Ugur v Commissioner of Police - [2023] NSWCATAP 261 - NSWCATAP 2023 case summary — Zoe

NSWNSWCATAP

Ugur v Commissioner of Police

[2023] NSWCATAP 261

NCAT Appeal Panel|2023-05-19|Before: Dr J

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2023-05-19

Before

Dr J

Catchwords

[2015] NSWCA 30 Akins v National Australia Bank (1994) 34 NSWLR 155 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
[2000] HCA 63 Frugtniet v Tax Practitioners Board [2019] FCAFC 193 Isbester v Knox City Council (2015) 255 CLR 135
[2015] HCA 20 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Johnson v Johnson (2000) 201 CLR 488
[2000] HCA 48 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390

Source

Original judgment source is linked above.

Catchwords

[2015] NSWCA 30 Akins v National Australia Bank (1994) 34 NSWLR 155 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321[2000] HCA 63 Frugtniet v Tax Practitioners Board [2019] FCAFC 193 Isbester v Knox City Council (2015) 255 CLR 135[2015] HCA 20 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Johnson v Johnson (2000) 201 CLR 488[2000] HCA 48 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390[2011] HCA 48 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611[2010] HCA 16 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Judgment (52 paragraphs)

[1]

A 63 Frugtniet v Tax Practitioners Board [2019] FCAFC 193 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 Mastronardi v State of New South Wales [2007] NSWCA 54 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 MZYSQ v Minister for Immigration & Citizenship [2012] FMCA 661 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs 228 CLR 470; [2005] HCA 77 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 Ugur v Commissioner of Police [2020] NSWCATAD 293 Ugur v Commissioner for Police [2021] NSWCATAP 298 Ugur v Commissioner of Police [2022] NSWCATAD 396 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 ZND v ZNE [2020] NSWCATAP 34 Texts Cited: Nil Category: Principal judgment Parties: Haci Ugur (Appellant) Commissioner of Police (Respondent) Representation: In person (Appellant) Norton Rose Fulbright (Respondent) File Number(s): 2023/00009174 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2022] NSWCATAD 396 Date of Decision: 15 December 2022 Before: P French, Senior Member File Number(s): 2020/00166818

[3]

Background to decision under appeal

The following is taken principally from the decision under appeal and the decision of a NSW Civil and Administrative Tribunal (NCAT) Appeal Panel in relation to an earlier appeal brought by Mr Ugur: Ugur v Commissioner of Police [2021] NSWCATAP 298 (Ugur Appeal Panel 2).
On 22 December 2019, Mr Ugur made an application under the GIPA Act to NSW Police seeking access to information relating to him (the first access application). In that application, Mr Ugur described the information he sought access to in the following terms: "Copies of all information (all correspondence and documents, including emails, in any format) contain personal information held in relation to [the appellant], [the appellant's date of birth] .... regarding any incidents and the police action arising from such incidents including, but not limited to: 1. All entries on the Computerised Operational Policing System (COPS) relating to [the appellant] ... 2. All entries on the [the respondent's] Suspect Targeting Management Plan (STMP), or an organised crime suspect relating to [the appellant]... 3. The copy of all documents or records or files or communications relating to [the appellant]... including (without limitation) any files and records involving legal advice or consent, compulsory medical treatment and/or medical procedure, supervision and/or surveillance, management, detention, or other forms of control of [the appellant]. 4. Document includes, without limitation, originals and copies of all correspondence, letters, memoranda, minutes, written and electronic communications, emails, SMS messages, MMS messages, Chat messages, diary notes, forms, internal memoranda, telephone memoranda, reports, file notes, agreements, accounts, receipts, invoices, computer disks, computer and video and master tapes and any other form of digital or electronic storage of information. 1. In additions: Sent or received until today 22 December 2019 inclusive. From or to any of the following agencies or people: a. Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police Department and NSW Health and NSW Ambulance and NSW Ombudsman Office and NSW Housing (Bridge Housing) and NSW Office of Public Guardian and NSW Legal Aid and Attorney General's Department of NSW and Department of Home Affairs (including AFP), Commonwealth Ombudsman Office. b. Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police Department and Sydney Turkish Consulate General (including legal adviser Ecevit Demir, solicitor M. Byers) relating to [the appellant]... c. Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police Department and the Turkish Police or any other overseas agency relating to [the appellant].... d. Any and all records regarding cooperation, agreements, memoranda and statements and communications between the NSW Police Department and Erol Ozer (and any doctors and lawyers and medical centres) relating to [the appellant].... e. Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police Officer Murat Tuncer and Sydney Turkish Consulate General, Erol Ozer, Orhan Oner (or Omer), Dr Ugur Ergun, Hikmet Ergun or any other third party relating to [the appellant] ..."
In an email sent to Mr Ugur on 30 December 2019, a delegate of the Commissioner proposed to Mr Ugur that he narrow the scope of information sought to "police event reports from COPS" relating to Mr Ugur, that is, the information described in paragraph [1] of the first access application. Mr Ugur did not respond to that proposal. (COPS is the acronym for "Computer Operational Policing System", an electronic database used by NSW Police to record, among other things, information about incidents that may require police action.)

