Walker v Northern Beaches Council

NCAT Administrative and Equal Opportunity|2021-12-13

Information Commissioner) Bill 2009, Government Information, (Public Access) (Consequential Amendments and Repeal) Bill 2009, 17 June 2009 NSW Parliament, Explanatory Note, Government Information (Public Access) Bill 2009, 16 June 2009 Category: Principal judgment Parties: Philip Walker (Applicant) Northern Beaches Council (Respondent) Representation: Philip Walker (Self-represented) Wiltshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2021/00233726 Publication restriction: Nil

Introduction

This is an application by Philip Walker (the applicant) under section 110(1) of the Government Information (Public Access) Act 2009 (GIPA Act, the Act) for the approval of the Tribunal to make an access application to Northern Beaches Council (the agency) in circumstances where there is an order in force under that section that restrains him from making such an application without first obtaining such approval. This application was made to the Tribunal on 9 August 2021 (the application).
For the reasons set out following, the proceedings have been dismissed because there is not an application before the Tribunal that is capable of invoking its jurisdiction to grant approval to the applicant to make an access application. Section 110(4) of the Act provides that a person subject to a restraint order cannot apply to NCAT for approval to make an access application under section 110(1) without first serving notice of the application on the agency and the Information Commissioner. The prior service of those notices is a jurisdictional fact that must be in existence at the time such an application is made. There is no factual dispute in this case that the applicant did not serve notice of his intended application on the Information Commissioner prior to it being made.

The restraint order

The application arises from a decision of the Tribunal, differently constituted, made on 5 February 2015, under section 110(1) of the GIPA Act which restrained the applicant from making any access application to Pittwater Council without first obtaining approval of the Tribunal: Pittwater Council v Walker [2015] NSWCATAD 34. That order is not limited by reference to any of the matters referred to in section 110(3) of the Act, including to any specific period of time.
On 12 May 2016 Pittwater Council was amalgamated with the then Manly and Warringah Councils to form the Northern Beaches Council. Clause 34 of the Local Government (Council Amalgamations) Proclamation 2016 contains the transitional provisions that relate to the continuation or institution of proceedings by or against a new council created as a result of an amalgamation. Relevantly, clause 34(2)(b) provides that anything done by or in relation to a former council is taken to have been done in relation to the new council. By operation of that clause the order made by the Tribunal in Pittwater Council v Walker [2015] NSWCATAD 34 now restrains the applicant from making an application to the Northern Beaches Council without approval of the Tribunal: Walker v Northern Beaches Council [2021] NSWCATAD 277 at [9].

The proposed access application

In his application dated 9 August 2021, and in his submissions filed on 11 November 2021, the applicant describes his proposed access application to the agency as follows: "Public Access, into the future, to All Pittwater Council Websites, as at Amalgamation into the Northern Beaches Council"
The applicant's submissions of 11 November 2021 elaborate on this description in the following ways: GIPA Application "Public Access, into the future, to all Pittwater Council websites, as at Amalgamation into the Northern Beaches Council". Introduction 1. This GIPA Application is a simple one for public access to Government Information on the deleted Pittwater Council Website, that raises important issues of Principle in the management, storage and access to Government Information in the Digital Age, but the need for checks and balances in Government Agencies' Website Management and the responsibility for Government Agencies into the future for Digitally Stored Information. 2. While amalgamating the three council websites the decision was made NOT TO INCLUDE much of the Pittwater Council Website. Some files were included and some were not. All files should have been included in the merging of the websites. … 6. This Application requests Northern Beaches Council to take responsibility into the future for the maintenance and availability of this Government Information. … 20. … The reinstatement of the Full Pittwater Council Website Information onto the Northern Beaches Website requires a Policy Decision and computer work by the Information Technology Section of Council … … 23. … The request for the full Pittwater Council Website to be reinstated is NOT misconceived, arising from a real concern amongst many citizens as to the availability into the future of important Government Information, essential to the Orderly Planning and Governance in Local Government. Being able to follow through Control Plans, Approvals, Consent Conditions and Compliance Enforcement should not be made difficult by the local council … 30 Date of Amalgamation Pittwater, Manly and Warringah Councils were amalgamated on 12th May 2016. The Pittwater Council Website was decommissioned in February 2019. For the purposes of this GIPA Application, the decommissioning date is the date for "Amalgamation", as up until that time, Pittwater Council information was still being collected on their website. … 33 This GIPA Application does not seek access via a Hard Copy. … 36. All Pittwater Council Website Information should be available and maintained on the Northern Beaches Council website, allowing easy, continuous and reliable Public Access… … 38 A policy decision was made to decommission the Pittwater Council Website and a policy decision is required to reinstate the full Pittwater Council Information on the Northern Beaches Website. …
The access application is concerned with information held by the former Pittwater Council on the date of amalgamation. Pittwater Council is a "defunct agency" for the purposes of the GIPA Act because it was a local authority within the meaning of section 4(1) and Schedule 4 of the GIPA Act, being a "council" within the meaning of the Local Government Act 1993 which has now ceased to exist. Clause 14 of Schedule 4 of the Act deals with information held by defunct agencies which are styled as "former agencies" for the purpose of that clause. Relevantly to this case, when an agency ceases to exist any government information taken to be held by the former agency is instead taken to be held by the successor agency: clause 14(1)(a). The applicant's proposed access application is thus capable of being brought against Northern Beaches Council, it being the "successor agency" to Pittwater Council on which Pittwater Council's functions have devolved: clause 14(2)(a).

