Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska

Catchwords: APPEAL — Question of law –– Leave to appeal –– Leave to extend time to rely on additional grounds of appeal –– Leave to rely on material served late
FREEDOM OF INFORMATION — Government Information (Public Access) Act 2009 — Administrative power — Meaning of “judicial functions” — Meaning of “relate to” — Excluded information — Restriction of disclosure under s 64 of the Civil and Administrative Tribunal Act 2013 where overriding public interest against disclosure

Legislation Cited: Administrative Decisions Review Act (1997) (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Freedom of Information Act 1989 (NSW) (repealed)
Government Information (Public Access) Act 2009 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Sheriff Act 2005 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited: Agrinova Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCATAP 86
Attorney-General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254
Australian Gas Light Co v Valuer‑General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139
Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185
Betzis v Commissioner of Police [2020] NSWCATAD 71
Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 38
Brazel v Sydney Water Corporation [2021] NSWCATAP 13
Brazel v Sydney Water Corporation [2026] NSWCATAP 9
Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15
Burns v Corbett Burns v Gaynor Attorney General for New South Wales v Burns Attorney General for New South Wales v Burns New South Wales v Burns [2018] HCA 15; 92 ALJR 423
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54
Chief Commissioner of State Revenue v Nova Security Group Pty Ltd [2026] NSWCATAP 99
Christopher v Independent Commission Against Corruption [2022] NSWCATAP 118
Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16
Collins v Urban [2014] NSWCATAP 17
Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85
Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180
Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244
Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126
Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Saravinovski [2024] NSWCATOD 170
Donohoe v Albulario [2025] NSWSC 9
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39
Ferella v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 45
FLK v Transport for NSW [2023] NSWCATAP 140
Forbidden Foods Pty Ltd v Rice Marketing Board for the State of NSW (No 2) [2020] NSWCATAD 73
FTB v Children’s Guardian [2024] NSWCATAP 174
FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120
FZP v Sydney Children’s Hospitals Network [2026] NSWCATAP 55
Goodwin v Commissioner of Police [2010] NSWCA 239
Health Care Complaints Commission v Thornton [2025] NSWCATOD 12
Hembury v Chief of the General Staff (1998) 193 CLR 641; [1998] HCA 47
Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16
Houda v Seraphim [2025] NSWCATAP 135
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22
John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kudrynski v Orange City Council [2024] NSWCA 33
Laalaa v Director General, Department of Education and Training (EOD) [2009] NSWADTAP 56
Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186
LG v Attorney Generals Department of NSW [2009] NSWADT 141
Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Marjanac v Plavsic [2014] NSWCATAP 63
McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
MS Noun Construction Pty Ltd v Baker [2022] NSWCATAP 251
Murdoch v Commissioner of Police, NSW Police Force [2025] NSWCATAD 196
Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275
N (No 2) v Director General, Attorney General’s Department [2002] NSWADT 33
N -v- Director General, Attorney General’s Department (GD) [2002] NSWADTAP 41
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
New South Wales v Wojciechowska [2025] HCA 27
NZ v Attorney-General’s Department [2005] NSWADT 103
Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15
Rafferty v Commonwealth of Australia (Supreme Court (NSW), Malpass M, 20 December 1996)
Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156
Ros v Commissioner of Police [2020] NSWCATAP 70
Rose v Ecosaw (General) [2010] NSWCTTT 421
Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6
Shurapey v Mycar Auto Sales (Motor Vehicle) [2013] NSWCTTT 661
Social Justice Advocates of the Sapphire Coast Incorporated v Bega Valley Shire Council [2024] NSWCATAD 279
Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416
Tillmanns Butcheries Pty Ltd v Australasian Meat Industries Employees’ Union (1979) 42 FLR 331
Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602; [1961] HCA 35
Transport for NSW v Waters [2018] NSWCATAP 200
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Wojciechowska v Secretary, Department of Communities and Justice [2025] NSWCATAD 2
Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2025] NSWCATAP 248
Wollondilly Shire Council v Styles [2024] NSWCATAP 104
Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48
YLE v YLF [2025] NSWCATAP 75
Yuen v Thom [2016] NSWCATAP 243
ZBG v NSW Trustee and Guardian [2023] NSWCATAP 47

Texts Cited: NCAT Policy 4 (October 2019), Access to, and Publication of, Information Derived from Proceedings in the Tribunal

Category: Principal judgment

Parties: Appeal:
Paulina Wojciechowska (Appellant)
Secretary, Department of Communities and Justice (Respondent)
Cross-Appeal:
Secretary, Department of Communities and Justice (Cross-Appellant)
Paulina Wojciechowska (Cross-Respondent)

Representation: Solicitors:
Appellant, Cross-Respondent (Self-Represented)
Crown Solicitor (Respondent, Cross-Appellant)

File Number(s): 2025/00044353
2025/00066768

Publication restriction: Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the confidential material as defined in this written statement of reasons at [118] is restricted to the Respondent/Cross-Appellant.

REASONS FOR DECISION

THE APPEAL

The Decision at first instance

The materials on the appeal and procedural issues

Jurisdiction on the internal appeal

The need to identify a question of law or leave to appeal

Where an appeal concerns an interlocutory decision

The approach of the Appeal Panel

Jurisdiction of the Appeal Panel when conducting an internal appeal from an administrative review of a decision under the GIPA Act

The Appeal Panel declines to treat the appeal as a new hearing

Approach on the Appeal

Grounds 1, 2 and 3

Determination of Grounds 1 and 2

Determination of Ground 3

Absence of documents

That the Tribunal purportedly asked itself the wrong question

Grounds 4 and 5

Ground 4 – as it relates to a recusal application

Grounds 4 and 5 – the manner of service and confidential documents

The submissions

The Tribunal’s decision regarding the service of material

The Tribunal’s decision regarding the confidential material

Identification of the questions of law that arise

Determination of the questions of law arising under Grounds 4 and 5

Conclusion in relation to Grounds 4 and 5

Ground 6

Grounds 7 and 11

Ground 8

Ground 9

Questions of law raised by Ground 9

Misconstruction of the statute

Failure to undertake searches not a failure of certainty

Duty to assist

Good Government

Conclusion in relation to Ground 9

Ground 10

Ground 12

The Tribunal’s reasoning on Item 11 relevant to Ground 12

Question of law of material breach of procedural fairness

Ground 13

Ground 14

That judicial functions in cl 1 of Sch 4 to the GIPA Act purportedly do not relate to the Tribunal hearing and determining GIPA proceedings

That the CCTV Footage was purportedly not created as a result of judicial functions of the Tribunal

Determination of Ground 14

Grounds 15 and 16

Additional Grounds

Extension of time

Additional Ground – erred in finding overriding public interest – Items 6, 7 and 9 (excluding Ms Britton’s CV) of the second access application

Additional Ground – misconstruction of the access application – Item 8 of the second access application

Additional Ground – misconstruction of the appellant’s application – Item 15 of the first access application

Additional Ground – allegation of improper reliance on excluded information –Item 15 of the first access application

Conclusion in relation to the additional grounds

Miscellaneous issues

Rejection of Affidavit of Paulina Wojciechowska of 10 February 2026

Hearing de novo

Consideration

Recusal

THE CROSS-APPEAL

Legislation

Grounds of the cross-appeal

Questions of law or leave to appeal

Ground 2

Ground 1

Determination of Ground 1

Principles of statutory construction

Objects of the GIPA Act

The Tribunal’s Objects

The function of the Sheriff and the function of the Tribunal

Meaning of “relate to”

Conclusion on the meaning of “relate to”

The CCTV footage relates to the Tribunal’s function of hearing and determining the proceedings.

Additional issue regarding confidentiality

Proposed orders in respect of confidential material

Determination in relation to the confidentiality orders

Costs

Orders on the appeal (2025/00044353)

Orders on the cross-appeal (2025/00066768)

REASONS FOR DECISION

1. The underlying dispute concerns three applications for access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The first instance decision engendered appeals from both parties: Wojciechowska v Secretary, Department of Communities and Justice [2025] NSWCATAD 2 (the Decision). We refer to the appeal by Ms Wojciechowska as the appeal, and refer to Ms Wojciechowska as the appellant. We refer to the appeal by the Secretary, Department of Communities and Justice (the Secretary) as the cross-appeal.

2. For the reasons which follow, we have dismissed the appeal and allowed the cross-appeal.

THE APPEAL

The Decision at first instance

3. The three access applications traversed a multitude of subject matters.

4. In relation to the application dated 2 August 2021 (the first access application), the Tribunal, in general terms, found as follows:

5. In relation to CCTV footage of various hearings and case conferences in the Tribunal, to which the appellant was a party (Items 1-5), that despite reasonable searches, the information is not held by the Department of Communities and Justice (the agency).

6. In relation to Tribunal correspondence and documents in relation to those proceedings (Items 6-14), that the information is “excluded information” as comprehended by the GIPA Act and therefore the access application was invalid.

7. In relation to Tribunal correspondence relating to the appellant (Item 15) as reduced in scope to all documents ever created by the agency in relation to the appellant and her previous application under the GIPA Act from 7 January 2021 to 4 May 2021, noting that the appellant had been provided with 364 pages containing information, some of which had been redacted:

(a) that insofar as some of it was marked by the agency as being “not within scope”, that information is not relevant to the information applied for; and (b) that insofar as some of it was said by the agency to be personal information of persons other than the appellant and Mr Bolejko (the appellant’s husband, who had consented to the release of his personal information to the appellant), which included reference to details such as the name of persons, signatures, dates of birth and credit card details, disclosure of which could reasonably be expected to reveal an individual’s personal information or disclosure of which could contravene s 18 of the Privacy and Personal Information Protection Act 1998 (NSW), then, on balance, there is an overriding public interest against disclosure.

4. In relation to what the Tribunal described as documents that contain the dates on which the documents identified in Item 15 were created or sent (Item 16), that the information is not held by the agency.

5. In relation to the application dated 13 October 2021 (the second access application), in general terms, the Tribunal found as follows:

6. In relation to access to CCTV footage of the Tribunal hearing on 16 September 2021 (Item 1), that contrary to the Secretary’s submission, the CCTV footage of Tribunal proceedings “does not relate to the Tribunal’s function of hearing or determining proceedings” but instead relates to “a function performed by the Sheriff of providing for the safety and security of the Tribunal” (Decision at [124]). Accordingly, the information in Item 1 is not “excluded information”, and the application is a valid application. However, on balance, the public interest considerations against disclosure on the basis of secrecy provisions and the disclosure of personal information outweigh the considerations in favour of disclosure such that an exception to providing the form of access sought by the appellant applied under s 72(2) of the GIPA Act. The Tribunal ordered that the appellant is to be given access to the information in Item 1, however the access would be view-only. That is to say, the form of access is by providing a reasonable opportunity to “inspect the record”, together with such facilities to enable the information to be viewed and where a condition is imposed to prevent the appellant from making notes or taking a copy of the record (Decision at [150]). This form of access and imposition of a condition would avoid an overriding public interest against disclosure of the information. We pause to note that this is the subject of the cross-appeal.

7. In relation to “complete employment records for all persons named Karen and working for the Office of General Council in February 2020” (Item 2), the Tribunal affirmed the respondent’s decision that the agency does not hold the information sought, as there was at that time no office of such name within the respondent’s departmental structure.

8. In relation to information about the termination and commencement, or recommencement, of employment of Mr “Kyle Hudson”, a former employee of the Crown Solicitor’s Office who acted in matters involving the appellant (Items 3-5), that no information is held by the agency because at the relevant time he was seconded to another office, rather than terminated, and the information was sought on a mistaken assumption. The Tribunal affirmed the respondent’s decisions that it held no information in relation to Item 3 and Item 5. Insofar as information concerning Mr Hudson’s resignation, there was an overriding public interest against disclosure relating to his personal information. The Tribunal affirmed the respondent’s decision to refuse access to Item 4.

9. In relation to information sought relating to the recruitment for the position of Deputy President and Head of NCAT’s Guardianship Division in 2021, including a complete list of all applicants, the shortlist of applicants, documents showing dates of all interviews, documents provided by Ms Anne Britton (the ultimately successful candidate) and other documents in relation to Ms Britton’s application (Items 6 to 10):

(a) (in relation to Item 8) that access was to be given for some information, such as the date of all interviews and the formal parts of the letter from the President of the Tribunal to the Attorney-General, but otherwise that the information is either not relevant to the access application, or there is an overriding public interest against disclosure; (b) (in relation to Items 6, 7 and 9) that other than in relation to Ms Britton’s CV, there is an overriding public interest against disclosure, and access was refused. In relation to the CV, the decision not to give access was remitted to the agency for reconsideration; and (c) (in relation to Item 10) the Tribunal remitted that part of the implied decision of the agency that it does not hold information responsive to Item 10.

6. Since then, some additional information was provided to the appellant, and the appellant withdrew, from the Tribunal at first instance, the parts of the access application that had been remitted by the Tribunal to the agency. The Tribunal dismissed the consequential applications in relation to the remitted categories.

7. For the application made on 4 February 2022 (the third access application) in relation to 36 categories of documents, and a reviewable decision of the respondent made on 2 March 2022 in relation to it, the Tribunal found that the third access application did not include sufficient information for the information sought to be identified, and affirmed the respondent’s decision that the third access application is not valid.

The materials on the appeal and procedural issues

8. The appellant relies on amended grounds of appeal, in response to which the Secretary filed and relies upon an amended reply to appeal. During the hearing, the appellant confirmed that she challenges all orders from the Tribunal below “if they result in non-provision of some documents” (Tcpt, 16 September 2025, p 5(27)).

9. Some procedural issues were dealt with in an earlier decision of the Appeal Panel, including in relation to applications to adjourn the appeals and to stay the appeals made by the appellant, and an extension of time application made by the Secretary: Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2025] NSWCATAP 248 (the Interlocutory Decision). We refused the appellant’s applications for an adjournment and a stay of the appeals, and granted the Secretary an extension of time to lodge the cross-appeal.

10. By the time of the hearing, the appellant had not filed written submissions, and the Appeal Panel asked about the appropriateness of the appellant making oral submissions (Tcpt, 16 September 2025, p 45(17) onwards):

“DEPUTY PRESIDENT SEIDEN: Does it assist instead of putting something in writing you were to just give oral submissions?

APPELLANT: Well, I can make oral submissions, yes.

DEPUTY PRESIDENT SEIDEN: Is that easier for you; that’s really the question I’m asking?

APPELLANT: It is easier, yes, that’s true, it’s easier.”

11. The respondent did not object to the hearing progressing by way of the appellant giving submissions orally; with appropriate time for the Secretary to consider his response.

Jurisdiction on the internal appeal

The need to identify a question of law or leave to appeal

12. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), an appellant in relation to a final decision may appeal as of right on a question of law or with leave on any other ground.

13. In relation to the requirement that there be a question of law, the following principles from Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33] (Targeted) (original emphasis) apply:

“There are several important points to make about this provision:

(1) There is no appeal to this Court from a decision of the Appeal Panel as of right. The applicant must persuade the Court that leave should be granted.

(2) An appeal is limited to ‘an appeal on a question of law’.

(3) As was recently emphasised in Thomas and Naaz at [32], ‘it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction’. (To similar effect, see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [6] and [22]; and Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). Accordingly, it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself.

(4) What constitutes a question of law is ‘vexed and context dependent’ in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises (see Thomas and Naaz at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51).

(5) Although there is no clear test of what constitutes a question of law for the purposes of s 83 of the CAT Act, it is important not to lose sight of the continuing binding authority in this State of the Court of Appeal’s decision (by majority) in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Azzopardi stands for the proposition that a particular finding which is alleged to be ‘perverse’ or ‘unreasonable’ or ‘not reasonably open’ is not ordinarily a question of law. At pp 155–156, Glass JA (with whom Samuels JA agreed, Kirby P dissenting) said:

It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers’ Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.

(6) Furthermore, at p 157, Glass JA said:

…when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General.

See also Thomas and Naaz at [53].

(7) It is unnecessary to decide for the purposes of this appeal whether a ‘question of law’ encompasses a mixed question of fact and law (see generally, at the federal level, the decisions of the Full Court of the Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93 and contrast the position at the State level, which is reflected in cases such as Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; and Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] per Chen J).

(8) The existence of a question of law is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal (see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77] per McColl JA, with whom Meagher and Leeming JJA agreed).

(9) Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has ‘a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge’. It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]–[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example*,* Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]–[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]).

(10) A s 83 appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT at first instance (see Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10]).”

14. Targeted was cited in the recent appeal panel decision of Chief Commissioner of State Revenue v Nova Security Group Pty Ltd [2026] NSWCATAP 99 at [27] and Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127 at [27]. Even though Targeted concerned s 83 of the NCAT Act, it is consistent with the approach taken by many appeal panels in relation to s 80 of the NCAT Act: see for instance Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique). We apply those principles below.

15. In relation to leave to appeal, as noted in FZP v Sydney Children*’*s Hospitals Network [2026] NSWCATAP 55 at [25], discussing Collins v Urban [2014] NSWCATAP 17, it is not sufficient to merely show that the Tribunal below was arguably wrong or that there was a challenge to an issue of fact, but rather, an issue of wider importance, principle, or clear injustice is required:

“The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting the leading case of Collins v Urban [2014] NSWCATAP 17. It is only if the decision is affected by sufficient doubt, to warrant its reconsideration on appeal, that leave will be granted. Usually, it is appropriate to grant leave where there is an issue of principle, a question of public importance, or an injustice which is reasonably clear, and beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28]. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact.”

Where an appeal concerns an interlocutory decision

16. In the case of an interlocutory decision, there is no automatic right of appeal on a question of law under s 80 of the NCAT Act. Leave of the Appeal Panel to appeal is required. Underlying the need for leave to appeal with respect to an interlocutory decision is the prospect that appeals on interlocutory decisions may fragment issues and delay the ultimate determination of the matter. The principles were summarised in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [34]-[35]:

“34 …there is no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions. Rather, there is a discretion to be exercised and general principles apply to the grant of leave to appeal such decisions.

35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following:

(1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39;

(2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ;

(3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564;

(4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative;

(5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323;

(6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6;

(7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec);

(8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9;

(9) Lastly, subject to the above, the matters set out in Collins at [84(1)-(2)] are also relevant to the exercise of a discretion to grant leave.”

17. We note that two of the orders of the Tribunal were interlocutory, in that they were made under s 65 of the Administrative Decisions Review Act (1997) (NSW) (ADR Act), which provides for a decision of an administrator to be remitted for reconsideration. If the administrator varies its decision, the application to the Tribunal may be withdrawn, or the application may proceed for review of the decision as varied. Similarly, if the administrator sets the decision aside and makes a new decision in substitution, the application to the Tribunal may be withdrawn, or if it is not withdrawn, it is taken to be an application for review of that new decision. Implicitly, if there is no change to the administrator’s decision, the application to the Tribunal simply continues or may be withdrawn. The fact that an applicant has a further opportunity to proceed in the Tribunal after a remittal under s 65 of the ADR Act marks such an order as interlocutory.

18. This is to be contrasted with a decision to remit to the administrator under s 63 of the ADR Act, which is a final decision.

The approach of the Appeal Panel

19. The approach that the Appeal Panel takes is to treat the orders made by the Tribunal under s 65 of the ADR Act as interlocutory decisions; but otherwise, to treat the appeal and the cross-appeal as appeals against final decisions (i.e., final orders). As an appeal lies against orders and not reasons for decision, we see that this approach is warranted, even though the Decision contains a mixture of final and interlocutory orders.

Jurisdiction of the Appeal Panel when conducting an internal appeal from an administrative review of a decision under the GIPA Act

20. There is a further issue concerning jurisdiction raised by the appellant. This concerns the jurisdiction of the Appeal Panel to hear and determine an internal appeal. Ms Wojciechowska in oral submissions (Tcpt, 16 September 2025, p 45(40) onwards) said:

“APPELLANT: …I mean for - for the appeal panel today to have jurisdiction that would have to mean the appeal panel is exercising merits review, otherwise my submission would be that there is no jurisdiction because I’m a resident of­­

DEPUTY PRESIDENT SEIDEN: Yes.

APPELLANT: ­­Tasmania and this is the State of New South Wales on the other side and this is the matter now, it’s become a matter, and I know the authority about proceedings below, that’s clear authority, but we don’t really have clear authority from High Court on appeal panel proceedings.”

21. The appellant explained that she was using the term “merits review” synonymously with the concept of the exercise of administrative power.

22. Ms Wojciechowska submitted orally (Tcpt, 16 September 2025, p 47(39)-p 48(0)):

“DEPUTY PRESIDENT SEIDEN: Well, the problem with the merits review, we first have to identify the basis of the appeal, the subject matter of the appeal. It’s either a leave application or it’s a question of a law.

APPELLANT: Mm-hmm.

DEPUTY PRESIDENT SEIDEN: So the first thing is what’s the subject matter of the appeal. We’ve first got to get in through that door and then­­

APPELLANT: Well, I struggle with seeing how reviewing just purely on errors of law could not be exercise of judicial power. So in my view it is fact. So the only way, in my view, the tribunal can - appeal panel can deal with this if, as a whole, it’s treated as merits review and then again the onus on the agency.”

23. Before considering this submission, it is useful to consider the nature of an internal appeal. In Yuen v Thom [2016] NSWCATAP 243 at [15]-[20], an appeal panel canvassed the differing types of appeals and concluded that an appeal determined by way of a new hearing (under s 80(3) of the NCAT Act) is akin to a hearing de novo; but otherwise, an appeal under s 80 of the NCAT Act is by way of a rehearing. In an appeal by way of rehearing, an appeal panel is authorised to determine whether the order the subject of the appeal is the result of some legal, factual or discretionary error. In other words, unless an appeal panel decides to determine an appeal by way of a new hearing (a hearing de novo) in accordance with s 80(3), an appeal panel’s role is to discern and, where appropriate, correct, error. However, even before exercising the discretion under s 80(3), an appeal panel must be satisfied that there is a question of law or grant leave to appeal (NCAT Act, s 80(2)). Further, it is not in every case that an appeal panel would decide to conduct a new hearing. The grounds of appeal must warrant the appeal being determined by way of a new hearing. This aspect is discussed further below.

