Saul & Anor v Commissioner for Fair Trading

The initial decision

1. In the application the scope of the request was characterised in the following manner: "Copies of any documents, supporting evidence and allegations relied upon by the Director-General to conclude that it was necessary to appoint the Joint Managers to protect the interests of other persons, including the interests identified and the persons to be protected. Also, full particulars and details of the facts relied upon by the Director-General to conclude there were "failures to account by the Licensees" as referred to in the instrument of Appointment dated 3 June 2014, and copies of any documents that support that claim.
2. In the initial decision the respondent decided 'under section 58 (1) (a) of the Act, to refuse access to the information sought'. I infer that the respondent's decision contains a typographical error and that access was refused under section 58 (1) (d) not section 58 (1) (a) of the GIPA Act. 58 How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
3. The respondent appears to have based this decision upon their assessment that the specific public interest considerations against disclosure overrode the general public interest considerations in favour of disclosure. In reaching this position the respondent relied upon clause 2 (b) of the Table to section 14 of the GIPA Act. (The table to section 14 lists the only 'public interest considerations against disclosure').
4. Relevantly section 14 provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (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. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
5. The respondent in its notice of decision stated: While I accept that Ms Saul has a valid claim to access of the documents requested, I am satisfied that the information sought is integral to, and cannot be separated from, the actual investigation of possible contraventions of the law. My decision to refuse access to the information is due to the greater weighting I have given to maintaining the integrity of Fair Trading's investigation processes that allow the agency to exercise its functions effectively.
6. On the basis of the above assessment the respondent appears to have decided that significant weight attached to the clause 2 (b) (from the Table to section 14) public interest consideration against disclosure - (2) 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): (a) …… (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,
7. The GIPA Act provides that in certain instances (and potentially the instances relied upon by the respondent in the current matter), information can be withheld from release. The provisions of section 13 apply to such information. 13 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. Having decided that the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure, the respondent examined the provisions of section 74 of the GIPA Act which provides for deletion of some information. That section provides the manner and basis for such deletions: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
9. The respondent at the conclusion of its decision determined that after taking into account the nature of the information (that it was 'highly restricted' and 'confidential'), the partial release of the information could still reveal matters concerning the Fair Trading investigation methodologies which could make them less effective. On this basis partial release was denied.

The application to the Tribunal

1. The applicants applied for external review to the Tribunal within the period provided for under Part 5 Division 4 of the GIPA Act. Being 40 working days after receiving notice of the decision in accordance with section 101 (1) of the GIPA Act. That decision could be subject to a review by the Tribunal even though in this matter there had been no internal review. Section 100 provides: 100 Administrative review of decision by NCAT A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review). Note. A reviewable decision does not have to be internally reviewed or reviewed by the Information Commissioner before it can be the subject of an NCAT administrative review.
2. The original application sought information in relation to two related entities, being, Burling Realty Commercial and Residential Sales Pty Ltd (BRC) and Burling Realty Pty Ltd (BR). BRC operated a real estate business and BR operated a property management business. The applicants in the application to the Tribunal indicated that they only sought a review of the decision in respect of BR.
3. The applicants set out 5 items of information they sought on review which they sought in the external review, effectively narrowing the scope of the application further. Submissions which accompanied the application to the Tribunal took the form of a critique and fresh determination of the original decision, (being how the applicant would decide the arguments if the roles were reversed).
4. Prior to hearing of the matter the respondent filed a Supplemental Schedule of Documents concerning "Non-disclosure Information" in their open evidence. This material became part of Exhibit 'R 1' at hearing. Five items of information were identified in that Schedule. The information was summarised as being:

• Information relating to the allegations of pre-drawn commissions and misappropriation of trust funds, and the sources of the information.
• Information relating to allegations against Maryellen Saul, and the sources of the information.
• Information relating to: the allegations against Burling Realty Pty Ltd and Burling Realty Commercial & Residential Sales Pty Ltd; a consumer complaint; and sources of information.
• Information relating to: the allegations against Maryellen Saul, Burling Realty Pty Ltd, and Burling Realty Commercial & Residential Sales Pty Ltd; the investigation conducted ; and sources of information.
• Information relating to the personal details of Mr Anderson.

