Styles v Wollondilly Shire Council

The GIPA Act

1. Part 4 of the GIPA Act makes provision for the making of an application to a government agency for access to government information (an access application), how a government agency is to deal with an access application and the determinations a government agency can make in regard to such applications.
2. Section 41 of that Part sets out the formal requirements a person must meet in making an access application for government information. Where a person makes an access application to a government agency (agency), s 51 of the GIPA Act requires the agency to inform the access applicant, within five working days, whether the application is valid or invalid.
3. Where an access application is found to be a valid application, s 57(1) of the GIPA Act requires the agency to determine the application within 20 working days. That period can be extended by 10 working days (GIPA Act, s 57(2)).
4. In determining the access application, the agency is required to undertake reasonable searches to find any government information it holds, as at the time of receipt of the access application, that falls within the terms of the specified access request (i.e. the government information specified in the access request): see GIPA Act, s 53. That section provides as follows: "53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources."
5. Section 64 of the GIPA Act enables an agency to impose a processing charge in dealing with an access application. That section provides: "64 Processing charge for dealing with access application (1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Note. The decision to impose a processing charge is reviewable under Part 5. (2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application."
6. Section 68 of the GIPA Act enables an agency to request an advance payment of the processing charge (i.e. an advance deposit). Where an agency requests an advance deposit, the time within which the agency is to deal with the access application is halted until the payment is made. Section 68 is in the following terms: "68 Advance deposit for payment of processing charge (1) An agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (as an advance deposit). Note. The decision to require an advance deposit is reviewable under Part 5. (2) The period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency. (3) The notice requiring an advance deposit must: (a) include a statement of the processing charges for work already undertaken by the agency in dealing with the application, and (b) include a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application, and (c) specify a date by which the advance deposit must be paid (being a date at least 20 working days after the date the notice is given), and (d) include a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited. (4) An agency can extend the date by which an advance deposit must be paid and is to give the applicant notice of any extension (indicating the new date by which the advance deposit must be paid)."
7. Section 69(1) provides that an agency is not entitled to seek an advance deposit of more than 50% of what the agency estimates to be the total processing charge. Section 71 makes provision for the refund of an advance deposit in the following circumstances: "71 Refund of advance deposit (1) An applicant is entitled to a refund of advance deposits paid by the applicant to the extent (if any) that the advance deposits paid exceed the total processing charges payable for dealing with the application. (2) An applicant is entitled to a refund of any advance deposit paid if the agency does not decide the access application within time. Note. An agency cannot impose a processing charge if it does not decide an application within time."
8. Section 58 of the GIPA Act prescribes how an agency is to determine an access application. That section relevantly provides: "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. Note. These decisions are reviewable under Part 5."
9. Where an agency decides to provide access to the information sought (GIPA Act, s 58(1)(a)) and it also decides to impose a processing charge for dealing with the application (GIPA Act, s 64), s 62 requires the agency inform the access applicant, in its Notice of decision, that a processing charges will be payable for access and an indication of the basis on which the charges were calculated.
10. Section 60 of the GIPA Act sets out the grounds on which a government agency can make a decision (determination), under s 58(1)(e), to refuse to deal with an access application. That section relevantly provides: "60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): (a) …, …, (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note. See section 70. (d) ... (2) …"
11. Where an agency has requested an advance deposit under s 68 and the access applicant fails to pay the deposit within the time requested, s 70 of the GIPA Act gives the agency the power to decline to deal with the application any further. S 70 is in the following terms: "70 Result of failing to pay advance deposit (1) An agency may refuse to deal further with an access application if the applicant has failed to pay an advance deposit within the time required for payment (unless the applicant has applied for review under Part 5 of the decision to require the advance deposit within the time required for payment of the advance deposit). Note. The decision to refuse to deal further with an access application is reviewable under Part 5. (2) An agency must give notice to the applicant of its decision to refuse to deal further with the application. (3) The review under Part 5 of a decision to refuse to deal further with an application for failure to pay an advance deposit is to be a review of both the decision to refuse to deal further with the application and the decision to impose the advance deposit (unless the decision to impose the advance deposit has already been reviewed under that Part)."
12. A decision to impose a processing charge, or to require the payment of an advance `deposit and a decision to refuse to deal with an access application are both decision that are reviewable decisions, internally by the agency and externally, by the Information Commissioner and the Tribunal: see GIPA Act, ss 80(c) and (j), 82, 89 and 100.
13. Section 105 of the GIPA Act prescribes who bears the onus on external review of a decision of an agency under s 58 of the GIPA Act. That section relevantly provides: "105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) … (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review."

Material before the Appeal Panel

1. In addition the their respective Notice of Appeal and Reply to Appeal and written submissions, the parties filed and served copies of the material that was before the Tribunal, including the statements of Ms Ackerly and Mr Sproule that were relied on by the respondent at the hearing. Also included in the material before us were the CD recordings of the proceedings before the Tribunal. However, the parties did not draw our attention to any particular section of those recordings and hence we have not listened to them.

