Wojciechowska v Secretary, Department of Communities and Justice

Jurisdictional Challenge

On 1 September 2021 the applicant informed the respondent and the Tribunal that she sought a preliminary determination of a point of law prior to the hearing of the application for review that was fixed for a one day hearing on 16 September 2021. The applicant lodged and served a written submission in support of that application on 1 September 2021.
In summary, the applicant contended that: 1. She "does not voluntarily accept the jurisdiction of the Tribunal" in this matter; 2. She objected to the Tribunal considering the substantive matters of her application for review before a determination of whether the Tribunal has jurisdiction to hear and determine the application; 3. The applicant submitted that it is "against the law" for the Tribunal to proceed to the hearing of the substantive issue without a determination of whether or not it has jurisdiction to do so; 4. The applicant contended that to run the hearing of the substantive issue prior to the determination of jurisdiction is an "abuse of process", as it provides the respondent with "a practice run"; and 5. The applicant was "reluctant" to provide the Tribunal with any submissions or evidence on the substantive issues in relation to her application for administrative review "for the fear that these might be misinterpreted as giving rise to the consensual jurisdiction of the Tribunal".
The applicant requested that the Tribunal not determine the application for review the subject of the proceedings and to stay any consideration of that substantive issue until the issue of the Tribunal's jurisdiction was determined.
On 8 September 2021, the respondent requested that there be a preliminary determination of the jurisdictional issue prior to the hearing date of 16 September 2021.
Procedural directions were made by the Tribunal on 13 September 2021 for the respondent to provide its written submissions in response to the applicant's submissions and for any submissions in reply by the applicant to be served before the hearing. The Tribunal directed that the application concerning the jurisdictional challenge be heard as a preliminary matter at the outset of the hearing fixed for 16 September 2021.
The respondent lodged and served its written submissions on 14 September 2021. The applicant did not lodge any written submissions in reply.
At the hearing, the applicant relied upon her written submissions and was invited to adduce oral submissions in respect of any matter not dealt with in her written submissions.
The gravamen of the applicant's submission was that: 1. the applicant is a resident of Tasmania (a matter of fact that was not in dispute); 2. the respondent is an agency of a "State" within the meaning of s 75 of the Commonwealth of Australia Constitution Act (the Constitution); 3. section 38 of the Judiciary Act 1903 (Cth) provides for the exclusive jurisdiction of the High Court of Australia; 4. The Tribunal is not a "court of a state" within the meaning of the Chapter 3 of the Constitution; 5. the powers given to the Tribunal under the GIPA Act are judicial: relying on comments made by Callinan J in Luton v Lessels [2002] HCA 13 (Luton); 6. Burns v Corbett [2018] HCA 145; (2018) 265 CLR 304 (Burns v Corbett) held that NCAT did not have jurisdiction to decide a proceeding under the Anti-Discrimination Act 1977 (NSW) if the parties to the proceedings were residents of different states; 7. in the present proceedings, the Tribunal is purporting to exercise federal judicial power and has no jurisdiction or power to do so.
The applicant provided no satisfactory explanation for not simply withdrawing the application under s 55 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) if she was correct in her contention that the Tribunal lacked jurisdiction to determine her application for review.
The applicant provided no satisfactory explanation for not invoking the provisions of Part 3A of the NCAT Act consistent with her contention that her application invoked Federal jurisdiction so that her application could be transferred to a court authorised to exercise Federal jurisdiction.
The applicant submitted that based on inquiries made by her of a local court registry (in relation to a different matter) she was informed that she needed to get a "statement" from the Tribunal before she could make an application to the local court under s 34B of the NCAT Act. The applicant acknowledged that the "statement" said to be required by the local court was not required by the terms of s 34B of the NCAT.
This also appears to be raised in an email from the applicant to the Tribunal after the hearing on 30 September 2021, referred to later in these reasons. Paragraph 1 of that email suggests that the intent behind the application was to obtain some type of "document" stating that "the NSW Civil and Administrative Tribunal Act declines to review my application as it seeks to invoke federal jurisdiction due to involving a matter between a State and a resident of another State".
Having raised with the applicant the possibility that the refusal to withdraw the application under s 55(1)(a) of the NCAT Act or invoke the provisions of s34B of the NCAT Act was to effectively force the Tribunal to provide the "statement" said to be required by the local court, the applicant made a request that I recuse myself. I deal with this and other similar requests that I disqualify myself later in these reasons.