1. At the initial Case Conference the background dispute was set out by the parties. The Departmental action arose from an alleged failure to account by the applicants in accordance with section 126 of the Property Stock and Business Agents Act 2002. (The PSBA Act) Section 126 relevantly provides: 126 Appointment of manager (1) The Secretary may appoint a manager for a licensee's business in any of the following cases if the Secretary is of the opinion that it is necessary to make the appointment in order to protect the interests of other persons: (a) the licensee has made a request to the Secretary for the appointment of a manager, or (b) the licensee's licence has been cancelled or is under suspension, or (c) the Secretary is of the opinion that there has been, or that there may have been, a failure to account by the licensee, or …. (Emphasis added)
2. The respondent appointed a manager to the businesses and the applicant made an informal request for documents and information concerning the decision to appoint managers. That application was unsuccessful. At the conclusion of the Case Conference the matter was set down for hearing and the respondent advised the Tribunal that the conduct investigation was still ongoing.

Jurisdiction

1. There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction. In addition there is no dispute that the application was filed within time, as the matter was lodged within the period provided for by the GIPA Act in respect of a Tribunal Review in the absence of an Internal Review or an External Review by the Information Commissioner.

The Legislative Provisions

1. The objects of the GIPA Act are as follows: 3 Object of Act (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) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. There is one basis under the GIPA Act (which the respondent initially relied upon) in withholding information from the applicant. (Refer paragraph 9 above). That relates to applying weight to the Clause 2 (b) consideration of the table to section 14 of the GIPA Act which provides the circumstances whereby public interest considerations against disclosure of government information may be applied. This issue (in the first instance) constitutes the legal dispute to be determined by the Tribunal. However in the course of the hearing further maters came to light which added to both the nature and the scope of the information / documents held by the respondent agency and a basis to release or withhold that information.

Hearing of matter before the Tribunal

1. The matter was heard over a number of sittings of the Tribunal. This situation arose because of the further discovery of information held by the respondent which was within scope of the application. Those matters arose as a result of observations and preliminary findings in the hearing. Both the applicant and respondent were represented by Counsel and instructing Solicitors.
2. The applicants outlined that the business of the second applicant (BR), conducted a strata mangers and real estate business and that the first applicant was a director of that company as of late 2015. In respect of the decision which gave rise to the GIPA Act application, it was submitted that under the PSBA Act the respondent must form an initial opinion in accordance with section 126 (1), (necessary to protect the interests of other persons), and a second opinion (s-126 (1) (c ) ) that there has been or may have been a failure to account by the licensee.
3. Initially at hearing the respondent submitted that the following documents only were in dispute between the parties, in that the respondent held them, they had been withheld under the provisions of clause 2 (b) of the table to section 14, and there were no other documents within scope held (or withheld) by the respondent. The amended schedule as at 14 July 2016 identified: 1. Memorandum dated 21 May 2014 ("the First Document"); 2. Memorandum dated 30 May 2014 ("the Second Document") 3. Confidential annexure "A" to the second Document ("the Third Document"); 4. Curriculum vitae of Neil Anderson ("the Fourth Document"); 5. Notebook entry of Consumer Protection Officer J Signorelli ("the Fifth Document").

Respondent's material

1. The respondent filed the following open evidence in the proceedings:

• Exhibit R 1 comprising the agency response and schedule of documents.
• Exhibit R 2 an affidavit of D Byrne of 2 June 2016 Director Investigations, Compliance and Enforcement NSWFT.

1. The respondent also filed confidential exhibits during the confidential session in addition to the closed written submissions. An open copy of written submission was also filed and served.

Applicant's material

1. The applicant filed the following evidence and material in the proceedings:

• Exhibit A 1 application for review, grounds annexure (including exhibit to annexure)
• Exhibit A 2 Affidavit of M Saul sworn 29 June 2016.
• Exhibit A 3 index to prosecution brief concerning criminal proceedings.
• Exhibit A 4 Index / summary of contents of prosecution witness evidence.

1. In open hearing the respondent submitted that the provisions of Clause 1 (d) and (g) of the Table to section 14 and Clause 2 (a) in addition to the continued reliance on (2) (b) as relevant public interest considerations against disclosure. 1. (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that 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, … 2. (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,
2. The respondent submitted that the information (withheld) is confidential and if disclosed would reveal the identity of a confidential informant. The respondent further submitted that this proposition is of itself of sufficient weight to 'reverse' the presumption in favour of disclosure. It was submitted that clauses 1 (d) and 2 (b) are the consequential grounds flowing from any disclosure of information of the character described at 2 (a) as a ground -(for withholding information).
3. Having examined the applicant's material, in particular Ms Saul's relationship to the PSBA Act action and her motivations as set out in the evidence for the GIPA Act process, it was submitted that the section 55 considerations (personal factors of the applicant) would weigh against release.
4. Section 55 provides the following relevant to this issue: 55 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.
5. I note from section 55 (3) of the GIPA Act that only the clause 2 grounds would be applicable to the arguments advanced by the respondent in these proceedings relating to personal factors.
6. The applicant made submissions during the initial hearing just prior to the confidential session. The applicant's counsel submitted that the Tribunal needed to carefully observe and review the item referred to as the investigators notebook. It was submitted that if the notebook does not disclose the identity of the informant, how can the information enliven the 'prejudice' provisions in clause 2 (b) of the table to section 14.