The decision of the Tribunal

1. At [2] to [17] of its reasons for decision, the Tribunal set out the background to the appellant's application for review.
2. At [12], the Tribunal noted that at the time the respondent determined to refuse to deal with the appellant's access application it was unaware of the appellant's external review application. At [13] the Tribunal said: "13 The Council concedes that there was no power to make the decision to refuse to deal with the access application because an application had been lodged with the Tribunal. It accepts that it should be set aside. In the circumstances, if it is necessary to do so, I determine that that decision is set aside."
3. At [20] to [47] of its reasons for decision, the Tribunal dealt with the evidence and the submissions of the parties. At [20], the Tribunal noted the respondent relied on the evidence of its Manager - Governance, Mr John Sproule, and its Information Management Team Leader, Ms Margaret Ackerly. It was noted, both had provided written statements and appeared at the hearing by telephone and were cross-examined by the appellant. The Tribunal noted the appellant had requested Mr Sproule and Ms Ackerly be present at the hearing and objected to them appearing by phone. The Tribunal went on to note it nevertheless determined that the witnesses could appear by telephone.
4. At [21] and [22], the Tribunal noted the evidence of Ms Ackerly that, since 2005, the respondent has been using an electronic data management system called TRIM for its record keeping. Ms Ackerly's evidence was that from 2005 all property matters and development applications are retained on the TRIM system and on hard copy. However, hard copies are archived from time to time. Ms Ackerly is recorded as having also said some pre-2005 hard copy archived files have been scanned onto the TRIM system. However, records that predate 1989 were mainly kept as microfiche or microfilm records.
5. At [28] and [29] the Tribunal noted the evidence of Ms Ackerly that, on 25 November 2015, she was requested to undertake a search of the respondent's microfiche and microfilm records for documents/information relating to the "file/s on Tahmoor Playground Cnr Larkin & York Streets, Tahmoor." She was requested to complete that search by 30 November 2015. Ms Ackerly's evidence was that she took six hours to search the microfiche and microfilm records. During that search she identified 145 pages of information relevant to the appellant's access request and printed a hard copy of these pages.
6. At [30] and [31], the Tribunal noted that, on 2 December 2015, following receipt of the appellant's letter of 26 November 2015, Mr Robert Szoszkiewicz of the respondent was requested to search the respondent's TRIM files for information concerning the Tahmoor Children's Playground and its change of name to EMMETT PARK in 2013. Mr Szoszkiewicz was requested to complete that search by 4 December 2015. In an undated "Certification Of Document/Information Search" (the Certificate), Mr Szoszkiewicz certified that the search had taken him seven hours to complete. On the Certificate, Mr Szoszkiewicz also noted the numbers of the TRIM files he had searched.
7. At [33] and [35], the Tribunal noted the respondent contended that the appellant's access application was not limited in scope until 9 December 2015, and by that time Ms Ackerly and Mr Szoszkiewicz had already completed their respective searches.
8. At [34], [36] and [38], the Tribunal noted the appellant's contention that, in her letter of 26 November 2015, she had narrowed the scope of her access request and had not sought access to information about the 2013 name change of the Tahmoor Children's Playground. Hence, the searches undertaken by Mr Szoszkiewicz were excessive. The Tribunal did not accept the appellant's submissions and found as follows: " 39 … [In] my view the Council was entitled to rely on the clear words of her 26 November 2015 letter. This letter was provided in response to a letter from the Council seeking clarification of the scope of the request. It was reasonable for the Council to undertake searches that would include information relating to "why Council changed the name of the playground to Emmett Park in 2013 without community consultation". In the circumstances, the Council should not reasonably have limited the searches to information created prior to 1970. 40 As noted above, I formed the view that the access application is a very broad request. The scope of the request was not narrowed to exclude information dated before 1920 or after 1970. The scope included information dated at least to the time that the name of the playground was changed to Emmett Park in 2013. Prior to 9 December 2015 the request was not narrowed to exclude information held on microfiche. 41 The searches that Mr Szoszkiewicz undertook of the TRIM files included information relating to Emmett Park. The Council contends that it was required to undertake that search because of the scope of what was on the face of the access application. The Council searches have identified over a thousand pages of documents as falling within the scope of the request. There are 145 pages of microfiche records and they have been printed. The remaining documents are those located by Mr Szoszkiewicz when he looked through the TRIM files."
9. At [54] to [56], the Tribunal below concluded: "54 The advanced deposit was requested on the basis of the assessment of the work that has already been undertaken and the estimate of the work that is still required to be done. It is possible that the estimate of the work to be done is not accurate. For example it might be reduced if the estimated consultation period proves to be unnecessary. However, that cannot be determined until the material is assessed. If consultation was ultimately found to be unnecessary the Council would have to refund money to the Applicant. 55 If however, the Applicant were to limit her request to exclude information that was created after a given date, for example 1970, the amount of necessary consultation would be drastically reduced. If that were the case, the estimate of the work that needed to be done might be reduced. 56 On the evidence before me I am satisfied that the work that has already been undertaken was necessary in order for the Council to comply with its obligations under the GIPA Act. That includes the searches that Ms Ackerly and Mr Szoszkiewicz undertook and the work that Ms Ogden undertook. Based on my finding in relation to the scope of the request, this was work that the Council was entitled to do and it had to do. It follows, in my view, that the Council is entitled to charge the fees in relation to that work. The decision to request payment of an advanced deposit request is justified is affirmed. The date for payment is extended to 16 June 2016."

