Webb v Port Stephens Council

Webb v Port Stephens Council - [2023] NSWCATAP 133 - NSWCATAP 2023 case summary — Zoe

[3]

The reasoning of the Tribunal

The Tribunal described Documents 34, 35, 36 and 37, and the circumstances of their creation, at [57] - [63] as follows: "57. Documents 34, 35, 36 and 37 are training materials from the CSO. As noted by Ms Mattes in her affidavit and oral testimony, the CSO is a public service executive agency related to the Department of Communities and Justice. The Crown Solicitor is the sole provider of legal services in matters regarded as 'core legal work' as provided for in Premier's Memorandum M2016-04 'NSW Government Core Legal Work Guidelines'. However, for non-core legal work, the Crown Solicitor competes with the private sector to deliver services to government agencies. That includes services with respect to the GIPA Act and privacy legislation. (Mattes Affidavit at [4]). 58. The CSO has been offering specialised training regarding the GIPA Act since 2010. Ms Mattes has been the solicitor with primary responsibility for delivering that training since 2014. (Mattes Affidavit at [12]) There are two courses currently offered by the CSO to the staff of public sector agencies, local councils and other entities that have obligations under the Act. These are 'Introduction to the GIPA Act' and 'Advanced GIPA Act Training'. The courses are conducted over the course of a day. The courses are usually offered about 3 or 4 times a year. (Mattes Affidavit at [13]-[14]) 59. The CSO charges $400 plus GST per participant attending, and each in-person course is for around 20 participants. The courses are fully booked out in 2022. Ms Mattes acknowledges that the 'revenue generated by the provision of training forms only a small part of the overall revenue of the CSO'. (Mattes Affidavit at [15]-[16]). Nevertheless, the CSO considers the provision of training to be one of its primary means of marketing the CSO as a legal service provider, and in particular, an expert in dealing with matters involving the GIPA Act. In the view of Ms Mattes, the training courses are an extremely effective means of promoting the CSO and participation of individuals in the training courses 'frequently serves as a gateway to those individuals and their agencies instructing the CSO to provide legal advice and services in matters involving the GIPA Act'. (Mattes Affidavit at [16]). 60. The CSO provides participants with training materials for each course, which set out and explain the various legal principles that are addressed in the trainings. They contain unique illustrative case studies that have been devised by the CSO. The Advanced course also includes extensive commentary on the GIPA Act and case law. The material is intended to be a valuable reference resource to course participants going forward (Mattes at [17]). Substantial time and effort is devoted to preparing (and then updating) the training material by senior lawyers in the administrative law team of the CSO. (Mattes at [18]-[22]). The training materials are only distributed at the training sessions in hard copy on the day of the training course, they are not published on the CSO's website or any other publicly available forum. (Mattes at [23]). 61. A number of other entities offer and provide training on the GIPA Act for a fee. These include Local Government NSW, Youngman Consultancy, Megan Carter Training and Lindsay Taylor Lawyers (who happen to be the representatives of the Respondent in the present proceeding). 62. Document 34 is a workbook for participants in the 2021 'Introduction to the GIPA Act' course for 2021. It is substantially the same as that still used for 2022 trainings. Document 35 is the course book distributed for the Advanced GIPA Act training course in 2015. While it has been revised, it still materially reflects more recent versions of the advanced training materials. Documents 36 and 37 were course booklets used in 2017 which are also materially reflected in the more recent versions of the training booklets (Mattes Affidavit at [26]-[28]). 63. As noted above, the Respondent, having consulted the CSO, only disclosed to the Applicant the cover page and indexes of Documents 34, 35, 36 and 37 and refused to disclose the rest of those documents."
The Tribunal accepted that there were relevant public interest considerations in favour of disclosure: [76].
This was that disclosure of the Documents could reasonably be expected to inform the public about the operations of agencies, in particular the Council, when it comes to the way they implement and interpret the GIPA Act and what information is considered important to a GIPA Officer's role in fulfilling their duties: [76].
Also, disclosure about training courses could reasonably be expected to ensure effective oversight of the expenditure of public funds and that an agency is implementing its duties properly when it comes to the GIPA Act: [76].
Under the Table to section 14 of the GIPA Act, the Tribunal was satisfied that there existed public interest considerations against disclosure as follows: 1. Disclosure could reasonably be expected to undermine the CSO's competitive neutrality or put the CSO at a market disadvantage (see clause 4(a)); 2. Disclosure could reasonably be expected to diminish the competitive commercial value of the information (see clause 4(c)); and 3. Disclosure could reasonably be expected to prejudice CSO's legitimate business, commercial, professional or financial interest (see clause 4(d)).
The Tribunal found [109] that there were no relevant personal factors in favour of disclosure of the Documents in question. The Tribunal [114] pointed out at the hearing that the Appellant did not deny the possibility of publishing or commenting on the materials, if released to her, on her website if the Council were ordered to disclose them.
The Tribunal at [120] was satisfied that the overriding public interest considerations against disclosure of the Documents outweigh those in favour of disclosure.
The Tribunal [121] noted that the Council provided view-only access to Document 38 via inspection of hard copies by appointment at the Council office. The Council did this on the basis that the Document was covered by copyright. In light of s 72(2) of the GIPA Act, the Tribunal found [126] that the Council's method of arranging the Appellant to access Document 38 by view-only inspection only, was a permissible exercise of the exception in s 72(2)(c) of the GIPA Act and that no further or different disclosure of Document 38 should be made.
As we have already stated, the Appellant no longer seeks a hard-copy or electronic version of Document 38.

