Webb v Secretary, Department of Communities and Justice

NCAT Appeal Panel|2024-12-13

2024/00361128 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2024] NSWCATAD 238 Date of Decision: 14 August 2024 Before: K Ransome, Principal Member File Number(s): 2023/00125842

REASONS FOR DECISION

This is an appeal against orders made in the decision of the Tribunal in Webb v Secretary, Department of Communities and Justice [2024] NSWCATAD 238 (the Decision).
The appellant made an application on 5 September 2022 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to information held by the Department of Communities and Justice (DCJ), requesting the following information: "A full and unredacted copy of the presentation which may be titled "Dealing with Difficult Applicants" made by Justice NSW/Department of Justice to the NSW Right to Information and Privacy Practitioners Network on Wednesday 27 March 2019, 09.40am."
On 5 October 2022, the respondent released some of the information to the appellant. The appellant sought an external review of the decision to the Information and Privacy Commission (IPC). On 28 March 2023, IPC concluded its review and made no recommendations in relation to the respondent's decision made on 5 October 2022.
On 19 April 2023, the appellant sought an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the decision made on 5 October 2022 to refuse to give her access to certain information.
The information to which the appellant was refused access was part of a PowerPoint presentation consisting of twelve slides. Five slides were released in full. Two slides were withheld and portions of five slides were redacted and released. The respondent refused to give access to all of the information on the basis of public interest considerations. The Tribunal affirmed the respondent's decision.

Decision at first instance

The Tribunal decided against disclosure of information contained on numerous slides because it found that the disclosure would prejudice the effective exercise by an agency of its functions, including by identifying the methods and strategies employed by the respondent in dealing with unreasonable conduct of some persons and that the release of the information could expose a person within the DCJ to a risk of harm or of serious harassment or intimidation (Decision at [68]-[72], [76]-[77]).
The Tribunal relied on confidential evidence of Ms Cobbin, Director of the Open Government, Information and Privacy Unit (OGIP) at DCJ, about "behaviours displayed by some GIPA and privacy applicants which may be described as unreasonable, vexatious, intimidating and harassing" (at [67]). Ms Cobbin also set out the effects of these behaviours on staff and stated that she has responsibility for ensuring a safe workplace and the development of risk mitigation procedures.
At [68]-[71] the Tribunal set out its reasoning for its conclusion that these matters ought to be given significant weight: "68 DCJ submits that disclosure of the full presentation would prejudice its functions in protecting staff against harm to their health, safety and welfare through the elimination or minimisation of risks arising from unreasonable and fixated applicants. I accept that, if the information was released and thus available to the world, the ability of DCJ to provide a safe workplace would be hindered as unreasonable complainants would have knowledge of the current strategies systems and would make every effort to circumvent those strategies thus prejudicing DCJ's ability to provide a safe work environment. 69 The Information Commissioner points out that the relevant portions of the slides may also fall within cl 3(f) which concerns whether it could reasonably be expected that release of the of the information would expose a person to a "risk of harm or of serious harassment or serious intimidation". I am also of the view that this public interest consideration against disclosure is applicable. 70 The primary function of the OGIP Unit is to deal with applications for access to information. Ms Cobbin states that this includes, among other things, applications under the GIPA Act, privacy complaints and ensuring compliance in responding to subpoenas and other court orders. She states that applicants engaging in unreasonable or vexatious conduct unfairly consume limited resources and detract from the ability of DCJ to respond to other access applications. Ms Cobbin states that there is currently a backlog of access applications and operational capacity to deal with them is impeded by unreasonable complainants' applications and behaviours. 71 I am satisfied that there is a real risk that disclosure of the information would lead to an escalation of behaviour on the part of several unreasonable complainants, particularly as they would seek to circumvent strategies currently in place to minimise the effects of such behaviours, which would further impede the ability of the OGIC Units core function."
The Tribunal also considered the content of each slide separately and found that some of the slides contained Ms Cobbin's personal information which she objected to being released (at [84]). The Tribunal gave weight to this factor (at [88]).

