2019/00174490:
Telina Webb (Applicant)
Port Stephens Council (Respondent)
Source
Original judgment source is linked above.
Catchwords
2019/00174490:
Telina Webb (Applicant)
Port Stephens Council (Respondent)
Judgment (18 paragraphs)
[1]
Background
These reasons for decision deal with three applications involving the same parties.
1. In 2019/001744496 the applicant Telina Webb sought a review of a decision of Senior Member Hamilton SC published on 27 March, 2019 concerning proceedings brought by her against the respondent Port Stephens Council arising out of an application made by her under the Government Information (Public Access) Act 2009 (NSW) "(the GIPA Act") .
2. In 2019/00174490 Ms Webb sought orders that the respondent be referred for contempt of the Tribunal based on asserted non-compliance by the respondent with orders made by Senior Member Hamilton on 27 March 2019.
3. In 2019/00380640 the Council sought an order against Ms Webb under section 110 of the GIPA Act restraining her right to make further applications to Council under that Act.
It is convenient to set out some background information to give context to the material which follows. Ms Webb owned a property jointly with her husband Mr McEwan within the local government area regulated by the Council. In 2011 Ms Webb and her husband commenced to construct a "privacy screen" near a swimming pool in the backyard of their home. A complaint was made to the Council about the height of the screen. The Council required Ms Webb and her husband to submit a Development Application ("DA") which was later refused after it has been advertised and the Council had received objections and submissions. The Council then issued an order for partial demolition of the privacy screen. Ms Webb and her husband commenced proceedings in the NSW Land and Environment Court which culminated in a settlement agreement being reached between the parties whereby the DA was approved on the condition that the height of the privacy screen was reduced. Ms Webb and her husband sold the property in August 2013 and moved away from the area regulated by the Council. They have not resided in that local government area since then.
On 4 August 2011 Ms Webb lodged a GIPA application seeking access from the Council to "any and all complaints, including letters and all records of telephone conversations" referable to the privacy screen. She informed the Council that she expected to be told of the details of any persons who had complained about the privacy screen. Since that time Ms Webb and her husband have made a large number of GIPA applications, all arising out of or associated with their dealings with Council concerning the privacy screen. These matters will be described in greater detail later in these reasons for decision.
One of the last GIPA Act applications filed by Ms Webb with the Council was dated 15 August 2019. An accompanying letter made clear that even at that time, six years after she had ceased living in the area, she was seeking documentation relating to the identity of persons who had objected to the DA for approval of the privacy screen.
It is uncontroversial that Ms Webb was entitled to seek certain information from the Council under the provisions of the GIPA Act. Section 9 provides as follows;
9 Access applications
(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
(2) An agency is not subject to the direction or control of any Minister in the exercise of the agency's functions in dealing with a particular access application.
(3) The function of making a reviewable decision in connection with an access application made to an agency may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.
However, as will be seen, there are limitations on that entitlement. These matters will be discussed later in these reasons for decision.
[2]
The evidentiary material
For convenience all proceedings were heard concurrently, because they arose out of a substantially similar factual background, and many factual matters were common to all of them. However, evidence in one set of proceedings will only be taken into account in any other proceeding, to the extent that it is relevant.
Ms Webb filed a bundle of documents on 23 August 2019 which contain both factual material and submissions and became an exhibit in the applications brought by her. She filed four volumes of material on 18 February 2020 which contain both factual material and submissions which were filed in response to the sec 110 application brought by the Council
The respondent Council filed an affidavit of Tony Leslie Wickham sworn 30 January 2020 and three volumes of documents comprising 2965 pages exhibited thereto in connection with the section 110 application. It also filed documents with respect to the applications brought by Ms Webb which contained both factual material and submissions. Finally, the Council filed a volume of material containing details of 6 complaints brought by Ms Webb against Mr Wickham who is the Council's Executive Officer and Governance Manager.
Ms Webb was required for cross examination on material which she had submitted and gave oral evidence accordingly.
I shall refer to this material to the extent that it is relevant to my consideration of the matters to be determined in these proceedings.
[3]
The factual background
The narration which follows is based upon the evidentiary material provided by the parties. A convenient summary of the history and description of the nature and extent of exchanges between Ms Webb and the Council is contained within the affidavit of Mr Wickham. Because their extended nature occurred over a significant period of time, I set out verbatim the contents of this affidavit, but not the exhibits which are referred to which, as I have said, extend over 2965 pages. The affidavit is as follows;
1 I am the Governance Section Manager and Public Officer at Port Stephens Council (Council) and have been employed by Council since 2003.
2 Exhibited to my affidavit and marked TW-1 is a folder of documents. A reference in this affidavit to [x] is a reference to page x in Exhibit TW-1.
3 I affirm this affidavit in support of Council's application for an order under s 110 of the Government Information (Public Access) Act 2009 (GIPA Act) to restrain Telina Webb from making further applications for access to information under that Act.
4 I have held my current role since 2018.
5 I also occupy the statutory position of complaints coordinator at Council under the Procedures for the Administration of the Code of Conduct.
6 As part of my role as Governance Section Manager and Public Officer, I am responsible overall for access to information requests.
7 These requests are usually processed under delegated authority by Council's Governance Officer, whom I supervise. I generally undertake any requests for internal review of accessing information determinations made by the Governance Officer.
8 Since 2011, I have either determined or supervised the determination of 50 formal applications for access to information under the GIPA Act which have lodged by Ms Webb.
9 In that time, I have also either determined or supervised the determination of 93 informal applications for access to information under the GIPA Act which have lodged by Ms Webb.
10 I have supervised the determining officer and was the officer who re-determined Mr McEwan's formal access application on 11 November 2016 following mediation in NCAT.
11 On 14 January 2020, I carried out a review of all of Council's records of GIPA applications lodged by Ms Webb. From my review of those records, Ms Webb has lodged:
a. four formal applications for access to information prior to 2016, with all of those applications lodged in either 2011 or 2012;
b. 37 formal applications for access to information between March 2017 and January 2020; and
c. 32 informal applications for access to information between March 2017 and January 2020.
12 A further six informal applications, and two formal applications for access to information have been lodged by Ms Webb's husband, Paul McEwan, since 2012.
Background to access applications
13 As the officer responsible for determining, or supervising the determination of, Ms Webb's applications for access to information, I am familiar with the vast majority of the documents held by Council containing dealings between Ms Webb and Council.
14 On the basis of my previous reviews of that material, I understand that, in about April 2011, Council received a complaint about a privacy screen installed by Ms Webb and her husband, Mr McEwan, on the property they then owned at (address anonymised).
15 On 15 July 2011, Ms Webb and her husband lodged development application 483/2011 (DA) in respect of the privacy screen. Council refused to grant consent to the DA.
16 In about March 2012, Ms Webb applied for a review of Council's determination of the DA under the then s 82A of the Environmental Planning and Assessment Act 1979 (EPA Act). Council again determined to refuse consent to the DA.
17 On 6 June 2012, Council issued an order under the then s 121B of the EPA Act requiring the removal of the privacy fence installed by Ms Webb and Mr McEwan.
18 In about July 2012, Ms Webb and Mr McEwan commenced proceedings in the NSW Land and Environment Court. Those proceedings were a merits appeal against Council's decision to the issue the order requiring demolition.
19 On 29 November 2012, consent orders were entered into resolving the proceedings.
20 In about August 2013, Ms Webb and Mr McEwan sold their property. To the best of my knowledge, Ms Webb and Mr McEwan no longer live in the Port Stephens Local Government Area.
A. RECENT APPLICATIONS WHICH LACK MERIT
GIPA Application No. PSC2018-02398
21 On 27 June 2018, Council received a formal access application under the GIPA Act from Ms Webb: [970 - 973]. That application was given identifier PSC2018-02398.
22 On 20 July 2018, Council sent a letter to Ms Webb seeking to clarify the scope of the application: [974 - 975].
23 On 3 August 2018, Council received a letter from Ms Webb: [976].
24 On 18 October 2018, Holly Jamadar, a governance officer at Council, determined to refuse to deal with the application as it would require an unreasonable and substantial diversion of resources: [977 - 990].
GIPA Application No. PSC2018-02577
25 On 20 July 2018, Council received a formal access application under the GIPA Act from Ms Webb: [991 - 993]. That application was given identifier PSC2018-02577.
26 In a letter dated 24 July 2018, Council requested that Ms Webb clarify the scope of the application by confirming what she meant by the term 'UCC': [994]
27 On 4 August 2018, Council received an email from Ms Webb which attached a letter dated 3 August 2018: [995 - 997].
28 On 8 August 2018, Ms Jamadar determined that the information requested by Ms Webb was not held by Council: [998 - 1011].
GIPA Application No. PSC2019-00108
29 On 14 January 2019, Council received two formal access applications under the GIPA Act from Ms Webb.
30 The first application was given identifier PSC2019-00108: [1088 - 1091].
31 Attached to that application was a copy of an email from Ms Lisa Gowing dated 5 October 2012: [1091].
32 On 12 February 2019, Ms Jamadar determined that the information requested by Ms Webb was not held by Council: [1092 - 1106].
GIPA Application No. PSC2019-00110
33 The second formal access application received by Council from Ms Webb on 14 January 2019 was given identifier PSC2019-00110: [1107 - 1109].
34 23 On 8 February 2019, Council sent Ms Webb a letter requesting additional information regarding the application: [1110].
35 In an email dated 8 February 2019, Ms Webb responded to Council's request for clarification: [1111 - 1112].
36 On 12 February 2019, Ms Jamadar determined that the information requested by Ms Webb was not held by Council: [1113 - 1128].
B. FURTHER FORMAL GIPA APPLICATIONS
Applications regarding Council's consultation with third parties
37 Of the formal applications lodged by Ms Webb and her husband, 13 relate to Council's consultation with third parties regarding complaints in relation to the privacy screen, objections to the DA, and GIPA applications for access to those complaints or objections.
GIPA Application No. PSC2011-02623
38 On 27 July 2011 Council received an application from Ms Webb (which was mis-dated as 26 July 2010), which was given identifier PSC2011-02623: [2 - 6].
39 On 29 July 2011, Ms Webb advised that the formal application should be placed on hold until an informal application lodged by Mr McEwan (dated 14 July 2011, [1]) was determined. On 4 August 2011, Ms Webb advised that she wished to proceed with the formal application: [8 - 9].
40 On 9 August 2011, I determined to refuse to provide Ms Webb with access to the material: [13 - 19].
GIPA Application No. PSC2012-05342
41 On 20 December 2012, Council received three formal access applications under the GIPA Act from Ms Webb.
42 The first of these applications was given identifier PSC2012-05342: [20 - 21].
43 On 7 February 2013, I determined to refuse to grant Ms Webb access to the information: [22 - 28].
GIPA Application No. PSC2012-05343
44 The second formal access application received by Council from Ms Webb on 20 December 2012 was given identifier PSC2012-05343: [29 - 30].
45 On 8 January 2013, I determined to refuse to grant Ms Webb access to the information: [31 - 35].
GIPA Application No. PSC2012-05346
46 The third formal access application received by Council from Ms Webb on 20 December 2012 was given identifier PSC2012-05346: [36 - 37].
47 On 7 February 2013, I determined to refuse to grant Ms Webb access to the information: [38 - 45].
GIPA Application No. PSC2016-00216
48 On 20 January 2016, Council received two formal access applications under the GIPA Act from Ms Webb. The first of these applications was given identifier PSC2016-00216: [46 - 49].
49 On 16 February 2016, Courtney Coburn, a governance officer and right to information officer at Council, identified one document falling within the scope of the application and granted Ms Webb full access to that document: [50 - 62].
50 On 4 April 2016, Ms Webb sought review of Council's decision in the Tribunal.
51 In the course of a case conference before the Tribunal, Ms Webb clarified that the scope of her application extended to third party consultation under the GIPA Act. Council was directed to re-determine the application: [63]. A further search was carried out, and I determined to release the dates of third party consultations under the GIPA Act to Ms Webb: [63 - 70].