Closed Hearing.

1. The respondent sought a confidential hearing in accordance with section 107 of the GIPA Act. The section provides that: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. The Tribunal dealt with the material in the Confidential Exhibit RC1, (the withheld information) and RC2 (an un-redacted version of open Exhibit R6.
2. In my view it is not necessary to incorporate what transpired in the first confidential session by way of confidential reasons. During the session that occurred on the first hearing date (28 July 2016) the Tribunal identified (from the contents of the confidential documents) other potential material which had neither been identified or considered by the respondent.
3. In addition after the Tribunal's scrutinising of the existing material in confidential session, the respondent's counsel either conceded (or on other occasions sought instructions) that further withheld material could be released to the applicants.
4. As it was necessary for the respondent to search for the further material and make an assessment (decision under the GIPA Act) in respect of that material, it was necessary to adjourn the hearing part heard.
5. In open session I made the following specific orders (in addition to other orders concerning the future conduct of the proceedings): 1. The respondent is to release the material identified for release in the confidential hearing to the applicants within 7 days. 2. Respondent to identify further material arising from the confidential session and any other material within scope within 12 days and determine such material in accordance with the GIPA Act.
6. On the next occasion (11 August 2016) the respondent sought an adjournment. The applicant initially opposed that adjournment prior to hearing. However after hearing the arguments on 11 August 2011, it appeared that the application was now in effect by consent.
7. The respondent's basis fort he adjournment was that the further identified material required consultation under section 54 of the GIPA Act. The section provides: 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). …. (4) The purpose of consultation under this section 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. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.
8. In adjourning the matter to another hearing date in late October 2016 I ordered that after making a fresh decision on the further material (after necessary consultation), any material to be released was to be provided to the applicant by 7 October 2016.

Hearing on 28 October 2016

1. The final hearing session occurred on 28 October 2016. In open hearing the applicant submitted that the respondent's submissions were in part erroneous and inflammatory concerning their motivations for making the application. The contentions issue arose at paragraphs 3 and 4 of the 'Respondent's Further Open Outline Submissions' filed 1 October 2016. In those submissions the respondent submitted that: 3. In short, the Applicants wish to challenge the Respondent's decision on 3 June 2014 to appoint managers to Burling Realty Pty Ltd ("BR") pursuant to s. 126 of("the PSBAA"). 4. This application is intended to obtain the documents necessary to mounts such a claim.
2. In reply the respondent relied upon the applicant's own grounds and evidence in support of the application. I have already observed that section 55 of the GIPA Act is the appropriate facility to deal with the motivations of an applicant however orthodox or unorthodox they may be. In my view it is not necessary to consider these submissions outside of the section 55 context.

Closed Hearing

1. The provisions of section 107 of the GIP Act were again invoked as the respondent sought a closed hearing so that further confidential evidence might be received and considered by the Tribunal in the absence of the applicant and the public. I have determined that it is necessary to provide confidential reasons in respect of the second confidential hearing in these proceedings.

CONFIDENTIAL PARAGRAPHS NOT FOR DISCLOSURE TO THE APPLICANT OR THE PUBLIC

1. Not for publication
2. Not for publication
3. Not for publication
4. Not for publication
5. Not for publication
6. Not for publication
7. Not for publication
8. Not for publication
9. Not for publication
10. Not for publication
11. Not for publication
12. Not for publication
13. Not for publication
14. Not for publication
15. Not for publication
16. Not for publication
17. Not for publication

END OF CONFIDENTIAL PARAGRAPHS

1. In open session discussion referred to what further information could be released. Reference was made to the six exchanges between the parties by e-mails dated 3 August 2016 - 8 August 2016.
2. At the conclusion of the hearing an order was made that the respondent was to provide a copy of the information ordered to be released during confidential session (on 28 October 2016) to the applicant within 7 days.
3. The applicant's evidence and submissions primarily address how they believe that the application should have been decided. In part much of their material in a cogent and detailed manner seeks to make the decision afresh in a form beneficial to their case.
4. The material of necessity deals with the substantive dispute and seeks to understand the respondent's actions in that regard through the GIPA process.
5. Much of the material focuses on factual matters and addresses the impact of the appointment of the administrators on the business and the effect of related issues such as the investigation and prosecution. Exhibit A 2 focuses on these matters and also plead a number of compelling matters which would sit within section 55 of the GIPA Act. However much of the material whilst compelling, does not assist greatly because it cannot 'unpack' the withheld information in (understandably) any practical manner.
6. The case of Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 examined how the Tribunal might approach the task when dealing with material for which there is claimed a public interest consideration against disclosure. At paragraphs 28-30 the Appeal Panel observed: 28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said: 58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: `The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' 29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words: 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:. 30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.