The applicant's written submissions dated 1 September 2021 made no mention of earlier decisions of the Tribunal involving identical challenges to the jurisdiction of the Tribunal made by the applicant; each of which was unsuccessful.
One such decision mentioned in the respondent's submissions was that of the Appeal Panel in Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 (Wojciechowska v BMCC) that was delivered on 22 June 2021. As far as I am aware, the applicant has not sought to appeal from that decision to the NSW Supreme Court.
The respondent also referred to a more recent decision of the Tribunal in Wojciechowska v Commissioner of Police [2021] NSWCATAD 210 that was delivered on 16 July 2021 (see [18]-[30]). In that decision to the Tribunal also had regard to the costs decision of the Tribunal in Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310 at [11] to [19] in which the applicant raised the same jurisdictional challenges to oppose the power of the Tribunal to make a costs orders against her.
The Appeal Panel recently dismissed the applicant's appeal from that costs decision: see Wojciechowska v Commission of Police (No 2) [2021] NSWCATAP 311 (delivered on 8 October 2021). Another Tribunal decision considering the same jurisdictional challenges since the hearing of this matter is Wojciechowska v Commissioner of Police [2021] NSWCATAD 284 (delivered on 29 September 2021). The Appeal Panel adopted the detailed reasons given in Wojciechowska v Commissioner of Police [2021] NSWCATAD 284 at [33]-[100].
Suffice to say that there is a consistent corpus of Tribunal and Appeal Panel decisions that have unanimously rejected the applicant's repeated challenges to the jurisdiction of the Tribunal to hear and determine various applications for administrative review brought by the applicant on the basis that she is a resident of Tasmania. I have had regard to each of those decisions and see no reason to depart from any of them, in particular the following reasons set out by the Appeal Panel in Wojciechowska v Commission of Police (No 2) [2021] NSWCATAP 311 at [27] - [34]: 27. Ms Wojciechowska is a resident of Tasmania, and it is not in dispute that the respondent Commissioner has no separate legal identity or existence apart from the Crown in right of the State of New South Wales. If the determination of the proceedings would involve an exercise of judicial power, the dispute between a resident of an Australian State other than NSW and the respondent Commissioner would involve a "matter …between a State and a resident of another State", within the meaning of s 75(iv) of the Constitution. 28.The Tribunal is not a "court of a State" within the meaning of Chapter III of the Constitution or s 39(ii) of the Judiciary Act 1903: Attorney General for New South Wales v Gatsby [2018] NSWCA 254. 29. Ms Wojciechowska submits that the Tribunal has no jurisdiction to determine the costs application because in reviewing matters pursuant to s 100 of the GIPA Act the Tribunal is exercising federal judicial power. That submission is expressed in terms sufficiently broad to cover the proceedings at first instance in the Administrative and Equal Opportunity Division (AEOD) in 2020/132948, and the proceedings on appeal, both the substantive determination and this costs application. 30. The Appeal Panel notes that the question of whether review proceedings in the AEOD under s 100 of the GIPA Act involve the exercise of judicial power has been raised by Ms Wojciechowska in other proceedings. In Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310 SM Molony determined that the Tribunal has power under s 60 of the NCAT Act to award costs in administrative review proceedings under the GIPA Act, that power being ancillary to the Tribunal's administrative review jurisdiction under s 30(1) of the NCAT Act. Similarly Ms Wojciechowska raised the same issue in GIPA Act proceedings concerning Blue Mountains Council. In Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 an Appeal Panel held that in GIPA Act proceedings the tribunal is exercising administrative power and not judicial power. Accordingly there was no Constitutional impediment to the tribunal exercising jurisdiction. 31. Ms Wojciechowska challenged the jurisdiction of the Tribunal in the review proceedings below. In those proceedings SM Higgins concluded, for detailed reasons at [33]-[100], that the determination of Ms Wojciechowska's application seeking review of the decision of the Commissioner made under s 100 of the GIPA Act is an exercise of administrative power, and not judicial power: Wojciechowska v Commissioner of Police [2021] NSWCATAD 284 at [101]. 32. The contention that the Tribunal had no jurisdiction to determine a matter arising under the GIPA Act was not raised in the substantive appeal. The contention having been raised in the course of consideration of the Commissioner's application for costs, the Appeal Panel is required to determine the threshold jurisdictional issue. The question is whether in hearing and determining the substantive appeal, or in determining the Commissioner's costs application in respect of the appeal, in an administrative review proceeding under s 100 of the GIPA Act, the Tribunal is impermissibly exercising federal judicial power. 