Material before the Tribunal and hearing

The applicant relied upon the following evidence and submissions: 1. the originating application filed on 9 August 2021, which was marked Exhibit A1; 2. submissions filed on 11 November 2021; 3. further submissions filed on 2 December 2021.
The agency relied upon the following evidence and submissions: 1. an Affidavit of Chris Davis, Manager, Information Management, Northern Beaches Council, affirmed 4 November 2021, which was marked Exhibit R1. That Affidavit includes the following evidence: … 4. It is my opinion that the proposed application is confusing, lacking in both merit and substance. 5. It is also misconceived in that to the extent that the application is seeking access to the old Pittwater Council website, I have made enquiries and have been advised that the Pittwater Council's website was built on the Squiz proprietary platform. They hold the intellectual property rights to the website. The website was decommissioned on 9 February 2019 and no archive was kept by Council and nor is it likely that it would have been possible to keep. 6. The old website may be able to be located through web archive searches however that would be a matter for the applicant to pursue. 7. Documents that were available on the website were loaded from Pittwater Council's document management system. Pittwater Council's document management system content was loaded into Northern Beaches Council's document management system after the amalgamation. 8. The documents were migrated in July 2017 and the Pittwater Council document management system remained available to system administrators for a period of 12 months to minimise the loss of any information and/or metadata associated with the documents. Audits conducted at the time showed that no documents were lost, although it is not possible to guarantee a 100% success rate in this regard. 1. an Affidavit of Chris Davis, Manager, Information Management, Northern Beaches Council, affirmed 21 November 2021, which was marked Exhibit R2. That Affidavit includes the following evidence: 1. I have read the Applicant's response to the Respondent's submissions dated 11 November 2021. 2. From my knowledge and enquiries I have made, I say the following with respect to some of the statements made by the Applicant in the above referred submissions. 3. "the reinstatement of the full Pittwater Council website information onto the Northern Beaches website …" (paragraph 20) Without considering the technical issues which may be involved, any reinstatement of the Pittwater Council website would have to be done by somehow downloading "captures" from the internet archive which is already publicly available. As a result it would not be the restored Pittwater Council website but a recreation of what could be pieced together from the internet archive. 4. Council websites have not been intended to be historical documents but are what is known as "stateful" applications. They provide a snapshot at a particular point in time and can and will change over time. Reliance upon a superseded website can be very misleading and as such there is no real utility in keeping them alive. 5. "For the purposes of this GIPA application, the decommissioning date is the date for Amalgamation …" (paragraph 30) The Pittwater website was built on the Squiz proprietary platform. It belongs to Squiz and no archive was kept at Council. On the assumption that Squiz have kept a copy of the website, which in my opinion is very unlikely given how long ago it was, Squiz would need to be paid to restore and maintain the website. This would not be, in my opinion, a reasonable allocation of Council resources. 6. Moreover the relevant directive from NSW State Archives and Records which provides permission for Council to destroy records is known as GA39 which relevantly states …at 16.07.06: "Structure and Organisation of Public and Internal Websites Records that demonstrate the structure and organisation of the organisation's public websites (i.e. externally accessible websites that document the role and services of the organisation) and records of substantial changes made e.g site maps. Retain until superseded, then destroy" As the Pittwater Council website has been superseded there is no legal responsibility to retain it nor any business value to do so. 1. submissions filed on 1 November 2021; 2. further submissions dated 26 November 2021.
In addition, in evidence is a letter to the Divisional Registrar, dated 25 August 2021, from a delegate of the Information Commissioner, which was marked Exhibit IC1. That letter relevantly states: … I wish to advise that the applicant did not serve notice of this application to the Information Commissioner under s. 110(4). The Information Commissioner has a right to appear and be heard in proceedings including appeal proceedings before the Tribunal under s. 104(1) of the GIPA Act. The Commissioner has determined to not exercise her right to be heard on this application and would ask to be removed from future correspondence on this matter.
The applicant attended the hearing in person and gave oral evidence under affirmation. The agency was represented by its solicitor. Neither party called upon Mr Davis to give evidence at the hearing. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.

Applicant's primary submissions

As is apparent from the description of his proposed access application, the applicant contends that the agency made policy decision to delete the former Pittwater Council website in February 2019. He contends that as a result of that decision he and other members of the public are unable to easily source information that had been posted the website by the former Council up to the date of amalgamation on 12 May 2016 as they were able to do prior to the deletion of the website. This includes information related to development control plans made, and the details of development approvals given, by the former Council. He contends that an access application made under the GIPA Act in the terms he proposes is capable of resulting in a policy decision by the Northern Beaches Council to reinstate the Pittwater Council website as it stood at the date of amalgamation, which is in the public interest, because it "raises important issues of principle concerning the management, storage and access to government information in the digital age", and will enable citizens "to participate in local government". He contends on this basis that the Tribunal should grant approval for him to make an access application to the agency in the terms he proposes.
He contends that in deciding whether or not to grant approval for him to make his access application the Tribunal is not to approach the matter on the basis that its' role is "to determine the GIPA request". I understand this submission to mean that it is not the Tribunal's role to determine if the application is a valid application for the purposes of section 51 of the GIPA Act, or how the application would be decided by the agency in accordance with section 58 of that Act and its' consequential and related provisions.

Agency's submissions

The agency contends that the restraint order was made due to the general lack of merit in the applicant's access applications to Pittwater Council up to that time and the unreasonable demand those access applications placed on the former Council's resources. It submits that as a consequence of the restraint order there is an onus on the applicant to give "strong, cogent reasons in support" of an application for approval to make an access application, and to show that his proposed access application does not lack merit or substance and is not frivolous or misconceived. It is submitted that the applicant has failed to discharge that onus and that as a consequence the application ought to be refused.
The agency submits that the Tribunal must determine whether or not to grant approval to the applicant to make his proposed access application having regard to the terms of sections 110(4), (5A), and (6) of the GIPA Act.
With respect to section 110(4), the agency contends that the application is not properly before the Tribunal as the applicant failed to serve the Information Commissioner with notice of the application before it was made.
With respect to section 110(5A) the agency contends that the application is lacking in merit and is misconceived and lacking in substance. In this regard the agency contends that the proposed application is not a valid access application for the purposes of section 41 because it is "unclear, vague, confusing and potentially very broad" contrary to section 41(1)(e). In this respect it is submitted that the term "public access into the future" "is vague at best". Additionally, it is submitted that the applicant is attempting to achieve by his proposed access application an agency policy change that would provide for access in perpetuity to the former Pittwater Council website as it stood on the date of amalgamation which is "more than an application for government information" and is "beyond power" because the GIPA Act does not give the applicant or the Tribunal power to require an agency to resolve as a body politic to make a certain policy.
It is also submitted with respect to section 110(5A) that the proposed access application is a futility because the agency would decide the application: 1. by determining pursuant to section 58(1)(b) of the GIPA Act that it does not hold the information because it relates to a "closed or redundant" website which is no longer available on the web at the former URL and/or domain names, and the URL and domain names are not something that Council maintains or hosts. This is because the former Council website was built on a third party proprietary platform known as Squiz which was decommissioned in February 2019. As a consequence, it is submitted that the agency "does not hold or have the right to hold an archive of the website". In this respect, the agency draws a distinction between the former Council website which is the subject of the applicant's proposed access application and the documents that were posted to that website. It contends that some documents posted to the former website were uploaded from the former Council's document management system which was migrated to the agency's document management system as a result of the amalgamation. These documents are therefore still 'held' by the agency in its document management system but no longer exist in the form that is the subject of the proposed access application. 1. by determining pursuant to section 58(1)(c) and 59(1)(e) of the GIPA Act that (at least) some of the information sought by the applicant in his proposed access application is already publicly available. In this respect it is submitted that a 'simple internet search" would locate many "old Pittwater Council" documents which would have been hosted on the former Pittwater Council website. In this regard it is contended that the three former councils which amalgamated still retain their original Local Environmental Plans (LEP), and some other policies that applied to the former local government areas which are available on other websites as an overall Northern Beaches Council Local Environmental Plan and Development Control Plan are yet to be developed. Additionally, it is contended that the former Pittwater Council website is publicly available via web archives that are hosted by entities other than Council and so is available to the applicant via these means.
With respect to section 110(6) it appears to be contended that the Tribunal ought to exercise the power conferred by that section to order that the applicant is not permitted to apply to NCAT for approval to make an access application because he has repeatedly made applications for approval that are lacking in substance. In relation to this issue the agency contends that there is an onus on the applicant, rather than the agency, to show that his previous applications for approval to make access applications were not lacking in substance.

