Wojciechowska v Blue Mountains City Council

NCAT Appeal Panel|2022-08-05

REASONS FOR DECISION

By Notice of Appeal filed 24 November 2020, Paulina Wojciechowska (Appellant) appealed against orders of the Tribunal of 27 October 2020 in proceedings between the Appellant and Blue Mountains City Council (Respondent) pursuant to the provisions of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
By her Notice of Appeal, the Appellant "challenged all orders" made by the Tribunal at first instance and sought in lieu thereof that the Appeal Panel "make new decisions providing access to information. Where appropriate, the Appeal Panel should make an explicit decision "no further information held". This includes setting aside the false information provided by the Tribunal below".
In addition to appealing in reliance upon questions of law, the Appellant sought leave to appeal on the ground that "the decision was not fair and equitable and the decision was against the weight of evidence. This is discussed in "grounds for appeal" dated 19 November 2020 attached to this notice. Significant new evidence is now available that was not reasonably available at the time of the hearing (e.g., final occupation certificate etc.)".
The Appellant's Notice of Appeal articulated 23 grounds and (ground 24) "any such other grounds that this Honourable Appeal Panel may deem just".

Documents before the Appeal Panel

In addition to the Appellant's Notice of Appeal and the Respondent's Reply to it, the Appeal Panel had before it the reasons for decision of the Appeal Panel of 22 June 2021 dismissing the Appellant's appeal with respect to the jurisdiction of the Tribunal at first instance, the directions made with respect to the present appeal on a number of occasions, including the directions of 29 April 2022, the Appellant's submissions of 14 June 2022, together with documents attached to those submissions, and the submissions of the Respondent of 11 July 2022.

Principles governing the appeal and application for leave to appeal

The Appellant's appeal is governed by the provisions of s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). Section 80(2)(b) provides the right to appeal "on any question of law" or, "with the leave of the Appeal Panel, on any other grounds".
In Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274 at [45], Hayden JA identified a number of grounds which may establish success on a question of law. These include: 1. an error of legal principle; 2. a material error of fact; 3. taking into account an irrelevant matter; 4. failing to take into account a relevant matter; 5. arriving at a result so unreasonable or unjust as to suggest that one of the foregoing categories had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Other grounds raising a question of law include: 1. actual or apprehended bias (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337); 2. failing to adequately expose the process of reasoning which led to the decision and/or constructive failure to exercise jurisdiction (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33); 3. failing to respond to a substantial, clearly articulated argument relying upon established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088); 4. denying a party natural justice or procedural fairness in circumstances where the same result would not be inevitable if the appeal were allowed (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141).
The Appellant's application for leave to appeal does not raise a question of law. In Ros v Commissioner of Police [2020] NSWCATAP 70 at [21] the Appeal Panel said that: "In order to assist the Appellant as a self-represented litigant in the articulation of his grounds of appeal, the Appeal Panel has considered whether it cannot discern any questions of law as grounds of appeal from the Notice of Appeal, the Appellant's submissions and the first instance decision."
The Appeal Panel further recorded, at [22] that "The jurisdiction to review the merits is not predicated on the Appellant identifying a question of law or persuading the Tribunal that there has been an error of law" and, by reference to the decision in Collins v Urban [2014] NSWCATAP 17, accepted that "In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact".
In Collins the Appeal Panel stated at [84] that: "Ordinarily it was appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
The Appeal Panel has considered the Appellant's various challenges in the manner contemplated by the Appeal Panel in Ros and Collins.
To the extent that the Appellant seeks to rely upon "new" or further or additional evidence, the Appeal Panel has approached the receipt of such evidence in the light of the statement of the Appeal Panel in Ros at [33]. The Appeal Panel there said that "Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision", that "Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant", that potential prejudice to the other party upon the receipt of further evidence was "relevant" and that "whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant".
The Appeal Panel further observed that "Even though the Appeal Panel has power to receive further evidence, its powers in an appeal that is not a new hearing would ordinarily be constructed on the basis that they are to be exercised for the correction of error."
As is not in doubt, the present appeal is not a new hearing pursuant to s 80(3) of the CAT Act. Neither party has sought that the appeal proceed by way of new hearing and the Appeal Panel would not have considered it appropriate to do so in any event.

