Totterman v Richmond Valley Council

Relevant legislative provisions

1. Section 36 sets out the "guiding principle" 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) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules.
2. Section 44 of the CAT Act relevantly provides for the joinder of parties as follows: 44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has - (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party. …
3. Section 50 provides for hearings, including providing for a matter to be determined without an oral hearing. It relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required
4. By s 60 of the CAT Act, the general position is that each party pays its own costs, but there are circumstances in which the Tribunal may make an award of costs: 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.
5. Also relevant is s 80 which provides for internal appeals. 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.
6. Some provisions of the GIPA Act are also relevant. Section 14 provides a list of matters that are to be considered in determining whether (s 13) there is an "overriding public interest against disclosure of government information" which outweighs the public interest considerations in favour of disclosure. One of the matters set out in the s 14 table is para 3(f): 3: Individual rights, judicial processes and natural justice 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 - … (f) expose a person to a risk of harm or of serious harassment or serious intimidation,
7. Section 54 of the GIPA Act provides for a process of consultation if an application has been made for information relating to a person in the following circumstances: 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). Note - The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4. [person includes an agency, the government of another jurisdiction (including a jurisdiction outside Australia) and an agency of the government of another jurisdiction. Note - This definition does not limit the definition of person in the Interpretation Act 1987, which includes an individual, a corporation and a body corporate or politic.] (2A) If the agency considers that information about a person consulted under this section is likely to be included in the agency's disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements - (a) that information concerning the application is likely to be included in the agency's disclosure log and that the person can object to this, (b) that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person's objection. … (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. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.
8. Also relevant is s 104 of the GIPA Act which provides a right of appearance as follows: 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. (2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14). (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.