[9]

Mr Ugur appeals from Tribunal Decision 1

An Appeal Panel of NCAT allowed in part an appeal brought by Mr Ugur from Tribunal Decision 1: Ugur v Commissioner for Police [2021] NSWCATAP 298 (Ugur Appeal Panel 1).
At [104], the Appeal Panel noted that, in addressing whether, as required by s 53(2) of the GIPA Act, the Commissioner had "undertake[n] such reasonable searches as may be necessary to find any of the [information applied for by Mr Ugur] that was held by [NSW Police]", the Tribunal had taken the following approach: 1. It found, based on the evidence given by Mr Smith, that various searches for the requested information had been carried out; 2. It asked whether there was any evidence tending to prove that NSW Police held any of the further information requested; 3. It decided that there was no such evidence; 4. Applying those findings, it affirmed the Access Decision 2.
The Appeal Panel held that by adopting that approach, the Tribunal had misapplied s 53(2) of the GIPA Act. At [105] the Appeal Panel stated that the Tribunal had failed to address whether, as required by s 53(2) of the GIPA Act, NSW Police had conducted reasonable searches for the information requested by Mr Ugur.
At [40]-[44] and [51]-[60], the Appeal Panel identified two primary concerns with the searches undertaken by the Commissioner: 1. It was unclear whether electronic records databases, primarily the COPS database, had been searched with a date restriction applied. The Appeal Panel noted that Mr Smith had not specified a date range for Category 1 information: "All entries on …COPS… relating to [Mr Ugur]"; 2. "On its face", one of the documents to which Mr Ugur had been given access in Access Decision 2, Information Report I 187426894, indicated that additional information may exist.
The Appeal Panel: 1. Set aside the Tribunal's decision to affirm the "information not held" decision made by the Commissioner under s 58(1)(b) of the GIPA Act; 2. Under s 65 of the Administrative Decisions Review Act 1997 (NSW), remitted the decision to the Commissioner for reconsideration; 3. Remitted to a differently constituted Tribunal the Commissioner's decision on reconsideration; 4. Dismissed the balance of the appeal.

[13]

Statutory framework

The objects of the GIPA Act are set out in s 3(1): (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
Section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": GIPA Act, s 5.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 9 of the GIPA Act gives a person who makes an access application for government information a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. It is not in issue that Mr Ugur made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information". (See definition of these terms in s 4 of the GIPA Act.)
Section 58 of the GIPA Act lists the types of decisions that may be made by an agency in determining an access application. Those relevant to this appeal are decisions made under ss 58(1)(a), 58(1)(b) or 58(1)(d) of the GIPA Act: 58 How applications are decided (1) An agency decides an access application for government information by-- (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or ... (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or ... Note: These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
Each is a "reviewable decision": GIPA Act, ss 80(d), 80(e). Section 100(1) of that Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review under the Administrative Decisions Review Act of that decision. The burden of establishing that a reviewable decision is justified lies on the agency making the decision: s 105(1) of the GIPA Act.
In determining an application made under s 100(1) of the GIPA Act, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it: Administrative Decisions Review Act, s 63(1). In determining that application, the Tribunal may affirm or vary the reviewable decision, or set aside that decision and make another decision in substitution for the reviewable decision, or remit the matter for reconsideration by the administrator: Administrative Decisions Review Act, s 63(3).
Section 53 of the GIPA Act is central to several grounds of appeal raised by Mr Ugur. It imposes an obligation on an agency to search for information that is the subject of an access application: 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.
The operation of s 53 of the GIPA Act was considered by an Appeal Panel of NCAT in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska): "36. Section 53 of the GIPA Act imposes an obligation on an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). That obligation is limited to "information held by the agency when the [access] application is received": s 53(1). The search must be conducted "using the most efficient means reasonably available to the agency": s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources". 37. The question of whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by an agency, is plainly relevant to the nature and extent of the searches required to be undertaken to discharge the obligation under s 53. Where, for example, the likelihood of the requested information existing and being held by the agency is farfetched or fanciful, for example, NSW Health holding information about US President Donald Trump's Twitter account or evidence of alien life in Wagga Wagga, arguably no search could properly be characterised as being a "reasonable search ... as may be necessary to find any of the government information applied for" and, therefore no obligation to search arises. Conversely, where it is reasonably likely that the requested information exists and is held by the agency, a cursory search said to be unable to find the requested information, is unlikely to satisfy the obligation imposed by s 53. 38. However, in my view, there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake "reasonable searches" is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that "there are reasonable grounds to believe that the requested information exists and is held by the agency". Being familiar with the type of information it holds, its information management and retrieval systems, generally the agency will be best placed to make an assessment about the likelihood that the requested information exists and is held by it. Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s 53. This is not to say that the stated basis for an applicant's belief that the requested information exists and is held by the agency. Indeed, the basis for that belief may assist the agency in identifying and finding the requested information. However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency's "information is not held" is the correct and preferable decision."
At [44], the Appeal Panel in Wojciechowska set out the steps that must be undertaken by the Tribunal when reviewing a decision made under s 58(1)(b) of the GIPA Act that the requested information is not held by the agency: "(1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act."

[15]

No evidence: the principles

A tribunal of fact which makes a finding of fact or draws an inference where there is a complete absence of evidence makes an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 (Bond) at 356 (Mason CJ); Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32at [91] (Hayne, Heydon, Crennan and Kiefel JJ).
In Bond, Mason CJ noted at [88]-[89] that there was "no error of law simply in making a wrong finding of fact" and "want of logic is not synonymous with error of law". Mason CJ continued: "So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
Referring to the above statement made by Mason CJ, Basten JA in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] added four "points of caution": "First, this passage indicates that the 'no evidence' ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term 'no evidence', as an administrative decision-maker is usually entitled to take into account material which would not count as 'evidence' in a judicial context. In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a 'no evidence' ground of review."
A conclusion that there was some evidence capable of supporting a particular finding of fact requires that there be a rational connection between particular evidence and that finding: BHP Billiton Ltd v Dunning [2015] NSWCA 55 at [35]- [43]; Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 at [300].