Reasons for the decision at first instance

The proceedings at first instance arose from the Appellant's ownership of a vacant block of land at Blackheath in the Blue Mountains. In 2019, pursuant to the provisions of the GIPA Act, the Appellant sought access to information held by the Respondent primarily relating to a Development Consent (DC) granted by the Respondent for the land adjoining the Appellant's land. The Appellant was not satisfied with the access to information provided by the Respondent in response to her GIPA application and sought orders setting aside the decision of the Respondent that no further information exists.
The Tribunal at first instance set out [2] the background to the proceedings. The Appeal Panel does not understand there to be any suggestion that the matters there recorded are inaccurate or deficient. The Tribunal then extensively recorded, by reference to authority in each instance, fourteen principles which were considered applicable to the Respondent's decision that it did not hold any further information the subject of the Appellant's GIPA application.
The Tribunal identified [5], accurately having regard to the material which the Appellant placed before it, the "8 specific documents, or classes of documents outstanding" to which 2 further documents were added at the hearing.
The Tribunal referred [6] to the evidence of Ms Hinder, an officer of the Respondent, who commenced employment with the Respondent in August 2019, and was not required for cross-examination, deposing to the searches and activities of others, predominantly by Mr Glenn, the Respondent's former Privacy and Information Officer, who was not called as a witness in the proceedings.
The Tribunal referred in some detail [7]-[12], to the absence of evidence from the Respondent's former Privacy and Information Officer and [7] the Appellant's contention that inferences could be drawn from the Respondent's decision not to call that officer, and contention that her "evidence of the existence of other documents should therefore be more readily accepted".
The Tribunal recorded [8] that the Respondent "bears the onus of establishing that its decisions are justified" and that the Respondent had "sought to meet that onus by providing evidence only from Ms Hinder. The decision not to call Mr Glenn might result in Council not meeting its onus, if for example, there are gaps in Ms Hinder's evidence that Mr Glenn could have filled".
The Tribunal then referred to the decision of the High Court in Jones v Dunkel [1959] 101 CLR 298 upon which the Appellant placed reliance and recorded [12] that the Appellant was "entitled to submit that Mr Glenn's searches or his methodology were inadequate, or that the answers he received were inadequate, but Council's case stands or falls on the evidence it chose to provide".
The Tribunal referred to the evidence relied upon by the Respondent [13]-[20] and reiterated [13] that, pursuant to s 105 of the GIPA Act, the Respondent bore the onus of proving that its decision was justified applied to each specific aspect of its decision of 22 January 2020 to provide access to only a limited number of documents.
The Tribunal referred to the evidence with respect to the identification of information in response to the Appellant's request in April 2019 [14], and to the responses to those enquiries, consultation with Council officers and third parties [15]. The Tribunal referred [17] to further enquiries and searches made between September 2019 and January 2020 and the involvement of the Appellant in that process, she having "helpfully and properly raised her specific concerns arising from the material she had already been provided, and Council responded to those concerns by conducting further, more targeted searches".
The Tribunal referred to the provision of redacted, and subsequently unredacted copies of material sought by the Appellant [18] and found [19] that: "During these preliminary processes it is clear from correspondence between the parties that Council was quite properly attempting to understand and address [the Appellant's] concerns for the direct purpose of resolving these proceedings. [The Appellant] is frustrated that this interactive process took some time and did not ultimately alleviate her concerns."
The Tribunal said [20] that, in the light of "Council's evidence of its initial searches and Council's evidence of its active and at times proactive approach to conducting further searches to address [the Appellant's] stated concerns" it was "satisfied in general that by 22 January 2020 Council had undertaken such reasonable searches as may be necessary to find any of the information [the Appellant] applied for in her access application" but that "in relation to some specific matters" the Tribunal was not satisfied that all reasonable searches had been undertaken.
After recording the competing submissions with respect to the "possible existence of further information" [21]-[25], the Tribunal considered each of the categories of documents in respect of which the Appellant asserted that the Respondent had unreasonably failed to produce documents which it had or should have had in its possession.
The "Category A - Notice of Commencement" was considered by the Tribunal [26]-[32]. For the reasons which it there recorded, the Tribunal was satisfied that the Respondent met its onus of establishing that its decision of 22 January 2020 in relation to a "Notice of Commencement for the relevant DC (i.e., that it holds no further information) is justified" and thus the Respondent's decision in that regard was affirmed.
With respect to "Category B - Sydney Water Building Plan Approval", for the reasons which it recorded [33]-[37], the Tribunal was (38) not satisfied that the decision of 22 January 2020 was justified and accordingly that aspect of the Council's decision was set aside.
The "Category C - Other Survey/Modifications to DC and CC" held issues were considered by the Tribunal [39]-[43]. For the reasons it there recorded, the Tribunal was satisfied (44) that the Respondent's decision in January 2020 was "justified in relation to surveys and was thus affirmed".
The "Category D - Sydney Water s73 Certificate" controversy was considered by the Tribunal [45]-[48]. For the reasons there recorded the Tribunal [49] was satisfied that the Respondent was justified in its decision that it did not hold any further information in relation to the certificate and was thus affirmed.
The "Category E - Dates Received/Persons Received" controversy was considered by the Tribunal [50]-[58] and, for the reasons there recorded [59], the Tribunal found that the Respondent had not met its onus under s 105 of the GIPA Act and that aspect of its January 2020 decision was accordingly set aside.
The "Category F - Approved Stormwater plan" controversy was considered [60]-[62] and, for the reasons there recorded [63], the Tribunal was satisfied that the Respondent was justified in its decision that it did not hold any further information and was thus affirmed.
The "Category G - Another Version of Development Consent" controversy was considered by the Tribunal [64]-[66], the Tribunal being satisfied [67] that the Respondent was justified in its decision and holds no other version of the Development Consent or Construction Certificate, the Respondent's decision thus being affirmed in that regard.
The "Category H - BASIX Compliance" controversy was considered by the Tribunal [68]-[69] which concluded [70] that the Respondent was justified in its decision and that it does not hold any further information in relation to BASIX information and was thus affirmed.
The "Category I - Document 18/260544" controversy was considered by the Tribunal [71]-[74]. The Tribunal found [73] that "After the final hearing Council identified and produced document 18/260544 and acknowledged that it was an exact duplicate of document 18/208702 in so far as the second document contained some ticks on the page that the first document did not. The ticks were not said to be material. The document having been provided to the Appellant, the Tribunal held [75] that no further order or review by the Tribunal was required in the circumstances which it identified.
The "Category J - Final Inspection Report" controversy was considered by the Tribunal [76]-[77] which concluded [78] that the Respondent was justified in its decision in January 2020 that it does not hold any further information in relation to any other final inspect report and thus affirmed.
Under the heading "Referral under s 111 or s 112" the Tribunal considered the Appellant's request that the Respondent be referred to either the Information Commissioner pursuant to the former section and/or to the Minister pursuant to the latter section [79]-[84]. The Tribunal declined to grant either application of the Appellant in reliance upon the findings which it recorded [85] and found that "Individual officers of the Council, and the Council itself, have been cooperative, responsive and even proactive in addressing" the Appellant's concerns and that "On the material before the Tribunal there is no basis under either s 111 or s 112 to refer any concerns on to the Information Commissioner or the relevant Minister".