52 Ms Webb pressed her application in the Tribunal. Council's decision was affirmed by the Tribunal at first instance in Webb v Port Stephens Council [2017] NSWCATAD 271. It was then affirmed on appeal by the Appeal Panel in Webb v Port Stephens Council [2018] NSWCATAP 224.
GIPA Application No. PSC2016-00217
53 The second formal access application received by Council from Ms Webb on 20 January 2016 was given identifier PSC2016-00217: [71 - 74].
54 On 15 February 2016, Ms Coburn determined that Council did not hold the information requested: [75 - 84].
55 On 4 April 2016, Ms Webb sought a review of Council's decision in the Tribunal.
56 On 31 May 2016, following a case conference in the proceedings, Council was directed to re-determine the access application following the receipt of further information from Ms Webb: [85].
57 On 27 June 2016, I determined that Council did not hold the information requested [85 - 88].
58 Council's decision was affirmed by the Tribunal at first instance in Webb v Port Stephens Council [2017] NSWCATAD 271. It was then affirmed on appeal by the Appeal Panel in Webb v Port Stephens Council [2018] NSWCATAP 224.
GIPA Application No. PSC2016-00709
59 On 3 March 2016, Council received a formal access application from Ms Webb which was given identifier PSC2016-00709: [125 - 132].
60 On 3 May 2016, Ms Coburn identified 47 documents as falling within the scope of the application, and determined to ([133 - 160]):
a. grant Ms Webb part access to 12 documents,
b. refuse Ms Webb access to 29 documents, and
c. refuse to deal with Ms Webb's application in respect of six documents.
61 On 15 June 2016, Ms Webb lodged NCAT Application No. 2016/378165 regarding PSC 2016-00709.
62 On 11 November 2016, Council re-determined Ms Webb's application in response to an agreed outcome during an NCAT mediation in the matter: [165 - 195]. Council identified 73 documents as falling within the scope of the application and determined to ([172 - 195]):
a. grant Ms Webb part access to 23 documents,
b. refuse Ms Webb access to 44 documents, and
c. refuse to deal with the access application in respect of six documents.
63 Ms Webb pressed her application with the Tribunal. The proceedings were the subject of the following decisions of the Tribunal:
a. Webb v Port Stephens Council [2017] NSWCATAD 271;
b. Webb v Port Stephens Council [2018] NSWCATAP 224; and
c. Webb v Port Stephens Council [2019] NSWCATAD 47.
64 On 27 March 2019, the Tribunal remitted the matter to Council for re-determination for the documents in question to be suitably redacted to mask all personal information and all health-related information in relation to:
a. the 44 documents where Council refused to grant Ms Webb access; and
b. the six documents in respect of which Council refused to deal with Ms Webb's application.
65 Between 29 March 2019 and 10 May 2019, Ms Webb sent multiple emails to Council officers and Mr Zoppo in relation to the redetermination: [197 - 202].
66 On 15 May 2019, Ms Webb lodged NCAT Application No. 2019/174496 in relation to the absence of a decision of Council on remittal [203 - 206].
67 The redetermination was made by Notice of Decision dated 28 June 2019: [207 - 213].
68 The proceedings remain on foot and are listed for hearing on 24 February 2020 for Ms Webb to show cause as to why it should not be dismissed as frivolous, vexatious, or lacking in substance.
GIPA Application No. PSC2018-02369
69 On 20 June 2018, Council received a formal access application from Ms Webb which was given identifier PSC2018-02369: [947 - 950].
70 On 19 July 2018, Ms Jamadar identified eight documents as falling within the scope of the application and made the following determinations ([951 - 969]):
a. two were released in full to Ms Webb as they were documents which had been authored by her; and
b. access to the remaining six documents was refused in full on grounds which included that disclosure would prejudice court proceedings.
71 On 27 July 2018, Ms Webb commenced NCAT proceedings 2018/231127 in relation to Council's decision.
72 After numerous case conferences in the proceedings, the application was withdrawn by Ms Webb on 23 July 2019 without the provision of any further documents.
GIPA Application No. PSC2019-02452
73 On 24 May 2019, Council received a formal access application from Ms Webb which was given identifier PSC2019-02452: [1604 - 1607].
74 The application concerned Tribunal proceedings 2016/378193, which were commenced by Ms Webb's husband, Mr McEwan, in relation to an access application seeking a copy of objections lodged in relation to the DA. Those proceedings are the subject of the following decisions of the Tribunal:
a. McEwan v Port Stephens Council [2017] NSWCATAD 269;
b. McEwan v Port Stephens Council [2018] NSWCATAP 211; and
c. Webb v Port Stephens Council [2019] NSWCATAD 47.
75 Both documents sought in the application were filed by Council in the Tribunal on a confidential basis.
76 On 24 June 2019, Ms Jamadar determined ([1608 - 1624]):
a. to provide Ms Webb with access to the covering letter with the name of the third party the subject of the medical report redacted; and
b. to provide Ms Webb with a copy of the submissions in full. .
GIPA Application No. PSC2019-02506
77 On 4 June 2019, Council received a formal access application from Ms Webb which was given the identifier PSC2019-02506: [1625 - 1627].
78 On 3 July 2019, Ms Jamadar refused to provide access to the information the subject of the application: [1628 - 1643].
79 On about 4 July 2019, Ms Webb lodged an application for review with the NSW Information and Privacy Commission (IPC) (IPC reference: IPC19/R000429).
80 On 15 October 2019, the IPC determined that Council's decision was not justified: [1661 - 1668].
81 On 5 November 2019, I re-determined the application and determined to refuse access to the information: [1670 - 1681] (and as amended at [1685 - 1696]).
GIPA Application No. PSC2019-03530
82 On 15 August 2019, Council received a formal access application from Ms Webb which was given the identifier PSC2019-03530: [1697 - 1700].
83 On 26 September 2019, Ms Jamadar determined to grant part access to some information to Ms Webb, delete some information that did not fall within the scope of the application, and that access to the remaining information had already been determined in a previous GIPA request: [1702 - 1724].
84 On 27 September 2019, Ms Webb lodged an application for review with the IPC (IPC reference: IPC19/R000650): [1726 - 1727].
85 On 20 December 2019, the IPC concluded that Ms Jamadar's decision was justified: [1741 - 1746].
GIPA Application No. PSC2019-04728
86 On 8 October 2019, Council received a formal access application from Ms Webb which was given identifier PSC2019-04728: [1747 - 1750].
87 On 19 November 2019, Ms Jamadar determined that Council did not hold some of the information requested, and to otherwise released in part the remaining information: [1752 - 1776].
GIPA Application No. PSC2016-01633 (lodged by Mr McEwan)
88 On 2 February 2015, Council received an informal access application from Mr McEwan which was given identifier PSC2015-00347: [213A-213B].
89 On 16 February 2015, Ms Coburn determined to refuse access to the information requested: [213C].
90 On 7 June 2016, Council received a formal access application from Mr McEwan which was given identifier PSC 2016-01633: [214 - 217].
91 On 29 June 2016, Ms Coburn decided to refuse access to the information Mr McEwan sought: [225 - 237].
92 On 15 July 2016, Mr McEwan commenced NCAT Proceedings No. 2016/378193 in relation to Ms Coburn's decision.
93 On 11 November 2016, I re-determined Ms Webb's application in response to an agreed outcome during an NCAT mediation in the proceedings: [253 - 260].
94 That decision is the subject of the decisions of the Tribunal identified at paragraph 72 above.
Applications regarding the Privacy Screen
95 In addition to those applications which sought a copy of objections and complaints, Ms Webb has lodged a total of 18 applications relating to the Privacy Screen and the DA.
GIPA Application No. PSC2016-00295
96 On 29 January 2016, Council received a formal access application from Ms Webb which was given identifier PSC2016-00295: [89 - 92].
97 On 18 February 2016, Ms Coburn determined that Council did not hold the requested information: [93 - 102].
98 On 5 April 2016, Ms Webb commenced Tribunal proceedings 2016/378011 in which she sought a review of Council's decision.
99 On 31 May 2016, following a case conference, Council was directed to re-determine the access application following the receipt of further information from Ms Webb.
100 On 27 June 2016, I determined that Council did not hold the requested information: [103 - 106].
101 Council's decision was affirmed by the Tribunal at first instance in Webb v Port Stephens Council [2017] NSWCATAD 271. It was then affirmed on appeal by the Appeal Panel dismissed in Webb v Port Stephens Council [2018] NSWCATAP 224.
GIPA Application No. PSC2016-03555
102 On 6 December 2016, Council received a formal access application from Ms Webb which was given identifier PSC2016-03555: [284 - 289].
103 On 8 February 2017, Ms Coburn identified three documents as falling within the scope of the application. Each document was a screenshot showing a list of documents held on Council's TRIM records management system.
104 Ms Coburn decided to grant Ms Webb part access to each of the screenshots, with the title of document entries redacted to remove personal information: [290 - 300].
105 On 14 March 2017, Ms Webb applied for a review of this decision with the Tribunal. Those proceedings were given the file number 2017/89313.
106 In Webb v Port Stephens Council [2017] NSWCATAD 348, the Tribunal ordered Council to remove the redactions to certain non-personal information, and to release the entries except in so far as they identify non-Council employees.
107 Ms Webb appealed this decision to the Appeal Panel. In Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286, the Appeal Panel concluded that the TRIM records were not open access information. Despite this, the Panel remitted the matter to the Tribunal for reconsideration, along with other matters, on account of an error in the Tribunal's approach to open access information.
108 On 14 May 2019, Council released a revised redacted version of the documents the subject of the proceedings to Ms Webb: [339 - 377C].
109 Ms Webb pressed her application. Subsequent to a case conference on 16 July 2019, and by consent, the Tribunal remitted the matter to Council for reconsideration under s 65 of the Administrative Decisions Review Act 1997: [301 - 302].
110 On 2 August 2019, I determined not to release any further information to Ms Webb [303 - 308].
111 On 16 August 2019, Ms Webb withdrew her application without the provision of any further information.
GIPA Application No. PSC2017-01772
112 On 16 June 2017, Council received a formal access application from Ms Webb. The application was given identifier PSC2017-01772: [558 - 561].
113 On 6 July 2017, Cherylanne Bailey, a paralegal and right to information officer at Council, identified two documents as falling within the scope of the application, both of which were documents which Ms Webb and her husband had authored, and decided to grant full access to both documents: [562 - 574].
GIPA Application No. PSC2016-03556
114 On 6 December 2016, Council received a second formal access application from Ms Webb which was given identifier PSC2016-03556: [309 - 314].
100 On 17 January 2017, Ms Coburn located 23 records which responded to Ms Webb's application and determined to ([315 - 328]):
a. release 16 of those records to Ms Webb in full;
b. grant part access to five other records on the basis of legal professional privilege; disclosure revealing personal information that would contravene the PPIP Act; disclosure revealing health records information that would contravene the Health Records and Information Privacy Act 2002; and disclosure revealing information that would expose a person to risk of serious harm, serious harassment or serious intimidation under the Government Information (Public Access) Act 2009; and
c. refuse access to one document, being correspondence between Council staff and Council's Legal Services Manager, on the basis of legal professional privilege.
115 On 14 March 2017, Ms Webb commenced NCAT Proceedings No 2017/89311 for review of Council's decision.
116 Following a case conference on 23 May 2017, the Tribunal directed Council to review the searches undertaken: [402].
117 On 8 June 2017, I wrote to the Tribunal in respect of the further searches, which did not reveal any further information: [400 - 401].
118 On 7 July 2017, and upon receipt of the full processing fee for the application, Ms Bailey posted a copy of the Notice of Determination dated 17 January 2007 to Ms Webb.
119 The proceedings were the subject of the following decisions of the Tribunal:
a. Webb v Port Stephens Council [2017] NSWCATAD 348;
b. Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286.
120 On 14 May 2019, Council provided Ms Webb with a further version of the documents the subject of the proceedings with some redactions removed: [339 - 377C].
121 Ms Webb pressed her application. Subsequent to a case conference on 16 July 2019, and by consent, the Tribunal remitted the matter to Council for reconsideration under s 65 of the Administrative Decisions Review Act 1997: [301 - 302].