Legislative context

The object of the GIPA Act is to open government information to the public, including by giving members of the public an enforceable right to access government information (s 3(1)). Section 5 creates a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure".
Sections 12 and 14 of the GIPA Act set out non-exhaustive lists of examples of considerations for and against disclosure respectively.

Tribunal's Jurisdiction on an Internal Appeal

Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) permits a party to appeal in respect of a final decision as of right "on any question of law" or by leave of the Appeal Panel on any other grounds.
The appellant did not identify any specific grounds of appeal in the Notice of Appeal and instead referred to a cover letter which accompanied the Notice. The cover letter stated that the grounds of appeal were: "Numerous Errors in Law Numerous Errors of Fact Apprehension of Bias Denial of Procedural Fairness and Right to Consider Judicial Appeal Processes Extension of Time to lodge the Application for Appeal"
The grounds as articulated by the appellant lacked specificity. The appellant filed lengthy submissions and submissions in reply. She made reference to many paragraphs of the Decision and referred to many different issues and concerns.
The respondent submitted that the appellant's grounds of appeal raise the following issues: 1. The Tribunal permitted Ms Cobbin, who was a witness called by the respondent, to give evidence by audio visual link (AVL). 2. The Tribunal refused to grant the appellant's application for an adjournment. 3. The Tribunal conducted a confidential session with the respondent. 4. The Tribunal erred in finding that the PowerPoint presentation was not conducted in a public forum.
The Appeal Panel confirmed with the appellant that these were the extent of the grounds of appeal. The Appeal Panel will consider the appellant's grounds of appeal as re-framed above.
The respondent submitted that the first three questions could potentially raise issues of actual or apprehended bias and a failure to afford procedural fairness and are questions of law and the fourth question was a question of fact.
In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 ("Unique") at [25]-[28] the Appeal Panel set out some principles, relevant to the Appeal Panel, concerning questions of law.

Bias

The test for "actual bias" was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] as: "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion."
Determination of the question requires determination of underlying facts. As noted in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104; [1998] FCA 768 (French J) this requires proof of: "… a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made."
In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, McColl JA at [97] noted the heavy burden to establish actual bias: the allegation must be distinctly made and clearly proved; a finding should not be made lightly; and cogent evidence is required.
The test for apprehended bias is whether a fair-minded and informed lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]; [2000] HCA 63; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [12], [57]; Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 at [36]; NSW Education Standards Authority v Yeshiva College Bondi Limited [2022] NSWCATAP 160 at [70]-[75].
The reasonableness of the lay observer's apprehension is to be considered "in the context of ordinary judicial practice": Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [12] quoting Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13].
A decision made when there is either actual or apprehended bias constitutes a jurisdictional error rendering the decision invalid, regardless of the effect the bias might have had on the decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 ("LPDT") at [6]. The requisite materiality is inferred: LPDT at [13].
In the case of bias or apprehended bias, it may be necessary for an Appeal Panel to determine facts. As noted in Unique at [25], the recent authorities concerning questions of law highlight that a question of law should be able to be determined without reference to unfound or contested facts. However, recently, in Donohoe v Albulario [2025] NSWSC 9 at [33] ("Donohoe v Albulario"), Basten AJ noted that even where an appeal is limited to a question of law, it may be appropriate and necessary, on appeal, to make findings relevant to the conduct of the hearing. His Honour noted the distinction between substantive and procedural facts.
His Honour stated at [33] (footnotes omitted): "To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the facts in dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal."
The Appeal Panel is satisfied that a question as to whether the Tribunal was biased (either actual or apprehended) raises a question of law, notwithstanding that it might require determination of some procedural facts.
We note further that an Appeal Panel dealing with allegations of actual bias or apprehended bias, coupled with other discrete grounds of appeal, should deal with the issue of bias first: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at 611; [2006] HCA 55 ("Concrete"). Bias undermines public confidence in the administration of justice (Antoun v The Queen [2006] HCA 2; (2006) 159 A Crim R 513 at [28]) and strikes at the validity of the hearing process and its outcome (Concrete at 611).