[5]

Application to produce new evidence

The Appellant with her submissions filed a large volume of material which she sought to introduce as new evidence on appeal. This material consisted of: 1. Submissions and evidence filed in other unrelated proceedings before the Tribunal (Webb v iCare - NCAT Proceedings 2022/174465); 2. Minutes of the Information and Privacy Practitioners Network dating from 18 February 2009 through to 31 August 2021; and 3. Correspondence between the Appellant and the CSO from 9 February 2023 through to 14 March 2023.
Pursuant to s 80(3)(b) of the NCAT Act, the Appeal Panel has a discretion to deal with the appeal by way of a new hearing if it considers the grounds of appeal warrant a new hearing. In such circumstances, it may permit such "fresh evidence or evidence in addition to or in substitution for" the evidence received by the Tribunal at first instance, as it considers appropriate in the circumstances.
The Appellant did not apply for the Appeal Panel to deal with the appeal by way of a new hearing. The CSO opposed the conduct of a new hearing on the merits.
In our view, having regards to the grounds of appeal and all the other circumstances of the case, there is no warrant for this appeal to be conducted by way of a new hearing.
The principles for allowing new evidence on appeal are well established: see ZND v ZNE [2020] NSWCATAP 34 at [62]. Leave of the Appeal Panel is required, and generally new evidence must satisfy the following three conditions: 1. 'It could not have been obtained with reasonable diligence in the original proceedings'; 2. "there is a high degree of probability that if admitted there would have been a different result in those proceedings"; and 3. "the evidence must be credible".
With the exception of the correspondence between the Appellant and the CSO, which post-dates the Tribunal's Decision, none of the additional evidence of the Appellant seeks to rely on for the appeal can be considered "fresh evidence", in the sense that it was not reasonably available at the date of the first hearing, or that it relates to something that happened since the Tribunal's orders which affords grounds for revision: see Ugur v Public Guardian [2023] NSWCATAP 16 at [57], citing the principles stated in Johnson v Johnson (1899) 1 P 19 at [21].
The material of the related proceedings of Webb v iCare and the minutes of the Information and Privacy Practitioners Network are all documents that were discoverable with reasonable diligence at the time of the hearing.
The Appellant was asked why this material was not used at the first hearing. The Appellant stated that orders made in the proceedings of Webb v iCare included an order as to the confidentiality of some material being put forward by the Respondent. The Appellant went on to explain that she misunderstood this order to wrongly suggest to her that she was not able to use the material she now seeks to put forward in these proceedings.
We have difficulty following this explanation and, in any event, accepting it at face value, we do not think, even for a litigant acting without legal representation, that it constitutes a reasonable excuse for not being able to put forward the evidence in question in the original proceedings.
If the matter was regarded as important, the Appellant could always have sought advice about the matter from various sources, including from the Tribunal or the Respondents. In the result, we are satisfied that this material could have been obtained with reasonable diligence and used in the original proceedings.
Next, in respect of the correspondence between the Appellant and the CSO, although this correspondence is dated after the Tribunal's Decision, the correspondence contains queries made of the CSO and the answers are sought to be used on appeal, as we understand the position of the Appellant. Such queries and answers could have been made at any time prior to the original proceedings.
Accordingly, the evidence and material facts in question that are sought to be relied upon by the Appellant, could have been obtained at the time of the original hearing with reasonable diligence.
Further, having regard to all of the issues in the proceedings and the issues sought to be raised on the Notice of Appeal, including the submissions in support of that Notice of Appeal, we are of the view that the new evidence could not have impacted the result of the Tribunal at first instance if it had been admitted.
We are not "affirmatively satisfied" that having regard to the findings of the Tribunal at first instance that the further evidence, if tendered at the hearing conducted by the Tribunal would likely "have produced a different result": see ZBC v ZBD [2016] NSWCATAP 264 at [32] citing Building Professional Board v Hans [2008] NSWADTAP 13 at [54]; ZCK v NSW Trustee and Guardian [2016] NSWCATAP 200 at [25].
Accordingly, the Appeal Panel has decided not to admit the new evidence which the Appellant seeks to introduce on this appeal.

[6]

Leave to appeal

Section 80(2)(b) of the NCAT Act allows for internal appeals of decisions of the Tribunal other than on questions of law, with the leave of the Appeal Panel.
The principles on the grant of leave are well-established with the Tribunal often quoting Collins v Urban [2014] NSWCATAP 17 at [84]: "(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014) NSWCATAP 10 at [45); (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM (2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."