Applicant in reply

In reply to the agency's submissions the applicant contends that the application is not an unreasonable demand on council resources because "following a policy decision" by the agency it is an "IT section key board 'click and switch", and he does not require a "hard copy" of the website to be given to him or any "new document" to be produced.
In relation to whether the application is properly before the Tribunal the applicant submits, apparently with respect to earlier similar applications he has made, "the Information Commissioner attended the first section 110 GIPA Application Directions Hearing and has shown no interest since" and that he provided the Information Commissioner "with a hard copy of the file in this matter on 1 December 2021".
In response to the agency's submission that the proposed application is more than an application for government information and beyond power the applicant contends that his proposed application is "an important application as it raises the question of the secure maintenance of information into the future" which is a "real concern" amongst members of the public because it is "critical to orderly planning and governance". He submits it is the role or function of the GIPA Act to "allow[] and enourage[] access to government information for the purpose of open and transparent government".
The applicant denies that the proposed application is unclear, vague, and confusing, submitting that it is specific and concrete in its call for the reinstatement of the Pittwater Council website as it stood as at the date of amalgamation on the agency website. In response to the agency's submission that it does not hold the information, the applicant submits that this is "the crux of the issue" because the information has been deleted and needs to be restored. In response to the agency's submission that the information is already publicly available the applicant contends that the information from the former Council website that may still be found on line is "hit and miss", that there is no guarantee that this information will be retained into the future, and that a "charity archive" with warnings of missing pages is not suitable storage for government information relied on for orderly planning and governance.
In relation to the agency's section 110(6) submissions, the applicant contends that since the restraint order was made he has made 12 prior applications under section 110(1) for approval to lodge an access application, each of which has been successful, which demonstrates that his applications are reasonable and have merit, and involve no misuse of the GIPA Act access to information provisions. He contends that it is the agency that bears the onus of putting before the Tribunal previous applications for approval to make an access application that were determined by the Tribunal to be lacking in substance.

Jurisdiction and applicable law

Section 110 of the GIPA Act provides: 110 Orders to restrain making of unmeritorious access applications (1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a "restraint order") if NCAT is satisfied that: (a) at least 3 applications (to one or more agencies) in the previous 2 years have been made that lack merit, and (b) the applications were made by the same person or by any other person acting in concert with the person. (2) An access application is to be regarded as lacking in merit if: (a) the agency decided the application by refusing to deal with the application in its entirety, or (b) the agency decided the application by deciding that none of the information applied for is held by the agency, or (c) the access applicant's entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable). (3) A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to any one or more of the following: (a) a specific time period, (b) a specific number of applications, whether in total or to particular agencies, (c) particular kinds of information, (d) particular agencies. (4) A person who is subject to a restraint order cannot apply to NCAT for approval to the making of an access application by the person without first serving notice of the application for approval on the agency concerned and the Information Commissioner. (5) An application for a restraint order against a person may be made by an agency that receives an access application from the person (whether or not the agency has decided the application) or by the Minister or the Information Commissioner. (5A) In deciding whether to approve the making of an access application by a person the subject of a restraint order, NCAT is to consider, without limitation, any of the following: (a) whether the proposed application is lacking in merit, (b) whether the proposed application is frivolous, vexatious, misconceived or lacking in substance, (c) whether the applicant has engaged in conduct designed to harass, to cause delay or detriment, or to achieve another wrongful purpose. (6) NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance. (7) While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application.
The Tribunal's power to deal with this application arises under the power implied by section 110(1) of the GIPA Act to grant approval to a person subject to a restraint order to make an access application. The power is not express: it is implied by the words that permit the Tribunal to make a restraining order (… "without first obtaining the approval of NCAT"…).
An application for approval to make an access application is a "general application" for a "general decision" within the meaning of sections 29(3) and (4) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) involving the exercise of NCAT's "general jurisdiction" as that is defined in section 29(1) of that Act. That is because section 110(1) "enables" the Tribunal to grant the approval sought by the applicant and the matter does not fall within the administrative review jurisdiction as it does not involve the review of a decision of an administrator within the meaning of section 9 of the Administrative Decisions Act 1997.
The power to grant approval to make an access application is a discretionary in nature, which may implied from the fact that the primary order making power is discretionary in nature (the Tribunal "may" make a restraint order). The discretion is to be exercised having regard to the relevant considerations set out in section 110(5A), but is otherwise unfettered. Nevertheless the discretion must be exercised judicially.
In Walker v Pittwater Council (2016) NSWCATAD 78 at [10] Deputy President Hennessy (as she then was) said with respect to the discretion: "[a]s with all discretionary powers, the power implied under section 110(1) to approve or not approve an access application must be exercised reasonably and in accordance with the subject matter, scope and purpose of the statute", citing as authority for that proposition: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26]; and, Lo v Chief Commissioner of State Revenue (2013) 87 ALJR 618 at [9].
The object of the GIPA Act is found in section 3 which states: (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 an encouraging the proactive release of government information by agencies, and (b) by 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.
This object is amplified with a statutory command, contained in section 3(2) which provides: (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information
The term "government information" is defined in section 4 of the GIPA Act to mean "information contained in a record held by an agency". The term "record" is defined in clause 10 of Schedule 4 of the Act. It means, relevantly, "any document or other source of information compiled, recorded, or stored in written form or by electronic process, or in any other manner or by any other means: clause 10(1). It includes a copy of the record: clause 10(2).
The object of the GIPA Act is operationalized by various 'machinery' provisions of that Act set out in Part 2. Notable among these provisions is s 9(1) which provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure.
Part 4, Division 1 of the GIPA Act concerns the procedure for making an access application. In this connection section 4 defines an "access application" to mean an application for access to government information under Part 4 that is a valid access application under that Part. In this regard, section 41 relevantly provides: 41 How to make an access application (1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the "formal requirements") for access applications: … (e) it must include such information as is reasonably necessary to enable the government information applied for to be identified.
Part 4, Division 4 of the Act sets out the procedure an agency is to follow in deciding an access application. Relevantly, section 58 provides: 58 How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. …

Consideration

In order to determine the outcome of this application the Tribunal must consider the following questions: 1. Does the Tribunal have power to deal with the application in circumstances where the Information Commissioner was not served with notice of the proposed application prior to the application being made? 2. If the answer to (a) is "yes", should the application nevertheless be dismissed because of the applicant's failure to serve notice of his proposed application on the Information Commissioner prior to it being made? 3. If the answer to (a) is "yes" and (b) is "no", should the Tribunal exercise discretion to give approval to the applicant to make his proposed access application? 4. Should the Tribunal order pursuant to section 110(6) that the applicant is prohibited from making any further application to the Tribunal for approval to make an access application?

Does the Tribunal have the power to deal with the application?

