Walker v Northern Beaches Council

Background facts

1. The proposed access request refers to government information the Applicant contends is part of the records of the former Pittwater Council. In this respect it is temporally limited to the period surrounding the so-called banning order being imposed.
2. Pittwater Council is a "defunct agency" for the purposes of the GIPA Act because it was a local authority within the meaning of s 4(1) and Schedule 4 of that Act, being a "council" within the meaning of the Local Government Act 1993 (NSW) (see s 3 and the Dictionary of that Act) which has now ceased to exist.
3. 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).
4. On 12 May 2016 Pittwater Council was amalgamated with the then Manly and Warringah Councils to form the Northern Beaches Council. The Applicant's proposed access request 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).
5. Additionally, clause 34 of the Local Government (Council Amalgamations) Proclamation 2016 (NSW) contains the transitional provisions that relate to the to the continuation or institution of proceedings by or against a new council created because 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.
6. 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 the Tribunal's approval: Walker v Northern Beaches Council [2021] NSWCATAD 277 at [9].
7. The Applicant's request for approval to make his proposed access application is to be understood in the context of a history of dispute between him and the former Pittwater Council which involved or resulted in Pittwater Council restricting his access its staff, venues, and events. Insofar as it concerns the present application that history is helpfully summarised by SM Sargison in Walker v Northern Beaches Council [2021] NSWCATAD 251 at [3] to [12]: 3. The applicant and the respondent have a long history of disputation. 4. On 29 December 2014; 14 July 2015; and 14 December 2015 the respondent sent the applicant letters placing (or affirming) restrictions on the manner in which he could contact employees and Councillors of the respondent; and restrictions on attendance at the respondent's premises and meeting venues. The 29 December 2014 Restrictions 5. The letter was sent by Mr Lawrence, Manager-Administration and Governance and Public Officer of the respondent. 6. The letter of 29 December 2014 placed restrictions on the applicant sending emails to Council staff and Councillors other than through the respondent's general email portal; Council staff were to refuse to respond to issues which, in the opinion of the respondent, had been dealt with, were unsubstantiated or trivial; Mr Lawrence (or his delegate) of the respondent would deal exclusively with telephone contact from the applicant; and residents questions submitted to the respondent or its Councillors would be "closely vetted" by the Public Officer. 7. The letter of 29 December 2014 stated that the applicant's behaviour would be "carefully monitored" and the restrictions reviewed after 6 months. The letter concluded by stating that the respondent may consider imposing further restrictions if the applicant's behaviour did not improve. The 14 July 2015 Restrictions 8. On 14 July 2015 the respondent sent a letter to the applicant stating that a review of the restrictions imposed on 29 December 2014 had occurred, and the restrictions would "continue indefinitely due to the fact that your behaviour as not improved". The 14 December 2015 Restrictions 9. On 14 December 2015, Mr Ferguson, General Manager of the respondent set a letter to the applicant headed "Further Restrictions on Council Contact" 10. The letter of 14 December 2015 stated that since the letter of 14 July 2015 the applicant's conduct towards the respondent had "deteriorated" and that further restrictions were now warranted. 11. The restrictions imposed on the applicant, as set out in the letter of 14 December 2015, were that the applicant was: Effective immediately…banned from attending every Council workplace and meeting venue. That will include all Council and committee meetings, Council worksites, Council's Customer Service Centres and from attending any other meetings arranged by Council. 12. The letter of 14 December 2015 identified 8 specific "inappropriate behaviours" which had led to the restrictions and concluded by stating that the respondent had notified local Police and the Ombudsman's Office of the restrictions.
8. On 27 April 2016, a differently constituted Tribunal granted the Applicant approval to make an access application for the following government information he contended was held by Pittwater Council: (1) All documentation regarding formal complaint of 4 December 2015 resulting in a decision of no action as per letter of 15 December (attached). (2) All documents regarding "further restrictions" (letter 14 December attached) including the eight (8) alleged behaviours and the notification to the local Police and the Ombudsman's office.
9. On 18 July 2016, Pittwater Council decided that access application by providing the Applicant with access to the information sought.
10. In early 2019, the Applicant sought approval of the Tribunal to make an access application to the Agency which sought access to the following information he contended was held by it: (a) All electronically stored information (including information concerning costs) but excluding information falling within cl 5(1) of schedule 1 of the Act regarding the banning of Phil Walker by Pittwater Council from Council Meetings and Buildings. (b) All electronically stored information (including information concerning costs) but excluding information falling within cl 5(1) of schedule 1 of the Act relevant to the respondent's decision to commence the s 110 application under the Act in File No. 1410548 I note that the reference to cl 5(1) and to File No 1410548 appear to be errors, but nothing presently turns on this.
11. That application came before the Tribunal, differently constituted, on 6 February 2019. By consent, the Tribunal granted approval to the Applicant to proceed with that access application.
12. On 26 March 2019, the Agency decided the access application by providing the Applicant with access to nine documents.
13. The Applicant was dissatisfied with the Agency's decision. In short summary, he contended that the Agency had failed to identify and provide access to information it held which fell within the scope of his access application due to inadequate searches. On 27 February 2020 the Applicant filed proceedings in NCAT seeking review of the Agency's decision.
14. That application was heard and determined by the Tribunal, differently constituted, in Walker v Northern Beaches Council [2021] NSWCATAD 251 in a decision published on 21 August 2021. The Tribunal affirmed the Agency's decision.