122 On 2 August 2019, I determined not to release any further information to Ms Webb [378 - 383].
123 On 16 August 2019, Ms Webb withdrew her application.
GIPA Application No. PSC2016-03598
124 On 12 December 2016, Council received a formal access application from Ms Webb which was given identifier PSC2016-03598: [384 - 388].
125 On 24 January 2017, Ms Coburn located three documents which responded to Ms Webb's request and determined to release two of the documents to Ms Webb in full and the other in a redacted form: [389 - 399].
126 On 14 March 2017, Ms Webb commenced NCAT Proceedings No 2017/89292 for review of Council's decision.
127 Following a case conference on 23 May 2017, the Tribunal directed Council to review the searches undertaken: [402].
128 On 8 June 2017, I wrote to the Tribunal in respect of the further searches, which did not reveal any further information: [400 - 401].
129 The proceedings were the subject of the following decisions of the Tribunal:
a. Webb v Port Stephens Council [2017] NSWCATAD 348;
b. Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286.
130 On 16 July 2019, at a case conference, Ms Webb withdrew her application without any further information being released.
GIPA Application No. PSC2017-00801
131 On 9 March 2017, Ms Webb lodged five formal access applications, each relating to the privacy screen and DA. The first of these applications was given identifier PSC2017-00801: [406 - 409].
132 On 11 April 2017, Ms Bailey granted Ms Webb full access to the information requested: [410 - 421].
GIPA Application No. PSC2017-00802
133 The second formal access application received by Council from Ms Webb on 9 March 2017 was given identifier PSC2017-00802: [425 - 428].
134 On 11 April 2017, Ms Bailey identified seven documents as falling within the scope of Ms Webb's application, but determined that there was an overriding public interest against disclosure of six of those documents because they were identified as being subject to legal professional privilege: [429 - 439]. Part access was given to the seventh document.
135 On 12 May 2017, Ms Webb applied to the Tribunal for review of Council's decision. Those proceedings (2017/146399) were the subject of the following decisions of the Tribunal:
a. Webb v Port Stephens Council [2017] NSWCATAD 348;
b. Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286.
136 On 14 May 2019, Council removed one of the redactions in the seventh document and provided Ms Webb with a copy: [339 - 377C].
137 On 16 July 2019, at a case conference, Ms Webb withdrew her application.
GIPA Application No. PSC2017-00803
138 The third formal access application received by Council from Ms Webb on 9 March 2017 was given identifier PSC2017-00803: [443 - 446].
139 On 11 April 2017, Ms Bailey determined that Council held no information which fell within the scope of the application: [447 - 455].
GIPA Application No. PSC2017-00804
140 The fourth formal access application received by Council from Ms Webb on 9 March 2017 was given identifier PSC2017-00804: [459 - 462].
141 On 11 April 2017, Ms Bailey identified eight documents which respondent to Ms Webb's application and determined to ([463 - 470]):
a. grant Ms Webb full access to one document,
b. grant Ms Webb part access to another document;
c. refuse Ms Webb access to the remaining six documents on the basis of legal professional privilege.
142 On 12 May 2017, Ms Webb applied to the Tribunal for review of Council's decision. Those proceedings (2017/146396) were the subject of the following decisions of the Tribunal:
a. Webb v Port Stephens Council [2017] NSWCATAD 348;
b. Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286.
143 On 14 May 2019, Council provided Ms Webb with a full copy of the document for which part access was granted with the only redaction removed: [339 - 377C].
144 On 16 July 2019, at a case conference, Ms Webb withdrew her application.
GIPA Application No. PSC2017-00805
145 The fifth formal access application received by Council from Ms Webb on 9 March 2017 was given identifier PSC2017-00805: [480 - 483].
146 On 11 April 2017, Ms Bailey identified 3 documents as falling within the scope of the application and decided to ([484 - 493]):
a. release two documents to Ms Webb in full; and
b. grant part access to one document.
147 On 12 May 2017, Ms Webb applied to the Tribunal for review of Council's decision. Those proceedings (2017/146393) were the subject of the following decisions of the Tribunal:
a. Webb v Port Stephens Council [2017] NSWCATAD 348;
b. Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286.
148 On 14 May 2019, Council provided Ms Webb with a full copy of the document for which part access was granted with the only redaction removed: [339 - 377C].
149 On 16 July 2019, at a case conference, Ms Webb withdrew her application.
GIPA Application No. PSC2017-01237
150 On 24 April 2017, Council received two formal access applications from Ms Webb. The first of these applications was given identifier PSC2017-01237: [494 - 498].
151 On 26 May 2017, Ms Bailey granted Ms Webb part access to some of the information requested and refused access to some of the information requested: [499 - 512].
GIPA Application No. PSC2017-01238
152 The second formal access application received by Council from Ms Webb on 24 April 2017 was given identifier PSC2017-01238: [513 - 517].
153 On 26 May 2017, Ms Bailey granted Ms Webb part access to the some of the information requested and determined that Council did not hold some of the information requested: [518 - 531].
GIPA Application No. PSC2017-02557
154 On 18 August 2017, Council received a formal access application from Ms Webb which was given identifier PSC 2017-02557: [575 - 578].
155 On 13 September 2017, Ms Jamadar determined to provide Ms Webb access to some of the information requested and determined that some of the information requested was not held by Council: [579 - 599].
156 On 29 September 2017, Ms Jamadar wrote to Ms Webb to advise that additional information had been located and provided a revised notice of decision including a detailed explanation about the additional information that was found after the initial date of determination: [600 - 620].
GIPA Application No. PSC2017-03166
157 On 1 November 2017, Council received a formal access application from Ms Webb which was given identifier PSC2017-03166: [678 - 680].
158 On 7 December 2017, Ms Jamadar determined to provide Ms Webb full access to the information requested: [681 - 698].
159 On 16 January 2018, Ms Webb applied to the Tribunal for review of Council's decision. The proceedings were resolved at a telephone preliminary hearing on jurisdiction held on 30 April 2018, during which Ms Webb withdrew her application
GIPA Application No. PSC2017-03368
160 On 6 December 2017, Council received a formal access application from Ms Webb which was given identifier PSC2017-03368: [699 - 704].
161 On 10 January 2018, Ms Jamadar determined to provide Ms Webb full access to the information requested: [705 - 727].
162 On 16 January 2018, Ms Webb applied to the Tribunal for review of Council's decision. The proceedings were resolved at a preliminary hearing on jurisdiction held on 30 April 2018, during which Ms Webb withdrew her application.
GIPA Application No. PSC2018-00656
163 On 1 March 2018, Council received a formal access application from Ms Webb which was given identifier PSC2018-00656: [774 - 777].
164 On 20 March 2018, Ms Jamadar emailed Ms Webb, attaching a letter dated 13 March 2018, seeking to clarify the scope of Ms Webb's application: [778].
165 On 20 March 2018, Ms Webb responded to Ms Jamadar's letter: [779 - 780].
166 On 6 April 2018, Ms Jamadar ([781 - 799]):
a. identified nine documents as falling within the scope of Ms Webb's application but that some of the information requested was not held by Council;
b. in relation to the nine documents she had identified, Ms Jamadar decided to:
i. release two documents to Ms Webb in full;
ii. release one document to Ms Webb in part; and
iii. refuse access to the remaining six documents.
167 On 16 April 2018, Ms Webb applied to the Tribunal for review of Council's decision.
168 On 3 July 2018, Council's solicitor, Carlo Zoppo, wrote to Ms Webb and provided her with an unredacted copy of the single document which had previously been released in part, and an unredacted copy of one document for which Ms Jamadar had refused access: [773A-773D].
169 Ms Webb pressed her application. Those proceedings (2018/119922) are presently before the Tribunal. The hearing has been concluded and the Tribunal's decision is reserved.
GIPA Application No. PSC2019-00276
170 On 5 February 2019, Council received a formal access application from Ms Webb which was given identifier PSC2019-00276: [1291 - 1294].
171 On 19 March 2019, Ms Jamadar determined to provide Ms Webb with part access to the information requested: [1295 - 1318].
GIPA Application No. PSC2019-02375
172 On 16 May 2019, Council received a formal access application from Ms Webb which was given identifier PSC2019-02375: [1495 - 1497].
173 On 28 June 2019, Ms Jamadar determined to provide access to the information requested with redactions being made in respect of the signatures of third parties: [1498 - 1515].
174 On 4 July 2019, Ms Webb sought an external review of the decision with the IPC (IPC reference: IPC19/R000426): [1516 - 1518].
175 On 18 September 2019, the IPC recommended that Council make a new decision in relation to the processing charge by way of internal review [1561 - 1566].
176 On 10 October 2019, Council determined that the processing charge would remain the same: [1568 - 1576].
177 On 11 October 2019, Ms Webb sought a review of the internal review decision with the IPC (IPC reference: IPC19/R000650): [1577 - 1578].
178 On 19 December 2019, the IPC determined that Council's decision to impose a processing charge was justified: [1599 - 1603].
Applications for material tied to NCAT Proceedings
179 In addition to applications PSC2018-02369 and PSC2019-02452 which sought material disclosed to the Tribunal in closed session, Ms Webb has lodged a further four access applications seeking material connected with proceedings before the Tribunal.
GIPA Application No. PSC2017-02787
180 On 13 September 2017, Council received a formal access application from Ms Webb which was given identifier PSC2017-02787: [649 - 651].
181 On 12 October 2017, Ms Jamadar determined to provide Ms Webb full access to the information requested: [659 - 677].
182 On 13 November 2017, Ms Webb applied to the Tribunal for review of Council's decision. Those proceedings (2017/00343768 were withdrawn by Ms Webb after a case conference.
GIPA Application No. PSC2018-03608
183 On 24 October 2018, Council received a formal access application from Ms Webb which was given identifier PSC2018-03608: [1012 - 1014].
184 On 8 November 2018, Ms Jamadar determined to grant Ms Webb full access to the information requested: [1015 - 1030].
185 Between 27 November 2018 and 19 December 2018, Ms Webb and Ms Jamadar engaged in further email correspondence in relation to this application: [1031 - 1036].
GIPA Application No. PSC2018-03897
186 On 27 November 2018, Council received a formal access application from Ms Webb which was given identifier PSC2018-03897: [1037 - 1040].
187 On 7 January 2019, Ms Jamadar determined to grant Ms Webb part access to the information requested: [1041 - 1058].
GIPA Application No. PSC2019-00702
188 On 19 March 2019, Council received a formal access application from Ms Webb which was given identifier PSC2019-00702: [1319 - 1322].
189 On 16 April 2019, Ms Jamadar determined that the application was invalid: [1331 - 1339].
Applications regarding alleged restriction of services
GIPA Application No. 2016-00708
190 On 3 March 2016, Council received a formal access application from Ms Webb which was given identifier PSC2016-00708: [107 - 111].
191 On 26 April 2016, Ms Coburn decided that some of the information requested was not held by Council and to grant part access to the information which was held by Council: [112 - 124].
GIPA Application No. PSC2016-01972
192 On 4 July 2016, Council received a formal access application from Ms Webb which was given identifier PSC2016-01972: [261 - 265].
193 On 8 August 2016, Ms Coburn decided to grant Ms Webb part access to the information requested: [266 - 282].
194 On 16 August 2016, Ms Webb requested an internal review of the decision with Council. No payment of an internal review application fee was made and the matter did not progress.
Other Applications
195 The remaining ten applications lodged by Ms Webb and her husband relate to other issues pertaining to secondary employment code of conduct complaints, Council's information technology and records systems, background information in relation to development applications called up to Council for determination and correspondence in relation to the NSW Ombudsman's enquiries of Council.
GIPA Application No. PSC2017-01699
196 On 8 June 2017, Council received a formal access application from Ms Webb which was given identifier PSC2017-01699: [532 - 538].
197 On 6 July 2017, Ms Bailey determined to grant Ms Webb part access to the information requested: [539 - 557].
GIPA Application No. PSC2017-02640
198 On 29 August 2017, Council received a formal access application from Ms Webb which was given identifier PSC2017-02640: [621 - 625].
199 On 29 September 2017, Ms Jamadar determined to grant Ms Webb full access to some of the information requested and part access to the remaining information requested: [626 - 648].