24. The appellant contends that to be properly seized of jurisdiction, the Appeal Panel, in this case, must conduct the internal appeal by way of a hearing de novo: a new hearing. It is submitted that the Appeal Panel must hear and determine the issues afresh, without the need for the establishment of error in the decision appealed. This is necessary, so it is submitted, for the Appeal Panel to stay within the bounds of merits review and therefore to stay within the purview of administrative power. In so doing, there is no need to identify a question of law and there is no need to identify error. Further, the onus is said to be on the Secretary. The appellant submits that the requirement to discern error requires the Appeal Panel to exercise judicial power, in which case the Appeal Panel has no jurisdiction, as the appellant is a resident of Tasmania.

25. Turning first to the outcome if the Appeal Panel were required to exercise judicial power. It is beyond doubt that, if the Appeal Panel must exercise judicial power to determine the appeal, the fact that the appellant resides in Tasmania would deprive the Appeal Panel of jurisdiction. Determination of such an appeal would require the exercise of federal judicial power, which only a court of a State is invested with: Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [1] discussing Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. The Tribunal is not a court of a State: Attorney-General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 at [184], [204], [228].

26. There was no dispute about that.

27. The real issue between the parties arises from the appellant’s submission that only where the Appeal Panel exercises full merits review without the need to first discern error, could the Appeal Panel have jurisdiction to hear and determine this appeal.

28. The respondent submits that Kirk JA’s reasons in Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 (Wojciechowska v Secretary CA), with whom the other members of the Court of Appeal agreed, are “absolutely clear that the same characterisation applies…to the appeal panel as to the tribunal below….And so the character of this proceedings…is the same” (Tcpt, 16 September 2025, p 46(14)-(27)). The Secretary submits that Kirk JA’s reasons, except where error was identified, was “endorsed” by the High Court in New South Wales v Wojciechowska [2025] HCA 27 (NSW v Wojciechowska HCA); albeit the High Court proceedings concerned the Privacy and Personal Information Protection Act, and not the GIPA Act.

29. It is apparent that the Court of Appeal’s findings in Wojciechowska v Secretary CA in relation to the Tribunal implicitly, if not explicitly, extended to a finding that the nature of the power exercised by an appeal panel in GIPA proceedings is administrative in nature. This is so, as the summons in Wojciechowska v Secretary CA which was directed to the nature of the power exercised on the appeal, as well as the Tribunal at first instance in proceedings under the GIPA Act, was dismissed; the Court finding that the Tribunal (and the appeal panel) exercise administrative power in proceedings under the GIPA Act.

30. We note that an appeal panel found to similar effect, that an appeal panel exercises the same power as the power exercised at first instance, in Agrinova Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCATAP 86, which concerned an internal appeal of an assessment of stamp duty (at [164]-[165]).

31. Ultimately, we do not consider that we must conduct a new hearing on an internal appeal in order to avoid straying outside the purview of the exercise of administrative power. There is no support for such a proposition in Wojciechowska v Secretary CA; though we accept that this particular point does not appear to have been expressly argued*.*

32. There are differences between an internal appeal panel and a Tribunal at first instance, including as to constitution, and the powers they exercise. Nevertheless, we are satisfied for the following reasons that these differences do not turn the exercise of what is administrative power at first instance, in an application for administrative review of a decision under the GIPA Act, to the exercise of judicial power, on an internal appeal.

33. First, we note that an appeal panel must be constituted by at least one lawyer: NCAT Act, s 27(1)(a). Nevertheless, this is not decisive: Wojciechowska v Secretary CA at [90].

34. Further, even though, in a rehearing, error must be discerned before an order would be disturbed, once error is discerned, then pursuant to s 81(2) of the NCAT Act, an appeal panel may exercise all the functions that are conferred or imposed on the Tribunal at first instance. The need to discern error alone does not gainsay that an appeal panel exercises administrative power. An appeal panel may yet step into the shoes of the administrator. That a Tribunal may step into the shoes of an administrator was a matter that tended in favour of determining that the Tribunal was exercising administrative power in Wojciechowska v Secretary CA at [97]-[98].

35. Also, on the appellant’s construction, it appears to be accepted that if the Appeal Panel decided to determine the appeal by way of a new hearing, then under s 80(3), the Appeal Panel would have jurisdiction to hear and determine the appeal in this case. The decision to determine an appeal by way of a new hearing, first, requires the Appeal Panel to discern a question of law or grant leave to appeal, and then to exercise a discretion to determine the appeal in such a fashion: see s 80(2) read with s 80(3) of the NCAT Act. The fact that the Appeal Panel could not know whether it was authorised to hear and determine the appeal unless and until it first exercised the discretion to conduct the appeal by way of a new hearing, tends against the conclusion that jurisdiction depends on the style of appeal.

36. We do not consider that jurisdiction is predicated on the exercise of a discretion. A Tribunal is either authorised or not authorised to hear and determine a proceeding. Once there is a federal matter, it does not wax and wane; there remains a federal matter, even, for instance, where the claim or defence which clothed the matter as federal is withdrawn; “[i]t is sufficient if the matter could be decided by reference to the federal law, it is not necessary that the matter be disposed of in that way”: Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 at [22] citing Felton v Mulligan (1971) 124 CLR 367 at 374 (Barwick CJ); [1971] HCA 39; Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [21] (per curiam). The real question, therefore, is whether there is a federal matter in the first place; and does not depend on whether the Appeal Panel might exercise its discretion to hold a new hearing.

37. Finally, the orders sought on the appeal are that the Appeal Panel set aside all orders of the Tribunal that do not grant access to the information sought and to remit to the Tribunal for a redetermination of the application. The orders sought on the cross-appeal are to set aside the access order made in relation to the CCTV footage (Item 1 of the second access application) and decide that the access application was not validly made. As can be seen, the ultimate issues between the parties remain as they were at first instance – they concern whether the appellant should be given access to the information sought in the three access applications.

38. Ultimately, the issues at hand concern the appellant’s statutory rights under the GIPA Act; determination of which, for reasons outlined in Wojciechowska v Secretary CA, required the Tribunal to exercise administrative power. In hearing and determining the internal appeal, the Appeal Panel, too, is exercising administrative power.

39. We are satisfied that the Appeal Panel is indeed exercising the same power as the Tribunal at first instance, here, administrative power; irrespective of whether the internal appeal is by way of a rehearing or a new hearing. Accordingly, we are not deprived of jurisdiction, because the proceedings do not require the exercise of federal judicial power.

40. It follows, that the Appeal Panel is seized of jurisdiction, even though the appellant is a resident of Tasmania.

The Appeal Panel declines to treat the appeal as a new hearing

41. An appeal panel may, under s 80(3) of the NCAT Act, determine an appeal by way of a new hearing (Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]; FTB v Children*’*s Guardian [2024] NSWCATAP 174 at [12]; YLE v YLF [2025] NSWCATAP 75 at [45]-[48]). In such a case, the Appeal Panel may receive additional evidence.

42. The Appeal Panel in ZBG v NSW Trustee and Guardian [2023] NSWCATAP 47 identified some principles which apply to a new hearing at [41]-[42]:

“41 …Section 80(3) of the NCAT Act permits the Appeal Panel ‘to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing’ and to ‘permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances’.

42 Establishing a question of law is not a pre-condition to the exercise of the discretion conferred by s 80(3) of the NCAT Act to deal with the appeal by way of a new hearing and to take into account fresh evidence: see, Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307 at [18]; DHQ v DHR [2018] NSWCATAP 128 at [60]. Nonetheless, where, as here, the proposed appeal does not raise a question of law, there must be a compelling reason to warrant the exercise of that discretion.”

43. An example where an appeal panel exercised its discretion to determine an appeal by way of a new hearing was in McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116, where jurisdictional error by the Tribunal was plain, and, having regard to the very confined nature of the appeal, it was considered appropriate to determine the appeal by way of a new hearing.

44. Here, the grounds are not confined, and there is no apparent reason why a new hearing is required. We decline to hear the appeal by way of a new hearing.

Approach on the Appeal

45. The approach we take with respect to each ground is as follows, though where possible we have grouped the grounds:

46. Identify whether a ground raises a question of law.

47. If a question of law arises, we determine it.

48. If no question of law arises, or if the need to extend the ground beyond a question of law arises, we consider whether to grant leave to appeal.

49. If leave to appeal is granted, we determine the ground.

50. In the case of the interlocutory orders, we consider leave to appeal at the first instance.

51. Whilst the appellant is a lawyer, nevertheless, we note that she is self-represented. To this end, we have adopted the approach undertaken by many appeal panels that, subject to affording procedural fairness to the respondent, it is appropriate for the Appeal Panel to itself consider whether questions of law arise from the grounds of appeal: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69.

Grounds 1, 2 and 3

48. These grounds have been grouped together as they raise the questions of whether the Tribunal lacked jurisdiction to hear and determine the matter because the proceedings required the exercise of federal judicial power, or whether the Tribunal failed to act in accordance with its authority to exercise merits review, by purporting to exercise federal judicial power.

49. Grounds 1, 2, and 3 of the amended grounds of appeal provide as follows:

“1. No power or no jurisdiction to make orders in div 3 of Pt 3 of ch 3 of ADR Act.

2. No jurisdiction to validly hear and determine the proceedings as they involve the exercise of federal judicial power, are a matter, and NCAT is not a Ch III court.

3. If 1-2 not accepted; the tribunal did not conduct merits review as it allegedly was obliged to do (it is denied NCAT had power and jurisdiction to conduct merits review) but the Tribunal at the division level purported to exercise judicial power.”

50. We are satisfied that Grounds 1 and 2 each raise the question of law of whether the Tribunal wrongly proceeded to hear and determine the proceedings at first instance, in the absence of jurisdiction to so do. Jurisdictional error may raise a question of law (Unique at [32(8)]), and we are satisfied that the question of whether the Tribunal was authorised to hear and determine the proceedings indeed raises a question of law.

51. Ground 3 asks the question of law whether the Tribunal, seized only of jurisdiction to exercise administrative power, wrongly, did not exercise administrative power; and instead, wrongly, purported to exercise judicial power. This was pressed on several bases. First, that the Tribunal did not have all the relevant documents before it and therefore could not exercise merits review. Also, that the Tribunal constructively failed to exercise the jurisdiction; and finally, that the Tribunal asked itself the wrong question.

52. The first aspect raises the question of whether the Tribunal proceeded to hear and determine the proceedings on a basis it had no authority to do. A constructive failure to exercise the jurisdiction raises a question of law: Goodwin v Commissioner of Police [2010] NSWCA 239 at [22] (Basten JA). Further, a Tribunal asking itself the wrong question raises a question of whether there has been jurisdictional error: Transport for NSW v Waters [2018] NSWCATAP 200 at [43] citing Craig v State of South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58. It does not require us to delve into disputed substantive facts, and we are therefore satisfied it raises a question of law.

Determination of Grounds 1 and 2

53. We do not see that Grounds 1 and 2 are sustainable in the face of Wojciechowska v Secretary CA at [105] (Kirk JA, Mitchelmore JA agreeing at [1], Griffiths AJA agreeing at [152]). Whilst NSW v Wojciechowska HCA concerned the Privacy and Personal Information Protection Act, we see that this is consistent with the conclusion of the Court of Appeal in Wojciechowska v Secretary CA in relation to the GIPA Act, the Act we are here concerned with. The appellant, without conceding the point, candidly acknowledged that her “chance of winning this in the next ten years are none, probably”.

54. Grounds 1 and 2 are dismissed.

Determination of Ground 3

55. The appellant pointed to the exclusion of s 58 of the ADR Act (which concerns the requirement of an administrator to provide an applicant with a statement of reasons and relevant documents) by s 103 of the GIPA Act, as a factor that indicated the Tribunal was exercising judicial power and not merits review. The appellant contended that if administrative power is being exercised, then there must be full merits review, which requires the Tribunal to stand in the shoes of the original decision-maker. This, in turn, entails a hefty onus on the respondent to provide all relevant documents, beneficial or not, akin to s 58; which, so it is contended, did not occur here. The appellant reiterated her contention that unless there is full merits review, then the Tribunal is not exercising administrative power. There are two bases put forward by the appellant for why this is so: first, due to the nature of the hearing being a merits review; and second, the Secretary has “the burden of establishing that the decision is justified” under s 105 of the GIPA Act.

56. As to the second aspect, s 105(1) of the GIPA Act provides:

105 Onus on agency to justify decisions

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

57. The appellant contends that this onus does not get lighter simply because s 58 of the ADR Act is excluded.

58. The Secretary submits:

“Section 103 can only plausibly be understood as recognising that there are cases in which all relevant documents are not required to be before the Tribunal, because the provision would otherwise have no purpose. Instead of s 58 of the ADR Act, Parliament has enacted s 105 of the GIPA Act, which imposes an onus on the agency. Section 105 should be understood as an alternative way of achieving the same object as s 58 of the ADR Act, which is to ensure that an applicant (and, to a lesser extent, the Tribunal itself) is not prejudiced by an information asymmetry that is assumed to exist in favour of the government party. Thus, while it may be the case that meeting the s 105 onus would often require a respondent to lodge all relevant information, including by lodging responsive documents that are claimed to be subject to an overriding public interest against disclosure in reliance on s 107 of the GIPA Act, that approach is not mandated.”

59. The Secretary further submits that “nothing in Wojciechowska CA or Wojciechowska HCA supports the submission of the appellant” that the Tribunal must approach its task in a set way. To the contrary, the respondent submits that the “decisions demonstrate that administrative power is multifarious”, being sometimes “very like” judicial power, and other times “much closer to a classic merits review function”.

Absence of documents

60. Insofar as the submission concerning the lack of documents is concerned, the appellant submitted that the Tribunal did not have all the documents before it. For instance, those relating to the appointment process of Deputy President Britton. The Secretary filed and relied upon an affidavit which set out the responsive information to Items 9 and 10, rather than Items 9 and 10 themselves. The appellant submitted that for the Tribunal to determine the issues on a summary document demonstrated that there had been a constructive failure to exercise the jurisdiction and failure to exercise merits review. The Tribunal, in relying upon the description of the documents responsive to Items 9 and 10 rather than the documents themselves, is said to have “delegated” its task.

61. There is no dispute that the documents were not provided to the Tribunal, at first instance.

62. The transcript at first instance relevantly provides as follows (Tcpt, 2 February 2024, p 85(35)-p 86(6)):

“SHERRINGTON: …The final point I want to make about those documents is that the material is not before your Honour. The respondent considers that because the documents relate to one of your Honour’s colleagues and the appointment process which resulted in her taking a particular office, it’s preferable that your Honour determine the matter at a level of principle rather than by looking at the particular content of the documents themselves. Accepting that the respondent still has the onus to demonstrate the public interest considerations, it relied on the affidavit of Mr O’Young, who speaks to the process that surrounds the documents and identifies where responsive information is found, in which kinds of documents. So the respondent relies on that in place of the documents themselves.

In my submission, there’s nothing in the GIPA Act which says that the respondent must file documents over which there’s a claim to be an overriding public interest. It has that option but it need not, if it considers that its not appropriate to do so.”

63. The Secretary’s submissions on Ground 3 include the following:

“The Secretary submits that this ground should be approached by considering the terms of the ADR Act, GIPA Act and Civil and Administrative Tribunal Act 2013 (the CAT Act) governing the review that the Tribunal was required to conduct, rather than by reference to some abstract label of ‘merits review’. Relevantly, it was the duty of the Tribunal ‘to decide what the correct and preferable decision is having regard to the material then before it’, including factual material and any applicable written or unwritten law: s 63(1) of the ADR Act. Whether the Tribunal complied with that duty should be assessed by reference to its reasons.

To the extent that Ground 3 is a contention that the Tribunal failed to engage in this exercise at all, that contention is inconsistent with the Tribunal’s reasons, which:

a. Expressly recognised the nature of the Tribunal’s functions, at PD [67];

b. Proceeded to conduct a review of the Secretary’s decisions by reference to the legal and factual materials lodged by the parties and the Information Commissioner, and by reference to the issues they identified, consistently with s 63 of the ADR Act.

If, on the other hand, Ground 3 alleges some specific error on the part of the Tribunal, it adds nothing to the other grounds of appeal. In that respect, the Secretary notes his submissions as to Ground 11, below.

On each basis, Ground 3 should be dismissed”

64. The task of the Tribunal, at first instance, was to determine the correct and preferable decision on the material then before it: ADR Act, s 63.

65. The Tribunal understood this task. The Tribunal stated at [67] of the Decision:

“The overarching issue in relation to each decision is whether that decision is the ‘correct and preferable’ decision and whether each decision should be affirmed, set aside or varied in some way: Administrative Decisions Review Act 1997 (NSW), s 63.”

66. In the first instance proceedings, the respondent had the onus: GIPA Act, s 105. There was no duty on the respondent, under s 58 of the ADR or any other provision, to file every document responsive to the access application: GIPA Act, s 103.

67. The Tribunal described the application for access to these documents as follows, at [170] of the Decision:

“Item 9 is for ’. . complete documents provided by Anne Britton in relation to the application of Anne Britton for the position of Deputy President and Head of NCAT’s Guardianship Division.’ Item 10 is for ’ . . . complete documents provided to the NCAT in relation to the application of Anne Britton for the position of Deputy President and Head of NCAT’s Guardianship Division.’”

68. The Tribunal identified that some of the documents had not been provided to the Tribunal but were the subject of evidence provided by the Acting Manager of the Appointment Services Team within the Law Reform and Legal Services Division of the respondent. The Tribunal set out the substance of this evidence at [173]-[185]. At [186], the Tribunal noted:

“The Respondent submits that, based on Mr O’Young’s affidavit, the responsive categories of information (whatever the form of the documents which may contain that information) are limited to the following:

(1) the list of applicants recorded in the Respondent’s SuccessFactors platform is a complete answer to Item 6;

(2) the shortlist of applicants recorded in Justice Armstrong’s letter to the Attorney General is a complete answer to Item 7; and

(3) the application made by Ms Britton (consisting of a cover letter, a CV and a completed online form containing Ms Britton’s basic personal information and qualifications) is a complete answer to Items 9 and 10.”

69. The Tribunal determined as follows, at [194]:

“I am able to understand, at least in general terms, the nature of the information that is in the documents the Respondent has identified. Mr O’Young has described the information and I have been able to infer from that evidence, and the Schedule, what the documents are and the nature of the information they contain. There is no need for me to see the names of the applicants, the names of the applicants who were shortlisted for interview or Ms Britton’s application to understand the Respondent’s evidence or submissions or to make a decision.”

70. No basis has been suggested as to why the description of the information provided to the Tribunal was inadequate for the Tribunal to perform its statutory task. The Tribunal explained why it was satisfied that it was seized of sufficient information to perform its task, and we discern no error in the approach. We do not discern error in the mere fact that the Tribunal did not see the documents themselves. An access application seeks access to information, not documents: GIPA Act, s 9(1). The nature of the information was disclosed to the Tribunal.

71. Further, we do not consider that the mere fact that the Tribunal used a description of the information meant that the Tribunal abdicated its responsibilities; the Tribunal did not “delegate” its task, as submitted. In the result, the Tribunal did not agree with the agency’s decision, at least with respect to Item 10; and was able to do so on the information at hand.

72. Another example where the Tribunal is said not to have all the documents before it is in relation to the CCTV footage (Items 1-5 of the first access application), which was said to have been destroyed. Here, the appellant relied on a guideline from the “NSW Government” in relation to the “State Archives and Records”. The document bears the date “14/09/2021, 09:14”, although it is not clear whether this is the date of creation, amendment, or access, of the document. The document states:

“Purpose These guidelines have been prepared for personnel in New South Wales public offices who are responsible for arranging the destruction of State records as part of a program of authorised records disposal in accordance with Part 3 of the State Records Act 1998

SCOPE

These guidelines provide practical advice on the physical destruction of hardcopy and digital records”.

73. The policy also provides “when undertaking the destruction of records, it is necessary to ensure that: … there is documentation identifying which records have been destroyed, when they were destroyed, how they were destroyed and under what authority…”.

74. Accordingly, it is apparent that the policy provides that when the Secretary destroys a document, the Secretary must leave a record of the destruction. The appellant submitted that, according to the policy document, “the destruction of all records must be appropriately documented. Proof of destruction may be required in legal proceedings or in response to government information, public access requests”.

75. As the Secretary had decided that the CCTV footage was “not held by the agency” under s 58(1)(b) of the GIPA Act because the footage had been overwritten in line with the general rule of the NSW Sheriff’s Office (Decision at [72]-[80]), the appellant submitted that there ought to be a record of the destruction of the CCTV footage, which the Secretary could produce to prove that the CCTV footage had indeed been destroyed, and when.

76. Outside of evidence of a destruction log, the Tribunal indeed had evidence of the destruction of the CCTV footage, in the form of an affidavit of the Deputy Sheriff of the NSW Sheriff’s Office. Notwithstanding that the Tribunal was exercising administrative review, this does not dictate the nature of the evidence that the Tribunal must see in order to make findings of fact. There is no prescription as to what evidence can or should satisfy the respondent’s burden under s 105 of the GIPA Act; there is no statutorily mandated approach.