[8]

The Tribunal erred by allowing copyrighted material into evidence to support the agency's decision, without the agency having first sought permission for use.

Ground 1, according to the Appellant, referred to the copyright material printed from a website which both the Council and the CSO provided to the Tribunal, allegedly without first seeking permission for use.
The Appellant asserted that the material was clearly marked as copyright material and hence the Tribunal received copyrighted material as evidence when this had not been "authorised".
The alleged relevance of this was set out in the Appellant's written submissions as follows: "75. The tribunal has not articulated in its decision how it is able to consider copyrighted material as evidence when use in that context has not been authorised. 76. The tribunal's decision makes reference to the word 'copyright' a total of (33) thirty-three times, but only in relation to the document identified as Document No. 38. 77. There is no reference to the Appellant's equal rights to copyright concerning the material printed and provided to the tribunal as part of the Respondent's and Objector the Crown Solicitors' evidence. 78. Accordingly, the tribunal acted with bias towards the Respondent and the Crown Solicitor against the unrepresented, untrained, and unqualified Appellant, on the issue of the Appellant's copyrighted material and allowing it into evidence."
The CSO contends that contrary to the Appellant's submission there is no reproduction of any copyright material, but rather Ms Mattes, in her affidavit evidence, made observations about the website.
Further and in any event, s 43 of the Copyright Act 1968 (Cth) confirms that copyright in a literary work is not infringed by anything done for the purposes of a judicial proceeding.
The Appellant's submissions in reply were as follows: "The first Respondent at its paragraph 34 is negligent in not admitting the subject material is copyright. The Appellant does allege that it was procedurally unfair of the Tribunal to admit the Appellant's copyright material into evidence. Given the fact that the Appellant is a non-legal professional it was at all times reasonable to rely upon the Tribunal to ensure procedural fairness and equity between the parties at all times."
We are not satisfied that there was any infringement of copyright as alleged by the Appellant. We are also not satisfied that even if there was an infringement of copyright that this would affect the outcome of the Decision.
Accordingly, we dismiss this ground of appeal.

[9]

The Tribunal erred by accepting copyright had been claimed over Document 38 by the author the IPC when it had not been.

Ground 2 as it relates to Document 38 does not need to be considered by us as the Appellant no longer pursues access to Document 38 within the scope of this appeal.
The Appellant in her submissions however, expanded ground 2 to complain that the Tribunal "additionally erred by accepting copyright as being claimed over Documents 34 through 37 by the author the Crown Solicitor when it had not been".
The Appellant refers to the Tribunal's findings at [96] that "The Tribunal notes that the CSO asserts copyrighted material themselves as literary works."
Such expanded ground of appeal in our view has no merit. The Tribunal's observation regarding the assertion of copyright is not a material aspect of the Tribunal's reasoning in finding Documents 34 - 37 to be subject to an overriding public interest against disclosure.
Further, and in any event, Documents 34 - 37 are all clearly marked as being subject to "Crown copyright".
Further, and in any event, the Tribunal made no finding one way or another as to whether the documents were subject to copyright.
Finally, the Appellant in her submissions further expanded on ground 2 to argue that "the Tribunal did not properly consider the CSO's claim referring to the release of documents to the world at large" by arguing that "the claim by the CSO that the documents would effectively be released to the world at large … has no basis".
The Tribunal dealt with the issue at [83] as follows: "The CSO and the Respondent emphasise that disclosure under the GIPA Act is unconditional, that is, there are no limitations or conditions as to the manner in which information released may be used or disclosed (GIPA Act, sections 15(e) and 73). Release of the CSO's training material under the GIPA Act would, for all intents and purposes, be a release 'to the world at large'."
There is no error in the Tribunal's analysis in this regard which is conventional and based upon s 70(1) and s 15(3) of the GIPA Act.
Accordingly, we dismiss ground 2 of the appeal.

[10]

The Tribunal erred by misconstruing the facts concerning the actual market of interest to the Office of the NSW Crown Solicitor.