GIPA Application No. PSC2018-00250
200 On 31 January 2018, Council received a formal access application from Ms Webb which was given identifier PSC2018-00250: [728 - 731].
201 On 23 February 2018, Ms Jamadar determined to grant Ms Webb access to some of the information requested and to refuse access to some of the information requested: [732 - 773].
202 On 16 April 2018, Ms Webb applied to the Tribunal for review of Council's decision.
203 On 3 July 2018, Council's solicitor, Carlo Zoppo, wrote to Ms Webb and provided her with an unredacted copy of all of the documents the subject of the application: [773A-773D].
204 Ms Webb pressed her application. The proceedings (2018/119930) are presently before the Tribunal. The hearing has been concluded and the Tribunal's decision is reserved.
GIPA Application No. PSC2018-01475
205 On 9 May 2018, Council received a formal access application from Ms Webb which was given identifier PSC2018-01475: [800 - 803].
206 On 6 June 2018, Ms Jamadar determined that some of the information requested was not held by Council, and to grant Ms Webb full access to the information which was held by Council: [804 - 823].
GIPA Application No. PSC2018-02026
207 On 8 June 2018, Council received a formal access application from Ms Webb which was given identifier PSC2018-02026: [824 - 828].
208 On 27 June 2018, Ms Jamadar wrote to Ms Webb and requested that she refine the scope of her application: [829 - 837].
209 On 27 July 2018, Ms Webb applied to the Tribunal for review of Council's decision. Those proceedings (2018/00231075) concerned Council's decision to require her to pay an advance deposit in order for PSC2018-02026 to continue to progress.
210 On 4 September 2018, Ms Webb sought to modify her access application: [838 - 851].
211 On 11 September 2018, Ms Jamadar wrote to Ms Webb: [852 - 853].
212 On 2 October 2018, the Tribunal made directions by consent in the proceedings: [854 - 855].
213 On 9 October 2018, Ms Webb modified the scope of her application: [856 - 857].
214 On 18 October 2018, Ms Jamadar wrote to Ms Webb: [858 - 859].
215 On 21 December 2018, Ms Jamadar issued a part notice of decision to Ms Webb: [866 - 884]. Ms Jamadar determined to provide Ms Webb part access to the information requested.
216 On 5 June 2019, Senior Member Hamilton affirmed Council's decision regarding the advance deposit: Webb v Post Stephens Council [2019] NSWCATAD 107.
217 On 11 June 2019, Ms Jamadar wrote to Ms Webb about the advance deposit: [885].
218 On 12 June 2019, Ms Webb replied to Ms Jamadar by email: [886 - 887].
219 On 12 June 2019, Lisa Marshall, Council's Manager Legal Services, wrote to Ms Webb: [888].
220 On 9 August 2019, Ms Jamadar issued a notice of decision to Ms Webb: [889 - 912]. Ms Jamadar determined to provide access to the information requested with the exception of signatures being redacted and that for some applications, no information was held by Council.
221 On about 12 August 2019, Ms Webb applied for a review by the IPC (IPC Reference: IPC19/R000507): [913 - 918].
222 On 6 December 2019, the IPC determined that Council's decisions were justified in relation to the reasonableness of searches but were not justified in relation to the decision to impose a processing charge: [934 - 945].
GIPA Application No. PSC2019-00160
223 On 18 January 2019, Council received a formal access application from Ms Webb which was given identifier PSC2019-00160: [1129 - 1132].
224 On 11 March 2019, Ms Jamadar determined to provide Ms Webb access to some of the information requested and to refuse to provide access to some of the information: [1133 - 1154].
225 On 30 April 2019, Ms Webb lodged an application for review with the IPC (IPC reference: IPC19/R000277): [1155 - 1156].
226 On 19 June 2019, The IPC recommend that Council conduct an internal review: [1186 - 1256].
227 On 23 July 2019, I determined to release released some additional records and reduce the processing charges by 0.50 hours: [1272 - 1290].
GIPA Application No. PSC2019-01056
228 On 3 May 2019, Council received a formal access application from Ms Webb which was given identifier PSC2019-01056: [1340 - 1342].
229 On 27 May 2019, Ms Jamadar determined to provide Ms Webb access to some of the information and to refuse to provide access to some of the information: [1343 -1359].
GIPA Application No. PSC2019-02283
230 On 8 May 2019, Council received a formal access application from Ms Webb which was given identifier PSC2019-02283: [1362 - 1365].
231 On 17 May 2019, Ms Jamadar and Ms Bailey determined to provide Ms Webb with full access to the information requested: [1366 - 1389] and [1390 - 1403].
232 On 4 July 2019, Ms Webb lodged an application for review with the IPC (IPC reference: IPC19/R000425): [1404 - 1405].
233 On 18 September 2019, the IPC recommended Council make a new decision in relation to the processing charge by way of internal review: [1452 - 1467].
234 On 10 October 2019, I reduced the processing charges by 40 minutes: [1469 - 1478].
235 On 11 October 2019, Ms Webb applied to the IPC for a review of the internal review decision (IPC reference: IPC19/R000649): [1479 - 1480]. The IPC found that Council's decision was justified: [1490 - 1494].
GIPA Application No. PSC2019-04987 (lodged by Mr McEwan)
236 On 28 October 2019, Council received a formal access application from Mr McEwan which was given identifier PSC2019-04987 [1777 - 1778].
237 On 15 January 2020, Ms Jamadar determined to grant part access to 101 documents, and full access to one document [1779 - 1810].
GIPA Application No. PSC2020-00026
238 On 6 January 2020, Council received two formal access applications from Ms Webb. The first was given identifier PSC2020-00026 [1811 - 1813].
239 At the time of affirming this affidavit, that application is still to be determined.
GIPA Application No. PSC2020-00028
240 The second formal access application received from Ms Webb on 6 January 2020 was given identifier PSC2020-00028 [1814 - 1816].
241 At the time of affirming this affidavit, that application is still to be determined.
C. USE OF COUNCIL'S RESOURCES
242 From my review of Council's records, between March 2017 and January 2020:
a. Council received 37 formal applications from Ms Webb for access to information under the GIPA Act;
b. Council officers spent a total of 327.75 hours processing those applications lodged by Ms Webb;
c. the total number of formal applications lodged with Council by members of the public, including Ms Webb, was 93; and
d. Council officers spent a total of 607.25 hours processing formal GIPA applications, including those lodged by Ms Webb.
243 The number of hours spent processing formal GIPA applications was calculated by aggregating the processing times for each application lodged within the period from March 2017 to January 2020. Those times are entered by Council officers in the GIPA Register.
244 On the basis of these figures, I calculate that between March 2017 and January 2020:
a. 39.78 per cent of all formal applications received by Council were from Ms Webb; and
b. 53.97 per cent of the time spent by Council officers in processing GIPA applications was spent in processing applications lodged by Ms Webb.
245 Council has allocated 50% of one full-time role to GIPA compliance, with the other 50% allocated to other functions. Due to the impacts of the large number of applications received from Ms Webb, and the breadth of the applications, the officer's ability to work on other GIPA applications and perform the other functions of the role was dramatically affected. Another officer was required to assist the officer in carrying out the other functions of the role.
246 As part of Council's evidence in Tribunal proceedings 2019/174496 and 2019/174490, Council filed a schedule containing the costs it has incurred in relation to each application brought by Ms Webb before the Tribunal for a review of a decision made by officers of Council under the GIPA Act. I have reviewed Council's records, and on the basis of that review, Council incurred $125,216.90 (excluding GST) on external legal representation up to 2 August 2019. In those matters in which Council did not brief external lawyers, Council officers spent 351 hours defending applications brought by Ms Webb before the Tribunal.
D. FURTHER DEALINGS OF MS WEBB CONCERNING COUNCIL
Code of Conduct complaints
247 Council is required to adopt a Code of Conduct under the LG Act.
248 Under the Procedures for the Administration of that Code, Council is required to appoint a complaints coordinator. The main function of the complaints coordinator is to coordinate the management of complaints made under the code.
249 I am the complaints coordinator for Council. Ms Marshall is the alternate.
250 As complaints coordinator, I manage all code of conduct complaints except those which concern me. Any complaints regarding me are managed by Ms Marshall or Council's Human Resources Section at the direction of the General Manager.
251 Since 2012, Council has received 20 complaints from Ms Webb and her husband alleging breaches of Council's Code of Conduct. Those complaints have been lodged against:
a. Council staff involved in the determination of GIPA applications;
b. Council staff involved in investigating Code of Conduct complaints; and
c. Council's external legal solicitor in relation to proceedings before NCAT.
252 15 of these complaints were lodged between May 2017 and May 2019.
253 Council determined to take no action in respect of each of the complaints. Each complaint was determined to be unfounded.
254 A copy of each complaint of which I have personal knowledge and its outcome is included in Exhibit TW-1 as follows:
a. complaint of 22 November 2015 in respect of Ms Coburn ([1819 - 1838]), determined on 3 December 2015 ([1839 - 1850]);
b. Complaint of 22 November 2015 in respect of Ms Marshall ([1852 - 1883]), determined on 3 December 2015 ([1884 - 1890]);
c. complaint of 22 November 2015, in respect of Mr Wayne Wallis, Council's General Manager ([1896 - 1921]), determined on 22 March 2016 ([1922 - 1926]);
d. complaint of 30 May 2017 in respect of Ms Marshall ([1930 - 1940]), determined on 13 July 2017 ([1941 - 1943]);
e. complaint of 5 June 2017 in respect of Ms Marshall ([1946 - 1957]), determined on 13 July 2017 ([1958 - 1960]);
f. complaint of 15 August 2018 in respect of Ms Jamadar ([1962 - 1968]), determined on 7 February 2019 ([1969 - 1970]);
g. complaint of 15 August 2018 in respect of Ms Marshall [1992 - 2005], determined on 5 February 2019 ([2006]);
h. complaint of 15 August 2018 in respect of Mr Zoppo ([1975 -1986]), determined on 7 February 2019 ([1987 - 1988]);
i. complaint of 3 December 2018 in respect of Ms Marshall ([2009 - 2012]), determined on 17 December 2018 ([2013 - 2015]);
j. complaint of 3 January 2019 in respect of Mr Zoppo ([2017 - 2020]), determined on 9 January 2019 ([2021 - 2022]);
k. complaint of 8 January 2019 in respect of Ms Marshall ([2024 - 2030]), determined on 17 December 2018 ([2031 - 2032]);
l. complaint of 8 January 2019, in respect of Mr Wallis ([2036 - 2044]), determined on 12 February 2019 ([2045 -2047]);
m. complaint of 8 January 2019 in respect of Councillor Ryan Palmer, Council's current Mayor ([2049 - 2053]), determined on ([2054 - 2055]);
n. complaint of 14 January 2019 in respect of Ms Jamadar ([2057 - 2062]), determined on 18 January 2019 ([2063 - 2064]);
o. complaint of 21 January 2019 in respect of Ms Jamadar ([2065 - 2069]), determined on 25 January 2019 ([2070 - 2073]).
255 I understand that six complaints have been made concerning me. I understand that the complaints will be provided to the Tribunal by way of a separate bundle.
256 Ms Webb has sent code of conduct complaints in relation to Council officers directly to Councillors on 19 occasions.
257 Ms Webb has also sent emails to Councillors commenting on the outcome of Council's investigation of code of conduct complaints lodged by her on five occasions: [2915 - 2966].
258 On 15 August 2018, Ms Webb lodged a code of conduct complaint against Ms Jamadar. The substance of that complaint was based on a witness statement from Ms Jamadar which had been filed in Tribunal proceedings 2018/119930.
259 On 27 August 2018, Council's solicitors wrote to Ms Webb in relation to her use of material which had been filed in the proceedings: [2822 - 2824].