[17]

The inadmissibility point

We understand Mr Ugur to contend that the Steptoe statement was inadmissible because it was not listed under the heading "material considered" in the reasons for Tribunal Decision 2 (the Reasons). The only material provided to the Tribunal by the Commissioner listed under that heading was Access Decision 3. The Tribunal did not expressly refer to the Steptoe statement or the submissions prepared by and filed by the Commissioner in the Reasons.
At [61]-[73] of the Reasons, the Tribunal considered in detail the steps taken and the methodology Mr Steptoe said he had undertaken to search for the five categories of information requested by Mr Ugur (the requested information). From the Reasons, it is not possible to determine whether, in that discussion, the Tribunal was referring to the information contained in Access Decision 3, the Steptoe statement, or both. This is because there is significant overlap between the two documents. The Steptoe statement largely restates information set out in Access Decision 3. The only material difference between the two documents is that the Steptoe statement contains information additional to that contained in Access Decision 3, principally an explanation given by Mr Steptoe of the methodology he claimed he used to search for the requested information.
The omission from the Reasons of any express reference to the Steptoe statement may be the result of an oversight by the Tribunal or, as Mr Ugur contends, the Tribunal's failure to have regard to that statement. However, if the latter, it does not follow that the reasonableness of search finding was made without evidence. This is because the Tribunal had before it Access Decision 3, which contained much the same information as that contained in the Steptoe statement. In addition, the Tribunal had before it Mr Steptoe's oral evidence, in which he was cross examined at length by Mr Ugur about the steps he took to search for the requested information.
If it is suggested by Mr Ugur that, in reviewing Access Decision 3, the Tribunal was confined to considering sworn evidence in statement form, we cannot agree. In determining Mr Ugur's application, the Tribunal was required to have regard to the material then before it, including "any relevant factual material": Administrative Decisions Review Act, s 63(1). This included Mr Steptoe's oral evidence and Access Decision 3.
Even if assumed that the Tribunal failed to have regard to the Steptoe statement, it could not be said that the reasonableness of search finding was made without probative evidence.

[18]

The inconsistent evidence point

Mr Ugur contends that Mr Steptoe's oral and written evidence were inconsistent and, as a consequence, there was no evidence to support the reasonableness of search finding.
In support of that contention, Mr Ugur relies on several extracts of the transcript of the hearing he prepared. We compared those extracts with the corresponding sound recording of the hearing and found they contain several (but not material) inaccuracies. The extracts relied on include: "Extract 1 0:11:55 Ugur: Did you search any information regarding the paragraph at 4 and 5 of the Internal Review Application? Steptoe: I am quite difficult to follow this. Ugur: Did you look at their information regarding this? Steptoe: I looked at what Mr Smith had done and search is done for that. … Extract 2 0:14:55 Steptoe: Did I do any searches; searches I have conducted on listed in my statement on my decision. … Extract 3 Ugur: I suggested you, you provided information, this is irrelevant my request. What do you say? Steptoe: I don't often get people complaining they had too much information."
In Extract 1, Mr Steptoe confirmed that Access Decision 3 listed the searches he had undertaken for the requested information. Extract 2 is to the same effect. The basis for the assertion that Extract 1 and 2 demonstrate an inconsistency between Mr Steptoe's oral and written evidence is not apparent.
Extract 3 relates to Event Report E 73683913, dated 21 February 2020. That report records that "after some difficultly and exhaustive search of old police records" - records held by the Byron Bay Police - a police notebook covering the period 14 June 2000 to 23 January 2001, issued to former Senior Constable Gregory Kelly, was located. That notebook contained an entry relating to a motor vehicle accident in which Mr Ugur was involved on 23 October 2000, and is discussed below. In Access Decision 3, Mr Steptoe explained that Event Report E 73683913 was created "solely to facilitate the filing of additional documents", namely the Senior Constable's notebook. Mr Steptoe wrote that he decided to give Mr Ugur access to that event report "in the interests of transparency".
Whether Mr Ugur is or is not assisted by Event Report E 73683913 is not to the point. Extract 3 does not reveal an inconsistency between Mr Steptoe's oral and written evidence.
Having reviewed the remaining extracts of the transcript contained in Mr Ugur's submissions, we reached the same conclusion: they do not establish an inconsistency between Mr Steptoe's oral and written evidence
The contention that Mr Steptoe's oral evidence was inconsistent with his written evidence is not established.

[19]

The perjury point

Mr Ugur contends that Mr Steptoe committed perjury. This, he appears to contend, strengthens his argument that there was no evidence available on which to base the "reasonableness of search" finding. In support of that contention Mr Ugur points to [31] of the Steptoe statement: "NSW Police has limited human resources available for GIPA Act matters. There are 15 review officers presently in the lnfolink Unit available to process access applications made under the GIPA Act. We currently receive approximately 200 access applications every week which must generally be decided within 20 working days. Three officers have now spent approximately 40 hours searching for information responsive to the applicant's access application - this does not include the time expended on searches by the different units and commands within NSW Police Force which have also searched for information relating to the applicant, or the time needed to review the records located, draft a decision and apply redactions."
Mr Ugur contends that Mr Steptoe's claim that NSW Police had limited human resources to consider access applications made under the GIPA Act is "unbelievable". So too, contends Mr Ugur, is the claim that three officers spent 40 hours responding to his access application. Mr Ugur reasoned that if Mr Steptoe is to be believed, it would mean that the Commissioner would only be able to respond to 10 access applications each year, leaving 190 applications unanswered.
Leaving to one side the apparent flaw in that calculation, Mr Ugur's argument is based on the assumption that the time spent by the Commissioner in determining his application is typical of the time spent by the Commissioner in dealing with any access application. Mr Ugur's application has been the subject of three separate determinations made by the NSW Police, a determination made by the Information Commissioner, a decision by NCAT at first instance and a decision by an NCAT Appeal Panel. In those circumstances we think it unlikely that the time spent by the Commissioner to determine that application could properly be described as "typical".
Mr Ugur failed to point to any evidence to support the contention that the claims made by Mr Steptoe about the resources available to NSW Police to deal with access applications made under the GIPA Act, and the time spent by the Commissioner on dealing with his access application, were untruthful. The contention that these claims are untruthful lacks any basis.
In his submissions in reply, Mr Ugur gave further examples of evidence given by Mr Steptoe said by Mr Ugur to be false. Those submissions are confusing and are largely an expression of disagreement with statements made by Mr Steptoe.