Grounds of appeal

Properly in the Appeal Panel's view, the Appellant acknowledged that ground 3 "lack of jurisdiction to exercise federal judicial power" was not sustainable in view of the decision of the Appeal Panel of 22 June 2021.
Order 1(d) of the directions of 29 April 2022 provided that the Appellant was to lodge with the Tribunal and give to the Respondent "the sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts". The time for compliance with that order was extended to 14 June 2022, the day on which the Appellant filed her submissions.
The Appellant provided what was said to be a transcribed portion of the hearing at first instance in support of her natural justice complaints. The Appellant was reminded that, in view of the direction of the Tribunal, her failure to provide a copy of the transcript of the proceedings rendered problematic the success of any challenge in reliance upon what was asserted to have occurred or not have occurred during the hearing. The Appeal Panel made clear to the Appellant that, if she sought to do so, granting her the opportunity to produce the complete transcript after the hearing concluded would be considered. The Appellant informed the Appeal Panel that she did not wish to pursue that opportunity. The Appeal Panel is satisfied that the Appellant understood the implications of her decision not to obtain a copy of the transcript of the proceedings.

Ground 1

Ground 1 of the Appellant's Notice of Appeal asserted "denial of procedural fairness" and "bias/apprehended bias". The Appellant referred in support of the ground (Notice of Appeal page 1) to a number of matters which were asserted to have been stated during the hearing of the proceedings at first instance. In the absence of the transcript, we cannot accept that the statements attributed to the Tribunal were made, or infer that in the manner alleged or otherwise, the Tribunal's decision was vitiated by actual or apprehended bias. (Collier v Country Women's Association of New South Wales [2018] NSWCA 36; Reid v Commercial Club (Albury) Pty Ltd [2014] NSWCA 98).
Similarly, assertions such as the Tribunal "haphazardly chooses to give strong weight to some elements of the Respondent's evidence (not the probative one), but other evidence of the Respondent (the more probative one), were not beneficial to the Respondent, is ignored" and the assertion that the Tribunal "openly provides false and misleading information in its decision" or "declines to make findings that would affect positively the decision whether to refer the Respondent's conduct, but makes the findings which affect adversely this decision" or "uses manipulative language and makes blatantly false statements" have not been advanced by anything to which the Appellant has referred the Appeal Panel.
In what way the Respondent filing "new material after the hearing" constituted a "breach of fair hearing rule" is not apparent. The Appeal Panel apprehends that the "new material" complained of was in fact document 18/260544 which the Respondent provided to the Tribunal and the Appellant after the hearing. In what way the provision of that document breached the fair hearing rule has not been identified by the Appellant. Similarly, the complaint "errors of no evidence" asserted by the Appellant cannot advance her appeal.
As with other grounds of appeal, nothing to which the Appellant has referred the Appeal Panel was evidence before the Tribunal at first instance which should have led it to find that the Respondent had not established that it did not hold more information than it stated that it held.

Ground 2

Ground 2 of the Appellant's grounds asserted "wrong decision reviewed - no jurisdiction". The Appellant submitted that she "did not apply for a review of the decision from 22 January 2020, which, notably, does not even deal with most parts of her access application. The Tribunal had no jurisdiction to review it".
We agree with the substance of the Respondent's submissions with respect to this challenge (16-17). Nothing to which the Appellant has referred establishes that the Tribunal at first instance lacked jurisdiction to review the Respondent's decision of 22 January 2020.