Section 110(4) of the GIPA Act provides, relevantly, that a person subject to a restraint order "cannot apply" to NCAT for approval to make an access application "without first serving" notice of the application on the agency concerned and the Information Commissioner.
It would appear that the applicant served a copy of the application on the agency when it was made to the Tribunal (the agency is listed as the respondent to the application on the application form). However, there is no issue that the applicant did not serve notice of the application on the agency or Information Commissioner before the application was made, nor did he serve the Information Commissioner with a copy of his application at the time it was made. The Tribunal's file reveals that after the application was made the Registrar provided a copy of the application to the Information Commissioner. The correspondence to the Registrar from the delegate of the Information Commissioner dated 25 August 2021 is in response to the Registrar's correspondence enclosing a copy of the application. The applicant also submits, without challenge, he provided the Information Commissioner with a copy of his application and all documents filed in the proceedings on 1 December 2021.
The agency takes no point in relation to whether the applicant served it with notice of the application prior to it being made, but submits that his failure to serve the Information Commissioner with such prior notice means that the application is not properly before the Tribunal and must be dismissed.
Section 110(4) creates an "imperfect obligation" in the sense stated by the plurality of the Court in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 at [9] in that it imposes a form of restriction or bar on the making of an application, but the Act does not contain express provisions that set out the consequences of a failure to comply with the requirements of that section. It therefore falls to the Tribunal to ascertain what consequences, if any, flow from a failure to comply with these requirements.
The agency's challenge to the application based on section 110(4) therefore requires the Tribunal to determine: 1. whether prior notice of the intended application to the agency and Information Commissioner is a jurisdictional fact or pre-condition to the exercise of power the absence of which deprives the Tribunal of jurisdiction to deal with the application; or 2. whether it is a procedural condition, non-compliance with which is to be treated as an irregularity that does not affect Tribunal's jurisdiction to deal with an application, but engages the Tribunal's powers in relation to the conduct of proceedings before it; 3. whether the Tribunal has the power to, and should, dispense with compliance with the condition given that the Information Commissioner has elected to take no part in the proceedings in any event; 4. whether the failure to serve notice of the application on the agency and Information Commissioner can be cured in any of the following ways: 1. by serving a copy of the application on the agency when it is made; 2. by the Divisional Registrar serving a copy of the application on the Information Commissioner after it is made; 3. by the applicant serving a copy of the application and other documents filed in the proceedings on the Information Commissioner in the course of the proceedings; 4. by the Information Commissioner notifying the Registrar of the Tribunal that she does not intend to exercise the right conferred by section 104(1) to be heard in the proceedings.
In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 (Chase Oyster Bar) at [163] to [175] McDougall J provides a helpful summary of principles applicable in determining if a matter is a jurisdictional fact: 163 As Gleeson CJ and McHugh J observed in Abede v The Commonwealth (1999) 197 CLR 510 at 523-524 [24], "[j]urisdiction is the authority to decide". 164 A "jurisdictional fact" is, in general terms, "a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question" (Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at 139[43). 165 Speigleman CJ pointed out in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 63-64[37] that "[t]he parliament can make any fact a jurisdictional fact, in the relevant sense: that must exist in fact (objectively) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality)". As his Honour said at 64[38], those two features "are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense". The interrelationship arose because essentiality may often suggest objectivity. 166 Whether something is a jurisdictional fact is ascertained by a process of construction, undertaken in the usual way. The court will have regard to the full statutory context and to the object that the legislation seeks to achieve. One asks, in essence, whether the legislature intended the presence or absence of the factual condition should invalidate an attempted exercise of power: Project Blue Sky In v Australian Broadcasting Authority (1998) 194CLR 355 at 390-391[93] (McHugh, Gummow, Kirby and Hayne JJ).
Chase Oyster Bar involved a dispute arising from a decision of an adjudicator under the Building and Construction Industry Security of Payment Act 1999. Section 17 of that Act provides (relevantly): (1) A claimant may apply for adjudication of a payment claim (an "adjudication application") if: … (b) the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount. (2) An adjudication application to which subsection (1)(b) applies cannot be made unless: (a) the claimant has notified the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant's intention to apply for adjudication of the payment claim, and (b) the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant's notice.
The first defendant did not give notice within the 20 day period for which s 17(2)(a) provided but nevertheless made an adjudication application. The second defendant, the adjudicator, was appointed, and made a determination that the first defendant was entitled to the amount claimed with interest. The Court held, relevantly, that the decision of the adjudicator, made in the absence of a valid adjudication application, was invalid due to jurisdictional error. However, that decision was arrived at for different reasons.
Justice McDougall concluded at [178] to [181] and [211] ff that the notice required by s 17(2)(a) was a jurisdictional fact that had to have been in existence before an application could be made, and that the exercise of power by the adjudicator in the absence of that fact was made without statutory authority. Speigleman CJ did not regard the s 17(2)(a) requirement as a jurisdictional fact. He determined at [35] that the requirement was a "contraction in the content of what would be the power otherwise conferred", being the right to make an application under s 17(1) and that it was an "integer or element of that right". On this basis he concluded that the adjudicator did not have jurisdiction to determine "an application" which had been made without compliance with s 17(2)(a). In his judgement, Basten J at [96] agreed with Speigleman CJ and McDougall J that compliance with the time limit specified in s 17(2)(a) was an "essential condition for a valid adjudication application" stating that "[t]he language of the provision ("cannot be made unless") is intractable". His Honour's conclusion appears to be based on the doctrine of jurisdictional fact (par 96 appears under a sub-heading "essentiality of condition") although that is not explicit in his judgement.
With respect to the conclusion reached by Speigleman CJ, Mc Dougall J said at [180] and [181] of his judgement: 180 With respect, I am not sure that the distinction is a real one, at least in terms of s 17(2)(a). There is encompassed in that provision a requirement of notification within a specified period. Whether or not that notice is given is a matter of fact. If the fact of notification, within the specified period, is absent then the prohibition in the introductory words of the subsection applies. 181 I accept … that the giving of notice in accordance with s 17(2)(a) is an essential element of the right to make an adjudication application in accordance with s 17(1). But it does not follow that the existence in fact of the requisite notice is not to be characterised as a "jurisdictional fact"
In his judgment at [40] to [46] Speigleman CJ sets out the analytic process to be followed in determining if a matter is a jurisdictional fact or condition that must be satisfied in order for there to be a valid exercise of power: 40 The first textual indicator that is always of significance is the mode of expression of the element directly in issue. Substantial, indeed often, but not always, determinative weight must be given to language which is in mandatory form. See for example: David Grant v Westpac … where the formulation was "may only" City of Enfield … where the formulation was "must not be granted" SAAP v Minister for Immigration and Multicultural Affairs … where the language "must give" was described as "imperative". 41. The element under consideration in the present case - "cannot be made unless" - has similar mandatory import. To adapt the words of Gummow J in David Grant v Westpac at 277: "it is impossible to identify the function or utility of the words - "cannot be made" - if (they do) not mean what (they) say". 42. The second aspect which must be taken into account, in addition to the text, is the structure of the legislative scheme. This is the context that must be taken into account in the first instance, not only after some ambiguity is identified in the directly operative words... There are two particularly relevant considerations for present purposes. First, the point in time in the decision-making process at which the element under consideration occurs. Second, the treatment of time limits in the scheme as a whole. 43. With respect to the first aspect, it is particularly relevant that the element occurs at the application stage of the decision-making process. It does not involve consideration of matters which can arise during the course of the decision-making process itself. A traditional formulation of the relevant distinction is whether the relevant element is "a fact to be adjudicated upon in the course of the inquiry" as distinct from an "essential preliminary to the decision making process" ... 44. As I pointed out in Woolworths v Pallas Newco … "the word 'preliminary' does not, in this context, refer to a chronological sequence of events, but to matter that is legally antecedent to the decision-making process… [and] [t]he extrinsic or ancillary or preliminary nature of the relevant fact makes it more likely the fact is jurisdictional." … 46. The significance of this factor is reinforced by a second aspect of the legislative scheme. The legislation provides for a precise sequence of time stipulations… (citations omitted in part)
Applying these principles to the construction of s 110(4), the object of the GIPA Act and in particular section 3(1)(b) must be kept firmly in mind. The statutory command contained in s 3(2) requires NCAT to interpret and apply the provisions of the GIPA Act so as to further this object, and to exercise any discretion conferred by that Act, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information.
A restraint order made under section 110(1) of the GIPA Act restrains the exercise of the right conferred on a person under section 9(1) of the GIPA Act in respect of a specified agency or agencies, subject to any limitation that may be imposed on the restraint order pursuant to section 110(3), by preventing them from making an access application under section 41 without first obtaining the approval of the Tribunal. An order made under section 110(1) does not extinguish the right conferred on a person by section 9(1) either expressly or by implication. That is apparent from the fact the person subject to the restraint order may apply to the Tribunal for approval to exercise the right. The right must therefore continue in existence despite the regulation of its exercise.
The stated purpose of 110 is to restrain the making of unmeritorious access applications. That purpose appears in s 110(1)(a), in the chapeau of s 110(2), and in the section heading, which may be taken into account by operation of s 34(2)(a) of the Interpretation Act 1987. That purpose is not elaborated on further in the GIPA Act itself, nor does the Second Reading Speech or the Explanatory Notes that accompanied the introduction of the GIPA Bill shed any further light. [1] However, it may be reasonably inferred from the statutory scheme that one means by which Parliament sought to achieve this objective was by requiring a person subject to a restraint order to give notice of a proposed application for approval to make an access application to the subject agency and the Information Commissioner prior to making the application.
Sections 110(1) and (4) prescribe the potentially three step process that must be followed by a person subject to a restraint order if they wish to make an access application Part 4 of the Act. Those steps are: Step 1: the giving of notice of the proposed application to the subject agency and the Information Commissioner Step 2: the obtaining of approval from NCAT to make an access application. This requires an application to NCAT for such approval to be made under section 110(1). Step 3: if approval to make the proposed access application is given by NCAT, the applicant may make an access application to the agency in the usual way.