260 On 27 August 2018, Ms Webb sent an email to the Councillors: [2825].
261 On 28 August 2018, Ms Webb sent a letter to Council's solicitors: [2826 - 2829].
262 The proceedings were listed for directions on 10 September 2018 in part to address Ms Webb's use of material filed in the Tribunal for other purposes. I am informed by Carlo Zoppo, and verily believe, that at that directions hearing, Senior Member Montgomery explained to Ms Webb the concept of an implied undertaking, and Ms Webb gave a formal undertaking not to use evidence filed in the proceedings for a purpose other than the proceedings. Pursuant to that directions hearing, Senior Member Montgomery made orders, including noting Ms Webb's undertaking: [2830].
263 On 11 September 2018, Ms Webb wrote to the Tribunal and indicated that she withdrew that undertaking: [2831 - 2832].
Report to NSW Police
264 On 23 March 2018, Council was notified by telephone by a Detective at Raymond Terrace Police Station that a report had been made to the effect that both Ms Marshall and I had misled the Tribunal and sought to pervert the course of justice during proceedings that had been commenced by Ms Webb seeking review of Council's decision in relation to her access applications.
265 Ms Marshall subsequently made an email file note regarding the conversation: [2653].
266 To my knowledge, no action has been taken by the NSW Police in relation to the allegations.
Complaints to legal oversight bodies
267 On 30 May 2017 and 5 June 2017, Ms Webb and her husband, Mr McEwan lodged a formal complaint with the Office of the Legal Services Commissioner (OLSC) in relation to alleged conduct of Ms Marshall in proceedings before this Tribunal. The OLSC referred the matter to the Law Society of NSW. The Law Society took no action in relation to that complaint: [2653A-2653G].
268 On 15 August 2018, Ms Webb lodged a complaint with the Legal Services Commissioner against Council's external legal representative, Carlo Zoppo: [2654 - 2660]. The Legal Services Commissioner found that the complaint was misconceived or lacking in substance: [2661 - 2663].
Complaints to the Information and Privacy Commission
269 Between 2015 and 2019, Ms Webb lodged a total of ten complaints to the IPC about Council's handling of access applications she had lodged.
270 A copy of the outcome of each complaint is included in Exhibit TW-1 as follows:
a. complaints of 14 and 28 September 2015, determined on 30 October 2015: [2074 - 2076];
b. complaint of 10 November 2015, determined on 26 November 2015: [2077 - 2085];
c. complaint of 10 April 2017, determined on 30 June 2017: [2086 - 2117];
d. complaint of 20 June 2017, determined on 21 August 2017: [2118 - 2157];
e. complaint of 31 January 2018, determined on 2 November 2018: [2158 - 2167];
f. complaint of 6 April 2018, determined in about November 2018: [2168 - 2191];
g. complaint of 4 July 2018, determined on 15 October 2018: [2192 - 2204];
h. complaint of 13 August 2018, determined on 30 January 2019: [2205 - 2223];
i. complaint of about January 2019, determined on 27 February 2019: [2224 - 2239].
Complaint under the Privacy and Personal Information Protection Act 1998
271 On 31 May 2017, Ms Webb lodged a request for internal review under Part 5 of the Privacy and Personal Information Protection Act 1998: [2582 - 2587].
272 On 24 July 2017, Ms Michelle Gilliver-Smith, Council's then Organisation Development Section Manager, determined that the request was made out of time: [2611 - 2612].
Contempt proceedings
273 Ms Webb has commenced two sets of proceedings in the Tribunal accusing the Council and its officers of contempt.
Proceedings 2018/262624
274 The first of those proceedings was commenced on 27 August 2018 against Mr Zoppo, Ms Marshall and me: [2847 - 2855].
275 In her application, Ms Webb alleged there had been an unlawful internal review by Council's conduct in deciding to release further information to Ms Webb in an attempt to resolve Tribunal proceedings 2019/119922 and 2018/119930. That information was released on 3 July 2018: [773A-773D]. Ms Marshall and I were not involved in the release of that information.
276 I am informed by Carlo Zoppo, and verily believe, that at the hearing of proceedings 2019/119922 and 2018/119930, words were said to the following effect:
Senior Member Dinnen: I just don't see it as being anything unlawful for the Respondent to go ahead and provide additional documents after it has given a decision.
Ms Webb: I wasn't saying and I do apologise if I gave that impression… I was just referring to it as my interpretation of the provision of the documents as being unlawfully done.
277 On 14 November 2018, Council's solicitors sent a letter to Ms Webb: [2856 - 2858].
278 On 4 December 2018:
a. Ms Webb wrote to Council's solicitors: [2859 - 2861]; and
b. sent a letter to the Tribunal withdrawing her application: [2862 - 2863].
279 I am informed by Matt Harker, solicitor for Council in the contempt proceedings, and verily believe, that:
a. a copy of Ms Webb's letter to the Tribunal (at [2862 - 2863]) was not sent by Ms Webb to Council's solicitors; and
b. Mr Harker obtained the letter directly from the Tribunal on 10 December 2019 after the matter had been listed for dismissal.
Proceedings 2019/174490
280 On 15 May 2019, Ms Webb commenced the second contempt proceedings against Council: [2864 - 2874].
281 These proceedings concerned Council's reconsideration of the application the decision of Senior Member Hamilton in Webb v Port Stephens Council [2019] NSWCATAD 47. That decision was handed down on 27 March 2019.
282 At the time of affirming this affidavit, the proceedings are listed for a hearing on 24 February 2020 for Ms Webb to show cause as to why the proceedings should not be dismissed as frivolous, vexatious, or lacking in substance.
NSW Ombudsman
283 In about November 2014, Ms Webb and Mr McEwan lodged a complaint with the NSW Ombudsman in relation to the conduct of Council and some of its staff in relation to the DA and privacy screen.
284 On 3 November 2014, Margo Barton, a Senior Investigation Officer in the Ombudsman's office, wrote to Wayne Wallis, Council's General Manager: [2551 -2554].
285 On 1 December 2014, Mr Wallis responded to Ms Barton.
286 To the best of my knowledge, Council has received no further correspondence from the NSW Ombudsman in relation to this matter.
Local Court proceedings
287 On 11 June 2019, Ms Webb filed statement of liquidated claim in the Local Court Small Claims Division seeking $3,961.50 from Council for the cost of her formal GIPA applications lodged with Council from August 2011 and NCAT filing fees for some of her applications to the Tribunal for administrative review: [2877 - 2889].
288 Council has filed a Notice of Motion to dismiss the proceedings for want of jurisdiction or, in the alternative, to transfer the matter to the General Division of the Local Court: [2890 - 2908].
289 The Notice of Motion is scheduled for hearing in Newcastle Local Court on 31 January 2020.
Access application lodged with Office of Local Government
290 On 26 September 2018, Council received a letter from the Office of Local Government (OLG) as part of its third party consultation in relation to a formal access application that Ms Webb had lodged with the OLG on 3 September 2018: [2664 - 2670].
291 On 28 September 2018, Council informed the OLG that it did not object to the release of the single document falling within the scope of the application: [2671 -2672].
Allegations against, and impact upon, Council staff
292 Throughout the course of the above access applications, and her broader dealings with Council, Ms Webb has made numerous allegations against me and other Council staff.
293 Those allegations include statements to the following effect:
a. in respect of a junior Council officer, Ms Coburn, that 'the lack of experience coupled with somewhat of a God complex might go some distance to explain why Courtney Coburn is making such poor and improper decisions which amount to breaking the law on several counts…': 22 November 2015 Code of Conduct complaint at [1826];
b. that Ms Marshall and I deliberately abuse confidential sessions of the Tribunal to influence the Tribunal: submissions in Appeal Panel proceedings AP18/02138 [2722 - 2761], at paragraph 47, and submissions in NCAT Proceedings No 2018/119922 [2776 - 2821] at paragraphs 96-97;
c. that Ms Marshall and I deliberately misled the Tribunal: submissions in Appeal Panel proceedings AP17/42809 and AP17/42900 [2673 ¬- 2721] at paragraph 160; and submissions in Appeal Panel Proceedings AP18/02138 [2722 - 2761] at paragraphs 34 and 80-82;
d. that Council staff 'at all levels', gave false and misleading advice to deliberately prevent the grant of development consent and 'orchestrate' proceedings brought by Ms Webb and her husband before the Land and Environment Court: submissions in NCAT Proceedings No 2018/119922 [2776 - 2821] at paragraphs 69-87;
e. that Ms Marshall and I deliberately coached Council officer Melissa Rodway to dismiss a code of conduct complaint lodged by Ms Webb: closing submissions in NCAT Proceedings No 2018/119922 and 2018/119930 [2833 - 2846] at paragraph 62.8;
f. that Ms Marshall deliberately withheld information relevant to a code of conduct investigation: 8 January 2019 Code of Conduct complaint [2024 - 2030] at [2025];
g. that I conducted a baseless attack against Ms Webb and her husband by allegedly referring to apprehended violence orders in an email to the Information and Privacy Commissioner dated 17 March 2015 when no such reference was made: closing submissions in NCAT Proceedings No 2018/119922 and 2018/119930 [2833 - 2846] at paragraph 84; and
h. that I always have a 'hidden agenda' and 'do not support the principles of Open Access information unless it suits [me], and [my] actions show [I] resents the GIPA Act': submissions in NCAT Proceedings No 2018/119922 [2776 - 2821] at paragraphs 53-54.
294 Each of these allegations are baseless and false.
295 In my dealings with Ms Webb, she has sent me repeated correspondence concerning the same subject matter within short periods of time. That correspondence has at times made me feel insulted, harassed, and anxious that whatever response I provided would have consequences (even if the actions were appropriate). As a consequence, more time is diverted to my dealing with matters concerning Ms Webb and away from other parts of my role.
296 Ms Webb has made repeated reference to the Code of Conduct in her correspondence with me. This heightens my anxiety about responding to Ms Webb, as I have interpreted the references to mean that Ms Webb would lodge a Code of Conduct complaint against me, as she has done in the past.
297 An example of the above is the correspondence sent by Ms Webb to Ms Jamadar and me in relation to the determination of PSC2018-03897: [1061 - 1087]. The constant email correspondence and references to the Code of Conduct made me feel intimidated and harassed. I felt that it was designed in part to intimidate me to disclose, in part, confidential discussion from an NCAT hearing.
Restrictions on Access
298 Council has imposed upon Ms Webb and Mr McEwan a formal restriction upon access to Council services in 2011 to September 2013, and warned Ms Webb that it would do so again in June and July 2019.
2011 restriction
299 On 3 November 2011, Council wrote to Ms Webb and her husband, Mr McEwan, in relation to complaints lodged by her: [2383 - 2385]. In that letter, Council advised that Ms Webb and her husband should correspond with Council only in writing and through Council officers Matthew Brown and me.
300 At the time, Council had refused consent to the DA in relation to the privacy screen.
301 Between the date of that letter and a further letter from Council on 14 February 2012, Ms Webb and her husband sent a considerable amount of correspondence to officers other than me and Mr Brown: [2240 - 2424].
302 By letter dated 14 February 2012, Council restricted Ms Webb and her husband to sending two items of correspondence to Council each month: [2423 - 2424].
2019 restriction
303 On 27 May 2019, Ms Webb sent an email to myself and Ms Jamadar in relation to Ms Jamadar's decision concerning Ms Webb's access application PSC2019-01056: [2429 - 2432].
304 On 13 June 2019, Mr Wallis, wrote to Ms Webb warning that Council would consider issuing a formal restriction of service should she continue the conduct outlined in that letter: [2425 - 2428].
305 On 1 July 2019, Mr Wallis sent Ms Webb a further warning letter: [2511 - 2530].
306 I understand that Mr Wallis has not received a response from Ms Webb to either the 13 June 2019 or 1 July 2019 letters. Since those letters, Council officers have continued to receive correspondence on an ongoing basis from Ms Webb.
I am satisfied on the basis of the material exhibited to Mr Wickham's affidavit that the information contained in that affidavit is true and can be accepted as evidence in these proceedings, which are governed by the provisions of the Evidence Act.