Consideration

1. In many respects the appellant's contentions on appeal were the similar to those she canvassed before the Tribunal. In summary, these centred on the searches undertaken by the respondent and which formed the basis on which the amount of advance deposit had been determined. The appellant did not dispute the hours Ms Ackerly and Mr Szoszkiewicz said they conducted their respective searches. However, what she did dispute was that both searches were unnecessary and excessive because they did not relate to searches for the information that was the subject of her access application.
2. While the appellant's grounds of appeal largely relate to the Tribunal's findings of fact, it is convenient to first deal with the five grounds the appellant has identified as errors of law. We have then briefly dealt with the remaining issues under the heading "The appellant's application for leave to appeal".

No jurisdiction to set aside the 20 January 2016 decision of the respondent

1. The appellant contends that, as she had not sought external review of the respondent's refuse to deal decision the Tribunal had no power to review or make orders in respect of that decision. That is, as she had only sought review of the advance deposit decision, the Tribunal only had power to make orders in regard to that decision and not any other decision.
2. There is no dispute that the Tribunal's administrative review jurisdiction was enlivened by the appellant's application for review of the respondent's decision to request an advance deposit: see s 100 of the GIPA Act and s 55(1) of the ADR Act. Section 100 of the GIPA Act 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."
3. Section 55 of the ADR Act sets out the requirements for making an application for administrative review by the Tribunal. Sub-section 55(1) provides that an application for administrative review of an administratively reviewable decision can "only be made by an interested person." The term "interested person" is defined in s 4(1) of the ADR Act to mean "a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision." As we have noted above, under s 100 of the GIPA Act, the person entitled to seek external review of an administratively reviewable decision under that Act is a person who is "aggrieved" by a decision of this kind.
4. Section 63 of the ADR Act sets out how the Tribunal is to determine an application for administrative review under that Act. That section is in the following terms: "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." (italics added)
5. As we have noted, a refusal to deal decision under s 58(1)(e) of the GIPA Act and a decision to request an advance deposit under s 68(1) of that Act are both administratively reviewable decisions. The GIPA Act gives a person aggrieved (e.g. an access applicant) by either one or both decisions a right to seek review of such decisions internally by the agency or externally by the Information Commissioner or the Tribunal. The appellant's position is that as she only sought external review of the decision to request an advance deposit, the Tribunal only had power to review that decision and make orders in regard to that decision.
6. In its submissions in this appeal, the respondent again conceded that, by reason of s 70(1) of the GIPA Act, its decision to refuse to deal with the appellant's access application had been incorrectly made, as, unbeknown to the respondent at that time, the appellant had already filed with the Tribunal her application for external review of the respondent's decision to request an advance deposit.
7. The respondent, went on to contend that even though it had "no power" to make that decision, this did not mean that its decision was void ab initio and had no legal effect.
8. We note, for the purpose of administrative review under the ADR Act, the word "decision" is broadly defined in s 6(3) of that Act to include, "a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it". In this case, the respondent's refusal to deal decision fell within this description and was a decision for which the appellant could have sought review by the Tribunal: see GIPA Act s 80(c). However, in the absence of having sought external review of that decision, in our view, once the respondent conceded the decision had been incorrectly made the appellant could no longer say she was "aggrieved" by that decision, as the concession was in effect a further administrative decision that set aside the earlier decision that had been administratively made.
9. The respondent submitted that s 30(2) of the NCAT Act gave the Tribunal the power to make the order setting aside its refusal to deal decision (i.e. order 1), so as to avoid any uncertainty given the Tribunal's decision to extend the time within which the appellant was to pay the advance deposit.
10. Section 30(2) of the NCAT Act provides that, in its administrative review jurisdiction, the Tribunal has jurisdiction to make "ancillary" decisions. An "ancillary" decision is defined in s 4(1) of the NCAT Act to mean: "ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings."
11. In our view, in the absence of the appellant having sought review of the respondent's refusal to deal decision, it can not be said that the Tribunal's set aside order was "consequential on" the decision determining the appellant's administrative review application of the respondent's decision to request an advance deposit.
12. In our opinion, the respondent acted appropriately, in accordance with good administrative practices, conceding its decision had been incorrectly made. The appellant, we understand, agreed the decision had been incorrectly made.
13. The GIPA Act also makes provision for an agency to review an administratively reviewable decision, where an aggrieved access applicant makes an application for internal review of that decision (see GIPA Act, s 84). On internal review, the agency can set aside its decision, make a new decision or vary its decision. In our opinion, this does not mean that in the absence of an internal, or external review application, by an aggrieved access applicant, an agency is unable to review and set aside, or vary the original administratively reviewable decision it made. This is especially so where the agency accepts, prior to any review application being made, that its decision had been wrongly made. In our opinion, the concession of the respondent that its refusal to deal decision had been wrongly made was an administrative decision which in effect set aside its original decision.
14. As we have noted, the Tribunal made order (1) "for abundant caution." We understand this was done given the respondent's concession and the fact that the appellant was no longer aggrieved by the decision that had been made.
15. However, for the reasons set out above, in our opinion, in the absence of the applicant having made an application for review of the respondent's refusal to deal decision prior to the hearing, the Tribunal had no jurisdiction under s 63(3) of the ADR Act to make order (1). Accordingly, the appellant has established this ground of appeal and order (1) should be set aside. At the same time we find that nothing turns on the Tribunal having erred in law in making this order, as the respondent had in effect made a decision of this kind prior to the Tribunal's determination and the appellant's claim before the Tribunal was not in any way adversely affected by reason of the order having been made.
16. The appellant explained to us at the beginning of the hearing that she was legally trained and had been a solicitor. In her submissions on costs the appellant reiterated that she was legally trained, but was not a financial member of the Law Society. While the appellant was self-represented, given her legal background, we find difficult to understand is why she did not accept the respondent's concession and so vehemently argued against the Tribunal making order 1 and has persisted in raising this again on appeal, when she has at all times agreed the respondent's refusal to deal decision was wrongly made and her claim before the Tribunal was in no way adversely affected by the Tribunal having made order (1).