The Appellant's submissions in support of this ground were as follows (104) - (108): "104. As was clearly articulated to the tribunal (Paragraph 147 of the transcript), the Appellant correctly informed the tribunal the Crown Solicitor has had ongoing access to the whole of population of the state of NSW' right to information and privacy officers, through the NSW Right to Information & Privacy Practitioners Network (the Network) (new evidence). 105. The new evidence listed at Paragraph 43 of this document exemplifies the degree of regularity the Crown Solicitor has shared GIPA Act 2009 educational material with the Network, a group openly conceded by both the Crown Solicitor herself and the Chair of the Network as nongovernmental. 106. In this regard, the tribunal's comments at Paragraph88 of her decision are inaccurate representations of the credible information relayed to her. 107. The Crown Solicitor has had and continues to have direct access to the whole of population of the State's right to information and privacy officers, through the non-governmental organisation known as the NSW Right to Information & Privacy Practitioners' Network, the Network. 108. Such access to lucrative government contracts is in contravention to legislated procurement protocols, of which the Crown Solicitor is expected to be fully aware. Any reasonable person would agree the Office of the Crown Solicitor has continually solicited to a non-governmental organisation for the purpose of influencing legal contract decision makers, bypassing legislated procurement processes."
We note the Appellant purports to rely upon new and additional evidence on appeal which the Appeal Panel has decided not to admit.
In our view, the new material sought to be introduced to by the Appellant has no bearing on the Tribunal's findings or relevance to the relevant facts and issues before the Tribunal. In particular, we note that Ms Mattes gave evidence of her knowledge of, and involvement with, the Information and Privacy Practitioners Network. The minutes do not add in any relevant way to this evidence.
The Tribunal's comments at [88] which the Appellant submitted was 'inaccurate representations of the credible information relayed to her' is as follows: "It is not disputed that the CSO is an 'agency' within the meaning of clause 4(a). It operates training on the GIPA Act for a fee. It does so in a competitive market. The CSO is enjoying a successful position within that market with sold out training courses on GIPA Act training. As Ms Mattes said at the hearing, the ongoing demand exceeds supply. In the Tribunal's view, the relatively small number of players in that market is immaterial, as is the amount of revenue generated by the training activity as a proportion of the organisation's budget. Substantial effort, expertise and creativity goes into development of the training materials and the Tribunal finds that disclosure of those materials such that they would be widely available free of charge would create a disadvantage to the CSO within the market for GIPA Act related training. Free accessibility of the CSO's training materials would naturally disincentivise individuals or agencies from paying to do the course in order to access those materials. That is sufficient to find the consideration in clause 4(a) enlivened in this case."
In our view, no error of law has been identified by this ground of appeal and leave to appeal would be required.
The Appellant has failed to demonstrate any basis for questioning the findings of fact made by the Tribunal at [88] such as to justify the grant of leave to appeal. The findings were open to the Tribunal based on the evidence before it including, in particular, the evidence summarised by the Tribunal at [57] - [63] referred to by us above.
In our view, the Tribunal has gone about the fact-finding process in an orthodox manner and the facts found were reasonably arrived at and not "clearly mistaken".
Accordingly, we reject ground 3.

[11]

The Tribunal erred by misconstruing the Crown Solicitor's claim of competitive neutrality.

The Appellant's written submissions in support of this ground (110) - (113) were as follows: "110. GIPA training is not the crown solicitor's primary or core business, neither does it qualify as a legal service. The crown solicitor has exclusive mandated rights to provide that primary or core business, to every NSW agency and numerous other entities, where no aspect of competitive business neutrality is a factor, that is it has a legislated monopoly of service. It has a captive audience which does not require marketing to, and as such the claim the release of the GIPA training material will impact on the crown solicitor's competitive neutrality is not qualified. 111. Competitive neutrality has been manipulated by both the tribunal and the Crown Solicitor in this case. The Crown Solicitor is to act to ensure it meets its obligations concerning competitive neutrality, which can include the exercise of its legal functions and the provision of its services in a manner consistent with the principles of competitive neutrality (iPART Draft Report 2022). 112. Competitive neutrality is not a ground on which to withhold information pertaining to government business. 113. Competitive neutrality is a ground supporting the release of government information pertaining to government business."
The Appellant in submissions in reply accepted that the CSO does not have a legislated monopoly of service in respect of the provision of training or in the provision non-core legal services.
In reply, she further submitted that the Tribunal and the Council misinterpreted the application of competitive neutrality, without further elaboration.
Taking a generous approach to the Appellant's submissions, there is a suggestion of an error of law in the submission that competitive neutrality is not a ground on which to withhold information properly under the GIPA Act. In our view, this is not correct. Whether the disclosure of documents could reasonably be expected to undermine the CSO's competitive neutrality is a public interest consideration against disclosure under clause 4(a) of the Table to s 14 of the GIPA Act.
Otherwise, we take it to be that the Appellant takes issue with the conclusion of the Tribunal that clause 4(a) of the Table to s 14 applied and the conclusion of the Tribunal that Documents 34 - 37 would "place the CSO at a competitive disadvantage in the market for the provision of training relating to the GIPA Act" was wrong based upon the evidence before it.
In our view this does not raise any question of law and leave to appeal is required.
We note that the Tribunal made no findings directly as to the effect of disclosure of the Documents on the CSO's "competitive neutrality". Rather the Tribunal merely concluded that clause 4(a) of the Table to s 14 to the GIPA Act applied in that disclosure of the relevant Documents could reasonably be expected to place the CSO at a competitive disadvantage in the relevant market.
In respect of this finding, in our view, the evidence fully supported the conclusion. We note for example that there was evidence before the Tribunal that: 1. The CSO provides training regarding the GIPA Act for a fee in a market consisting of a number of other entities that also offer and provide training relating to the GIPA Act for a fee: see Mattes affidavit at [12] - [14]; and 2. That the CSO competes with the private sector to deliver "non-core" legal work to government agencies: see Mattes affidavit at [4].
In our view the Appellant has not identified any error in the Tribunal's conclusion that disclosure of the Documents 34 - 37 could reasonably be expected to place the CSO at a competitive disadvantage and, thus, that clause 4(a) of the Table of s 14 of the GIPA Act applied as a public interest consideration against disclosure such as to justify the grant of leave.
We refer to the principles set out by us above in respect of granting leave to appeal.
In our view, leave to appeal to raise the issues agitated by the Appellant in ground 4 should be refused.
Accordingly, we dismiss ground 4.