Ground 4

Ground 4 asserted a "failure to make Jones v Dunkel inference or incorrect application of the law". The Appellant submitted (7) that the Tribunal at first instance had incorrectly found (at 10) that she had "not established that Mr Glenn's evidence might be expected to have contradicted the evidence" upon which the Respondent relied. The Appellant submitted (8) that there was "no burden" on her "to establish anything in the order for this inference to be made".
The Respondent submitted (20) that the Tribunal at first instance had considered this issue (at 7-12) and that no error was apparent in its decision with respect to the absence of evidence of Mr Glenn.
In Manly Council v Byrne & Anor [2004] NSWCA 123 at [44]-[45] under the heading "Jones v Dunkel" Campbell J considered the authorities subsequent to Jones v Dunkel [1959] HCA 8 [1959]; 101 CLR 298 and said at 51 that: "If a witness is not called two different types of results might follow. The first is that the tribunal of fact might infer that the evidence of the absence witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn."
His Honour further said at 55 that: "If the evidence which has been admitted is enough to prove the case of the party who has not called the witness, the tribunal of fact could be justified in not counting the failure of that party to call that witness as something that reduces the strength of that case."
In Bell IXL Investments Limited v Life Therapeutics Limited [2008] FCA 1457, Middleton J said at 93 that: "The failure to call evidence may, not must, lead to an inference that the uncalled evidence would not have assisted a party's case. The application of the principles in Jones v Dunkel must be applied in the context of the evidence that is presented to a court."
As the authorities make clear, the failure to call a witness whose evidence might have been relevant to a fact in issue, without more, and there was no more in this case, simply means that the decision maker can more readily accept evidence of the fact in reliance upon the evidence of the other party to the proceedings.
The Tribunal at first instance correctly recorded that the failure to call Mr Glenn meant that the Respondent may have been unable to discharge its onus. On the evidence which was before it, the Tribunal at first instance found in some instances that the Respondent had discharged its onus, whilst finding in other instances that it had not. The decision of the Tribunal at first instance was in reliance upon evidence which was able to be accepted. Only by accepting, contrary to the authorities, that any evidence which Mr Glenn might have given would have damaged the Respondent's case could this challenge succeed.
The Appellant fails to demonstrate appealable error pursuant to this ground.

Ground 5

Ground 5 asserted "denial of material witnesses". The Appellant submitted in support of the ground that she "explicitly requested the Respondent's employees for examination. Yet they were not provided. However, the Respondent relied on (allegedly) their emails and what was stated therein to prove the existence of facts represented/opined on therein. This resulted in miscarriage of justice".
The Respondent submitted that it was "not for the Appellant to demand witnesses be called; it is for the Council to discharge its onus the prospects of doing so being influenced by the calling, or not calling, of particular witnesses" and submitted that the Tribunal at first instance was correct in finding, at [12] that the Respondent's case "stands or falls on the evidence it chose to provide".
We have not been referred to any evidence, either documentary or from the transcript of the hearing before the Tribunal at first instance, establishing that the Appellant sought to cross-examine Ms Hinder on her Affidavit. In those circumstances, we are unable to discern error in the manner asserted by this ground. As is not in doubt, the evidence of Ms Hinder was essentially based upon business records maintained by the Respondent. We have not been referred to any evidence of Ms Hinder which could have been the subject of cross-examination. Nothing to which we have been referred establishes that the Tribunal was in error in recording, at [6] that Ms Hinder "was not required for cross-examination".
If, as the Appellant appears to suggest, there were officers of the Respondent who she wished to have give evidence, the Appellant could have sought the issue of summonses to those witnesses pursuant to s 48 of the CAT Act. The Appellant did not do so.
We find no merit in this ground.

Ground 6

Ground 6 asserted that the decision of the Tribunal at first instance was "not a correct or preferable decision". In support of this ground the Appellant submitted (12) that the Tribunal "must rely on probative material and not on mere lawyer's statements - otherwise the NCAT review becomes a sham. Here, the Tribunal relied on hearsay that is not even firsthand hearsay. Also, the Tribunal applied wrong law (and distorted the law), applied it wrongly and went against public policy against fraud".
The Respondent disputed each of the Appellant's assertions and submitted, correctly in our view, that nothing asserted by the Appellant in support of the ground demonstrated error in the manner alleged. As is not in doubt, the focus of attention in the proceedings at first instance was on documentation maintained by the Respondent in the ordinary course of its business or, as the Appellant asserted, the absence of documentation which should have been within the possession or control of the Respondent, for the various reasons asserted by her.
The Tribunal identified, accurately, the evidence of a relevant Council officer who was not required for cross-examination on her Affidavit, and the potential implications of the failure to call a former officer of the Respondent who had the carriage of the Appellant's enquiries during a relevant period.
We find no merit in this ground.

Ground 7

Ground 7 of the Appellant's Notice of Appeal asserted "breach of s 38 of CAT Act" and submitted (13) that "the Tribunal did not act in accordance with good conscience as it often relied on mere statements of the Council's legal practitioner alone in the circumstances where the onus was on the Council".
Nothing to which we have been referred provides support for the Appellant's complaint. As is not in doubt, the decision of the Tribunal at first instance turned on its evaluation of the evidence upon which the Respondent relied in order to discharge its onus pursuant to s 105 of the GIPA Act. The Tribunal clearly understood the distinction between evidence and submissions. Nothing to which the Appellant has referred demonstrates that the Tribunal treated submissions as evidence.
The Appellant further submitted that the Tribunal "made its decision on the assumption that the Council could not lie and based on evidence that is not probative (incomplete materials created during and for the purpose of the legal proceedings was treated as more credible than the one created before it) this is not honest decision making".
Nothing to which the Appellant has referred supports any of these allegations. It is in the nature of ongoing requests for information pursuant to the GIPA Act, as occurred in this case, that from time to time, in response to further searches being made, additional documents might be found. In the absence of evidence establishing the contrary, and we have not been referred to any such evidence, the conduct of further searches, and discovery and disclosure of further information is inconsistent with any of the Appellant's assertions in support of this ground.
The Tribunal found (85) that individual officers of the Council and the Council itself have been "cooperative, responsive and even proactive" in addressing the Appellant's concerns. Nothing to which we have been referred establishes that that finding, or any findings recorded by the Tribunal at first instance with respect to this issue was "wrong" (Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296).
As the Respondent pointed out, notwithstanding the Appellant's complaints about the proceedings at first instance, the Tribunal made two decisions [86] which were adverse to the Respondent.
We find no merit in this challenge.