It is to be observed that the restriction on the applicant's right to make an application to NCAT for approval to make an access application imposed by s 110(4) is expressed to be mandatory in the negative sense ("a person… cannot apply … without first") as it was in Chase Oyster Bar. The temporal focus for s 110(4) is the period before an application under s 110(1) is made, not "at the time" or "after" the application is made, although no specific antecedent time period is specified. Nor is any specific form of notice prescribed, although that is not material in this case.
The s 110(4) requirement is a matter that goes to the entitlement of the applicant to make an application, and therefore to the validity of an application for approval made under s 110(1). In the words of Speiglemen CJ, it is "legally antecedent" or an "essential preliminary" to the making of an application. It is not a matter that arises for consideration in the course of the decision making process. As was also the case in Chase Oyster Bar it is in the form of a statutory command to the prospective applicant rather than being specifically addressed to NCAT's jurisdiction to deal with such an application.
The applicant has a subsisting right to make an access application for government information which is to be given considerable weight given the object of the GIPA Act contained in s 3(1) and the statutory command to the Tribunal contained in s 3(2). However, he is subject to a restraint order imposed under the Act because of previous unmeritorious access applications. His ability to exercise that right is now subject to the three step process set out above. There is no basis in the legislative scheme to conclude that Parliament did not intend that compliance with this three step process was mandatory, despite the mandatory words of section 110(4). The relevant words of section 110(4) have no other function or utility in the legislative scheme unless they mean what they say. There is no power in the GIPA Act for the Tribunal to dispense with the notice requirement, having regard to the position taken by the agency or Information Commissioner, or on any other basis. Nor is there any provision which would permit non-compliance with section 110(4) to be cured after an application was made. There is therefore no discretion in these respects that is capable of being exercised in the applicant's favour in accordance with the statutory command contained in s 3(2) of the GIPA Act.
NCAT's power to deal with an application that has not been made in accordance with section 110(4) also requires analysis of the statutory scheme under which NCAT is established, which governs the making of applications to NCAT for a decision, and the conduct of proceedings in relation to an application.
Section 28(1) of the NCAT Act provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation. It is a jurisdictional error for the Tribunal to purport to exercise power where it does not have jurisdiction to do so, irrespective of any position taken by the parties to a proceeding. NCAT must determine this issue for itself: see for example, Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [38]; S & G Homes Pty Ltd t/as Pavillion Homes v Owen [2015] NSWCATAP 190 at [38] and [54]; Baserite Constructions Pty Lyd v Tanios [2020] NSWCATAP 77 at [50], applying Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23] to [31], [40], [42] to [44] and [62] to [80].
An application for approval to make an access application is a "general application" because it is an application for a "general decision" determining a matter over which NCAT has general jurisdiction: section 29(3) of the NCAT Act. NCAT's general jurisdiction is conferred where legislation (other than the NCAT Act and Rules) enables the Tribunal to make decisions or exercise other functions, whether on application of its own motion, of a kind specified in the legislation in respect of that matter: section 29(1) of the NCAT Act. Section 29(2) also confers jurisdiction on the Tribunal in the exercise of its general jurisdiction to make ancillary and interlocutory decisions in a proceeding, and to exercise such other functions as are conferred or imposed under the NCAT Act or enabling legislation in connection with the conduct or resolution of such proceedings. However, nothing in s 29 permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act: s 29(5).
The term "ancillary decision" is defined in section 4 of the NCAT Act. It means a decision of the Tribunal made under legislation that is preliminary to, or consequential on, a decision determining proceedings. It includes a decision concerning whether the Tribunal has jurisdiction to deal with a matter. The term "interlocutory decision" is also defined in section 4. Relevantly, it includes a decision made under legislation concerning the summary dismissal of proceedings.
NCAT's statutory practice and procedure is set out in Part 4 of the NCAT Act and in Part 6 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules). Division 2 of Part 4 of the Act concerns the commencement of proceedings, which includes sections 39 and 40. Section 39 defines what is meant by the term "application". It provides: 39 What constitutes an application For the purposes of this Act, "an application" to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which the enabling legislation provides for a matter to be brought to the attention of a Tribunal for a decision. Section 40 sets out, relevantly, how an application is made to the Tribunal. It provides that an application is to be made in the time and manner prescribed by enabling legislation or the procedural rules. Apart from the terms of section 110(1) of the GIPA Act itself no "manner" for the making of an application for approval to make an access application is prescribed in that Act.
Rule 23 of the NCAT Rules concerns the making of general applications. It relevantly provides: 23 GENERAL APPLICATIONS (1) A general application must be - (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged with the Registry, and (d) accompanied by the applicable fee (if any) for the application. … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period (b) in any other case - within 28 days from the day on which the applicant because entitled under the enabling legislation to make the application. …
Division 4 of Part 4 of the NCAT Act concerns the conduct of proceedings before the Tribunal. Relevant to the issue to be determined here are sections 53 and 55.
Section 53, relevantly, concerns irregularities in the commencement and conduct of proceedings. It relevantly provides: 53 Amendments and irregularities …. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with such an irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
Section 55 concerns the dismissal of proceedings. It relevantly provides: 55. Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) the applicant … withdraws the application to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant … has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
It is convenient to note at this point that in BDK v Department of Education and Communities [2015] NSWCATAP 129 an Appeal Panel held with respect to section 55(1)(b) at [66]: 66. In our view a reasonably broad approach should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are 'frivolous' or 'vexatious', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.
The reference to 'misconceived' and 'lacking in substance' as "relatively specific terms" derives from what was said about the meaning of those terms by Judicial Member Wright SC in Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25] and [26] as they appeared in section 73(5(g)(ii) of the Administrative Decisions Tribunal Act 1997, which is NCAT predecessor legislation. The term "misconceived" is to be construed as including a misunderstanding of legal principle, and the term "lacking in substance" is to be understood as encompassing an untenable proposition of fact or law.
Part 10 of the NCAT Rules sets out the functions of registrars of the Tribunal. Rule 41(1)(e) provides with respect to section 55 of the NCAT Act that a registrar may, at the direction of the President or a Division Head, make an interlocutory decision on behalf of the Tribunal to under section 55(1)(a) or (d) concerning the dismissal of the proceedings.
It will be apparent from this outline of the relevant provisions of the NCAT Act and Rules that neither confer any express power on the Registrar to reject or dismiss an application for approval to make an access application on the ground that notice of the application has not been given to an agency or the Information Commissioner prior to the application being made. Only the Tribunal can do so. The fact that the applicant completed an application form, and paid an application fee, which resulted in this matter remaining before the Tribunal up to the hearing therefore does not necessarily mean that there is an "application" before the Tribunal within the of meaning of s 39 if the matter has not been brought to the attention of the Tribunal for a decision in accordance with the enabling legislation, being the GIPA Act.
Despite the broad terms in which s 39 is expressed it is nevertheless clear from that section that the Tribunal's jurisdiction is only invoked if the attempted invocation is by the means the enabling legislation provides for the matter to be brought to the attention of the Tribunal for decision. In other words, to be a valid application, the initiating process must comply with the requirements for that type of application imposed by the enabling legislation. Section 39 does not stand alone. Section 110(4) of the GIPA Act imposes a condition precedent to the making of an application which is therefore not overcome by the breadth of s 39.
I also note the requirement in s 40 of the NCAT Act that an application be made within the "time" prescribed by the enabling act or procedural rules. As s 110 of the GIPA Act does not provide a time period within which an application for approval to make an access application must be made, NCAT Rule 23(3)(b) applies. The only way that it could sensibly do so is to construe compliance with s 110(4) as giving rise to the applicant's entitlement to make an application. That is, a prospective applicant "becomes entitled" to make an application for approval to make an application on the date notice is given to the agency and Information Commissioner, and has 28 days from that date to do so, unless the Tribunal extends this time under s 41 of the NCAT Act. The time requirement specified in s 40 of the NCAT Act cannot have meaningful effect unless the 110(4) notice requirement is construed as vesting the applicant's cause of action or entitlement to make an application for approval under s 110(1). This weighs heavily in favour of the notice requirement being a jurisdiction fact rather than a non-essential procedural condition that is capable of being dealt with in the course of a proceeding.
Additionally, it will be apparent from the outline of relevant legislative provisions that the NCAT Act and procedural rules do not provide the Tribunal with power to dispense with compliance with section 110(4). If such a restriction was imposed by the NCAT Act or rules non-compliance with the requirement would be treated as an irregularity pursuant to section 53(3). This irregularity would not nullify the proceedings arising from the application and permit an exercise of discretion as to whether the proceedings should be set aside pursuant to the provisions of section 55. The Tribunal might then have regard to a range of relevant considerations, including those set out at paragraph 41(d) above. But section 53 does not apply to the non-compliance with a procedural requirement imposed by enabling legislation, such as GIPA Act.
Other enabling legislation in relation to which NCAT exercises general jurisdiction also contain pre-conditions to the exercise of a right to make an application to the Tribunal, including section 48J of the Home Building Act 1989 which was considered by Appeal Panels of the Tribunal in S & G Homes Pty Ltd t/as Pavillion Homes v Owen [2015] NSWCATAP 190 (S & G Homes) and Maygood Australia Pty Ltd v The Owners - Strata Plan No 85338 [2020] NSWCATAP 237 (Maygood).
Section 48J is in the following terms: 48J Certain applications to be rejected The principal registrar of the Tribunal must reject any application to the Tribunal for determination of a building claim unless - (a) the principal registrar is satisfied that the subject matter of the building claim has been investigated under Division 2, or (b) the President of the Tribunal directs that the building claim be accepted without such an investigation having been made.
S & G Homes was an appeal from consent orders made by the Tribunal pursuant to section 59(1) of the NCAT Act. In short summary, section 59 confers power on the Tribunal to make orders to give effect to an agreed settlement of a dispute provided it is satisfied that it would have the power to make a decision in the terms agreed. It was contended by the appellant that the Tribunal lacked the power to make the consent orders made at first instance because the respondent's application to the Tribunal had been made without an investigation being conducted under Division 2 and in circumstances where there was no Presidential direction that permitted it to be accepted in the absence of such a direction.