Consideration

1. The difficulty with cases of this nature is how to address the confidential material in open reasons. Whilst I have persuaded the respondent on three occasions during confidential session to release further material to the applicant's I nevertheless reach the conclusion that the arguments put forth in respect of withholding the remaining information, are made out. The likely outcome after an analysis of the type referred to in Camilleri would in my view eventuate, on the basis of the evidence and material before me, predominantly considered in closed session.
2. In my view the effect is established and after considering the context of the respondent's inquiry / prosecution, and the broad public interest considerations in allowing such matters to occur (in that context) fairly but effectively, leads me to conclude that significant weight attaches to the clause 2 (b) consideration, and I so find.
3. In reaching this position I have had significant regard to the fact that the majority of the hearing occurred in the applicant's absence and that there is an inherent unfairness in such a situation. However balancing that unfairness is the text of the statue whereby it is clear that such matters (where appropriate) were intended to be dealt with in this manner. Such a position is not inconsistent with the objects of the GIPA Act in that a confidential session ensures that there is sufficient scrutiny of the information and the arguments in a frank and candid manner.
4. To properly test withholding arguments in a robust and unconstrained manner provides some comfort to ensuring that the objects referred to at section 3 (1) (c ) are properly enlivened, in only appropriate circumstances. 3 Object of Act (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) … (b) … (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, …
5. In the case of Salmon v Corrective Services NSW [2016] NSWCATAD 257 the Tribunal examined the applicability of the Clause 2 (b) consideration amongst other grounds. The Tribunal observed at paragraphs 68 - 72 the following: 68.I note that the Respondent relies on clauses 2(a), 2(b), 3(f) and 4(d) of the Table to section 14 of the GIPA Act. 69.As noted above, clauses 2(a) and 2(b) provide that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to: (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention , detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law 70.On the evidence before me I do not accept that the release of the Riviere email could reasonably be expected to have either of those outcomes. As noted, Mr Riviere's identity is already known, as is the identity of his children, his ex-wife and her husband. Release of the email could not reveal what is already known. In my view, the likelihood that release of the Riviere email could prejudice the future supply of information from an informant would be very low. There is no evidence before me to support that contention. Similarly, I do not accept that release of the Riviere email could reasonably be expected to prejudice the prevention , detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. There is no evidence before me to support that contention. 71.In the circumstances, it is my view that these factors should be given little or no weight. 72.In regard to the Respondent's assertion based on clause 3(f) of the Table to section 14 of the GIPA Act, it is my view that there is some possibility that disclosure of the information could reasonably be expected to result in the Applicant taking some action in regard to Mr Riviere. However, if he were to do so, I do not consider that using legitimate legal processes can be regarded as falling within the scope of clause 3(f). The Applicant is entitled to use whatever legitimate legal processes are available to him. If, for example, he is entitled to make a complaint to the Legal Services Commissioner or bring an action in defamation, I do not consider that such action can be regarded as exposing a person to "a risk of harm or of serious harassment or serious intimidation" for the purposes of clause 3(f). This falls far short of the required standard to be met as referred to above: AEZ v Commissioner of Police.
6. Whilst the outcome in Salmon was that little weight was afforded to those provisions, in the current matter, the evidence establishes that the circumstances are extremely significant in that there are very high stakes at play (for both parties) in respect of the prosecution proceedings and the outcomes for the parties to date in the investigation matter.
7. Whilst significant prejudice might attach to the applicant's if they are to be denied the remaining information, that must be balance against the broader public interest and the basis of the inclusion of these provisions (to be applied in significant circumstances) under the legislation. In my view the weight of the evidence considered in the confidential hearing, is of such significance that to release any more information (as sought) would thwart the need to withhold information because on the evidence presented, there is an overriding public interest against disclosure.
8. I therefore find that the remaining information should be withheld because the evidence against disclosure, when applied to the relevant public interest considerations against disclosure, outweighs the public interest in favour of disclosure.
9. I have had regard top all of the evidence and material filed and submitted in open and confidential session. There remains a concern as to how to provide a sufficiency of reasons to the applicant's when much of the material has been received and considered confidentially.