Ayr's submissions on the application for joinder

1. On 29 October 2024, Ayr filed an amended application with submissions in which they made the following arguments: 1. The current application seeks considerable information that was also the subject of the 2023 proceedings, which were withdrawn by the applicant in February 2024 and significant costs had been incurred by both AYR and RVC in defending those 2023 proceedings; 2. Ms Yared is a director of Ayr as well as the managing director. She is effectively the face of the company. She is the applicant in proceedings before the Ballina Local Court for an apprehended personal violence order (APVO) against the applicant. There is in place an interim APVO which prevents the applicant from stalking or harassing her and which restricts him from approaching within 50 metres of the property at Broadwater. The APVO matter is listed for final hearing on 5 May 2025. 3. In the 2023 proceedings, Ayr applied to be joined as a party and an order joining Ayr was made by the Tribunal on 27 November 2023. A copy of the reasons for that decision is annexed to Ayr's submission. 4. Ayr referred to the statutory power of the Tribunal to join a party provided for by s 44(1) of the CAT Act. It also referred to the decision of the NSW Court of Appeal in Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 (Fine) where that Court had found that a party whose interests are affected by a decision "would generally be a proper party" to proceedings: Fine at [40]. In this case, Ayr submitted that as Ayr is the owner of the property, the information sought contains private information of Ayr and on that basis the company's interests are affected. Ayr contended it was not a "mere intermeddler" (referring to Fine at [40] 5. Ayr submitted that it was necessary for it to be joined because it will ensure that the issues that are not within the knowledge of the respondent RVC will be able to be brought to the attention of the Tribunal. One of those issues concerns the APVO proceedings in train that involve Ms Yared. The company has a duty of care to her as the conduct causing the fears that led to the APVO proceedings occurred while she was working for Ayr. 6. Ayr submitted that some of the information sought is commercial in confidence. 7. In terms of practical consequences Ayr submits that there will be no additional cost or delay and it will call no witnesses. If joined as a party, Ayr expects to cross examine witnesses called by the applicant and respondent but anticipates that any such cross examination will be limited and take up no more than 30 minutes. 8. Ayr also addressed the proposition put by the applicant that its interests can be served via it having a right to be heard pursuant to s 104(3) of the GIPA Act. It contended that merely because they have a right to be heard under s 104(3) is not a reason to refrain from making an order joining Ayr as a second respondent. 9. Ayr also submitted that there was a relevant distinction between being heard pursuant to s 104(3) of the GIPA Act and being joined as a party. This is because only a "party" is entitled to appeal any decision made by the Tribunal (see s 80 CAT Act). A person heard under s 104(3) does not thereby become a party and would accordingly have no right to appeal if it considered that the decision was contrary to its interests. 10. Finally, Ayr acknowledged that a possible consequence of it being joined was that it could be liable for costs under s 60 of the CAT Act if it were to be joined.
2. The applicant responded with submissions dated 5 November 2024 in which he contended the following: 1. The application under the GIPA Act made on 13 June 2024 followed two sets of proceedings in the Land and Environment Court (LEC): Class 4 proceedings (judicial review) which were discontinued on 18 March 2024; and a Class 1 merits appeal proceeding which was also discontinued on 17 April 2024. 2. The applicant contends that Ayr is neither a necessary nor proper party and that the joinder application has already caused delay and increased costs. 3. The applicant submits that "Ayr cannot represent the private interests of Ms Yared without Ms Yared being joined herself". Ms Yared has made a private application for an APVO against the applicant. 4. The applicant contends that there is no evidence to support the APVO application and that the interim orders were made on 23 November 2023 "without hearing evidence" and attached a transcript of the proceedings of that date. 5. The applicant notes that the respondent relies, as one of its grounds for refusal, on paragraph 3(f) in the Table in s 14 of the GIPA Act. It contends that for that ground to be made out, Ms Yared would have to provide evidence and the company cannot represent her personal claims in these proceedings. She would herself need to seek to be joined as a party. 6. The applicant seeks to distinguish the 2023 decision to join Ayr as a party, referring to the fact that one of the reasons given for that decision was that there were proceedings then on foot in the LEC to which the applicant and Ayr are parties and the latter is in the "best position to identify to the Tribunal how its interests and the LEC proceedings could be prejudiced by disclosure of relevant information" at [46]. But as there are no longer LEC proceedings on foot, this "is not currently relevant". 7. The applicant states that no commercial in confidence claim was made as part of the s 54 consultation and Ayr should not now be permitted to raise these matters. Doing so would constitute an abuse of process. They had their opportunity when consulted under s 54 of the GIPA Act and that was the appropriate mechanism by which to raise those issues. In any event, they can make submissions pursuant to s 104(3). 8. A decision joining Ayr "will cause (and has already caused) significant delay and unnecessary expense". 9. The applicant contends that Ayr is not a necessary party in the sense referred to by the Court of Appeal in its decision in Fine. It is not a decision maker and has no statutory role or other obligation that would arise from the outcome of proceedings. Nor does it have an interest so significant that it could be said that they were a necessary party. 10. As for whether Ayr is a proper party, the applicant contends that Ayr has not identified any commercial interest. The interactions of a private landowner with the local planning authority are not those borne out of contract and commercial relationships such as were relied on to permit joinder in the case of Marrickville Council v Botany Council [2015] NSWCATAD 144 (Marrickville Council). 11. The information sought does not have any effect on the value of Ayr's property or on a business operation for which reason Ayr is not a proper party but is instead an "inter-meddler". The applicant stated that he was not "aware how any of the regulatory documents could possibly relate to Ms Yared's personal application for an APVO, however if they do that is a matter for Ms Yared to prove".

