribunal can take into account the views of third-party objectors, including through the exercise of the right to appear and be heard under s 104(3) of the GIPA Act and/or through joining a third-party objector as a party under s 44(1)(a) of the NCAT Act.

Persons exercising rights under s 104, GIPA Act not automatically parties

1. In our view, the statutory scheme under consideration does not provide the third-party objector (nor the Information Commissioner or Privacy Commissioner) with automatic party status through exercise of rights conferred by s 104 - party status is conferred by order of the Tribunal under s 44 of the NCAT Act. If granted, the benefits and burdens of party status follow.
2. Nor do we consider that the manner in which the Tribunal conducted the administrative review proceedings provided SunRice with party status. While SunRice referred us to Tribunal procedural directions about "its right to take part in the proceedings" (see [35] above), the relevant direction was made in the context of the Tribunal ascertaining whether SunRice - as a "person who could be aggrieved" - wished to be heard in the administrative review proceedings under s 104(3) of the GIPA Act, and not in any other capacity. Those same procedural orders and directions stated, in relation to the Information Commissioner, that "[the] Information Commissioner appears and has a right to be heard in these proceedings but is not a party" (our italics).
3. The Tribunal's reasons describe, in clear terms, the nature of SunRice's participation in in the proceedings. At [2], the Tribunal states: "[SunRice] has exercised its right under s 104(3) of the GIPA Act to appear and be heard in the administrative review. The Information Commissioner has exercised the right conferred by s 104(1) of the GIPA Act to appear and be heard." The cover sheet to which SunRice referred in its submissions does not form part of the Tribunal's orders, nor part of the Tribunal's written reasons for decision.
4. While SunRice and the Board referred to case law in which superior courts have given a broad construction to the term "party" in particular contexts, the legislative and factual contexts in which those cases were decided are not, in our view, analogous. Reliance was placed by the Board in its submissions on Tran, where the Court of Criminal Appeal gave a broad interpretation to the term "party" for the purposes of appeal rights under s 5F(3) of the Criminal Appeal Act. Macfarlan JA commented: "[16] … There is no good reason to adopt a narrow definition of the word 'party', which would deprive some persons who are directly affected by orders made below of a right to challenge them. To the contrary, one would expect all such persons to have such a right. [17] In my view, the approach taken by the Court of Appeal in Law Society of NSW v Jackson [1981] 1 NSWLR 720 is applicable in the present context … Samuels JA … adopted the definition of 'party' to be found in Jowrit's Dictionary of English Law in holding that a party 'essentially, is a person who takes part in legal proceedings'".
5. In that case, Mr Tran sought leave to appeal an interlocutory decision, which dismissed his objection under s 18(2) of the Evidence Act 1995 (NSW) to giving evidence in his daughter's criminal trial. Section 18(2) provides relevantly that the parent of a defendant may object to being required to give evidence as a witness for the prosecution. Although Mr Tran was a prospective witness, and not formally a party to the trial proceedings, the Court held (by majority) that he was a "party" to the interlocutory proceedings for the purposes of s 5F(3) of the Criminal Appeal Act, and so had standing to seek leave to appeal the interlocutory decision. Having referred to a number of cases in which superior courts considered the entitlement of interested parties to bring an appeal (at [19]), Macfarlan JA concluded (at [20]): "a person who participates in a hearing … in a manner analogous to that of a formally recorded party (for example, by leading evidence or making submissions) is a "party" for the purposes of an appeal provision such as s. 5F(3) of the Criminal Appeal Act if the person is directly affected by orders made as a consequence of the hearing. This conclusion is appropriate even if the person is not formally recorded as a party."
6. We agree that the participation by SunRice in the first instance proceedings was substantial (leading evidence, cross-examining, taking part in confidential stages of the hearing, making oral and written submissions). Through this participation SunRice had the opportunity contemplated by the statutory scheme to make clear to the Tribunal its objections to disclosure of material. However, SunRice did so exercising a specific entitlement under s 104(3) of the GIPA Act to appear and be heard in the administrative review proceedings. The statutory scheme in question, including the specification of parties found in rr 27-29 of the NCAT Rules, differs in material respects from the legislative provisions under consideration in Tran.
7. The statutory entitlement in s 104(3) of the GIPA Act is confirmed by cl 9(4)(c) of Sch 3 to the NCAT Act in relation to GIPA Act administrative review proceedings in the Tribunal. Clause 9 of Sch 3, headed "special practice and procedure", deals specifically with the rights of representation and appearance in administrative review proceedings of "any person who could be aggrieved" (typically third-party objectors), and of the Information Commissioner and Privacy Commissioner, for the purposes of the GIPA Act. Proceedings "for the exercise of a Division function" for the purposes of the GIPA Act involve functions of the Tribunal allocated to the Administrative and Equal Opportunity Division (AEOD), relevantly functions in relation to the GIPA Act (see Sch 3, cl 1(1) definition of "Division function").
8. We agree with comments in earlier decisions of the Tribunal and the NCAT Appeal Panel that where a person is only exercising its right to "appear and be heard" under s 104(3), it does not have the right to appeal the Tribunal's administrative review decision: see CBL, Scenic. In its submissions, the Board urged the Appeal Panel not to follow that approach, submitting that it would be "an unusual outcome if the effect of s 104, being a provision directed to protecting the rights of third parties whose interests might be affected by a determination of the Tribunal, were to constrain the ability of third parties to protect their interests by precluding them from appealing such a determination". We do not agree. The rights conferred on third-party objectors in the statutory scheme under consideration are not unlimited. In any event, third-party objectors are not precluded from seeking party status through joinder under s 44(1)(a) of the NCAT Act.
9. Further, we agree with the Information Commissioner's submission that, in accordance with s 3(2)(b) of the GIPA Act, discretions with respect to third-party consultation should be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. This would not be facilitated by permitting third-party objectors the same rights as parties in NCAT proceedings in the absence of express statutory provision.
10. We note in this regard that the NCAT Act specifies circumstances where persons who have a statutory right of appearance are taken to be parties. Under cl 21 of Sch 5, specified persons are entitled to appear at a hearing conducted by the Tribunal in certain proceedings for the purposes of the Legal Profession Uniform Law (NSW), and by cl 21(5), any person who appears at a hearing (other than a witness) "is taken to be a party to the proceedings concerned". The specific provision in cl 21(5) that a "person who appears as a hearing…is taken to be a party" contemplates that, in other contexts, there may be individuals who "appear" at hearings but are not a party. There is no statutory provision equivalent to cl 21(5) of Sch 5 to the NCAT Act with respect to the right of appearance under s 104 of the GIPA Act and cl 9(4) of Sch 3 to the NCAT Act for the purposes of GIPA Act proceedings.
11. SunRice also argued, as an alternative submission, that it was an intervenor in the first instance proceedings, that courts treat intervenors as having the same privileges and burdens of parties at general law, that there is nothing in the legislative scheme under consideration that changes this general position, and that SunRice should therefore be treated as a party for the purposes of s 80(1) of the NCAT Act.
12. We observe that the GIPA Act at s 104(3), and the NCAT Act at Sch 3, cl 9(4)(c), do not use term "intervene" or otherwise refer to intervention. This can be contrasted to other provisions in the NCAT Act. For example, s 44(4) provides that the Attorney General, Ministers who administer the legislation that confers the functions the exercise (or purported exercise) of which are in issue, and other persons authorised by legislation or statutory rules may "intervene" in proceedings, with consequential statutory references to "intervention" in s 44(5). The participation of those persons, where they are not already parties, would be recorded as intervention. The reference to the Attorney General or another Minister who "intervenes" in proceedings is also reflected in the NCAT Rules at rr 27, 28 and 29.
13. In our view, to the extent recorded on cover sheets of the Tribunal's decision, the terms "first intervenor" for SunRice and "second intervenor" for the Information Commissioner are not an accurate description of the status of those persons. Similarly, "acceptance" by Registry staff of documents describing a person as "intervenor" does not transform such person into an intervenor if they do not otherwise have that status at law.
14. The authorities to which we have been referred, to the effect that formal intervenors have rights to appeal at general law, were decided in specific statutory and legal contexts. While we do not think SunRice was an intervenor in the proceedings below when exercising its right to appear and be heard under s 104(3), if we are wrong, then in the particular statutory context under consideration we do not consider SunRice - to the extent it could be characterised as an informal "intervenor" - has the same rights as a party to appeal under s 80 of the NCAT Act.
15. We not accept SunRice's contention that there is no distinction drawn in the NCAT Act between an intervenor and a party. Section 44(4), for instance, contemplates that the persons specified in s 44(4) may be intervenors, where they are not already parties. Rules 27-29 of the NCAT Rules then expressly provide that the Attorney General and other relevant Ministers where they intervene in proceedings are parties to those proceedings. At s 34C(4)(e)(iii) and cl 2 of Sch 7, the NCAT Act further distinguishes between parties and intervenors. Moreover, and leaving aside intervention, the NCAT Act includes specific circumstances when persons with rights of appearance are taken to be parties to proceedings: cl 21(5) of Sch 5.
16. We are also conscious that conflating the participation right conferred by s 104(3) on a third party with the usual rights of parties would result in a potentially large number of third-party objectors having automatic "party" status and thus a right to appeal pursuant to s 80 of the NCAT Act. As the Tribunal indicated at [14] in CBL, the test for a "person aggrieved" for the purpose of s 104(3) is not an onerous one. We do not consider there to be any basis in the legislative scheme for applying the principles which govern the right to appear in Tribunal proceedings to party status.
17. We do not consider that SunRice can properly be characterised as a party in the Tribunal proceedings below for the purposes of NCAT internal appeal rights under s 80.

Preliminary issue (b): Statutory entitlement of SunRice to appear and be heard in appeals

1. In the event that SunRice was unsuccessful in its argument that it was competent to bring its own appeal, SunRice asserted its right to appear and be heard in the appeal brought by the Board (and, by extension, the proposed appeal brought by Forbidden Foods) under s 104(3) of the GIPA Act and cl 9(4)(c) of Sch 3 to the NCAT Act. SunRice (and the Board) rely on the construction of s 104(3) accepted by the Appeal Panel in Scenic NSW at [19]-[20] to the effect that the appearance right extends to NCAT internal appeals.
2. Forbidden Foods challenges SunRice's right to participate in the Board's appeal through reliance on a statutory right to appear and be heard under s 104(3), but does not dispute that, if Scenic NSW were to be followed on this point, SunRice would have such an entitlement. Forbidden Foods argues instead that Scenic NSW was wrongly decided.