Ground 8

Ground 8 asserted "decision unsupported under GIPA Act". In support of the ground the Appellant asserted (15) that, contrary to the provisions of the GIPA Act "the Tribunal implicitly decided e.g. item 5 of the Applicant's access application as "no decision". This is because the decision from 22 January 2020 does not deal with the peg out survey and in this report the Tribunal affirmed the decision from 22 January 2020 this is an error".
The Appellant further submitted (16): "Further, even if the Tribunal had affirmed the decision "released" from September 2019, this was also unsupported under the GIPA Act as it is a fraud to state that the peg out survey was released to the Appellant".
Inferentially this challenge arises out of the decision of the Tribunal at [41]. As the Respondent submitted, the Appellant does not identify in what way the Tribunal at first instance is asserted to have erred in the manner articulated by this ground.
We agree with the submission of the Respondent (32) that nothing to which the Appellant has referred the Tribunal, in writing or orally, establishes that the findings recorded by the Tribunal with respect to this issue [41]-[44] were erroneous in any respect known to the law.
We find no merit in this challenge.

Ground 9

Ground 9 of the Appellant's Notice of Appeal asserted "The Tribunal erred in placing onus of proof on the Applicant".
The Appellant relied particularly in support of this challenged on statements by the Tribunal at first instance at [69]-[70] which she submitted supported this complaint. Nothing emerging from either paragraph in our view provides support for this contention. Nor does any other finding which emerges from the decision of the Tribunal at first instance.
The Tribunal recognised that the Respondent bore the onus which it identified early in its reasons and, by reference to the evidence with respect to each of the categories of document sought by the Appellant gave reasons for its finding, two of which were adverse to the Respondent.
The passages from the authorities to which the Tribunal at first instance referred at [3] provide no support for this challenge. As was made clear in Webb v Port Stephens Council [2018] NSWCATAP 224, in the passages upon which the Appellant relies, although the burden of proof fell on, and remained with the Respondent, the Respondent having adduced relevant and credible material to support each search, an evidentiary or practical onus then fell on the Respondent to adduce evidence which, if accepted, would preclude a finding that the Respondent had discharged the burden of proof which it bore. The Appellant has not identified any such evidence which should have been accepted by the Tribunal at first instance.
Other than her repeatedly expressed distrust of the Respondent, the Appellant has not identified reasonable grounds upon which the Tribunal at first instance is asserted to have erred in finding for the Respondent with respect to the eight categories of document which it had not produced (Stanley v Roads and Maritime Service (NSW) [2014] NSWCATAD 123, Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5).
Nothing which occurred in this case was inconsistent with any of the authorities to which the Tribunal at first instance referred or upon which the Appellant appears to rely.
We find no merit in this challenge.

Ground 10

Ground 10 of the Appellant's Notice of Appeal asserted "wrong law applied (including non-existing legal principles), wrong decision reviewed, the Tribunal acted in lack of jurisdiction".
The Appellant submitted (18) that the Tribunal used the decision in Shepherd v Department of Housing, Local Government and Planning [1994] (Shepherd) "in a camouflaged way which indicates that the Tribunal knew of the Judgment in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173, but disregarded it".
The Appellant submitted (19) that she had not applied: "to have the reasonableness of searches reviewed and the Tribunal has no jurisdiction to review it. The Tribunal is to review the decisions actually made under s58 of the GIPA Act and to make a correct and preferable decision. Hence, the reasonableness of searches might, at best, be one of the factors taken into account - just because the searches appear reasonable does not mean that more documents are not held".
In reliance upon the matters referred to (20-21) the Appellant ultimately submitted that the Tribunal at first instance erred by failing to "engage in its own decision making and not borrow the decisions from others".
The Respondent submitted (37) that the Appellant, although being the Appellant in Wojciechowska v Commissioner of Police "never raised the case in written submissions to the Tribunal" and thus, there was no error in the Tribunal failing to consider the decision.
The Respondent referred (39) to passages from the decision in Wojciechowska at [43] and [44]. The Appeal Panel there recorded [44] that the task for the Tribunal when reviewing a decision that the requested information is not held by the relevant agency was to: 1. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from ss 53(1) to (5); 2. determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. consider any evidence which may have emerged since the agency made its decision, which may tend to prove that the requested information is held by the agency; 4. applying those findings, decide what the correct or preferable decision is; 5. affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
The Respondent submitted (40), correctly in our view, that the Tribunal at first instance followed that process in coming to the conclusion that 2 of the 10 categories of documents sought by the Appellant required further searches. We agree with that contention.
In what way the Tribunal at first instance has failed to have determined the proceedings before it in the manner which the authority upon which she appears to particularly rely suggests has not been identified.
We find no merit in this challenge.