[12]

The Tribunal erred by misconstruing the Crown Solicitor's claim of competitive commercial value.

The Appellant's written submissions in support of this ground were as follows (115) - (119): "115. At P92 of the decision it states: 116. 'The tribunal has a/so found that information has commercial value when there is evidence that an entity had invested substantial effort and staff time in building a product from publicly available information.' 117. Firstly, no evidence was put to the tribunal in this case to indicate any substantial effort had been invested, or what amount of staff time had been allocated towards the requested information. 118. Secondly, the information does not concern publicly available information. 119. The Tribunal contradicts this paragraph 92 at its Ps 60 & 98, by accepting the crown solicitors' submissions that the material is unique, .and therefore it cannot qualify, by default, as publicly available information. If that were not the case, that is that the requested information is not unique, then the crown solicitor would not be objecting to the release of the requested information."
In reply the Appellant submitted that the Council ignored the fact in its submissions that the Tribunal made findings of fact without any evidence in support. Further, that the CSO was unable to point to any evidence provided to the Tribunal to support its claim on this issue.
The Appellant asserted that this qualifies as an error of law.
The Tribunal accepts that a claim that a finding is made with "no evidence" to support it can be an error of law. Otherwise, a claim of misconstruing the facts so as to make an erroneous finding of fact does not raise any question of law and leave to appeal is required.
In any event, the Appellant appears to have misunderstood the Tribunal's finding at [92]. The findings of the Tribunal are not confined to [92] and appear from paragraphs [90] - [99].
The Appellant argues that the Tribunal found without evidence that substantial effort or staff time were invested in building a product from publicly available information. However, Ms Mattes gave evidence to this effect as cited by the Tribunal at [94].
Accordingly, we reject the contention that the relevant finding of the Tribunal was made without any evidence in support.
Further, it is not necessarily the case, and it is not the case here, that products built from publicly available information are themselves publicly available information.
To the extent that this appeal ground seeks to impugn any relevant findings of fact made by the Tribunal, the Tribunal declines to grant leave to appeal pursuant to the relevant principles we have referred to above.
The Appeal ground does not raise issues of principle or questions of public importance or matters of administration or policy which might have general application. There is no plain injustice by the Tribunal's Decision; no factual errors; the Tribunal approached the fact-finding process in an entirely orthodox matter and the facts found were entirely open to it on the evidence before it.
Accordingly, we reject this ground of appeal.

[13]

The Tribunal erred by misconstruing the Crown Solicitor's claim of prejudice to its business and other interests.

The Appellant's written submission in this regard were contained at (121) - (123) as follows: "121. Release of the requested information is incapable of affecting the core business opportunities of the crown solicitor, opportunities which are limitless, where it has a legislated monopoly of service. In a recent annual report the CSO has recorded revenue in excess of $76m. 122. The revenue generated from GIPA training in the same period is estimated to be $32,000 at best, but is noted not to be referenced within the annual reports, and as such cannot qualify for any claim of prejudice to its business or other interests if the requested information is released. 123. This is compounded by the absence of any reference to any value of GIPA legal work undertaken by the CSO, that is not organically generated, but that is the direct result of her training programs."
By this ground of appeal, the Appellant challenges the Tribunal's acceptance of the CSO's claim of prejudice for its business and other interests by release of the documents in question.
In our view this does not raise any question of law and leave to appeal is required.
In our view, leave to appeal should be refused. This ground has not raised questions of principles or questions of public importance or matters of administration or policy which might have general application; there is no plain injustice by the Tribunal's Decision; no factual errors; and the Tribunal approached the fact-finding process in an entirely orthodox matter.
The Tribunal in its Decision set out detailed and comprehensive reasons for its conclusion that it could reasonably be expected that disclosure of the documents would prejudice the business interests of CSO: see in particular at [81] - [104].
The conclusion of the Tribunal was open on the evidence before it.
The Appellant's contentions seem to be based on the false premise that as the business activity in question is small relative to the other work of the CSO, its interests cannot be prejudiced by the release of the documents in question.
This premise does not withstand scrutiny. Even if the GIPA training is a relatively small part of the CSO's business that does not mean that the CSO cannot validly claim to have an interest in maintaining that business and to properly be able to assert that the release of the Documents would prejudice its business and other interests.
In reply the Appellant sought to re-characterise this ground of appeal as being a submission that the relevant finding of facts of the Tribunal was unsupported by any evidence and hence this may qualify as a question of law. We accept this may be a question of law, however, the evidence before the Tribunal as to the GIPA training conducted by CSO and the charges for such training as detailed in the affidavit of Ms Mattes provides ample support for the finding and conclusions of the Tribunal in this regard.
Hence, to the extent that ground 6 raises a question of law on the basis that there was no evidence to support the relevant finding, we reject this ground of appeal.