Submissions

1. Forbidden Foods' submissions: Forbidden Foods argues that, properly construed, s 104(3) confers a right on SunRice to participate in administrative review proceedings (and interlocutory proceedings which are ancillary to those proceedings), but does not extend to participation in an internal appeal arising from those administrative review proceedings. That is for the following reasons: 1. Section 104(3) confers the right to participate in "any proceedings before NCAT in relation to the review". "The review" in question is that set out earlier in the sentence: "a review under this Division". That Division is Pt 5, Div 4, "Administrative review by Civil and Administrative Tribunal". Section 100 (within that Division) permits an application to NCAT for an administrative review under the ADR Act of a reviewable decision. That engages NCAT's "administrative review jurisdiction" under s 30 of the NCAT Act. When NCAT exercises "internal appeal jurisdiction", it is hearing an appeal (NCAT Act, ss 32, 80-81), not a review "under this Division", i.e. under Div 4 of Pt 5 of the GIPA Act. 2. In an appeal, SunRice is no longer a "person who could be aggrieved by a decision of NCAT on a review" as it was prior to the handing down of the Decision - the review has already occurred. Whether SunRice could be aggrieved is a hypothetical. That phrase again indicates that the right to participate under s 104(3) only extends to participation in the administrative review (and any ancillary or interlocutory proceedings) - once the review has taken place, the person is or is not aggrieved. SunRice claims that it is aggrieved, but that does not bring it within s 104(3) in respect of the Board's (or Forbidden Foods') appeal. 3. The only construction of s 104 which is coherent as a whole is to read s 104(1) and s 104(2) as conferring rights to appear in administrative review proceedings and internal appeals, while s 104(3) only confers a right to appear in administrative review proceedings. There is a clear distinction between the words used to confer rights of appearance in subsections (1) and (2) as compared to subsection (3). The former two subsections each use the phrase: "in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division" (emphasis added). The latter subsection merely uses the phrase: "in any proceedings before NCAT in relation to the review". Where legislation includes provisions relating to similar matters in different terms, a deliberate intention to deal with them differently can be inferred: see e.g. Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 418-419, 422, 430-431; [1977] HCA 26. 4. On a construction of s 104(3) which extends the right of appearance to appeal proceedings, the insertion of the text "(and proceedings on an appeal in respect of any such proceedings)" in s 104(1) and s 104(2) would be otiose. It would not be necessary to specifically add a right of appearance in appeal proceedings in s 104(1) and s 104(2) because that would be already covered by the phrase "in any proceedings before NCAT… in relation to a review". In construing a statute, courts and tribunals are to give meaning to every word that has been chosen by the legislature wherever possible so as to avoid words being rendered redundant: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [71]. 5. Further, the decision of the legislature to expressly extend a right of appearance to appeals for the Information Commissioner (and later the Privacy Commissioner) must have been deliberate: it was the only change between the relevant section in the public consultation draft of the predecessor bill and the Government Information (Public Access) Bill 2009 (NSW) (the GIPA Bill).
2. Finally, to the extent that the Appeal Panel's decision in Scenic NSW is to the contrary, it should not be followed. That case dealt with the specific situation where individuals who were aggrieved by the determination of the Tribunal were not aware of the first instance Tribunal proceedings until they were notified after the decision was delivered. In that context the Appeal Panel's inclination to permit them to appear was understandable. Here, the circumstances are different. SunRice had primary conduct of the hearing below for the organisations opposing release of the documents. In any event none of the arguments set out above appear to have been made to the Appeal Panel in Scenic NSW. Decisions are only authority for what they decide, as opposed to what was held without argument: Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14 at [45].
3. SunRice's submissions: SunRice argued that s 104(3) of the GIPA Act confers the same rights of appearance in internal appeal proceedings as it had in the Tribunal proceedings below, for the following reasons: 1. SunRice is an aggrieved person, and Div 4 of Pt 5 of the GIPA Act does not distinguish between appeals and reviews. An internal appeal is an NCAT proceeding. 2. The ordinary meaning of the words in "any proceedings before NCAT" in s 104(3) should be applied, and anything else is an unwarranted gloss on the provision: see, for example, Fish v Solution 6 Holdings Limited (2006) 225 CLR 180; [2006] HCA 22 at [28]. Merely because special and separate provision has been made for the Information Commissioner in s 104(1) and the Privacy Commissioner in s 104(2) does not detract from the breadth of the ordinary meaning of aggrieved persons in s 104(3). 3. The right afforded to SunRice under s 104(3) is reinforced by the terms of cl 9(4)(c) of Sch 3 to the NCAT Act.
4. The Board's submissions: The Board relied on Scenic NSW, in which the Appeal Panel "confirmed that the right conferred by s 104 of the GIPA Act extends to a right to appear and be heard on appeal" (at [20]). The Board further submitted that: 1. The first part of s 104(3) serves to define to whom the provision relates, that is, "any person who could be aggrieved by a decision of NCAT on a review under this Division". SunRice meets that description as a person whose information was directly the subject of the administrative review proceedings before the Tribunal. The second part of s 104(3) defines the scope of the right conferred by that provision, that is, the right to "appear and be heard in any proceedings before NCAT in relation to the review" (emphasis added). An internal NCAT appeal constitutes "proceedings before NCAT"; the appeal proceedings would be "in relation to" the administrative review by the Tribunal below. If it had been intended that s 104(3) limit the right to appear and be heard to administrative review proceedings only, it would have conferred the right to appear and be heard in "any proceedings before NCAT in the review" rather than "in relation to" the review. 2. Express reference to appeal proceedings in s 104(1) and s 104(2) does not serve to change the ordinary meaning that attaches to the words of s 104(3). 3. The construction of s 104 contended for by Forbidden Foods would serve to constrain or limit the rights of people with a proper interest in the review proceedings, rather than protect them. Such a construction is inconsistent with the purpose of s 104 of the GIPA Act.
5. Information Commissioner's submissions: The Information Commissioner argued that: 1. The ordinary meaning of "any proceedings before NCAT in relation to the review" in s 104(3) would include Appeal Panel proceedings. Internal appeals are heard by the Tribunal constituted as an Appeal Panel: NCAT Act, s 27(1). The Appeal Panel has broad powers in determining a matter, and can exercise all the functions of the Tribunal at first instance: NCAT Act, s 81(2). 2. However, the specific references to appeal proceedings in s 104(1) and s 104(2) in relation to the Information Commissioner and the Privacy Commissioner "arguably … gives rise to ambiguity as to whether the right of appearance under s 104(3) also extends to internal appeals".
6. The Commissioner declined to express a view as to whether Scenic NSW was correctly decided on the operation of s 104(3).

Consideration

1. We have given careful consideration to the submissions put forward by SunRice, the Board and Forbidden Foods as to the scope of s 104(3) and the competing constructional choice. While the meaning of s 104(3) is to some extent ambiguous, we conclude that the right of appearance under s 104(3) does not extend to internal appeals.
2. Earlier in these reasons we considered the statutory regime as it relates to the role of third parties. It is evident that the rights granted to third-party objectors as to consultation, and review of agency decisions following consultation, in the statutory scheme provided in the GIPA Act and NCAT Act are not unlimited. Section 104, conferring automatic rights of appearance, is an integral part of the scheme under consideration, not only in relation to third-party objectors, but also in relation to the Information and Privacy Commissioners.
3. The starting point to the understanding of s 104(3) is that it must be read in light of the section as a whole. In Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449; [1924] HCA 46, Isaacs and Rich JJ said at 455: "every passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument": see also Scott v Federal Commissioner of Taxation (1966) 117 CLR 514 at 524; [1966] HCA 48 (per Windeyer J). Moreover, s 104 must be construed in the context of the role of third parties in the entire legislative scheme. In K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48, Mason J (as he then was) said at 315: "[T]o read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context … Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context". Citing the case of Attorney-General v Prince Ernest Augustus of Hanover (1957) AC 436, Mason J continued: "…words, and particularly general words, cannot read in isolation: their colour and content are derived from their context."
4. As the High Court emphasised in Project Blue Sky, the primary object of statutory construction "is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions in the statute": at [69]. The Court further explained that, in construing a statute, courts and tribunals should whenever possible attempt to give meaning to every word chosen by Parliament so as to avoid words being rendered redundant. At [71], the Court (McHugh, Gummow, Kirby and Hayne JJ) said: "…a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume, Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent'." (footnotes omitted)
5. We recognise that, considered in isolation, the text of s 104(3) could be read broadly to encompass a right of appearance in an internal appeal from an administrative review. On one view, where the first part of s 104(3) is met (ie there is a person who could be aggrieved by a Tribunal administrative review decision), the second part of s 104(3) might be argued to define the scope of the right conferred in broad terms (ie that person may appear and be heard in any NCAT proceedings, including internal appeals, that arise from the administrative review proceedings). Such reading requires a broad construction to be given to the words "in relation to" the review. Against that view, at the time of any NCAT internal appeal, the person in the position of SunRice is no longer one who "could be aggrieved"; rather, the person is (or is not) aggrieved by the Tribunal's decision. On this reading, the second part of s 104(3) is not engaged.
6. However, when read in context with s 104(1) and s 104(2), we think it is clear that s 104(3) does not provide a right of appearance to SunRice in an appeal against the Tribunal's first instance decision. Applying the principles of statutory construction described above, what are arguably "general words" in s 104(3) must be construed in the context of the provision as a whole. The bracketed words in s 104(1) and s 104(2) are to be given "work" to do - those words unambiguously confer a right of appearance on the Information and Privacy Commissioners in internal NCAT appeals; those words (or similar) are not repeated in s 104(3). The approach proposed by SunRice and the Board, and previously adopted by the Appeal Panel in Scenic NSW, would seem to render the bracketed words otiose.
7. Our preferred construction is reinforced by cl 9 of Sch 3 to the NCAT Act. Clause 9(4) deals specifically with rights of appearance in GIPA administrative review proceedings; the clause does not encompass appeals from review decisions. This is so in respect of each of the Information Commissioner, the Privacy Commissioner and "any person who could be aggrieved by a Tribunal decision on an administrative review on an application made under Division 4 of Part 5" of the GIPA Act. The opening words of cl 9(4) confine the participation rights conferred in that sub-clause to "proceedings for the exercise of a Division function for the purposes of the [GIPA] Act" (our emphasis). Division functions in relation to the GIPA Act are those allocated to the AEOD, which are relevantly first instance proceedings. NCAT internal appeals are not proceedings undertaken in the exercise of a "Division function". Internal appeals are undertaken in the exercise of the appeal jurisdiction under s 32 of the NCAT Act.
8. SunRice pointed to cl 9(4)(c) of Sch 3 to the NCAT Act to support its argument that it has a statutory right to appear and be heard in the Board's appeal. We think that the language of cl 9(4) has the opposite effect. In our view, the existence of, and language, of cl 9(4) reinforces the view that s 104(3) was not intended by the Legislature to extend to participation in appeals. Something more is required to confer participation rights in internal appeals from GIPA first instance review proceedings - this is found in the words in brackets in s 104(1) for the Information Commissioner and in s 104(2) for the Privacy Commissioner, but not in s 104(3) for persons such as third-party objectors.
9. Forbidden Foods referred the Appeal Panel to extrinsic material to the GIPA Bill of potential relevance to the interpretation of s 104 and the constructional choice which s 104(3) presents. The text in the bracketed words in s 104(1) relating to the Information Commissioner was added to the version of the GIPA Bill introduced to Parliament in 2009 and did not appear in the earlier public consultation draft. (The text now located at s 104(2) relating to the Privacy Commissioner was added later, by way of amending legislation in 2010, after the enactment of the GIPA Act.) Forbidden Foods submitted that the decision to expressly extend a right of appearance to appeals only for the Information Commission (and later the Privacy Commissioner) "must have been deliberate, as it was the only change between the relevant section in the public consultation draft of the predecessor bill and the [GIPA Bill]". The rights of appearance were then before the ADT.
10. Given some ambiguity in the meaning of s 104(3), we think that regard can be had to extrinsic material pursuant to s 34(1)(b)(i) of the Interpretation Act 1987 (NSW), to the extent that any such material assists in the task of construing s 104(3). Although s 34(2) of the Interpretation Act does not list draft versions of a bill as materials that may be considered in interpreting a legislative provision, that list is not intended to be exhaustive. The NSW Court of Appeal has previously referred to consultation and exposure drafts of a bill in order to assist it in ascertaining the meaning of specific sections of legislation ultimately enacted: see Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8 at [44]-[50], [94]-[95] [98], [105].
11. Turning to the GIPA Act, there was extensive public and stakeholder consultation on the draft legislation prior to introduction to Parliament in 2009 of the GIPA Bill, together with the Government Information (Information Commissioner) Bill 2009 (NSW) and the Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009 (NSW). As the then Premier said in his Second Reading Speech in relation to the bills, "landmark legislation…cannot occur without extensive consideration and discussion." It is apparent from that speech that the Government received a number of submissions during the consultation process in developing the bills, and the Premier continued: "We have carefully considered the submissions in drafting the legislation, and changes have been made to the exposure draft bills where appropriate": NSW Legislative Assembly, Parliamentary Debates (Hansard), 24 June 2009, pp 16615, 16662.
12. Drafting changes were made between the public consultation draft and the GIPA Bill as enacted by Parliament following consultation with stakeholders. An express right to appear and be heard in appeal proceedings was included for the Information Commissioner in what is now s 104(1), and not for "persons who could be aggrieved" in what is now s 104(3). This would seem to indicate that the Legislature intended there to be a difference between the rights of the Information Commissioner on the one hand, and persons "who may be aggrieved" on the other hand, to appear and be heard in GIPA proceedings in the Tribunal. There is however no commentary attached to the consultation draft, or found in the Minister's Second Reading Speech or other relevant material, which confirms that a deliberate choice was made to differentiate between the Commissioner's and aggrieved persons' rights to appear and be heard.
13. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2008] HCA 41 at [47], the plurality of the High Court explained that, while the language employed is the surest guide to legislative intention, the meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. So far as we are aware, there is nothing in the extrinsic material to the GIPA Bill which specifically addresses or alludes to the general purpose and policy underlying s 104 of the GIPA Act, nor to the reasoning underlying the drafting differences in s 104(1) and s 104(2), as compared to s 104(3).
14. In Attorney General for New South Wales v Melco Resorts & Entertainment Ltd [2020] NSWCA 40, the Court of Appeal warned of the dangers of reliance on extrinsic material in the task of statutory construction. In that case, the construction of the legislation which the Court favoured did not depend on, and was not influenced by, extrinsic materials (relevantly the Minister's Second Reading speech). While the change to the drafting of the GIPA Bill described above appears to confirm our preferred construction that the right of appearance in s 104(3) of the GIPA Act does not extend to internal appeals, we do not rely on this extrinsic material in reaching our view.
15. Whether a third-party objector in the position of SunRice has a statutory right to appear and be heard in these appeal proceedings has been vigorously contested and was the subject of detailed written and oral submissions. Section 104 is an awkward provision, which would benefit from legislative clarification. Notwithstanding some ambiguity in the meaning of s 104(3), we nonetheless favour the arguments put forward by Forbidden Foods - those arguments ensure that the bracketed words in s 104(1) and s 104(2) are not rendered redundant. We accept that s 104 intentionally distinguishes between the rights to participate of the Information (and Privacy) Commissioner (who by s 104(1) and s 104(2) can participate at both first instance and in an appeal) and aggrieved persons (who by s 104(3) can only participate, as of right, at first instance). Contrary to submissions from the Board and SunRice, we do not consider that our construction of s 104(3) involves an unwarranted "gloss" on the words of the section. Our preferred interpretation is reinforced by the language in s 104(3) of a "person who could be aggrieved". On these appeals, SunRice is no longer a person who "could be aggrieved" by the Tribunal's administrative review decision, rather SunRice "is" aggrieved.
16. We are conscious that our construction of s 104(3) of the GIPA Act differs from the construction applied in Scenic NSW. In the present matter, we had the benefit of comprehensive arguments put by legal representatives, which have persuaded us to depart from that earlier authority.

Preliminary issue (c): Joinder of SunRice as party to appeals of the Board and Forbidden Foods

1. SunRice applied to be joined as a party to the appeals of the Board and of Forbidden Foods under s 44(1)(a) of the NCAT Act and r 29(d) of the NCAT Rules, in the event that SunRice was not successful in its primary argument that it had an entitlement to bring an appeal in its own right. The Board supported SunRice being joined to the appeal. Forbidden Foods opposed SunRice's joinder application.
2. On 5 June 2020 we granted SunRice's application to be joined as a party to the Board's appeal. On 30 June 2020 near the end of the appeal hearing, SunRice applied to be made a party to Forbidden Food's proposed appeal under s 44(1)(a). We are satisfied that it is appropriate to join SunRice as a party to Forbidden Food's proposed appeal.