After undertaking a detailed analysis of the statutory scheme of the Home Building Act 1989, the Tribunal dismissed the appeal at [66] deciding that s 48K is not a pre-condition to the Tribunal's jurisdiction to determine home building claims, and that as a consequence, the Tribunal's discretion under section 59(1) will not miscarry if it fails to be satisfied that s 48J has been complied with before making a consent order.
Crucial to the Tribunal's reasoning at [39]ff was its construction of Part 3A, Division 4 of the Home Building Act 1989 which noted in particular s 48K(1), which contains a general conferral of jurisdiction on the Tribunal in relation to home building claims in which the amount claimed does not exceed $500,000.00, and the contrast between the words of s 48J on the one hand and ss 48K(3), (4) and (7) on the other. The cited provisions of s 48K expressly state that the Tribunal "does not have jurisdiction" in respect of a claim made unless it is made within the limitation periods imposed by those sections. Those words do not appear in relation to the pre-application investigation process with which s 48J is concerned.
In reaching its conclusion the Appeal Panel relied at [62] to [65] upon the decision of the High Court in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 which concerned s 151C(1) of the Workers Compensation Act 1987. That provision stated: A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer The Court determined that proceedings commenced in contravention of section 151C are not a nullity and engage the jurisdiction and procedural rules of the court but are vulnerable to an application by the defendant to strike out the initiating process. In S & G Homes no such application had been made in the course of the first instance proceedings and as a consequence the Appeal Panel was satisfied the first instance Tribunal had power to make the orders it did.
Maygood was an appeal from a determination of the Tribunal at first instance in which the Appellant was ordered to pay the first instance applicant damages in relation to defective building work carried out in breach of the statutory warranties contained in section 18B of the Home Building Act 1989. It was contended by the Appellant that the first instance Tribunal did not have jurisdiction to make that order because there had not been an investigation under Division 2 prior to the application being made and there was no Presidential direction that permitted that requirement to be dispensed with. The Appeal Panel dismissed the appeal deciding at [42] that compliance with the requirements of s 48J is not a pre-condition to the exercise of jurisdiction because at [43] the jurisdiction of the Tribunal is enlivened by the filing of an application. If the Principal Registrar had rejected the application filed by the first instance applicant, the Tribunal would have had no jurisdiction because there would have been no application before it. However, because the Principal Registrar did not reject the application, an application remained before the Tribunal and the Tribunal had jurisdiction to determine it [at 46].
As in S & G Homes, crucial to the reasoning of the Tribunal was its construction of Part 3A, Division 4 of the Home Building Act 1989 which refers to the general conferral of jurisdiction on the tribunal to decide home building claims under $500,000.00 found in s 48K(1) and the excision of jurisdiction by the words "does not have jurisdiction" found in s 48K(3), (4) and (7) which it found at [33] to be in "stark" contrast to s 48J which does not expressly state that non-compliance with Division 2 results in the Tribunal not having jurisdiction to deal with a claim.
With respect to the principles distilled in Chase Oyster Bar, the Appeal Panel stated at [47] to [50]: 47 Maygood further submitted that the terms of s 48J were similar to the words used in the Building and Construction Industry Security of Payment Act 1999 (NSW) which was addressed in Chase Oyster Bar. That Act provided that an adjudication application "cannot be made" unless notice had been given within a specified time frame. We do not agree that wording is similar to the wording of s 48J. 48 As Speigleman CJ held in Chase Oyster Bar, at [41], citing Gummow J in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 277: "it is impossible to identify the functional utility of the words - "cannot be made" - if (they do) not mean what (they) say". By contrast, the requirement that the Principal Registrar "must reject" an application does not mean that an application not rejected has no effect. 49 As McDougall J stated in Case Oyster Bar at [186], it is necessary to have regard to the "full statutory context". 50 As noted above, that context includes s 48K which, in clearly stating that the Tribunal does not have jurisdiction to determine matters not commenced in accordance with the requirements of that section, suggests that the failure to comply with s 48J, which does not contain that form of wording, does not deprive the Tribunal of jurisdiction.
The restriction or bar on the making of an application imposed by section 110(4) of the GIPA Act is clearly distinguishable from the restriction imposed by s 48J of the Home Building Act 1989. As noted, it is an antecedent or essential preliminary condition that must be satisfied before an application within the meaning of s 39 of the NCAT can be made, whereas an application can be made under s 48K(1) of the Home Building Act 1989 in accordance with s 39 in relation to a home building claim but that application is vulnerable to being rejected by the Principal Registrar if the requirements of Division 2 have not been complied with (subject to a Presidential direction that permits its acceptance). It is thus a condition that is consequential on an application being made to be determined by the Principal Registrar in the course of the proceeding.
Also as noted, the GIPA Act does not confer any power on the Principal Registrar to reject an 'application' made under section 110(1) in circumstances where section 110(4) has not been complied with before the application is made.
Additionally, unlike the general conferral of jurisdiction found in s 48K(1), the conferral of jurisdiction by s 110(1) to deal with an application for approval to make an access application is of narrow compass and it is expressed to operate subject to section 110(4).
On this basis S & G Homes and Maygood are not authoritative in the circumstances of this case.
It remains, however, to consider if the High Court's decision in Berowra, which was an essential element of the Tribunal's reasoning in S & G Homes, has any implication for the construction of s 110(4). This requires some understanding of the facts in that case. There was no issue that the injured worker commenced proceedings against the employer before the time period specified in s 151C of the Workers Compensation Act 1987 had elapsed. He did so in the District Court (a Court of limited jurisdiction) but could also have done so under that statute in the Supreme Court (a superior court of general jurisdiction). The employer did not take any point as to the injured employee's non-compliance with s 151C until after it had made an offer of compromise to the injured worker pursuant to Pt 19A of the District Court Rules. The employer then objected to the proceedings because of the injured worker's non-compliance with s 151C. The injured worker accepted the employer's offer of compromise after this objection was raised and under the Rules was entitled to apply for judgement in the sum of the offer because the offer of compromise could not be withdrawn without leave of the Court. The employer successfully contended before the District Court that the proceedings were a nullity because of the injured workers non-compliance with s 151C, which extended to the offer of compromise it made under the Rules of Court. The plurality of the Court determined, based on its construction of s 151C, that the proceedings were not a nullity, but they were vulnerable to an application by the employer to be struck out in accordance with the rules of the court because of the injured worker's failure to comply with s 151C.
In reaching this conclusion the Court placed significant weight on two matters. First, that the Workers Compensation Act 1987 was a statutory scheme regulating common law rights at [17]. At [19]ff, it therefore applied an approach to the construction of statutory bars in relation to common law rights, which, in short summary, holds that the bar does not relate to jurisdiction of the court to entertain the claim, but to the remedy available and the defences that might be pleaded. It said the following in relation to the effect of s 151C when approached in this way (at [23]): 23 What is the effect of s 151C? It may be said at the outset that the scheme contained in Pt 5 of the 1987 Act does not represent an instance of a statutorily created right which is subject to an inherent limitation or qualification going to the nature or the right … The right is sourced in common law. The approach of the courts has consistently been to require very clear legislative intent before treating a statutory provision as taking away common law rights of a plaintiff where an alternative construction is available. If s 151C is properly to be regarded as analogous to the statutory bars referred to earlier in these reasons, this militates against the construction espoused by the employer
The Court placed significant emphasis at [13] on the freedom of a litigant to invoke the judicial arm of government to determine a dispute holding that the institution of such an action engages the procedural law appurtenant to the relevant court, usually found in the rules of court. It held at [15] that in the adversarial system of justice choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. At [16] the Court said: 16. None of the above denies the possibility of a defendant denying the plaintiff's right to invoke the jurisdiction of the court, for example, where the plaintiff's right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it….
Second, the Court placed weight on the fact that s 151C referred to "court proceedings" that could have been commenced in a superior court of general jurisdiction where acts in excess jurisdiction cannot be characterised as invalid until quashed or set-aside on appeal. It sought to avoid a construction which would result in s 151C having a differential application depending upon the court in which the proceedings were commenced.
It will be apparent from this summary that the Court's conclusion as to the effect of the restriction or bar contained in s 151C in Berowra is not authoritative in this case. Berowra concerned a restriction or bar imposed on the exercise of a subsisting common law right. It expressly did not concern a restriction or bar imposed on a statutorily created right which is subject to an inherent limitation, which is a matter that goes to the validity of an action instituted in reliance upon those provisions. The right to make an access application under Part 4 of the GIPA Act is a statutorily created right, the exercise of which, in the applicant's case, is subject to the statutory limitations annexed to the right by s 110(1) and (4) of the GIPA Act. The restriction or bar imposed by section 110(4) is a constituent of the essence of the right.
Additionally, the Court's reasoning in Berowra is to be distinguished on the basis that it concerned a provision that pertained to proceedings that could be commenced in a superior court of general jurisdiction. NCAT exercises limited statutory jurisdiction only. The Tribunal itself bears the onus of ensuring that it acts within power (see paragraph 56 of these reasons).
The adverse effects of a finding that a restriction or bar on the exercise of a right is a jurisdictional issue should be considered before reaching a final conclusion: Chase Oyster Bar per Speigleman CJ at [52]; per McDougall J at [231]. Such a determination in this case would mean that the applicant's present application would be summarily dismissed, but it would not prevent him from making a future application under s 110(1) provided he first complies with s 110(4). This would result in delay and inconvenience but such an impact is minor in nature. A determination that the notices required by section 110(4) are a jurisdictional issue would not result any further impairment to his subsisting right to government information or his future capacity to exercise it. This does not weigh against reaching a conclusion the notices required by s 110(4) are a jurisdictional fact.
I therefore conclude from the analysis of both the GIPA and NCAT statutory schemes set out above that prior notice to the agency and Information Commissioner is a jurisdictional fact that must exist before the Tribunal's jurisdiction to deal with an 'application' for approval to make an access application is enlivened. It is the first element of the prospective applicant's cause of action or entitlement to make the application. For the reasons set out above I am satisfied that in enacting section 110(4) Parliament intended the presence of that element to be essential to the validity of an application for approval, and that its absence would invalidate action taken without it. There is therefore no 'application' before the Tribunal which is capable of invoking its jurisdiction to grant approval to make an access application.
It follows from this conclusion that the application must be summarily dismissed as the Tribunal does not have jurisdiction to deal with it.