33. Ms Wojciechowska relies on the indicia identified by Callinan J in Luton v Lessels [2002] HCA 13 (references omitted): 188. It is common ground that it is not always possible to define a power or function as being exclusively administrative or judicial. Powers may overlap, and some functions or powers may be conferred on either a court or an administrative body. It has also been said (in the context of a consideration of the power of a Registrar of Trademarks) that some functions "may, chameleon like, take their colour from their legislative surroundings or their recipient". And as both Harris and Brandy v Human Rights and Equal Opportunity Commission decide, the availability and nature of a review by a court are relevant considerations. 189. I would prefer to state a test by reference to several questions, not all of which will be of equal importance in every case. First, is the exercise to be undertaken under the relevant scheme, one which calls for independence and tenure of a kind traditionally enjoyed by judges? Secondly, does the scheme require the making of findings on disputed facts, or as to the law to be applied? Thirdly, is the relevant decision made by reference to a formula or a fairly standard set of criteria? Fourthly, is the decision appealable? Fifthly, if it is, what is the nature of the appeal? Sixthly, is the decision likely, as a legal or as a practical matter to serve as a precedent for decisions in future similar instances? Seventhly, has the legislature expressed a view about the nature of the process involved? Eighthly, is the process to be followed of a kind that has traditionally been undertaken by courts? Ninthly, does the decision relate to pre-existing rights and obligations, or does it create new ones? Tenthly, is the decision enforceable by the maker of it or by the institution of which he or she is a member? And, last, is there any other feature of the process which is historically of an administrative or a non-judicial kind?
Further at [43] - [51] the Appeal Panel held: 43. The Appeal Panel is satisfied, for the following reasons, that whichever approach to the question is adopted, the Appeal Panel was not exercising judicial power in determining the appeal, and is not exercising judicial power in determining the Commissioner's application for costs of the appeal. 44. The Tribunal has four kinds of jurisdiction: general, administrative review, appeal (including external and internal appeals) and enforcement: NCAT Act, s 28(2). The application initiated by Ms Wojciechowska under s 100 of the GIPA Act was an application made in the administrative review jurisdiction of the Tribunal, as defined in s 30 of the NCAT Act ...
After setting out s 30 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), the Appeal Panel continued: 45. Section 9 of the Administrative Decisions Review Act 1997 (the ADR Act) provides that the Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under that Act of any such decision (or class of decisions) made by the administrator. Section 100 of the GIPA Act, the enabling legislation, confers that jurisdiction on the Tribunal. 46. In R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-5; [1970] HCA 8, Kitto J described what was generally involved in the exercise of judicial power: …Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified. 47. In conducting an administrative review, the task of the Tribunal is "to decide what the correct and preferable decision is having regard to the material then before it": ADR Act s 63(1). While the Tribunal is required by s 63 of the ADR Act to have regard to any relevant factual material, and any applicable written or unwritten law, that is a more limited exercise than the inquiry into the law and facts described by Kitto J. The Tribunal must give effect to any relevant government policy "except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case": ADR Act, s 64. 48. In an administrative review the Tribunal is undertaking the same task as that of the administrator whose decision is the subject of the review, and in doing so may "exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision": s 63(2). The Tribunal may affirm, vary or set aside the decision, and its decision is deemed to be that of the administrator: ADR Act, s 66. The Tribunal does not have the power to make a binding determination of a breach or contravention of the law; and its decision is not final, and is subject to the internal appeal provisions of Part 6 Div 2 of the NCAT Act, and ultimately to the supervisory jurisdiction of the courts. 49. The Tribunal is not bound by the rules of evidence, and while its procedures resemble those of the courts, the Tribunal has power to determine its own procedure, and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(1), (2). The Tribunal has limited powers to punish for contempt under s 73 of the NCAT Act, and proceedings for an offence under the NCAT Act or a contravention of a civil penalty provision may only be commenced by the Minister or a person authorised by the Minister: NCAT Act s 75. 50. An administrative review of the decision under the GIPA Act does not call for the independence and tenure of a kind traditionally enjoyed by judges; and while independent, Tribunal members do not have tenure. There is no suggestion by the legislature that the Tribunal is exercising a judicial power in determining an administrative review under the GIPA Act, that jurisdiction having been conferred on a tribunal, rather than a court. In such a review the Tribunal is not making a determination of existing rights and obligations according to law, but rather is exercising an administrative discretion. 51. The Appeal Panel is satisfied that in determining an application for administrative review of a decision made by an agency under the GIPA Act, the Tribunal is exercising administrative power, and not judicial power.
