On 18 February 2020, the Appellant made a request on the Respondent for the release of documents under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).
When the Appellant was not content with the Respondent's response to that request, on 7 March 2022, the Appellant filed an application for administrative review to the Tribunal. On 21 November 2022, the Tribunal affirmed the Respondent's decision: Ugur v NSW Trustee and Guardian [2022] NSWCATAD 373 (the Decision).
The Appellant appeals against the Decision on the basis, in the broad, that the Tribunal erred in its findings and conclusions and also denied him procedural fairness in its conduct of the hearing.
For the reasons which follow, we have decided to dismiss the appeal.
[2]
The Tribunal's reasons and the conduct of the hearing before the Tribunal
At the hearing, the Respondent relied upon a statement of Ms Offner dated 2 May 2022 (Ms Offner's statement). This led to an adjournment application being made by the Appellant. The Tribunal dealt with this application at [26], [28] - [31]:
26 I note that on 13 July 2022, the applicant lodged submissions in support of his adjournment request, which This was effectively based on the late service of Ex 1 and his complaint that the respondent failed to comply with the Tribunal's procedural orders. The applicant initially stated that the statement was served upon him "early this week", but he later said that he "found it yesterday" and that he had not had time to read it because he had been busy.
. . .
28 The Tribunal considered the applicant's submissions, and noted that many of the submissions addressed matters that are not relevant to the current dispute. It particularly considered whether the late service of Ex 1 would cause the applicant prejudice which required the perusal of Ex 1.
29 The Tribunal asked Ms Mattes, as an officer of the Court, to indicate whether there was any information in Ex 1 that could reasonably be expected to take the applicant by surprise and/or to cause him prejudice. Ms Mattes responded to the effect that while there was no previous statement from Ms Offner, the searches that she refers to in her statement are clearly set out in the decision dated 20 September 2021 and no new matters have been raised. She observed that the applicant was well aware of these searches because he had addressed them at some length in Ex A.
30 Ultimately, the Tribunal decided not to vacate the hearing on the basis that the information in the statement was not significantly different to that set out in the decision dated 20 September 2021 and the applicant was not taken by surprise by its contents. The Tribunal also observed that the applicant had addressed the question of searches at length in his initial submissions and those dated 13 July 2022.
31 However, the Tribunal stated that if it became apparent during the applicant's cross-examination of Ms Offner that he was prejudiced by the late service of Ex 1, or if the hearing could not be concluded within the allocated time, the matter would be adjourned on a part-heard basis and the Tribunal would make directions for filing and service of any further evidence and/or submissions by the parties.
Ms Offner was made available for cross-examination and was extensively cross-examined by the Appellant. The Tribunal set out in the Decision many aspects of that cross-examination. At the conclusion of the cross-examination, there being no re-examination, the Appellant renewed the application for an adjournment. This was described by the Tribunal at [58]:
58 The applicant again applied for an adjournment on his previous grounds. However, the Tribunal refused this request and observed that the applicant had completed his cross-examination of Ms Offner, which was the main basis of the application.
The Tribunal at [63] identified the relevant issues as:
1. Whether the Respondent conducted reasonable searches - s 53 of the GIPA Act; and
2. Whether there was an overriding public interest consideration against disclosure of the disputed information
After a careful review of the evidence and the legal principles involved, the Tribunal decided that it was satisfied that the Respondent conducted reasonable searches and also that there was an overriding public interest against disclosure of the disputed information.
On that basis the Tribunal decided to affirm the decision under review.
[3]
The appeal
Decisions of the Tribunal such as the decision before us are internally appealable decisions and appeals can be made as of right where there is a question of law and, otherwise, with the leave of the Appeal Panel: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
The Appellant is appealing both on the basis that the appeal raises a question of law and also seeks leave to appeal. In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13] the Appeal Panel set out a non-exclusive list of questions of law. The principles applicable to the grant of leave were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84].
[4]
The grounds of appeal
The Appellant is self-represented. In those circumstances and in accordance with established appeal practice, we will follow the principles set out in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [12]
In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
For a grant of leave to be given by the Appeal Panel, the Appellant must demonstrate more than the Tribunal was arguably wrong: see Pohli v Wearne [2014] NSWCATAP 78 at [32].
Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve one of the following matters:
1. Issues of principles;
2. Questions of public importance or matters of administration or policy which might have general application; or
3. 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;
4. A factual error, that was unreasonably arrived at and clearly mistaken; or
5. The Tribunal has gone above 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: see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there; SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45].
In the Appellant's Notice of Appeal, there are 49 separate grounds of appeal raised and at the end of the document, the following is stated:
Note: The applicant will provide additional grounds and detailed information later.