Jurisdiction

1. The Tribunal's jurisdiction to deal with this application arises under the power implied by s 110(1) of the 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 the restraining order (… "without first obtaining the approval of NCAT" …).
2. An application for approval to make an access application is a "general application" for a "general decision" within the meaning of ss 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 s 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 s 9 of the Administrative Decisions Act 1997 (NSW).
3. Section 110(4) of the 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.
4. As I observed in Walker v Northern Beaches Council [2022] NSWCATAD 8 at [40] s 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]; (2006) 225 CLR 364 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 the section. It therefore falls to the Tribunal to ascertain what consequences, if any, flow from a failure to comply with these requirements.
5. In that case I concluded that a failure by a putative applicant to comply with s 110(4) would render any application to the Tribunal under 110(1) invalid as prior notice to the Agency and the Information Commissioner is a jurisdictional fact upon which standing to make such an application depends: at [91]
6. However, in this case no such difficulty arises. The Applicant has provided evidence that he served Notice of his intention to apply to NCAT for approval to make his proposed access application on the Agency and Information Commissioner prior to making an application to NCAT for such approval. The existence of the jurisdictional fact that confers standing on the Applicant to make this application is thus not in issue.

Applicable law

1. The object of the GIPA Act is found in s 3, which provides, relevantly: 3. Object of Act (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: … (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (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 reasonable cost, access to government information.
2. Section 110 of the Act provides, relevantly: 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. … (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. … (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 Applicant

1. The Applicant contends that NCAT ought to grant approval to him to make his proposed access application because "the banning has had a deleterious effect on [his] life, having been involved in Council/civic matters since 1985 …" He is concerned that "the public perception of [him] following this banning is that [he is] a public nuisance". He contends that despite "being banned" he has continued to make positive contributions to civic matters including by regularly notifying the Agency of problems such as blocked drains.
2. The Applicant states as his reason for his proposed access application his "understanding" that there have been "recent councillor inquires made regarding the removal of the ban", and that "it is important that my name is cleared". He notes that the former General Manager and Administrative Officer of Pittwater Council who were involved in imposition of restrictions on him "have now moved on".
3. In his post-hearing submissions, the Applicant states "this application 19 April 2024 is an application for documentation up to the date 19 April 2024" again stating his "understanding that there has been further "activity" in Council regarding the banning from Council".
4. In response to the Agency's submission at [27] that it does not hold any additional information it could produce, he submits that "fact" does not make his application frivolous, vexatious or "having an intent to annoy" as the Agency contends. In this respect, he submits: 5. The "does not hold any additional information …" answers the GIPA Application. 6. In my view, NCAT should approve the section 110 GIPA Application and Council should provide the requested information up to the date of the request showing no additional information. 7. This GIPA response will show there has been no new activity in Council since the banning (at least in writing). 8. In my view, this is important information.