Findings contrary to s 41 of the GIPA Act

1. Subsection 41(1)(e) of the GIPA Act provides that a formal application for access to government information "must include such information as is reasonably necessary to enable the government information applied for to be identified."
2. As we understand the argument of the appellant, it is contended that the Tribunal erred in finding that if she did not require microfiche searches to be conducted she was required to stipulate this in her access application to the respondent. That finding she asserts to have been contrary to s 41(1)(e) of the GIPA Act.
3. In our opinion, the Tribunal did not make a finding in the terms asserted by the appellant. And we can find no error in the manner in which the Tribunal approached the issues of the searches undertaken by the respondent in response to the appellant's access application. In this regard, the Tribunal first and foremost considered the terms of the appellant's application for access to the government information specified therein. The appellant's contention before the Tribunal was that her access application made no mention of seeking access to the Tahmoor Children's Playground files that were on microfiche. She asserted she had only sought access to the "hard copy" files. The respondent's contention before the Tribunal was that the appellant's access application was broad in that the "information" she was seeking was information about the Tahmoor Children's Playground, located at the specified address, and that access was sought for "literary purposes". As "information" of this kind was contained in files that were now retained on microfiche the respondent contended it was appropriate to conduct searches of the microfiche.
4. The Tribunal accepted the respondent's contentions and found, at [48] of its reasons for decision, that the appellant's initial access application, as clarified by her 26 November 2015 letter, "was broad and it included the files that were stored on microfiche." The Tribunal went on to find that the respondent was therefore entitled and obliged to look at microfiche in dealing with her access application.
5. The Tribunal also accepted that in her letter of 9 December 2015, the appellant clarified her access request by stating she did not seek access to the files that had been stored on microfiche: see at [49]. However, the Tribunal went on to find that by the end of November 2015, Ms Ackerly had already finalised the microfiche searches she was requested to undertake and it was in respect of this search that an estimate of the costs of finally dealing with her access application and the basis on which the advance deposit was calculated.
6. In our opinion, the abovementioned findings of the Tribunal were open to it on the material before it, especially when the appellant's request was very open and she had indicated it was for "literary purposes." In our opinion, the appellant's 26 November 2015 response to the respondent's request as to the period for which she sought information did not narrow the breadth of her 19 November 2015 access application. In contrast to her 19 November access application, in her subsequent access request of 25 November 2015, the appellant was very specific in the information sought (see paragraph 21 above). The same specificity was absent from her 19 November access application and her 26 November response to a request about the scope of that application.
7. We also note the appellant's concession at the hearing before the Tribunal, that her 26 November 2015 letter could be understood to indicate that the time limit of her request was some time between 1920 and 1970 and that this should be checked by the respondent: see at [37] of the Tribunal's reasons for decision.
8. When objectively assessed, in our opinion, the appellant's original formal application for access while restricted in subject matter (which of itself was broad), it was not restricted in time. When clarification was sought as to time, the appellant left this to the respondent to determine and at the same time added to the information sought by stating: "My search … is also intended to establish why Council changed the name of the playground to EMMETT PARK in 2013." The only qualification the appellant made to her 19 November 2015 access application was that photocopying was not required. We note, the respondent's estimate of charges did not include the cost of photocopying.
9. For completeness we note that while the appellant's access request was in the terms of seeking access to "file/s", the GIPA Act does not use terminology of this kind. Nor does it make reference to a person's right to "access document(s)". Instead, as pointed out in s 3 of the GIPA Act, its objects includes "giving members of the public an enforceable right to access government information", subject to there being an overriding public interest against disclosure: see GIPA Act, s 3(1)(b) and (c). As we have noted the means by which access to "government information" can be sought and how an agency is to deal with an access application is prescribed in Part 4 of the GIPA Act.
10. The words "government information", is defined in s 4(1) of the GIPA Act to mean: "information contained in a record held by an agency."
11. As pointed out by the appellant in her costs submissions, the word "record" is defined in cl 10 of Sch 4 of the GIPA Act and after setting out the terms of cl 10(1), she went on to say: "whilst a record may include microfiche if hard copy records are not available, microfiche was not required". In our view, this is not only a misunderstanding of the meaning of the word "record", but also a misunderstanding of the obligation of an agency in conducting a search for the information sought pursuant to s 53 of the GIPA Act. Cl 10 is in the following terms: "10 Meaning of "record" (1) In this Act: record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record."
12. As can be seen from the above, cl 10 does no more than define what constitutes a "record" for the purpose of the GIPA Act, which would include information held by an agency in microfiche form or in electronic form such as the respondent's TRIM system.
13. Section 53, as we have noted in paragraph 33 above, requires an agency to conduct its search for the information sought by "using the most efficient means reasonably available" to it, including the use of resources that facilitate the retrieval of information stored electronically." And subs 53(5) provides than an agency is not required to undertake a search that would "require an unreasonable and substantial diversion" of its resources.
14. In this case, it was the evidence of Ms Ackerly and Mr Sproule, the information for which the appellant sought access was held by the respondent in files that had been copied onto microfiche and onto the electronic TRIM system. The Tribunal, having found that the appellant's access application was broad also accepted that the most efficient means for searching for the information sought was to conduct a search of the microfiche system and the TRIM system. These we note from the evidence were readily available to the respondent at the time the appellant made her access application.
15. While we have digressed a little from the appellant's second ground of appeal, in conclusion we reiterate that this ground has not been established.