Consideration

1. The Tribunal that considered the 2023 joinder application commenced by referring to the decision of the Court of Appeal in Fine. That Court reversed a decision by the Appeal Panel and allowed an application by the Commissioner of Police to be made a respondent to the proceedings. The key parts of the decision in Fine are set out at [38]-[40] [38] The power of joinder conferred by the Civil and Administrative Tribunal Act, s 44 is stated in general terms. It is a power to join a party "if the Tribunal considers the person should be joined as a party": s 44(1). The Tribunal also has the power to remove a party. The power of removal may be exercised if the person is "improperly or unnecessarily joined, or ... ceased to be a proper or necessary party ": s 44(2). The Commissioner submitted that the power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a "proper or necessary party" ought to be joined in the proceedings. That submission may be accepted. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions "proper" and "necessary", noting that the expressions are used in s 44(2) disjunctively and that a "proper" party may not be a "necessary" party. [39] A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application. The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal. The Appeal Panel appeared to accept that this was so: see at [37], referred to at [30] 40 41 42 43 above. Further, the Rules provide for the joinder of the decision-maker: r 27(b). For that reason alone, the Authority was properly joined as a party in this case and because of the provisions of the rules is a necessary party to the proceedings. However, the fact that a party such as a decision-maker is a necessary party to proceedings does not of itself require that party to take an active role in the proceedings. This is discussed below in relation to the Hardiman principle. [40] The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister's department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene.
2. The 2023 Tribunal also referred to the decision of the Appeal Panel in Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 (Rice Marketing). There a third party was applying to be joined as a party to the appeal from a Tribunal decision in which the third party had exercised its right to be heard under s 104(3) of the GIPA Act. The 2023 Tribunal noted that the Appeal Panel in Rice Marketing held (at [74]) that the third party could not "properly be characterised as a party in the Tribunal below for the purposes of NCAT internal appeal rights under s 80": 2023 Tribunal at [39]. It set out what the Appeal Panel had said in Rice Marketing at [104]-[105]; and at [107]-[108] about the relationship between s 44 of the CAT Act and other rights to be heard such as that provided by s 104(3) of the GIPA Act: [40]-[41]. While the Appeal Panel held that it could join a party to an appeal, there was no right to initiate an appeal that arose out of a right to be heard pursuant to s 104(3) of the GIPA Act: [42]-[43]. The decision of the Supreme Court in Keevers v Sarraf Property Group Pty Ltd [2022] NSWSC 1017 was to similar effect: see [128]; [151]. Thus although the Appeal Panel has a power to join a party to an appeal, that party cannot be a "plaintiff" (ie bring an appeal from a primary decision) if it has not been a party to the proceedings below.
3. Applying that reasoning to the case then before the Tribunal, the Tribunal made an order joining Ayr for the following reasons 1. The Tribunal was satisfied that Ayr is aggrieved by the decision under review and has a right to be heard pursuant to s 104(3); [44] 2. The substantive proceedings relate to a request for records of the respondent in relation to property owned by Ayr, which is a third party objector. [45] 3. The Tribunal noted that in Marrickville Council, the Tribunal had joined a third party objector as party in first instance proceedings where it otherwise had a right to be heard pursuant to s 104(3) [46] 4. As noted above, the Tribunal stated that "due to the information said to be commercial-in-confidence and the current LEC proceedings in which the applicant and Ayr are parties, …Ayr is in the best position to identify to the Tribunal how its interests and the LEC proceedings could be prejudiced by disclosure of relevant information": [47] 5. Ayr is a "proper party" (as per the approach set out in Rice Marketing at [117] where the Appeal Panel had found that the third party "is a person whose interests are affected by the Tribunal's decision and has a material interest in the result of the appeal proceedings; [and] is not a "mere inter-meddler".:[48] 6. It was "necessary to join Ayr as a party in the substantive proceedings to assist the Tribunal to determine effectually and completely all matters in dispute in the proceedings".[52] 7. The Tribunal did not consider that providing Ayr with an opportunity to participate in the substantive proceedings will cause undue delay or additional costs, having regard to orders that had already been made.[53] 8. The discretion in s 44 is a broad discretion and joining Ayr in this case was consistent with the guiding principle (referring to s 36 of the CAT Act). The Tribunal was satisfied that Ayr is a "proper and necessary party" and that it was appropriate for it to be joined. [54]
4. The applicant contends that as there are no longer proceedings on foot in the LEC, the reasoning of the 2023 Tribunal is not relevant. It also contends that Ayr had its opportunity to raise its concerns when it was consulted pursuant to s 54 of the GIPA Act and that it cannot now raise matters that were not agitated at that stage. It also argues that the company cannot or ought not be representing the interests of its director, Ms Yared and she should make her own joinder application.
