(2011) 80 NSWLR 170
Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86
Commonwealth v Horsfall [2010] FCA 443
(2010) 185 FCR 66
115 ALD 344
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55
(2006) 229 CLR 577
Department of Education v Zonnevylle [2020] NSWCATAD 96
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Source
Original judgment source is linked above.
Catchwords
(2011) 80 NSWLR 170
Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86
Commonwealth v Horsfall [2010] FCA 443(2010) 185 FCR 66115 ALD 344
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55(2006) 229 CLR 577
Department of Education v Zonnevylle [2020] NSWCATAD 96
Ebner v Official Trustee in Bankruptcy [2000] HCA 63(2015) 255 CLR 135
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101(2005) 62 NSWLR 512
Johnson v Johnson [2000] HCA 48
Judgment (7 paragraphs)
[1]
Background
The Tribunal's order under s 110 of the GIPA Act prohibited Ms Webb from making an access application "whether solely on her own behalf or acting jointly or in concert with any other person" without first obtaining the approval of the NSW Civil and Administrative Tribunal. We will call this part of the order, the "in concert order". Ms Webb submitted that the Tribunal does not have power under s 110 to prohibit her from making an access application "in concert with any other person". We assume that the Tribunal's intention was to prevent another person from making an access application in his or her name, but 'in concert' with Ms Webb. We assume that Ms Webb does not object to the order relating to her acting jointly with another person if her name is on the application.
Under s 110(3) a restraint order may apply to all access applications or may be limited by reference to a specific time period and other criteria:
(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.
Before making a restraint order, the Tribunal must be satisfied that "at least 3 access applications . . . .in the previous 2 years have been made that lack merit", and "the applications were made by the same person or by any other person acting in concert with the person": GIPA Act, s 110(1). The only other reference in the GIPA Act to "acting in concert" with another person is in s 60. An agency may refuse to deal with an access application for reasons including that:
(e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is -
(i) a party to current proceedings before a court, and
(ii) able to apply to that court for the information.
The Council submitted that the Tribunal has the power to make orders which relate not only to access applications made by Ms Webb in her own name but also orders which relate to her acting in concert with another person. The basis for that submission was said to be that where a statute confers an express power, it impliedly confers power to do anything which is reasonably necessary to make that express grant of power effective: Coffs Harbour City Council v Minister for Planning and Infrastructure [2013] NSWCA 44 at [51]. This principle extends to bodies which are a creature of statue, such as the Tribunal: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 at 522 [38].
According to the Council, the GIPA Act recognises the need to limit access applications by a person acting in concert. It cannot be said that an order restraining a person from acting in concert is outside of the contemplation of the GIPA Act, nor something that cannot properly be implied in the exercise of power pursuant to s 110. The Council acknowledged that a power cannot be implied merely because it is desirable or useful: BUSB v R [2011] NSWCCA 39; (2011) 80 NSWLR 170 at 176 [32].
[2]
Consideration
Like the Local Court, which is a statutory court, the Tribunal does not have inherent powers. It only has the powers that are conferred expressly or are necessarily to be implied from the express conferral of powers: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 at 522 [38]. There is no express power in s 110 to prohibit a person from making an access application "in concert with any other person".
Section 110(3) describes the scope of the Tribunal's power. A restraint order may "apply to all access applications made by the person the subject of the order" or it may be "limited by reference to" certain defined criteria. The ordinary grammatical meaning of this provision is that the order may apply to all, or some applications made by the person the subject of the order. The defined criteria relate to the period of time, the number of applications, the kind of information and the particular agency. There is no defined criterion relating to applications, not made by the person the subject of the order, but made by another person in concert with the person the subject of the order.
The Tribunal has an implied power to make the "in concert order" if it is "reasonably required or legally ancillary to the accomplishment of the specific remedies . . .": Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 at [51]. The test of necessity "cannot be stretched to encompass what is merely desirable or useful": BUSB v R [2011] NSWCCA 39; (2011) 80 NSWLR 170 at 176 [32]. The effect of the Tribunal's order would be that another person could not make an application if Ms Webb was acting "in concert' with that person. While it may be desirable to make an "in concert order" to prevent another person from making applications on Ms Webb's behalf, s 110 does not give the Tribunal power to do so. In addition, the difficulties of identifying such an application may make it impractical to enforce such an order.
