Webb v Secretary, Department of Communities and Justice

NCAT Appeal Panel|2023-07-28|Before: Legal J

Summary

With the onset of the COVID-19 pandemic, courts and tribunals across Australia were forced to rapidly implement or increase their capacity to conduct hearings remotely from their physical locations, either by telephone or audio-visual facility. This Tribunal was no exception.
There can be no doubt that the expansion of that capacity has enhanced the convenience of parties using the Tribunal. It has also improved access to justice for some parties. That is particularly the case for Tribunal users who live in regional or remote locations and those who have disabilities which impact on their mobility.
It has also been demonstrated and found that hearings conducted remotely can generally be conducted in a procedurally fair way: see for example QFC (No 3) [2020] NSWCATGD 24 at [27]; Sanson v Sanson [2021] NSWSC 417; The Owners-Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152 at [115].
However, whether a party or witness should be allowed to appear at a hearing remotely remains within the discretion of the Tribunal, and the fact that remote hearings can generally be conducted fairly does not equate to that process being ideal, or even preferable, in all situations.
Nor is it the case that the increased convenience for Tribunal users in being allowed to attend hearings remotely generates corresponding efficiencies in the application of the Tribunal's limited resources.
Experience shows that the difficulties some parties, and their lawyers, have in accessing and utilising the relevant technologies create an added impost on the administration of justice by the Tribunal. That may be demonstrated simply by delays to the commencement of hearings because parties are unsuccessful in joining remotely or by the accumulated micro-delays associated with the need to explain to a party or their lawyer, sometimes repeatedly in a hearing, that they are on mute whilst speaking or not on mute whilst others are doing so. It may also be demonstrated through the tendency of some parties, and their lawyers, to take advantage of the indulgence offered by appearing remotely by joining from inappropriately loud or disruptive locations.

Background

On 19 April 2023, the appellant applied to the Tribunal for administrative review of a decision of the respondent under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act or GIPA).
On 15 May 2023, the proceedings were listed for a case conference.
On 17 May 2023, the appellant made a request to the Tribunal to attend the substantive hearing via audio visual link (AVL). The reason cited in the application was that the appellant: …currently undertakes a 300 klm round-trip for [any (scil)] business concerning NCAT, with premium [tolls (scil)] and premium parking charges additional to fuel costs. It is understood none of these costs are claimable.
On 13 June 2023, the respondend provided the appellant with its objections to the application.
On 19 June 2023, the Tribunal requested the parties' views on the application and whether they objected to the application being determined on the papers, by 20 June 2023.
On 20 June 2023, the respondent provided the Tribunal with its 13 June 2023 correspondence to the appellant, objecting to the application but not objecting to the matter being determined on the papers.
On 25 June 2023, the appellant provided submissions in relation to the application and consented to the application being determined on the papers. She provided an explanation for her delay.
On 27 June 2023, the Tribunal issued its decision. It dispensed with a hearing and dismissed the application.
The substance of the respondent's objection to the application was that: 1. Ms Webb manages a website ('the website') focussed on freedom of information issues that includes a forum for users to: 1. Contribute to submissions; 2. Engage with a supportive community; 3. Consider departmental responses; and 4. Ask questions about GIPA and how the GIPA process varies between agencies. 1. That it may be inferred from such involvement that it is reasonably likely that "Ms Webb and associates communicate and facilitate forums to discuss and assist with current litigation." 2. That "[a]ccordingly, the Respondent is concerned that private forums or sub‐forums on these social media sites could be used to communicate and display information about current NCAT matters. The Respondent reasonably believes that Ms Webb and associates may communicate on non‐public forums such as sub‐reddits. Therefore, if the applicant were permitted to attend the hearing remotely, there is a risk that other people may be in attendance or that the hearing may be recorded and shared between users or forum members. The smooth running of the proceedings is likely to be jeopardised by the need to deal with these additional issues"; and 3. That the appellant has a history of prior conduct involving publishing information concerning current litigation, inviting people to share ideas in preparation of submissions, requesting current NCAT matter details and publicly expressing views on remote hearings. Purported examples were given.
The substance of the appellant's submissions were that: 1. Her costs and inconvenience of attending the hearing in person were avoidable if she was granted leave to appear by AVL; 2. She was concerned that the respondent's representatives had included reference to information about her involvement with the website, which they had apparently obtained through internet searches. 3. That many such assertions were unfounded and represented the respondent taking "unnoticed advantage of an unrepresented party".

Tribunal's reasons for decision

The decision at first instance is published: Webb v Secretary, Department of Communities and Justice [2023] NSWCATAD 168.
The Tribunal was satisfied the matter could be adequately determined on the papers, which had not been opposed, and dispensed with a hearing.
From [7] - [16] the Tribunal cited the respondent's submissions. At [6] and [17] it cited those of the appellant.
At [18] - [19] the Tribunal noted the impact of s 38 of the NCAT Act and the Tribunal's fact sheet referred to above.
At [20] the Tribunal made: …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 dispositive reasoning of the Tribunal is contained at [24] - [25], as follows: 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.