Submissions

1. SunRice submitted that it is both a "proper" and "necessary" party because it is aggrieved by the Decision and because it has rights and interests that are affected by that decision.
2. The Board supported SunRice's application to be joined as a party to its appeal on the same basis, and argued that SunRice's position is analogous to that of Sydney Airports Corporation in Marrickville Council, a case in which the Tribunal permitted the joinder of that Corporation, a third-party objector, as a party to first instance proceedings.
3. Forbidden Foods opposed SunRice's joinder application, arguing that SunRice is not a "proper and necessary" party as described in Fine. The Court of Appeal in Fine considered whether the Commissioner of Police, being the applicant in the process before the decision-maker (the Liquor and Gaming Authority) and therefore a statutory applicant, was a proper party to the Tribunal proceedings below: at [41]-[44]. The Court of Appeal noted at [52]-[56] the reference made by the Appeal Panel to the principle that: "… in ordinary inter partes litigation, where the issue in dispute could be effectively and completely adjudicated upon in the absence of the party sought to be joined and where no order was sought against that party, joinder was unnecessary and would generally not be allowed." The Court of Appeal concluded that "[t]here was no error in the Appeal Panel's consideration of these authorities". Forbidden Foods argued that the present circumstances do not involve the joinder of a statutory applicant in a like position to the Commissioner of Police in Fine, and the current proceedings are in the nature of inter partes litigation. Noting that the purpose of the proceedings is for the Board to release documents which it holds, and no orders are sought against SunRice, Forbidden Foods submitted that the issues in dispute can be effectively and completely adjudicated in SunRice's absence.

Consideration

1. Section 44(1) gives the Appeal Panel power to order that a person should be joined as a party to proceedings if the Appeal Panel considers that the person should be joined a party. Section 44(2) provides for the removal of parties if "the person has been improperly or unnecessarily joined or ceased to be a proper or necessary party". Given those provisions and the relevant authorities, a person should be joined as a party if the Appeal Panel considers that joinder is "proper" or "necessary": Fine; DNY v Public Guardian [2018] NSWCATAD 254 at [11]; DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 46; Marrickville Council; CBL; Auld v Independent Liquor and Gaming Authority [2017] NSWCATAD 160 (Auld); Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2016] NSWCATAP 236 at [25]; Scenic NSW at [7].
2. When deciding whether to exercise the discretion to join a person as a "party", "the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case" are all relevant factors: Fine at [57]. Whether prejudice would be caused by joinder, such as delay to proceedings, is relevant. Further, as previously stated by the Tribunal, "[w]hen exercising its powers under the [NCAT Act], including the power under s 44(1), the Tribunal is to seek to give effect to the guiding principle…to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Auld at [14].
3. Our attention has been drawn in these proceedings to three decisions where the Tribunal (including Appeal Panel) has determined joinder applications under s 44 of the NCAT Act by persons consulted under s 54 of the GIPA Act: CBL, Marrickville Council and Scenic NSW. Each of these instances was in the context where the joinder applicant was found to have a statutory right to appear and be heard under s 104(3) of the GIPA Act.
4. In CBL the Tribunal declined to join a third-party objector to first instance administrative review proceedings because the person had a right to appear and be heard under s 104(3) and because it had failed to make detailed submissions about why it should have the additional status of party. In Marrickville Council, the Tribunal joined a third-party objector as party in first instance proceedings relying on the relevant factors set out by the Court of Appeal in Fine at [38] and [57], despite that person having an entitlement under s 104(3) to appear and be heard. In Scenic NSW, the Appeal Panel declined to join third-party objectors to an appeal from a GIPA first instance decision on the basis it was neither "proper" nor "necessary" for them to be joined as parties in circumstances where the Appeal Panel determined they had the right to appear and be heard in the appeal under s 104(3).
5. We do not disagree with the Tribunal's statement in CBL at [26] to the effect that s 44 "is to be read in the light of any rights and obligations of third parties under the enabling legislation", relevantly the GIPA Act. That case concerned first instance proceedings where the legislation is clear in permitting a party to appear and be heard in those proceedings if that party could be aggrieved by the administrative review decision. However, given our preferred view that s 104(3) does not provide the same participation rights to a third-party objector in an appeal that it does in first instance proceedings, any joinder application from a third-party objector should be considered in this light. We acknowledge that a refusal of the s 44 joinder application would deprive that objector of a right to participate in the appeal. Any decision to join a third-party objector as a party to an appeal will depend on the facts of the particular case.
6. Forbidden Foods submitted that where the GIPA Act at s 104(3), properly construed, excludes a person from having a right to appear and be heard in appeal proceedings, then an application for joinder should not be granted to allow that person to participate in the appeal proceedings under s 44 of the NCAT Act. However, there is nothing in the legislation to indicate that, notwithstanding our view on the proper construction of s 104(3), the discretion under s 44(1)(a) to join a "proper" or "necessary" party in the particular circumstances of a case is constrained in the manner suggested.
7. In the present circumstances, we are satisfied that SunRice is aggrieved by the decision under review. SunRice has commercial, financial and business interests affected by the Board's appeal and Forbidden Foods' proposed appeal. SunRice has consistently maintained its objection to release of certain information on the basis that disclosure will affect such interests. It wishes to be heard on questions of law that are relevant to the determination of the appeals, as well as on appeal grounds that require leave.
8. We understand Forbidden Foods' submission to be that the issues in dispute in the appeals can be adjudicated in SunRice's absence. That submission is not without force. We nonetheless consider that, due to the nature of the information said to be commercial-in-confidence, SunRice is in the best position to identify how its business interests could be prejudiced by disclosure of relevant information. SunRice played an active role in the first instance proceedings, through its right to appear and be heard under s 104(3), and made a number of submissions on legal and factual points in relation to the balancing exercise required to be undertaken by the Tribunal in relation to the Table to s 14 of the GIPA Act. The Board's appeal grounds raise complex legal and factual points about alleged errors in the balancing exercise undertaken by the Tribunal at first instance. The same can be said about the appeal ground in Forbidden Foods' proposed appeal. We consider that SunRice's participation as a joined party can assist the Appeal Panel in adjudication of the real issues in dispute.
9. SunRice's position is somewhat analogous to that of Sydney Airports Corporation in Marrickville Council. There, the applicant for joinder was found to be a "proper or necessary party" bearing in mind that it may well need to take the lead role in the substantive proceedings (at [34]). While we are presently concerned with appeal and not first instance proceedings, we nonetheless think that similar factors are at play in the Board's appeal. Errors are alleged to have occurred in the way, for instance, the Tribunal concluded there was a general presumption against disclosure in respect of certain material, but in respect of very similar material located in different documents, there was found to be a general presumption in favour of disclosure (the alleged "inconsistency" grounds). Whether any such error occurred depends, at least partly, on the identification of such material and the reasons why disclosure may prejudice SunRice's legitimate business, commercial, professional or financial interests.
10. Significantly, in terms of prejudice to Forbidden Foods, we do not think that providing SunRice with the opportunity to participate in the Board's appeal (and Forbidden Foods' proposed appeal) will cause undue delay or additional cost to the resolution of the appeal proceedings.
11. In any internal appeal, as in an administrative review of a decision under the GIPA Act by the Tribunal, the guiding principle is that the NCAT Act and the procedural rules should be applied so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings. We think that joinder of SunRice, and SunRice's consequent participation as a party, will facilitate the resolution of the real issues in the appeal proceedings, and that joinder in the particular circumstances of these proceedings is consistent with, and in furtherance of, the guiding principle in s 36 of the NCAT Act.
12. We are satisfied that SunRice is "a proper or necessary party" and as such it is appropriate that SunRice be joined as a party to the Board's appeal. We are also satisfied that it is appropriate to join SunRice to Forbidden Food's proposed appeal.
13. To the extent it is necessary to comment on whether SunRice is a "proper" or "necessary" party, we note that the Court of Appeal in Fine stated that a party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. "For that reason, the decision-maker is usually joined as the decision made may be affected by the application. The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal" (at [39]). At [40], the Court continued: "The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither by a necessary or proper party."
14. The role of third-party objectors in Tribunal (including Appeal Panel) proceedings under the statutory regime in the NCAT Act and GIPA Act is not "on all fours" with the role of applicant for joinder in Fine. Much of the discussion in Fine related to what that Court referred to as a statutory applicant, in that case the Police Commissioner who made an application to the Liquor and Gaming Authority. That said, SunRice would seem to fall within the description of a "proper" party for the purposes of s 44 of the NCAT Act as described by the Court of Appeal in Fine at [40]. SunRice is a person whose interests are affected by the Tribunal's decision and has a material interest in the result of the appeal proceedings; SunRice is not a "mere inter-meddler".
15. We also think that, in the particular circumstances before us, SunRice can be characterised as a "necessary party" to the appeals of the Board and of Forbidden Foods as a person whose interests are affected by the Decision: see Fine at [39]. The orders of the Tribunal (and of the Appeal Panel) do not (and will not) bind SunRice and there is no requirement for SunRice to be joined as a party to the appeal proceedings for that reason. While not applicable to NCAT, r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) is worth noting given the similarity of language in r 6.24 and s 44 of the NCAT Act (particularly at s 44(2)). Under the heading "Court may join party if joinder proper or necessary", r 6.24 provides that the Court may join a party if the court considers that a person ought to have been joined as a party "or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings". Accepting that the wording of that rule provides some guidance in the present context, we are of the view that the joinder of SunRice is necessary to the determination of all matters in dispute in the Board's appeal and Forbidden Foods' appeal. This is particularly so, given the guiding principle in s 36(1) of the NCAT Act.

Role of Information Commissioner

1. By way of final comment on the complexities of identifying a "necessary or proper" party in s 44 of the NCAT Act in the context of third-party objectors in GIPA Act proceedings, it may be that the Commissioner considered herself constrained in her participation rights in these appeal proceedings under s 104(1) of the GIPA Act given previous Tribunal (and ADT) comments in Black v Hunter New England Local Health District [2011] NSWADT 295 at [53]; Marrickville Council at [18]-[19]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [54]; and CBL at [19]. In those first instance decisions (and noting there is no relevant NCAT Appeal Panel authority), the Tribunal indicated that the Information Commissioner's role when appearing under s 104(1) is not to argue the merits of applications before the Tribunal, but is limited to assisting the Tribunal with respect to the applicable law, policies and guidelines, and issues of construction of the GIPA Act.
2. Those decisions seemed to confine the Information Commissioner's role in a way that is not obvious from the language of s 104(1), or s 104 as a whole, or any other enabling legislation from which the Information Commissioner derives its functions (for example, the Government Information (Information Commissioner) Act 2009 (NSW)). This issue has not been raised in these appeals and accordingly we do not have the benefit of submissions on the role of the Information Commissioner under s 104(1), and any constraints on that role, so we will not express a concluded view. However, on a tentative view, it is not apparent to us that the Information Commissioner's participation role under s 104(1) is constrained in the manner indicated in the above cases.
3. Further, even if the Information Commissioner's role was confined to issues of statutory interpretation, the question of whether s 104(3) includes a right of participation in internal appeals - involving construction of a section which also affects the rights of the Information Commissioner - would certainly fall within this category. As mentioned previously, the Information Commissioner did submit that s 104(3) "gives rise to ambiguity as to whether the right of appearance… also extends to internal appeals", and referred the Appeal Panel to the relevant findings in Scenic NSW. She did not express a view on whether Scenic NSW should be followed, or how the ambiguity of s 104(3) might be resolved.

Grounds of appeal

1. The Board has a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
2. At the hearing on 5 June 2020, we gave the Board leave to amend its grounds of appeal to include the grounds relied upon in SunRice's purported appeal. We reproduce the grounds of appeal listed in the Board's amended notice of appeal filed on 19 June 2020, on which it relies, in the Annexure to these reasons.
3. The Board contends that all but three of these grounds raise questions of law.
4. Before considering the grounds of appeal, we will briefly outline relevant legislative provisions, and some key features of the Tribunal's decision under appeal.

Legislative framework

1. The objects of the GIPA Act are set out in s 3(1): (1) 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 by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
2. Section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the object of that Act and that the discretions conferred by that Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
3. The information the subject of Forbidden Foods' "access application" is "government information" held by an "agency": see definitions of those terms in s 4(1) of the GIPA Act.
4. Section 5 of the GIPA Act creates a "presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure".
5. Section 9(1) provides that "a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information".
6. Section 12 states: Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. … A note to s 12(2) gives examples of public interest considerations in favour of disclosure of information and includes: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
7. Section 13 sets out the test to be applied in determining whether there is an overriding public interest against disclosure of government information: Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
8. Section 14 restricts the public interest considerations against disclosure that a decision-maker can take into account when applying the public interest test in s 13: (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
9. The considerations listed in the Table to s 14, which are relevant to this appeal are: Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - … (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, …
10. Section 15 requires that the determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with five principles: Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
11. Section 55 of the GIPA Act permits the Tribunal to take into account "personal factors of the application": Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. …
12. Section 100(1) of the GIPA Act gives a person aggrieved by a "reviewable decision" of an agency a right to apply to NCAT for an administrative review of that decision under the ADR Act. The Board's decision is a reviewable decision: GIPA Act, s 80(d). The burden of establishing that a reviewable decision is justified lies on the agency: GIPA Act, s 105(1).
13. In determining an application made under s 100(1) of the GIPA Act, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it: ADR Act, s 63(1). In determining that application, the Tribunal may affirm, vary, set aside the reviewable decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).