Procedural fairness

The Tribunal must accord procedural fairness to the parties and act impartially as set out in sub-ss 38(2) and (5) of the NCAT Act. The failure to accord procedural fairness must be material and be capable of affecting the decision: Kudrynski v Orange City Council [2024] NSWCA 33 at [49]; YJM v Public Guardian [2024] NSWCATAP 216 at [18]; FleetServ Pty Ltd v Maiden Co Pty Ltd [2023] NSWCATAP 268 at [23]; by analogy, in the context of jurisdictional error, Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1].
Were we satisfied that an alleged breach of procedural fairness was material, we would be satisfied it raised a question of law. Further, we accept, consistently with Donohoe v Albulario, that in some cases it would be appropriate to consider questions of fact. This is consistent with the Appeal Panel's approach in Yuen v Thom [2016] NSWCATAP 243 at [17]-[18].

Leave to appeal

A party may also seek leave to appeal on a ground other than a question of law. Ordinarily, leave to appeal would not be granted unless the decision is attended with "sufficient doubt", such as where there is an "issue of principle", a "question of general importance" or a "reasonably clear" "injustice": Unique at [42] in reliance on Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

Application for an extension of time

The Decision was made on 14 August 2024 and the Notice of Appeal was lodged on 26 September 2024.
Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) states that an internal appeal must be made within 28 days from the day on which the appellant was notified of the decision.
Section 41 of the NCAT Act provides: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
The principles to be applied by the Appeal Panel on applications for an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 ("Jackson").
At [22(3)] the Appeal Panel stated: "Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal)."

Material relied upon for the extension of time

The appellant sought to rely on a medical certificate provided to her on 11 September 2024 for a period covering 11 to 18 September 2024. The respondent did not object to the appellant relying on the medical certificate. We give leave to the appellant to rely on the medical certificate.
The respondent sought to rely on an affidavit of Ms Chew, a senior solicitor with the DCJ, for the purpose of opposing the application for an extension of time and providing further materials in regard to the respondent's application for Ms Cobbin to give evidence via AVL during the hearing on 6 October 2023. The appellant did not object to the respondent relying on Ms Chew's affidavit but submitted that there was insufficient evidence of prejudice; for instance, work could be re-allocated to avoid prejudice. We give leave for the respondent to rely on Ms Chew's affidavit.

Consideration of factors relevant to an extension of time

Length of and explanation for delay

There was a disagreement between the parties as to the last day to lodge an appeal. The last day for filing the appeal was 11 September 2024 and the appeal was filed on 26 September 2024. The appellant lodged the Notice of Appeal 15 days late.
The appellant's explanation for the delay was that she was unwell. As already noted, the appellant relied on a medical certificate provided to her on 11 September 2024 for a period covering 11 to 18 September 2024. It stated that the appellant "has a medical condition and will be unfit for work". In her submission, she stated that on 11 September 2024, she "suffered a serious medical episode … resulting in a brief hospital stay".
We note that the Appeal Panel has identified the need for an applicant for an extension of time to identify the link between their medical condition and the inability to file a document in a timely fashion in several published decisions: for example, FHH v Port Stephens Council [2024] NSWCATAP 182 at [10(3)] and Waters v Waghorn [2016] NSWCATAP 247 at [19]. This is consistent with the observation by Barrett J in Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [22] and the Court of Appeal in Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 at [4].
In Winter v The Queen [2013] NSWCCA 231, the Court of Criminal Appeal commented on the need for an appellant to explain the entire period of the delay. At [26], Bellew J (with whom Hoeben CJ at CL and Barr AJ agreed) said: "One final observation should be made in relation to this issue. For the reasons I have already outlined, the affidavit evidence adduced in the present case to explain the delay was inadequate. In any case where an extension of time is sought, and particularly when the delay is as extensive as it is in the present case, there is an onus placed upon the applicant to adduce evidence which fully explains that delay. That explanation must necessarily include a clear articulation of the steps taken to prosecute the appeal, and a comprehensive explanation for any periods of apparent inactivity."
While that case concerned extending time to appeal a conviction and sentence over six years out of time, it was nonetheless expressed in general terms that we consider applicable here.
The appellant's medical certificate does not say why she was prevented from filing the appeal beforehand or why the medical condition, which is undisclosed, prevented her from filing the appeal. The dates of her hospital stay are not identified. There is no evidence as to what "work" the appellant performs.
The respondent sought further information from the appellant in regard to the extension of time application, but the request was declined.
Ms Chew stated in her affidavit that between 20 August 2024 and 28 August 2024 there were communications between the appellant and the respondent regarding compliance with the orders made by the Tribunal on 14 August 2024. The respondent pointed to the appellant's communications in regard to this and other matters within that 14 day period and that she filed another matter in the Tribunal on 28 August 2024. The respondent submitted that these exchanges demonstrated that the appellant was contemplating an appeal within that 14 day period.
Even accepting that the appellant, being self-represented, might not have been aware that the medical certificate was lacking details important to applications of this kind (an explanation as to the link between her medical condition and her inability to file the appeal) and therefore accepting the position at its highest that she suffered from a medical condition from 11 to 18 September 2024 that precluded her from finalising and filing an appeal during this period, there was no evidence to explain: 1. why the appellant was not able to file the appeal in the almost four weeks since the date of the Decision, noting that the appeal period expired the day of the commencement of the medical certificate; or 2. the reason for the delay between 19 September (the day after the end-date on the medical certificate) and the date the appeal was filed (being 26 September 2024).
Taking all these matters into account, we do not consider that the appellant has provided a satisfactory explanation for the failure to lodge the Notice of Appeal in time.