[14]

The Tribunal erred by accepting unsubstantiated/ un-evidenced claims of financial and other interests on the part of the Crown Solicitor.

The Appellant's written submissions in support of this ground can be found at (125) - (127) as follows: "125. Put simply, the crown solicitor did not put any evidence to the tribunal to support the claim of financial and other interests. 126. Neither did the Crown Solicitor put any evidence to the tribunal to support its claims that 'arms length buyers would be less inclined to pay for training if it could access the same information free of charge.' In this regard, the tribunal erred by accepting unevidenced claims on the part of the CSO, as referenced at Paragraphs 92, 94, & 98 of the Decision. 127. The Crown Solicitor has a legislated monopoly of service that is unable to be financially impacted should the requested information be released."
The Appellant in her submissions in reply agreed that this ground of appeal is intended to raise the ground of appeal "known as the question of law no evidence ground".
Such a contention fails as there was evidence available to the Tribunal to ground its conclusion. By Ms Mattes' affidavit, the CSO adduced evidence of key factors that were the subject of the relevant findings of fact by the Tribunal, namely: 1. that the CSO operates in a competitive market for the provision of training regarding the GIPA Act; 2. that it operates in a competitive market for the provision of legal services to government agencies; 3. that the CSO charges $400 plus GST per participant attending each of its GIPA courses; 4. that the CSO considers the provision of training to be one of its primary means of marketing the Office as a legal service provider and, in particular, an expert in matters involving the GIPA Act; and 5. that the training material in Documents 34-37 had been developed over a number of years and was the product of a substantial amount of time and effort devoted by senior lawyers of the CSO.
Accordingly, the Appeal Panel rejects ground 7.

[17]

The Tribunal erred by ignoring the full relevance of the GIPA Act 2009 Section 15 (a), (c), (d), & (e).

The Appellant's submission (144) in this regard was as follows: "The same applies at p38 where the tribunal followed the same format. It is not enough to merely make reference to clauses of the legislation, the tribunal is expected to clearly outline what considerations have been undertaken and how those have bearing on its decision, particularly when a party is not represented or legally qualified."
In reply the Appellant clarified that she was seeking to raise a question of law.
Further, she contended in reply that CSO conceded the Tribunal's lack of reasons on this issue. This was a reference to the submission of the CSO that the Tribunal did not refer to all provisions of s 15 in its reasons, but that no error arises from this fact.
This ground of appeal is similar to ground 9. The Appellant's contention appears to be that the Tribunal fell into an error of law by not providing express consideration of the application of s 15(a), (c) or (d) of the GIPA Act. Similar to our conclusion above, no error of law arises in this regard as no serious question arose as to their application in the administrative review proceedings.
The Tribunal correctly identified the principles set out in s 15 of the GIPA Act as relevant to the tasks of determining whether there is an overriding public interest against disclosure: at [15].
The Tribunal expressly considered the relevance of s 15(e) in its Decision on a number of occasions, including at [83] and [125].
We agree with the CSO's submission that no error of law arises from the fact that the Tribunal did not, otherwise, refer to other provisions of s 15 in its reasons. No argument or submissions were raised as to the application of these other provisions that would warrant any further consideration of them. It was not, for example, submitted by the Appellant that the Council or the CSO had impermissibly had regard to whether disclosure might cause embarrassment to, or loss of confidence in, government (contrary to s 15(c)), or that the information might be misinterpreted or misunderstood (contrary to s 15(e)).
Accordingly, we are satisfied that the Tribunal did not fall into any error as alleged under ground 10 and we dismiss this ground.

[18]

The Tribunal erred in its interpretation of s 44 of the Legal Profession Uniform Law Application Act 2014 (NSW).