77. There is nothing to suggest, from this example, that the Tribunal was not considering the correct and preferable decision on the material before it. The Tribunal may inform itself as it sees fit: NCAT Act, s 38. There was nothing illogical or impermissible in the fact that the Tribunal did not have other evidence of the destruction of the CCTV footage.

78. We are not satisfied that these examples suggest an error in approach by the Tribunal, or that the Tribunal was not exercising administrative review.

That the Tribunal purportedly asked itself the wrong question

79. This aspect of Ground 3 concerns Item 1 of the first access application, the CCTV footage of an earlier Tribunal hearing.

80. The alleged error is said to be contained at [130] of the Decision (Tcpt, 16 September 2025, p60(43)). The Tribunal said at [130]:

“In this case, Ms Wojciechowska did not nominate a particular way in which she sought access to the information. That means that the Respondent did not have to provide access in a particular way and s 72(2) was not engaged.”

81. The appellant submitted that the Tribunal asked itself the wrong question because it approached this aspect of the decision on the mistaken premise that the appellant did not seek a copy of the CCTV footage. The appellant contends that she had not sought view access only. The appellant also submitted that s 72(2) of the GIPA Act requires the Tribunal to give reasons for why the manner of access sought by the appellant is not provided, and that this has not been done.

82. The Secretary accepted that it is “not in dispute” that the appellant sought a copy of the CCTV footage, however, submits that there is no error in the approach of the Tribunal.

83. Ultimately, we discern no error in her Honour’s consideration of the issue. The Tribunal has not asked itself the wrong question. The Tribunal was not proceeding on the mistaken premise that the appellant did not want a copy of the CCTV footage, but rather, the correct premise that no specific form of access had been requested. In the circumstances confronting her Honour, it was entirely orthodox to consider view-only access. The decision to provide view-only access was a product of first deciding that there was an overriding public interest against disclosure, and then subsequently deciding that this could be ameliorated by making the access view-only.

84. The reasons of the Tribunal at [148]-[149] make this plain:

“The general public interest consideration in favour of disclosure should be given significant weight. However, the public interest considerations against disclosure based on the secrecy provisions and disclosure of personal information outweigh the considerations in favour of disclosure. There is an overriding public interest against disclosure.

However, if the form of access is by providing a reasonable opportunity to ’inspect the record’ (s 72(1)(a)) ’together with such facilities as may be necessary to enable the information to be viewed’ (s 72(1)(c)) and if a condition is imposed that prevents Ms Wojciechowska from making notes from or taking a copy of the record (s 73(2)), that will avoid there being an overriding public interest against disclosure of the information. The CCTV footage will not be at risk of being widely distributed on social media or otherwise.”

85. Ground 3 is dismissed.

Grounds 4 and 5

86. Grounds 4 and 5 of the amended grounds of appeal are as follows:

“4. Denial of procedural fairness by virtue of apprehended bias, no notice and no evidence (incl. as to confidentiality).

5. The tribunal at the division level erred in allowing the respondent to rely on the unserved materials and materials served unreasonably late.”

87. We have grouped together these grounds, as they raise overlapping questions.

Ground 4 – as it relates to a recusal application

88. The first aspect of Ground 4 concerns a recusal application for apprehended bias made by the appellant during the course of the first instance hearing, which was refused by the Tribunal.

89. A decision made where there is proved to be apprehended bias constitutes jurisdictional error rendering the decision invalid regardless of the effect the bias had on the decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [6]. Whether proceedings are vitiated by bias raises a question of law; which goes to process.

90. To make out a case of apprehended bias, it is necessary to satisfy the objective “double might” test: “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]). This requires the identification of what it is said might lead the decision-maker to decide the case other than on its legal and factual merits and also the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner at [8].

91. Other than vague references to what might be described as unequal treatment concerning allowances for extensions of time and receipt of evidence, the appellant’s contentions of bias were not particularised.

92. The Secretary submits:

“Ground 4 ought to have been fully particularised, especially where the respondent has objected to it on the basis that it is vague and embarrassing. But no submission was advanced why Deputy President Hennessy should have disqualified herself, except in the vaguest terms. The Appeal Panel should refuse to entertain a bias ground on such a basis.”

93. We find that particulars were indeed lacking from the submissions of the appellant. Having regard to the principles referred to above, a contention of bias must be precisely articulated. Without the particulars, the ground is incapable of being made out: FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120 at [31]-[32] citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8].

94. In this case, we have not been able to discern the logical connection between the asserted facts or circumstances, and the apprehension of bias. Nor have we been able to discern a reason for suspecting that the Tribunal had a closed mind.

95. To the extent that Ground 4 rests on apprehended bias, it is dismissed.

Grounds 4 and 5 – the manner of service and confidential documents

96. Leaving aside the issue of bias, considered above, these grounds relate to the timing and manner of service, and non-service, of the Secretary’s material. It can be seen to raise the question whether there was a material breach of procedural fairness: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1] (Kiefel CJ, Keane and Gleeson JJ), [45] (Gageler J); LPDT at [12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). This raises a question of law; that goes to process.

The submissions

97. The appellant contended that the proceedings before her Honour were “null and void” because the appellant had no notice that the Secretary intended to rely on material that would not be served upon her. The material in question was the material over which the Secretary claimed there was an overriding public interest against disclosure (the confidential material). Further, the appellant submits that the Tribunal misconstrued s 107 of the GIPA Act by not first determining that there was in fact an overriding public interest against disclosure, before treating the materials as confidential.

98. Another aspect of this is that the appellant contends an application under s 107(3) of the GIPA Act was never made by the Minister to the Tribunal at first instance (as required by the terms of s 107 of the GIPA Act).

99. The appellant further contends, in respect of the other material relied upon by the Secretary (the open material), that she had not been served in a timely fashion, nor served in accordance with the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). This precluded her, so it was said, from being given a reasonable opportunity to be heard.

100. The appellant submits that due to deeming provisions for service by post (NCAT Rules, r 13(4)), as the Secretary posted the materials on 18 January 2024, the date of service should be 26 January 2024 (the end of the seventh working day after posting); and not, as the Tribunal found, 23 January 2024. We pause to note that the seventh working day after posting on 18 January 2024 would be 30 January 2024. This would mean that, unless the contrary is proven, the materials were deemed to have been served only two working days before the hearing (held on 2 February 2024).

101. Paired with this, the appellant contends that she was denied procedural fairness, because she was prevented from filing her own affidavit to show when the service was in fact effected. The appellant also submits that there was “no evidence” for the Tribunal to find that service was effected on 23 January 2024 (Tcpt, 12 February 2026, p 45(8)).

102. As to the contentions in relation to confidential material and s 107(3), the Secretary submits that either the Minister or the agency may make the application (Tcpt, 12 February 2026, p 51(16)-(18)). Further, so it was submitted by the Secretary, that although the “agency” under s 107(3) is the Department of Communities and Justice and not the Secretary, nothing “turns on that” (Tcpt, 12 February 2026, p 51(18)).

103. The Secretary submits that the orders of the Tribunal in regards to the open and confidential material should be upheld for the reasons stated by the Tribunal.

104. Additionally, in the reply to appeal (and the amended version responsive to the appellant’s amended grounds of appeal), the Secretary ticked “yes” in the box at item 3.A. This operates as a notice that the Secretary supports the orders of the Tribunal on another or additional basis. The Secretary submits that the finding of the Tribunal that the Tribunal had not breached the hearing rule of procedural fairness (Decision at [63]) should be upheld, on the following alternative bases:

105. “on the facts found by the Tribunal, that Ms Wojciechowska had been served with the respondent’s ‘open material’ in accordance with the Civil and Administrative Tribunal Rules on 23 November 2023 (rather than on 23 January 2024, as found at [51]); or, in the alternative

106. that effective informal service of the ‘open material’ on Ms Wojciechowska occurred on 23 November 2023.”

The Tribunal’s decision regarding the service of material

105. With respect to the confidential material, the Tribunal acknowledged that, ordinarily, a party can expect to have access to all the material to be considered by the decision-maker. However, the rules of procedural fairness may be modified, and have indeed been modified under the GIPA Act, wherein the general rule is that the Tribunal is to ensure that it does not disclose information over which there is an overriding public interest against disclosure. To this end, the Tribunal may close the hearing, and hear and receive argument in the absence of the public or the review applicant: GIPA Act, s 107.

106. In relation to the open material, the Tribunal summarised its findings at [6]:

“The Respondent served the open material by post in accordance with the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) when they became aware that Ms Wojciechowska did not consent to electronic service. But that did not happen until 23 January 2024, nine days before the hearing. Nevertheless, there is no procedural unfairness because of the manner in which the Respondent served the open material.”

107. In order to determine whether there was a breach of procedural fairness, the Tribunal received in evidence an affidavit from Mr Sherrington, a solicitor with the Crown Solicitor’s Office representing the Secretary, as to steps taken to serve the open material. The Tribunal refused the appellant’s application for an adjournment of a week to prepare her own affidavit regarding service, but allowed the appellant a brief adjournment to prepare for any cross-examination of Mr Sherrington as to service.

108. The evidence was to the effect that the open materials had been attempted to be served by electronic means on 23 November 2023, being two days after the date given by the Tribunal for service of the Secretary’s material, and whilst the appellant was aware that the open materials had been sent, neither the attachments nor the covering correspondence was opened or read by the appellant. No order for substituted service had been made, and it was not until 18 January 2024 that the open material was sent by post, in accordance with r 13 of the NCAT Rules.

109. The Tribunal found, by reference to an Australia Post online tracking document, that delivery to the appellant’s address was attempted on 23 January 2024 and that the letter was still awaiting collection. The Tribunal found that service had been effected on 23 January 2024, noting at [51]:

“…Proof of service by post does not require proof of personal service….”

110. The Tribunal found 23 January 2024 to be the date of service, irrespective of whether the appellant received a notice from Australia Post and irrespective of whether the material was received by the appellant.

111. The Tribunal said at [52]:

“Regardless of whether Ms Wojciechowska received a notice from the Post Office that a parcel was awaiting collection, as a matter of law, the letter has been served by post. The mode of service in Rule 13(2)(b)(i) does not require proof that the material was actually delivered to the person.”

112. The Tribunal then rejected the appellant’s contention that to proceed to hear the matter would constitute a breach of the hearing rule because the proceedings were “null and void” due either to the failure by the Secretary to serve the confidential materials at all, or because the open materials were not served in accordance with the timetable set down by the Tribunal at the directions hearing, and that she did not consent to electronic service. The Tribunal also held that the appellant had been given a reasonable opportunity to be heard, when the Tribunal had made directions as to the appellant’s filing and serving of her evidence (including statements, documents and submissions) by a particular date, which the appellant had not availed herself of; in addition to being given notice of the hearing, and allowing her to appear via AVL (Decision at [58]).

The Tribunal’s decision regarding the confidential material

113. The respondent sought to tender confidential material during the hearing. The Tribunal noted that the confidential material contained information that the respondent submits the appellant should not be given access to because there is an “overriding public interest against disclosure”, relying on s 13 of the GIPA Act (Decision at [12]). The Tribunal discussed the principles about disclosure of information for which there is an overriding public interest against disclosure, and the modifications to procedural fairness under the GIPA Act (Decision at [14]-[28]). The Tribunal concluded that the Tribunal was not in breach of the fair hearing rule by failing to make an order that the Secretary serve the confidential material on the appellant at [27]-[28]:

“Based on the text, context and purpose of these provisions, it was parliament’s intention to modify the disclosure aspect of the hearing rule of procedural fairness in relation to the service on an applicant of purportedly ‘confidential information’ (information for which there is an overriding public interest against disclosure) lodged by an agency under the GIPA Act. The Tribunal will not be in breach of the hearing rule of procedural fairness by failing to direct an agency to serve purportedly ‘confidential information’ on an applicant before the hearing. It follows that the proceedings are not null and void because of the Tribunal’s failure to make such a direction.

To comply with s 66(3)(b) of the NCAT Act, the Tribunal may make an order under s 64(1)(d) of the NCAT Act prohibiting disclosure to the applicant of the content of confidential information lodged with the Tribunal.”

114. Furthermore, the Tribunal found that the proceedings were not “null and void” by reason of the respondent’s failure to serve the appellant with the confidential material.

115. The Tribunal found at [59], [60] and [62]:

“59 Despite being given a reasonable opportunity to be heard or otherwise have her submissions considered, Ms Wojciechowska did not take advantage of that opportunity.

60 The first and major reason Ms Wojciechowska did not take advantage of that opportunity was her view that the proceedings were null and void because of the Respondent’s failure to serve the confidential material. Ms Wojciechowska was self-represented but she has extensive experience with Tribunal proceedings under the GIPA Act. She knew that that submission would put the hearing at risk but she chose not to make any express submission about it until the day of the hearing. She does not have a good reason for failing to do so.

…

61 I was not persuaded by her informal evidence that fear of criticism or an assumption that the Respondent knew that they should not communicate by email were sufficient reasons for Ms Wojciechowska not taking advantage of the opportunity to be heard. She knew that doing nothing would put the hearing at risk and waste the Respondent’s and the Tribunal’s resources. Once the time had come for her to file and serve her material, she should have contacted the Tribunal to advise that she could not do so because she had not yet received the Respondent’s confidential material or the Respondent’s open material by post. She does not have a good reason for failing to do so.”

116. It is also relevant to mention, under this heading, one final matter. It is apparent that the Tribunal did not make a non-publication or non-disclosure order pursuant to s 64 of the NCAT Act. The Secretary submits that the Tribunal intended to make such an order, but overlooked doing so (Tcpt, 12 February 2026, p 10(7)). The appellant, however, submits that this was not a mere oversight by the Tribunal, but rather, that the appellant “won” her argument; she “explained to Deputy President Hennessy why she cannot make those orders and she didn’t make…that’s my win” (Tcpt, 12 February 2026, p 10(14)-(17)).

Identification of the questions of law that arise

117. We have discerned the following questions of law (other than in relation to bias, which has already been discussed):

118. First, whether the Tribunal misconstrued s 107(3) of the GIPA Act, either:

(a) by treating the materials as confidential before determining that there was an overriding public interest against disclosure; or (b) by accepting that there had been an application made in accordance with s 107(3) of the GIPA Act.

2. Second, whether there was a material breach of procedural fairness for the Tribunal to proceed to hear and determine the matter when the confidential material was not served on the applicant.
3. Third, whether there was a material breach of procedural fairness for the Tribunal to proceed to hear and determine the matter when the open material was not served on the applicant at all or in a timely fashion. In relation to this question, we note that this question proceeds on a disputed fact as to when the open materials were served. However, we consider that this does not deny the question its character as a question of law, as the disputed fact is a procedural fact, not a substantive fact. As discussed in Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127 at [34] citing Donohoe v Albulario [2025] NSWSC 9 at [33] (Basten AJ) there is an exception to the general principle that questions of law do not concern disputed facts, when that fact is procedural and not substantive. Another aspect of this question is whether the Tribunal erred in refusing the applicant time to adduce evidence as to actual service.

Determination of the questions of law arising under Grounds 4 and 5

118. We start with the questions concerning the confidential material. It is useful to recall that by the expression “confidential material”, we are referring to the material for which an application under s 107 of the GIPA Act had been made, on the grounds of a claim by the Secretary of an overriding public interest in disclosure.

119. To this end, we see it is of no moment that the Tribunal omitted to make a confidentiality order under s 64 of the NCAT Act. This material was plainly treated by the Tribunal as subject to an application under s 107 of the GIPA Act, as reflected in their being referred to as the “confidential material”: Decision at [12], [14]-[27].

120. Section 107 provides as follows:

107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of—

(a) the public and the applicant, and

(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

121. The appellant contended that the Tribunal erred in its construction of s 107, submitting that the proper construction is that the Tribunal must first determine whether there is an overriding public interest against disclosure and, only if so, apply s 107 to prevent disclosures to the applicant.

122. However, contrary to the appellant’s submissions, to allow materials, which may be subject to an overriding public interest against disclosure, to be disclosed, before it has been determined that there is not an overriding public interest against disclosure, would be to act contrary to s 107. The Tribunal would not be acting to preserve confidentiality, but rather, acting in disregard of it.

123. No error is discerned in the approach of the Tribunal to treating the materials as confidential materials, before concluding there was an overriding public interest against disclosure.

124. Insofar as the appellant contends that no application in accordance with s 107(3) of the GIPA Act was made, we note that s 107(3) allows the application to be made by an “agency”. Here, the respondent, who made the application, was the Secretary.

125. The Secretary submitted that although the “agency” under s 107(3) is the Department of Communities and Justice and not the Secretary, nothing “turns on that” (Tcpt, 12 February 2026, p 51(18)).

126. Section 4 of the GIPA Act provides that an “agency” includes a “Public Service agency”, which is defined in Schedule 4 of GIPA Act as a “Public Service agency under the Government Sector Employment Act 2013” (the Employment Act). Under the Employment Act, a “Public Service Agency” includes, in s 4, a “Department” which, in turn, is defined in Schedule 1 of the Employment Act and includes the Department of Communities and Justice. Pursuant to s 23 (1) of the Employment Act, the head of a Department is the Secretary of a Department. Therefore, the respondent is the head of the Department of Communities and Justice.

127. Accordingly, we find that the respondent was both authorised to make, and did in fact make, an application under s 107(3) of the GIPA Act. No error in the Tribunal’s approach is discernible in relation to this aspect of the appeal.

128. There is no error on the first question of law.

129. As to the second question of law, what we have said above explains why there is no error. Further, as found at first instance (Decision at [27]), Parliament, by enacting s 107, authorised the Tribunal to depart from the ordinary position that parties may expect to receive all the materials on which the decision-maker will make their decision. That departure is a necessary feature of the GIPA Act, to preserve the overriding public interest against disclosure: Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286 at [46]; Forbidden Foods Pty Ltd v Rice Marketing Board for the State of NSW (No 2) [2020] NSWCATAD 73 at [28]. To follow the GIPA Act does not disclose error in the approach taken by the Tribunal.

130. In the absence of a challenge to the effect that s 107 of the GIPA Act was not relied upon in good faith (and we do not apprehend such a contention was made insofar as these grounds are concerned) then, in the face of s 107, the Tribunal’s determination to receive the confidential material and proceed to hear and determine the application for administrative review, without those materials being served on the appellant, is unassailable.

131. The appellant also contended that the word “necessary” in s 107(3)(b) points to a construction of s 107 where “the tribunal should strive to provide procedural fairness as much as is possible” (Tcpt, 12 February 2026, p 46(30)). For instance, “if there is a list of documents lodged with the tribunal, that list of documents should be provided to me, unless the decision made by the agency is to neither confirm nor deny that even information exists” (Tcpt, 12 February 2026, p 46(31)-(34)). The appellant contended, in effect, that even where s 107 is engaged, “as much procedural fairness as is possible” should be afforded “so that I have some kind of voice in the proceeding” rather than the Tribunal proceeding without input from the appellant (Tcpt, 12 February 2026, p 46(49)).

132. Whilst we accept that the word “necessary”, as it appears in s 107(3)(b), supports the appellant’s proposition that as much procedural fairness as possible should be afforded whilst preserving any overriding public interest against disclosure, we do not discern error on any question of law. To the extent this raises a question of fact, we would not grant leave, as we do not discern more than arguable prospects, and no question of principle arises.

133. There is no error in the second question of law.

134. With respect to the third question of law, the finding of when the open materials were served is decisive. Contrary to the appellant’s submission, there was indeed evidence to support the finding that the date of service was 23 January 2024. This was the record from Australia Post. This is the position, notwithstanding that there may have been evidence available which showed that the notice from Australia Post did not come to the appellant’s attention and therefore it was not until 30 January 2024 that the materials were deemed to have been received. The NCAT Rules specify that a document may be served on or given to a person by posting a copy of the document to the person’s address for service: NCAT Rules, r 13(2)(b)(i). The deeming provision under the NCAT Rules whereby a posted document is taken to be served at the end of the seventh working day after the date on which the document was posted only applied where the contrary has not been proven: NCAT Rules, r 13(4)(a). The Tribunal accepted the Secretary’s evidence, by way of the Australia Post notice, that the document had been attempted to be delivered to the appellant on 23 January 2024, and was, subsequent to the failed delivery, awaiting collection (Decision at [48]-[52]). The Tribunal noted that the mode of service in r 13(2)(b)(i) of the NCAT Rules does not require proof that the material was actually delivered to the person (Decision at [52]). That interpretation of r 13(2)(b)(i) accords with a plain reading of the provision, and we were not directed to any basis grounded in the context or scope of the provision to suggest such a construction was incorrect. We were not directed to a persuasive basis to disturb the conclusion that service, under the NCAT Rules, is effected by posting, and not by receipt.

135. The requirements of procedural fairness concern reasonable opportunities. In the circumstances of this case, the appellant was on notice, from 23 November 2023, that the respondent relied on open materials and was attempting to serve them. We therefore find that there was no breach of procedural fairness; the appellant had been given an opportunity to consider the open materials.

136. In any event, to ground an error on a question of law, a breach of procedural fairness must be material, in the sense that had the condition not been breached the outcome could have been different: Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 at [46]-[60]; Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [43] .

137. Even if we were to accept that service was not deemed to have occurred until 30 January 2024, rather than some earlier time, it cannot be said that the breach was material. That date was still ahead of the scheduled hearing, of which the appellant had adequate notice. Further, the appellant became aware of the existence of the open materials when the respondent emailed her on 23 November 2023, even if she had not read the materials: Decision at [44], [61].

138. Notwithstanding the appellant’s submitted reasons for not taking the steps of seeking an adjournment at an earlier point in time, the steps were not taken. We do not apprehend (or accept, if that is indeed how high the submission was put) the appellant saying that this is a case where steps could not have been taken either to seek an adjournment or to consider open materials. We are therefore not satisfied that, “but for the breach”, the outcome could have been different.