An examination of the formal applications lodged with Council by Ms Webb demonstrates that she has consistently sought information concerning the identity of persons who have made complaints about the privacy screen, and in two cases she has named persons whom she asserts have made complaints and she has sought details of those complaints. The Council has consistently rejected disclosure of personal information concerning persons who have made complaints on the grounds that that information was personal and required protection to avoid exposing a person "to a risk of harm or of serious harassment or serious intimidation." Information made available by the Council indicates that between 26 July 2011 and 26 November 2012 Council engaged with third parties concerning objecting submissions to the DA lodged by Ms Webb and her husband either by letter, email, telephone or in person on 47 occasions. Similar information covering the period 26 July 2011 to 7 May 2013 indicated that there had been such communications on 73 occasions.
Further applications made by Ms Webb sought, among other things;
1. copies of a request form submitted by a named Councillor to bring the DA before the Free Council Public forum,
2. "a full and unedited copy of the records of letters, notes, transcripts and dialogues between Council and all third parties concerning consultations undertaken by Council with objectors" to the DA,
3. documents containing contact information for families where Council had restricted access to services and the removal of those restrictions in the years 2010 to 2015,
4. disclosure of information concerning the storage of her personal documents of identification and the use of her Formal GIPA Applications for training purposes,
5. information concerning the destruction of her personal documents of identification,
6. documentation with respect to the development of 20 named properties within the Council area,
7. a "complete and unedited copy of the secondary employment register" of the Council,
8. file notes of conversations between various Council officers with respect to the DA,
9. "unedited copy of tender specifications" for the Council's electronic management system, including the tender specifications, tenders and submissions received in response, documentation confirming tender award and user manuals,
10. records relating to 9 Code of Conduct complaints made by her about staff members, the Mayor, the General Manager and a legal representative of the Council,
11. a report prepared by City Plan Services of Council with respect to the proceedings in the Land and Environment Court and the cost of the retention of a consultant (such application being made after the settlement of those proceedings),
12. submissions made by Council filed on 12 September 2016 in proceedings in this Tribunal (sought on 24 May 2019),
13. correspondence from Council to all third parties for the period from 27 March 2019 to 24 June 2019 relating to the decision of this Tribunal published on 27 March 2019.
Redacted documentation which has been provided to Ms Webb and which is contained within the material before me is indicative that certain persons whose names are unknown have discussed with Council officers concerns for their personal circumstances and the possible involvement of the police in connection with complaints made by them to Council concerning Ms Webb and her husband. I do not refer to this material on the basis that the information contained in it is correct, but because it is information made available to officers of Council that these persons had raised concerns of this kind.
[4]
The proceedings before Senior Member Hamilton SC
It is necessary that I refer to the orders made in those proceedings, because they form the basis of the applications filed by Ms Webb. The proceedings carry the citation Webb V Port Stephens Council [2019] NSWCATAD 47. That Decision concerned applications brought both by Ms Webb and Mr McEwan. For present purposes it is only necessary that I refer principally to orders made with respect to Ms Webb's matter.
The Tribunal considered an application brought by Ms Webb under the GIPA Act for access to documents described at [15] of the decision as;
"Complete and unedited copies of all letters and/or documents, telephone transcripts and/or Council's notes on telephone conversations, Council's notes on personal conversation, all of which relate to third party consultations - DA No: 483/2011 as outlined within Council's letter of 15 February 2016 Ref No: PSC2016-00217.
A full and unedited copy of the records of letters, notes, transcripts and dialogues between Council and all third parties concerning consultations undertaken by Council with objectors to the DA No: 483/2011, as per the document list by Council under cover of its letter dated 15 February 2016 (copy attached)."
For the purpose of the hearing the Senior Member had been provided with the redacted documents released to Ms Webb and unredacted versions of the documents withheld "and other confidential health related exhibits."
In considering the reasons for the orders made by the Senior Member it is first necessary to have regard to his consideration of the application made by Mr McEwan, because the factual background is common to the applications made by both of them. For present purposes I set out the following extract commencing at [65];
Bearing the above interpretational principles in mind, the first question the Tribunal asks itself in relation to each item is 'could the disclosure of information reasonably be expected to have one or more of the relevant effects?' If not then the particular item does not apply. If it does apply, then the Tribunal determines the weight it carries and conducts the balancing exercise against the weight of factors in favour of disclosure (Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19).
Could disclosure of the information here be reasonably expected to "(a) reveal an individual's personal information." Looking at the evidence, including the unredacted documents, and bearing in mind the guidance above, I consider the ground to have been made out. The parties making submissions on the DA in the documents the subject of this application have included a considerable amount of identifying information as well as other personal information including that related to the welfare of individuals. There is the ability for their identities to be ascertained by the applicant from material in the documents. The parties making the DA submissions have been consulted at an earlier point in relation to substantially identical applications from Mrs Webb and have expressed their objections to disclosure of the DA submission documents. Notwithstanding that the Council's call for submissions noted that there was potential for disclosure under the GIPA Act it is my view that item 3(a) is a very strong ground against disclosure of information. However it may be possible that the documents can be appropriately redacted by council so that item 3(a) in the s14 Table is not offended.
Could disclosure be reasonably expected to have the effects referred to in table item 3(b) of s14 GIPA Act? - I consider this ground to have been made out, taking account of the same material as referred to above. The Information Protection Principle (s18 PPIP Act) is to some extent correlated to the personal information referred to in item 3(a).
The PPIP Act is read subject to the terms of the GIPA Act. Section 5 of the PPIP Act provides:
5 GOVERNMENT INFORMATION (PUBLIC ACCESS) ACT 2009 NOT AFFECTED
(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.
(2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.
To address the three factors in the Principle directly, it is my view that disclosure of personal information in response to this application would not be for the purpose for which it was collected, which was to inform Council of the views of persons affected by the proposed development covered by the DA. Those persons have specifically objected to release of the information. Even though they can be taken to have been aware that information in submissions may be subject to GIPA Act access applications, this does not outweigh the other two factors. This is a very strong ground against disclosure. Redaction of this information may be possible.
Furthermore some of the documents contain material which falls under Health Privacy Principle number 11, the terms of which are set out above. The ground against disclosure of this information is in my view also very strong but it may be possible for the agency to appropriately redact this information from those documents.
Could disclosure be reasonably expected to have the effects set out in table Item 3(f)? As the Tribunal now stands in the shoes of the decision maker it is correct that I make a decision on the question of whether disclosure could reasonably be expected to have the effect set out in 3(f) at the date of this decision.
The events which led to this unfortunate set of circumstances occurred 7 to 8 years ago. The applicants sold the subject property and moved away in 2013.
I note that the third parties have been consulted some short time ago and have expressed concerns respecting the matters referred to in item 3(f), but it is hard, objectively, to see a current basis for that concern. It seems the third parties just want to put this chapter of their lives behind them, never to be mentioned again.
While this ground may have been relevant in the past, in my view the evidence does not at this moment convince me that it is reasonably likely that the effect required by item 3(f) in the table of s14 of the GIPA Act will occur. Thus I consider the ground inapplicable and so it carries no weight.
Balancing the positive and negative public interest considerations, it is my view that the very strong considerations against disclosure of personal information under either item 3(a) or 3(b) and of health information under item 3(b), in the end outweigh the very strong factors in favour of disclosure of these documents.
This is, however, not the end of the matter.
The agency has relied on the grounds on grounds 3(a) and 3(b) to withhold from disclosure the whole of all four documents.
In my view this approach of withholding the whole of the documents cannot be justified on these two grounds. The unredacted documents provided confidentially to the Tribunal appear to be able to be suitably redacted to mask the 'personal information' as it has been discussed above (including matters concerning welfare) together with the health information. I therefore refer the documents back to the agency for reconsideration so that they may be suitably redacted in accordance with these reasons.
In considering the application brought by Ms Webb the Senior Member adopted the same reasoning with respect to items 3(a) (b) and (f). Significantly, however, the Senior Member made the following observations at [88];
Having examined the unredacted versions of these documents I note that they contain personal information (which includes personal information relating to matters concerning the welfare of individuals) and also to health-related information. I regard these factors as having a very strong weight against disclosure.
In my view the considerations against disclosure outweigh those in favour.
The Senior Member then continued;
However the Council is not justified in refusing to disclose the entirety of the documents. In the case of those documents to which access has been completely refused I refer these back to the agency to be suitably redacted to mask all personal information as mentioned above and all health-related information as mentioned above.
The Senior Member concluded that with respect to the decisions of the Council to refuse access to or deal with certain documents, that those decisions should be set aside so that the documents could be remitted back for further consideration and redaction. Otherwise, where partial access had been granted to Ms Webb, the decision of Council was affirmed. In addition, the Council was directed "to write and advise the persons who objected to the release of the information in the documents about this decision, and if aggrieved of their rights to have the decision reviewed."
[5]
Matters subsequent to the publication of the decision
The decision of Senior Member Hamilton was published on 27 March 2019. Ms Webb first communicated with Council concerning the orders made on 29 March 2019 and continued to seek information about Council's action in compliance with that decision by emails forwarded on 1, 3, 4, 24, 26 and 29 April, and 1, 6 and 10 May 2020. During this period Council responded on a number of occasions through its solicitor.
Ms Webb filed the two applications brought by her in these proceedings on 15 May 2019.
On 28 June 2019 the Council forwarded a Notice of Decision to Ms Webb and her husband containing its response to the orders made by Senior Member Hamilton.
[6]
Ms Webb's allegations of an unlawful agreement between Mr Wickham and a member of the public
In considering the conduct of Ms Webb in dealing with the Council and matters relevant to the extensive GIPA Act applications made by her which are at the heart of these proceedings it is instructive to have regard to a number of allegations directed to the Council generally and to Mr Wickham in particular that they had not acted in good faith in their dealings with her. In particular in submissions filed by her on 18 February 2020 Ms Webb continually referred to breaches of the Council Code of Conduct, and on a large number of occasions to the fact that Mr Wickham "did unlawfully, between March and April 2012, enter into an unlawful agreement with a member of the public, an agreement made to conceal and protect Open Access Information Mandated for Release, an agreement that could be upheld with a full claim the author of the information could assert a risk of harm existed should the information be released." It was asserted that this unlawful agreement pervaded the actions of Council on a continuing basis when dealing with her.
During the course of the hearing I asked Ms Webb whether there was any factual material which she had provided which would allow the Tribunal to establish that such an unlawful agreement existed. Ms Webb directed my attention to an email chain between Mr Wickham and a person or persons who were involved in making submissions about the development on Ms Webb's property. The copies available to Ms Webb which were included with her filed material are heavily redacted presumably to avoid disclosing the name of the person involved in the objection to the development. In the course of an email from Mr Wickham dated 30 March 2012 he said;
I refer to (redacted) email below and advise that Council would treat any submission received in accordance with the provision of the GIPA Act.
From previous discussions, and our telephone conversation today, I understand (redacted)
Please be advised that Council would consult with (redacted) prior to releasing any information to another party. (redacted) would be invited to comment prior to release of any information received by (redacted). This would give (redacted) the ability to request that Council either release the information or restrict the release for reasons such as:
1. the release may contravene the Privacy and Personal Information Protection Act 1998 or
2. expose a person to a risk of harm or of serious harassment or serious intimidation.
As discussed today be aware that any formal application received under GIPA has review rights which may lead to a review by the Office of the Information Commissioner. The Commission would consult with Council should this occur.
Should (redacted) have any further questions please feel free to contact me.
While giving oral evidence, Ms Webb relied on the above email as her basis for asserting that there was an unlawful agreement between Mr Wickham and an unknown member of the public in which he was encouraging that person to allege that he or she was exposed to a risk of harm or of serious harassment or serious intimidation in objecting to her development, or would otherwise be entitled to have private and personal information protected. When I responded that it was plausible that Mr Wickham was merely informing a member of the public that he or she had certain rights which might be availed of, Ms Webb refused to accept that Mr Wickham would have raised these matters other than with a malicious intent designed to inflict disadvantage on her.
There is material in the Council's documents, admittedly of an imprecise nature that one or more members of the public, presumably neighbours, who objected to the privacy screen and the development application were concerned for their well-being and safety, as may be gleaned from the redacted material provided in the documents made available by the parties. However, there is comment to this effect supportive of such a conclusion in the reasons for decision of Senior Member Hamilton which I have extracted above. Senior Member Hamilton had the advantage of perusing the material in its unredacted state.