Should approval be given to the applicant to make his proposed access application?

Given the conclusion I have reached in relation to the Tribunal's jurisdiction to deal with the application it is strictly unnecessary for me to consider if approval would have been given to the applicant to make his access application had that application been considered on its merits. However, in the event that I am wrong in the conclusion I have reached as to jurisdiction, I am satisfied that the appropriate order ought to have been to refuse the application for three reasons.
First, the proposed application is misconceived in the sense that it embodies a misunderstanding of legal principle (cf Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25] to [26]) because it is not concerned with "government information" as that term is defined in section 4 of the GIPA Act. In substance, the proposed application seeks 'access' to the apparatus or delivery system of the former Pittwater Council website by means of the re-enlivening of that system, which he accepts would require a 'policy' decision by the agency concerning the information management infrastructure it maintains. The applicant does not seek access to any specific document or class of documents that were posted to the former Pittwater Council website. Nor does he seek access to all documents that were posted to that website on the date of amalgamation, per se. The objective of his proposed access application is for all of those documents to be capable of being accessed by anyone in perpetuity via the re-enlivening of the apparatus or delivery system underpinning the former website.
In lay terms, a website is a collection of web pages that share a single domain name which is under the control of a particular organisation or individual. The domain name creates a distinct subset of the World Wide Web. Each web page is confined within the domain of the web site by a web address or (URL) with a common suffix. A website is created by a software program that enables web pages to be delivered to the end user via requests that are responded to by a server. Such software programs may be "open source" or free or they may be "proprietary", meaning that they remain the property of the organisation that created the software. Proprietary software is typically shared with users under a license or user agreement subject to terms and conditions contained in the license or user agreement.
The information that is posted by an agency to a web site may (and perhaps will usually) fall within the meaning of government information because it is a document, which is usually a copy, or other source of information stored by an electronic process. The web site domain name and each document URL script are also arguably capable of falling within the meaning of government information given the breadth of meaning of "record" (they are arguably an "other source of information" "stored" "by an "electronic process").
However, a conceptual distinction must be drawn between the contents of the web page, un potentiated domain name, and un potentiated URL script, and the apparatus or delivery system of a live web site. That apparatus or delivery system is the potentiated domain, software program and live server. This infrastructure is an artefact that is distinct from the information a web site contains and it is not capable of falling within the definition of government information.
Second, for essentially the same reasons, the applicant's proposed access application would involve him engaging in conduct to achieve a wrongful purpose having regard to the object of the GIPA Act. That wrongful purpose is the attempt to compel the agency to change its policy concerning the decommissioning of the former Pittwater Council website. It seeks to require the agency to re-enliven the former Pittwater Council website and maintain it in perpetuity as an historical record. The GIPA Act is not a vehicle through which such an objective can be achieved. It is concerned with public access to government information. It is not concerned with the executive policy choices made by agencies as to the form of infrastructure they maintain for management of access to government information. Nor is it an Act concerned with the maintenance of historical agency records.
Third, if I am wrong in my first and second conclusions, I am satisfied that the proposed access application is lacking in substance in the sense that it is based on an untenable proposition of fact (cf Alchin op cit) because the agency does not hold the information sought by the applicant. In this respect, it is the agency's uncontested evidence that the former Pittwater Council website has been de-commissioned and no archive of that site has been maintained. It has also not been contested by the applicant that the former Pittwater Council website was built by a third-party, Squiz, using proprietary software which the former Council maintained access to via a licensing or user agreement which has now lapsed. The web site is therefore no longer in existence.
Since Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], the Tribunal has held that in reviewing a decision that an agency does not hold information, it is to consider, inter alia, whether there are reasonable grounds to believe that the requested information exists and is held by the agency. I am satisfied that there are no reasonable grounds to believe that the requested information (being the web site apparatus or delivery system) exists in this case.
As I have already explained that delivery system is distinct from the information that was posted to the web site which may well be susceptible to an access request. That is because it is the agency's evidence that many documents maintained in the former Pittwater Council's document management system, from which they were posted to the now decommissioned website, have been migrated to the Northern Beaches Council document management system.