Background to the disputed documents

1. In June 2007, the Board and SunRice entered into an agreement (the SEEL Agreement), which set out the terms of the export licence granted by the Board to SunRice. That Agreement gives the Board full and free access to SunRice's records that relate to, or are connected with, its performance as a SEEL holder.
2. As mentioned at [7] above, since 2006, the Board has reviewed annually SunRice's performance as a SEEL holder. The Board uses two primary "performance metrics" to assess SunRice's performance: the "export price premium" (EPP) and the "freight scale advantage" (FSA). In the Decision, at [14], the Tribunal set out the explanation given by the Board of those terms: 1. export price premium: "the amount of additional dollars a grower receives by virtue of there being a single export desk, calculated as the difference between the SunRice price and the weighted average local competitor's price"; 2. freight scale advantage: "the freight savings that SunRice can obtain when shipping rice overseas that would not be available to a grower or smaller entity".
3. In undertaking annual reviews of SunRice's performance as a SEEL holder, the Board requires SunRice to provide a range of information, including information relating to the international rice market and SunRice's market position within that market and the domestic market.
4. Since 2013, following a recommendation made by the NSW Minister of Primary Industries, the Board has engaged auditing firm, Grant Thornton, to "provide independent verification that the … calculations by SunRice of the export price premium and freight scale advantage resulting from the [SEEL] are correct". Under that engagement, Grant Thornton is required to review the methodology used by SunRice to calculate the EPP and FSA and to test the stated assumptions that underpin its calculations.
5. Each of the documents the subject of Order 1(b) (the disputed documents) relate to the Board's annual review of SunRice's performance for the years 2013 to 2017. They fall into three categories: 1. documents 2, 4, 6, 8 and 10: SunRice's responses to the Board's requests for information for the years 2013, 2014, 2015, 2016 and 2017 (the Reporting Letters); 2. documents 11, 12, 13, 14 and 15: reports prepared by and provided to the Board by Grant Thornton following its verification of the EPP and FSA reported by SunRice to the Board for the years 2013, 2014, 2015, 2016 and 2017 (the Independent Verification Reports); and 3. documents 25 and 26: correspondence between the Board and SunRice following a request by Grant Thornton for further information in relation to the 2015 Reporting Letters.

The decision under appeal

1. The Tribunal prepared two versions of its reasons for decision. Pursuant to an order made under s 64 of the NCAT Act, the full version of the Tribunal's reasons (the closed reasons) was provided to the Board and not to Forbidden Foods, SunRice and the Information Commissioner. Under Tribunal order, a redacted version of those reasons (the open reasons) was provided to the parties, SunRice and the Information Commissioner. Those reasons have been published on NSW Caselaw. In addition, the Tribunal ordered that SunRice be given access to a discrete part of the closed reasons: Forbidden Foods Pty Ltd v Rice Marketing Board for the State of NSW (No 2) [2020] NSWCATAD 73. Unless otherwise stated, all references to the Tribunal's Decision are to the open reasons.
2. The Tribunal stated at [53] that in determining Forbidden Foods' access application, it would adopt the three-step approach outlined by an Appeal Panel of the former ADT in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri): 1. identify the public interest considerations in favour of disclosure; 2. consider whether the information in issue, if released, would give rise to a public interest against disclosure on the ground that release of the information could reasonably be expected to have the effect as contended by the Board; and 3. if so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under, and as permitted by, s 55.

Public interest considerations in favour of disclosure

1. The Tribunal at [55]-[58] identified the following public interest considerations in favour of disclosure of the disputed documents: 1. disclosure could reasonably be expected to promote open discussion of public affairs, enhance government accountability and contribute to positive and informed debate on issues of public importance, in this case, the debate concerning the merits of the rice-vesting regime and single export desk regime: GIPA Act, s 12(2)(a). 2. disclosure of information could reasonably be expected to inform the public about the operations of the Board and its decisions in relation to the single desk export scheme: GIPA Act, s 12(2)(b).
2. The Tribunal went on at [145]-[155] to consider the weight to be given to those considerations. The Tribunal noted at [147] that, as acknowledged by the Board, the publicly available information about the benefits to NSW rice growers of the exclusive export arrangements is at "a high level" and does not include the "analysis undertaken as part of the independent verification process". The Tribunal found at [148] that, as asserted by Forbidden Foods, the extent to which the value of the EPP and the FSA as reported by the Board can be "independently verified based on publicly available information" is limited. The Tribunal found at [151] that informed public debate would be promoted by an understanding of the underlying analysis supporting the conclusions expressed in the Board's annual reports as to the benefits of the vesting regime for NSW rice growers. Noting that the NSW Department of Primary Industry proposed to review the single desk export arrangement in 2020, the Tribunal concluded that there is a public interest in the material and submissions provided to that review being as "fully informed as possible": at [152]. The Tribunal placed "significant weight" on the public interest considerations in favour of disclosure: at [152].
3. In its closed reasons at [154], the Tribunal considered the type of information contained in the Independent Verification Reports, concluding in the open reasons that "very significant weight" should be given to the public interest considerations in favour of disclosure of those reports.
4. The Tribunal concluded at [155] that Forbidden Foods' intention to make a submission to the scheduled 2020 review of the single desk export scheme, which it opposes, is a "personal factor of the application" (GIPA Act, s 55) that adds weight to the public interest in favour of disclosure of promoting informed debate about that issue.

Public interest considerations against disclosure

1. At [65]-[142], the Tribunal considered whether, as contended by the Board, cll 1(d), 1(f), 1(g), 4(c) and 4(d) in the Table to s 14 of the GIPA Act applied to each disputed document.

Clause 1(d): prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

1. In a detailed analysis at [71]-[108] the Tribunal identified several factors, including SunRice's contractual obligation to supply information to the Board, which tended against the conclusion that disclosure of the information contained in the Reporting Letters "could reasonably be expected" to prejudice the supply to the Board of that information. The Tribunal considered it relevant that "SEEL export rights are a highly valuable arrangement for SunRice, because it protects SunRice from competition in exporting NSW rice" (at [95]) and, as conceded by the Board's Secretary, Ms Carolyn Chiswell, if SunRice stopped providing information it would probably make it less likely that the vesting arrangements would continue. Nonetheless, the Tribunal concluded at [99] that "it is possible that the detail and quantity of information may be reduced if the information were disclosed" but the available material did "not assist in understanding the extent to which that might occur". The Tribunal also considered it relevant that as the holder of a valuable licence, SunRice had an interest in the continuation of the single desk arrangement, "which would encourage it to include more information than contractually required": at [99]. Despite those reservations, the Tribunal concluded at [99] in relation to the Reporting Letters that there is "at least a possibility that the quantity and detail of information provided may be reduced, and on that basis the public interest against disclosure in cl 1(d) has been established".
2. After considering the nature of documents 25 and 26 (closed reasons at [107]), the Tribunal concluded at [106] that for the reasons given in relation to the Reporting Letters, the public interest consideration against disclosure in cl 1(d) also applied to documents 25 and 26.
3. At [100]-[105], the Tribunal considered whether the public interest consideration against disclosure in cl 1(d) was established in respect of the Independent Verification Reports. The Tribunal noted at [102] that the purpose of Grant Thornton's engagement was to provide "independent verification" of the correctness of SunRice's reported calculations of the EPP and FSA. The Tribunal found that the information in the Independent Verification Reports is provided to the Board on a "confidential basis" and is used by the Board to substantiate its statements to rice growers that SunRice as the holder of the SEEL "delivers substantial benefits to NSW rice growers". In addition, the Tribunal found that the information in those reports "enables the effective exercise" of the Board's functions. However, the Tribunal was not satisfied that disclosure of the information in those reports could reasonably be expected to prejudice the supply of that information. We consider below the reasons given for that finding.

Clause 1(f): prejudice the effective exercise by an agency of the agency's functions

1. For broadly the reasons given in relation to cl 1(d), the Tribunal concluded at [112]-[113] that the public interest consideration against disclosure in cl 1(f) applied to the Reporting Letters and documents 25 and 26, but not the Independent Verification Reports.

Clause 1(g): found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

1. The Tribunal concluded at [119] that the second limb of cl 1(g), "otherwise result in the disclosure of information provided to an agency in confidence", applied to each disputed document.

Clause 4(c): diminish the competitive commercial value of any information to any person

1. The Tribunal accepted at [129] SunRice's claim that the information contained in the Reporting Letters was derived from its own data, data provided by its agents and distributors, together with subscription information, and that it has "commercial value". The Tribunal acknowledged that while SunRice has no domestic competitor, it competes in the international rice market with other producers of medium grain rice. The Tribunal found that disclosure of the information in the Reporting Letters, the Independent Verification Reports and document 26 could reasonably be expected to diminish the competitive commercial value of the information in those documents: at [125]-[136]. The Tribunal gave closed reasons for its conclusion in relation to the Independent Verification Reports, at [132]-[134].

Clause 4(d): prejudice any person's legitimate business, commercial, professional or financial interests

1. The Tribunal found at [141] that the information in the Reporting Letters, Independent Verification Reports and documents 25 and 26 could provide "insights for competitors into SunRice's pricing, market position, and cost base, in various specific markets". On that basis, the Tribunal concluded that disclosure of that information could reasonably be expected to prejudice SunRice's ongoing commercial interests and therefore the public interest consideration against disclosure in cl 4(d) applied to the Reporting Letters, Independent Verification Reports and documents 25 and 26.

Assessment of weight of public interest considerations against disclosure

1. At [156]-[170], the Tribunal considered the weight to attribute to each identified public interest considerations against disclosure.
2. With respect to cll 1(d), 1(f) and 1(g), the Tribunal accepted that while there was a possibility that disclosure may result in a "reduction in quantity or detail of information provided by SunRice", any effect on future supply of information to the Board is "likely to be minimal": at [99], [119], [157]. For that reason, together with the fact that the Board had failed to consider alternative sources of information, the Tribunal concluded that the "evidence does not establish that any consequential effect on the [Board's] ability to carry out its functions is likely to be significant". Accordingly, the Tribunal placed only "modest weight" on the public interest considerations against disclosure in cll 1(d), (f) and (g).
3. In addition, the Tribunal placed "modest weight" on the public interest considerations against disclosure based on cll 4(c) and 4(d). The Tribunal found that the competitive commercial value to SunRice of the information in the disputed documents had diminished since they were created: at [71]-[119], [159]-[169].
4. The Tribunal found that Forbidden Foods' desire to purchase and export NSW-grown rice in competition with SunRice and its current competition with SunRice were personal factors which added weight to the public interest considerations against disclosure, specifically cll 4(c) and 4(d).

Application of s 13 of the GIPA Act

1. Applying the public interest test under s 13 of the GIPA Act (the third step in Camilleri) to the findings and conclusions set out above, the Tribunal ordered the partial release of the Reporting Letters, and the release of the Independent Verification Reports and documents 25 and 26 in their entirety: at [172].

Grounds 1 and 2: did the Tribunal fail to consider the impact that disclosure of the Independent Verification Reports would have on the supply of confidential information by SunRice to the Board?

1. By grounds 1 and 2, the Board contends that the Tribunal erred in its consideration of the application of cll 1(d) and 1(f) of the Table, by failing to consider the impact that disclosure of the Independent Verification Reports would have on the supply of confidential information by SunRice to the Board, and the consequential prejudice to the effective exercise of the Board's functions.
2. The Board asserts that in the proceedings before the Tribunal, it "seriously advanced" the submission that disclosure of the Independent Verification Reports could reasonably be expected to prejudice the supply of information by SunRice to the Board, which in turn could reasonably be expected to prejudice its ability to discharge its functions (the subject submission). The Board asserts that the Tribunal was therefore obliged to consider that submission, citing in support Dennis Willcox Pty Ltd v Commissioner of Taxation (1988) 79 ALR 269; [1988] FCA 244 (Dennis Willcox) at [21]. The Board contends that it can be inferred from the absence of any express reference to the subject submission in its reasons that the Tribunal failed to expressly address that submission.
3. In support of the assertion that the subject submission was "seriously advanced", the Board points to: 1. the following extract from its written submissions, filed 5 July 2019: "[63] The respondent further submits that disclosure of the Independent Verification Reports could reasonably be expected to prejudice the supply to the [Board] of confidential information that facilitates the effective exercise of the [Board]'s functions. [64] The respondent makes this submission on two bases. First, insofar as the Independent Verification Reports contain data that has been independently supplied by SunRice to the [Board] in its Reporting Letters, the respondent submits this public interest consideration against disclosure applies for the reasons articulated above in relation to the Reporting Letters. [65] Secondly, insofar as the Independent Verification reports reflect additional information that is supplied to Grant Thornton directly from SunRice to enable it to undertake its verification on behalf of the [Board], it is reasonable to infer that SunRice would no longer provide an independent consultant with access to its calculations and methodologies should the Reports be disclosed. This would, in turn, undermine the ability of the independent consultant to undertake its verification functions"; 1. detailed oral submissions to the same effect made during the open and closed hearings: see Transcript of Proceedings, Forbidden Foods Pty Limited v Rice Marketing Board for the State of NSW (NCAT, Principal Member Pearson, 13/9/19), pp 19, 22, 28, 29; Transcript 20/9/19, pp 86-89. 2. the claim made by SunRice Manager, Mr William Morris, who was responsible for preparing the Reporting Letters, that he would not provide "such detailed price premium calculation and methodologies" to Grant Thornton if the Independent Verification Reports were to be made public: statement of William Morris 19 July 2019 at [42], [60]; 3. the submission, accepted by the Tribunal, that the information in the Independent Verification Reports is largely based on information provided by SunRice in the Reporting Letters and directly to Grant Thornton: see Decision at [134]; and 4. the submission made by the Board and SunRice concerning the significant "commonality of information" in the Reporting Letters and the Independent Verification Reports: see the Board's submissions filed 5 July 2019 at [64], SunRice's submissions filed 19 July 2019 at [18]-[39].