Ground 11

Ground 11 asserted "uncertainty and lack of finality". In support of this ground the Appellant submitted (23) that the Tribunal did "not review the actual decisions made by the Council and it is unknown what it affirmed and thus decided. Further, it imposed no deadline on the new decision which means the Council is under no real obligation to do anything. Accordingly, the decision resulted in uncertainty, lack of finality and effectively no decision on the discrete points of access application."
The Respondent submitted with respect to this ground (42) that the decision at first instance did not leave any issue unknown, having dispositively dealt with each of the 10 categories of document with which it was concerned. The Respondent submitted that there was no evidence that the Respondent would do other than promptly comply with the Tribunal's orders. The findings of the Tribunal at [85] to which we have earlier referred with respect to the conduct of the Respondent provides support for that submission. The absence of any evidence that the Council has at any time consciously or otherwise delayed or sought to circumvent compliance with its obligations under the GIPA Act is also correct.
There is no evidence before the Appeal Panel that the decision, which was made almost 2 years ago, has not been complied with.
We find no merit in this challenge.

Ground 12

Ground 12 asserted "relevant law and facts not considered as required by s 53 of the Administrative Decisions Review Act 1997 (NSW)".
In support of this ground the Appellant submitted that "s 53(4) of GIPA Act was not considered leading to misconstruing and misapplication of obligations under s 53. Also, it was ignored that the Tribunal reviews the reviewable decisions as made and not reasonableness of searches. The Tribunal did no [sic] consider what decisions were made in the relevant (September) notices of decision. The Tribunal also placed the onus on the Appellant in breach of GIPA and Wojciechowska v Commissioner of Police".
The Appellant complained (25) that the Respondent "did not even produce evidence of its archiving system or how the documents are archived to assess if it searched in the right places. It also did not provide it searched its backups". As noted earlier, the Appellant did not seek to cross-examine Ms Hinder, or, by seeking the issue of a summons, or otherwise, adduce evidence which, if accepted, would suggest that the Respondent had not made reasonable efforts to obtain the information which she had requested. There was no reason for the Tribunal to doubt any of the matters upon which the Appellant relies in those circumstances.
The submissions of the Appellant (26) with respect to "credibility evidence" or "evidence pointing to his [Mr Glenn's] dishonesty" cannot advance this ground. We have not been referred to anything which suggests that any documents created by Mr Glenn could not be safely relied upon.
The assertion that the Tribunal erred by "giving too much weight to the hearsay and opinion evidence in annexures to the Affidavit of Ms Hinder" is misconceived. In the absence of evidence suggesting that the business records of the Respondent were false, inaccurate or erroneous in some manner, and we have been referred to none, it was open to the Tribunal to accept the evidence of Ms Hinder and, more significantly, the contents of business records maintained by the Respondent.
The assertion of the Appellant (27) that the Tribunal "impliedly found that the interim occupation inspection report is a final occupation report: there was not only no evidence to support this finding, but there was evidence of the inspection report itself that was an interim occupation" cannot advance this challenge.
As the Respondent submitted (4), the Respondent having undertaken searches of the electronic files as part of its initial, then subsequent searches, s 53(4) of the GIPA Act had no application.
We find no merit in this challenge.

Ground 13

Ground 14 asserted "error in giving weight to non-probative evidence (e.g. opinions and hearsay) and using it to prove the facts they are asserting/opining on". In support of the ground the Appellant submitted (28) that evidence from a person "who did not see searches being conducted and does not know if they were conducted in good faith gave evidence and her evidence (including exhibits) was wrongly given very strong weight". In the absence of evidence to the contrary, and we have not been referred to any such evidence, it was open to the Tribunal at first instance to accept the evidence of Ms Hinder, as it did.
It was further submitted (29) that "large part of evidence provided by the Respondent had zero probative value" contradicted Council's business records and was "hearsay more remote than firsthand". It was thus submitted that the Tribunal at first instance committed "an huge error to use it to as prove things it asserts". The evidence of an officer responsible for maintaining the business records of an agency will rarely have personal knowledge of the contents of those records. Ms Hinder's evidence was necessarily hearsay. On the evidence before the Tribunal at first instance, the hearsay rule would not have applied to Ms Hinder's evidence if the Tribunal had been bound by the rules of evidence (s 69 Evidence Act 1995 (NSW), Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083).
The Respondent submitted (47), correctly in our view, that this ground "fails to appreciate that the nature of the exercise is a documentary one: Ms Hinder, with access to council records, was in as good a position as any other council officer to provide the evidence by reference to council records". We also agree that the ground was, both in writing and in oral submissions, (48) "articulated at such a level of generality as to preclude its success".
We find no merit in this challenge.