Prejudice to the respondent

The Tribunal accepts that a respondent has "a vested right to retain the judgment unless the [extension] application is granted" (Jackson at [19], quoting Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at [2] per McHugh J (Gallo v Dawson)) and that time limits, established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal and for providing certainty for the parties in achieving finality in litigation, "should generally be strictly enforced". However, exceptions should be made where the interests of justice so require: Jackson at [21]. Meritorious cases should not be shut out due to an inflexible application of rules, which should not themselves be used as instruments of injustice: Gallo v Dawson at [2].
The respondent submitted that if an extension of time was granted it would suffer prejudice, as two officers had to be away from their day-to-day work in preparing for the appeal. However, this is work that was done as a result of the appellant filing the appeal. The prejudice to the respondent by granting an extension of time is minimal. We give little weight to the respondent's submission that an extension of time should not be given because it would suffer prejudice. This is not a case where, for example, it is suggested that there are issues of reliance on memory which may be damaged by delay or the loss of witnesses.

The appellant's prospects of success

We address the appellant's grounds of appeal, as formulated at the hearing of the appeal, below.

Decision to permit Ms Cobbin to give evidence via AVL

The appellant submitted that the Tribunal's decision demonstrated that the Tribunal was actually biased against the appellant as she previously sought to give evidence by AVL, and leave was refused. The appellant also referred to apprehended bias in her submissions.
The respondent's application for Ms Cobbin to give evidence via AVL was made on 6 October 2023 (Decision at [15]), supported by a letter from a physiotherapist that stated that Ms Cobbin had an acute lower back injury and that it was recommended that she stand while giving evidence or dial in to give evidence. The respondent submitted that the injury also impacted on Ms Cobbin's capacity to travel to and from the Tribunal and that she experiences pain and discomfort waiting in or out of the hearing room. The appellant opposed the application and submitted that the hearing ought to be adjourned.
The appellant pointed to a previous decision where she sought and was refused leave to appear by AVL where credibility was a live issue. The appellant submitted that the physiotherapist is not a medical practitioner and there was no affidavit from Ms Cobbin. The appellant also submitted that the Tribunal must demonstrate consistency when exercising its powers.
On 6 October 2023, the Tribunal granted leave for Ms Cobbin to appear by AVL and gave the following brief reasons for the decision. The Tribunal noted that the proceeding had previously been adjourned and that it would be in the best interests of the parties and the Tribunal for the hearing to proceed. Further, the Tribunal noted that Ms Cobbin is a witness and not a party to the proceeding. The Tribunal accepted that Ms Cobbin had an injury which made it difficult to travel to the Tribunal. It was noted that the appellant opposed the application. The Tribunal found that Ms Cobbin had already provided a written statement and that she could be adequately cross-examined by AVL.
The decision to permit a witness to give evidence via AVL based on medical evidence was made after both parties had an adequate opportunity to make submissions. Those submissions were considered by the Tribunal prior to it making its decision.
The appellant's submission that the Tribunal demonstrated actual bias or apprehended bias because it had previously refused to permit her to give evidence via AVL fails to address the position that the Tribunal makes decisions by taking into account the applicable law and the evidence or other material before it, which differs from case to case. The differences at issue here are material.
The Tribunal's reasons for permitting Ms Cobbin to give evidence via AVL are sound. We do not consider that this ground raises an arguable case as to actual bias or apprehended bias.