I reject the assertion of Ms Webb that there is any evidence to sustain the allegation made by her that Mr Wickham entered into any form of unlawful agreement or arrangement with any member of the public in which he encouraged a person to falsely make a claim of concern for his or her welfare or safety. This finding undermines the thrust of many of Ms Webb's submissions. Her submissions are based to large extent on assertions of inappropriate conduct and bad faith by Council and its officers in their dealings with her and her husband. These observations are corroborated by the large number of complaints made by her to a number of statutory authorities referred to in the affidavit of Mr Wickham set out above.
[7]
Ms Webb's motivation and purpose in making the GIPA Act applications
I regard the reasons which motivated Ms Webb (and her husband) to make the many GIPA Act applications which are the subject of these proceedings as being matters relevant to her review application, her contempt referral application and to the Council's section 110 application for reasons which I shall discuss later.
I asked Ms Webb on 1 July, 2019 during the course of a directions hearing why she was still seeking information from the Council concerning the circumstances in which the DA lodged by her and Mr Paul McEwan with respect to the privacy screen around their pool had been declined by Council including the identity of persons who had made complaint to Council. She informed me that it was a matter "of personal interest for my husband and me." She said that she wanted to know what had occurred with the application. When I asked her why she wanted the details of the persons who had made the complaints she said that she had no intention of taking any proceedings against her former neighbours or of making any comments about them, and that she had no intention of visiting them. Ms Webb confirmed these reasons as the basis for her applications during the course of oral evidence given in the hearing. In submissions filed by her on 23 August 2019 which has become exhibit A in the applications brought by her Ms Webb said;
I note there is no requirement under the GIPA Act 2009 to provide a reason for requesting government information, and Council has never once asked me for a reason, however I have always made known to the Tribunal and Council that I have lodged applications for information to try to understand what transpired with the DA No 483 of 2011 and why, and that is absolutely true.
However, in the same submission in paragraph 29 Ms Webb in referring to a reason for requesting the information said, for the first time, "I also request government information for the purposes of academic research and study." In the course of her oral evidence Ms Webb said that in 2011 she was not undertaking any studies, she had no formal qualifications and she had had no experience in "requesting information." At the present time she is not undertaking any formal course of study but said that she had recently begun working with "degree qualified professionals" who have an interest in local government issues and especially the Local Government Act and the GIPA Act. She was concerned that the GIPA Act has failed and she wants to make changes to the legislation which are necessary to close some loopholes.
I regard this reference to academic research and study as being a matter of recent invention. There is simply no evidence available which would justify any conclusion that this was a relevant motivating factor. Indeed, the nature and extent of the information sought in the applications makes it very clear that Ms Webb was persistently intent on pursuing the identity of those who had objected to the privacy screen and those in Council who had impeded her quest for this information.
[8]
The review application
This application was filed on 15 May 2019 prior to receipt by Ms Webb of the consideration by Council of the matters referred to in the decision of Senior Member Hamilton on 28 June 2019.
The basis of the application was the fact that the Council had not then complied with the orders made by Senior Member Hamilton on 27 March 2019. In a covering letter to the registry when filing the application Ms Webb said that because the Council had not complied with the orders it was necessary for her to start over again and seek fresh orders. Non-compliance with orders does not sound in an application for review. In making this observation I mean no criticism of Ms Webb in undertaking this course, because she is not legally trained and is self-represented. However, to this extent this application is without substance. In any event it had been overtaken by the provision of the material on 28 June 2019. During discussion of these matters in the course of the hearing Ms Webb asked me to review the redaction undertaken by the Council when providing documents on 28 June 2019.
As I indicated to Ms Webb during the hearing, it would be inappropriate for the Tribunal as currently constituted to undertake any review of the material provided by the Council in response to the orders of Senior Member Hamilton in the context of the proceedings which are the subject of these three applications.
I am empowered to dismiss the review application by reason of the provisions of section 55 of the Civil and Administrative Tribunal Act ("the CAT Act") which is in the following terms;
55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
For the reasons set out above this application is without substance and must be dismissed on this basis.
However, the Tribunal is empowered to dismiss the application also on the basis that it is vexatious. There has been a useful discussion of the meaning of vexatious proceedings, admittedly in the context of particular legislation, in the Supreme Court of NSW in Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9. Those proceedings were concerned with the provisions of section 84 (1) of the Supreme Court Act which were in the following terms;
84(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.
The determination which I am required to make in ascertaining whether this application may be considered to be vexatious for the purpose of section 55 (1) (b) of the CAT Act will involve matters which are nuanced in terms of the above provision considered in Klewer. Nevertheless, there are observations contained in the judgement of Harrison J which I adopt as pertinent to matters which I am entitled to take into account for the purpose of considering whether this application may be characterised as vexatious so as to justify dismissal on that basis.
277 While the Court looks to see whether each allegedly vexatious proceeding is in fact vexatious, an order is justified if the pattern emerges of vexatious proceedings being habitually and persistently instituted. In Attorney-General for New South Wales v Solomon at 673, Young J said the following:
"The Court must examine the proceedings under review. It looks to see whether each is vexatious, though it remembers that an order is justified although there may have been reasonable grounds for the proceedings in each case considered by itself if the pattern emerges of vexatious proceedings being habitually and persistently instituted: Re Chaffers (1897) 45 WR 365".
278 In Attorney General for the State of Victoria v Horvath, Senior [2001] VSC 269 at [28] the Court said in relation to the Victorian equivalent to s 84:
"It is one thing to know what the word "vexatious" means. It is another thing to apply s 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results"
279 Where a pattern of vexatious proceedings being habitually and persistently instituted is found to have emerged, the Court has a discretion to make an order notwithstanding that proceedings initiated by the defendant during a relevant period may have included some proceedings that cannot be characterised as vexatious: Attorney-General v Wentworth at 494 - 5.
285 "Habitually" suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions exist; "persistently" suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness: Attorney-General v Wentworth at 492. The courts have been reluctant to formulate a definition of these terms, but the above test has been followed subsequently: Valassis v South Sydney City Council [1996] NSWLEC 232; (1996) 92 LGERA 275 at 280, Ramsey v Skyring [1999] FCA 0907; (1999) 164 ALR 378 at 290, Attorney General in and for the State of New South Wales v Bhattacharya and Attorney-General (NSW) v Betts.
The Oxford English dictionary defines vexatious as causing or tending to cause annoyance. There is also a reference to proceedings which are instituted without good reason. Whether proceedings are vexatious is a matter to be determined objectively by reference to all of the relevant surrounding circumstances. These will include the purpose or intention of Ms Webb, whether there has been a habitual and persistent institution of proceedings concerning the same or similar subject matter, and the nature and substance of the proceedings.
I have set out earlier a brief history of communications between Ms Webb and the Council following the publication of the orders of Senior Member Hamilton. There was a period of 49 days between publication of the orders and the filing of this application. During this period Ms Webb communicated with the Council on 10 occasions. The orders required the Council to further consider the documents in question, to determine the extent to which they should be redacted, and to write and advise persons who had objected to the release of information about the decision and that if aggrieved, they had a right to have the decision reviewed.
The insistence of Ms Webb that all of these matters should have been attended to much earlier, her persistent and consistent complaints to Council, her seemingly inability to assess in a more objective fashion what was involved in compliance by Council with the orders all create a sense of unreality about her conduct in commencing this application. It is possible that she may not have understood that viewed objectively her conduct had the effect of causing annoyance to and harassment of Council personnel, as is clear from the evidence of Mr Wickham. In addition, the filing of this application was but one of many steps taken by Ms Webb in the pursuit of what she perceived to be her absolute unfettered entitlement to seek access to documentation under the GIPA Act. And these matters need to be considered in the context of the overall purpose of Ms Webb in seeking this information and by doing so engaging in this habitual and persistent conduct designed to understand why certain neighbours might have objected to the privacy screen, and to ascertain their identity.
In all the circumstances I have no difficulty in characterising this application as being vexatious and concluding it should be dismissed also on this basis.
I add for completeness that section 109 of the GIPA Act might also apply to this application to review the application to review being considered by Senior Member. That section is as follows;
109 NCAT may refuse to review decision
NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance.
It was the submission of counsel for the Council that section 109 did not apply to this application. It is arguable that it might apply on the basis that the application before me might be characterised as a further review of Ms Webb's review application. The grounds for dismissal in section 109 are relevantly identical with those being considered by me under section 55 of the CAT Act. In order to avoid doubt I find that if section 109 did apply on the basis that that particular provision displaced the more general provision contained in section 55 of the CAT Act, I would have dismissed this review application on the same basis and for the same reasons set out above.
[9]
The contempt application
This application was based on the provisions of section 73 of the CAT Act which is in the following terms;
73 Contempt of Tribunal
(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.
Note. Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).
(2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.
(3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.
(4) For the purposes of this section:
(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and
(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and
(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.
Note. Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.
(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.
(6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.
In her application Ms Webb sought a referral of the question of whether the Council was in contempt to the Supreme Court of NSW. It is convenient to refer to an earlier decision of this Tribunal dealing with the power of referral, Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88. After referring to authorities the Tribunal said;
30 As I have formed the view that I am able to dispose of these proceedings by having regard only to the allegations of contempt made by the applicant, it is only necessary to consider such matters as are relevant to the exercise of discretion whether to make the relevant referral. Fortunately, guidance is provided as to the appropriate in principle approach by observations of Basten JA (Sackville AJA agreeing) in the NSW Court of Appeal in Mohareb v Palmer [2017] NSWCA 281. The fundamental question to be determined is whether the conduct which is the subject of the allegations is "capable of amounting to contempt." The determination of this question involves a consideration of the relevant factual matters coupled with a requirement to afford the respondent an opportunity to address the Tribunal about whether or not the matter should be referred to the Supreme Court. I shall proceed accordingly.
34 Accordingly, in considering the conduct of the respondent it is appropriate to determine whether it is a "deliberate commission or omission which is in breach of an ... order (which will thereby)... constitute ... wilful disobedience unless it be casual, accidental or unintentional." "Deliberate" where used in this context does not reflect conduct where there is a direct intention to disobey an order. It will include conduct where the respondent, being aware of it, had "no direct intention to disobey the order". Significantly for the purpose of these proceedings, the conduct will remain characterised as wilful "even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was "through carelessness, neglect, or even in dereliction of his duty".
I adopt the same in principle approach as set out above, and in particular at [34].
I have previously referred to the time which elapsed between the making of the orders and the date the Council responded to Ms Webb about them. I do not regard the period which elapsed as being an overly lengthy period, and I cannot comprehend that the conduct of the Council could in any way be characterised as a deliberate commission or omission in breach of the Tribunal's orders or indicating in any way that there was no intention to obey the order. There is no evidence of any carelessness, neglect or dereliction of duty on the part of anyone associated with the Council.
Accordingly, I conclude that there is no evidence of any conduct which would found the basis of any action which could be taken under section 73. There is therefore no basis for this application made by Ms Webb, and it should be dismissed accordingly.
For the same reasons which I have set out above concerning the application for review, I find that this application is also vexatious in character and should also be dismissed on this basis.
[10]
The Council's section 110 application
Section 110 of the GIPA Act is in the following terms;
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.
[11]
preconditions to the application of sec 110
No order may be made under section 110 unless the preconditions set out in subsection (1) are satisfied, as informed by the provisions of subsection (2). In the circumstances of these proceedings I must be satisfied that at least 3 access applications have been made to the Council in the previous 2 years which "lack merit" as that expression is defined in subsection (2).
I state for completeness that I regard the two-year period as dating back to a period calculated by reference to the date of the making of the order. The date of the making of the order would appear to be the only focal point when reading subsection (1) and according to it a meaning consistent with the language used.
Accordingly, it is necessary to be satisfied that Ms Webb has made at least 3 access applications, defined in section 4 of the GIPA Act to mean "an application for access to government information under Part 4 that is a valid access application under that Part." Those access applications must have been made within 2 years of the date of the orders made consequent upon the findings which I intend making at the conclusion of these reasons for decision. Those access applications must have lacked merit in any of the circumstances described in subsection (2).