[21]

Personal factor finding

Before considering the contention that the personal factor finding was made without evidence, we set out some background facts.
In Access Decision 3, Mr Steptoe decided to give Mr Ugur access to Police Notebook F258734 after redacting from that notebook "personal information of another individual [not Mr Ugur]" (the redacted material). That material was recorded by the attending police officer following a motor vehicle accident in which Mr Ugur was involved. That notebook is the subject of Event Report E 73683913 referred to above.
The schedule of documents to Access Decision 3 states that the redacted material fell within cl 3(a) of the Table to s 14 of the GIPA Act: "information which could reasonably be expected to … reveal an individual's personal information". At page 7 of that decision, Mr Steptoe stated that, in this case, the "privacy interests of individuals who provide information to police" outweighed the general public interest in favour of disclosure.
At [41]-[50] of the Reasons, the Tribunal reviewed the decision to redact information from Police Notebook F258734 and concluded that that decision was the correct and preferable decision, reasoning at [49]: "49. There are personal factors of the application that are relevant considerations in the application of the public interest test in relation to this issue. The applicant has, with respect, fixed persecutory beliefs about NSW Police. He is highly motivated to discover what information NSW Police have in relation to him and who provided it to them. In these circumstances I am satisfied that there is an unacceptable risk that if access to the name of the person referred to in the police notebook made available to the applicant, he would attempt to contact that person. Pursuant to s 55(3), I consider this a personal factor of the application against access to this person's name being provided to the applicant." (Our emphasis)
We refer to the emphasised parts of the above passage as the "personal factor finding".
Mr Ugur contends that there was no evidence on which to base the factual matrix on which the personal factor finding was based: 1. that he had "fixed persecutory beliefs about NSW Police" (Impugned Finding 1); 2. that he is "highly motivated to discover what information NSW Police have in relation to him and who provided it to them" (Impugned Finding 2); 3. in those circumstances, if Mr Ugur was given access to the name of the person in the police notebook there was an "unacceptable risk … that he would attempt to contact that person" (Impugned Finding 3).
Mr Ugur believes that the redacted material contains the name and contact details of the other driver involved in the October 2020 motor vehicle accident. Mr Ugur claims that on the day of the accident he and the other driver "exchanged particulars" as recorded by the attending police officer at page 63 of Police Notebook F258734. He claims that he has never attempted to contact the other driver. (We make no comment about the correctness or otherwise of Mr Ugur's belief that the redacted material relates to the other driver involved in the accident, because s 107 of the GIPA Act direct NCAT "to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure". However, we observe that the redacted material relates to more than one individual.)
The Commissioner points out that the reason given by Mr Steptoe for not giving Mr Ugur access to the redacted material was that the "privacy interests of individuals who provide information to police … outweigh the general public interest against disclosure". In the appeal, the Commissioner distanced himself from the personal factor finding, emphasising that it was made by the Tribunal and not Mr Steptoe.

[24]

Impugned Finding 3

As Mr Ugur points out, there was no evidence before the Tribunal that he had attempted to, or intended to, contact the other driver involved in the October 2000 motor vehicle accident. Nor is there any direct evidence of Mr Ugur having contacted or having attempted to contact any person involved in, or thought to be involved in, any of the matters the subject of his requests for information.
The issue raised is whether in making Impugned Finding 3, the Tribunal drew "inferences which were not properly open" on the available material: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [23]-[24]. In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, the High Court observed that, to ground an inference where direct proof is not available, "it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture". The civil standard is "concerned with probabilities, not with possibilities": Bradshaw v McEwans Pty Ltd at 5.
It is not clear how the Tribunal reached the view that there was an unacceptable risk that Mr Ugur may seek to contact the person whose name and details were redacted if the information were given to him. The phrase "unacceptable risk" has two parts to it - risk and unacceptability of risk.
The events recorded in the Police Notebook took place 20 or so years ago. In that time, Mr Ugur has been in possession of information about the person who, he believes, is identified in the redacted material. There is no evidence that he has contacted that person, much less exhibited any threatening behaviour or untoward fixation in relation to him or her. This suggests that, while there is a theoretical possibility that Mr Ugur, if given the information, may act on it to get in contact with that person(s), the possibility seems remote and improbable. In our view, the inference drawn by the Tribunal "that there is an unacceptable risk that if access to the name of the person referred to in the police notebook made available to the applicant, he would attempt to contact that person" was not one reasonably open to the Tribunal on the available material.
Ground 1 as it relates to the personal factor finding is made out.

[26]

Legal principles

Section 62(3) of the NCAT Act states: 62 Tribunal to give notice of decision and provide written reasons on request ... (3) A written statement of reasons for the purposes of this section must set out the following - (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), Bell P (as the Chief Justice then was), in considering the nature of the Tribunal's obligation to give reasons, stated at [66] that the function of an appeal court in the context of appellate review is "to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard" (citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]). Referring to the statement made by Basten JA in Resource Pacific Pty Ltd v Wilkinson at [48] that "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality", Bell P said at [67] the "identification of separate parameters of quantity and quality is, with respect, a useful one".
At [70], Bell P went on to state that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". Bell P, however, acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess" which, in relation to NCAT, are supplied by s 62(3) of the NCAT Act. He stated at [72] that while s 62(3) of the NCAT Act provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".