The Appellant's written submissions in this regard were contained at (146) - (154): "146. This section refers specifically and repeatedly to the crown solicitor acting in her official capacity, that is her legal capacity. 147. At no place of this section of the Act is there any reference to training services, because training is not a legal service. 148. The crown solicitor has confirmed that the GIPA training service is paid for at a set cost, as has been publicly advertised on its website. There is no costs agreement between the crown solicitor and her trainees. There is no costs agreement because she is not providing a legal service. 149. In the Appellant's view, to assert that training services qualified as legal services and as such qualified under Section 44 of the LPULA Act, was decidedly misleading on the part of the crown solicitor, and exemplifies why the tribunal should exercise caution to accept submissions from qualified practitioners on face value and without evidence. 150. This revelation and clarification between what constitutes legal services and what qualifies as training services, leaves the crown solicitor able to provide training services, such as training on the GIPA act, to the public, without breaching any legislated constraints.151. Further, at the decision P119 the tribunal has failed to understand that the Network to which Ms Mattes peddles the CSO's legal services, is not a government organisation. Ms Mattes has confirmed the CSO markets its legal services to a non-governmental organisation, a group of self professed non-governmental individuals. (new evidence - CSO Submission 08.08.2022 & iCare Affidavit 08.08.2022). 152. The CSO makes regular presentations to the group concerning caselaw interpretations specifically concerning governmental legislation inclusive of the GIPA Act 2009. 153. As such the CSO does provide training and information dissemination to the general public. 154. Of greatest concern is the CSO's disclosure it markets governmental legal services to non-governmental individuals, for the specific purpose of gaining access to NSW government agency decision makers tasked to secure legal services concerning the GIPA Act 2009."
Apart from the above submissions, the Appellant went on to make wide ranging attacks on the CSO's presentation of its GIPA training courses which are totally irrelevant to any issues required to be determined on this appeal and we put them to one side.
Otherwise, the Appeal Panel understands the Appellant is submitting that the Tribunal erred by finding that the provision of training in respect of the GIPA Act is a "legal service" for the purpose of s 44 of the Legal Profession Uniform Law Application Act 2014 (NSW). The Tribunal made no such finding.
The Tribunal's discussion of s 44 of the Legal Profession Uniform Law Application Act arose in response to arguments by the Appellant that there was a lack of equity in members of the public not having access to training regarding the GIPA Act: see [118].
The Tribunal acknowledged the Appellant's observation about the difference in knowledge about GIPA processes among members of the public and those agencies who receive specialised training. However, the Tribunal went on to address this argument, at [119], as follows: "In any event, the Tribunal is not persuaded that the CSO should be concerned with disseminating information about the GIPA Act to members of the public. At the hearing, Ms Mattes reminded the Tribunal that the CSO limits its course to agencies because the CSO can only provide services to those types of entities under the Legal Profession Uniform Law Application Act 2014 (NSW). The CSO therefore cannot provide legal services to anyone who falls outside the categories set out in section 44 of that Act. That is the reason the CSO's trainings are targeted to agencies. The CSO is a law firm that provides services to clients, who are not general members of the public. It is simply not part of the mandate of the CSO to improve the public's general understanding of the GIPA Act. She submitted that was rather the job of the IPC_ Accordingly, while there is a general public interest in generating understanding of the GIPA Act it needs to be balanced against the public interest considerations against disclosure in the present case.
Thus, it is clear that the Tribunal did not find that the provision of training was a legal service for the purposes of s 44 of the Legal Profession Uniform Law Application Act. Rather, the relevance of that provision was to explain why the CSO targets GIPA training to agencies, and to counter the suggestion that the CSO might have a broader mandate or other imperative to provide training regarding the GIPA Act to the general public. No error arises from the Tribunal's analysis.
Finally, we note that the Appellant in her submissions in respect of this ground refers to some of the new evidence she seeks to introduce regarding the CSO's involvement in the Information and Privacy Practitioners Network.
The Appeal Panel relies on its earlier reasons for rejecting this new evidence and hence rejects the submissions in this regard under this ground.
Accordingly, the Appeal Panel dismisses this ground of appeal.

[20]

The CSO misrepresented to the Tribunal that the Respondent Port Stephens Council was a client of the CSO.

The Appellant's written submissions contained an alleged ground of appeal under the heading "ground 13". We note that this is a new ground of appeal that does not appear in the Notice of Appeal. We will deal with this ground of appeal as "ground 13" as the parties did not object to our consideration of this ground.
The Appellant's written submissions in support of this ground (158) - (160) were as follows: "158. At the CSO's submissions P36, she states '…the training materials that have been prepared for the provision of training to clients under the GIPA Act'. 159. Ms Mattes has failed to provide any evidence of the Respondent Port Stephens Council being a client under the GIPA Act, that the CSO is able to act for a NSW Local Council in such matters (new evidence).160. Ms Mattes refusal to properly respond to the Appellant's legitimate enquiry concerning the services the CSO is able to provide to NSW Local Council's supports the Appellant's view that the Respondent Port Stephens Council did not qualify as a client of the CSO at the time the GIPA Training was provided, and has not qualified either before or since that time."
The written submissions appear to be different to the terms of the ground itself in the Notice of Appeal. We will deal with this ground on the basis of the written submissions as no objection was taken by the parties to treating the written submissions as raising a new ground of appeal as if contained in the Notice of Appeal.
We note nothing of substance was raised by the Appellant in her written submissions in reply.
The premise of this ground of appeal appears to be that the Tribunal found that Port Stephens Council was a client of the CSO as a result of CSO "misrepresenting" the position or otherwise because of a lack of evidence to support such proposition.
This ground of appeal is wholly misconceived. The Tribunal did not make any findings regarding the status of the Council as a client of the CSO, or otherwise. In addition, whether or not the Council was a client of the CSO has no relevance to the Tribunal's reasons.
Further, and in any event, the contents of the CSO's submissions at (36) when it makes reference to "clients", the submission does not in fact address the status of the Council specifically. It does not state whether or not the Council was a client of CSO in respect of the training material or Documents in question.
Accordingly, we reject ground 13.