I accept and adopt the reasoning of the Appeal Panel set out above as well as the approach taken by the other Tribunal and Appeal Panel decisions concerned with the various jurisdictional challenges brought by the applicant that I have referred to above. As such, notwithstanding that the applicant is a resident of Tasmania, that of itself is no impediment to the Tribunal exercising its administrative powers under the GIPA Act and in hearing and determining her application for review of the respondent's reviewable decision. I am also of the opinion that when the Tribunal is undertaking an administrative review of a decision of a government agency under the GIPA Act, for the reasons explained by the Appeal Panel set out above, such a review does not entail the exercise of judicial power by the Tribunal.

Applications for Disqualification

The applicant made various applications during the course of the hearing requesting that I disqualify myself. I rejected those requests. The applicant asked that I provide my reasons and I now do so.
I have dealt with the various requests made by the applicant that I disqualify myself at this point of my reasons because the applications were first made during the course of the preliminary hearing of the applicant's challenge to jurisdiction. The applications to recuse myself should be considered in that context.
The grounds on each occasion appeared to be based on an apprehension of bias. The grounds were not always articulated by the applicant. The requests for disqualification were usually made in circumstances where the Tribunal questioned or challenged the applicant's refusal to simply withdraw the proceedings or invoke s 38B of the NCAT Act, to which reference has been made above.
The principles relating to an application for disqualification are well established.
The Tribunal is obliged to hear and determine a matter unless a reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36]. The general test for apprehended bias is whether 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: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner at [11].
The two step process involved was explained by the High Court in Ebner at [8]: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
In Wojciechowska v Commission of Police (No 2) [2021] NSWCATAP 311 referred to above, the Appeal Panel stated at [24]: 24. For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker must not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ.
In my view, the fact that the applicant took objection to the Tribunal questioning and raising doubts about her reasons for not withdrawing her application or refusing to invoke s 34B of the NCAT Act are not sufficient to meet the test for apprehended bias set out above. Pursuing a challenge to the Tribunal's jurisdiction in respect of an application lodged by the applicant herself, required some explanation. That was particularly so when the most expedient course in accordance with the overriding principle in s 36 of the NCAT Act would be to simply withdraw her application but which the applicant refused to do.
The applicant also seemed to take objection to the Tribunal raising with her the reasons the Appeal Panel in Wojciechowska v BMCC.
In addition to the above principles, the decision of Gleeson JA (with whom Emmett JA and Tobias AJA agreed) in Reid v Commercial Club (Albury) Limited [2014] NSWCA 98 is pertinent to the matters presently under consideration. His Honour held at [78]: [78] It is necessary to keep in mind that claims of apprehension of bias are to be considered in the context of ordinary judicial practice. Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. Accordingly, the expression of tentative views, which reflect a certain tendency of mind of the judge, are not on that account alone to be taken to indicate prejudgment. Moreover, counsel are usually assisted by hearing the judges' tentative opinions on matters in issue and being given an opportunity to deal with them: Johnson v Johnson [2008] HCA 48; 201 CLR 488 at [13] (a case of alleged apprehension of bias) which referred to earlier comments in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 571 (a case where actual bias was alleged)."
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [110]-[112], the High Court held (omitting citations): [111] In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the 'second step' in Ebner v Official Trustee in Bankruptcy) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson: 'Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.' [112] Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias."