[3]
Indefinite order
Ms Webb submitted that it was beyond the power of the Tribunal to make an unlimited order with no end date. The ordinary and grammatical meaning of s 110(3) is that the Tribunal may make an order limited by reference to a specific time period, or it may make an order that is not so limited. Neither the context or purpose of the GIPA Act suggest otherwise.
[4]
Two-year period
Under s 110(1)(a) of the GIPA Act:
(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 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, (Emphasis added.)
The Tribunal found at [56] that the two-year period is to be calculated from the date of the making of the order. In our view, that is not correct. The two-year period is to be calculated from the date of the application for an order under s 110. We agree with the reasoning of the Tribunal in Department of Education v Zonnevylle [2020] NSWCATAD 96 at [13] -[19] and, in particular, the conclusion at [20]:
Rules of statutory interpretation provide that a purposive approach should be taken to the interpretation of an ambiguity, and should be applied to interpreting the ambiguity in s 110(1). Looking at the consequences of each interpretation, it can be implied that "the previous two years" refers to "the previous two years prior to the application for an order", rather than "the previous two years prior to the Tribunal's decision to make an order". The obvious interpretation would be that the two year time period is tied to the making of the application, which has a specific date, rather than the making of the order, which neither has a specific date nor is an absolute consequence of the threshold criteria being met. This is supported by the basic principles of statutory interpretation in circumstances where the provision is to be construed in keeping with the objects of the Act, the Tribunal is exercising a discretion in making the order, and there is no specification of how long the Tribunal has to make the relevant order after an application is made.
[5]
Assessment of merits of previous GIPA applications
The final ground of appeal which may have some relevance to the Tribunal's reconsideration of the Council's application for a restraint order, is that the Tribunal erred by failing to independently assess the merits of Ms Webb's historical applications under the GIPA Act. Under s 110(2):
(2) An access application is to be regarded as lacking 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).
This is a statutory definition which sets out the circumstances in which an access application is to deemed to be lacking merit. The Tribunal has no power under the legislation to make an independent assessment as to whether an access application lacks merit. (See also, Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44 at [66]).
[6]
Orders
1. The appeal from the Tribunal's decision to dismiss the application in proceedings 2019/00174490 is dismissed.
2. Leave is granted to appeal from the orders made in proceedings 2019/001744496.
3. The appeal from the Tribunal's decision to dismiss the application in proceedings 2019/001744496 is dismissed.
4. In proceedings 2019/00380640, the Tribunal's decision to make a restraint order in relation to Ms Webb is set aside. The whole of that case is to be reconsidered by a differently constituted Tribunal, with the admission of further evidence at the Tribunal's discretion.
[7]
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: 27 July 2020
r Fair Trading, New South Wales Office of Fair Trading [2008] NSWADTAP 84
Coffs Harbour City Council v Minister for Planning and Infrastructure [2013] NSWCA 44
Texts Cited: None cited
Category: Principal judgment
Parties: Telina Webb (Appellant)
Port Stephens Council (Respondent)
Representation: Counsel:
B Tronson (Respondent)
Solicitors:
Appellant (Self Represented)
Lindsay Taylor Lawyers (Respondent)
File Number(s): AP 20/15087
Publication restriction: Nil
Decision under appeal Court or tribunal: Civil and Administrative Tribunal
Jurisdiction: Administrative and Equal Opportunity
Citation: Webb v Port Stephens Council [2020] NSWCATAD 81
Date of Decision: 11 March 2020
Before: The Hon F Marks, Principal Member
File Number(s): 2019/00380640, 2019/00174490, 2019/00174496
Overview
Ms Webb has appealed to the Appeal Panel from three decisions the Tribunal made in separate proceedings relating to the Government Information (Public Access) Act 2009 (GIPA Act). We will call these proceedings the contempt proceedings, the administrative review proceedings and the restraint order proceedings. The Tribunal below heard these proceedings together.
In 2011 Ms Webb and her husband started building a privacy screen in their backyard. After receiving a complaint about the height of the screen, Port Stephens Council required Ms Webb and her husband to submit a Development Application. Council advertised the Development Application and, after receiving various objections and submissions, refused to approve it. Council then ordered Ms Webb and her husband to demolish part of the screen. Ms Webb and her husband brought proceedings in the Land and Environment Court, which were settled by consent. The couple sold the property in August 2013.