Should the Tribunal make an order under section 110(6)?

There are 5 reported decisions relating to 8 access applications made by the applicant since the restraint order was made. The Caselaw citations for these decisions and the decision outcome is set out in the following table: Citation Decision Outcome Walker v Pittwater Council [2015] NSWCATAD 198 Approval granted subject to a condition Walker v Pittwater Council [2015] NSWCATAD 222 Approval granted in respect of 4 proposed access applications Walker v Pittwater Council [2016] NSWCATAD 78 Approval granted Walker v Northern Beaches Council [2016] NSWCATAD 161 Approval granted Walker v Northern Beaches Council [2021] NSWCATAD 277 Approval granted

As least in so far as these reported decisions are concerned all of the applicant's applications for approval to make an access application since the restraint order was made have been successful, albeit with a condition being imposed in one case, with the exception of the outcome in the present case. There is no evidence of any other application made by the applicant with any other outcome.
As a consequence, there is no basis in the evidence upon which the Tribunal could be satisfied that the applicant has repeatedly made applications for approval that are lacking in substance. There are therefore no grounds upon which the Tribunal could make an order under section 110(6) prohibiting the applicant from making any further application for approval to make an access application.

Orders

For the foregoing reasons the Tribunal orders: 1. The application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

Endnote

NSW Parliament Legislative Assembly, Hansard 17 June 2009, The Hon Nathan Rees, Member for Toongabbie Premier and Minister for the Arts, Agreement in Principle Speech, Government Information (Public Access Bill 2009, Government Information (Information Commissioner) Bill 2009, Government Information, (Public Access) (Consequential Amendments and Repeal) Bill 2009; NSW Parliament, Explanatory Note, Government Information (Public Access) Bill 2009, 16 June 2009. 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 January 2022

Administrative Decisions Act 1997(NSW)

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (8)

Cases Cited (23)

Cited By (3)