Failure to have regard to s 53 of the GIPA Act

1. As we have noted above, s 53 of the GIPA Act makes provision for the extent to which an agency is obliged to conduct a search for government information in response to an access application.
2. Again, we understand the appellant to contend that the searches undertaken by the respondent went beyond what was a reasonable search for the government information she had sought access to. That is, contrary to s 53, the respondent went beyond what it was obliged to do in searching for the information she sought access to, and on this basis was not entitled to seek an advance deposit from her based on the alleged excessive searches undertaken by Ms Ackerly and Mr Szoszkiewicz.
3. In her submissions on costs, the appellant said she had only sought access to "hard copy files" and that it was the respondent who had determined the time frame of the searches from 1920 to 2015, when she had only sought access to information from the time the "playground was gifted to Council by the Tahmoor Progress Association in 1958."
4. In our opinion, the appellant's contentions are again misconceived and lack merit. As we have already noted, whether an agency has undertaken "reasonable searches" in accordance with s 53 will be dependent on an objective assessment of the terms/scope of an access application. In this case, the Tribunal found that the appellant's initial access application, as amended by her 26 November 2015 letter, was "very broad" in scope and included information from 1920 to "the time that the name of the playground was changed to Emmett Park in 2013": see at [40] of the Tribunal's reasons for decision (also set out in paragraph 51 above). For the reasons we have already given, our finding is that the Tribunal's finding as to the scope of the appellant's access application, as amended by her on 26 November 2015, was open to it on the material before it.
5. The searches conducted by Ms Ackerly and Mr Szoszkiewicz were undertaken on the basis of this broad interpretation of the scope of the appellant's access application and prior to the respondent's letter of 8 December 2015. The Tribunal appears to have accepted that the searches undertaken by Ms Ackerly and Mr Szoszkiewicz were reasonable. However, the Tribunal also accepted an argument put forward by the appellant that Mr Szoszkiewicz's search of the TRIM system would have captured information that was outside the scope of her access application: see at [52] of the Tribunal's reasons for decision. In this regard, the Tribunal went on to say: "… [in] my view it was necessary to undertake the broad search in order to ensure that all relevant material was captured. The information that was located would then need to be assessed for relevance."
6. We understand the Tribunal's reference to relevance was based on the appellant's subsequent response, of 8 December 2015, which for the first time limited the scope of her access application.
7. Although the Tribunal made no specific mention of s 53 in its reasons for decision, in our opinion, its approach to the searches that were undertaken by the officers of the respondent and the Tribunal's findings are consistent with that section. That is, it found that the microfiche and TRIM searches were reasonable and necessary having regard to the scope of the appellant's access application at the time the searches were conducted. Accordingly, it can be inferred the Tribunal had regard to the requirements of s 53 and did not err as alleged by the appellant.