139. The Tribunal accepted that the appellant was entitled to withhold consent to electronic service under r 13(2)(g) of the NCAT Rules (Decision at [36], [46]), but found that the appellant did not apply for an adjournment for the purposes of reviewing the open materials and preparing responsive materials or submissions once she was aware of the existence of the open materials existence: Decision at [59]-[64]. Further, the appellant did not at the hearing at first instance apply for an adjournment. Her argument was that the proceedings were null and void. Even though not expressly sought, the Tribunal considered granting an adjournment, but declined to offer an adjournment, as the appellant was already provided with a reasonable opportunity, and to grant so late an adjournment would have been both prejudicial to the respondent and unnecessarily consume the Tribunal’s resources: Decision at [65]-[66]. This, too, points to the late service not being material to the outcome.

140. In any event, we are satisfied that there was no breach of procedural fairness. There is no error on the third question of law.

Conclusion in relation to Grounds 4 and 5

141. Grounds 4 and 5 are dismissed.

Ground 6

142. This ground provides as follows:

“6. Failure to make final orders or in the alternative, making indeterminate orders.”

143. This relates to two of the orders made by the Tribunal in relation to the second application:

“(f) Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent’s implied decision that it does not hold information responsive to Item 10 is remitted to the Respondent for reconsideration in accordance with these reasons.

(h) Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent’s decision not to give access to Ms Britton’s CV is remitted to the Respondent for reconsideration in accordance with these reasons.”

144. We note that order (h) relates to Item 9 insofar as it includes the CV. Item 10 concerned documents provided to NCAT in relation to the application for the position of Deputy President and Head of NCAT’s Guardianship Division.

145. The appellant stated in oral submissions that she was “not questioning with item 10 that its incorrect, that it was set aside, that’s correct.” (Tcpt, 16 September 2025, p 64(22)). It appears that she also did not seek to question the correctness of order (2)(h) with respect to Item 9 Ms Britton’s CV.

146. For the purposes of this appeal, the appellant contended that orders for remittal (orders 2(f) and 2(h)) constitute “[i]ndeterminate order[s]” which have fragmented the appeal process. This was exemplified, so it was submitted, by the fact that at the time of the appeal hearing, the respondent had not yet made a decision on the remittal. The appellant submitted that making both final and indeterminate orders was problematic, in that if she were to seek to appeal the final order, as well as the new decision made by the administrator following remittal, she would have to do so by filing multiple notices of appeal, or seeking to amend any initial notice of appeal.

147. The respondent accepts that this ground raises a question of law, however submits that it should be rejected, as the Tribunal’s orders 2(f) and 2(h) involved “an orthodox use of the power contained in s 65 of the ADR Act”, and “are not in any sense uncertain, although they do not finally determine the applicant’s application”.

148. As this ground concerns interlocutory decisions, the appellant requires leave to proceed even if it contains a question of law. We see that the questions raised may have some public importance, as the power under s 65 of the ADR Act is often used by the Tribunal. However, here, we do not see sufficient prospects of success to warrant granting leave to appeal. The appellant has not pointed to why the use of the remittal power was unorthodox or misconceived.

149. Leave to appeal on Ground 6 is refused.

Grounds 7 and 11

150. Ground 7 is as follows:

“7. The agency failed to discharge the onus of proof.”

151. Ground 11 is as follows:

“11. In the alternative to ground (2), the DCJ did not provide the Tribunal at the division level with all the documents relevant to the merits review.”

152. We have grouped these grounds together, as they both contend that the Secretary was required to, and failed to, provide the Tribunal with all relevant documents. To the extent that questions of law arise, they are the same questions that we considered above in the context of Grounds 2 and 3 above.

153. The additional issues do not raise questions of law.

154. The question of whether the respondent discharged his onus, seen through the prism of the question of law that concerns whether the Tribunal impermissibly did not exercise administrative review, has already been considered. Outside of that, the question of whether the respondent discharged his onus under s 105 of the GIPA Act is one of fact, or mixed fact and law.

155. Similarly, outside the question of whether the Tribunal did not exercise administrative review because it did not have certain documents, the ground, insofar as it concerns an absence of documents, does not raise a question of law.

156. These grounds, to the extent they go beyond what was discussed in relation to Grounds 2 and 3, require leave to appeal. However, we are not satisfied that there is a warrant to grant leave to appeal on the broad question of whether the respondent discharged his onus or whether the Tribunal determined issues on the evidence before it. These questions require an entire re-run of the appellant’s case, which is not appropriate on an appeal: Marjanac v Plavsic [2014] NSWCATAP 63 at [29]; MS Noun Construction Pty Ltd v Baker [2022] NSWCATAP 251 at [17]. There is no identifiable question of principle or matter of public importance beyond this case.

157. Leave to appeal on Grounds 7 and 11 is refused.

Ground 8

158. Ground 8 provides as follows:

“8. No power to receive evidence and materials not provided to the applicant.”

159. At the heart of this ground is the contention that the Tribunal had no power to receive the confidential materials to the exclusion of the appellant. In essence, it proceeds on the assumption that s 107 of the GIPA Act was not engaged. However as detailed above in relation to Grounds 4 and 5, this is a false premise. To the extent that it raises questions beyond the questions of law considered above, it requires leave, and no warrant for the grant of that leave is discernible.

160. Leave to appeal on Ground 8 is refused.

Ground 9

161. Ground 9 provides as follows

“9. Error in holding that any of the three applications to the agency (or their parts) were invalid.”

162. The appellant clarified in oral submissions that this Ground relates to the third access application only (Tcpt, 16 September 2025, p 59(31)-(41)).

163. To put this part of the appeal in context, it is relevant to note that the third access application sought access to 36 Items. The government information was identified as coming from a range of different sources, and concerned a range of different individuals and subject matters. For example, Items 9-14 sought information contained in documents associated with a job application, whilst Items 15-19 sought documents described as follows (Decision at [273]):

“Complete, unredacted and otherwise unedited copies of complete, unredacted and otherwise unedited texts of all complete, unredacted and otherwise unedited ROPs entered in Wojciechowska v Commissioner of Police, NSW Police Force (Local Court number 2021/102332) including but not limited to those entered online.”

164. The agency had initially treated the application as invalid on the grounds that information reasonably necessary to enable “all” of the government information applied for to be identified, had not been included, relying on s 41(1)(e) of the GIPA Act. As the agency determined the access application to be invalid, the obligations under s 52 arose, which required the agency to provide assistance to the appellant. The agency wrote to the appellant, conveying the decision and identifying the parts of the application where further information was required before the application could be regarded as valid (Decision at [259]). The agency ultimately decided it did not have sufficient information to identify all the government information sought, and notified its decision to continue to treat the application as not being a valid application. However, as the appellant sought administrative review of the initial decision that the third access application was invalid, and not the internal review which confirmed that the application was invalid, it is the initial decision which was the subject of the administrative review to the Tribunal (Decision at [263]). Nonetheless, the Tribunal was able to take into account further material lodged by the respondent, including in the internal review decision and written submissions in the course of the proceedings below, in order to decide the correct and preferable decision as at the date of the hearing (Decision at [263]).

165. The Tribunal found that with respect to some of the items, sufficient information had indeed been given (for example with respect to Items 9-14) (at Decision at [272]) but not with respect to others, including Items 15-19 (Decision at [276]).

166. With respect to an issue that arose about whether validity depended on an objective question of fact, which her Honour found to be the case, her Honour also said as follows (Decision at [255]):

“Either the access application includes such information as is reasonably necessary to enable the government information applied for to be identified or it does not include such information.”

167. At [283], the Tribunal concluded as follows:

“An insufficiently specific portion of an access application cannot be severed from the remainder of the application to make other parts of it valid: Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 at [42].”

168. The appellant submits that the decision of Hennessy ADCJ reflected in order 3 in relation to the appellant’s third application is “incorrect”, which the appellant submits relates to Ground 9 of the amended grounds of appeal (Tcpt 16 September 2025, p 59(40)). Recalling that Ground 9 provides, in terms:

“9. Error in holding that any of the three applications to the agency (or their parts) were invalid.”

169. Order 3 of the Decision is as follows:

“(3) In relation to Ms Wojciechowska’s third application I make the following order:

(a) The Respondent’s decision that the third access application is not a valid access application is affirmed.”

170. The appellant submits that Order 3 is incorrect for four reasons:

171. First, the third access application should not have been determined invalid in its entirety just because one or more of the items contained in it were invalid.

172. Second, it is not the “correct and preferable decision” that the use by the appellant of the abbreviation “ROP”, without explanation of what it stood for, caused the “whole application” to be invalid (Tcpt, 16 September, p 58(44)-(46)).

173. Third, that “under [the] GIPA Act actually the agency’s obliged to assist a person” (Tcpt, 16 September 2025, p 58(50)-p 59(0)).

174. Fourth, the orders were incorrect having regard to the agency’s duties under the principle of good government.

Questions of law raised by Ground 9

Misconstruction of the statute

171. As to the first issue, this raises the question of law of whether the Tribunal misconstrued the statute by holding that a valid access application required an applicant to have provided the information reasonably necessary to enable “all” the government information applied for to be identified, when the GIPA Act allows for the possibility of severance of unclear or ambiguous parts.

172. A question of construction raises a question of law: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [66]; (2020) 275 FCR 385 cited in Unique at [32(2)].

173. The appellant acknowledges that the Tribunal’s decision is consistent with Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 (Zonnevylle); however, contends that the Court of Appeal in Wojciechowska v Secretary CA overturned Zonnevylle. The appellant notes that in arriving at the construction it did, the Appeal Panel in Zonnevylle noted at [43] that the context in which s 41(1)(e) of the GIPA Act was to be construed was that it was to provide certainty as to when the “legally enforceable right” to be provided with access to information arose. The appellant contends that in Wojciechowska v Secretary CA, the concept of the “legally enforceable right” was overruled.

174. We pause to consider the context to Wojciechowska v Secretary CA. The Court of Appeal in Wojciechowska v Secretary CA was considering a contention that the Tribunal, in conducting an administrative review of a decision under the GIPA act, was exercising judicial power. One submission in support of that contention was that an application in the Tribunal for review of a decision under the GIPA Act is to vindicate a “legally enforceable right” pursuant to section 9(1) of the GIPA act. Justice Kirk, with whom Mitchelmore JA and Griffiths AJA agreed, held that too much emphasis had been placed on the so-called “legally enforceable right”. The right under s 9(1) of the GIPA Act could not be described as a property right or a pre-existing distinct legal right, as it was a right firmly grounded in the statute, where an access applicant was to be provided with access to the information in accordance with Pt 4 of the Act. Accordingly, the legally enforceable right refers to a claim for access being enforceable by the processes set out in the statutory scheme, and not an independent legal right, which would tend to suggest the Tribunal was exercising judicial power.

175. Contrary to the submission of the appellant, we do not see that any doubt was placed on the conclusion in Zonnevylle by reference to what was said by the Court of Appeal in Wojciechowska v Secretary CA about the scope of the “legally enforceable right” under the GIPA Act. The decision in Wojciechowska v Secretary CA does not lead us to doubt the decision of Zonnevylle. In the absence of any other specific errors being raised, we see no reason to depart from what was said in Zonnevylle. In Zonnevylle, an appeal panel concluded, after a thorough review of the legislation and applying sound principles of statutory construction, that a valid application must include such information as is reasonably necessary to enable “all” the government information applied for to be identified: Zonnevylle at [42].

176. Accordingly, no error on a question of law arises in relation this.

Failure to undertake searches not a failure of certainty

177. The Tribunal found that the Secretary was “unable to identify the meaning of the acronym ROP without more contextual information”, and accordingly, that the access application did “not include such information as is reasonably necessary to enable the government information applied for to be identified” (Decision at [276]).

178. The second issue concerns the question of whether the failure of the applicant to identify the meaning of the acronym “ROP”, used in Items 15-19 of the second access application, necessarily meant that the applicant had not provided all the information as is necessary to enable the government information to be applied.

179. The premise of this question is that the respondent knew of several meanings of the acronym ROP, and therefore could and should have undertaken searches, rather than treat the application as invalid because the particular use of ROP was not specified. As identified in the Decision (at [274]), the acronym is known by the Secretary to be used in several contexts including: Restriction of Privileges, Rules of Procedure and Record of Proceedings (the three meanings).

180. To the extent that this question is that, on the basis of the undisputed fact that the respondent understood ROP to have at least the three meanings, then whether the failure of the appellant to provide the precise meaning did not cause the application to be invalid, raises a question of law. This is because the question is that, on undisputed facts, the application necessarily could not satisfy the statutory description of an invalid application for lack for information. Whether the facts as found necessarily satisfied the statute, or necessarily did not, raises a question of law: Unique at [32(5)] citing Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139 at 156; Hope v Bathurst City Council (1980) 144 CLR 1 at pp 7 and 10; [1980] HCA 16; Australian Gas Light Co v Valuer‑General (1940) 40 SR (NSW) 126 at 138; Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 at [9]-[13], [23(5)].

181. This is so, although the question may appear on its face to raise a mixed question of fact and law. As the question relies on the undisputed fact that the agency was aware that the acronym was an abbreviation for the three meanings, we accept that it indeed raises a pure question of law, and that whilst this is a challenge to a finding of fact (that not all reasonably necessary information had been provided to identify all the government information), it is one of the rare exceptions to the rule that challenges to findings of fact do not raise questions of law: Unique at [32(5)].

182. In Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, Hill J noted at 16 as follows:

“The rule that a question of fact is involved in determining whether facts fall within the meaning of a word once that meaning is ascertained, may cause confusion. The confusion comes about because there are actually two related rules, the distinction between which is not always readily apparent. The first of these rules is generally expressed as being that where the facts have been fully found or there is no dispute as to the facts and the question is whether those facts necessarily fall within the description of a word or phrase in a statute, that will be a question of law. This is the sixth proposition enunciated by [Jordan] CJ in the Australian Gas Light Co case. The rationale for this principle is clear enough. If only one meaning is open but a tribunal arrives at a different meaning, underlying the Tribunal’s conclusion must be an error of principle, that is to say, an error of law.

The second related principle is that where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree.”

183. In essence, the appellant’s argument is that the only demurrer to the third access application satisfying the statutory preconditions for a valid application was the absence of particularisation of the meaning of “ROP”. However, it is submitted that this demurrer must fail since, on the undisputed facts, the agency was aware of several meanings of “ROP”, and it was therefore unassailable that all reasonably relevant information had been provided; indeed, the agency could provide access to the information responsive to all meanings of “ROP”. Therefore, so it is submitted, the lack of particularisation as to the meaning of “ROP” was relevant to the question of the breadth of the necessary searches, rather than the validity of the application.

184. Nevertheless, we are satisfied that there was no error on a question of law in this regard. First, the agency was not admitting to knowing what the applicant meant by “ROP” only that the abbreviation was known to them; and problematically, it was known to them in several different contexts. Second, to provide access to information concerning “ROP” in a context different to what was sought would be to provide additional and different information to that sought. There could be no certainty that access to the information so provided was responsive to the third access application.

Duty to assist

185. The third issue concerns the agency’s obligation to assist an applicant under s 52 of the GIPA Act. As explained at first instance, at [258]:

“Where an access application is determined to be invalid, the obligations in s 52 arise.”

186. Section 52 of the GIPA Act, relevantly provides as follows:

52 Agency assistance with invalid applications

(1) The notification of an agency’s decision that an application is not a valid access application must—

(a) include a statement of the reason why the application is not a valid access application (including reference to the relevant provisions of this Act), and

. . .

(c) if a reason is failure to provide required information, invite the applicant to provide the information, and

(d) notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application.

(2) The application becomes a valid access application if the applicant pays the required fee or provides the required information (as appropriate), and is then deemed to have been made when the fee or information was received by the agency.

(3) An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application.

187. The appellant submits that if the agency can “understand something”, they should “just give it to people” (Tcpt, 16 September 2025, p 57(13)-(18)). This is so, “especially [if] it’s beneficial legislation and it’s meant to facilitate access to government information for anyone, people can have literacy problems and be not extremely skilled at fine tuning items of the application” (Tcpt, 16 September 2025, p 57(15)-18)). The appellant submitted (Tcpt, 16 September 2025, p 58)(50) onwards) that:

“APPELLANT: And also I want to note that under the GIPA Act actually the agency’s obliged to assist a person. So the assistance given to me is, in my submission, insufficient, including that for instance the agency by its own admission in paragraph 51 shows that it knows what it might mean, but it never communicates this to me in anyway.”

188. The appellant submits that, as the agency knew of multiple possible terms which ROP may stand for, and the appellant denies that she was informed by the agency of these possible terms and the Tribunal did not explicitly find that the appellant was provided with the possible terms, that the agency did not comply with s 52 of the GIPA Act.

189. At heart, we see that the contention is that the agency did not fulfil its obligations under s 52 of the GIPA Act and that it flows from this that, in the absence of compliance with s 52, it is inapposite to treat the application as invalid when, had s 52 been engaged with, there may have yet been a valid application, as provided for by s 52(3).

190. However, this is not a case where s 52 was not engaged with by the agency at all. The Decision (at [259]-[260]) identifies steps taken by the agency in this regard.

191. Accordingly, the real issue is whether enough was done. We do not see that this raises a question of law. At its highest, it raises a mixed question of fact and law, which is not a question of law for the purposes of s 80 of the NCAT Act: Unique at [25(8)] citing Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 (Bathurst CJ and Bell P) at [60].

192. We would not grant leave to appeal on this issue. We have not identified an issue or principle of wider import than to this case, and do not see that there is a risk of a clear injustice, as we do not consider the contention to be more than reasonably arguable. This is consistent with the principles identified in Collins v Urban [2014] NSWCATAP 17.

Good Government

193. The appellant’s submissions are as follows (Tcpt, 16 September 2025, p 7(4)-(9)):

“APPELLANT: …we have now a new decision of High Court, New South Wales v Wojciechowska [2025] HCA 27. That could be taken as approving of Wojciechowska v Secretary of DCJ and Wojciechowska v Registrar of NCAT [2023] NSWCA 191 which says that both GIPA and PIP Act they part of good government, government administration, and obviously what NCAT is doing is also administration, and I don’t think anyone would suggest to me that which aren’t engaging in poor administration.”

194. The appellant explained further (Tcpt, 16 September 2025, p 56(47) onwards):

“APPELLANT: And then if GIPA Act as part of good government, then the correct procedure would be to say, look, we found those documents, we don’t really get what you’re on about with the rest, we don’t know what you’re talking about. That’s what we found, and then apply the public interest test, whether they propose to give it to me or not.

DEPUTY PRESIDENT SEIDEN: Yes.

APPELLANT: Rather than just say it’s invalid.”

195. The Secretary understands the appellant’s contention as: Zonnevylle has become wrong as a result of Wojciechowska v Secretary CA, NSW v Wojciechowksa HCA, or both, and that the Tribunal is exercising merits review under the GIPA Act, which it must do in accordance with the norms of good government. The norms of good government require, in this case, the Secretary and the Tribunal to address the substance of the third access application, whether or not it is invalid in a formal sense.

196. The Secretary submits that that argument should be rejected, as “nothing” in Wojciechowska v Secretary CA or NSW v Wojciechowska HCA “can be understood as calling into question the fundamental obligation of the respondent and the Tribunal to decide applications according to law”. Here, the relevant law includes the parts of the GIPA Act which relate to invalid applications which, according to the Tribunal, were correctly applied by the Secretary. The Secretary submits that it was “not open to the Tribunal, and it is not open to the Appeal Panel,” to treat Wojciechowska v Secretary CA and NSW v Wojciechowska HCA as:

“a warrant to ignore the statutory framework under which they exercise their functions in order to conform with some subjective notion of the substantial merits of the matter. In any event, the argument does not disclose a basis for doubting the reasoning in Zonnevylle.”

197. As to the contention that orders were made in error having regard to the principles of good government, we are not satisfied that this aspect was sufficiently particularised and therefore it does not raise a question of law capable of being the subject matter of an appeal on a question of law: Ferella v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 45 at [22]; Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [30]. Further, no warrant for the grant of leave to appeal has been identified. Leave to appeal on this aspect is refused.

Conclusion in relation to Ground 9

198. Ground 9 is dismissed.

Ground 10

199. Ground 10 provides as follows:

“10. Breach of s 18 of ACL by DCJ in that the DCJ supplied the appellant with the services of Sabrina Beresford.”

200. We apprehend that s 18 of the ACL refers to s 18, Sch 2, Vol 4 of the Competition and Consumer Act 2010 (Cth) which relates to misleading or deceptive conduct.

201. It is apparent that this ground relates to Items 15-19 of the third access application, which was found not to be a valid access application by the Secretary, a decision affirmed by the Tribunal (Decision at [284]) and which is also the subject of Ground 9, discussed above. The contended misleading conduct appears to relate to the agency asserting that they do not have sufficient information to treat the access application as a valid application, when they knew the three meanings of the acronym ROP.

202. The Secretary submits that Ground 10 is “misconceived on a number of levels”, including as follows:

203. “there is no conduct identified that is said to be misleading and deceptive;

204. DCJ was not engaged in trade and commerce;

205. the ACL, as an applied law of NSW, does not bind the Crown except where it carries on a business (which, in deciding access applications, the Department plainly does not do); and

206. the Appeal Panel is not a forum in which a first instance s 18 claim can be brought.”