Forbidden Foods' submissions

1. Forbidden Foods contends that grounds 1 and 2 are fundamentally flawed because they fail to acknowledge that the Independent Verification Reports are documents which the Board obtains from Grant Thornton, not SunRice. Forbidden Foods points out that the Board has not challenged the finding made by the Tribunal that disclosure of the Independent Verification Reports would not prejudice the supply of information from Grant Thornton.
2. Forbidden Foods rejects the Board's characterisation of the subject submission as a "fundamental issue" or the issue upon which the case turned. It contends that the focus of the evidence adduced and submissions made by both the Board and SunRice was on the alleged prejudicial effect of disclosure of the Reporting Letters, not the Independent Verification Reports. It submits that SunRice, the "natural party" to assert that alleged prejudicial effect, conspicuously failed in its evidence to address the Independent Verification Reports. It submits that the "bare assertion" made by Mr Morris that he would not provide "such detailed price premium calculation and methodologies" to Grant Thornton if the Independent Verification Reports were to be made public represents the "high point" of the Board's evidence. Forbidden Foods points out that in cross-examination, when taken to the contractual obligation imposed on SunRice by the SEEL Agreement to supply relevant information to Grant Thornton and the Board, Mr Morris effectively retreated from that claim. In addition, Forbidden Foods points out that the Board's witness, Ms Chiswell, did not assert that the disclosure of the Independent Verification Reports would prejudice the supply of information by SunRice to the Board. The focus of her stated concerns was the confidential and commercially sensitive nature of the information contained in those reports.
3. Further, Forbidden Foods contends that the Tribunal was not obliged to address each and every argument made by a party, citing in support ZKK v ZKL [2019] NSWCATAP 81 at [37].

Consideration

1. Two questions are raised by grounds 1 and 2: 1. was the Tribunal obliged to consider the subject submission? 2. if so, did the Tribunal fail to take that submission into account in determining whether cll 1(d) and 1(f) applied to the Independent Verification Reports?

Relevant Principles

1. In Dennis Willcox, the appellant contended that the Commonwealth Administrative Appeals Tribunal failed to consider a submission it made concerning whether it had gained a "profit" on the sale of shares. Noting that the reasons given by the Tribunal for its decision were "devoid of reference" to that submission, Jenkinson J (with whom Woodward and Foster JJ agreed) stated at [21]: "Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353)."
2. In D'Amore v Independent Commission Against Corruption [2013] NSWCA 187, Basten JA considered at [230] the obligation of a decision-maker in the context of administrative decision-making to deal with part of an applicant's claim, citing with approval the following passage from Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (Applicant WAEE), at [46]-[47], in which French, Sackville and Hely JJ explained: "It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason... The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant on that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked."

Was the Tribunal obliged to consider the subject submission?

1. In determining whether the subject submission can be characterised as being seriously advanced or squarely raised, the context in which that submission was made is relevant. The proceedings were vigorously contested. The Board and SunRice raised numerous grounds on which they claimed disclosure of the disputed documents should be refused. Numerous facts were in issue.
2. A review of the submissions made by both the Board and SunRice makes plain that the primary focus of their respective submissions was, as Forbidden Foods asserts, on the prejudicial effect on the supply of information by SunRice to the Board if the Reporting Letters were disclosed. That focus was mirrored in the evidence given by the witnesses for SunRice and the Board. The only direct evidence which specifically addressed whether the supply of information by SunRice would be prejudiced if the Independent Verification Reports were disclosed was the claim made by Mr Morris that he would not provide detailed price premium calculations and methodologies to Grant Thornton if those reports were to be made public. As Forbidden Foods points out, when taken to SunRice's contractual obligations to supply information to Grant Thornton and to the Board, Mr Morris retreated from that claim.
3. Nonetheless, as the Tribunal acknowledged at [76], the Board contended that the factors on which it relied in support of the contention that disclosure of the Reporting Letters would prejudice the supply of information by SunRice applied equally to the Independent Verification Reports. In addition, the Tribunal acknowledged that the Board and SunRice pointed to the "commonality of the information" in the two sets of documents. At [76] the Tribunal summarised the submissions made by the Board about the effect of disclosure of the Independent Verification Reports: "[The Board] submits, relying on Ms Chiswell's affidavit, that the information recorded in the Independent Verification Reports is highly detailed and includes commentary on how SunRice calculated the figures it reports to the [Board], and also includes other information of value to the [Board] such as sensitivity analysis on foreign exchange rates. The reports contain confidential information, each being marked "Private and Confidential", and each including a clause stating that the report is confidential and has been prepared exclusively for the [Board]. Disclosure of the information could reasonably be expected to prejudice the supply to the [Board] of confidential information that facilitates the effective exercise of the [Board]'s functions: first, for the same reasons that apply to the data provided in the reporting letters, and secondly, to the extent that the reports contain information supplied directly to Grant Thornton by SunRice to enable it to undertake its verification on behalf of the [Board]." (emphasis added) (See also the Tribunal's summary of the submissions made by SunRice about those reports at [78].)
4. Where, as here, the Tribunal is presented with numerous submissions about a diverse range of issues, the dividing line between those which can be characterised as having been seriously advanced, obliging the Tribunal to consider them, and those which cannot, can be difficult to identify. The Tribunal was not required to consider every submission made by a party. As the Full Court of the Federal Court stated in Applicant WAEE at [49], the Tribunal was not obliged to consider submissions that were misconceived or those where it had rejected the factual premise upon which the submission was based. Nor, in our view, was the Tribunal required to consider poorly developed submissions or those given scant attention by the submitting party. We reject the Board's submission that had the Tribunal accepted the subject submission, a finding that cll 1(d) and 1(f) applied to the Independent Verification Reports was inevitable. Nonetheless, we accept that the subject submission was relevant to that determination. It was a substantial submission, squarely raised and seriously advanced by both the Board and SunRice. As a consequence, the Tribunal was obliged to address that submission.

Did the Tribunal fail to consider the subject submission?

1. Before considering this question, it is useful to consider the reasons given by the Tribunal for finding that cl 1(d) applied to the Reporting Letters but not to the Independent Verification Reports.
2. In a detailed analysis at [91]-[99], the Tribunal identified several factors which tended against the conclusion that disclosure of the information contained in the Reporting Letters could "reasonably be expected" to prejudice the supply to the Board of that information. They included SunRice's contractual obligation to supply information to the Board. The Tribunal considered it relevant that "SEEL export rights are a highly valuable arrangement for SunRice, because it protects SunRice from competition in exporting NSW rice" (at [95]) and, as conceded by Ms Chiswell, if SunRice stopped providing information it would probably make it less likely that the vesting arrangements would continue. The Tribunal also considered it relevant that, as the holder of a valuable licence, SunRice had an interest in the continuation of the single desk arrangement, "which would encourage it to include more information than contractually required": at [99]. Despite those reservations, the Tribunal concluded at [99] in relation to the Reporting Letters that there is "at least a possibility that the quantity and detail of information provided may be reduced, and on that basis the public interest against disclosure in cl 1(d) has been established".
3. While ultimately the Tribunal was persuaded that disclosing the Reporting Letters could reasonably be expected to prejudice the supply of information by SunRice to the Board, the Tribunal's reasons reveal that it considered the issue to be delicately balanced.
4. At [100]-[105] the Tribunal explained why it found that cl 1(d) did not apply to the Independent Verification Reports. The Tribunal stated at [105] that, while those reports are provided to the Board on a "confidential basis" and used by the Board to substantiate the statements in its annual reports that "SunRice as the holder of the SEEL delivers substantial benefits to NSW rice growers": "in the context of the contractual relationship, the Tribunal is not satisfied that disclosure of the information could reasonably be expected to prejudice, in the sense of causing detriment or disadvantage, the supply of information for the purposes stated in the Scope of Engagement document or the letter of 24 September 2018. There is no suggestion of such a likely effect in Grant Thornton's letter opposing disclosure."
5. As is apparent, the primary reason given for the finding that cl 1(d) did not apply to the Independent Verification Reports was the "contractual relationship" between Grant Thornton and the Board. That was relevant to whether Grant Thornton would withhold information if the reports were disclosed. However, it did not dispose of the submission made by the Board that for essentially the same reasons advanced in relation to the Reporting Letters and because of the commonality of information between both sets of documents, disclosure of the Independent Verification Reports was likely to prejudice the supply of information by SunRice to the Board.
6. In Applicant WAEE the Full Court of the Federal Court explained at [47] that where, as here, the Tribunal's reasons are "otherwise comprehensive" and the disputed issue had "at least been identified", the inference should not readily be drawn that the Tribunal failed to consider an issue. The Tribunal at [76] and [78] referred to the submissions made by the Board and SunRice about the asserted prejudice to the supply of information by SunRice to the Board if the Independent Verification Reports were disclosed. However, it made no specific findings about whether disclosure of the Independent Verification Reports would be likely to prejudice the supply of information by SunRice to the Board. Nor, in its reasons for finding that cl 1(d) did not apply to those reports, did the Tribunal make any express reference to the subject submission. We accept the Board's contention that it can be inferred that, in reaching that finding, the subject submission was not considered by the Tribunal.
7. The question of whether cl 1(f) applied to the Independent Verification Reports - that is, whether disclosure of the reports could reasonably be expected to prejudice the effective exercise by the Board of its functions - turned on whether cl 1(d) applied to the reports. It follows that the Tribunal was obliged to and failed to consider the subject submission in determining whether cl 1(f) applied to the Independent Verification Reports.
8. Grounds 1 and 2 are established.
9. In ground 4, the Board contends that the finding made by the Tribunal that cll 1(d) and 1(f) did not apply to the Independent Verification Reports was "legally unreasonable" in that it "lacks an evident and intelligible justification", citing in support Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li). Given the conclusion we reached in respect of grounds 1 and 2, it is not necessary to consider this ground.

Ground 3: did the Tribunal err by making conflicting and/or internally inconsistent findings as to the prejudice to the functions of the Board that could reasonably be expected to result from disclosure of information?

1. By ground 3, the Board challenges the finding made by the Tribunal at [157] "that the evidence does not establish that any consequential effect on the [Board]'s ability to carry out its functions is likely to be significant" (emphasis added) (the challenged finding). The Board asserts that this finding was in conflict with, and/or inconsistent with, other findings made by the Tribunal. In the alternative, the Board contends that the Tribunal failed to explain, or to adequately explain, how it resolved that purported conflict or inconsistency.
2. The Board asserts that the following purported findings conflict with, and/or are inconsistent with, the challenged finding: Finding 1: "[T]heoretically [the Board] could look at other sources of information…": at [91].
3. The Board contends that this finding is unsupported and inconsistent with the challenged finding and the finding at [94] that: "The information in the Reporting Letters was provided and received in a context where there is, and can be, only one provider of the information, that is, the holder from time to time of the SEEL."
4. The Board contends that the Tribunal neither explained nor sought to reconcile its finding that the information in the Reporting Letters can only be obtained from SunRice, with its finding that the effect of a reduction in the quantity and detail of the information supplied by SunRice could be ameliorated by recourse to other sources of information. The Board contends that the evidence before the Tribunal fell "far short" of establishing that there were in fact alternative sources of information available to the Board to enable it to properly assess the EPP and FSA reported by SunRice. Finding 2: "[A]cknowledging that additional resources are likely to be required [to enable the Board to undertake its functions]": at [157].
5. The Board contends that even if there was a sufficient evidentiary basis to support a conclusion that alternative sources of information were available to enable it to properly assess the reported EPP and FSA, the Tribunal acknowledged that this "would require additional resources". The Board points out it is a small agency with limited resources. It asserts that there was "simply no basis" for the Tribunal to assume that additional resources could be made available to enable it to obtain alternative sources of information. Finding 3: "[T]here is at least a possibility that the quantity and detail of information provided by SunRice to the [Board] would be reduced": at [99].
6. The Board contends that this finding is irreconcilable with the challenged finding and also the finding at [91] that "if the information in the Reporting Letters were not provided by SunRice, or its detail limited, the task of the [Board] would be more difficult".
7. Forbidden Foods rejects the contention that the challenged finding conflicts with or is inconsistent with the above three findings. It argues that the Board's submission is misconceived and is based on a misreading of the reasons.