Ms Webb applied to the Council under the GIPA Act for information about third party consultations and objections in relation to the Development Application. Ms Webb's husband made a separate application seeking access to the same information. Following a mediation in the Tribunal, the Council granted Ms Webb partial access to 23 documents, refused access to 44 documents and refused to deal with 6 documents. The main reasons for these decisions were that disclosure would reveal an individual's personal information, contravene an Information Protection Principle, or "expose a person to a risk of harm or of serious harassment or serious intimidation": GIPA Act, s 14 table items 3(a), 3(b) and 3(f).
Ms Webb and her husband each applied separately to the Tribunal for an administrative review of aspects of the Council's decision. In Webb v Port Stephens Council [2019] NSWCATAD 47 (Tribunal's first decision), which determined both applications for administrative review, the Tribunal held that there were very strong considerations against disclosure of personal information, and information protected by an Information Protection Principle. Those considerations outweighed the very strong factors in favour of disclosure of that information: Tribunal's first decision at [75], [84]. The Tribunal was not satisfied that disclosure of the information could reasonably be expected "to expose a person to a risk of harm or of serious harassment or serious intimidation."
In final orders, the first Tribunal affirmed the Council's decision in relation to some information and referred other documents back to the Council "for reconsideration so that they may be suitably redacted in accordance with these reasons." When making a new decision, the Tribunal directed Council to "mask all personal information" and "all health-related information" identified by the Tribunal. We will refer to this decision as the "remittal decision."
Consideration
The jurisdiction and powers of the Tribunal is a question of statutory construction - that is, interpreting the meaning of the relevant legislative provisions.
The first Tribunal made the "remittal decision" in the following terms:
(4) In Ms Webb's matter (File No.2016/378165)
(a) the decisions of the respondent Council in relation to those documents to which access has been refused, and
(b) the decision to refuse to deal with certain documents
are set aside and those documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons.
The first Tribunal did not specify the provision of the Administrative Decisions Review Act on which it was relying to remit the matter to the Council. Because the order was made when "determining an application," rather than at any other stage of the proceedings, we understand the first Tribunal to have been exercising the power in s 63(3)(d) of the Administrative Decisions Review Act:
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. (Emphasis added.)
We will call the remittal power in s 63(3)(d), "the final remittal power". It arises when the Tribunal is "determining an application". The final remittal power may be contrasted with what we will call "the provisional remittal power" in s 65(1) of the Administrative Decisions Review Act. Under that provision, the Tribunal has the power to remit the decision "at any stage of the proceedings."
65 Power to remit matters to administrator for further consideration
(1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.
(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:
(a) affirm the decision, or
(b) vary the decision, or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
(3) If the administrator varies the decision:
(a) the application is taken to be an application for review of the decision as varied, and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied, or
(ii) withdraw the application.
(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision, and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision, or
(ii) withdraw the application. (Emphasis added.)
Restraint order proceedings
Ms Webb has appealed from the second Tribunal's order that:
Telina Webb is not permitted to make an access application to Port Stephens Council under the provisions of the Government Information (Public Access) Act 2009 whether solely on her own behalf or acting jointly or in concert with any other person without first obtaining the approval of the NSW Civil and Administrative Tribunal.
That order was made under s 110 of the GIPA Act:
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 access 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 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.
Test for apprehended bias
An apprehension of bias will exist if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues in dispute: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR at 344 [6]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at 146 [21]. We must make a judgment about the state of mind of the hypothetical observer, and whether he or she might reasonably apprehend that the Presiding Member might not bring an impartial mind to the resolution of the issue in dispute: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437-438 per Gummow ACJ, Hayne, Crennan and Bell JJ; Spencer v Bamber [2012] NSWCA 274 at [16] per Basten JA. The Court of Appeal held in McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at 517 [110] that:
The use of the word "might" in both limbs of the test connotes the concept of a real chance or a realistic possibility, falling short of a probability.
Consideration of apprehended bias claim
The Council submitted that, in effect, the Presiding Member was merely inviting the Council to consider making an application under s 110. We do not read the Presiding Member's words in that way. He clearly "invited" the Council to make an application in the presence of both parties. The Presiding Member did not know at the time that the Council had made such an application five days earlier. The fact that Council had already made that application is not relevant to our consideration of whether the test for apprehended bias has been satisfied, that test being applied from the perspective of a hypothetical reasonable observer.
The Presiding Member assured the parties more than once that he had "not begun to contemplate what the final outcome of these proceedings might be". The Presiding Member added that he had not determined the matter and "couldn't possibly do that without hearing from everyone".