Subsequently, the Appellant served three volumes of material. Included in that was a 16-page document labelled 'Leave to Appeal' which appears to set out the Appellant's written submissions in support of the appeal. Following the receipt of the Respondent's written submissions on appeal, the Appellant also filed a document of 41-pages headed 'Leave to Appeal' setting out reasons why leave to appeal should be granted and again covered the Appellant's contentions as to why the Tribunal erred.
Finally, the Appellant filed on 22 September 2023 a 36-page document of further submissions. We note that none of the written submissions followed the initial grounds of appeal.
We note the difficulty the Appellant faces being a self-represented litigant in seeking to put forward grounds of appeal and submissions in support. As McCallum JA in Mendonca v Legal Services [2020] NSWCA 84 held at [21]:
[T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.
While we accept the Appellant has done the best he can as an unrepresented litigant in difficult circumstances and with genuine and passionate feelings about the matter, the reality is that the description 'lengthy, unstructured assertions and misconceptions' summarises the vast majority of the Appellant's grounds of appeal and written submissions.
We have, after carefully reviewing this large amount of material, sought to give a beneficial construction to the grounds of appeal and submissions put forward. We have attempted where possible to distil the possibly relevant contentions. Much of the submissions of the Appellant merely indicate a dissatisfaction with the decision and seek to reargue the case the Appellant ran before the Tribunal originally rather than putting forward appeal grounds.
In Brahmbhatt v Osorio [2023] NSWCATAP 188 at [27] - [28], the Appeal Panel noted that the following matters were important considerations:
1. An appeal to an Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again; and
2. It is not sufficient for an Appellant to disagree with the outcome and to contend that there should have been a different outcome;
3. An appellant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted.
In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel 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.
In accordance with the principles above, as best as we have been able to interpret the submissions and grounds of appeal of the Appellant, we agree with the Respondent that the central contentions of the Appellant can be summarised as follows:
1. Perceived irregularities in the identity of the Respondent's decision-maker;
2. The unfair late service of the statement of Ms Offner;
3. Grievances as to how the Tribunal approached the review of the 'no information held' decision, including concerns regarding how searches were undertaken by the Respondent; evidence of searches relied on by the Respondent; and the principles applied by the Tribunal in its review;
4. Procedural fairness concerns;
5. The absence of a schedule of documents; and
6. Errors in the Tribunal's consideration of ss 54 and 54A of the GIPA Act.
[5]
Perceived irregularities in the identity of the Respondent's decision-maker
The Appellant raises complaints against Ms Offner acting as the agency's decision-maker. These grounds of appeal echo submissions previously made to the Tribunal below as summarised at [116]:
116 The applicant alleged that the decision is not a "new" decision and that the respondent "made a jurisdictional error" and Ms Offner "demonstrated an erroneous approach" in making the decision, as:
(1) She was mistaken about the facts (or about the law) and the respondent did not apply s 93(5) of the GIPA Act. He appeared to argue that Ms Offner could not make this decision because she is less senior to the person who made the original decision;
(2) She took into account irrelevant factors or ignored relevant factors;
(3) She made the decision for an improper purpose; and
(4) She lacked capacity to make the decision.
The Appellant's contention appears to be that Ms Offner was not properly qualified to make the relevant decision of 20 September 2021 as she was insufficiently senior and indeed less senior than the person who had made the previous internal review determination.
The seniority of Ms Offner is not relevant to any question going to the correctness of her decision. There is nothing to doubt that Ms Offner was anything other than duly authorised to make the determination of 20 September 2022.
Being duly authorised to determine the access request, there is no reason to suppose that Ms Offner was not an appropriate person to reconsider the application in accordance with the Respondent's legal obligations under the GIPA Act.
In essence, the qualifications and seniority of Ms Offner are not relevant to any question affecting the Tribunal's Decision. The Tribunal's task is to make the correct and preferrable decision having regard to the material before it and the identity of the agency's decision-maker is irrelevant to that task.
Accordingly, we dismiss the grounds of appeal and contentions in this category.
[6]
Late service of the statement of Ms Offner
Much of the written submissions and many of the grounds of appeal are directed to the Appellant's complaint about the late service of Ms Offner's statement. We have addressed the way in which the Tribunal dealt with this issue and its reasons for doing so above.
We are not persuaded that there was any irregularity or denial of procedural fairness in the way in which the Tribunal conducted the hearing and permitted the late service of Ms Offner's statement.
We note, the Tribunal has broad powers under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to determine its own procedures (s 38(1)), to inquire into and inform itself on any matter in such manner as it thinks fit (s 38(2)), to act with as little formality as the circumstances of the case permit and 'according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms' (s 38(4)), and ensuring that all relevant material is disclosed to the Tribunal so to enable it to determine all of the relevant facts in issue in any proceedings (s 38(6)(a)).