[21]

The Tribunal erred by ignoring the public interest in the release of the information.

In her written submissions, ground 14 actually refers to what appears in the Notice of Appeal as ground 13 which we have set out above. The Appellant's written submissions in this regard (162) - (166) were as follows: "162. At P75 the tribunal states the Appellant did not expressly articulate specific public interest considerations in favour of disclosure. 163. The Appellant respectfully reminds the tribunal she is not legally qualified and remains unrepresented and as such the tribunal cannot expect such parties to proceedings to make articulate or legally eloquent submissions to the standard it naturally expects of agency representatives. 164. However, the Appellant did make clear to the tribunal the public interest in favour of disclosure, which the tribunal does refer to at the decision P76. 165. Indeed, Paragraphs 218 to 221 of the transcript records extensive commentary from the Appellant concerning the public interest in releasing the requested information. ' 166. In this regard, the tribunal did not accurately report the issue of public interest from the perspective of the Appellant in its decision."
The only matter of substance in the submissions in reply of the Appellant was her contention that the Tribunal did not make proper reference to her verbal submissions.
The Appeal Panel accepts that not properly taking into account or "ignoring" the public interest in the release of the requested information or the Appellant's submissions in this regard could amount to a question of law. This submission is plainly not made out.
The Tribunal gave close and careful consideration to the public interest favouring disclosure: see [71] - [78].
The Tribunal also carefully considered the weight to be contributed to the identified public interest factors in favour of disclosure as part of the balancing process required by s 13 of the GIPA Act: see [115] - [119].
It may be that the real complaint of the Appellant is that the Tribunal did not properly have regard for her oral submissions as to the public interest factors in favour of disclosure.
The Tribunal at [75] summarised the Appellant's oral submissions in this regard as follows: "Ms Webb did not expressly articulate specific public interest considerations in favour of disclosure in any written submissions before the hearing. During the hearing, she did suggest that members of the public should have access to the same training information as government agencies funded by the public. The Tribunal understands from the Applicant's closing remarks that, in her submission, it is in the public interest to avoid excluding members of the public from CSO training sessions. In the Applicant's view, disclosure of the CSO's full training materials would better inform the public, and thus serve to diminish any control or knowledge disadvantage that unrepresented members of the public face when they are parties before the Tribunal in GIPA Act matters."
We have read and considered the transcript referred to by the Appellant where she made submissions as to the public interest factors in favour of disclosure. The Tribunal's summary of those submissions, in our view, is fair and accurate. Further, the Tribunal properly considered and took into account those submissions.
Accordingly, we are not satisfied that the Tribunal did not accurately consider the Appellant's submission on the public interest considerations in favour of disclosure, and we reject this ground of appeal.

[25]

The Tribunal erred by misrepresenting parts of the oral submissions on the part of the Applicant.

The Appellant's written submission in support of this ground (177) - (183) was as follows: "177. At P95 the tribunal misquotes the Appellant's comments. The Appellant did not say 'the sums of revenue from the training courses needed to be large'. 178. At P107 the tribunal misquotes the Appellant's comments. The Appellant did make specific reference to the personal disadvantage she and the public were placed in when coming to the tribunal against a well-equipped, highly trained, opponent with unlimited resources. Those factors are most definitely personal. 179. Further in the same P107, the tribunal states the Appellant did not articulate any motives for wanting the undisclosed portions of docs 34 to 37. 180. The GIPA act does not require an access Applicant (Appellant) to provide any reasons for seeking access to the subject information, and as such it was wrong of the tribunal to rely on this as a factor against the provision of the documents. 181. Overall, the decision predominately discusses the public interest considerations against disclosure, accepting the crown solicitor's position without question. 182. There is little from the tribunal in the balancing of considerations for and against disclosure. 183. In this regard, the tribunal's published decision is an inaccurate record of the dialogue and information it had at hand."
We note no submissions of substance were made in reply.
The core of the complaint in this ground of appeal appears to be that the Appellant takes issue with the accuracy of the Tribunal's summary of the Appellant's oral submissions.
Having considered the material, we are not satisfied that there was any misrepresentation on the part of the Tribunal.
Further, and in any event, this fact on its own does not disclose any error on the part of the Tribunal vitiating the Decision to be reviewed. It is not suggested that the Tribunal asked the wrong questions or identified the wrong issues or failed otherwise to give proper reasoning for the conclusion reached.
Accordingly, we dismiss this ground of appeal.

At a glance

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Judgment (30 paragraphs)

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Legislation Cited (4)

Cases Cited (16)

Cited By (3)