We agree with the Council that the rule against apprehended bias is not transgressed if a decision maker expresses a tentative view and retains an open mind: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 [13]; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 610 [112]. The observations in these cases relate to the expression of tentative views about issues arising in the proceedings. As the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said in Johnson v Johnson at 493 [13]:
Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented.
Similarly, in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd Kirby and Crennan JJ at 610 [112] were speaking of tentative views "during the course of argument as to matters on which the parties are permitted to make full submissions . . ." In the present case, the Presiding Member was not expressing a tentative view about an issue in the proceedings. Rather, the Presiding Member was inviting one party to institute proceedings against another party. That situation has much more in common with the following three cases where, on appeal, the decision maker was found to have breached the rule against bias.
In Kyriacou v Police [2007] SASC 341 a magistrate had lengthy pre-trial discussions with a self-represented defendant and suggested he plead guilty to a charge of assault. The magistrate then criticised the defendant's decision to proceed with the trial. On appeal, at [62], Gray J held that the magistrate should have disqualified himself from trying the case:
In all the circumstances, the pre-trial discussion provided information to the Magistrate of such a nature that it was inappropriate for him to hear the trial. Further, and more importantly, the Magistrate's criticism of the appellant's decision to proceed with the trial would lead a fair-minded lay observer to reasonably apprehend that the Magistrate would not bring an impartial and unprejudiced mind to the resolution of the issues at trial. The Magistrate should have disqualified himself from trying the case.
The first Tribunal made the remittal decision on 27 March 2019. Ms Webb emailed Council two days later, and continued to seek information about whether Council had made a new decision on several further occasions. On 26 April 2019, the Council's solicitor emailed Ms Webb advising her that the Council "is dealing with the remitted decision in accordance with the decision" of the Tribunal and that "a response will be provided in due course." The Council's solicitor concluded with the statement that, ". . . until that occurs we do not intend to respond to further correspondence on this issue."
On 15 May 2019, seven weeks after the remittal decision, Ms Webb filed a new application for administrative review of the Council's failure to make a decision in accordance with the Tribunal's remittal decision. In the application for administrative review, Ms Webb described the "decision for review" by stating, "I have no documentation from the agency." Ms Webb submitted that the Council had 20 days to make a new decision and she was treating their failure to do so as a refusal to make a decision: GIPA Act, s 57(1). Ms Webb wrote in that application that she was "left with no other course of action . . . other than to commence the whole process all over again by lodging a further request for administrative review of the Council's decision . . . "
On the same day as she filed the application for administrative review, Ms Webb also filed an application for Council to be referred to the Supreme Court for contempt because of non-compliance with the remittal decision: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 73(5). On 28 June 2019, more than a month after Ms Webb had lodged these applications, Council made a decision in response to the first Tribunal's remittal decision.
Six months later, on 12 December 2019, Council applied to the Tribunal for an order that Ms Webb be restrained from making unmeritorious access applications: GIPA Act, s 110.
A differently constituted Tribunal (the second Tribunal) decided to determine Ms Webb's administrative review and contempt applications as well as the Council's application that she be restrained from making unmeritorious applications, at the same time. The second Tribunal summarily dismissed both Ms Webb's applications as vexatious and lacking in substance: NCAT Act, s 55(1)(b) and GIPA Act, s 109. The second Tribunal also made an order restraining Ms Webb from making unmeritorious applications. Ms Webb has appealed to the Appeal Panel from each of these decisions.
We have decided that the Appeal Panel has no jurisdiction to hear an appeal from the decision to dismiss the contempt application. The appeal in relation to those proceedings is dismissed. The second Tribunal had no jurisdiction to hear a new application for administrative review of the Council's failure to make a decision within 20 days following the remittal decision. The appeal in relation to those proceedings is also dismissed. Finally, we have decided that the second Tribunal's decision to restrain Ms Webb from making unmeritorious applications was affected by apprehended bias. We remit those proceedings to be re-determined by a differently constituted Tribunal.
If the Tribunal remits a decision under the "provisional remittal power," the administrator may affirm or vary the decision or make a new decision in substitution for the decision set aside. If the administrator varies or sets aside the decision and makes a new decision, the original application for review is taken to be an application for review of the new decision. The applicant may either proceed with the application for review of the new decision or withdraw the application: s 65(3) and (4). We will call these provisions the "machinery provisions". The proceedings in the Tribunal are not finalised until the applicant withdraws the application or the Tribunal makes a final decision.