Decision to not grant an adjournment

The appellant submitted that the Tribunal "obstructed" her right to appeal against the AVL decision by refusing the adjournment application: par 115 of the appellant's submissions.
On receipt of the Tribunal's decision to permit Ms Cobbin to give evidence by AVL, the appellant sent an email to the Registry referring to her right to appeal within the 28 day period from the Tribunal's decision and asking in these circumstances for the hearing on 9 October 2023 to be adjourned. The Registry responded to the appellant's email later on 6 October 2023 that the matter remained listed for final hearing on 9 October 2023 and that any applications relating to an adjournment could be dealt with at the outset of the hearing.
The appellant renewed her application relating to the adjournment at the commencement of the hearing. During the exchange with the Tribunal, the Senior Member stated that the appellant could appeal from the decision to permit Ms Cobbin to give evidence by AVL after the substantive decision is made and accordingly an adjournment prior to the substantive hearing was unnecessary.
The Tribunal addressed the AVL application and the adjournment application at [13]-[18]. The Tribunal recounted that the final hearing had already been adjourned on two occasions. The first adjournment occurred as the appellant sought to appeal from a decision refusing her leave to appear via AVL, although no appeal to the Supreme Court was made from the decision of the Appeal Panel. On the second occasion, the hearing was adjourned because Ms Cobbin could not attend the hearing for an unspecified reason and the appellant objected to evidence being given by AVL.
At [17] the Tribunal noted that it refused the adjournment application on the basis that the appellant could appeal against the AVL decision after the substantive matter was finalised. The Tribunal considered the guiding principles in s 36 of the NCAT Act, the fact that the parties had filed all their evidence and submissions, that the onus fell on the respondent to justify the decision and that the proceeding had already been adjourned on two occasions.
The decision to not adjourn the final hearing was likewise made after consideration of submissions. As the Senior Member correctly observed, the appellant had an opportunity to appeal from the interlocutory decision permitting the witness to give evidence via AVL.
During the appeal hearing, the appellant was not able to point to any part of her claim or the respondent's case that would have been presented differently if the witness had attended the Tribunal to give evidence.
We do not consider that there was any relevant prejudice to the appellant in an adjournment not being granted and find that this ground raises no arguable case as to actual bias, apprehended bias or a failure to accord her with procedural fairness.