Consideration

1. Before considering this ground, it is useful to make some observations about the structure of the Tribunal's reasons and the context in which the challenged finding appears.
2. In its reasons at [65]-[119], the Tribunal considered whether the public interest considerations against disclosure in cll 1(d), 1(f) and (g) applied to the disputed documents. Having concluded that cl 1(g) applied to the Independent Verification Reports and each clause applied to the Reporting Letters, the Tribunal went on at [156]-[170] to consider the weight to attribute to those considerations. The challenged finding appears at [157], where the Tribunal concluded that those considerations should be given "only modest weight": "For the reasons above, while the Tribunal accepts that disclosure may result in a reduction in quantity or detail of information provided by SunRice, the evidence does not support a conclusion that any effect on future supply of information to the [Board] is likely to be other than minimal. For that reason, and in a context where the [Board] has not considered alternative sources of information, the evidence does not establish that any consequential effect on the [Board]'s ability to carry out its functions is likely to be significant, acknowledging that additional resources are likely to be required. The Tribunal accordingly gives only modest weight to the public interests against disclosure based on cl 1(d), (f) and (g) of the Table to s 14." (emphasis added)
3. Relevant to an understanding of the basis of the challenged finding is the Tribunal's consideration of the threshold question of whether cl 1(d) applied, and specifically whether disclosure of the information contained in the disputed documents could "reasonably be expected … [to] prejudice the supply [to the Board] of confidential information". As is apparent, the Tribunal was sceptical of Mr Morris' claim that if the documents were disclosed, SunRice would be "less candid and frank" with the Board and instead "provide the bare information strictly required [by the Board]", characterising his evidence on this point as "inconsistent": at [97]. The Tribunal found that it was possible that "the detail and quantity of information may be reduced if the information were disclosed" but commented that Mr Morris' evidence did not "assist in understanding the extent to which that might occur": at [99]. The Tribunal found that as the "holder of a valuable licence" it was in SunRice's interest "to provide as persuasive a case as possible for continuation of the single desk arrangements, which would encourage it to include more information than contractually required". The Tribunal did not conclude that disclosure could reasonably be expected to have the effect of SunRice "turning off the tap", but rather concluded that there was "at least a possibility that the quality and detail of information may be reduced": at [99]. It was on that basis that the Tribunal found that cl (1)(d) was established in relation to the Reporting Letters.
4. It is against that background that the purported inconsistency on which ground 3 rests must be considered. Read in context, it is plain that the reference in Finding 1 to SunRice being the only possible provider of "the information" is a reference to the information contained in the Reporting Letters, not information at large. That is clear from the opening words of the sentence in which that reference appears: "The information in the Reporting Letters…". Plainly, the Tribunal was not referring to "all information" relevant to the assessment of the EEP. There is no inconsistency between SunRice being the only provider of the information in the Reporting Letters, and the reference to "alternative sources of information".
5. In addition, the Board makes a "no evidence" submission in respect of Finding 1, contending that the Tribunal found that there were "alternative sources of information available" to enable the Board to undertake its functions (apart from the information in the Reporting Letters) and that finding was unsupported. That contention is based on a false premise. The Tribunal did not find that, nor was it required to determine whether, alternative sources of information were available to the Board to enable it to carry out its functions. The reference in [157] to "alternative sources of information" was made in the context of the concession properly made by Ms Chiswell that the Board had not looked at publicly available sources of information that could be used to estimate the EPP, nor had it "considered alternative sources of information": at [91]. It was a contextual factor, which the Tribunal was entitled to take into account.
6. With respect to Finding 2, we reject the contention that the reference to "additional resources are likely to be required" in [157] is at odds with the challenged finding. That reference relates to the claim made by Ms Chiswell that "if the information in the Reporting Letters were not provided by SunRice, or its detail limited, the task of the [Board] would be more difficult, and would require additional resources": at [91]. Under s 105 of the GIPA Act, the Board bore the onus of establishing that its decision was justified. The evidence revealed that the Board had never considered whether alternative sources of information might be available or attempted to quantify the additional resources that might be required to harvest those additional sources. In these circumstances, the conclusion reached by the Tribunal that "the evidence does not establish that any consequential effect … is likely to be significant" is unremarkable and not inconsistent with the challenged finding.
7. Finally, we reject the contention that Finding 3 is inconsistent with the challenged finding. It is a complaint about language and takes those findings out of context. That contention invites us to scrutinise the Tribunal's reasons "with an eye attuned to the detection of legal error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271, 272; [1996] HCA 6 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is no apparent inconsistency between the Tribunal's acceptance that "disclosure may result in a reduction in quantity or detail of information provided by SunRice" and the challenged finding that "the evidence does not establish that any consequential effect on the [Board]'s ability to carry out its functions is likely to be significant".
8. The assumption which underpins ground 3 is not established.

Ground 7: did the Tribunal err in its consideration of the application of cll 4(c) and 4(d) to the Independent Verification Reports?

1. Ground 7 concerns the Tribunal's decision to attribute moderate weight to the public interest considerations against disclosure in cll 4(c) and 4(d) in relation to the Independent Verification Reports. It overlaps with ground 9A.
2. Like grounds 1 and 2, in ground 7 the Board contends that the Tribunal "failed to have regard" to a substantial submission "worthy of serious consideration". The Board contends that it made extensive submissions about the level of detail in the information contained in the Independent Verification Reports, which the Tribunal failed to consider. It contends that, as a consequence, the Tribunal's assessment of the weight to attribute to those considerations "miscarried". In the alternative, the Board contends that the Tribunal failed to explain why it did not consider its submission about the level of detail in the information contained in those reports to be relevant to the assessment of weight.
3. While accepting that the Tribunal was not required to address "each and every allegation raised by a party or consider every piece of evidence presented", the Board contends that the commercial sensitivity resulting from the level of detail in the information contained in the Independent Verification Reports was a "fundamental issue" which had been the subject of extensive submissions in the proceedings. As such the Tribunal was obliged to consider those submissions.
4. The Board acknowledges that the Tribunal made a finding about the level of detail in the Independent Verification Reports (closed reasons at [154]), but asserts that the Tribunal confined its consideration of that finding to its assessment of the weight to be given to the public interest considerations favouring disclosure and failed to take it into account in its assessment of the weight to be given to the public interest considerations against disclosure.
5. Forbidden Foods disagrees. Forbidden Foods asserts that the Tribunal was entitled to determine the matters relevant to the question of what weight to attribute to the public interest considerations against disclosure in cll 4(c) and 4(d). It contends that the Tribunal's assessment of weight turned on its finding that the commercial sensitivity of the information had diminished because of a combination of factors: the passage of time, the volatility of the international rice market and the marketing strategy recently adopted by SunRice. Accordingly, the Tribunal was not required to specifically consider the argument that the granular detail in the Independent Verification Reports made them comparatively more sensitive than the Reporting Letters.

Consideration

1. As formulated, the error of law said to be raised by ground 7 is the Tribunal's purported "failure to consider" the submissions made by the Board and its supporting evidence about the level of detail in the confidential information contained in the Independent Verification Reports.
2. Having rejected the submission made by the Board and SunRice and found that the commercial sensitivity of the information contained in both the Reporting Letters and Independent Verification Reports had diminished, the question of whether the information contained in the latter was more detailed than the former was not to the point. This was an example where, to use the language adopted by the Full Court of the Federal Court in Applicant WAEE at [49], "it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality".
3. The reasoning path that led the Tribunal to find that the commercial value in the disputed documents had diminished and, as a consequence to attribute moderate weight to the public interest considerations against disclosure in cll 4(c) and 4(d) as they relate to the Independent Verification Reports, is abundantly clear. Having made that finding the Tribunal was not required, as the Board asserts, to address the Board's submissions about the level of detail in those reports.
4. This ground of appeal fails.

Grounds 8, 8A and 8B: did the Tribunal fail to give adequate reasons for its decision to order the disclosure of the Independent Verification Reports in their entirety, where those documents contain information that is the same or substantially similar to information in the Reporting Letters which the Tribunal ordered not to be disclosed?

1. In ground 8A, the Board contends that the Tribunal failed to give any or adequate reasons for its decision not to disclose some information in the Reporting Letters, while at the same time ordering the disclosure of the same or similar information contained in the Independent Verification Reports and elsewhere in the Reporting Letters. In ground 8, the Board contends that that decision was "legally unreasonable". In ground 8B, the Board contends that the weight given by the Tribunal to the public interest considerations for and against disclosure was legally unreasonable.
2. Central to each ground is the assertion that the information in the Reporting Letters, which the Tribunal ordered not to be disclosed (the Redacted Information), was the same as or similar to information contained elsewhere in the Reporting Letters and the Independent Verification Reports. The Tribunal described the Redacted Information in the 2013 Reporting Letter as "material on market share in specific markets in Section 4, and detailed financial information in Section 5 and the Appendices": at [172(1)]. The Tribunal used similar terms to describe the Redacted Information in the 2014, 2015, 2016 and 2017 Reporting Letters: [172(2)], [172(3)], [172(4)] and [172(5)]. The complaint raised by these grounds relates to one part of the Redacted Information that is "material on market share in specific markets in Section 4". It is not asserted that the Redacted Information relating to SunRice's financial information is contained elsewhere in the Reporting Letters or the Independent Verification Reports.
3. Self-evidently, Forbidden Foods is unable to comment on the Board's assertion as it does not have access to either the Reporting Letters or the Independent Verification Reports. As author of the Reporting Letters, SunRice can comment on the assertion as far as it relates to those letters but not the Independent Verification Reports, to which it does not have access.

The Reporting Letters

1. The Reporting Letters were prepared by SunRice in response to the annual written requests for information made by the Board to SunRice and adopt much the same format as the Board's letters of request: see Decision at [127]. While there are some variations between the Reporting Letters (Documents 2, 4, 6, 8 and 10), in each, information sits under headings which correspond to those used by the Board in its annual letters of request - for example, Market Overview & Update, Market Position, Financial Reporting, Demonstration of Freight Advantage to Rice Growers and Demonstration of Advantage to Scale to Rice Growers.
2. SunRice prepared a document in support of its claim that part of the Redacted Information, relating to market share, was the same or similar to information contained elsewhere in the Reporting Letters that the Tribunal ordered to be disclosed. Having examined that document together with each Reporting Letter, we are satisfied that, as asserted by the Board and SunRice, there is considerable overlap between the information contained under the headings Market Overview & Update (which the Tribunal ordered to be disclosed) and Market Share (which the Tribunal ordered not to be disclosed). Some of the information contained in the latter is more detailed than that contained in the former. Nonetheless, some of the information contained in the latter is the same as or similar to that contained in the former.

Independent Verification Reports

1. At our request, after the hearing the Board provided to us (but not the other parties and Information Commissioner) a document identifying the parts of the Independent Verification Reports it asserts contain information that is the same as or similar to that contained in the Redacted Information. Having reviewed that document together with each Reporting Letter and Independent Verification Report, we are satisfied that some of the information in those documents is the same as or similar to the Redacted Information relating to market share.

Principles applicable to adequacy of reasons

1. Section 62(3) of the NCAT Act provides that a written statement of reasons, given on request by a party under s 62(2), must set out: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal's understanding of the applicable law; and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
2. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), Bell P said, while the operation of s 62(3) is "arguably" confined to reasons supplied pursuant to a request by a party, "[i]t is not unreasonable… to suppose that s 62(3) supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2)": Orr at [55] (Bell P, and see Ward JA at [112]).
3. In considering the nature of the Tribunal's obligation to give reasons, Bell P stated at [66] that the function of an appeal court in the context of appellate review is "to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard", citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. Referring at [67] to the statement made by Basten JA in that decision at [48], that "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality", Bell P commented that the "identification of separate parameters of quantity and quality is, with respect, a useful one".
4. Bell P went on to state at [70] that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". The President, however, acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess", which in relation to NCAT are supplied by s 62(3) of the NCAT Act. The President stated at [72] that while s 62(3) provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".
5. Bell P considered that statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint provide further guidance about what constitutes adequate reasoning by a tribunal, summarising those statements at [77]: "(i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; [1988] FCA 446; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."

Did the Tribunal fail to provide adequate reasons?

1. To answer this question, it is necessary to first consider the structure of the Tribunal's reasons.
2. Having identified the public interest considerations for and against disclosure, attributing weight to each of those considerations and taking into account the "personal factors of the application", the Tribunal engaged in the balancing exercise s 13 of the GIPA Act requires to be undertaken. The Tribunal acknowledged at [69] that, in undertaking that task, it was required to consider the effect of disclosing each particular piece of information contained within a document and not the document as a whole, citing Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20].
3. At [172(1)]-[172(5)], the Tribunal ordered the partial release of the Reporting Letters. The Tribunal stated that it attributed modest weight to the considerations against disclosure under cll 1(d), 1(f) and 1(g), moderate weight to the considerations against disclosure under cll 4(c) and 4(d) in respect of the Redacted Information, modest weight to the balance of the information in those letters, and significant weight to the public interest considerations in favour of disclosure.
4. At [172(6)]-[172(10)], the Tribunal ordered the release of the Independent Verification Reports in their entirety. The Tribunal stated that it attributed modest weight to the public interest considerations against disclosure in cl 1(g), moderate weight to the public interest considerations against disclosure in cll 4(c) and 4(d), and very significant weight to the public interest considerations in favour of disclosure.