The Court of Appeal in Polsen v Harrison [2021] NSWCA 23 (Bell P; Basten JA; Simpson AJA) also listed the following further principles at [46] (omitting citations): 1. the application of the apprehended bias rule depends on the circumstances of each case; 2. the fair-minded lay observer is an hypothetical figure, founded in the need for public confidence in the judiciary 3. there is an unavoidable level of imprecision in the standard of what a fair-minded lay observer "might" apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite "firmly-established" apprehension of bias; 4. a finding of apprehended bias is not to be reached lightly 5. this is because the training, tradition and oath or affirmation of a professional judge require him or her to discard the irrelevant, the immaterial and the prejudicial; 6. the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify; 7. the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality, such that 8. the rebuttal of this presumption requires a "realistic possibility" of the apprehension of bias which is not "fanciful or extravagant" but is based on "the established facts" of the matter; 9. "neither complacent nor unduly sensitive or suspicious", the fair-minded lay observer may have a level of scepticism as to professional pretensions, but will be cognisant of and vigilant against his or her own prejudices; 10. the inquiry as to whether a judge might reasonably be apprehended to deviate from bringing an impartial mind to the resolution of a particular issue "requires no prediction about how the judge … will in fact approach the matter" and "admits of the possibility of human frailty"; 11. the fair-minded lay observer is not presumed to reject the possibility of pre-judgment of a matter, otherwise an apprehension of bias would never arise in the case of a professional judge; however, 12. interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge's desire to understand the evidence and to advance the trial process; 13. it is "difficult, and probably impossible, to state in the abstract, in a manner suitable for application to cases generally, the degree of knowledge to be attributed to a fair-minded observer"; 14. there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court and the "actual circumstances of the case" as though the observer was sitting in the court; 15. the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made; 16. the context which must be considered includes the legal, statutory and factual context in which the decision is made, and "the totality of the circumstances" although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles; 17. the knowledge that the fair minded observer is taken to have is not limited to those facts and matters that were known at the time of an application for recusal and includes published statements made by the judge (whether prior, contemporaneous, or subsequent to the recusal application); 18. the fair-minded lay observer will not act on "insufficient knowledge", but will "inform himself [or herself]" of the relevant circumstances, without making "snap judgments"; 19. the judge's own view about his or her ability to decide the case independently and impartially, as recorded in any reasons for dismissing a recusal application, carries little weight in the fair mind of the hypothetical lay observer, although 20. statements in a recusal judgment regarding factual matters, including the particular context of the comments or conduct in question, may be relevant; 21. the fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange taken out of context and weighed in isolation; 22. the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context; and 23. subsequent statements made by a judge, following the comments or conduct said to give rise to a reasonable apprehension of bias, may indicate that an earlier expressed statement or impression was not final or that the judge had not committed to a particular point of view.
The fact that the applicant complained about the way the proceeding was conducted or that she was offended by being challenged or questioned on various aspects of her application, do not establish that the Tribunal might not bring an impartial mind to the question at issue, namely her challenge to the Tribunal's jurisdiction or her application for administrative review. In my opinion, the applicant did not seek to establish and has not established the required connection between the matters of which she complained and the necessary conclusion that the Tribunal might not bring an impartial mind to the determination of the issues before it.
The Application for Review
The applicant's access application made under the GIPA Act sought access to information described as "footage" from CCTV security cameras over various dates and times in several hearing rooms used by the Tribunal in John Maddison Tower (JMT) at 86-90 Goulburn Street Sydney and in one case, the common area of one of those levels in the JMT.
The reviewable decision set out the searches conducted by the respondent. The searches included searches by officers of the NSW Sherriff of the CCTV and storage components of the surveillance system installed and used at JMT. No records were located. The explanation provided in the reviewable decision was that there were no records because all security and surveillance footage is automatically overridden every 28 days unless there is a lawful request to preserve the footage made within that time.
The reviewable decision stated that retention periods for government records are governed by Functional Retention and Disposal Authorities (FRDAs) and General Retention and Disposal Authorities (GRDA) in accordance with the State Records Act 1988 (NSW). In particular, GRDA-GDA8 "Video/visual surveillance records" provides for the authorised disposal of video/visual surveillance records created for public agencies in NSW.
The reviewable decision did not suggest that the records were not retained or able to be released because the handling of the footage was dealt with other than in accordance with GRDA approvals.
In summary, the applicant sought a review of the respondent's reviewable decision on five grounds. Each of the five grounds was predicated on the information that was sought by the applicant being in existence. Four of the grounds effectively stated no more than a mere entitlement to access those records (on the assumtion that they still existed). One of the grounds (ground 2) inferred that the records did exist at the time the access application was made or the records were "destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1988 (NSW) or contrary to the agency's established record management procedures".
The respondent served and lodged its written submissions in respect of the application for review on 16 July 2021.
The applicant did not lodge or serve any written submissions by 3 August 2021 (or at all), contrary to the procedural orders made by the Tribunal on 15 June 2021.
Therefore, my consideration of the application for review has been made without the benefit of any written submissions from the applicant.
The hearing of the substantive application proceeded after I informed the parties of my decision to dismiss the applicant's challenge to the Tribunal's jurisdiction. That approach accorded with the directions conveyed to the parties by the Tribunal in the procedural directions on 14 September 2021 referred to above. The applicant's jurisdictional challenge occupied a considerable part of the hearing time.