The Agency

1. The Agency submits that the Tribunal should refuse approval of the proposed access application because it is frivolous and vexatious in that it seeks to re-agitate and relitigate matters that have been the subject of access applications made by the Applicant in 2016 and 2019 and which have been the subject of earlier proceedings before the Tribunal (in 2020/21). It submits [at 27] that it does not hold any additional information that could be produced in response to proposed access application that has not already been produced in response to the 2016 and 2019 applications.
2. The Agency also submits that reasonable inferences can be drawn that the proposed access application is brought with the intention of annoying the Agency and would require an unreasonable and substantial diversion of its resources in circumstances where the applicant already has access to the documents the subject of the proposed access application.

Consideration

1. The power to grant approval to make an access application is discretionary in nature, which may be inferred 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.
2. 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 s 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 various higher court authorities for that proposition).
3. The starting point for consideration is the object of the GIPA legislative scheme which is to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair, and effective by making government information available to the public, subject to certain limitations. The statutory command contained in s 3(2)(b) expressly requires any discretion conferred by the Act to be exercised as far as possible, to facilitate and encourage, promptly and at the lowest possible cost, access to government information. That command is relevant to the discretion conferred by s 110(1) and should be given considerable weight.
4. Nevertheless, the exercise of that discretion is also structured by s 110(5A) and by the legislative purpose of s 110 more generally which is to restrain specified persons from making serial unmeritorious access applications. That legislative purpose appears in s 110(1)(a), in the chapeau of s 110(2), and in the section heading, which may be considered by operation of s 34(2)(a) of the Interpretation Act 1987 (NSW). This policy exception to the general policy of the legislative scheme must also be given significant weight.
5. I note that the restraint order imposed on the Applicant is not limited by any of the matters specified in s 110(3) except in that it operates only in relation to Northern Beaches Council (as successor to Pittwater Council). In this respect it is plenary in nature.
6. There is no dispute in this case that the primary events in relation to which the Applicant seeks information occurred between 29 December 2014 and 14 December 2015. Nor, as I understand it, is there any dispute that the Applicant has made two previous access applications, in 2016 and 2019, in which he has sought information held by Pittwater Council, and later, by Northern Beaches Council, in relation to those events.
7. The second of those applications, to the extent that it concerned a decision of the Agency that (further) information was not held by it in relation to those events has also been the subject of administrative review by NCAT, which affirmed the Agency's decision.
8. The Applicant, particularly in his post-hearing submissions, attempts to pivot from the implications of this for his proposed access request by suggesting that there have been "recent councillor enquiries" and "further activity" in the Agency concerning the so-called banning orders. These contentions are striking for their vaguery and uncertainty. No councillor is identified, and no reason is given to explain why the Agency may have come to reconsider the matter. It is not suggested, for example, that the Applicant has made any request for the so-called banning orders to be lifted, or otherwise to "clear his name" which would be likely to have caused the Agency to reconsider this matter, and potentially, generate government information subsequent to that captured by his 2016 and 2019 access applications.
9. The Agency expressly denies that it holds any information in relation to the so-called banning orders that post-dates its decisions in respect of the Applicant's 2016 and 2019 applications.
10. Against that backdrop, the Applicant's submission that approval should be given for his proposed access application to proceed so that the Agency can decide it by determining no further information is held displays a reckless disregard for the public resources that would need to be deployed to deal with the request.
11. The GIPA legislative scheme is not to be trifled with in this way. To permit such a frivolous and in-substantive access application to proceed, against a history of unmeritorious access applications that have led to a restraint order being imposed, would risk bringing the legislative scheme into dispute.

Order

1. For the foregoing reasons, pursuant to s 110(1) of the GIPA Act, approval for the Applicant to make his proposed access application is refused.

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: 12 September 2024