Consideration

1. Applying the principles enunciated by Bell P in Orr, we consider whether, as the Board contends, the Tribunal failed to explain or adequately explain the basis for its decision to order that certain information in the Reporting Letters not be disclosed, while ordering the same or similar information contained in the Independent Verification Reports and elsewhere in the Reporting Letters to be disclosed.
2. In discharging the obligation to provide adequate reasons (and in light of the factors set out in s 62(3)), the Tribunal was confronted with the difficult task of, on one hand, setting out its "findings on material questions of fact, referring to the evidence or other material on which those findings were based" and "the reasoning processes that lead the Tribunal to the conclusions it made" while on the other hand, ensuring that it did not disclose information for which there is an overriding public interest against disclosure (GIPA Act, s 107(1)) or material that was the subject of orders made by the Tribunal under s 64 of the NCAT Act.
3. As is apparent from the structure of the reasons, the text at [172] of the Decision does not represent the entirety of the Tribunal's consideration of the question of what weight to attribute to the public interest considerations against disclosure in cll 4(c) and 4(d). Threads of the Tribunal's reasoning path can be found throughout the Decision, for example, in the Tribunal's consideration of: the nature and content of the disputed documents (see for example [83]-[88]), whether the nominated public interest considerations against disclosure apply to those documents (at [120]-[142]) and the weight to attribute to the identified considerations (at [158]-[170]).
4. Central to the ultimate decision made by the Tribunal to order that the Reporting Letters be disclosed in part was its decision to attribute moderate weight to the public interest considerations against disclosure in cll 4(c) and (d) as they relate to the Redacted Information. The Tribunal did not expressly address why it made a different finding - to attribute modest weight to those public interest considerations against disclosure - with respect to the same or similar material contained in other parts of the Reporting Letters and the Independent Verification Reports.
5. Assessed overall, the Tribunal's reasons not only met but exceeded the minimum standard (accepting that s 62(3) of the NCAT Act provides guidance in this regard). The Tribunal gave detailed, comprehensive, cogent and persuasive reasons for the facts found and conclusions reached. However, as stated above, the Tribunal failed to set out the reasoning path which led it to make apparently anomalous findings with respect to the weight attributed to the Redacted Information and the weight attributed to the same or similar information in the Reporting Letters and Independent Verification Reports. This was a material issue. It may be that the Tribunal concluded that the disclosed information relating to market share in both sets of documents was already in the public domain (see for example, the Decision at [169]). Alternatively, the Tribunal may have considered that the Redacted Information and the disclosed information relating to market share were materially different. A further possibility is that the Tribunal mistakenly attributed modest weight to the latter or moderate weight to the former. Whatever the explanation, we are unable to discern the reasoning process which led the Tribunal to attribute different weight to the Redacted Information and the same or similar material it ordered be disclosed in the Reporting Letters and the Independent Verification Reports.
6. The Tribunal failed to provide adequate reasons. Ground 8A is established.
7. Given this conclusion it is unnecessary to address grounds 8 and 8B.

Ground 9 and 9A: did the Tribunal err by failing to give any or adequate reasons as to the particular weight it gave to public interest considerations against disclosure "in relation to particular occurrences or items of information"?

1. By ground 9, the Board contends that the Tribunal failed to give any or adequate reasons as to the "particular weights it gave to the various public interest considerations against disclosure in relation to particular occurrences or items of information". In ground 9A, the Board contends that the Tribunal's reasons are inadequate because the Tribunal failed to explain what it meant by the expressions "modest", "moderate", "significant" and "very significant" weight. There is significant overlap between these grounds and grounds 7 and 8A.
2. The Board contends that the Tribunal failed to explain or to adequately explain why it attributed "modest weight" to the public interest considerations against disclosure in cll 1(c), (d) and (f), asserting that its reasoning was limited to that contained at [157].
3. With respect to the public interest considerations against disclosure in cll 4(c) and 4(d), the Board contends that having attributed modest weight to those considerations, and referring to the personal factors of the application which "add weight" to those considerations, the Tribunal did not further explain how it reached the conclusion at [172] to attribute "moderate weight" to the Redacted Information.
4. In oral submissions, SunRice submitted that having made a series of findings favourable to it, the Tribunal failed to explain "why it gave away" the disputed documents which it asserted contained its "trade secrets". Those findings included that the disputed documents contained "confidential information" (at [90]), that the "detail and quantity of information" in the Reporting Letters may be reduced if they were disclosed (at [99]), and that the information in the Reporting Letters has "competitive commercial advantage to SunRice" which could provide SunRice's competitors with insights into its "pricing, market position, and cost base, in various specific markets … that could reasonably be expected to prejudice SunRice's ongoing commercial interests" (at [130], [141]).
5. In addition, the Board contends that the Tribunal's use of the terms "modest weight", "moderate weight", "significant weight" and "very significant weight" to describe the weight it attributed to the public interest considerations for and against disclosure, without explaining what those terms meant, rendered its reasons inadequate.
6. Finally, the Board asserts in respect of documents 25 and 26 that the Tribunal failed to give reasons for its decision to attribute modest weight to the public interest considerations against disclosure.

Consideration

1. Neither the Board nor SunRice take issue with the following statement made by the Tribunal about the operation of s 13 of the GIPA Act: "143 Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure". Section 13 provides that there is an overriding public interest against disclosure if, and only if, the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. In undertaking that consideration, it is relevant that disclosure cannot be made subject to any conditions on the use or disclosure of information (s 15(e)); and so it cannot be assumed that it is only the use that Forbidden Foods might currently be able to make of the information that is relevant. 144 Having identified the public interest considerations in favour of, and against, disclosure, the Tribunal must attribute weight to each consideration, which depends on the effect of disclosing each particular piece of information: Destination NSW v Taylor [2019] NSWCATAP 123 at [69]."
2. Dealing first with the complaint made about the language used by the Tribunal in describing the weight attributed to the public interest considerations for and against disclosure - modest, moderate, significant and very significant - we reject the contention that these words are obtuse. They are plain English words whose meaning is clear. The Tribunal's use of these terms to indicate the relative weight attributed to the identified public interest considerations is entirely orthodox, and one used by Appeal Panels of NCAT (see, for example Transport for NSW v Searle [2018] NSWCATAP 93; Destination NSW v Taylor [2019] NSWCATAP 123 at [8]), by the Board in the decision under review and also by SunRice in its written submissions in the proceedings before the Tribunal.
3. We reject the contention advanced by the Board that having attributed "modest weight" to the public interest considerations against disclosure in cll 4(c) and 4(d), the Tribunal failed to "further explain" how it arrived at the conclusion to attribute "moderate weight" in respect of the Redacted Information. The Tribunal concluded at [64] that if the single desk arrangements ceased and Forbidden Foods became a competitor of SunRice, Forbidden Foods would be "willing to use any relevant commercially valuable information disclosed", which the Tribunal found amounted to a "personal factor of the application" for the purpose of s 55 of the GIPA Act. The Tribunal went on at [170] to state that that factor "added weight" to the public interest considerations against disclosure in cll 4(c) and 4(d), and at [172] to attribute "moderate weight" to the public interest against disclosure in respect of the Redacted Information and the Independent Verification Reports. Read fairly and as a whole, the reasons reveal the reasoning path that led the Tribunal to increase the weight attributed to the public interest considerations against disclosure, from modest to moderate.
4. As the Board points out, the Tribunal did not expressly state why it decided to attribute "modest weight" to the public interest considerations against disclosure in cll 4(c) and 4(d) as they relate to documents 25 and 26. It will be recalled that those documents were created following a query raised by Grant Thornton during its 2015 audit of the information provided by SunRice to the Board: Decision at [85]. It is implicit from its reasons that the Tribunal treated documents 25 and 26 and the Reporting Letters as being much of the same thing and applied the same reasoning in respect to the attribution of weight to both set of documents.
5. Finally, SunRice's submission that the Tribunal failed to explain "why it gave away" the disputed documents rests on the premise that the Tribunal's finding that disclosure could reasonably be expected to diminish the commercial competitive value of SunRice's material and/or prejudice its legitimate business or commercial interests was determinative. That submission misapprehends the operation of s 13 of the GIPA Act, which requires the Tribunal to not only identify whether there are public interest considerations against disclosure but to evaluate whether, on balance, those considerations outweigh any identified public interest considerations in favour of disclosure. Here, the Tribunal found that the public interest considerations in favour of disclosure were "significant". Having made that finding and having attributed modest or modest weight to the applicable public interest considerations against disclosure in cll 1 and 4, the Tribunal concluded that the public interest considerations against disclosure on balance did not outweigh the public interest considerations in favour of disclosure. Except in relation to the discrete issue raised by ground 8A as discussed above, the reasons reveal the basis for that conclusion.
6. Grounds 9 and 9A fail.

Ground 10: did the Tribunal err by making conflicting and/or internally inconsistent findings as to the "personal factors of the application"?

1. By ground 10, the Board contends that the Tribunal made findings about the personal factors of the application that "pulled both ways" which it was obliged, but failed, to resolve.
2. Section 55 of the GIPA Act permits the decision-maker, in determining whether there is an overriding public interest against disclosure of information, to take into account the "personal factors of the application" which include the applicant's identity and relationship with any other person and the applicant's motivation for making the access application: s 55(1). Those factors can be taken into account as factors in favour of providing the applicant with access to the information: s 55(2). In addition, where those factors could reasonably be expected to have any of the effects in cll 2, 3 and 4 (but not cll 1, 6 or 7) of the Table in s 14, those factors can be taken into account as factors against providing access: s 55(3).
3. The Tribunal at [59]-[64], identified two personal factors of the application: 1. Forbidden Foods' motive for making the access application, namely its intention to make a submission to the next review of the single desk export arrangements, which it opposed; and 2. If those arrangements were discontinued, Forbidden Foods' wish to be able to purchase and export NSW-grown rice in competition with SunRice.
4. The Tribunal concluded at [155] that the first of these factors added weight to the public interest considerations in favour of disclosure by promoting informed debate in the pending review of the single desk arrangement in the NSW rice industry. The Tribunal concluded at [170] that the second of these factors added weight to the public interest considerations against disclosure in cll 4(c) and 4(d), based on the potential impact on SunRice's commercial interests if, in the future, Forbidden Foods were to become a competitor.
5. This ground appears to rest on the assumption that where, as here, a decision-maker identifies more than one personal factor of the application, they are required by s 55 to evaluate whether, assessed overall, the identified factors favour or do not favour disclosure. No authority was cited for that proposition, nor in our view is it supported by the text, context or statutory scheme in which s 55 operates.
6. The findings made by the Tribunal that (i) Forbidden Foods' motive for making the application added weight to the public interest considerations in favour of disclosure, and (ii) the possibility that in the future Forbidden Foods and SunRice might become competitors added weight to the public interest considerations against disclosure, were neither inconsistent nor in conflict. They were separate and intelligible. We reject the contention that the Tribunal misapplied s 55 of the GIPA Act.
7. This ground of appeal fails.

Should leave to appeal be given?

1. The Board seeks leave to bring three grounds of appeal: grounds 5, 6 and 11. That application is supported by SunRice and opposed by Forbidden Foods.

Principles governing the exercise of the discretion to grant leave

1. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of NCAT noted at [84] that to grant leave to appeal under s 80(2)(b) of the NCAT Act, there must be a "sound basis" for granting leave and the appellant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact. The Appeal Panel stated: "(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed," (Citations omitted.)

Ground 5

1. By ground 5, the Board contends that the Tribunal erred in finding that the public interest considerations against disclosure in cll 1(d) and 1(f) do not apply to the Independent Verification Reports. It submitted that this finding constitutes an "error that is plain and readily apparent". Given the conclusion we reached in relation to grounds 1 and 2, it is unnecessary to consider this ground.

Ground 6

1. By ground 6, the Board contends that the Tribunal erred in finding "that the effect of disclosure on the ability of the [Board] to carry out its functions is not likely to be significant". The Board repeats its submissions made in support of ground 3, asserting that the Tribunal erred in finding that alternative sources of information were available to the Board to undertake its annual review of SunRice's performance. In addition, the Board contends that the Tribunal failed to grapple with the prejudice it would suffer if it were required to harvest these putative alternative sources of information. The Board contends that prejudice to an agency's functions raises a question of public importance and matters of administration, and therefore falls within the principles enunciated in Collins v Urban at [84(2)(a) and (b)].
2. For the reasons given in relation to ground 3, this ground rests on the flawed assumption that the Tribunal made a positive finding that alternative sources of information were available to the Board. Leave to appeal on this ground is refused.

Ground 11

1. By ground 11, the Board contends that the Tribunal erred in balancing the public interest considerations for and against disclosure.
2. Ground 11 in effect conflates grounds 8A and 9. Those grounds have been dealt with above. Leave to appeal is refused.

Forbidden Foods' proposed appeal

1. Forbidden Foods lodged a Notice of Appeal three months after the statutory deadline for lodging an appeal. It urges the Appeal Panel to exercise the discretion conferred by s 41 of the NCAT Act to extend the time to bring that appeal. In support of that application, Forbidden Foods contends that it has provided a reasonable explanation for the delay in lodging its Notice of Appeal and that the proposed ground it seeks to agitate identifies a legal error, is narrow in scope and has merit.
2. Forbidden Foods claims its proposed appeal was brought late because it was not until it received the submissions prepared by the Board and SunRice in support of their respective appeals, that it became apparent that there was significant overlap between the Redacted Information and the information contained in other parts of the Reporting Letters and the Independent Verification Reports. Forbidden Foods points out that it is under a significant forensic disadvantage because it does not have access to the disputed documents.
3. The Board and SunRice vigorously oppose Forbidden Foods' application, pointing out that its Notice of Appeal was only lodged three weeks before the hearing of the appeal.

Principles governing exercise of discretion to extend time to lodge an appeal

1. The discretion conferred by s 41 of the NCAT Act to extend the period of time to lodge an appeal must be exercised judicially having regard to the "guiding principle" that the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18].
2. In Jackson, the Appeal Panel identified at [22] several factors generally relevant to the exercise of the discretion to extend time to lodge a Notice of Appeal. They include: the length of and reason for the delay; whether the appellant has a fairly arguable case; and the extent of any prejudice that might be suffered by the respondents to the appeal if the discretion to extend time is exercised.