The Council relied upon 4 access applications all of which it is asserted lacked merit as defined. I deal with each of these in turn. The evidentiary material relevant to each of them is contained within documentation exhibited to the affidavit of Mr Wickham.
1. On 26 June 2018 Ms Webb completed a Formal Access Application Form seeking inter-alia a list of Code of Conduct reports lodged with Council between January 2012 and June 2018, including the date of each report, details of the relevant Superior Officer or the individual the subject of each report, the nature of each of the reports, the date of each of the counselling sessions convened with respect to each report, the outcome and/or final decision of each report and whether the reports were "closed off" prior to completion or affected by termination and/or cessation of employment and whether any of the final decisions were appealed including the basis of those appeals, how the appeals were lodged, who lodged the appeals, who managed the appeals and the secondary outcomes of the appeals. After correspondence with Ms Webb seeking clarification of certain matters, the Governance Officer/Right to Information Officer of the Council, Ms Holly Jamadar wrote to Ms Webb on 18 October, 2018 refusing to deal with the application because to do so "would require an unreasonable and substantial diversion of Council's resources."
2. In 19 July 2018 Ms Webb made a Formal GIPA Application requesting "a copy of UCC Incident Report Forms for both my husband and I." On 8 August 2018 Ms Jamadar forwarded a Notice of Decision informing Ms Webb that the requested information "is not held by Council."
3. On 14 January, 2019 Ms Webb made a Formal GIPA Application to Council seeking "An unedited copy of the document detailing the conversation between the Mayor (Bruce McKenzie) and Council" and "An unedited copy of the document originating from my husband and/or I requesting Council prepare the letter of 5th October, 2012". On 12 February 2019 in a Notice of Decision Ms Jamadar informed Ms Webb that the information was not held by Council.
4. In a letter dated 14 January, 2018 the date of which should have been 14 January, 2019 (as acknowledged by Ms Webb during the hearing) Ms Webb attached a Formal Access Application Form requesting a "file note/meeting note - Paul Minett, 13th July, 2012." The accompanying letter stated that the meeting occurred with her at 10:30 AM that day. By Notice of Decision dated 12 February 2019 Ms Jamadar informed Ms Webb that the information requested was not held by Council.
I state for completeness that to fall within what is regarded as lacking merit in subsection (2) it is only necessary to find that the Council has made a decision as defined in (a) or (b). Once that decision has been made these provisions are satisfied. In the absence of any determination by any relevant tribunal or court setting aside, invalidating or quashing any such decision it will suffice as falling within the provisions of the subsection. In any other case, a presumption of regularity will apply.
It follows from the recitation set out above that with respect to the first application, it may be regarded as lacking merit because it falls within subsection (2) (a). The remaining 3 applications may be regarded as lacking merit because they fall within subsection (2) (b).
I conclude therefore that the preconditions for the making of an order under section 110 as set out in subsection (1) have been satisfied.
[12]
GIPA Act access applications in perspective
Before considering whether and to what extent discretion to make an order under section 110 should be exercised as sought by the Council, it is pertinent to have regard to the statutory matrix against which the application is brought.
I commence this consideration by observing the objects and purpose of the GIPA Act as set out in section 3
Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by -
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament -
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
A consideration of the overall provisions of the GIPA Act does not lead to the conclusion that there is an immutable absolute entitlement to government information. Indeed, section 3(1)(c) refers to an overriding public interest against disclosure. There are provisions within that Act which deal with the overriding public interest against disclosure and the balance which needs to be struck between disclosure and nondisclosure. For example, sections 13 and 14 provide in part as follows;
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
14 Public interest considerations against disclosure
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
TABLE 3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a)
reveal an individual's personal information,
(e)
reveal false or unsubstantiated allegations about a person that are defamatory,
(f)
expose a person to a risk of harm or of serious harassment or serious intimidation,
(g)
in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed.
Further elaboration on the question of overriding public interest against disclosure of information is contained within section 55;
55 Consideration of personal factors of application
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
Significantly, for present purposes the motive of an applicant is a matter which can be taken into account in determining whether access to information should be granted. I shall return to this aspect later in these reasons for decision.
The provisions of section 60 enable an agency to refuse to deal with an access application;
60 Decision to refuse to deal with application
(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):
(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,
(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,
(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989,
(c) the applicant has failed to pay an advance deposit that is payable in connection with the application,
Note. See section 70.
(d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order,
(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.
(2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided.
(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.
(3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations:
(a) the estimated volume of information involved in the request,
(b) the agency's size and resources,
(c) the decision period under section 57.
(3B) Any consideration under subsection (3A) must, on balance, outweigh:
(a) the general public interest in favour of the disclosure of government information, and
(b) the demonstrable importance of the information to the applicant, including whether the information:
(i) is personal information that relates to the applicant, or
(ii) could assist the applicant in exercising any rights under any Act or law.
(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.
(5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal.
(6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
It is not necessary that I deal with the provisions of section 60 in any detail. I note, however, that they extend to a range of circumstances including an unreasonable and substantial diversion of resources, and in the weighing exercise the demonstrable importance of the information to the applicant and whether the information might assist the applicant in exercising any rights under any Act or law.
And finally, there are provisions such as sections 109 and 110. Section 109 provides;
109 NCAT may refuse to review decision
NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance.
I next come to consider the provisions of section 110 themselves and their relevance to the manner in which the discretion to make an order should be exercised. As previously observed, the section creates a precondition based upon a number of unsuccessful applications which are deemed to lack merit over a two-year period. This must reflect an intention to permit the making of a restraint order in circumstances where there has been some prior history of unmeritorious applications within a specified period. The intention seems to be to expose an applicant with such a history to the possibility of a restraint order which might apply on a blanket basis or which might be subject to conditions as outlined in subsection (3).
Once a restraint order has been made any subsequent application will be subject to consideration of whether it is lacking in merit, frivolous, vexatious, misconceived or lacking in substance, involves an intention to harass, cause delay or detriment, or "to achieve another wrongful purpose." In referring to these matters which are contained in subsection (5A) the legislature must have intended that they be matters of significance to be taken into account by the Tribunal in determining whether to approve of the making of an access application following the making of a restraint order. I would infer that these are matters which might also be taken into account in determining whether to exercise the discretion to make a restraint order. It would be otiose if they would be considered by the legislature to be relevant for the purpose of subsection (5 A) and yet not relevant in determining whether to make a restraint order. Of course, their significance and weighting may differ for the purpose of each exercise.
In any event, whether or not the conclusion which I have reached above is available by reference to the provisions of subsection (5A), I propose to take into account the substance of many of the applications made by Ms Webb, whether they might be characterised as frivolous, vexatious, misconceived or lacking in substance and whether she has engaged in conduct designed to harass, cause detriment or to achieve a purpose which is, in all the circumstances inappropriate. All of these matters are subsumed within the rubric of the "motive" of Ms Webb in the course of conduct upon which she embarked, and its consequences and which are at the heart of these proceedings.
[13]
The exercise of discretion - consideration
It is difficult to summarise in a succinct manner the nature and extent of the dealings between Ms Webb and the Council, all of which have their genesis in complaints made by third parties commencing in about April 2011 about the privacy screen which Ms Webb and her husband had constructed around their swimming pool. The resultant disputation with Council concerning consent to the DA which Ms Webb and her husband were required to submit was resolved by consent orders in the NSW Land and Environment Court made on 29 November 2012. Ms Webb and her husband sold the property and moved out of the local government area in about August 2013. It is more than 6 years since Ms Webb has lived in the area.
The observations which follow are necessarily intended by way of summary only. They should not detract from the full narrative of the interaction between Ms Webb and the Council contained in the affidavit of Mr Wickham which I have set out in full above.
Notwithstanding the time that has elapsed since she moved away from the area Ms Webb has interacted with the Council on many occasions concerning the identity of the persons who objected to the privacy screen and her complaints to Council concerning her dealings with it. In total she has made 50 formal and 93 informal access applications under the GIPA Act since July 2011.Thirty seven formal applications have been made since March 2017.
It is clear from the evidence of Mr Wickham that the processing of these applications has occupied considerable time, money and resources of the Council. Between March 2017 and January 2020 Council spent a total of 327.5 hours processing formal access applications brought by Ms Webb, equating to around 54% of the time spent by Council officers processing GIPA Act applications lodged by members of the public in that period. This has had a resultant deleterious effect on the resources of the Council.
Furthermore, the substance of many of the applications brought by Ms Webb was such that it required consideration of a great deal of detail which exacerbated the impact upon the resources of Council. I have previously detailed some of the information sought by Ms Webb in [16] and [60] above. This is not intended to provide an exhaustive examination of what was sought, but to provide some indicia of its pervasive nature.
Furthermore, Ms Webb's conduct in pursuing the Council has been relentless. Examples are provided in [25] and [26] above consequent upon the decision of Senior Member Hamilton.
This conduct also needs to be considered in the context of the expressed purpose for seeking the information from Council. As Ms Webb conceded it stems from some seemingly compulsive, obsessive desire to find out the identity of the persons who objected to the privacy screen. Ms Webb has no desire to make any contact with those persons or to initiate any form of action of any kind against them arising out of the complaints made by them. Nor can she possibly be seeking to maintain any action against the Council with respect to the privacy screen because her issues were resolved when consent orders were made in the NSW Land and Environment Court. For reasons previously expressed I rejected the late suggestion by Ms Webb that she was engaged in some form of academic research. I am left with the conclusion that Ms Webb's primary motivation for her conduct was an obsessive, compulsive type need to ascertain the identity of the persons, presumably neighbours, who objected to the privacy screen. So much is corroborated by the evidence set out in [3] and [4] above.
Other GIPA Act Applications were no doubt motivated by Ms Webb's concerns about how she was being treated by the Council and its officers. This conclusion is corroborated by the many complaints made by Ms Webb to external agencies including the Information Commissioner, the Legal Services Commissioner, NSW Police and the many Code of Conduct complaints made against Mr Wickham and others.
Ms Webb's conduct in pursuing the Council by way of applications made under the GIPA Act may be characterised as persistent, having no apparent rational basis, and having the effect of seriously impacting upon the resources and work of the Council. It may be characterised in the aggregate as being vexatious.
In addition to this conduct Ms Webb has made several applications to this Tribunal with respect to many of the decisions made by the Council. Whilst she has had some partial limited success, as may be seen from the decision of Senior Member Hamilton which I have set out above, overall Ms Webb has not been successful. It is not necessary that I descend into the detail of these matters; they are referred to in Mr Wickham's affidavit.
Ms Webb has had more than ample opportunity to seek information from the Council. Her persistent, irrational and vexatious conduct, and the adverse consequences for the Council are such that it is appropriate that a restraint order be made pursuant to section 110 of the GIPA Act.
[14]
Acting in concert
The Council submitted that in determining these proceedings I should take into account the fact that Ms Webb acted in concert with her husband Mr McEwan. In evidence Ms Webb said that she habitually spoke to her husband about applications to Council under the GIPA Act which she and he were both making. Notwithstanding this, the number of applications made by Mr McEwan is substantially less than those made by Ms Webb.
Having regard to the orders which I intend making under section 110, I do not find it necessary to make any reference to Mr McEwan, who did not participate in any way in these proceedings.
[15]
Conclusion
Having regard to all of the matters to which I have referred above, and in particular the matters referred to in [75] and following I conclude that it is appropriate to make a restraint order pursuant to the power given by section 110 (1). It is appropriate that such an order be made to apply to all access applications which might be made by Ms Webb to the Council. Having regard to the history of these proceedings and the circumstances in which the many applications have been made by Ms Webb I do not intend to impose a specific time limitation. The order should apply indefinitely. In view of Ms Webb's behaviour as I have described it above, the order should apply with respect to all applications which might otherwise be brought to Council. There can be no current reason why Ms Webb would require any further information from Council given that she has not resided in the area for more than 6 years.
[16]
Costs
The parties asked that I reserve costs, and I shall do so with liberty to apply.
[17]
Orders
I make the following orders;
1. 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.
2. Applications 2019/00174496 and 2019/00174490 are dismissed.
3. Costs are reserved with liberty to apply which must be exercised within one month of this date.
[18]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 March 2020