Confidential hearing

The Tribunal decided that it was necessary to receive evidence on a confidential basis from the respondent and hear arguments in a confidential hearing without the presence of the applicant and made the following orders restricting publication: "Section 64(1)(c) and s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondent and the Information Commissioner on a confidential basis, to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. Pursuant to ss 64(1)(b) and 64(1)(c) the publication or reporting of those portions of the public hearing of the application which disclosed any of the redacted information is prohibited. That material is not to be released to either the applicant or to the public."
The Tribunal has power to receive evidence on a confidential basis and conduct confidential hearings if "it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason": s 49(2) of the NCAT Act.
Section 107(2) of the GIPA Act, requires the Tribunal to receive evidence and hear argument in the absence of the applicant if, in the opinion of the Tribunal, "it is necessary … to prevent the disclosure of information for which there is an overriding public interest against disclosure". Section 107(3) is to similar effect, where the agency applies to the Tribunal to receive evidence and hear argument in the absence of the public and the applicant, to "prevent the disclosure of information for which there is … an overriding public interest against disclosure".
The appellant submitted that she objected to the confidential hearing and receipt of confidential material at par 289 of her submissions on the basis that it would be: "… prejudicial and undermines the review processes, where unchallenged material put to the tribunal is not tested, but is given credibility by presiding members without any evidence of proof, particularly where those ejected are self-represented."
The appellant's submissions take issue with the Tribunal's decision to receive evidence and hear argument in her absence where she was self-represented. The appellant did not make any submission that there was not an overriding public interest against disclosure (s 107(2) of the GIPA Act) or that it was not desirable to do so by reason of the confidential nature of any evidence or matter (s 49(2) of the NCAT Act).
The appellant did not make any submissions as to why she considers that the Tribunal erred in forming the opinion that it was necessary to receive evidence and hear argument in the absence of the applicant, apart from broadly asserting that the application of the discretion was prejudicial and undermined the Tribunal's processes.
No basis has been identified as to why the decision to receive evidence on a confidential basis from the respondent and hear arguments in a confidential hearing without the presence of the appellant was erroneous.
We do not consider that this ground raises an arguable case as to actual bias, apprehended bias or a failure to accord procedural fairness.

Whether the Tribunal erred in finding that the presentation did not occur in a public forum

This ground does not raise a question of law and leave would be required for the ground to be raised on an internal appeal.
At [28] the Tribunal found that the presentation at which the PowerPoint slides were presented was not made in a public forum: "… Those in attendance were all employees of agencies subject to the GIPA Act and members of the public were not invited or able to attend the session in which Ms Cobbin gave her presentation. The fact that Chatham House Rules applied to the sessions strengthens my view in this regard. I note that a private organisation, Salinger Privacy, presented one of the sessions. Ms Cobbin's evidence at the hearing was that the presenters were in attendance only for their session. I am satisfied their presence did not detract from the private nature of the meeting."
The appellant submitted that the Tribunal erred in its finding that the forum was in private because the "Chatham House Rule" is not legislated and cannot override the requirements in the GIPA Act.
We understand, based on the material on the Chatham House website (Chatham House, "Chatham House Rule" https://www.chathamhouse.org/about-us/chatham-house-rule#:~:text=The%20Rule%20reads%20as%20follows,other%20participant%2C%20may%20be%20revealed accessed 27 February 2025), that Chatham House Rule means: "When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed."
Contrary to the appellant's submission, the Tribunal did not find that the "Chatham House Rule" overrode the GIPA Act.
The Tribunal based the finding that the presentation did not occur in a public forum on the evidence of Ms Cobbin as set out at [27] of its Decision that no members of the public were invited to attend, and that the session was only open to members of the NSW Right to Information and Privacy Practitioners Network (NIPPN). These assertions were reflected in the minutes of the meeting which were before the Tribunal.
The appellant did not challenge Ms Cobbin's evidence in this regard.
No other basis to undermine the finding has been suggested. As mentioned above, in order to grant leave, we would need to be satisfied that the ground was meritorious and not merely arguable, and also that there was some other basis to grant leave, such as it raising an important point of principle. We do not accept the ground has sufficient merit to warrant a grant of leave to appeal.

Conclusion on extension of time

The appellant has not provided an adequate explanation for the delay and further, there is no arguable case on appeal. In those circumstances an extension of time should be refused.

Admission of fresh evidence

The appellant sought to rely on additional documents at a new hearing. These documents were a request for a parliamentary inquiry into the Tribunal dated 8 August 2024, a letter from the DCJ regarding the Chatham House Rule dated 29 August 2023 and the Administrative and Equal Opportunity Division Guideline titled "Costs" dated August 2017.
As the Appeal Panel has determined to not grant leave for the extension of time to appeal, this question does not arise.

Orders 1. The application for an extension of time to lodge an appeal is dismissed.

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: 10 March 2025

(2019) 101 NSWLR 225

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