If the Tribunal remits a decision to the administrator under the "final remittal power" in s 63(3)(d) of the Administrative Decisions Review Act, there are no machinery provisions. The Tribunal has made a final decision and its administrative review jurisdiction is exhausted.
The issue on appeal is whether the second Tribunal erred in dismissing the new application for administrative review. A decision to summarily dismiss proceedings is an interlocutory decision: NCAT Act, s 4. Ms Webb needs the Appeal Panel's permission to appeal from an interlocutory decision: NCAT Act, s 80(2)(a). For the following reasons, we give permission to appeal, but dismiss the appeal.
In Howell v Macquarie University [2007] NSWADTAP 10 at [85], the Appeal Panel of the Administrative Decisions Tribunal found that a remittal decision made under s 63(3)(d) of the Administrative Decisions Tribunal Act 1997 (NSW) "finally disposes of the application." However, the Appeal Panel expressed the view that:
If the administrator makes a decision, on reconsideration, that maintains the previous decision to any degree, then the applicant has to start again, and initiate a fresh process of internal review and application for review by the Tribunal.
That interpretation of the legislation was applied in Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADTAP 84 at [60] and [61]. In a more recent decision, Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 at [99], the Appeal Panel placed a time limit on the agency to make a new decision:
We will remit the access application of Lara in respect of item 6 to the agency for reconsideration and redetermination within 42 days of the date of this decision. If the matter returns to the Tribunal it is to do so as a new review application.
With respect, we do not agree with the previous Appeal Panels, that the Tribunal has jurisdiction to administratively review a new decision made by the agency following remittal under s 63(3)(d) of the Administrative Decisions Review Act. Nor do we consider that the Tribunal has jurisdiction to review an agency's failure to make a decision within a specified or unspecified time. We give Ms Webb permission to appeal from the second Tribunal's summary dismissal decision in proceedings 2019/001744496.
The Tribunal's administrative review jurisdiction is conferred by s 30(1) of the NCAT Act:
The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
Section 9 of the Administrative Decisions Review Act explains when administrative review jurisdiction is conferred:
The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:
(a) in the exercise of functions conferred or imposed by or under the legislation, or
(b) in the exercise of any other functions of the administrator identified by the legislation. (Emphasis added.)
The "enabling legislation" in this case is the GIPA Act. Section 80 lists the "decisions of an agency in respect of an access application" that "are reviewable decisions". Those decisions include "a decision to provide access or to refuse to provide access to information in response to an access application". (Emphasis added.) Section 100(1) confers the following jurisdiction on the Tribunal:
A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review).
Ms Webb was aggrieved by the Council's decision in relation to her access application and applied to the first Tribunal for a review of that decision. The first Tribunal remitted that matter to the Council under s 63(3)(d) of the Administrative Decisions Review Act. The new decision, or the failure to make a new decision, is not listed in "enabling legislation" as one of the kinds of decision about which a person may apply to the Tribunal for administrative review. The new decision, or the failure to make that decision, is not "in response to an access application". Rather, it is in response to an order of the Tribunal setting aside the decision and remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Ms Webb sought to rely on s 57 of the GIPA Act which, subject to any extension, requires an agency to decide an access application within 20 working days after the agency receives the application. However, for the reasons we have given, the Council was not "deciding an access application". Rather, it was reconsidering its decision in accordance with any directions or recommendations of the Tribunal.
There is no provision in the enabling legislation giving the Tribunal jurisdiction to administratively review a decision of an agency to fail to reconsider its decision in accordance with the Tribunal's directions or recommendations. Nor is there any provision in the enabling legislation giving the Tribunal jurisdiction to administratively review a decision of the agency made in response to a remittal decision under s 63(3)(d). For those reasons, the Tribunal was correct to dismiss Ms Webb's new application for administrative review.
Although it is not necessary to consider the issue, the Federal Court has provided useful guidance as to the circumstances in which a decision maker should remit a matter as part of the final orders. In Minister for Immigration & Multicultural Affairs v Perth City Mission [2000] FCA 397 at [23], the Federal Court was interpreting s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) which is in similar terms to s 63(3)(d) of the Administrative Decisions Review Act:
The power of the Tribunal to set aside a decision and remit the matter for reconsideration only arises where the Tribunal is unable to make, and has not made, a decision in substitution for the decision set aside. (See: Commonwealth of Australia v Beale [1993] FCA 294; (1993) 30 ALD 68 per Neaves J at 70.) Section 43(1)(c)(ii) is directed to a circumstance where the decision under the enactment has not been made where the Tribunal is of the view that it is unable to make the decision required by the enactment, for example, where a requirement or condition must be satisfied before a decision can be made. (See: Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 10 AAR 13.) The terms of s 43(1)(c)(ii) of the AAT Act enable the Tribunal to assist the decision-maker to whom the matter is returned by offering "directions or recommendations" that appear to be appropriate on the material before the Tribunal.