Acceptance of the telephone evidence of Ms Ackerly without seeking verification by statutory declaration - s 46(1)(b) and (c) of the NCAT Act

1. Section 46 of the NCAT Act deals with the powers of the Tribunal in relation to witnesses. That section relevantly provides as follows: "46 Powers in relation to witnesses (1) The Tribunal may: (a) call any witness of its own motion, and (b) examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and (c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and (d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings."
2. As we understand the appellant's argument, she contends the Tribunal erred in accepting the oral evidence of Ms Ackerly, given by telephone, that "no files on Tahmoor Children's Playground existed", when, in the absence of corroborative evidence, s 46(1)(b) and (c) required the Tribunal to obtain verification of this evidence by statutory declaration. In her submissions on cost the appellant's submission was that Ms Ackerly's evidence was that the respondent held no "hard copies" of files on Tahmoor Children's Playground.
3. In our opinion, this contention of the appellant is also misconceived and lacks merit.
4. Ms Ackerly was the respondent's witness and not a witness called by the Tribunal. Although the appellant objected to Ms Ackerly giving evidence by telephone, the Tribunal granted leave for her to do so. In our opinion, the Tribunal's grant of leave was appropriate and consistent with s 38 of the NCAT Act which relevantly provides: "38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) …"
5. We note from the transcript summary that accompanied the CD recordings of the hearing that, at the commencement of giving her evidence, Ms Ackerly was formally sworn, by affirmation, to give her evidence. She was also extensively cross-examined by the appellant.
6. What the appellant has failed to direct our attention to is the evidence of Ms Ackerly that "no files", or "no hard-copy files" on Tahmoor Children's Playground existed and the Tribunal's acceptance of this evidence. In the absence of drawing our attention to this evidence and findings this ground of appeal must also fail.
7. We reiterate, while the appellant's access request was in the terms of seeking access to file/s concerning the Tahmoor Children's Playground, it was the information within those files for which she sought access and this was the basis on which the respondent conducted its search of its records. The evidence before the Tribunal was that the respondent held the information contained in the relevant hard copy files on microfiche and the TRIM system.

Acceptance of Ms Ackerly's evidence that no files existed - s 71 of the NCAT Act

1. Section 71 of the NCAT Act is in the following terms: "71 False or misleading statements A person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both."
2. We understand the appellant to contend that Ms Ackerly's evidence that no files, or no hard copy files existed was false or misleading in a material aspect. As the appellant has failed to point us to where, during the course of the hearing, Ms Akerly gave this evidence, this ground must also fail. Even if Ms Ackerly made a statement to this effect in the course of her evidence, for the reasons we have already given, her evidence and that of the respondent was that the respondent did hold files, or copies of hard copy files on microfiche and the TRIM system that contained the information sought by the appellant. These files were identified during the course of searches conducted prior to the appellant limiting the scope of her access application.
3. Accordingly, we find this ground of appeal is also misconceived and lacks merit.

The appellant's application for leave to Appeal

1. As we have noted the appellant's grounds for seeking leave to appeal are those set out in the decision of Collins v Urban (supra), at [84(2)(a), (d) and (e)].
2. In that decision, the Appeal Panel also said the following at [84(3)]: "In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
3. For the reasons that follow we find that the appellant's grounds for seeking leave to appeal are misconceived and lack merit and are largely a restatement of the matters the appellant identified as errors of law.
4. The appellants grounds for leave to appeal can be summarised as follows: 1. the Tribunal erred in excluding the relevance of the Memorandum of Transfer the appellant produced at the hearing which confirmed that the Tahmoor Children's Playground was transferred to the respondent in November 1958 (paragraphs 8 and 17 of the appellant's submissions); 2. the Tribunal erred in its findings as to the scope of her access request (paragraphs 6, 7, 9, 10, 11, 12 and 18 of the appellant's submissions); 3. the Tribunal erred in finding that the searches undertaken by the respondent and for which an advance deposit was sought were reasonable and necessary (paragraphs 7, 13 and 15 of the appellant's submissions); and 4. the Tribunal's misrepresentation of the facts led to errors in its findings that could not be supported by the factual evidence (paragraph 16 of the appellant's submissions).

1. The Memorandum of Transfer
2. We understand the appellant sought to tender into evidence a copy of the Memorandum of Transfer of the land on which the Tahmoor Children's Playground was established from private hands to the respondent in November 1958. The appellant had obtained a copy of the Memorandum from Land and Property Information. We understand the purpose of the proposed tender of the Memorandum was to establish that the respondent's searches for information concerning the Tahmoor Children's Playground could only be justified from that date.
3. The appellant asserted the Tribunal "excluded the relevance" of the Memorandum and said to her words to the effect "I'll take your word for it."
4. While we have not been taken to the section of the recording of the hearing where this exchange occurred, there does not appear to be a dispute about an exchange to this effect.
5. Again we do not find any error by the Tribunal. That the land was not transferred to the respondent until November 1958 was not in dispute. What was in dispute was the scope of the appellant's access request. As we have noted, the request did not limit the time for which information was sought, namely from November 1958, or from the time the land was transferred to the respondent. Yet, the appellant seems to have wrongly assumed that the respondent officers responsible for dealing with her access application would have known that she was seeking information from around that time, and not prior thereto. Although the appellant had written a separate letter, on 25 November 2015, seeking access to the Council Resolutions dated 21 August 1958 concerning the Tahmoor Children's Playground, in our opinion, it was reasonable for the respondent to treat that as a separate application for access to the specific information referred to in that letter and to continue to deal with the appellant's 19 November 2015 access application as being a stand alone application that was broad in its terms with no limit as to time other than from 1920 to 2013.
6. As a general rule, officers appointed by an agency to deal with an access application, under the GIPA Act, do not have any direct knowledge of the information that is being sought by the access applicant. Their role under the GIPA Act is to consider whether the application is valid and if valid to search for the information in accordance with the terms/scope of the person's access application. The clearer and more precise the terms of that request the easier it is for the officers of the agency delegated with the task of dealing with that application, the easier it is for those officers to locate the information sought.
7. In this case, the evidence is that neither Ms Ackerly nor Mr Szoszkiewicz had any specialised knowledge or experience about the information being sought by the appellant. What they did have knowledge and experience of was searching the respondent's record systems for records that may contain information for which the applicant sought access.