Scope and nature of internal appeals

To succeed in an appeal from an interlocutory decision such as this one, the appellant requires permission (that is, "leave") to appeal: NCAT Act s 80(2).
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
An application for leave to appeal from an interlocutory decision on a matter of practice and procedure faces a "high hurdle" as referred to in various decisions of the NSW Court of Appeal: see, for example, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]-[6], where the authorities were collated. It is sufficient here to record what was said by Sir Frederick Jordan in In re the Will of F. B. Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323; (1946) 63 WN (NSW) 176 that: "...if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."
The Tribunal's decision was quintessentially a discretionary one in respect of its practice and procedure. What may be derived from the authorities is that: 1. the grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable; 2. in relation to discretionary decisions, such as the decision under appeal, error in the nature described in House v R (1936) 55 CLR 499 must be established; and 3. appellate courts and tribunals are cautious in granting leave to appeal on matters of practice and procedure.Such decisions will generally only be overturned on the principles outlined in House v R: see for recent authority Gabrielle v Abood (No 3) [2023] NSWCA 29 at [12] per Kirk JA with the Court in agreement.
House v R error involves a decision maker: 1. making an error of legal principle; 2. making a material error of fact; 3. taking into account some irrelevant matter; 4. failing to take into account, or giving insufficient weight to, some relevant matter; or 5. arriving at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
I may decide to conduct a new hearing if I am satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning". Otherwise, the appeal, at least insofar as it is not limited to a question of law, proceeds by way of rehearing if leave to appeal is granted: Yuen v Thom [2016] NSWCATAP 243 at [17].

The Grounds of Appeal and the Appellant's submissions

The appellant settled upon four grounds of appeal. She alleges that the Tribunal's decision was: 1. beyond its jurisdiction; 2. made without reference to precedent; 3. made in circumstances which would evidence bias or apprehended bias; and 4. so unreasonable a reasonable decision maker would not have made it;
The appellant addressed the first ground on the basis that it was her understanting that decisions such as the one she has appealed from are made in the first instance by Registry officers and only then reviewed by a Member if the issue has become contentious. As I pointed out when hearing from the appellant, that may be the case in respect of the issue of summonses (NCAT Act s 48 & the Tribunal's fact sheet "[r]equest a summons"), but I was not aware of such a practice in respect of applications of this nature. Nor could the appellant provide any relevant example. In any event, this challenge may be simply disposed of. The Tribunal's jurisdiction was clearly engaged when the appellant made her application to review the decision made by the respondent under the GIPA Act: GIPA Act, s 100; NCAT Act, s 28; Administrative Decisions Review Act 1997 (NSW), s 9. The real issue raised by the appellant is one of power, not jurisdiction, and the Tribunal has power to make orders in managing its practice and procedure.
The appellant's reference in the second ground to "precedent" is to be understood from her submisisons as relating to the Tribunal previously allowing her, and others, to attend final hearings in the Administrative and Equal Opportunity Division and Appeal Panel by AVL. She cites four reported decisions in proceedings which she was involved in, although I note that all were determined between the early stages of the pandemic and when the Tribunal's publicly available documents indicated that no preference would be given to final hearings by AVL. i.e.12 June 2020 to 28 April 2023. Nor does the appellant specifically address the question of whether there had been any prior objection to her appearing by AVL, although she does note that "there can be no doubt whatsoever the Tribunal has been continuously agreeable to the Appellant having access to AVL facilities, most of which were not required to be justified" (emphasis added).
In respect of the allegation of bias, the appellant says that is evidenced by the "undeniably close relationship between NCAT and Justice NSW" although that was not expanded on. She also notes that the timing of the submissions of the parties at first instance indicates that the Principal Member had only "one, eight hour day" to write her decision and prepare it for publication. She submits that would not be possible without at least some element of predetermination, perhaps contributed to by her delay in lodging her submissions and the impact of the claims made by the respondent about her work on the website. She says this is indicative of actual bias in the form of prejudgment. Whilst the appellant also commenced submisisons on the basis that there was a reasonable apprehensions of bias, based on previous decisions of the Principal Member in respect of her other matters, I pointed out that was not raised, and no references were given, in the material she had lodged in support of the appeal. I gave the appellant the opportunity to consider that, and later to advise whether she wished to make any application in that regard. She did not.
In respect of the allegation that the decision was unreasonable in the legal sense, the appellant largely refers to the respondent's conduct of the application at first instance including reference to her involvement with the website. She seeks to justify her willingness to assist the public with GIPA related enquiries in that way and to criticise the respondent for its willingness, as she perceives it, to pillory her for her good works in that regard. She also points to the conduct of the directions hearing for this appeal, wherein an employee of the respondent joined the hearing, which was conducted by AVL, and that person was "dressed in weekend active-wear, twice briefly appearing with his children audibly at his feet". I interpolate to note that whilst that was referred to in relation to the allegation that the respondent's opposition to the application was motivated by bad faith, which I will return to, it is also a prime example of an issue referred to at [6] above.
The appellant notes, correctly, that I granted her leave to attend this hearing remotely and that such leave was not opposed by the respondent.