5. By contrast, Ayr contends that it is in the same position as Marrickville Council where the Tribunal joined a third party objector as a party in first instance proceedings and that the only way in which to preserve its appeal rights pursuant to s 80 is by being joined as a party, rather than participating in the more limited basis provided for by s 104(3) of the GIPA Act.
6. It is certainly the case that there is no evidence of any current proceedings in the LEC between the applicant and Ayr. Nonetheless, there is at least one live dispute between the applicant and Ayr (or its employee), apart from the current GIPA proceedings. That involves the proceedings brought by Ms Yared against the applicant.
7. Ayr contends that Ms Yared is both a director and the managing director of the company; that is, she is both a director and an employee and in the latter capacity the company owes her a duty of care. The applicant contends that as the APVO proceedings concern her and not the company, she ought herself have sought to be joined in the proceedings.
8. Ultimately, one of the issues that the Tribunal will be called on to decide is whether the public interest ground under s 14 clause 3(f) on which RVC relies is made out, that is, whether disclosure of the information would (f) expose a person to a risk of harm or of serious harassment or serious intimidation". The Tribunal considers that evidence about the proceedings through which there is now an interim APVO in place will likely be relevant to that ground.
9. The applicant is correct to point out that the final hearing of the APVO matter is yet to take place and all that is in place is an interim order. However, as is apparent from the transcript annexed to the applicant's submissions, it is not entirely accurate to say there was "no evidence" before the Court. There was at least one item of evidence adduced in the proceedings on 23 November 2023, which was a photograph of the house that the presiding magistrate found was taken on the land by the applicant and Ms Yared had expressed fears for her and her children's safety. Her Honour stated: on balance, the applicant has satisfied me that since these proceedings are still going and Mr Totterman seems to want to still gather evidence, that it may well involve engaging in behaviour that may amount to stalking, maybe seen as behaviour that is harassing to someone who lawfully occupies the property. I am persuaded on balance that it is appropriate for an interim order to be made.
10. In circumstances where Ms Yared is both a director of the company and its managing director, there is no reason, particularly taking into account the guiding principle set out in s 36, why the Tribunal should consider that Ayr is not a proper or necessary party in circumstances where the safety of one of its staff members/directors is implicated.
11. As for the contention that the LEC proceedings are no longer on foot, the remarks of the magistrate about the applicant seeking to gather evidence could apply equally to his dispute with RVC.
12. There is no basis for suggesting that s 54 of the GIPA Act is exhaustive of Ayr's right to raise issues. Whether Ayr is made a party to the proceedings pursuant to s 44 of the CAT Act or is heard pursuant to s 104(3) of the GIPA Act, it is entitled to raise whatever arguments it chooses or adduce any evidence for which provision is made in timetabling orders. It is well established that a Tribunal such as this one is not limited to reviewing the correctness/legality of decisions that have been made. Rather, in determining an application for review, the Tribunal operates in accordance with s 63(1) of the Administrative Decisions Review Act 1997 (NSW). That provision sets out the role of the Tribunal as being to decide what is the correct and preferable decision having regard to the material before it. That can include material that postdates the decision under review (see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). In those circumstances, the fact that there was a consultation process under s 54 cannot be determinative of whether to join a party.
13. As for the argument about whether Ayr's participation will increase the length or costs of the proceedings, as Ayr has pointed out, if it were the case that that occurred, s 60 provides a discretionary power to order costs and such an application could at that stage be made by the applicant if it were considered appropriate.
14. It is now well established that an interested party who was not joined to first instance proceedings cannot initiate an appeal under s 80 of the CAT Act (although can apply to be joined to an appeal brought by one of the parties). Given the central role Ayr plays in this dispute: it is the owner of the land the subject of the application to RVC; its managing director is the subject of an interim APVO arising out of activities on the subject land and it was previously joined to Tribunal proceedings (now discontinued) involving the same applicant and the same respondent, the Tribunal is satisfied that Ayr is a person affected by the proceedings and is a proper or necessary party to the current proceedings.
15. As the Tribunal stated in the 2023 decision, the discretion conferred by s 44 of the CAT Act is broad and in this case, is to be exercised in favour of permitting Ayr to be joined as a second respondent to the proceedings.

Decision

1. The Tribunal considers that, for the reasons set out above, Ayr should be joined as a party to the substantive proceedings and accordingly, the application for joinder under s 44 of the CAT Act is granted.

Orders 1. The application by Ayr Investments Pty Ltd to be joined as second respondent to these proceedings is granted. 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: 09 December 2024