207. Ultimately, we do not consider that this ground raises a question of law that arises on the appeal. First, it raises a mixed question of fact and law which does not raise a point of wider significance and in light of our decision in relation to Ground 9, does not suggest the existence of a clear injustice and leave would not be granted. Second, whether there was misleading and deceptive conduct is not a matter for an appeal panel in an internal appeal from an administrative review of a decision under the GIPA Act, which required the Tribunal to make the correct and preferable decision.

Ground 12

204. Ground 12 is as follows:

“12. The Tribunal at the division level erred by not considering the evidence of the applicant from behind a bar table that the privilege has been waived.”

205. This ground concerns Item 11 of the second access application, which is notes made by any employee of the Crown Solicitor’s Office of a particular case conference in which the Crown Solicitor acted for the Commissioner of Police. The Secretary claimed legal professional privilege over all of the information in the document responsive to Item 11. The Tribunal affirmed the Secretary’s decision to refuse to provide access to the information in Item 11 due to an overriding public interest against disclosure, which arose due to legal professional privilege.

206. The appellant submits that legal privilege of the note was waived by the conduct of the legal representative for the Commissioner of Police, in a later hearing in the same proceedings (which, for abundance of clarity, are proceedings separate to those before the Appeal Panel). The relevant conduct is that the legal representative, during the hearing, mentioned the existence of the note written by a different legal representative at the previous hearing in the same proceedings, as the basis for that new legal representative’s knowledge about what occurred during the hearing. It is said that the conduct of mentioning the existence of the note as the basis of his understanding of the matter, waived the legal professional privilege over that note.

207. The Secretary submits that Ground 12 does not raise a question of law.

208. The Secretary submits that there was no error in the approach of the Tribunal. The Secretary accepts that the Tribunal:

“need not always receive evidence formally, and may inform itself as it sees fit: s 38(2) of the CAT Act. In an appropriate case, it may inform itself by reference to the contents of submissions. But this was not an appropriate case, because it would have caused real prejudice to the respondent”.

The Secretary contends that he could have led further evidence in response to the contention of waiver, if he had known it was in issue, which was adverted to immediately upon the issue arising during the hearing.

209. The Secretary also submits that, aside from prejudice to the Secretary, the alleged evidence from the appellant was of little assistance to the Tribunal as it amounted to little more than a submission as to a legal conclusion (that there had been waiver of privilege), without any explanation of the facts or circumstances which gave rise to that waiver.

The Tribunal’s reasoning on Item 11 relevant to Ground 12

210. The Tribunal noted that under Sch 1, cl 5 of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege (Decision at [248], citing GIPA Act, Sch 1, cl 5). The appellant submitted during the hearing below that privilege had been waived due to reliance on its content in the proceedings (Decision at [249]). The Secretary provided the Tribunal, on a confidential basis, a letter from the NSW Police Force which advised that they objected to the disclosure of the document on the basis of legal professional privilege, and declined to waive it (Decision at [250]). The Tribunal reviewed the content of the document and was satisfied that legal professional privilege existed over the note, and that privilege has not been waived (Decision at [253]).

211. Relevantly, the Tribunal found that “no evidence was provided” for the appellant’s assertion that legal professional privilege has been waived (Decision at [249]). This lies at the heart of Ground 12; because the appellant asserts that it was her own evidence as to what occurred at the meeting and how it was now being relied upon that was relevant, and the Tribunal rejected receipt of it.

Question of law of material breach of procedural fairness

212. This ground raises a question of law of whether there has been a material breach of procedural fairness; that a key piece of evidence or submission was ignored. However, the basis for the waiver of privilege is not identified other than the new legal representative read the note and used it to inform himself of some matters. The basis of waiver from that fact alone is not explained. For instance, the gist of the legal advice is not revealed by the comment, to be contrasted by, for instance, discussion of legal advice in a council meeting paper, which was found to have constituted an implied waiver of privilege due to its discussion having revealed the contents of the legal advice, which resulted in no overriding public interest against disclosure under cl 5 of Sch 1 to the GIPA Act: Social Justice Advocates of the Sapphire Coast Incorporated v Bega Valley Shire Council [2024] NSWCATAD 279 at [44]-[45] citing Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425. No other basis is discernible.

213. Assuming there to be a breach of procedural fairness, it is not material.

214. Ground 12 is dismissed.

Ground 13

215. Ground 13 is as follows:

“13. The Tribunal at the division level erred by not considering the evidence of the respondent from a bar table that deputy president Hennessy would have a perceived conflict of interest if she were to consider the documents concerning Anne Britton.”

216. This ground is responsive to Items 9 and 10 of the second access application, and is said to raise the issue of procedural fairness. The Secretary accepts that this ground raises the question of law of whether procedural fairness was afforded to the appellant; however, submits that this ground should be rejected.

217. We apprehend that this ground is, at its heart, concerned with apprehended or actual bias. Here, the reason for the assertion of bias is to be found in the fact that Deputy President Britton and Deputy President Hennessy ADCJ are both members of the same Tribunal.

218. The appellant submitted that she asked the Tribunal to recuse herself during the hearing on the basis that Deputy President Britton and Deputy President Hennessy ADCJ are both members of the same Tribunal. The appellant sought to draw support from the fact that the Secretary relied upon an affidavit which sets out the responsive information to Items 9 and 10, rather than Items 9 and 10 themselves. This decision in the below proceedings was said by the Secretary’s legal representative to have been made as follows (Tcpt, 2 February 2024, p 85(35)-p 86(6)):

“SHERRINGTON: …The final point I want to make about those documents is that the material is not before your Honour. The respondent considers that because the documents relate to one of your Honour’s colleagues and the appointment process which resulted in her taking a particular office, it’s preferable that your Honour determine the matter at a level of principle rather than by looking at the particular content of the documents themselves. Accepting that the respondent still has the onus to demonstrate the public interest considerations, it relied on the affidavit of Mr O’Young, who speaks to the process that surrounds the documents and identifies where responsive information is found, in which kinds of documents. So the respondent relies on that in place of the documents themselves.

In my submission, there’s nothing in the GIPA Act which says that the respondent must file documents over which there’s a claim to be an overriding public interest. It has that option but it need not, if it considers that its not appropriate to do so.”

219. The Secretary also submits that the purported application for recusal the subject of this ground was not the subject of a “direct application” to the Tribunal during the hearing, and accordingly, it was “appropriate for her to disregard the inchoate allegations the way she did”.

220. The relevant passage from the hearing below is the following (Tcpt, 2 February 2024, p 87(0)-(9)):

“WOCJIECHOWSKA: And he has [unintelligible] correct, you should also recuse yourself on the basis that material related to your colleagues is before you and you are asked to decide on that as well. So that would be certainly, even Mr Sherrington could see that there is apprehension of bias and they acting like they believe it. So most definitely this is a reason why you should recuse yourself.

DEPUTY PRESIDENT HENNESSY: Thank you and I’ll hear you in detail in due course, thanks Ms Wojciechowska.”

221. Beyond the above, the appellant did not, in the proceedings below, traverse the issue of a recusal on the basis of a perceived conflict of interest with Ms Britton.

222. The Tribunal found that, as the appellant “chose not to put” her “comments” about apprehension of bias, among other things, into an application for recusal, that “it is not necessary or appropriate for me to consider them further” (Decision at [9]).

223. We consider this ground in respect to both actual and apprehended bias.

224. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng), Hayne J noted that actual bias may be occasioned by an interest in the outcome, by affection or enmity, or by prejudgment: Jia Legeng at [183] (Hayne J). His Honour set out several distinct elements underlying the assertion that a judge has prejudged or will prejudge an issue on the basis of an opinion they hold (at [185]):

225. First, there is a contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.

226. Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue.

227. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.

228. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 (Burchett J).

229. However, the contention of actual bias fails on all three hurdles identified by Hayne J. From the fact, alone, that the person who constituted the Tribunal at first instance and the person whose information was sought, are both members of the Tribunal, it cannot be assumed that the Tribunal would have a view one way or the other as to whether access to the documents should be granted. This disposes of the first two hurdles. However, more problematically for the contention, is that there is no basis to suggest that the third hurdle could be overcome. There is no basis to suggest that the Tribunal would apply its opinion without giving the matter fresh consideration in the light of the facts and arguments relevant to the case. In the result, the Secretary’s decision was not entirely affirmed with respect to these items: orders 2(f) and 2(h) of the Decision.

230. As to apprehended bias, it must be possible to state the logical connection between the asserted fact (that they are both members of the Tribunal) and the proposition that a fair-minded lay observer might reasonably apprehend that the member might not bring an impartial and unprejudiced mind to the resolution of the question. Ultimately, it is the reasonableness of the apprehension that must be assessed.

231. The “fair-minded lay observer” is a hypothetical member of the public QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [71] citing Webb v The Queen (1994) 181 CLR 41 at 52; [1994] HCA 30. They are taken to be aware of the legal, statutory and factual context in which the decision is to be made: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23]. Here the fair-minded lay observer would know of the Tribunal’s duties to accord procedural fairness: NCAT Act, s 38(2). They would know of the statutory requirements under the ADR Act and the GIPA Act (as we have already discussed above). In particular, they would know of the guiding principle under the NCAT Act, contained in s 36:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

…

229. In those circumstances, it is not reasonable to apprehend, merely from the fact that Deputy President Hennessy and Deputy President Britton are both members of the Tribunal, that a fair-minded lay observer might reasonably apprehend that the Tribunal, as constituted by Deputy President Hennessy, might not bring an impartial and unprejudiced mind to the resolution of the questions in dispute; which concern access to information in documents.

230. No error on the question of law is found. Ground 13 is dismissed.

Ground 14

231. Ground 14 provides as follows:

“14. The Tribunal below erred in holding that items 6 – 14 of Application 2 were excluded information as the Tribunal does not perform any judicial functions in respect of GIPA Act or PIPP Act applications.”

232. Although the appellant refers to the second access application, the second access application only has 10 items. We note that Items 6-14 of the first access application were dealt with together. Accordingly, we read this ground as it relates to the first access application.

233. It raises a question of construction of the GIPA Act, and therefore raises a question of law.

234. Under s 43 of the GIPA Act, an access application cannot be made to an agency for access to excluded information of the agency.

235. The Tribunal summarised the relevant provisions at [86]:

“In the definition section of Sch 4 to the GIPA Act, ’excluded information of an agency specified in Schedule 2’ means information that relates to any function specified in that Schedule in relation to the agency’. Schedule 2 to the GIPA Act is headed ’Excluded information of particular agencies’. Under the sub-heading ’Judicial and prosecutorial information’ are the words ’A court—judicial functions’. ’A court’ is defined as including ’a tribunal’ and ’a registry or other office of a court and the members of staff of that registry or other office’. ’Judicial functions in relation to a court, means such of the functions of the court as relate to the hearing or determination of proceedings before it . . .’: GIPA Act, Sch 4, cl 1.”

236. There is no suggestion that the foregoing was not correctly stated.

237. The Tribunal summarised the effect of these provisions as follows at [87]:

“The effect of these provisions is that information which ‘relates to’ such of the functions of the Tribunal that ‘relate to the hearing or determination of proceedings before it’ will be excluded information of the Tribunal. The words ‘relates to’ are ‘extremely wide’ and only require the existence of a connection or association between two things: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [87] and Betzis v Commissioner of Police [2020] NSWCATAD 71 at [33]-[36].”

238. We pause to recall that Items 6-14 concern information relating to proceedings in the Tribunal for administrative review in relation to decisions under the GIPA Act.

239. The question that arises here is whether, properly construed, the concept of “excluded information” under the GIPA Act extends to information relating to the hearing of determination of proceedings in the Tribunal, where the Tribunal is exercising administrative power.

240. The appellant contends that in order to be “excluded information”, the information must relate to the hearing or determination of proceedings in the exercise of judicial power. The information relating to the GIPA proceedings is not “excluded information”, so it is submitted, as “excluded information” includes “A court—judicial functions” (Sch 2, cl 1 of the GIPA Act), and “judicial functions” (defined in Sch 4, cl 1 of the GIPA Act) is not properly construed as including the hearing and determination by the Tribunal of proceedings under the GIPA Act, as the Tribunal exercises an administrative function in such proceedings. That the Tribunal is exercising an administrative function in the hearing and determination of GIPA proceedings is said to be consistent with NSW v Wojciechowska HCA (insofar as the Privacy and Personal Information Protection Act is concerned) and the Court of Appeal in Wojciechowska v Secretary CA (insofar as the GIPA Act is concerned), which held that the Tribunal was not exercising judicial power. This raises a question of law that arises on the appeal concerning the proper construction of the expression “excluded information” insofar as it relates to the Tribunal when hearing and determining matters in the exercise of administrative, rather than judicial, power. The respondent accepts that this ground raises a question of law. The appellant also contends that the CCTV footage was not created as a result of judicial functions of the Tribunal.

241. We pause to note that the substance of this ground has significant overlap with Ground 2 of the Secretary’s cross-appeal; and that Ms Wojciechowska’s contentions under this ground of appeal also form the basis of her submissions, as the respondent, against Ground 2 of the cross-appeal.

That judicial functions in cl 1 of Sch 4 to the GIPA Act purportedly do not relate to the Tribunal hearing and determining GIPA proceedings

242. The appellant acknowledged that “court” is defined in cl 1 of Sch 4 to the GIPA Act as including “tribunal”, however submitted that the definition of judicial functions in cl 1 of Sch 4, namely “such of the functions of the [tribunal] as relate to the hearing or determination of proceedings before it” ought to be read as the functions of the tribunal as they relate to the hearing or determination of proceedings before it which involve the exercise of judicial power. The appellant contends that “no executive functions of the tribunal were included” in the definition of “judicial functions” (Tcpt, 12 February 2026, p 38(20)). This is contrasted, so it is said, by the decision by the legislature to include, in the definition of “judicial functions”, such of the functions of a Local Court Judge as relate to the conduct of committal hearings and such the functions of a coroner as relate to the conduct of inquests and inquiries. The appellant submits that “no exception or no extension of the definition of judicial function was created for the tribunal” (Tcpt, 12 February 2026, p 38(50)-p 39(0)). The appellant submitted that, as the decision in Wojciechowka v Secretary CA and NSW v Wojciechowska HC**A confirm that the Tribunal is exercising administrative power in proceedings which relate to the Privacy and Personal Information Protection Act and GIPA Act (Tcpt, 12 February 2026, p 38(23)-(24)), then the CCTV Footage, which relates to these proceedings instituted under the GIPA Act, relates to the executive function of the Tribunal.

That the CCTV Footage was purportedly not created as a result of judicial functions of the Tribunal

243. The appellant submitted that the CCTV footage is not created as a result of judicial functions of the Tribunal or by the Senior Member who presided over the hearing depicted in the footage, but rather, by the Sheriff in the function of surveillance. The appellant in oral submissions (Tcpt, 12 February 2026, p 37(21)-(28)):

“APPELLANT: … I would say that the excluded information is the one created as a result of judicial functions. And the CCTV footage wasn’t because it wasn’t - it even I think on the evidence of the secretary, it’s created by - it’s created by sheriff. It’s day surveilling. And so it wasn’t created as a result. The tribunal could go on without there being any CCTV footage, for instance. It’s not really part of any judicial function. So the documents created as part of judicial functions that’s what I would say, it means.”

Determination of Ground 14

244. The relevant provisions governing excluded information under the GIPA Act is as follows. Section 43 provides as follows:

43 Access application cannot be made for excluded information

(1) An access application cannot be made to an agency for access to excluded information of the agency.

Note.

Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency.

(2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.

245. Section 43 provides that an access application cannot be made for excluded information of the agency, and that an access application is not valid to the extent that it is made in contravention of s 43.

246. Clause 6 of Sch 1 to the GIPA Act states:

6 Excluded information

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

(2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.

(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

247. Clause 6(1) of Sch 1 provides that there is a conclusive presumption that there is an overriding public interest against disclosure of information that is excluded information of an agency, unless the agency has consented to the disclosure of that information.

248. Schedule 3 of the Government Information (Public Access) Regulation 2018 (NSW) provides a list of agencies which are declared to be part of other agencies. Relevantly, the Civil and Administrative Tribunal is a “subsidiary agency” of the “parent agency”, the Department of Justice.

249. Clause 1 of Sch 4 to the GIPA Act defines agency:

Schedule 4 Interpretative provisions

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

1 Definitions

In this Act—

…

agency—see section 4.

250. Section 4 of the GIPA Act provides:

4 Interpretation

(1) Key definitions In this Act—

…

agency means any of the following—

(a) a Public Service agency,

(b) a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013),

(c) a public authority,

(d) a public office,

(e) a local authority,

(f) a court,

(g) a person or entity that is an agency pursuant to regulations under clause 5 of Schedule 4.

Note.

Schedule 4 contains definitions of Public Service agency, public authority, local authority, public office and court. The Information Commissioner publishes a list of agencies and their contact details.

government information means information contained in a record held by an agency.

Note.

Record is defined in clause 10 of Schedule 4.

251. As shown above, agency includes a court as defined by s 4(1)(f) of the GIPA Act.

252. A court includes a tribunal, a Judge of the Local Court, and a coroner (GIPA Act, Sch 4, cl 1). Although not relevant to the issue at hand, we note for completeness that, between the time of the hearing and the time of this decision, the GIPA Act was amended to reflect the change in nomenclature of a Magistrate to a Judge of the Local Court. Clause 1, Sch 4 to the GIPA Act relevantly provides:

1 Definitions

In this Act—

…

court includes—

(a) a tribunal, a Judge of the Local Court and a coroner, and

(b) a registry or other office of a court and the members of staff of that registry or other office.

253. Clause 1 of Schedule 2 provides as follows:

1 Judicial and prosecutorial information

A court—judicial functions.

The office of Director of Public Prosecutions—prosecuting functions.

254. Under cl 1 of Sch 2, the excluded information of a court, as defined by cl 1 of Sch 4, is said to be judicial functions.

255. Clause 1 of Sch 4 to the GIPA Act defines judicial functions and court as follows:

1 Definitions

In this Act—

…

judicial functions*,* in relation to a court, means such of the functions of the court as relate to the hearing or determination of proceedings before it, and includes—

(a) in relation to a Judge of the Local Court—such of the functions of the judge as relate to the conduct of committal proceedings, and

(b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009.

256. Judicial function is defined in cl 1 of Sch 4 to mean, in relation to a court, such of the functions of the court as relate to the hearing or determination of proceedings before it, and includes in relation to a Judge of the Local Court the conduct of committal proceedings and in relation to a coroner, the conduct of inquests and enquiries.

257. Notwithstanding that the Tribunal is a “court”, the appellant contends that nevertheless the definition of excluded information as relates to the Tribunal only includes that information which relates to the hearing and determining of matters when the Tribunal is exercising judicial power. Some support for this is gained from the definition of “judicial functions”, which, with respect to a Judge of the Local Court, expressly includes the function of a Judge of the Local Court as it relates to the conduct of committal proceedings, which is an administrative function: GIPA Act, Sch 4, cl 1(1) “Judicial Functions” (a); Rafferty v Commonwealth of Australia (Supreme Court (NSW), Malpass M, 20 December 1996) at 4. Also, the functions of a coroner, in relation to inquests and enquiries, might be considered administrative.

258. Given the express inclusion of administrative functions in respect of coroners and Judges of the Local Court, one might have considered that the Tribunal would have required an express inclusion also, given that, like a Judge of the Local Court, the Tribunal exercises both administrative and judicial power: Agrinova Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCATAP 86 at [93(5)].

259. The Secretary accepts that the information sought in Items 6-14 either largely or entirely relates to exercises of administrative power by the Tribunal, however submits that the distinction between administrative power and judicial power is a separate issue to the meaning of “judicial function” under the GIPA Act. The Secretary submits that “[a]ll that is required is to apply the test prescribed in the GIPA Act to an identified function of the court or tribunal” and that “[t]here is no textual or contextual reason to read into that definition an implied limitation that a court or tribunal only exercises ‘judicial functions’ for the purposes of the GIPA Act to cases where it exercises judicial power in a constitutional sense”.

260. In further answer, the Secretary contends that the legislation does not distinguish between judicial and administrative power of a State tribunal because the relevance of that distinction was only recognised as being significant insofar as State tribunals are concerned, for the first time, in 2018. It was only then that it was brought to light that federal judicial power could not be exercised by State tribunals. That “adjudicative authority in respect of matters listed in ss 75 and 76 [of the Constitution] is to be exercised only by ‘courts’” was identified in Burns v Corbett Burns v Gaynor Attorney General for New South Wales v Burns Attorney General for New South Wales v Burns New South Wales v Burns [2018] HCA 15 at [49]; 92 ALJR 423 (Kiefel CJ, Bell and Keane JJ).

261. The decision of the Court of Appeal of the Supreme Court of New South Wales in Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 confirms that the Tribunal is not a court.

262. However, it has long been recognised that State tribunals exercise both judicial and administrative power. For instance, the Administrative Decisions Tribunal has long had jurisdiction in anti-discrimination matters which require the exercise of judicial power: Laalaa v Director General, Department of Education and Training (EOD) [2009] NSWADTAP 56; Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85. The Consumer Trading and Tenancy Tribunal routinely exercised judicial power in commercial matters: Shurapey v Mycar Auto Sales (Motor Vehicle) [2013] NSWCTTT 661; Rose v Ecosaw (General) [2010] NSWCTTT 421. The Consumer and Commercial Division undeniably exercises judicial power in relation to commercial disputes: Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [193]; Agrinova Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCATAP 86 at [142].

263. In the High Court decision handed down in 2009, Gummow, Hayne, Heydon, Crennan and Kiefel JJ held in K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 at [153] (our emphasis):

“There is no doubt that, with respect to subject matter outside the heads of federal jurisdiction in ss 75 and 76 of the Constitution, the State legislatures may confer judicial powers on a body that is not a ‘court of a State’ and that in respect of a body that is a ‘court of a State’, they may confer non-judicial powers.”