Ground 14

Ground 14 asserted "error of giving no weight to business records of the Council". The Appellant submitted, correctly, (30) that the Council records would be admissible in a Court bound by the rules of evidence. The Respondent submitted, again correctly, that there was "no reason why they are to be given less weight in the NCAT". It was further, and again correctly, submitted that it was based on the business records that the Respondent "made various decisions which it maintains are correct". It was thus submitted that there was "no probative evidence contradicting the business records".
It is difficult to know what this ground really asserts. Literally, it appears to acknowledge the correctness of the approach of the Tribunal at first instance. Whatever its intent, nothing raised by this ground provides a basis for finding error on a question of law or any other ground.
Although the Appellant does not see it this way, the case before the Tribunal at first instance was ultimately about the existence or absence of information which form part of the Respondent's business records. The Respondent alleged that its reasonable efforts to locate the information had failed to reveal them. The Appellant disputed that allegation. The reasonableness of the Respondent's efforts to locate the information was the essential issue of disputed fact which the Tribunal at first instance had to determine. In the understandable absence of witnesses with first-hand knowledge of the information, that evaluation ultimately turned on the information which was produced, and the inferences which could be drawn from it as to the likelihood of other information also being able to be produced.
The Tribunal at first instance evaluated, in a manner which accorded with authority, the facts established by and inferences which could be drawn from the business records which were available. Nothing to which the Appellant has referred suggests that such process involved error, or led to error. As is not in doubt, the Respondent bore the onus under s 105 of the GIPA Act of establishing that it had made reasonable efforts to obtain documents which were missing. In the absence of the Respondent establishing on the balance of probabilities that it had made reasonable efforts, its decision was entitled to be affirmed on review, as in fact happened. Nothing to which the Appellant has referred demonstrates error.
We find no merit in this challenge.

Ground 15

Ground 15 asserted "the Tribunal was not satisfied on the balance of probabilities". The Appellant's contentions (31-32) are misconceived. The fact that a document may once have existed does not mean, particularly in an organisation the size of the Respondent, that it must always continue to exist. The provisions of the GIPA Act, and the authorities to which the Tribunal at first instance referred clearly recognise that, in circumstances involving no impropriety by an agency, documents which once existed may not be able to be located at a later time. There is simply no foundation for the submission of the Appellant that the "Tribunal invents arguments never proposed by the Applicant and then shows their fallaciousness".
We find no merit in this challenge.

Ground 16

Ground 16 asserted "reliance of wrong or non-existing legal "principles"".
The contention of the Appellant that the Tribunal erred [3] in holding that, if a document does not exist at the time of the access application, the agency is under no obligation to create one is misconceived. The reference (34) to "general distrust of an agency" being insufficient to demonstrate that requested information exists, assumed no significance in the proceedings at first instance, and was simply referred to, and correctly in our view, by the Tribunal at first instance in summarising the principles which governed the proceedings before it.
We agree with the submission on behalf of the Respondent (54) that the Tribunal at first instance did not misapply the rule, and that the Appellant has "confused the requirements of s 53(4) of the Act, dealing with electronic records, with the Senior Member's reasoning on this topic. The electronic records are a document that need to be produced; the Senior Member was not saying that anything not already on paper need not be produced".
We find no merit in this challenge.

Ground 17

Ground 17 asserted "no jurisdiction to review implied decisions". The Appellant submitted (36) that the Tribunal cannot review implicit decisions at all. It can only review those actually made. If two decisions should have been made instead of one, the Tribunal's task is to make an additional decision or vary the existing one. Implying decisions into decisions is adding gloss on the clear language of the statute and leads to error".
The Tribunal dealt with the categories of information which the Appellant asserted had not been produced which should have been. In each instance the Tribunal at first instance made a finding and, in two instances, held that the Respondent had not adequately searched for missing information, the effect of that decision being that the Respondent had to make further searches for it. Nowhere in the decision of the Tribunal, or any of the reasons leading to those decisions, involved any "implied decision".
We find no merit in this challenge.

Ground 18

Ground 18 asserted "wrong law: s 53 of GIPA Act was misconstrued and not applied/misapplied".
Other than submitting (39) that "The real text of s 53 of GIPA Act was ignored and hence it was misapplied/not applied", nothing submitted by the Appellant advances this ground.
Our review of the reasons for the decision of the Tribunal at first instance confirms that it identified the issues requiring determination, the principles governing the determination of those issues, the evidence with respect to each discrete category of information, gave proper, genuine and realistic consideration to (Resource Pacific v Wilkinson [2013] NSWCA 33, at [9]) or engaged in an active intellectual exercise of evaluation (Carrascalao v Minister for Immigration and Border Protection [2017] FCFCA 107) of each of those issues. The Tribunal at first instance provided reasons which were adequate in law and logic (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, at [84]).

Ground 19

Ground 19 asserted that "the Tribunal did not make findings". Other than referring to the reasons of the Tribunal at first instance at [76]-[78], the Appellant did not identify any asserted failure to make findings. Those paragraphs recorded what the Tribunal at first instance understood the Appellant to be asserting. The Appellant does not appear to suggest that anything there stated was erroneous or inaccurate.
The Tribunal recorded [77] the evidence of the Respondent to the effect that "no other report was made of the kind described" by the Appellant with respect to any inspection on 4 October 2018, which report was provided to the Appellant in the "first tranche of information in August 2019".
The Tribunal being satisfied [78] that the Respondent was justified in its decision that it did not hold any further information in relation to any other final inspection report was based on the Tribunal's acceptance, as was open to it, of the evidence of the Respondent to which it referred at [77].
With respect to each category of document, the Tribunal identified the evidence, considered the evidence and made findings of fact in reliance upon it. The Appellant has not established error of fact or law with respect to any of those findings.
We find no merit in this challenge.