Submissions

1. Forbidden Foods contends that the resolution of the proposed ground turns on a discrete issue and will not add materially to the time needed to determine the appeal. In addition, it contends that that ground provides an "indisputable answer" to the inconsistency complaint raised by the Board in grounds 8, 8A and 8B.
2. The Board and SunRice submit that Forbidden Foods has failed to proffer a reasonable excuse for the delay in filing its appeal, pointing out that the "lack of internal logic" about which Forbidden Foods complains was readily apparent from [172]. In addition, it contends that the proposed ground is not reasonably arguable and relies on an overly simplistic formulation of the balancing exercise required by s 13 of the GIPA Act.

Should the application to extend the time to lodge the appeal be granted?

1. Time limits are imposed to bring finality to the decision-making process. They are an important, but not an absolute, value. The threshold questions are whether there is a reasonable explanation for lodging an appeal out of time and whether a respondent will suffer substantial prejudice. Once these questions are resolved, the question must be asked whether or not justice can be done to all parties if the matter proceeds to an appeal having regard to the need to "facilitate the just, quick and cheap resolution of the real issue in the proceedings"? It is to that question that the considerations outlined in Jackson are ultimately directed.
2. The explanation given by Forbidden Foods for lodging its appeal out of time, while not the most compelling of explanations, is nonetheless adequate. Neither the Board nor SunRice will suffer substantial prejudice if the appeal proceeds. Significantly, an appeal is already on foot and any additional cost or delay caused by the appeal is likely to be inconsequential. Importantly, as discussed below, the proposed ground of appeal has merit. Despite the fact that the proposed appeal is significantly out of time we have decided to exercise the discretion to extend time under s 41 of the NCAT Act.
3. The time to lodge Forbidden Foods' Notice of Appeal is extended to 21 May 2020.

Forbidden Foods' ground of appeal

1. Forbidden Foods' proposed ground of appeal concerns the purported misapplication of s 13 of the GIPA Act. Forbidden Foods contends that by ordering the redaction of information from each of the Reporting Letters, the Tribunal misapplied s 13 of the GIPA Act, and that this order does not reflect the facts found and conclusions reached by the Tribunal. Forbidden Foods contends that the following analysis makes this clear: 1. Section 13 requires information to be disclosed unless the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. 2. In respect of the Redacted Information, the Tribunal attributed moderate weight to the public interest factors against disclosure and significant weight to the public interest factors in favour of disclosure. 3. Self-evidently moderate weight is less than significant weight. 4. It follows that the public interest considerations against disclosure could not be said to outweigh the public interest considerations in favour of disclosure. 5. Accordingly the Tribunal should have ordered that the Reporting Letters be disclosed in whole.
2. While conceding that the reasoning employed by the Tribunal, with respect to the application of s 13 of the GIPA Act is inadequate, the Board contends that this ground is based on a simplistic "quasi-arithmetic" formulation of the balancing exercise required to be undertaken by s 13 of the GIPA Act.
3. The submissions made by the Board and SunRice opposing this ground conveniently overlook the submissions each made about the asserted anomalous findings made by the Tribunal with respect to the Redacted Information.
4. We agree with the submission made by Forbidden Foods that the ultimate decision not to disclose the Redacted Information is inconsistent with findings made by the Tribunal about the weight attributed to the public interest considerations for and against disclosure. It is an obvious error.
5. This ground of appeal is established.

Disposition of appeals

1. The final issue to be determined is whether we should exercise the power to reconsider the decision under appeal or remit the case for reconsideration by the Tribunal.

Submissions

1. Forbidden Foods urges the Appeal Panel to exercise the power to reconsider the decision. SunRice on the other hand, urges the Appeal Panel to remit the matter for reconsideration to a differently constituted Tribunal. The Board contends that the issue is one for the Appeal Panel's determination. The Board does not oppose the case being reconsidered by the originally constituted Tribunal.
2. As detailed below we have decided that only part of the case needs to reconsidered, that is, Order 1(b) as it relates to the Reporting Letters and the Independent Verification Reports and then only in relation to the discrete issues detailed in [281] below.
3. Forbidden Food urges the Appeal Panel not to exercise the power to remit the case for reconsideration by the Tribunal. It contends that to do so would invariably result in further delay and prejudice its interests. It asserts that there is ample material before the Appeal Panel, including the transcript of the original proceedings, to enable it to reconsider the decision, citing in support Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [67]. Pointing out that the review to be conducted by the NSW Department of Primary Industries of the rice-vesting arrangements in NSW is scheduled to commence before the end of this year, it asserts that any further delay in the finalisation of its initiating access application may render that application otiose.
4. SunRice submits that the matter should be remitted for reconsideration by a differently constituted Tribunal, citing in support Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [121].

Consideration

1. Whether the matter ought to be reconsidered by the Appeal Panel or the Tribunal, is essentially a case management decision, guided by the need for the just, quick and cheap disposition of the real issues in the proceedings: NCAT Act, s 36.
2. If the sole remaining issue to be determined was the issue raised by Forbidden Foods' cross appeal, we would agree that the course most likely to give effect to the principles in s 36 of the NCAT Act would be for the Appeal Panel to reconsider that issue. However, given the conclusions we reached in relation to Grounds 1, 2 and 8A, the issues to be determined are broader in scope.
3. Where, as here, an Appeal Panel disturbs some but not of all of the key factual findings made by the Tribunal, generally considerations of convenience and the efficient use of NCAT's resources will tend to favour the matter being remitted to the original Tribunal for reconsideration, rather than the matter being reconsidered by the Appeal Panel or a differently constituted Tribunal. This is not a case where the interests of justice might favour the matter being remitting a to a differently constituted Tribunal, for example, where the original Tribunal made strong findings about the credibility of a party; see eg Smith v NSW Bar Association (1992) 176 CLR 256 at 269; [1992] HCA 36 per Brennan, Dawson, Toohey and Gaudron JJ or the appellate body made stringent criticism of the Tribunal: Brackenreg v Comcare Australia (1995) 56 FCR 335 at 352; [1995] FCA 1129 per Sheppard J.
4. For these reasons we have decided to exercise the power under s 81(1)(e) of the NCAT Act to order that part of the case be reconsidered by the original Tribunal, in accordance with the directions listed in [281] below. In our view, these issues can be determined "on the papers" without a further hearing as permitted by s 50(1) of the NCAT Act and without further submissions. However, as the Tribunal is undertaking that task, it is a matter for the Tribunal to determine.

Orders

1. We make the following orders: In respect of AP20/7117: 1. Leave is refused to appeal on grounds other than a question of law. 2. The appeal is allowed in part. 3. The balance of the appeal is dismissed. In respect of AP20/22787: 1. The time for filing of the notice of appeal lodged by Forbidden Foods is extended to 21 May 2020. 2. Rice Growers Ltd t/as SunRice is joined as a party to the appeal proceedings AP20/22787 under s 44(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 3. The appeal is allowed. In respect of AP20/7117 and AP20/22787: 1. Orders 1(a) and 2 made by the Tribunal on 16 January 2020 are affirmed. 2. Order 1(b) made by the Tribunal on 16 January 2020 in respect of Documents 25 and 26 is affirmed. (The Appeal Panel notes that, by consent on 10 July 2020, Order 1(b) of the decision made by the Tribunal on 16 January 2020 in respect of Document 27 was affirmed.) 3. Order 1(b) made by the Tribunal on 16 January 2020 in respect of Documents 11, 12, 13, 14 and 15 (the Independent Verification Reports) and Documents 2, 4, 6, 8 and 10 (the Reporting Letters) is set aside, and that part of the Tribunal's decision is remitted for reconsideration by the Tribunal as originally constituted, without further evidence, after: 1. Determining whether cl 1(d) and/or cl 1(f) of the Table to s 14 of the GIPA Act, apply to some or all of the information contained in the Independent Verification Reports having regard to the submissions made by the Board and SunRice in the proceedings below (referred to as the "subject submission" at [164] in the Appeal Panel's reasons) together with the findings not set aside on appeal.. 2. If the answer to (a) is yes, determining what weight to attribute to the public interest considerations against disclosure in cl 1(d) and/or cl 1(f). 3. In relation to the "material on market share in specific markets" (as variously described by the Tribunal in [172(1)], [172 (2)], 172, [172(4)] and [172(5)]) in the Reporting letters (the Redacted Market Information), determining what weight to attribute to the public interest considerations against disclosure in cl 4(c) and/or cl 4(d) of the Table to s 14 of the Government Information (Public Access) Act 2019. 4. Using as a basis the annexure to the submissions prepared by SunRice and filed in the appeal proceedings on 23 April 2020, identify any information in the Reporting Letters that is the same as, or similar to, the Redacted Market Information. 5. In relation to the information identified in (d) above, attributing weight to the public interest considerations in cl 4(c) and/or cl 4(d). 6. Using as a basis the Note to Appeal Panel re Ground 8 filed by the Board in the appeal on 3 July 2020, identifying the information in the Independent Verification Reports that is the same as, or similar to, the Redacted Market Information. 7. In relation to the information identified in (f) above, attributing weight to the public interest considerations in cl 4(c) and/or cl 4(d) in relation to that information. 8. Taking into account (a), (b), (c), (d), (e ), (f) and (g) above together with the findings made by the Tribunal not disturbed on appeal, apply s 13 of the Government Information (Public Access) Act 2019. 1. The Registrar is requested to give to the Tribunal the annexure to the submissions prepared by SunRice and filed in the appeal proceedings on 23 April 2020 and the Note to Appeal Panel about Ground 8 filed by the Board in the appeal on 3 July 2020.

Annexure - The Board's grounds of appeal Ground 1: The Tribunal erred in its consideration of the application of cl. 1(d) of the Table to s 14 of the GIPA Act to Documents 11-15:

• failing to consider the impact that disclosure would reasonably be expected to have on the supply of confidential information by SunRice; or, in the alternative
• failing to give any or adequate reasons for finding that there would be no prejudice to the supply of information by SunRice. Ground 2: The Tribunal erred in its consideration of the application of cl. 1(f) of the Table to s 14 of the GIPA Act to Documents 11-15 by:
• failing to consider the impact that disclosure could reasonably be expected to have on the supply of information by SunRice and any resulting prejudice to the effective exercise of the Rice Marketing Board's functions; and further, or in the alternative
• failing to give any or adequate reasons for finding that there would be no prejudice to the supply of information by SunRice and no prejudice to the Rice Marketing Board's functions. Ground 3: The Tribunal erred by making conflicting and/or internally inconsistent findings as to the prejudice to the functions of the Board that could reasonably be expected to result from the disclosure of information (Reasons [91], [94] and [157]):
• without resolving the conflict or inconsistency; and/or
• without giving any or adequate reasons for the resolution of the conflict or inconsistency. Ground 4: The Tribunal made a decision that was legally unreasonable in determining that the public interest considerations against disclosure at cl 1(d) and 1(f) of the Table to s 14 did not apply to Documents 11-15. Ground 5: The Tribunal erred in finding that the public interest considerations against disclosure at cll 1(d) and 1(f) of the Table to s 14 did not apply to Documents 11-15. Ground 6: The Tribunal erred in finding that the effect of disclosure on the ability of the Board to carry out its functions is not likely to be significant and, accordingly, only giving "modest" weight to the public interest considerations against disclosure at cll 1(d), (f) and (g) of the Table to s 14. Ground 7:The Tribunal erred in its consideration of the application of cll. 4(c) and (d) of the Table to s. 14 to Documents 11-15 by:
• failing to consider the level of detail of the information as a factor relevant to assessing the commercial sensitivity of the information and the weight attributable to these considerations in applying the public interest test; and further, or in the alternative;
• failing to give any or adequate reasons for rejecting the respondent's submission that the public interest considerations against disclosure should be accorded additional weight due to the level of detail (and consequent increased commercial sensitivity) of the information in Documents 11-15. Ground 8:The Tribunal made a decision that was legally unreasonable by ordering the disclosure of Documents 11-15 in their entirety, where those documents contain information that is the same or substantially similar to information in Documents 2, 4, 6, 8 and 10 which the Tribunal found was subject to an overriding public interest against disclosure. Ground 8A: The Tribunal erred (reasons at [172]) by failing to give any or adequate reasons as to why it reached different results as to the balancing of the public interest considerations for and against disclosure in respect of:
• the same or similar information in different locations in the same document: and/or
• the same or similar information in different documents: and/or
• information of the same or similar description and/or character. Ground 8B: The Tribunal's decision as to the weight to be given to the public interest considerations for and against disclosure was legally unreasonable. Ground 9: The Tribunal erred by failing to give any or adequate reasons as to the particular weight it gave to public interest considerations against disclosure in relation to particular occurrences or items of information. Ground 9A: The Tribunal erred by failing to give any or adequate reasons for the balancing of the public interest considerations for and against disclosure. In particular, the Tribunal failed to set out what the following expressions actually mean - "modest weight", "moderate weight", "significant weight" and "very significant weight" (reasons at [172]). Ground 10: The Tribunal erred (reasons at [155] and [170]) by making conflicting and/or internally inconsistent findings as to the personal factors of the application:
• without resolving the conflict or inconsistency: and/or
• without giving any or adequate reasons for the resolution of the conflict or inconsistency. Ground 11: The Tribunal erred in balancing the public interest considerations for and against disclosure.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 02 September 2020