We are not persuaded the Appellant suffered any prejudice from the late service of Ms Offner's statement, the Tribunal's acceptance of that statement as evidence, nor the refusal to grant the Appellant an adjournment of the first day of hearing.
As stated by the Tribunal at [30], the information in the statement was not significantly different to that set out in the decision dated 20 September 2021 and the Appellant was not taken by surprise by its contents. The Tribunal also observed that the Appellant had addressed the question of searches at length in his initial submissions and those dated 13 July 2022.
Further, the Appellant was able to cross examine Ms Offner and we are not persuaded the Appellant suffered any prejudice in that regard.
In conclusion, we are not satisfied that the Tribunal erred in any of the ways contended by the Appellant in respect of these matters.
[7]
Grievances as to how searches were undertaken by the Respondent.
The Appellant raises in various ways concerns about the Tribunal's finding that reasonable searches were conducted and that no further information was withheld by the Respondent. Many of the grounds appear to go to this matter.
In summary, the Appellant wishes to put forward the following contentions:
1. Ms Offner did not undertake certain searches herself, and relied on staff of the Respondent to undertake searches of the Respondent's records;
2. The Tribunal accepted Ms Offner's, alleged, 'hearsay evidence' as to the searches undertaken by staff of the Respondent; and
3. The Tribunal applied the wrong principles when reviewing the decision that no further information was withheld.
In our view, the first two contentions clearly do not involve any questions of law and we see no basis for granting leave to appeal the findings of fact made as there appear to be ample support for them in the evidence and the Appellant has not demonstrated any basis for those findings being clearly wrong.
As to the proposition that the wrong principles were applied, we note that the Tribunal correctly identified the relevant provisions of the GIPA Act (at [130] - [147]) and, in particular, provisions relating to the review of decisions that information is not held: at [149] - [158].
We are not persuaded that the Appellant has identified any error in the way in which the Tribunal applied these legal principles. Further, we see no error in the approach of the Tribunal to the consideration of what standard was required by s 53 of the GIPA Act for the conduct of reasonable searches.
Section 53(2) of GIPA Act requires an agency to undertake 'such reasonable searches as may be necessary to find any of the government information applied for' and to conduct those searches using 'the most efficient means reasonably available to the agency'.
In this regard, the decisions of the Tribunal have confirmed that s 53 imposes a standard of 'reasonableness' with respect of the searches required to be undertaken rather than any absolute or strict standard. The reasonable standard is an objective one, not the standard of an 'obsessive, mistrustful, perseverative or belligerent observer': see CLT v Secretary, Department of Education [2022] NSWCATAD 34 at [40]; Ugur v Commissioner of Police [2022] NSWCATAD 396.
We see no error in the approach of the Tribunal in this regard. Accordingly, we dismiss the grounds of appeal and contentions in this category.
[8]
Procedural fairness concerns
The Appellant takes issue with the conduct of the hearing in certain respects and alleged, we take it, that he was denied procedural fairness. This would amount to an error of law.
For example, the Appellant raises concerns that he was repeatedly prevented by the Tribunal from making his closing submission in a way that was inappropriate. Other contentions raised by the Appellant over several grounds, for example, see ground 6, 7, 43 and 44 of the Appellant's Notice of Appeal, raise issues of procedural fairness and the conduct of the proceedings on the final day of the hearing.
It should be noted that, as recorded by the Tribunal at [74] - [80], the Appellant sought to rely upon a large volume of additional material filed outside the timetable in advance of the resumed hearing on 16 September 2022. The Tribunal allowed this additional material but determined it to be irrelevant to the issues to be determined on administrative review.
In terms of procedural fairness, we see no error in the way in which the Tribunal dealt with the matter. The Appellant was given ample opportunity to make submissions and to attempt to demonstrate the relevance of the material. To the extent it may be relevant, we agree with the Tribunal as to the lack of relevance of this material.
Accordingly, we find no error in the approach to the Tribunal in dealing with this material of the Appellant at the hearing.
Otherwise, the generalised assertions of lack of procedural fairness have not been made out by the Appellant. It is difficult to deal with these submissions in the absence of proper particularisation. The Appeal Panel has considered the way in which the proceedings were conducted and finds no error in the approach of the Tribunal.
The Tribunal afforded each party the opportunity to file material and make written and oral submissions. The Appellant availed himself of this opportunity. This included a full opportunity to cross-examine the Respondent's witness. He provided extensive oral submissions over the course of the two days of the hearing.
In conclusion, we reject the Appellant's submission that there was some denial of procedural fairness and reject these grounds of appeal and contentions.