2. The scope of the appellant's access application
3. These grounds are essentially a repetition of the appellant's alleged errors of law in that the Tribunal erred in finding that her access request was very broad in that it included going back to 1920 and included information about the change of the name of the Playground in 2013. For the reasons we have given above, we have found that the Tribunal's findings were open to it on the information before it.

3. Reasonableness and adequacy of searches
4. These grounds are also largely a repetition of the appellant's alleged errors of law. Again, we have found that the Tribunal's findings were open to it on the information before it.
5. The appellant also asserted that the Tribunal's finding that her application for access was broad in scope denied her procedural fairness in being able to conduct her case "at first instance without being prejudiced by limitations in tendering documents and cross-examination contrary to guiding principles of equity."
6. A denial of procedural fairness raises a question of law and is also a ground on which leave to appeal can be sought: see NCAT Act, s 38(2) and Gallo v Duflou [2014] NSWCATAP 115 at [28]ff and Amad El Ahmad t/as Cars for Everyone v Imelda Reyes [2015] NSWCATAP 50 at [16]ff.
7. We understand the appellant asserts she was prejudiced by the Tribunal's refusal to accept her tender of the 1958 Memorandum of Transfer and her inability to cross-examine Mr Sproule in regard to his statement of 9 May 2016. We have dealt with the issue concerning the Memorandum above and noted the date of the transfer of the land was not an issue.
8. In regard to Mr Sproule's statement we note its purpose was to place before the Tribunal a copy of the email exchanges between the appellant and Mr Michael Malone, an officer of the respondent, in regard to the appellant's informal access application. Those emails are dated between 10 and 30 September 2015.
9. We understand, form oral submissions at the hearing of this appeal, that during the course of the hearing before the Tribunal, the respondent objected to the appellant cross-examining Mr Sproule about the searches Mr Malone had undertaken in the course of the appellant's informal request and the Tribunal up-held that objection. Again, in our view, it was open to the Tribunal to exercise its discretion in that way as it was Mr Malone and not Mr Sproule who dealt with the appellant's informal access application.
10. The appellant has otherwise not identified how she was prejudiced by not being able to cross-examine Mr Sproule in regard to the emails attached to his statement. What the emails do show is that the appellant had sought informal access to "the Tahmoor Playground file" and she told Mr Malone, in an email dated 11 September 2015, that: "I won't know what I want until I see the file/s on the park and what history Council has about the land being gifted by Emmett and the purchase of the land by the community in the 1940's."
11. As we have noted, the role of the Tribunal was to determine what the correct and preferable decision was having regard to the applicable law and the relevant facts. In the appellant's case the Tribunal was required to determine what the correct and preferable decision was having regard to the terms of the appellant's access request, as amended by her on 26 November 2015, and whether the searches undertaken by the respondent at the time for information falling within the scope of the appellant's request were reasonable in accordance with s 53 of the GIPA Act. The Tribunal found that the searches were reasonable and we have found that such a decision was open to the Tribunal on the material before it.

4. Misrepresentation of the facts
5. For the reasons set out above, the appellant has failed to establish that the Tribunal misrepresented the facts in so far as they were material to the issues before it in regard to the appellant's application for review of the respondent's decision to request an advanced deposit. Accordingly, this ground must also fail.

Conclusions - Appeal and Application for Leave to Appeal

1. In summary, for the reasons set out above, we have found: 1. the Tribunal erred in making order (1) setting aside the respondent's refuse to deal decision and it should be set aside; 2. nothing turns on the Tribunal's error in making order (1) as the respondent had in effect made an administrative decision setting aside that decision prior to any determination of the Tribunal and without the appellant seeking review of the refusal to deal decision; and 3. the Tribunal did not otherwise err in law or fact as asserted by the appellant and on this basis the appellant's substantive appeal should be dismissed and her application for leave to appeal should be refused.
2. In light of our findings it is also necessary to vary order (2) of the Tribunal by extending the date by which the appellant is to pay the requested advance deposit.
3. Notwithstanding our finding, we urge the parties to endeavour to reach an agreement on how the appellant's access application can be finalised to their respective satisfaction. This will require both parties to approach the issue dispassionately.