The Respondent's submissions

The respondent opposes a grant of leave to appeal, noting the decision at first instance did not involve any complexity and by submitting that the appellant merely disagrees with the decision. It refers to the principles in respect of such appeals, which I have summarised above.
In respect of the allegations as to bias the respondent submits no properly arguable basis for a finding of actual or apprehended bias has been identified.
Regarding the speed of delivery of the Tribunal's decision, the respondent submits that it is not unusual for decisions to be handed down quickly and that it is possible for decisions to be made extemporaneously, particularly in interlocutory and procedural based decisions such as the decision in issue. Therefore, the length of time between the close of submissions and the handing down of the decision does not establish bias or apprehended bias.
In reference to the allegation the decision was unreasonable, the respondent submits the decision was within the bounds of decisional freedom, by reference to what was said by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [28] that: After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct and preferable decision.
The respondent submits that nothing can be drawn from its lack of opposition to the appellant appearing by AVL in this hearing, or my allowing it, in relation to whether the Tribunal's discretion miscarried in the decision under appeal.

Consideration

As I found earlier, the Tribunal was clearly acting within jurisdiction.
The fact that the Tribunal has previously allowed parties, almost universally, to appear by AVL when the risks posed by the pandemic warranted it, does not indicate that it is bound to do so forever.
In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, the following summary of principles in respect of bias was stated: [68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. [69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. [70] As Gleeson CJ and Gummow J observed in that case at [71]: 'The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.'
In respect of apprehended bias, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6] the High Court said, relevantly: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial."
No probative case for bias or apprehended bias is established by the Tribunal acting diligently to promptly produce and release a decision. Nor is it surprising that a decision of 26 paragraphs on an issue of practice and procedure could be produced in a day without predetermination. The reasons at first instance, at [17], clearly engage with concerns raised for the first time in the appellant's submissions of 25 June 2023. The only proper inference available from that is that the Principal Member considered those submissions, despite them being late, before making her decision.
The suggestion of some connection causing collusion between this Tribunal and the Respondent is unsupported by evidence or cogent submisisons and should be rejected, as should the unsupported claim that apprehended bias is established by prior decisions of the Principal Member.
Each application for leave to appear remotely must be determined on its individual merits, as noted by the Tribunal at [21]. Those merits may be assessed by reference to any proper considerations, including those identified in the summary above and by the Tribunal at [20] & [25] of its decision.
The appellant has conflated, in large part, the submissions by the respondent about her involvement with the website and the inference it urged on the Tribunal that the history of that involvement made it more likely that the appellant might breach the Court Security Act, with the Tribunal's decision. In such circumstances, I think it understandable that the appellant felt compelled to defend her involvement with the website and the basis upon which she submits that the respondent attempted to present the view to the Tribunal that "by the offering of free public services to the greater community [she] is somehow acting in a manner that is offensive, and as such she needs to be controlled."
However, the Tribunal clearly avoided the pitfall the appellant says was laid for it. In a fair reading of its reasons, at [24] the Tribunal rejected the suggestion that there was an evidentiary basis to find, or infer, a propensity of the appellant to breach the Court Security Act. Its commencement of the last sentence of that paragraph with the word "[h]owever" reinforces that conclusion.
Whilst the appellant was clearly concerned that the Tribunal's recitation of those allegations meant that they had led the Tribunal to have a closed mind as to her application, and to unreasonably take into account unproven, and therefore irrelevant, matters, the Tribunal was compelled to record the essence of the respondent's submissions if only to avoid the suggestion that it had failed to engage with an argument clearly advanced before it: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.
At [25] the Tribunal focussed, correctly, on exercising its discretion on the evidence actually before it without reference to the respondent's contentions about the website, but rather by reference to its observations at [20]. It was not persuaded that discretion should be exercised in favour of allowing the application, largely because there was no evidence from the appellant to assist in demonstrating that a materially greater than usual prejudice would be caused by her appearance in person. In those circumstances, the decision was unexceptional.
Having reviewed the grounds of appeal and heard the parties on the issues, I am satisfied the appeal raises no issue of general principle or public importance. The appellant in substance seeks to engage in a merits attack on a discretionary decision on a matter of practice and procedure. The decision made by the Principal Member was well open to her, and no reasonably arguable case of House v The King error or bias has been made out.
Leave to appeal is refused.

Costs of the appeal

In appeals of this nature, the ordinary position is that each party pays their own costs unless special circumstances warranting an order for costs is established. The parties were directed, if there was any potential for an application for costs, to raise that possibility in their written submissions. Neither did. On that basis, I make no order as to costs.

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

Amendments 07 August 2023 - 1. Coverpage words "a party" added to the catchwords 2. Paragraph 11 changing the word "only" to "all" 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: 07 August 2023

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (10 paragraphs)

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Legislation Cited (4)

Cases Cited (19)