The same approach was followed in Commonwealth v Horsfall [2010] FCA 443; (2010) 185 FCR 66; 115 ALD 344 at [103]. As Ms Webb did not appeal from the first Tribunal's remittal decision, it is not appropriate for us to comment further on the correctness or lawfulness of that decision.
Our conclusion that the second Tribunal did not have jurisdiction to hear Ms Webb's administrative review application means that there is no need to consider any of her other grounds of appeal that relate to the dismissal of her administrative review application. However, we will address one issue. Ms Webb contended that the Tribunal had no power to address the question of its jurisdiction in what it described as a "show cause" proceeding. Even if the respondent does not raise the issue of jurisdiction, the Tribunal must satisfy itself that it has jurisdiction before determining any matter before it. If necessary, the Tribunal may require the parties to address that question. That is what the Tribunal did in this case.
We note that two years earlier, a differently constituted Tribunal dismissed an application by the Council for a restraining order in relation to Ms Webb: Port Stephens Council v Webb [2017] NSWCATAD 341.
Ms Webb appealed from the second Tribunal's order under s 110 on several grounds. We begin by considering the ground we have upheld - that the Tribunal was affected by apprehended bias. After addressing this ground, we will make some observations about other grounds of appeal which relate to the Tribunal's order making power under s 110 of the GIPA Act.
In Hillier v Wootton [2013] FamCAFC 11, at a time when the wife's case had closed, the Federal Magistrate raised a specific claim in support of the wife's case, which had not been raised by the wife. On appeal, May J held at [98] (citations deleted), that:
It is the Federal Magistrate's raising of a specific claim, not raised by the wife, in the absence of the parties, at a time in the proceedings when the parameters of her case and evidence were accepted as closed, which might be reasonably apprehended as leading his Honour to decide the case other than on its legal and factual merits. There is a clearly articulated, logical connection between that specific claim and the circumstances in which it was raised, and the issues for determination before his Honour, such that I accept it might be reasonably apprehended that his Honour would not bring an impartial and unprejudiced mind to the resolution of the question his Honour was required to decide. Accordingly, the appeal should be allowed, the order set aside and the Federal Magistrate disqualified from further hearing the proceedings.
In Hagen Corporation Pty Ltd v Bikes Top End Pty Ltd (2015) NTLR 87 the magistrate communicated with a fellow magistrate whose husband was the principal of the Respondent inviting the Respondent to apply for indemnity costs. At [64] Kelly J held that:
It is, of course, also necessary to consider whether the impugned conduct (ie the confidential communication with the wife of the principal of the defendant) could logically give rise to an apprehension that his Honour may not have decided the case impartially. In my view it could. As explained above, a fair minded observer with knowledge of the confidential communication might suspect that his Honour was attempting to favour the defendant by encouraging the defendant to make an application for indemnity costs, and might accordingly, suspect that his Honour may not have been impartial as between the plaintiff and the defendant during the trial.
Suggesting that a defendant plead guilty, and then going on to hear the trial, suggesting a specific claim not raised by a party, and encouraging a defendant to apply for indemnity costs, have each been found to constitute apprehended bias. In our view, the impugned conduct in this case (positively inviting the Council to institute proceedings against Ms Webb) could logically give rise to an apprehension that the Presiding Member might not decide the case impartially. In the words of the test in Ebner, that conduct might lead a fair-minded lay observer to reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues in dispute. The Presiding Member gave the impression that he was favouring, or even assisting, one party. The Presiding Member was not merely expressing a tentative view about an issue arising in the proceedings.
Our conclusion means that the Tribunal's decision to make the order under s 110 of the GIPA Act should be set aside and the whole of the case should be reconsidered by a differently constituted Tribunal: NCAT Act, s 80(1)(e). It is unnecessary for us to determine any of Ms Webb's other grounds of appeal in these proceedings, but we make the following observations which may assist the reconstituted Tribunal when determining the application.