[27]

Consideration

In the hearing of this appeal, we invited Mr Ugur to explain the basis for his contention that the Tribunal had failed to give adequate reasons for its decision. The focus of Mr Ugur's submissions was the reasons given for the decision to affirm the "information is not held" decision. (In these reasons we refer to a decision made under s 58(1)(b) of the GIPA Act "that the information is not held by the agency" by the shorthand expression "no information held decision".)
At [3]-[8], the Tribunal set out the background to Access Decision 3. At [14], the Tribunal noted that Mr Steptoe identified and set out in the schedule to that decision 17 documents that fell within the scope of Mr Ugur's access request in addition to those identified by NSW Police in Access Decisions 2 and 3. The Tribunal noted that Mr Steptoe had made a no information held decision in relation to Category 2 of Mr Ugur's access application. At [15], the Tribunal said that, while not explicitly stated, "it must also be inferred from [Access Decision 3 that Mr Steptoe] reached the conclusion that the agency also did not hold any further information in any other category of the applicant's access request to that which had been identified in his decision and in earlier decisions of the agency".
At [16], the Tribunal reproduced part of the reasons for Access Decision 3 in which, under the heading "searches", Mr Steptoe described the process he had employed to search for the requested information.
At [36]-[39], after setting out the statutory framework governing applications for administrative review made under the GIPA Act, the Tribunal referred to the provisions of the GIPA Act which govern a no information held decision and the authorities that have considered those provisions.
At [51]-[73], the Tribunal considered Mr Steptoe's claims about the searches he had undertaken to locate the requested information. The Tribunal commenced its consideration by noting, correctly, that it fell to NSW Police to "establish pursuant to s 105 of the GIPA Act that it has carried out searches for government information within the scope of the access request in accordance with the requirements of s 53": at [51]. The Tribunal noted that s 53 of the Act imposed "a standard of "reasonableness" in relation to the searches for information required to be undertaken by an agency, rather than any absolute or strict standard": at [52].
The Tribunal said it approached the task of evaluating whether the Commissioner had discharged the onus of establishing that it has carried out searches for the requested information "in accordance with the requirements of s 53" by considering in turn the searches claimed to have been undertaken in respect of each of the five categories of information request by Mr Ugur. In respect of each category, the Tribunal: 1. examined the evidence of the searches undertaken by Mr Steptoe; 2. implicitly found that Mr Steptoe had undertaken those searches; 3. considered and addressed the submissions made by Mr Ugur which were to the effect that it was implausible that no further information could be located in respect of each category of requested information; 4. found that the searches carried out by NSW Police "to identify potentially responsive information have been reasonable"; 5. found that NSW Police has discharged "its onus of establishing that it does not hold any further government information that is responsive to the applicant's access request".
The Tribunal set out its findings on material questions of fact together with its understanding of the applicable law. Significantly, the Tribunal explained why it had rejected Mr Ugur's submission which was to the effect that it was implausible that the Commissioner had undertaken reasonable searches for each of the five categories of requested information in circumstances where he is in possession of material which tends to suggest that additional material must exist. The Reasons disclose the reasoning path which led the Tribunal to affirm the no information held decision. Read fairly and as a whole, it is apparent that the Tribunal complied with the obligation imposed by s 62 of the NCAT Act.
The contention that the Reasons are inadequate is rejected.

[28]

Ground 3: Whether the Tribunal's delay in delivering its decision resulted in "procedural unfairness"

Mr Ugur contends that the delay by the Tribunal in handing down its decision until nine months after the hearing resulted in "procedural unfairness". Mr Ugur contends that the Tribunal made "many legal errors" which we understand him to attribute to that delay.
While undue delay in decision making may lead to a denial of procedural fairness, the circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs 228 CLR 470; [2005] HCA 77 (NAIS) (Gleeson CJ) at [5]. In Mastronardi v State of New South Wales [2007] NSWCA 54 at [63], Basten JA noted that it is "well-established that delay [in delivering judgment] will not constitute a ground of appeal in its own right". The delay must be shown to give rise to an error of law. In NAIS, the High Court considered whether a decision of the Refugee Review Tribunal (RRT) had breached the requirements of procedural fairness because of the five-year delay between evidence being given and the decision being handed down. By majority, the High Court held that the delay was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants' credibility and evidence was impaired: NAIS at [10].
Referring to NAIS, in Frugtniet v Tax Practitioners Board [2019] FCAFC 193, the Full Court of the Federal Court (Perry, Moshinsky and Lee JJ) stated at [39] that "[t]he question is ultimately whether in all of the circumstances the procedure adopted by the decision-maker was fair". This requires an assessment of whether the delay has prejudiced the fact-finding process such that it gives rise to an appellable error: NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98 (NRM) at [131]. Whether a passage of time can be properly characterised as a "delay", or "lengthy delay" is dependent on the factual complexity of the issues to be addressed and resolved: NRM at [140].