264. It has long been recognised that a State tribunal may be invested with judicial power (albeit, State judicial power): Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 265 CLR 304; [2018] HCA 15 at [67] (Gageler J) citing K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 at [153]. Accordingly, the fact that the GIPA Act expressly includes cases where the Local Court is exercising administrative power but does not expressly include references to the Tribunal exercising administrative power, provides some textual support for the appellant’s argument that the reference to a court, when it is applied to a tribunal, is limited to a tribunal exercising judicial power. However, we find that the more natural reading of the provision is that a tribunal (including this Tribunal) is a court for the purposes of the GIPA Act, irrespective of whether it is exercising administrative or (State) judicial power. Further, we do not see that it would be in the interests of clarity to construe the expression “court” as only applying to a tribunal exercising judicial power. As recent cases have demonstrated, whether a body is exercising judicial or administrative power is not always simple to discern: NSW v Wojciechowska HCA.

265. We find no error in the Tribunal’s construction that, for the purposes of the definition of excluded information, a tribunal is a court, even when exercising administrative power. No error on the question of law is made out.

266. Ground 14 is dismissed.

Grounds 15 and 16

267. These grounds provide as follows:

“15. The Tribunal took into consideration an irrelevant consideration into account (if the note was brought into existence for the dominant purpose of providing legal services) and did not take into consideration a relevant consideration of whether the note was brought into existence with the dominant purpose of providing legal advice.

16. The Tribunal erroneously determined that the note was confidential whereas it was not as it provided account of the events in an open ‘court’.”

268. These grounds concern Item 11 of the second access application.

269. Although these grounds are couched in terms of irrelevant considerations, which are usually the purview of discretionary decisions, we are not here dealing with a discretionary decision: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40. Rather, it is plain that these grounds raise the question of whether, in answering the question of whether the note was subject to legal professional privilege, the wrong question was asked. This raises a question of law: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [67] citing Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58.

270. The appellant did not make any submissions on these grounds. It was noted at the commencement of the hearing of the appeal that the appellant would put on more evidence or materials for Grounds 15 and 16 if granted an adjournment, however the requested adjournment was not granted: the Interlocutory Decision. Consequently, the Appeal Panel has received no materials responsive to these grounds.

271. The Secretary submits that both Grounds 15 and 16 should be rejected. The Secretary submits that no submissions were made by the appellant in support of these grounds. As concerns Ground 15, the Secretary submits that the Tribunal’s application of the relevant principles was correct. As concerns Ground 16, the respondent submits that there is “no merit in the suggestion that an account of proceedings in an open hearing, when provided by a legal representative to their client, cannot be confidential: plainly it can, and her Honour was entitled to so find on the face of the document”.

272. We are not satisfied that this ground was advanced with sufficient precision or with sufficient particulars to determine it as a question of law. Leave to appeal is also refused as the ground is vague and therefore does not support a wider point of principle or have sufficient merits to warrant the grant of leave to appeal.

273. Grounds 15 and 16 are dismissed.

Additional Grounds

Extension of time

274. In addition to the 16 Grounds we have already considered, during oral submissions, the appellant identified additional alleged errors by reference to the orders made, rather than by reference to the Grounds of Appeal. As discussed in Unique at [59], where the new grounds expand the basis of appeal, an extension of time is required. We have not been able to discern how these additional grounds fit within the current ambit of the appeal. Therefore, the appellant requires an extension of time to appeal on these grounds. The Tribunal may grant an extension of time under s 41 of the NCAT Act. The principles for an extension of time to appeal were identified in Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22 at [22]. They are, briefly put, as follows:

275. length of the delay;

276. reasons for delay;

277. the prospects of success, and

278. the extent of any prejudice suffered by the opposing party.

279. No basis was provided for us to grant the extension in circumstances where the Notice of Appeal was filed on 4 February 2025, the Amended Notice of Appeal was filed on 12 September 2025 (four days before the hearing) and they were raised for the first time on day 1 of the appeal hearing on 16 September 2025.

280. For the reasons set out below, we do not consider that there is a clear injustice that would be occasioned by not granting the extension of time or, effectively, leave to rely on the new grounds. Leave to rely on each of the new grounds is refused.

Additional Ground – erred in finding overriding public interest – Items 6, 7 and 9 (excluding Ms Britton’s CV) of the second access application

277. The appellant identified the alleged error as follows (Tcpt, 16 September 2025, p 63(46)-(48)):

“APPELLANT: So - yes, the error that was made if the application for a position, or the test for confidential information was actually not met by the agency. …”

278. The relevant order of the Tribunal:

“(2) In relation to Ms Wojciechowska’s second application I make the following orders:

…

(g) The Respondent’s decision in relation to Items 6, 7 and 9 (apart from Ms Britton’s CV) is set aside. The following decision is made in substitution for that decision:

Access to the information is refused because there is an overriding public interest against disclosure.”

279. The Tribunal found that there was an overriding public interest against disclosure of Items 6, 7 and 9 (excluding Ms Britton’s CV). The appellant submitted that she was refused access by the Tribunal because of, at least in part, 1(c) and 1(g) contained in the table in s 14 of the GIPA Act (Tcpt, 16 September 2025, p 63(36)-(42)). These provisions relate to confidential information, and the error is said to be that the test for confidential information was not met by the agency. There was said to be no indication in the job advertisement, nor anywhere else, that the applications were received confidentially. Accordingly, so it is submitted, there couldn’t be any breach of confidence because there wasn’t any information received in circumstances of confidence.

280. The Tribunal said at [229] as follows (original emphasis):

“I note that the hard copy of the advertisement filed as an attachment to Mr O’Young’s affidavit does not contain a statement that applications will be treated confidentially or any other reference to the disclosure or publication of the applications. However, the test under cl 1(g) is whether the information was provided in confidence.”

281. Ultimately, the Tribunal was indeed satisfied that the circumstances warranted an inference that applications were “provided” in confidence: Decision at [230]. Mr Britton’s cover letter was expressly provided “in confidence”: Decision at [231].

282. To the extent that this ground relies on contentions that there was “no” evidence for the finding or “no” basis for the inference, they would each raise questions of law: see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156B-F (Glass JA) cited in Unique at [25(9(b))] and *Minister for Immigration & Multicultural Affairs v Al‑*Miahi [2001] FCA 744 at [34] cited in Unique at [32(1)]. However, as can be seen from the portions of the Decision just mentioned, this was not a case where there “no” evidence or “no” basis. Accordingly, the ground has insufficient prospects to warrant the extension of time. Further, to the extent the ground requires leave to appeal on the merits, we would not grant leave to appeal, as the question is not one of wider significance.

283. To the extent that this ground also cavils with the Tribunal’s finding, under cll 1(a) and (b) of the Table to s 14 of the GIPA Act in respect of Items 6, 7 and 9 (apart from Ms Britton’s CV) that disclosure of that information “could reasonably be expected to prejudice collective Ministerial responsibility”, we also discern insufficient prospects. The Tribunal found that this was a “strong consideration against disclosure” (Decision at [220]).

Additional Ground – misconstruction of the access application – Item 8 of the second access application

284. The appellant contends that the decision of the Tribunal on Item 8 (order 2(e)) involved a misconstruction of the second access application, as she sought more than just the dates (Tcpt, 16 September 2025, p 62(29)-p 63(3)). It appears that at heart, the appellant wanted to obtain Item 8 unredacted (Tcpt, 16 September 2025, p 62(32), p 63(11)-(12)). In respect of which ground of appeal this submission falls under, the appellant stated “I don’t believe I have it as a ground [of appeal]” (Tcpt, 16 September 2025, p 63(3)).

285. As explained at [195] of the Decision, Item 8 sought “ . . documents showing dates of all 2021 interviews conducted for the position of Deputy President and Head of NCAT’s Guardianship Division”.

286. We turn, first, to consider whether this ground raises a question of law. If so, it may provide justification for the grant of the extension of time to appeal.

287. As noted in Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 (an appeal under s 113 of the Administrative Decisions Tribunal Act 1997 (NSW), which also was “on a question of law”) an appeal panel noted at [9]:

“The Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Pozzolanic) identified five general propositions in relation to the distinction between questions of law and fact. These were extracted by the High Court in Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) (Agfa-Gevaert):

1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. (22) Jedko Game Co Pty Ltd v Collector or Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854.

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. (23) Life Insurance Co or Australia Ltd v Phillips (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner or Taxation (1956) 94 CLR 509 at 512; Neal v Department or Transport (1980) 3 ALD 97 at 107-108*;* Jedko (1987) 12 ALD 491.

3. The meaning of a technical legal term is a question of law. (24) Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Federal Commissioner or Taxation (1979) 40 FLR 208 at 215.

4. The effect or construction of a term whose meaning or interpretation is established is a question of law. (25) Life Insurance Co of Australia (1925) 36 CLR 60 at 79.

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.” (26) Hope v Bathurst City Council (1980) 144 CLR 1 at 7, per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277, per Sheppard and Burchett JJ.

In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. (27) Pozzolanic (1993) 43 FCR 280 at 288, citing Hope (1980) 144 CLR 1 at 8.”

288. It was also noted in Lombard Farms, at [13]-[15]:

“In relation to the distinction between the second and fourth propositions in Pozzolanic, the High Court, in Agfa-Gevaert, highlighted a problem (at 396-397). The second proposition concerns the ‘meaning’ of a word and the fourth proposition concerns the ‘effect or construction’ of a term. Their Honours emphasised that notions of meaning and construction are interdependent. This led their Honours to remark that:

it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.

The inter-relationship between ‘meaning’ and ‘construction’ was accepted in Aktiebolaget Hassle v Alphapharm Pty Limited (2002) 212 CLR 411 at [36] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and at [138] per Kirby J; see also Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 per Beazley ACJ at [59] to [61].

For the Appeal Panel, this means that we ought not be too quick to dismiss a ground as a mere question of fact simply because it relates to an ordinary English phrase. Beazley ACJ said in Norrie at [62]:

The High Court’s obiter remarks in Agfa-Gevaert and their approval in Aktiebolaget Hassle v Alphapharm indicates that it cannot be said that the ordinary meaning of a word or its non-technical meaning is a question of fact, at least as a stand alone proposition. Rather, when the Court is engaged in a task of statutory construction, it is required to have regard to the language used by Parliament and the context in which it is used. That task involves a question of law.”

289. The above consideration of the task of statutory construction, may also apply to the task of construing an application for access under the GIPA Act. We should not be too quick to dismiss the task as one of fact-finding. The effect of a collection of words may raise a question of law.

290. As noted by the Appeal Panel in Unique at [32(2)], whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way is a question of law: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 at [66]. If the legal effect of the words used in the second access application is the only question raised by this ground, then the ground may indeed raise a question of law.

291. Nevertheless, even assuming that a misconstruction of an access application constitutes an error on a question of law, we would not grant an extension of time to appeal on this ground, as we consider that there are insufficient prospects.

292. There are insufficient prospects, as the second access application is to be construed objectively (as is the case generally for access applications under the GIPA Act). That the appellant had something else in mind does not prove that the Tribunal misconstrued her application.

293. The part of the decision of the Tribunal (Decision at [198]-[199]) said to reveal the error:

“198 Pursuant to s 72(1)(b) of the GIPA Act, copy access should be given to that part of the letter from Justice Armstrong to the Attorney General which discloses the date of all 2021 interviews conducted for the position of Deputy President and Head of NCAT’s Guardianship Division. The formal parts of the letter including the address, dates, salutation and sign off need not be redacted.

199 The remaining information in that letter, apart from the shortlist of applicants, should be redacted because it is not relevant to the information applied for: GIPA Act, s 74. For the reasons I give below, the short list of applicants should be redacted because there is an overriding public interest against disclosure of that information.”

294. On its face, the construction applied by the Tribunal was open. Further, it was not the only reason for which the document was provided in redacted form.

Additional Ground – misconstruction of the appellant’s application – Item 15 of the first access application

295. The appellant, in oral submissions, agreed with the proposition of the Appeal Panel that this error alleged in relation to Item 15 relates to a misconstruction by both the respondent and the Tribunal at first instance of the application as reading certain things outside the scope, when actually the appellant sought everything in the document (Tcpt, 16 September 2025, p 69(49)-p 70(0), p 70(15)-(20)). Item 15 sought “all documents ever created by the Respondent in relation to Ms Wojciechowska and her previous application under the GIPA Act from 7 January 2021 to 4 May 2021” (Decision at [93]).

296. The purported misconstruction of her application is said to arise due to the following (Tcpt, 16 September 2025, p 69(41)-(47)):

“APPELLANT: …What the Department did is they didn’t provide me with some documents because they were, again, not within the scope. However, the way - I say the way I drafted this is that I’m asking for the documents. So it’s everything in the document. So if there is a document, nothing in it cannot be within the scope. There may be consideration against disclosure, but it’s not that something can be not within the scope if it’s in the document.”

297. There does not appear to be a misconstruction. The Tribunal correctly identified Item 15 at [93]:

“Item 15, as amended to reduce its scope, seeks all documents ever created by the Respondent in relation to Ms Wojciechowska and her previous application under the GIPA Act from 7 January 2021 to 4 May 2021.”

298. In determining the issue, the Tribunal adverted (at [99]) to the material searched for by the respondent as follows:

“Mr McIntosh’s evidence was that a list of search terms was formulated to identify the information described in Item 15. That search produced approximately 1.6GB of data. The data was manually reviewed and information which was not within the date range (7 January 2021 to 4 May 2021) was excluded. Similarly, information in a document that was not created by the Respondent was excluded.”

299. Some 364 pages of information were provided to the appellant. Some redactions were made. The question the subject of this ground is whether certain redacted material was not relevant to the application. This was identified by the Tribunal as a basis for some of the redactions: Decision at [101].

300. The appellant contends that there could be no material out of scope, given the terms of her application were for the documents themselves. If any part of a document was in scope, then the entirety of the document should have been provided.

301. It is to be recalled that s 4 of the GIPA Act refers to an access application as an application for access to “government information”. In turn, “government information” is information contained in a record: GIPA Act, s 4. Record is defined in clause 10 of Sch 4 as follows:

10 Meaning of “record”

(1) In this Act—

record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.

(2) A reference in this Act to a record includes a reference to a copy of the record.

(3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.

302. A document is, therefore, the record that holds the information. How then does one construe an access application that seeks documents rather than information contained in those records.

303. We have considered whether the real question raised by this ground is the construction of the first access application, which may raise a question of law. If so, this might provide a greater warrant for extending time to appeal on this ground.

304. Nonetheless, we have not discerned sufficient prospects to extend time to rely on this ground. The material redacted was said to be “… information in a document that was not created by the Respondent” (Decision at [99], as extracted above). The Tribunal reviewed the material and found that the redacted material was not within scope. The Tribunal said at [104] “[m]uch of that material is correspondence with the Information Commissioner.” Even assuming that, in seeking all documents created by the Secretary about the appellant during the relevant period, Item 15 was seeking access to all the information contained in records (documents) created by the respondent, it is not clear that there has been a misconstruction. This is not a clear case of injustice which would justify the granting of an extension.

Additional Ground – allegation of improper reliance on excluded information –Item 15 of the first access application

305. The appellant also submitted that she believed that the respondent had relied on cll 3(a) and 3(b) of s 14 of the GIPA Act “at times, unfortunately, it’s information that’s not really personal information that’s been redacted. For instance, say, dates. But not dates of birth, but just saying dates of a letter, I believe. But it’s a more minor point.” (Tcpt, 16 September 2025, p 70(10)-(13)).

306. This raises a question of merits, for which there is no point of wider principle to justify leave to appeal; or anteriorly, an extension of time.

Conclusion in relation to the additional grounds

307. As noted above, we have not extended time to appeal on the additional grounds.

Miscellaneous issues

Rejection of Affidavit of Paulina Wojciechowska of 10 February 2026

308. The Appeal Panel rejected the affidavit of Paulina Wojciechowska of 10 February 2026 (Tcpt, 12 February 2026, p 8(28)-(31)). The Appeal Panel indicated that we would provide written reasons for the decision to reject the affidavit.

309. Paulina Wojciechowska’s affidavit of 10 February 2026 goes to numerous issues, including:

310. Background to the appellant’s various applications under the GIPA Act and Privacy and Personal Information Protection Act.

311. Information about the three access applications.

312. The progress and outcome of the remitted items pursuant to orders 2(f) and (h).

313. The issue of service of the open material, dealt with by the Tribunal in the Decision, and the subject of this appeal.

314. Her prior contact with, and current methods of contact with, the Department of Communities and Justice.

315. Information about Item 11 of the second access application (the note over which legal professional privilege is claimed).

316. “instances of the processes under the GIPA Act being used to obstruct access to government documents” which the appellant has, herself, purportedly witnessed.

317. Things the appellant perceived during prior Tribunal hearings.

318. The Secretary objected to the receipt by the Appeal Panel of the affidavit of Paulina Wojciechowska of 10 February 2026 in whole on two bases (Tcpt, 12 February 2026, p 2(34)-(35)):

319. “the appellant needs leave because it’s very late and

320. she also needs leave to introduce new evidence on the appeal.”

321. The Secretary submitted that he would be prejudiced by reliance on the affidavit. As the affidavit was served two days prior to day 2 of the hearing, the Secretary did not have the opportunity to address the affidavit in writing (Tcpt, 12 February 2026, p 2(45)-(46)). He noted that his written submissions, due 12 January 2026, were filed on time, and that “[i]f the affidavit had been served when it ought to have been served, I could have addressed it then and I wouldn’t need to address it on the fly, 48 hours from the hearing” (Tcpt, 12 February 2026, p 2(47)-(50)).

322. In respect of the second base, that the appellant requires leave to introduce new evidence on the appeal, the Secretary submitted (Tcpt, 12 February 2026, p 3(1)-(10)):

“SHERRINGTON: …much of the evidence that’s now sought to be introduced is evidence which ought to have been below and would have been the subject of responsive evidence below, if it had been introduced then. So we have, for example, evidence about service, evidence about privilege.

These are matters that were hotly in dispute before her Honour below and the evidence on those matters would have been responded to in kind at that point. My client is not in a position to lead evidence for example, about privilege on the appeal, especially 48 hours before the second appeal hearing.”

313. The Secretary submitted that the second base was of more weight to his objection (Tcpt, 12 February 2026, p 3(0)).

314. The Secretary also tendered a schedule of objections, which included objections based on relevance, opinion or submission, no sufficient basis to receive for the first time on appeal, and that the Secretary would seek leave to cross-examine the appellant on the affidavit of Paulina Wojciechowska of 10 February 2026, as the deponent. The Secretary sought to cross-examine the appellant “to put certain propositions as a matter of fairness to the witness because of the submissions I would seek to make on that evidence if it is received” (Tcpt, 12 February 2026, p 3(50)-p 4(1)).

315. The appellant submitted (Tcpt, 12 February 2026, p 4(19)-(21)):

“APPELLANT: So in my view my affidavit is of dual nature at the very least. It has some parts that are fresh evidence but the fresh evidence also goes to issues on appeal. Whether for instance the onus was discharged by the respondent.”

316. The appellant also submitted that “by virtue of s 63 of ADR Act the tribunal is obliged to take into consideration all the relevant materials before it” (Tcpt, p 12 February 2026, p 6(28)-(29)).

317. The appellant rejected the Secretary’s contention that her affidavit contains submissions, and stated that she has “no issue” with being cross-examined by the Secretary (Tcpt, 12 February 2026, p 4(23)-(26)).

Hearing de novo

318. We have discussed above, under the heading “Jurisdiction of the Appeal Panel when conducting an internal appeal from an administrative review of a decision under the GIPA Act”, that a hearing de novo is not synonymous with administrative review, and that unless an appeal panel decides to determine an appeal by way of a new hearing (a hearing de novo) in accordance with s 80(3), an appeal panel’s role is to discern and, where appropriate, correct, error. The appellant submitted that her “evidence now as to what [the Secretary] failed to do is relevant to the consideration of this appeal but also it would be relevant if the tribunal were to proceed by way of hearing de novo” (Tcpt, 12 February 2026, p 4(48)-(50)). The Secretary opposed a hearing de novo under s 80(3) of the NCAT Act, submitting (Tcpt, 12 February 2026, p 5(38)-(42)):

“SHERRINGTON: …no party has asked for a new hearing to be conducted under [s 80(3)]. And unless a party asks and the appeal panel determines making a discretionary decision that the grounds of appeal warranted, the default position is that a hearing in the appeal panel is conducted by way of rehearing and not by way of new hearing.”

319. The Secretary cited the decision in Ros v Commissioner of Police [2020] NSWCATAP 70 at [29]-[30] for this proposition.

Consideration

320. Due to the lateness of the affidavit, and that the Secretary would be prejudiced in not being able to respond, we would not admit the affidavit. Despite the issues the affidavit traverses, including as to service of the open materials, which goes to several issues arising on the appeal, this is not fresh evidence, in the sense of not being reasonably available at first instance. Additionally, out of fairness, the respondent would need to cross-examine the appellant, and whilst she did not object, that is not a convenient course for an appeal. Further, as discussed above, this is not a suitable proceeding for a hearing de novo.

Recusal

321. At the commencement of day 1 of the hearing, 16 September 2025, the Appeal Panel notified the parties that one of the members of the Appeal Panel had, in Health Care Complaints Commission v Thornton [2025] NSWCATOD 12, cited with approval the decision the subject of the appeal, namely Wojciechowska v Secretary Department of Communities [2025] NSWCATOD 2 (Tcpt, 16 September 2025, p 2(30)-(35)) for the proposition that notice under the Rules did not require receipt of the materials. This was raised with the parties because the appellant was challenging the correctness of the Tribunal’s decision to proceed in the absence of evidence of receipt of the materials. Neither party made a recusal application. In accordance with QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15, the members of the Appeal Panel have each turned their minds to the question of recusal.

