Webb v Secretary, Department of Communities and Justice

NCAT Administrative and Equal Opportunity|2023-06-27

Reasons for Decision

On 19 April 2023, the applicant lodged an application seeking administrative review of a decision made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
On 17 May 2023, Ms Webb made a request, in writing, that she be granted leave to appear at the final hearing which is listed for half a day on 17 August 2023 by audio visual link (AVL).
On 19 June 2023, the Registry sought the parties' views in relation to the application and parties were provided with an opportunity, until 20 June 2023, to make submissions in relation to dispensing with the hearing in relation to the request to appear by AVL, as is required by s 50 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
Ms Webb made further submissions on 25 June 2023. Ms Webb does not object to the deciding of the request to attend by AVL on the papers. The respondent made further submissions on 20 June 2023, enclosing earlier submissions made on 13 June 2023 and consented to the making of an order dispensing with the hearing.
Neither of the parties' sought an oral hearing of the application and I am that it is appropriate to deal with the application on the papers, as a hearing would amount to further unnecessary costs to the parties and the Tribunal. I have made an order under s 50(1)(c) of the NCAT Act dispensing with a hearing.
In her request for leave to appear by AVL, Ms Webb submits that she is seeking leave to appear by AVL because: The applicant currently undertakes a 300 klm round-trip for nay business concerning NCAT, with premium told and premium parking charges additional to fuel costs. It is understood none of these costs are claimable.
The respondent opposes the application of Ms Webb to appear by AVL. The respondent submits that the proceedings can be run more efficiently and transparently if the parties were to appear in person. The respondent refers to a website which is run by Ms Webb, 'NSW Freedom of Information' and which advertises a forum that invites users to:

Consideration

Section 38 of the NCAT Act provides that the 'Tribunal may determine its own procedure in relation to any matter'.
The current NCAT Factsheet about 'Attending hearings by telephone or video' notes that when considering a request NCAT will consider: • The type of proceeding • Nature and complexity of the matter • Views expressed by other party or parties • Reason for the request • Any disadvantage a party might suffer.
I make the following general observations regarding how parties appear in the Tribunal. As is set out in the NCAT fact sheet, final hearings in this Administrative and Equal Opportunity Division are ordinarily listed in person. A hearing in person limits the disruptions that can often occur with technology and internet access and ensures a more efficient running of the case. Further, with the parties and witnesses before the Tribunal, the Tribunal can be more confident that a party or a witness is not being assisted by someone the Tribunal cannot see, this is especially important when witnesses are being cross examined or there are issues relating to credibility. Those risks may vary depending on who is being cross examined. However, those sorts of risks must be weighed up against access issues. I note that there may be circumstances where distance from the hearing venue may put a party at a disadvantage, especially in remote and regional areas where travel to the nearest hearing location may be difficult and the provision of public transport may be limited. Similarly, a disability, care responsibilities or other circumstances may impact on a party or witnesses ability to attend a hearing venue. The less complex a matter or hearing event is, the more appropriate it may be to list the matter by telephone or video, hence why directions and case conferences are ordinarily listed in this division by AVL.
The Tribunal must balance the competing considerations regarding how a party or witness may appear at a hearing, on a case-by-case basis. Having considered the parties' submissions, and in circumstances where the respondent is objecting to the application to appear by AVL, I am not persuaded that it would be in the interests of justice generally to grant leave for Ms Webb to appear by AVL.
These proceedings involve administrative review of a decision in which the Ms Webb is seeking access to: A full and unedited copy of a presentation which may be titled "Dealing with Difficult Applicants" made by Justice NSW /Department of Justice to the NSW Right to Information & Privacy Practitioners Network (NIPPN) on Wednesday 27th March 2019, 9.40am.
The agency decided to provide access to some information and decided to refuse access to other information based on an overriding public interest against disclosure. On that basis the proceedings will involve some complexity.
I note that AVL hearings do not make the Tribunal any more or less transparent. Hearings in person are also open to members of the public to attend. Recording proceedings without approval is a breach of s 9B of the Court Security Act 2005 (NSW). The transmission and distribution of sound recordings is prohibited, and a breach attracts a maximum penalty of 200 penalty units or imprisonment for 12 months, or both. That penalty reinforces the objects of the Court Security Act for the "secure and orderly operation of courts" and reinforces that transmission and distribution of sound recordings is a serious matter. However, I have no evidence before me that Ms Webb does record proceedings or shares such recordings or that because she has a website or is active on social media that there is an increased risk that she will record and distribute the proceedings.
However, Ms Webb notes on the request to appear by AVL a PO Box address in "Marks Point" NSW. That is a suburb nearby to Lake Macquarie and about 135 kms from the Sydney hearing venue. Ms Webb has not disclosed on her application where she resides. Even assuming that it may be nearby to Marks Point, Ms Webb has not identified the costs or charges which she will incur or that the costs are substantial or that she is unable to afford them. I note that even for people living in metropolitan Sydney, they too may incur tolls and parking charges. As discussed above, a final hearing in person allows for a more efficient running of the matter and limits the technological issues which may arise and gives the Tribunal greater confidence that a party or witness is presenting their own case or giving their own evidence. For those reasons, I am not persuaded to grant leave for Ms Webb to appear by AVL.

Orders

Accordingly, I make the following orders: 1. A hearing in relation to the application to appear by audio visual link is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013. 2. The application for the applicant to appear by audio visual link is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2023

At a glance

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Judgment (4 paragraphs)

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