[32]

Apprehended bias: the principles

The Tribunal was obliged to afford Mr Ugur procedural fairness: NCAT Act, s 38(2). That obligation required the Tribunal to determine Mr Ugur's application for review without bias or the appearance of bias. The principles summarised below refer to courts but apply equally to NCAT.
The test for apprehended bias, the "double might test", is whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 (CNY17) at [56]; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (Isbester) at [20]. The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability": QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (QYFM) at [37].
The application of the double might test entails: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer: Ebner at [8]; Isbester at [59]; QYFM at [38].
Whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made requires consideration of the "legal, statutory and factual contexts in which the decision is made": Isbester at [20]; CNY17 at [58]. While the observer is not a lawyer and is not assumed to have a detailed knowledge of the law, the observer is, nonetheless, taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23]. In addition, the observer is taken to have "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]": CNY17 at [58]. Further, the observer is taken to be a "reasonable member of the public" who is "neither complacent nor unduly sensitive or suspicious": Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [55].
In Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 at [74], Deane J described four overlapping categories of apprehended bias which include the conduct of the decision-maker. Conduct which may give rise to an apprehension of bias includes conduct in the course of, or outside, the proceedings, including the published reasons for decision: CNY17 at [134].
In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [151], the High Court cautioned against the error of assuming a reasonable apprehension of a decision maker's bias and using comments in the reasons for judgment by the decision maker to "confirm, enhance or diminish the existence of a reasonable apprehension of bias": "To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment."

[33]

Consideration

To address Mr Ugur's submission that MZYSQ is authority for the proposition that the use by a tribunal of the word "vehement" to describe a belief held by a party might give rise to a reasonable apprehension of bias, it is necessary to consider the facts of that case.
MZYSQ concerned a successful appeal to the Federal Magistrates Court from a decision of the RRT to affirm a decision not to grant the applicant, MZYSQ, a protection visa. Central to the RRT's decision was the rejection of the applicant's claim that he had converted to Ahmadiyya, a sect of Islam. The Court held that, taken together, several statements made by the RRT in the course of the hearing might give rise to a reasonable apprehension of bias.
In the course of the hearing, the RRT said that the applicant's claims that he had converted to Ahmadiyya "just don't stack up". In reply to that statement, the applicant said, "It is a rule, it is a policy of Ahmadiyya they can't support anyone who has converted while ... in Australia" to which the RRT immediately responded: "I don't think that's so. I think that they do. If he is genuine. What your problem is, is that they didn't think you were. Okay, I don't think what you've said is true and I think if someone genuinely embraces this while they're in Australia, of course they will. But I'm not aware at all that they won't and I don't accept it. I think that they will. It's just that with you they didn't think you had. Is there anything else you want to say about that? About the genuineness of your adoption of Ahmadiyya? [A]" (Emphasis added by the Federal Magistrates Court)
At [62], referring to the above passage, the Court said that the RRT's "vehement expression of disbelief of an aspect of the applicant's claims" expressed in the passage above "could have produced a reasonable apprehension of bias in a fair minded, properly informed, lay observer". However, the Court went on to say at [64] that that apprehension "would have been allayed by the Tribunal member almost immediately asking the applicant, as she did, if he wished to say anything further about his alleged conversion". The Court said that conclusion was "subject to later developments", namely, a series of exchanges between the applicant and the RRT.
Those exchanges included the RRT's question, "But you can certainly be anti-fundamentalist in Pakistan and have a western outlook without coming to harm?". The Court said the flaw in that question was failing to put that proposition as a question, and to invite a response. Rather, the RRT stated a conclusion which, at [79], the Court described as "appear[ing] to be vehement and not amenable to change".
After examining the tone and content of several further exchanges between the RRT and the applicant, the Court said at [122]: "[T]aking the hearing as a whole, a fair-minded, fully informed, lay observer could reasonably have apprehended that the Tribunal, while the hearing was still underway, had formed an immutable view on issues critical to the case."
MZYSQ is distinguishable from the facts of Tribunal Decision 2. The conduct of the RRT found by the Court to give rise to a reasonable apprehension of bias consisted of several exchanges between the RRT and the applicant in the course of a hearing. The Court found, taken together, those exchanges, "could have produced a reasonable apprehension of bias in a fair minded, properly informed, lay observer". In contrast, the conduct about which Mr Ugur complains is an extract from the Tribunal's reasons for decision.
Further MZYSQ is not, as Mr Ugur contends, authority for the proposition that the use of the word "vehement" by a decision-maker to describe a belief held by party gives rise to a reasonable apprehension of bias. Whether it will turns on the facts of the particular case and the application of the test in Ebner.

[37]