322. The members of the Appeal Panel are each satisfied that no real question of bias or apprehended bias arises. The issues being determined here, are being determined based on the materials and submissions before the Appeal Panel.

THE CROSS-APPEAL

323. The cross-appeal concerns the Decision insofar as the Tribunal found that “CCTV footage of the Tribunal proceedings does not relate to the Tribunal’s function of hearing and determining the proceedings”: Decision at [124]. The relevant order was order (2)(a), which provides as follows:

“(2) In relation to Ms Wojciechowska’s second application I make the following orders:

(a) The Respondent’s decision in relation to Item 1 is set aside. The following decision is made in substitution for that decision:

Ms Wojciechowska is to be given access to the information in Item 1.

The form of access is by providing a reasonable opportunity to inspect a record containing the information, together with such facilities as may be necessary to enable the information to be viewed.

A condition of access is that Ms Wojciechowska not make any record of the information including by taking notes, making an image or copying the record.”

324. As noted in relation to the appeal, this order, which relates to Item 1 of the second access application, is also impugned by the appellant on the basis that she was seeking unfettered access to the CCTV footage in Item 1, and that the Tribunal erred in concluding that she “did not nominate a particular way in which she sought access to the information”: Decision at [130]. That has been considered above.

325. The cross-appeal concerns the anterior question of whether the CCTV footage was “excluded information”. If so, the access application is either not a valid application (GIPA Act, s 43); or there is a conclusive presumption that there is an overriding public interest against disclosure (GIPA Act, s 14; Sch 1, cl 6). The Tribunal found, at [90], that the information was information of the agency to which the application had been made. Accordingly, had it been excluded information, the application would not have been valid. However, the Tribunal rejected the contention that the information was excluded information. The Tribunal relied upon s 73(2) of the GIPA Act to impose a condition on how the right of access was to be exercised, to avoid there being an overriding public interest against disclosure.

326. The condition imposed was that Ms Wojciechowska not make any record of the information including by taking notes, making an image or copying the record (view-only access). However, if the CCTV footage is properly considered “excluded information”, and a valid access application cannot be made for it, then s 73(2) cannot be relied upon to avoid this result.

Legislation

327. The only issue in dispute on the cross-appeal is whether the CCTV footage relates, in the requisite sense, to the Tribunal’s function of hearing and determining proceedings. The statutory provisions which relate to “excluded information” are extracted above under Ground 14. On the cross-appeal, as was the case on the appeal, there was no dispute as to which were the relevant statutory provisions.

328. For ease of reference, we reiterate the legislative provisions here.

329. Section 43 of the GIPA Act, provides that an access application cannot be made to an agency for access to “excluded information” of the agency. Schedule 4 contains some interpretive provisions, and defines the expression “excluded information” of an agency specified in Schedule 2, to mean information that relates to any function specified in that Schedule in relation to the agency. A court (which is defined in Schedule 4 to include a tribunal) is one of the agencies referenced in Schedule 2. Schedule 2, cl 1 specifies that, for a court (and in this case, tribunal), the relevant functions are judicial functions. The expression “judicial functions, in relation to a court” is defined in Schedule 4 to mean “such of the functions of the [tribunal] as relate to the hearing or determination of proceedings before it…”

330. Putting this together: information is excluded information, if the information relates to any function of the Tribunal that relates to the hearing or determination of proceedings before it.

331. There are, in effect, two ways in which the information must “relate to” the tribunal:

332. The information must relate to a function.

333. The function must relate to the Tribunal’s functions of hearing and determining proceedings.

334. Pared down, the question is as follows: does the information in the CCTV footage relate to any function which relates to the Tribunal’s hearing of and determining of proceedings.

335. The CCTV footage is of a hearing being conducted by a member of the Tribunal. The Secretary contended that the function the information is said to relate to is the primary function of hearing and determining proceedings in the Tribunal. Unlike some cases (as exemplified below) where there is a live question over whether the function relates to hearing and determining proceedings (such as a Registrar responding to professional correspondence, in N (No. 2) -v- Director General, Attorney General*’*s Department [2002] NSWADT 33), here, the function the Secretary points to is, itself, the function of hearing and determining proceedings.

336. Framed this way, the only question is whether the information “relates to” (in the statutory sense) the Tribunal’s function of hearing and determining proceedings.

Grounds of the cross-appeal

335. The grounds of the cross-appeal are as follows:

“1. The Tribunal erred in deciding, at [124], that ‘CCTV footage of Tribunal Proceedings does not relate to the Tribunal’s function of hearing or determining the proceedings’ and, accordingly, was not ‘excluded information’ for the purposes of sch 4, item 1 and sch 2, item 1 of the Government Information (Public Access) Act 2009.

2. In the alternative to Ground 1, the Tribunal gave insufficient reasons for so deciding.”

Questions of law or leave to appeal

336. We have already traversed the principles concerning a question of law.

337. The first ground of appeal raises the question whether CCTV footage of a Tribunal hearing, necessarily, satisfies the statutory definition in the sense that the footage relates, in the sense comprehended by Sch 4, cl 1 and Sch 2, cl 1 of the GIPA Act, to the Tribunal’s function of hearing and determining proceedings. This is not a question of whether it was reasonably open to so find; it is a question of whether it was necessary to so find.

338. There are no facts in dispute and nor are there any facts that must be found to determine Ground 1. The cross-appeal proceeds on facts fully found. Ground 1 is also put at a high level of generality: that CCTV footage of a Tribunal hearing will always, necessarily, relate in the requite sense, to the hearing and determination of the Tribunal proceedings; and therefore, will always constitute excluded information.

339. Whether undisputed facts necessarily fall within the description of a word or phrase in a statute raises a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7, 10; [1980] HCA 16; and from the sixth proposition identified in Australian Gas Light Co v Valuer*‑*General (1940) 40 SR (NSW) 126 at 138.

340. Ground 1 raises a question of law.

341. By Ground 2, the Secretary puts the question of whether, in relation to determining that CCTV footage is not excluded information, the Tribunal failed to provide adequate reasons. A question whether there have been inadequate reasons may raise a question of law, if sufficiently precise. As identified in Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28]-[29]:

“28 Simply alleging that the Tribunal’s reasons are inadequate may not be sufficient to identify the particular or specific question of law that arises where the alleged inadequacy does not ‘breach a statutory condition of validity of the decision itself, so as to render the decision invalid’: Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [30].

29 Whilst it is true that simply alleging that reasons are inadequate ‘raises’ a question of law, and that may be sufficient where the parties and the Appeal Panel correctly understand what that allegation entails (STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [14] to [22]), it is preferable that the actual and specific question of law that it raises is identified with precision. That position is reinforced where the appellant is legally represented: Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111, at [24]; Thomas and Naaz, above, at [72].”

342. As discussed below, the specific so-called inadequacy was identified, and we consider that Ground 2 raises a question of law.

343. It is convenient to turn to Ground 2 first, as it concerns the reasoning of the Tribunal.

Ground 2

344. The undisputed facts are found at [119] of the Decision, as follows:

“The footage in Item 1 is of the entire hearing room and the people in that room including the Tribunal member. An AVL screen with the image of participants on the screen can also be seen. As Mr Mayer states in his affidavit, the camera is placed high in the corner above the bench. It shows the whole of the courtroom in clear detail. The camera angle provides a view of the Tribunal member entering and leaving the hearing room and sitting behind the bench. There is no audio recording associated with the CCTV footage.”

345. Also relevant is what is said at [136] of the Decision, when determining whether there was an overriding public interest against disclosure, as follows:

“Disclosure of the CCTV footage could reasonably be expected to inform the public about the operations of the Tribunal, in particular, how the hearing room is configured and the movements of the Tribunal Member and employees of the Respondent during the hearing: GIPA Act, Note to s 12(2). But there is no issue of public affairs or public importance which would be promoted or enhanced if the footage was disclosed. The Tribunal is accountable for how it conducts a hearing because the hearing is recorded. The extra level of accountability in being able to see what the Member or employees of the Respondent are doing when conducting a hearing is minimal.”

346. As extracted under Ground 14, of the appeal, the Tribunal had earlier set out the relevant legislative provisions, at [86]-[87] of the Decision.

347. The reasoning as to why the CCTV footage was held not to be excluded information is set out at [122]-[124] of the Decision, as follows:

“122 The Respondent submitted that the CCTV footage is ‘excluded information’ because it is information which ‘relates to’ such functions of the Tribunal that are ‘related to the hearing or determination of proceedings before it’: GIPA Act, s 43 and Sch 4, cl 1; Sch 2, cl 1. According to the Respondent, the function of the Tribunal that is implicated is its primary function of hearing and determining proceedings. The information in question is said to ‘relate to’ that function.

123 None of the objects of the NCAT Act expressly refers to the safety and security of the Tribunal, nor is safety and security a statutory function of the Tribunal or its individual members. The Sheriff is given the statutory function of providing for the safety and security of tribunals under s 4(1)(a) of the Sheriff Act 2005 (NSW):

(1) The Sheriff has the following functions—

(a) to provide for the safety and security of courts and tribunals, including by exercising the functions given to the Sheriff by or under the Court Security Act 2005 (a) to provide for the safety and security of courts and tribunals, including by exercising the functions given to the Sheriff by or under the Court Security Act 2005

124 Even giving the words ’relates to’ a wide interpretation, CCTV footage of Tribunal proceedings does not relate to the Tribunal’s function of hearing or determining proceedings. That information relates to a function performed by the Sheriff of providing for the safety and security of the Tribunal. The information in Item 1 is not ‘excluded information’. Ms Wojciechowska’s application for that information is a valid application.”

348. The gravamen of the Secretary’s submissions with respect to this ground of appeal is that there are no reasons provided for what is described as the “dispositive finding”, contained in the first sentence of [124] of the Decision, which reads as follows:

“Even giving the words ‘relates to’ a wide interpretation, CCTV footage of Tribunal proceedings does not relate to the Tribunal’s function of hearing or determining proceedings.”

349. Where a Tribunal provides a written statement of reasons, as the Tribunal did for the Decision, s 62(3) of the NCAT Act is engaged, as the chapeau to s 62(3) makes apparent. Section 62(3) provides:

(3) A written statement of reasons for the purposes of this section must set out the following—

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal’s understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

350. By reference to s 62(3), it is apparent that the material findings of fact had indeed been identified, as extracted above. Critically, the CCTV footage was found to be footage of a Tribunal hearing, showing the interior of the hearing room while it was in progress, including images of the Tribunal member entering and leaving the hearing room.

351. The applicable law was identified by the Tribunal, as extracted above.

352. As to the Tribunal’s reasoning process, contrary to the Secretary’s contention, the reasoning is well exposed, including with respect to the so-called “dispositive finding”.

353. The CCTV footage of the hearing was held not to relate to the Tribunal’s functions of hearing and determining proceedings for the following reasons:

354. The Secretary’s case was that the CCTV footage is “excluded information” because it is information which “relates to” the Tribunal’s “primary function” of hearing and determining proceedings before it: Decision at [122].

355. The information in the CCTV Footage relates to a function of the safety and security of the Tribunal: Decision at [124].

356. None of the objects of the NCAT Act expressly refer to the safety and security of the Tribunal: Decision at [123].

357. Safety and security is not a function of the Tribunal or its individual members: Decision at [123].

358. Even giving the words “relates to” a wide interpretation, the information in the CCTV footage of Tribunal proceedings does not relate to the Tribunal’s function of hearing or determining proceedings: Decision at [124].

359. It is also relevant to note that, in relation to the objects of the Tribunal and in particular s 3(f) of the NCAT Act which refers to accountability, the Tribunal said, consistently with the above but in the different context of determining whether there was an overriding public interest in disclosing the CCTV footage, that the CCTV footage does not relate, other than in a minimal way, to the accountability of the Tribunal: Decision at [136].

360. In addition, the Tribunal noted that the Sheriff is given the statutory function of providing for the safety and security of tribunals (Decision at [123], [124]).

361. The Secretary contends that her Honour did not explain why the information, which her Honour found did not relate to a security and safety function of the Tribunal, did not, nevertheless, sufficiently relate to a different function of the Tribunal, a function which the Tribunal undisputedly has: hearing and determining proceedings. We consider that this is a contention that the Tribunal stopped in the analysis too early, and should have asked and answered the question of whether the information related to (in the requisite sense) the Tribunal’s primary function of hearing and determining proceedings. We apprehend the Secretary’s submission to be that the Tribunal should have asked this either instead of, or in addition to, asking whether the function of safety and security, which the CCTV footage undisputedly related to, was a function of the Tribunal.

362. This is not a contention that the Tribunal’s reasons were not sufficiently exposed: it is a contention that the Tribunal’s reasons disclose error. It is a contention that the Tribunal reasoned wrongly or asked itself the wrong question. At heart, it is a contention of misconstruction of the statute.

363. The Secretary also contends that no reasons were given for her Honour’s implicit rejection of the Secretary’s submission that the information “related to [the Tribunal’s] function of conducting that hearing” or that the “connection was sufficient in the case of CCTV inside the hearing room”, at least where the CCTV showed “the actual conduct of a hearing”. The Secretary’s contention in this regard is more akin to a contention of a breach of procedural fairness, in the sense that a critical submission has been missed: FLK v Transport for NSW [2023] NSWCATAP 140 at [22]-[27] and the cases there cited.

364. The foregoing highlights the importance of being precise when articulating a question of law. As we have interpreted Ground 2, in light of the question of law said to arise, it is that the reasons have not been sufficiently exposed, rather than that a critical submission was missed or that the Tribunal misconstrued the statute.

365. The Secretary disagrees with the Tribunal’s reasons, but they are sufficiently exposed. The substance of the disagreement is the subject of Ground 1.

366. Ground 2 is dismissed.

Ground 1

362. As noted above, the statutory question is whether the information relates to a function which relates to the Tribunal’s function of hearing and determining proceedings. However, as contended for by the Secretary, this was pared down to whether the CCTV footage relates to the Tribunal’s function of hearing and determining proceedings.

363. The Secretary posits several reasons why the Decision is wrong.

364. First, the Secretary contends that the reference to the Sheriff Act 2005 (NSW) employed by the Tribunal at [123], was in error, as no party referred to it, and it was not in force at the time of the hearing.

365. Secondly, the Secretary contends that even if the information could be characterised as information relating to a function of the Sheriff, that does not foreclose the possibility that the information may also be characterised as sufficiently relating to a different function of another agency. The Secretary relies on the following:

366. There are many cases where two agencies will coordinate to achieve an outcome in the exercise of functions of both agencies. For example: Betzis v Commissioner of Police [2020] NSWCATAD 71 (Betzis), where a coronial brief was prepared by, and in the possession of, police officers. There, the Tribunal upheld the Commissioner of Police’s claim that the brief was the excluded information of the coroner, even though the brief also related to the functions of the police who had prepared it.

367. Similarly, an agency may well be exercising several functions simultaneously, and whether information relates to a specified function is not to be answered by whether it relates to some other function: Christopher v Independent Commission Against Corruption [2022] NSWCATAP 118.

368. It follows, so it is said, that her Honour’s observation that the CCTV footage related to a function of the Sheriff does not advance the analysis of whether it also related to a judicial function of the Tribunal. Similarly, finding that the Tribunal does not have any express function of ensuring its own safety and security does not answer the question of whether the information contained in the CCTV footage related (in the requisite sense) to some other function that the Tribunal did in fact pursue.

369. The Secretary refers to several cases where the meaning of “relates to” in the context of the expression “excluded information” of the GIPA Act, have been considered. This includes the Tribunal in Betzis at [34]:

“The expression ‘relate to’ has been held to be one of broad import: see, for example, Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 11. This Tribunal has generally held that the phrase ‘relating to’ and similar expressions is a broad one to be construed with the widest import (Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] – [23]; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]).”

368. The Secretary notes that the Tribunal below referred to Betzis in finding at [87] of the Decision:

“The words ‘relates to’ are ‘extremely wide’ and only require the existence of a connection or association between two things*: Project Blue Sky Inc v Australian Broadcasting Authority* (1998) 194 CLR 355 at [87] and Betzis v Commissioner of Police [2020] NSWCATAD 71 at [33]-[36].”

369. The Secretary also noted that there are several older relevant authorities on this issue, including as summarised in LG v Attorney Generals Department of NSW [2009] NSWADT 141 at [24]-[30].

370. In NZ v Attorney-General*’*s Department [2005] NSWADT 103, which concerned the Privacy and Personal Information Protection Act, O’Connor DCJ, President, agreed (at [16]) with the respondent’s submission that “the words ‘relate to’ have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings”.

371. The Secretary also refers to N (No 2) v Director General, Attorney General*’*s Department [2002] NSWADT 33 at [32] (O’Connor DCJ, President):

“This interpretation of ‘relate to’ is similar to that adopted in relation to the words ‘in connection with’ in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 upon which counsel for the respondent relied by way of analogy. There Wilcox J observed at 478 that the words ‘‘in connection with have a wide connotation requiring merely a relationship between one thing and another. They do not necessarily require a causal relationship between the two things …’ and referred to a Canadian trial judge’s ruling that the words ‘include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing.’”

372. The common thread, so it is submitted, in these cases is that the words “relate to”, both generally and in the particular context of the GIPA Act, are “words of wide import”.

373. By embarking on, and confining itself to, enquiries concerning safety and security, so the Secretary submits, the Tribunal misdirected itself.

374. In effect, the Secretary submitted that it is permissible for “functions” of the court (or tribunal) as relate to the hearing or determination of proceedings before it to overlap with a different function, and nonetheless retain their character as “judicial functions”, as defined in Sch 4, cl 1 of the GIPA Act. Accordingly, so it is said, that information contained in the CCTV footage may relate to both the function of the Sheriff, and the judicial functions of the Tribunal. Any functions of the court (or tribunal) as “relate to” the hearing or determination of proceedings before it, is to be construed widely. It follows, so it is said, that information in a record which is CCTV footage of a Tribunal hearing, wherein the Tribunal is exercising its primary function to hear and determine matters, relates, in the requisite sense, to that function simply because it depicts the Tribunal performing its role of hearing and determining matters.

375. The Secretary eschewed reliance on factors such as whether the CCTV footage could be useful in ongoing proceedings, for example, appeals from the Tribunal’s decision relating to the hearing captured in the CCTV footage. The Secretary’s case was put at a higher level of generality: that CCTV footage of a hearing captures images of the hearing, the hearing room, the Member and the parties. That, so it was said, is sufficient to demonstrate the requisite level of connection to establish the necessary relationship between the CCTV footage and the Tribunal’s function of hearing and determining proceedings.

376. Ms Wojciechowska’s submissions in this regard have, in substance, been extracted and considered in relation to Ground 14 of the related appeal, which is also the subject of these reasons for decision. In the context of the related appeal, we have dismissed the contention that the Tribunal is only a court for the purposes of the provisions of the GIPA Act as they relate to excluded information, when the Tribunal is exercising judicial power. Had we been inclined to agree with that contention, that would have rendered this cross-appeal moot. However, for the reasons set out above, we disagree that the Tribunal is not properly considered a court for the purposes of the GIPA Act, when the Tribunal is constituted to hear and determine an administrative review application for the purposes of the GIPA Act. This is so, even though the Tribunal exercises administrative, rather than judicial power, in proceedings under the GIPA Act.

377. In addition to the submissions made under Ground 14 of the appeal, Ms Wojciechowska, under this ground of the cross-appeal, submitted that “related to” is “not a term of art” and should be understood by its “ordinary definition” (Tcpt, 12 February 2026, p 38(44)-(46)). Ms Wojciechowska contended that the Macquarie decision definition of “associated, connected” should be used, and that CCTV footage is “not associated in the relevant sense” (Tcpt, 12 February 2026, p 38(43)).

Determination of Ground 1

378. Determination of Ground 1 requires us to construe the expression “relates to” as set out above. Construction of a statute begins with the text, which immediately requires consideration of the context: Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 at [21(1)] (Patrick).

379. Before embarking on that exercise, we pause to note that we accept the Secretary’s first proposition, that merely because information relates to one function does not mean that it does not also relate (relevantly) to another function; including one that would mark the information as excluded information. This was the position in Betzis*,* which held that a coronial brief related both to the judicial functions of the coroner and the investigative functions of the NSW Police.

380. However, we do not read the Tribunal’s reasons as simply choosing between two functions, (safety and security in the first case and hearing and determining proceedings in the alternative case), and then dismissing the relevance of the relationship in the alternative case simply because the relationship in the first case satisfied the statutory test. In other words, we do not accept that the Tribunal dismissed the relevant connection between the CCTV footage and the Tribunal’s function of hearing and determining matters simply because a relevant connection existed between the CCTV footage and the functions of safety and security, which were the purview of the Sheriff.

381. Instead, the Tribunal rejected the proposition that there was indeed a relevant connection between the CCTV footage and the Tribunal’s function of hearing and determining the proceedings. That the Tribunal, instead, considered that the CCTV footage related to safety and security does not gainsay that the Tribunal nonetheless rejected the proposition that the CCTV footage related to the Tribunal’s hearing and determining proceedings.

382. This is consistent with what the Tribunal said when considering whether there was an overriding public interest against disclosure of the CCTV footage and whether that could be ameliorated by view-only access. In that regard, the Tribunal noted as follows at [136] of the Decision:

“Disclosure of the CCTV footage could reasonably be expected to inform the public about the operations of the Tribunal, in particular, how the hearing room is configured and the movements of the Tribunal Member and employees of the Respondent during the hearing: GIPA Act, Note to s 12(2). But there is no issue of public affairs or public importance which would be promoted or enhanced if the footage was disclosed. The Tribunal is accountable for how it conducts a hearing because the hearing is recorded.”