Ground 20

Ground 20 asserted "manifest unreasonableness". In support of that ground the Appellant submitted (41) "Many of the above issues also give rise to the ground of manifest unreasonableness". In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, at [45] Heydon J described this challenge as involving a result which was so unreasonable or unjust as to suggest that one of the recognised categories of error on a question of law had occurred even though the error in question did not explicitly appear on the face of the reasoning.
In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 [2010] 240 CLR 611 at [131] Crennan and Bell JJ said that: "The test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion."
The decision of the Tribunal at first instance was reasoned and logical. No error of fact infected the decision. Nor did any legal error. How the decision was arrived at was adequately revealed. Although the Appellant has not established that the proceedings at first instance could have been decided differently, that possibility would not advance this challenge. Nothing to which we have been referred provides support for the Appellant's contentions.
We find no merit in this challenge.

Ground 21

Ground 21 asserted "irrelevant considerations taken into account". Beyond submitted (42) that "many of the above issues also mean that irrelevant considerations were taken into account", the Appellant made no submissions which would advance this challenge.

Ground 22

Ground 22 asserted "The Tribunal used the findings of others instead of making their own decision". Other than referring (43) to the passage to which the Tribunal referred in its review of the authorities, nothing said by the Appellant could advance this challenge.
The tribunal at first instance identified, then considered the evidence before it, and made findings with respect to that evidence. No error attended that exercise.
We find no merit in this challenge.

Ground 23

Ground 23 asserted "misuse the power to create the false account of events". In support of this ground the Appellant submitted (44): "The Tribunal misused the power it has (to write the reasons) to misrepresent the Council (which undeniably acted improperly) as guilt free. At the same time it refused to make findings of facts that would undermine the Tribunal's panegyric of the Council. This undermines the public trust in the NCAT and legitimacy of the NCAT as a Court."
Recording the only submission made by the Appellant in support of this ground demonstrates why, in the absence of far more than the Appellant has referred to, and there is no more, it lacks merit.

The Appellant's further submissions

In her submissions of 14 June 2022, the Appellant reiterated the substance of some of her grounds of appeal. Nothing there raised advances her appeal, either on questions of law or any other grounds.
Although it was not a ground of appeal, the Appellant submitted (19) that the Tribunal gave "insufficient reasons" for its decision and thus submitted that the decision was "void in accordance with the principle in Palmer v Clarke [1989] 19 NSWLR 158". What was said in that case which supports this complaint was not identified.
The Appellant did not suggest in what way the reasons for the decision of the Tribunal at first instance were assertedly inadequate. The Tribunal at first instance provided adequate reasons for its decision in accordance with the principles identified by the Court of Appeal in Orr.
The Appellant also complained that the "Tribunal Did Not Act According to Equity And Good Conscience". In support of that complaint the Appellant reiterated her contentions with respect to the evidence of Ms Hinder. As the Tribunal found, Ms Hinder was not required for cross-examination. No part of the decision of the Tribunal turned on the "beliefs" of Ms Hinder.
Nothing to which the Tribunal has been referred establishes that the Tribunal at first instance did not act in good conscience by relying upon "evidence of untruthful, misleading or unsupported statements and untruthful, unsupported and irrelevant but offensive finding in the written reasons as well as no explanation by the business documents are less persuasive than the opinions of Ms Hinder or ambiguous emails sent during or in anticipation of legal proceedings".

Further evidence

It is necessary then to consider the "new materials and the order sought" which the Appellant raised in her Summary of Argument of 14 June 2022.
The material upon which the Appellant relied (Appendix PW2) was submitted to preclude affirmation of the decision of the Tribunal at first instance "as it is riddled with various errors or law".
The Respondent's letter to the Appellant of 23 November 2020 (PW2 p1-7) simply records what were asserted to have been the Council's reasonable searches for information. In what way that evidence would demonstrate error on a question of law or any other ground has not been suggested by the Appellant, and, in view of its contents, could not be.
The Sydney Water Building Plan Assessment Application (SW2 p9-14) is dated 7 August 2017. When it came into the possession of the Appellant is not known. Nothing to which the Appellant has referred establishes that, whenever the document came to her, and how it came to her, receiving that document would advance any of the Appellant's challenges, either on a question of law or otherwise.
The "Standard Report" of the documents of the Respondent (SW2 p14-39) appears to refer to inspections from 8 August 2017 to 14 November 2018. The reports appear to have been retrieved and printed, or otherwise have emanated, on 13 November 2020. In what way those documents could advance the Appellant's appeal, either on a question of law or any other ground, has not been explained. The documents themselves provide no basis for suggesting the existence of other information which the Respondent has wrongly failed to produce, or appropriately search for.
The remainder of SW2 simply comprises copies of provisions of the GIPA Act, information published by a government agency with respect to those provisions and a notice of listing of proceedings before the Tribunal.
Nothing in any of those documents could advance the Appellant's appeal or application for leave to appeal.

Conclusion

No ground of appeal having merit, either on a question of law or on any other basis, the appeal, and application for leave to appeal will be dismissed.

Order 1. The appeal is dismissed. 2. Leave to appeal 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: 14 September 2022

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Cases Cited (29)

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