Consideration

In considering the reasonableness of the apprehension of bias from the perspective of the hypothetical reasonable lay observer, it is necessary to formulate a picture of that observer. We have attributed to that observer the attributes discussed at [108] above. In summary, the observer is taken: 1. not to be a lawyer but nonetheless to be aware of the nature of the decision the Tribunal was required to make and the context in which it was made and to have knowledge of the circumstances leading to the Tribunal's decision; 2. to have "a broad knowledge of the material objective facts … as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]": CNY17 at [58]; 3. to be a "reasonable member of the public" who is "neither complacent nor unduly sensitive or suspicious": Johnson v Johnson at [55].
We have taken the fair-minded lay observer to be aware of the following: 1. the nature of material before the Tribunal about Mr Ugur's request to the Turkish Consulate requesting that it disclose the alleged correspondence between the Consulate and NSW Police; 2. Mr Ugur's affidavit affirmed 25 March 2022 detailing his repeated requests for information made to the Turkish Consulate; 3. The Reasons as a whole; 4. the parts of the Reasons which Mr Ugur contends paint him in an unfavourable light: 1. that Mr Ugur has "a fixed belief that he is the subject of constant surveillance and investigation by NSW Police, other security services, and the Turkish Government": at [18]; 2. that Mr Ugur "has fixed persecutory beliefs about NSW Police" and "is highly motivated to discover what information NSW Police have in relation to him and who provided it to them": at [49]; 3. that Mr Ugur has a "belief that he is under continuous investigation and surveillance by NSW Police and other authorities": at [59]; 4. that Mr Ugur's "position is simply one of disbelief that the agency does not hold extensive information about him and a belief that this information is being deliberately concealed from him": at [61]; 5. the material before the Tribunal on which those statements were based.
The Macquarie Dictionary defines the word "vehement" when used as an adjective to mean "eager, impetuous, or impassioned". The fair-minded lay observer is taken to be aware that the Tribunal could have selected a less colourful and more neutral word, such as "firm", to describe the nature of Mr Ugur's belief about the existence of information relating to the alleged communication between NSW Police and the Turkish Consulate. We accept as Mr Ugur appears to contend that the observer might have interpreted the Tribunal's use of the word vehement to indicate that the Tribunal was sceptical about the basis for Mr Ugur's belief about the existence of that information.
The reasonable lay observer would probably have understood that in using the term "vehement", the Tribunal was merely describing the strength of Mr Ugur's beliefs that further information existed and that NSW Police had failed to take reasonable steps to search for the requested information. In addition, the reasonable lay observer would probably have understood that the Tribunal could have used another adjective, or no adjective at all to describe the strength of Mr Ugur's belief about the likelihood of additional information being held by NSW Police. However, in our view the reasonable lay observer having regard to the reasons as a whole, including those parts that Mr Ugur considered cast him in an unfavourable light, would not have apprehended that the Tribunal might have prejudged Mr Ugur's application or closed its mind, such that it was not susceptible to persuasion, regardless of the evidence or the arguments (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]).
We are not persuaded a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of Mr Ugur's application, in particular, the question of whether the no information held decision was the correct and preferable decision.

[38]

Should Mr Ugur be given an extension of time to apply for leave to appeal from the adjournment decision?

Mr Ugur contends that, by refusing to grant his request to adjourn the hearing listed for 31 March 2022, the Tribunal denied him procedural fairness. Mr Ugur made that request in a letter to the Tribunal dated 28 March 2022, copied to the United Nations and Amnesty International. In that letter Mr Ugur advanced 10 reasons in support of his request for an adjournment: "(1) Whether determine of any third party involve this proceeding? (2) Whether the appointment of legal services and to liaise with these services regarding to the applicant involve this matter? (3) It is not clear that any other third party involves this matter linked the representation of the applicant. (4) At the hearing of the Appeal Panel the Senior Member P Durack SC, showed an envelope about 2 inches thick, provided a third party neither the applicant and the respondent. The decision of the Appeal Panel did not disclose this material. (5) At paragraph 46 of the decision of the Ludlow contain not for publication. (6) The respondent did not understand the submissions (submissions are difficult to understand) of the applicant without determining any section. It did not reply. (7) The respondent requesting a confidential session with the Tribunal (8) The Letter and Email of the Turkish Consulate General, Sydney stated he did not understand concrete request of the applicant and refused to answer a simple question: (a) The name of relatives of the applicant who, in 2011, involved TC Turkish Consulate General, Sydney and these relatives requested from his office to contact the Intelligence Unit of NSW Police. (b) Which communication tool used by the Turkish Consulate General to contact the Counter Terrorism & Special Tactics Unit of NSW Police Force concerning the applicant. For example, i.e.: a letter, a fax or a legal advisor or a lawyer. (9) The opportunity to attend the registry to view the file related his case. (10) On 2 July 2021, the applicant requested to attend the registry to view the file related his case. On 14 July 2021 the Registry rejects it. It stated 'due to the current health crisis the registry is currently closed.'"
The decision made by the Tribunal to refuse to adjourn the hearing listed for 31 March 2023 (the adjournment decision) is in the nature of an "interlocutory decision". Therefore, Mr Ugur requires leave to appeal from that decision: NCAT Act, s 80(2)(a). In addition, because the purported appeal from the adjournment decision was lodged after the statutory deadline for lodging an appeal from that decision, for the appeal to proceed, the discretion to extend the time for lodging the application for leave to appeal must be exercised: NCAT Act, s 41; Civil and Administrative Tribunal Rules 2014 (NSW), reg 25(4)(c).
In Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22], the Appeal Panel set out the relevant principles in relation to an extension of time in which to bring an appeal. The Appeal Panel made the following observations at 22: "Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), …"
The length of the delay here is significant. The decision to refuse Mr Ugur's adjournment application was made in late March 2022 and the notice of appeal was lodged on 10 January 2023.
Mr Ugur has not provided any reason for the delay.
Additionally, for the following reasons, we do not consider that Mr Ugur has a fairly arguable case in support of his application for leave to appeal.
In Collins v Urban [2014] NSWCATAP 17 (Collins) at [84], an Appeal Panel of NCAT stated that there must be a "sound basis" for granting leave to appeal under s 80(2)(b) of the NCAT Act. The Appeal Panel said that an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed" (Citations omitted)
While the Appeal Panel was referring to the exercise of the discretion to grant leave to appeal from a decision other than an interlocutory decision (NCAT Act, s 80(2)(b)), in our view, those principles apply equally to the exercise of the discretion to grant leave to appeal from an interlocutory decision (NCAT Act, s 80(2)(a)). Indeed, at [84(3)], the Appeal Panel expressly referred to an application for leave to appeal a decision relating to a "question of practice and procedure", stating that such applications are to be approached with "the restraint applied by an appellate court when reviewing such decisions".