The applicant objected to some aspects of an affidavit relied upon by the respondent, being an affidavit by Ms Tegan Gatherer, Acting Superintendent (AS), Security, Intelligence and Risk Command, Office of the Sheriff of NSW dated 16 July 2021. AS Gatherer deposed to the searches conducted by her in respect of the CCTV footage sought in the access application. The applicant's objections were largely technical and concerned the way in which certain annexures to the affidavit were misdescribed or incorrectly collated and exhibited.
The primary basis of the objection was that the documents exhibited to AS Gatherer's affidavit when she affirmed her affidavit were "not put before her" and that the respondent "did not prove that the exhibits were part of her affidavit".
The respondent sought leave to correct those errors during the hearing and served a fresh affidavit by AS Gatherer dated 16 September 2021. Unfortunately, in that subsequent affidavit there was an error in the referencing of the date of AS Gatherer's earlier affidavit of 16 July 2021. That appeared to raise in the mind of the applicant a concern that there may have been in fact three affidavits made by AS Gatherer, when the respondent had only served two affidavits by AS Gatherer.
The applicant cross-examined AS Gatherer. A considerable part of the hearing was occupied with the cross-examination of AS Gatherer.
None of the cross-examination concerned any of the matters the subject of the application for review. Nothing of any utility or relevance to the application for review was adduced by the cross-examination of AS Gatherer.
The applicant then made very brief and general oral submissions in relation to her application for review.
The respondent's oral submissions largely supplemented its written submissions served on 16 July 2021 and to which no written response had been received from the applicant.
The applicant sought to make extensive oral submissions in reply. Quite properly, the respondent objected to the applicant attempting to do so as the applicant was seeking to raise many wide-ranging matters for the first time.
At the end of the hearing at about 4:10pm, when the Tribunal asked the applicant how much longer she required to complete her oral submissions in reply, she informed that Tribunal that she needed another hour at least and accused the Tribunal of deliberately truncating the hearing so that she was prevented from concluding her oral submissions.
The reasons for not being able to continue the hearing beyond 4:10pm was placed on the record. Neither the transcription monitor nor the Tribunal could sit any longer due to other pre-existing commitments.
The Tribunal then afforded the applicant the opportunity of lodging and serving a written submission to cover any new matters that she had not been able to deal with in her oral submissions in reply. The Tribunal indicated that it would allow a written submission of no more than five pages to be lodged and served by 24 September 2021 and with no right of reply afforded to the respondent. The respondent did not object to that course. When the applicant contended that 5 pages was insufficient, the Tribunal offered her the opportunity of providing written submissions of no fixed length but in which case, the respondent would be afforded a right of reply. The applicant agreed to limit any further submissions to 5 pages and the following orders were made: 1. Direct the applicant to file and serve any further submissions in reply (not already made in oral submissions at the hearing) by 4:00pm Friday 24 September 2021, such submissions not to exceed 5 pages. 2. The respondent is not entitled to provide further submissions in response without the leave of the Tribunal.
No submissions were received from the applicant by 24 September 2021 or any time thereafter. On 30 September 2021, the Tribunal received an email from the applicant in the following terms: I note my deadline for submissions in the above matter expired on 24 September 2021. I wish to inform you that I did not make any written submissions for the following reasons: (1) I participated in the substantive part of the hearing on 16 September 2021 only because I was informed by Senior Member Gracie that he had made a decision dismissing my application to be provided with the document stating that "the NSW Civil and Administrative Tribunal Act declines to review my application as it seeks to invoke federal jurisdiction due to involving a matter between a State and a resident of another State". (2) The written orders I was provided with on 20 September 2021 by email are inconsistent with the decision conveyed to me on 16 September 2021 and referred to at (1) above. (3) Senior Member Gracie cut the hearing in 2021/00129993 short and without giving me any reasonable prior notice that he intended to do so. As a result I did not manage to do an in court demonstration I had planned on doing. I cannot perform the requisite demonstration in the written submission so they would not be able to remedy the mischief created. (4) Given (1)-(3) above, I believe that the final written outcome of the matter can only and only be reasonably affected by whether or not I file to the Supreme Court seeking the relevant declaration. I have therefore proceeded with my consideration of the application for review without the benefit of any further written submissions from the applicant. (emphasis in the original)

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