10. In the recent case of Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59 I attempted to address this somewhat unfair circumstance by considering why such an approach was in the broad public interest. In addition I referred to how a decision maker might attempt to substantiate the lack of meaningful reasons to a potentially aggrieved party. At paragraphs 60 - 61 of Johnson when referring to Barrett I observed: 98.In the context of the present appeal, we draw attention to the following observations by Gleeson JA at 116 [B]ald conclusionary statements should be eschewed. As stated by Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28]: 'It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates.' 117 Thus, it is essential to expose the reasoning on a point critical to the contest between the parties. This proposition reflects one of the three fundamental elements to a statement of reasons identified by Meagher JA in Beale v GIO [Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430] at 443-444: "Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well." 99.In our view the Tribunal in a case of the present kind must be seen to respond in its reasons directly to the case put by the agency in justification of the agency's decision. In the event that the Tribunal disagrees with the weighting given to the agency of the competing considerations it must explain clearly why that is so. 61.In my view there are present in the current matter the type of 'special features unique to the particular case or, for example, an area of operation of the agency in which affected records might be held that justify reliance on this ground' as referred to by the Appeal Panel in paragraph 80 of Barrett.
11. Further reference was made in Johnson at paragraph 73 as to sufficiency of reasons: 73.In respect of the sufficiency of reasons in respect of my findings, I am satisfied that the territory as referred to in Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 at [41-45] and also referred to in Keith v Gal [2013] NSWCA 339 is sufficiently and appropriately traversed. 41.(3) Adequacy of Reasons. We agree with Mr Assadourian's submissions that the Tribunal's reasoning process as found in the final part of its reasons, headed 'Discussion' is relatively sparse. For a recent review of the principles relating to adequacy of reasons, see Keith v Gal [2013] NSWCA 339 esp per Gleeson JA. 42.As Meagher JA noted in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441, there is no need to refer to relevant evidence in detail provided it is clear that it has been considered. There is no need to refer to all aspects of the evidence in the way that the grounds of appeal suggest. The Tribunal's reasons gave a comprehensive account of the evidence. Nor is this a case where the conclusion reached by the Tribunal was 'devoid of reason', 'clearly unjust' or arbitrary. See further the recent discussion of this ground of objection in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 per Beazley P, esp at [77] ff. See also Basten JA in Lo at [13] ff. 43.Further, 'the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error' - is applicable to the grounds of appeal in this case. The observation was made in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287 by the Full Court of the Federal Court (Neaves, French and Cooper JJ) and endorsed by the High Court in Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. 44.A higher standard applies to the analysis of 'critical' evidence and critical issues. The reasons should clearly refer to the critical matters, and dispose of them. See also D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [106] ff per Beazley P. Gleeson JA in Keith v Gal notes: 110 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. As stated by Basten JA (Beazley JA (as her Honour then was) and Macfarlan JA agreeing) in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]: "It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." 111 A similar reticence when scrutinising judicial reasons was expressed by Allsop P in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 where his Honour (at [2]) stated that when dealing with large bodies of evidence, a judge may be: "forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression .... That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved. " 45.In this instance, we accept that the reasons do not refer directly to a number of matters set out in the agreed statement of facts. In our view, on a fair reading the Tribunal is clearly alluding to this material when it proffers the general conclusions that appear in the extract set out at [25] above. However, it will be seen in the analysis which follows that we do think the Tribunal fell into error in not separating more clearly than it did the case against Mr Assadourian in relation to the operator licence from the case against him in relation to the driver's certificate.

Further Consideration

1. In my view the open reasons including the material filed and served between the parties provides sufficient grounds (having regard to the constraints of section 107 of the GIPA Act) to discharge a duty to give reasons in accordance with the provisions of Section 62 (3) of the Civil and Administrative Tribunal Act 2013.

Conclusion

1. Having examined all of both the open and confidential material filed with the Tribunal by the respondent, and having noted all of the evidence and submissions in the proceedings (both written and oral proceedings), in my view the correct and preferable decision is to affirm the decision of the respondent of 20 January 2016 but vary it only in respect of the information already ordered to be released by the Tribunal to the applicant. The decision will therefore be otherwise affirmed.

Orders 1. The decision of the respondent is affirmed (except as referred to in order (2). 2. Further to the decision of 20 January 2016 that decision is varied by the orders of the Tribunal made on 28 July 2016 and 28 October 2016. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 17 May 2017 - Paragraph 25 deletion of dot point 3 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: 17 May 2017