[40]

Fresh evidence

Mr Ugur urges us to have regard to the "fresh evidence" identified in the Reply submissions. We understand Mr Ugur to request that we deal with the appeal under s 80(3) of the NCAT Act by way of a new hearing and to permit him to give fresh evidence.
Generally, to be admitted, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that, if admitted, there would have been a different result in those proceedings, and the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing); Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 at [68] per Sackville AJA.
Mr Ugur contends that the following constitutes fresh evidence: 1. a letter dated 10 October 2005 to Mr Ugur from Superintendent David D'Arcy, Bankstown Local Area Command, NSW Police, suggesting that Mr Ugur refer his complaint about a supervisor employed at Villawood Detention Centre to the Department of Immigration, Multicultural and Indigenous Affairs; 2. a letter dated 7 September 2011 to Mr Ugur from Mr Ian Ball, Ashfield Local Area Command about a complaint made by Mr Ugur to the NSW Ombudsman "about the actions of police". In that letter Mr Ball stated that a decision had been made under the Police Act 1990 (NSW) to decline to investigate that complaint; 3. an incident on 31 August 2002 in Homebush attended by Constable Cullen and Donovan; 4. Mr Steptoe's failure to locate any information in relation to a visit by Mr A Brennan and Mr T Attwood to Mr Ugur's home on 25 July 2012; 5. Mr Ugur's letter dated 2 March 2023 to the Turkish Consulate in which he referred to a series of letters he wrote to the Turkish Consulate during the period December 2021 to February 2022. That correspondence largely relates to Mr Ugur's request that the Turkish Consulate explain why it allegedly informed NSW Police that he was a terrorist and suffered from a mental illness.
The material listed above does not constitute fresh evidence because: 1. The correspondence from the Ashfield and Bankstown Local Area Commands (Items 1 and 2) with reasonable diligence could have been obtained for the hearing by Mr Ugur. That correspondence predated the hearing and Mr Ugur was the recipient of that correspondence. 2. While Mr Ugur's letter to the Turkish Consulate described in Item 5 above post-dated the hearing before the Tribunal, it provided no material additional to that which was already before the Tribunal in various documents, including Mr Ugur's affidavit affirmed 23 March 2022. 3. The facts of the incidents described in Items 3 and 4 were before the Tribunal in various documents. (See for example, Mr Ugur's affidavit affirmed 23 March 2022 at [20], [21], [27].) 4. It is not apparent, and nor has Mr Ugur addressed whether, if the purported fresh evidence had been admitted there might have been a different result in the proceedings before the Tribunal.
However, it is not fatal to Mr Ugur's request for the appeal be dealt with by way of a new hearing that the subject evidence cannot be characterised as fresh evidence. As explained in ZND v ZNE [2020] NSWCATAP 34 at [62], where an Appeal Panel decides to exercise the discretion to deal with an internal appeal by way of a new hearing, in addition to fresh evidence, an Appeal Panel may permit "evidence in addition to or in substitution for the evidence received by the Tribunal at first instance … as it considers appropriate in the circumstances".
In our view, no useful purpose would be served by exercising the discretion to deal with the appeal by way of a new hearing and having regard to the evidence identified by Mr Ugur. A new hearing would simply give Mr Ugur a further opportunity to ventilate submissions made at first instance. It would not serve to facilitate the just, quick and cheap resolution of the real issues raised in the appeal. The application to deal with the appeal by way of a new hearing and to permit fresh evidence to be given is refused.

[46]

The personal factors of the application

The third step in Camilleri (s 13 of the GIPA Act), balancing the public interest considerations for and against disclosure of the redacted material, requires that we first give consideration to "the personal factors of the application". Section 55 of the GIPA Act states: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. …
Before the motor vehicle accident, Mr Ugur had no relationship with any of the people whose personal information is contained in the redacted material. Nor is there evidence which might tend to suggest that Mr Ugur had a relationship with any of those people after that accident.
Mr Ugur's primary motive for making the access application appears to be to discover the information held by NSW Police about him which might tend to confirm his belief that he has been under surveillance by NSW Police for many years. Another motivating factor is to discover the information about him allegedly provided to NSW Police by the Turkish Consulate.
If it is assumed that the redacted material relates to the other driver involved in the motor accident, the evidence is that Mr Ugur already has the name of that person. That would tend to favour disclosure of the redacted material.

[47]

Consideration

As stated, there is a public interest in Mr Ugur having access to all of the information recorded by NSW Police about the October 2000 motor vehicle accident in which he was involved. There is a public interest in the activities of the NSW Police being, and being seen to be, open and transparent. Arguably, disclosure of the redacted information could reasonably be expected to inform the public about the operations of NSW Police and its practices for dealing with members of the public: GIPA, s 12(2)(b). If it is assumed that the redacted material relates to the other driver involved in that accident, the fact that Mr Ugur has at least the name of that person weighs in favour of the disclosure of that material. These considerations support a conclusion that significant weight be given to the public interest in favour of disclosure of the redacted material.
People who, at the request of NSW Police, provide their personal information to police are likely to assume that that information will not be disclosed to third parties. There is a significant public interest in the public having confidence that, if, on request, they give their personal information to NSW Police, that information will be kept confidential. There are many thousands of cases per annum in which members of the public give personal information to the NSW Police in the expectation that the information is protected and used only for its own legitimate purposes by the Police Force. For these reasons we give very significant weight to the public interest against disclosure of personal information.
The public interest against disclosure of the redacted material outweighs the public interest favouring disclosure of that information. Pursuant to s 13 of the GIPA Act, there is an overriding public interest against disclosure of the redacted material. The decision of the Commissioner to refuse to give Mr Ugur access to that material was the correct and preferable decision. We have decided to affirm that decision.

Ugur v Commissioner of Police

At a glance

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Decision date

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Judgment (52 paragraphs)

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Legislation Cited (5)

Cases Cited (43)

Cited By (1)