Costs

1. The Tribunal's power to make an award of costs is contained in section 60 of the NCAT Act. That section provides as follows: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
2. As can be seen from the terms of subsection 60(1), the starting point in the respondent's application for costs is that each party pay its own costs. Subsection 60(2) gives the Tribunal a discretion to award costs if it is satisfied that there are "special circumstances warranting the award of costs." That is, even if the Tribunal is satisfied there are special circumstances, the Tribunal must also be satisfied that such circumstances warrant an award of costs.
3. The matters the Tribunal can have regard to in determining whether there are special circumstances warranting an award of costs are those set out in subsection 60(3).
4. In Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], the Appeal Panel cited with approval the meaning of the expression "special circumstances" that had been given to the same expression in s 88 of the former Administrative Decisions Tribunal Act 1997 (NSW), by the Court of Appeal in Cripps v G & M Mawson [2006] NSWCA 84 at [60]. That is, special circumstances are "circumstances that that are out of the ordinary" - they do not have to be "extraordinary or exceptional".
5. In ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 at [41], the Appeal Panel noted that the mere fact a party was unsuccessful in their appeal does not of itself give rise to special circumstances warranting an order for costs in favour of the other party. The same applies where the appealing party was successful in their appeal.
6. The onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in their favour.
7. In its submissions, the respondent made reference to the appellant's legal qualifications and contended that, with one exception, the claims made by the appellant in her appeal and application for leave to appeal had no tenable basis in fact or law and were misconceived and lacking in substance.
8. The exception, referred to by the respondent was the claim that the Tribunal had no jurisdiction to make order (1).
9. The appellant, in her submissions on costs reiterated in some detail the settlement negotiations between herself and the respondent prior to the hearing of her appeal and application for leave to appeal. She also contended that her claims did not give rise to any special circumstances. She went so far as to assert the respondent's refusal to deal decision revealed "a tendency by the respondent to deceive and mislead for its own ends." In conclusion, the appellant submitted that in the event we were minded to award costs to the respondent, these costs should be "costs in the cause". In our opinion on the material before us there is nothing to support the appellant's assertion or her contention that a cost order, if made, should be an order for costs in the cause.
10. Based on our findings above, we agree with the respondent's contention that the appellant's grounds of appeal and application for leave to appeal, other than ground 1, had no tenable basis in fact or law and were misconceived and lacking in substance. We have also found that these grounds were largely a re-agitation of the matters raised by the appellant at the hearing before the Tribunal, which had been comprehensively dealt with by the Tribunal in its published reasons for decision. As the Appeal Panel has often said, an appeal is not a re-hearing of the application before the Tribunal below. What an appellant must establish to succeed in an appeal is that the Tribunal either erred in law or the Tribunal erred in other ways and it is appropriate to grant leave to appeal.
11. In regard to the ground the appellant did succeed, this was a ground which we have found to be legally correct, but one which had no adverse affect on the interest of the appellant at first instance or on appeal.
12. While we accept the appellant is not a solicitor, she does have legal qualifications. Notwithstanding these qualifications, as we have noted in paragraph 70 above, the appellant has pursued a ground of appeal that was of no practical effect on her claim in regard to the respondent's decision to request and advance deposit. Her grounds of appeal and application for leave to appeal were otherwise confusing and lacked merit.
13. Section 36 of the NCAT Act sets out the guiding principles to be applied to the practice and procedure of the Tribunal. That section relevantly provides as follows: "36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) … (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. …"
14. In our opinion the appellant cannot be criticised for not co-operating with the Tribunal, or failing to comply with the orders of the Tribunal. However, in our opinion, the respondent was unnecessarily disadvantaged through the appellant's pursuit of an appeal on a ground that had no practical effect on her overall interests and on other grounds that lacked merit and had been fully dealt with by the Tribunal.
15. In our opinion, the respondent's refusal of the appellant's offer of settlement prior to the hearing is also of no assistance to her. Her offer was in effect a counter offer of the settlement offer the respondent had made in a letter dated 11 July 2016 following the first call over of the appellant's appeal before Principal Member Harrowell. In our opinion, having regard to the correspondence between the parties, the appellant was unlikely accept any form of settlement offer, other than to be provided with access to the information that had been located and her determining whether it was information she wanted a copy of for her own research. As we have explained and the Tribunal before us, under the GIPA Act, an agency is not obliged to deal with an access application in this way where the scope of the information sought is wide.
16. Accordingly, for the reasons set out above, we find that there are special circumstances warranting an award for costs in favour of the respondent.

Orders

1. For the reasons set out above, we order: 1. The appellant's appeal is allowed in part. 2. Order 1 made by the Tribunal below is set aside. 3. Order 2 made by the Tribunal below is varied by deleting the words "16 June 2016" at the end of the second sentence and inserting the words "21 days after the publication of the Appeal Panel's decision." 4. The appellant to pay the respondent's costs of the appeal and application for leave to appeal as agreed or assessed under the legal costs legislation.

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: 17 May 2017