[9]
Schedule of documents
The Appellant's submissions under this heading (see for example grounds 27, 31 and 42 of the Appellant's grounds of appeal) appear to be that the Tribunal erred because it permitted the Respondent to not provide a list of documents to him.
The Appellant also complaints that the Tribunal's reference to Walker v Northern Beaches Council [2021] NSWCATAD 251 (see at [159]) is irrelevant.
The Tribunal at [159] stated the following:
159 In relation to the applicant's complaint that he should have been provided with an index of documents provided to him (which are contained in the respondent's open tender bundle), I note that the creation of an index or list of documents sought in the GIPA request has been held to be outside the scope of a GIPA request: Walker v Northern Beaches Council [2021] NSWCATAD 251 at [107]-[118].
We also note that the Tribunal at [59] summarised the Respondent's schedule of documents:
59 Ms Mattes stated that in response to the GIPA request, respondent prepared a Schedule of Documents, which sets out 6 distinct categories of information. They have released documents in full in relation to categories 2 and 5, but there is a dispute over the documents described in categories 1 and 6 and the personal information of third parties (which has been redacted). The issue for determination by the Tribunal is whether the redactions, which were made under cll 3(a), 3(b) and 6 of the Table to s 14(2) of the GIPA Act, are appropriate.
In respect of documents identified within the scope of categories two and five, they were released to the Appellant in full. The Respondent also determined, as upheld by the Tribunal, that no documents were held in response to categories three and four.
That only left documents in categories one and six. Documents responsive to categories one and six were provided to the Appellant with minor redactions of personal information. These redactions in essence amounted to the decision of the Respondent to refuse access to information that was then the subject of the Tribunal's review.
As correctly stated by the Tribunal, there is no obligation on the part of the Respondent to prepare an index of the records to which it provided the Appellant access under the GIPA Act.
The Tribunal's reference to Walker v Northern Beaches Council was not in error. In that case, the Respondent produced a large volume of documents to the Appellant. In the circumstances, where the Tribunal believed that the Respondent had conducted reasonable searches, the Tribunal took the view that there was no utility in the Respondent making a list of the documents it already had reproduced to the Appellant.
A similar situation arises here. Where the Appellant in effect already had all of the relevant documents but with some redactions, there was little point or utility in requiring a list of the documents.
Accordingly, we reject these grounds of appeal and contentions in this category.
[10]
Misapplication of sections 54 and 54A of the GIPA Act
The Appellant contends that the Tribunal erred in law by misapplying sections 54 and 54A of the GIPA Act. The Appellant refers to the Tribunal's reasons at [11], [12] and [103]. Those paragraphs are as follows:
11 However, the respondent consulted with the Department of Home Affairs (the successor the Department of Immigration) as they held a number its files relating to the FOI application. That Department replied that it generally had no objection to release of the documents under the GIPA Act, but that its current policy requires redaction of identifiers such as staff names, contact details and email addresses, as there have been documented cases of members of staff being harassed and receiving personal threats to their safety. It stated that it has a primary duty of care to ensure, so far as is reasonably practical, the health and safety of its offices under the Work Health and Safety Act 2011 (Cth).
12 The respondent noted that Dr S Smith and Dr A Morgan were consulted by the Department of Immigration regarding the release of their reports under the FOI Act, but stated that they did not consult with them for the purposes of the GIPA request as it appeared that the applicant already had a copy of their reports.
103 For the reasons set out in the decision dated 20 September 2021, it was not reasonably practicable for the respondent to consult with all of these individuals. However, given the sensitive medical and personal context of the information, it might be expected that these individuals would have had reservations about the disclosure of their personal information to the applicant and, particularly any opinions expressed regarding sensitive medical matters. The respondent argued that this enhances the weight that the Tribunal should give to the considerations in cll 3(a) and (b) and that these considerations should be given significant weight.
We note that these submissions do not appear to relate to the grounds in the Appellant's Notice of Appeal, but we have decided to deal with them in any event.
Paragraphs [11] and [12] do not appear to have any relevance as they are simply providing an account of the factual background of the proceedings. Similarly, paragraph [103] also does not appear to have any relevance to any submissions the Appellant is seeking to make. The paragraph merely describes the extent of consultation undertaken by the Respondent and a summary of the Respondent's submissions.
The Tribunal did not undertake any real consideration of the terms of ss 54 and 54A of the GIPA Act, nor was such a consideration needed or required.
Accordingly, to the extent that the Appellant's submissions seek to raise this issue, we reject the contentions advanced.
[11]
Conclusion
In the result, leave to appeal shall be refused and the appeal dismissed.
[12]
Orders
The orders of the Appeal Panel are:
1. Leave to appeal refused.
2. Appeal dismissed.
[13]
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: 11 October 2023