383. The Tribunal considered the information in the CCTV footage could be informative of “how the hearing room is configured and the movements of the Tribunal Member” but did not contribute to accountability of the Tribunal. Accountability was said to be promoted “because the hearing is recorded”. How the hearing room is configured, was found not to speak to the Tribunal’s function of hearing and determining matters. The Tribunal did not reject the contention that the information was excluded information because the information related to functions of the Sheriff. We note that we have above, when determining Ground 2, set out the Tribunal’s reasoning for rejecting the Secretary’s contention.

384. The question still remains in relation to the Secretary’s other proposition: whether the Tribunal erred in regarding the proposition that CCTV footage relates to, in the requisite sense, the Tribunal’s function of hearing and determining proceedings.

Principles of statutory construction

385. A statute must be construed according to its text, context and purpose. In Patrick, the Appeal Panel set out settled principles of statutory construction at [21(1)-(11)]:

“(1) The starting point for statutory construction is the text; but context and purpose must be considered at the first stage, to assist in fixing the text with its meaning.

(2) To that end, we note the following statements. First, by the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (SZTAL) at [14], that:

‘The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.’

(3) And also in SZTAL at [37], by Gageler J:

‘… The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.’

(4) Context includes the surrounding text of the relevant provision and indeed the whole of the relevant Act: Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 (Palgo) at [37].

(5) Context includes the objects, as expressly stated: SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20].

(6) The mischief and purpose of an Act is also a relevant consideration: K*-Generation Pty Ltd v Liquor Licensing Court* (2009) 237 CLR 501; [2009] HCA 4 at [52]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.

(7) A construction that promotes the purpose or objects of an Act is to be preferred: Interpretation Act 1987 (NSW), s 33*; SZTAL* at [39].

(8) Where possible, every word is to be ascribed some work to do; the construer of a statutory provision must “strive to give meaning to every word of the provision”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71].

(9) Words should not be read into a statute lightly: Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38].

(10) Where different words are used in the same provision or Act, this may (but not must), depending on the context, suggest they are intended to have different meanings: Kvelde v New South Wales [2023] NSWSC 1560 (Kvelde) at [210].

(11) When construing legislation, care must be taken not to be overly influenced by generalisations. As the High Court has observed, “fixing upon the general legislative purpose” of a statute carries with it the risk that the text does not “receive the attention it deserves”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at [51].”

Objects of the GIPA Act

386. Section 3(1) of the GIPA Act sets out the objects of the Act:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by—

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

387. Pursuant to s 3(2)(a) of the GIPA Act, the GIPA Act must be interpreted and applied to further the Object. There is a presumption in favour of disclosure, unless there is an “overriding public interest against disclosure”: GIPA Act, s 5.

388. Here, the expression we are construing is an exemption to an applicant’s rights to access. This sets on its head what might otherwise be considered the starting point: that the GIPA Act is to be interpreted in favour of access. We are, here, concerned with a conclusive presumption that there is an overriding public interest against disclosure.

The Tribunal’s Objects

389. As the relevant relationship is between the information and the Tribunal’s function of hearing and determining proceedings, it is relevant also to consider the Tribunal’s objects (NCAT Act, s 3):

3 Objects of Act

The objects of this Act are—

(a) to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and

(b) to enable the Tribunal—

(i) to make decisions as the primary decision-maker in relation to certain matters, and

(ii) to review decisions made by certain persons and bodies, and

(iii) to determine appeals against decisions made by certain persons and bodies, and

(iv) to exercise such other functions as are conferred or imposed on it, and

(c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and

(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

(e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and

(f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and

(g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.

390. Relevantly too, s 38(2) of the NCAT Act requires the Tribunal to apply the rules of natural justice. Coupled to the objects of the NCAT Act, which cite openness and accountability, and public confidence in tribunal decision-making in the State and in the conduct of Tribunal members (NCAT Act, s 3(f) and (g)) this underscores the importance of the Tribunal’s function of hearing and determining proceedings in an accessible, accountable, and open manner, that is fair and just.

391. The Tribunal found that the information in the CCTV footage only contributed marginally to accountability.

392. Further, whilst the Secretary has not sought to put the case on the basis that the CCTV footage could somehow contribute to the Tribunal’s function, we raised at the hearing the possibility that it could.

393. Unlike sound recordings and transcripts of hearing, which are often quoted in reasons for decisions, it is not suggested that CCTV footage is a standard resource for the Tribunal. It is not a resource by which matters are heard and determined in the Tribunal. It is, however, conceivable that CCTV footage might on occasion be of assistance in appeal proceedings. For instance, where a ground of appeal concerns what happened or did not happen at a hearing. Some possible examples include: where there has been “a miscarriage of justice by failure of the judicial process”, such as where the contention was the Tribunal fell asleep (Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 at [96] (French CJ)). In Cesan v The Queen, Chief Justice French noted Basten JA’s dissenting judgment in the judgment being appealed, wherein Basten JA relied upon the transcript of the trial, as it showed that “on most days, there were long periods with no intervention by the judge”: Cesan v The Queen at [58] (French CJ). CCTV footage might have been informative. Also, in a case where the Tribunal’s manner might ground a contention of actual bias, or where the actions of the parties and public in the room might be relevant to assertions of contempt, the CCTV footage of the hearing could be relevant.

394. These examples demonstrate that, theoretically, the CCTV footage could indeed foster accountability, and may assist the Tribunal in discharging its function.

The function of the Sheriff and the function of the Tribunal

395. As noted above, the Secretary relied on a direct relationship between the CCTV footage and the Tribunal’s primary function of hearing and determining proceedings: a direct connection. Nevertheless, as noted above, the statutory provisions envisage, by the reference to two relationships (the relationship between the information and a function and the relationship between the function and the Tribunal’s role in hearing and determining proceedings), an indirect connection.

396. Here, another way of looking at the issue is that the CCTV footage relates (as the Tribunal found and as is not disputed on appeal) to the Sheriff’s function of safety and security of the Tribunal: Decision at [124].

397. At the hearing at first instance, it was said in the affidavit of Mr Mayer, a Deputy Sheriff of the NSW Sheriff’s Office (which formed part of the open materials):

“…I have overall responsibility for the security of Court and Tribunal premises, including protective security, intelligence, statewide communications, monitoring, physical security and electronic security of premises. I also have responsibility for operational training of Sheriff’s Officers in relation to their security obligations.

…

The Sherif’s Office operates a CCTV system using software supplied by a security technology company called Genetec Inc. CCTV can be viewed ‘live’ using specialised terminals available for that purpose.”

398. If one approaches the statute using the two questions we identified above, the analysis proceeds as follows:

399. What function does the CCTV footage relate to?

400. Does that function relate to the Tribunal’s function of hearing and determining proceedings?

401. The answer to the first question is, indisputably, that the CCTV footage relates to the Sheriff’s function of safety and security of the Tribunal.

402. We consider that that function (i.e., the Sheriff’s function of safety and security of the Tribunal) indirectly relates to the Tribunal’s function of hearing and determining proceedings because it is part of how the Tribunal performs its role safely.

Meaning of “relate to”

401. A review of the cases that have considered the expression “relate to” in this, and other materially similar contexts, reveals that there is no clearly defined approach to determining whether information “relates” to the judicial function of hearing and determining proceedings. Generally, it is accepted as a starting position, that the expression “relate to” has a very broad ambit: see for instance Betzis; Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185; NZ v Attorney-General*’s Department [2005] NSWADT 103; N -v- Director General, Attorney General’*s Department (GD) [2002] NSWADTAP 41. These cases often rely on Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620, 622 (Taylor J); [1961] HCA 35; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479-480 (Wilcox J).

402. Where an expression can have a range of meanings, the expression takes its particular meaning from the context and purpose of the provision in which it is found: Patrick at [21(1)].

403. As to the possible meanings, some of the cases raise the suggestion that to “relate to” the hearing or determination of proceedings before a court or tribunal, the information must do so in a fashion that affects, or could affect, the performance of the judicial function. In N (No. 2) -v- Director General, Attorney General*’s Department [2002] NSWADT 33, O’Connor DCJ, President, found that all of a group of documents were subject to the exception contained in s 10 of the Freedom of Information Act 1989 (NSW) (repealed) (FOI Act). Section 10 and the definition of “judicial functions” in s 6(1) of the FOI Act are substantially similar to the provisions of the GIPA Act the subject of this cross-appeal. His Honour found that the documents were either “clearly relevant to”, “relate to”, or “could be relevant to” the judicial functions of the tribunal in question (the Victim’s Compensation Tribunal (VCT)). On the last point, his Honour noted the particular documents sought were communications which “may be relevant to the VCT’s scrutiny of a claim”, and that the VCT had “a wide power to have regard to ‘such other matters as [it] considers relevant’” under its constituting Act (at [35]). His Honour was then “satisfied that it is a document that could be relevant to the hearing and determination of a claim”, and that it was subject to the exception in s 10 of the FOI Act (at [35]). An appeal of the decision was dismissed, the Appeal Panel finding that each of the documents “was created or obtained by the VCT for the purpose of, or to facilitate, the VCT’s hearing or determination of proceedings”: N -v- Director General, Attorney General’*s Department (GD) [2002] NSWADTAP 41 at [33].

404. Other cases ask whether the information sought is “integral”: Betzis at [36], LG v Attorney Generals Department of NSW [2009] NSWADT 141 at [34], [39].

405. Otherwise, the cases suggest that the connection must be direct and substantial: Murdoch v Commissioner of Police, NSW Police Force [2025] NSWCATAD 196 at [28]-[29] (Murdoch); Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 at [76].

406. The Tribunal in Murdoch at [28]:

“If there is a direct and substantial relationship between the information and the function, the information will ‘relate to’ the prosecuting function. If the relationship is indirect or less substantial, there may be some room for argument but I do not need to determine that issue.”

Conclusion on the meaning of “relate to”

407. At one end of the spectrum, a connotation of the expression “relate to” requires a relationship in which the information is useful, practical or purposeful to the execution of the judicial functions. For instance, information contained in affidavits filed in proceedings. Such a connection would be a strong and direct connection. At the other end of the spectrum would be a coincidental connection.

408. Looking at the text, in context, the relationship that is identified is between the information sought and the Tribunal’s functions. The relationship required is not merely between the information on one side and the hearing and determining of proceedings on the other side. The relationship required is between the information and the Tribunal’s functions in hearing and determining proceedings. This supports a view that to relevantly “relate to” the judicial function, the information must contribute to or facilitate the Tribunal’s performance of that function. Nevertheless, if such a direct and substantial connection were required, clearer words might have been used.

409. Ultimately, we conclude that the GIPA Act does not require a specific type of connection, otherwise less generalised words would have been used. And as the review of cases above has indicated, the expression “relate to” is of very wide ambit. We therefore accept the approach adopted in Murdoch that the words are of wide meaning, but not unbounded. The connection need not be such that the information assists the Tribunal to perform its function, however the relationship must be more than coincidental. The relationship must be substantial, in the sense of “real or of substance as distinct from ephemeral or nominal and does not mean ‘large or weighty’”: Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48 at [27] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) citing Tillmanns Butcheries Pty Ltd v Australasian Meat Industries Employees*’* Union (1979) 42 FLR 331 at 348; Hembury v Chief of the General Staff (1998) 193 CLR 641 at 650-651; [1998] HCA 47.

The CCTV footage relates to the Tribunal’s function of hearing and determining the proceedings.

410. In this case, there are factors pointing for and against there being the requisite level of relationship between the CCTV footage and the Tribunal’s functions of hearing and determining proceedings.

411. Factors which we have identified as being in favour of the relationship as being sufficient:

412. Visual, temporal and spatial connections.

413. Direct, in the sense of being directly connected with the hearing of the proceedings.

414. The CCTV is used by the Sheriff in its role of safety and security of the Tribunal, which in turn relates to the Tribunal’s function of hearing and determining proceedings.

415. Factors against the relationship rising to the level of “relate to”:

416. The CCTV footage is not generally or routinely used by the Tribunal for its own processes.

417. All of the Tribunal’s functions can be performed without capturing CCTV footage of the hearing.

418. As the foregoing lists demonstrate, one can identify a temporal connection. The CCTV footage and the hearing are simultaneous. There is a connection by location; the CCTV footage depicts the hearing room. There is also a connection of persons, as the CCTV footage records who is present, and what they are doing. Whilst the enumerated connections do not assist (other than perhaps in some extreme examples, as referred to above, which do not exemplify the norm) the Tribunal to hear or determine the proceedings, the nexus between the CCTV footage and the Tribunal’s role of hearing and determining proceedings is significant. It is enough that the CCTV footage is visually and temporally connected to the hearing. The CCTV footage need not assist the Tribunal in executing its functions to satisfy the test of “relate to”.

419. Additionally, there is also a connection by way of the Sheriff’s role which strengthens the already sufficient connection we have just referred to.

420. The CCTV footage of the hearing relates to the Tribunal’s function of hearing and determining proceedings, in the requisite sense. The information is excluded information.

421. Ground 1 is upheld. Accordingly, the cross-appeal is allowed.

422. Before setting out the orders for the appeal and cross-appeal, there are some ancillary issues, namely the issue of any order as to confidentiality and as to costs, which require consideration.

Additional issue regarding confidentiality

418. In addition to the grounds of the appeal and cross-appeal, there is an issue concerning the making, and scope, of confidentiality orders. The Secretary seeks a confidentiality order on the appeal and cross-appeal in relation to materials filed in the Tribunal at first instance, purportedly on a confidential basis, but for which no confidentiality order was made, and which were subsequently filed with the Appeal Panel.

Proposed orders in respect of confidential material

419. On 12 February 2026, the Appeal Panel granted the Secretary leave to file proposed short minutes of order, in relation to confidentiality orders sought in the appeal and cross-appeal, and granted Ms Wojciechowska leave to respond.

420. The Secretary’s proposed short minutes are as follows:

“1. Pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013, there be no disclosure to the application or any non-party, or publication, of the following evidence filed with the Appeal Panel:

a. the bundle described as the ‘Respondent’s CONFIDENTIAL Bundle of Documents’; and

b. the ‘Confidential USB’ that forms part of that Bundle.”

421. The reference to the Confidential Bundle is a reference to what we have referred to as the confidential material, which was filed at first instance and again on appeal.

422. Ms Wojciechowska does not agree with the Secretary’s proposed order, on numerous bases, and objects to the confidential material remaining confidential. One suggestion is that the Appeal Panel may, “at the end of proceeding…reject those documents and materials confidential bundle for filing…” (Tcpt, 12 February 2026, p 48(10)-(11)).

423. Ms Wojciechowska submits that the Secretary’s proposed order does not contain an indication that they are to be interim, when “the Appeal Panel has no jurisdiction to make final orders”.

424. Ms Wojciechowska submits that the Secretary did not seek the proposed orders in either the appeal or the cross-appeal. Accordingly, so it is contended, the Secretary requires an extension of time “to appeal the decision of” the Tribunal “on that point” and “would then require leave to appeal from an interlocutory decision to decline to make orders under s 64 of CAT Act….because decision regarding disclosure are classed as interlocutory under CAT Act”. Ms Wojciechowska opposes the granting of any such leave, and contends that the Secretary has not provided evidence as to why leave should be granted.

425. Ms Wojciechowska contends that the Tribunal accepted her arguments that the material was not confidential “by declining to make orders under s 64 of CAT Act and s 107 of GIPA Act” at first instance and there is an absence of any submissions, which constitutes procedural unfairness.

426. Ms Wojciechowska submits various reasons as to why the proposed order “cannot be made”, including:

427. “too wide, in that they would confer on DCJ benefits the DCJ did not otherwise enjoy prior to the commencement” of the appeal and cross-appeal.

428. Lack of utility, as it is already the “business practice” of the Tribunal Registry to restrict access to confidential documents.

429. The Tribunal has no power under s 64(1) of the NCAT Act to make the proposed order.

430. The Tribunal has no power under s 107 of the GIPA Act.

431. Denial of procedural fairness to Ms Wojciechowska, as she has not been provided with a “sealed table of content”.

432. Ms Wojciechowska also highlighted that no order under s 64 of the NCAT Act was made at first instance.

Determination in relation to the confidentiality orders

428. There are many factors that support that proposition that the Tribunal’s processes are to remain open. The Tribunal discussed the principles of open justice in Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Saravinovski [2024] NSWCATOD 170 at [19]-[23]:

“19 The Tribunal adheres to the principles of open justice. The objects of the NCAT Act include promoting public confidence in tribunal decision making and ensuring that the Tribunal’s processes are open and transparent: NCAT Act, ss 3(g) and (f). Section 49 of the NCAT Act reveals that the starting position is that hearings will be held in public.

20 Albeit in a different context, the principles of open justice were described by McHugh JA (as his Honour then was) in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-43:

‘It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.’

21 The Tribunal must consider each case on its merits and by reference to the NCAT Act.

22 As mentioned, s 49 of the NCAT Act starts with the premise that hearings will be in public, but also expressly contemplates exceptions to the usual rule. Further, s 64 of the NCAT Act allows the Tribunal to make non-disclosure or non-publication orders in appropriate cases. The touchstone for departing from an open hearing and for making restrictions in relation to disclosure and publication is that it be desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

23 Whilst speaking about s 75 of the Administrative Decision Tribunal Act 1997 (NSW), the Appeal Panel in Dezfouli (at [81]) summarised some of the relevant principles, and highlighted that there is a presumption in favour of open justice; however, there is also breadth to the expression ‘desirability’ and breadth to the range of purposes that may be served (‘any other reason’) which also must be taken into account.”

429. Nevertheless, this cannot gainsay that in appropriate cases, confidentiality orders restricting disclosure or publication of material can be made.

430. Section 64 of the NCAT Act provides as follows:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

431. An appeal panel has recently reiterated the basis upon which it is appropriate to make confidentiality orders: Houda v Seraphim [2025] NSWCATAP 135 at [73]-[79], [84]-[86], [96].

432. Section 107 of the GIPA Act is also relevant, and is extracted at [120].

433. Section 64 confidentiality orders may be made in aid of complying with s 107 of the GIPA Act: Brazel v Sydney Water Corp**oration [2021] NSWCATAP 13 at [61].

434. Here, the confidential material was filed on the basis that the Secretary contended that there was an overriding public interest against disclosure and that s 107 of the GIPA Act was engaged. At first instance, the Tribunal upheld most of the Secretary’s claims, remitted two items for further consideration, and granted limited access to two items: Item 1 of the second access application (the CCTV footage) and Item 8 of the second access application (a letter from Justice Armstrong to the Attorney-General). The CCTV footage the subject of the cross-appeal is in a different category and we consider this separately.

435. To the extent that the Tribunal found that there was an overriding public interest against disclosure and we have not, on appeal, disturbed those orders, then it is desirable to make an order under s 64 of the NCAT Act to restrict publication and disclosure of the confidential material. This is because the confidential material contains information about the disputed access items, access to which was not granted to Ms Wojciechowska.

436. This confidentiality order preserves the integrity of the orders made at first instance not to disclose the information and is consistent with s 107 of the GIPA Act. To this end, it is of no moment that no express confidentiality order was made by the Tribunal at first instance, as these confidentiality orders are made to ensure the integrity of the orders actually made at first instance and upheld on appeal.

437. Further, we reject Ms Wojciechowska’s contention that we have no power to make the orders. Whilst they are being brought in aid of s 107 of the GIPA Act, the orders will be made under s 64 of the NCAT Act to preserve the utility and integrity of the orders made at first instance. Section 64 of the NCAT Act applies to all NCAT proceedings. It is often used on appeals: Brazel v Sydney Water Corporation [2026] NSWCATAP 9; Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244. Further still, the extent that Ms Wojciechowska contends that to make such an order breaches procedural fairness, we have already addressed that as part of Grounds 4 and 5. Finally, despite the fact that there may be practices in the Tribunal that preclude persons from searching the files, at least until the conclusion of the proceedings, there is utility in making this order. That practice adverted to by the appellant may be found at r 42(5) of the NCAT Rules, and noted in NCAT Policy 4 “Access to, and Publication of, Information Derived from Proceedings in the Tribunal” (October 2019) at [25]. Orders under s 64 extend beyond searches of the file and extend to publication and disclosure of the material.

Costs

438. The Secretary foreshadowed an application for costs in relation to the appeal lodged by Ms Wojciechowska. However, given the progression of the hearing, the Appeal Panel indicated it needed to give the parties an opportunity to make submissions as to costs, once the decision had been delivered. Orders for submissions will be made.

Orders on the appeal (2025/00044353)

439. The Tribunal orders as follows:

440. Leave to extend time to rely on additional grounds raised orally on day 1 of the hearing is refused.

441. Leave to appeal on grounds 6, 7, 8, 9, 10, 11, and each of the additional grounds is refused.

442. Otherwise, the appeal instituted by Ms Wojciechowska is dismissed.

443. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the confidential material as defined in this written statement of reasons at [118] is restricted to the Respondent.

444. If a party wishes to make an application for costs, the following directions apply:

(i) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Tribunal Registry any submissions and documents the costs applicant intends to rely on in relation to the application; (ii) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Tribunal Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs; (iii) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Tribunal Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent’s submissions and documents; (iv) the parties are to include, in their written submissions concerning the application for costs, their submissions and any materials sought to be relied upon on the question of whether a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

Orders on the cross-appeal (2025/00066768)

440. The Tribunal orders as follows:

441. The cross-appeal is allowed.

442. Order 2(a) of the orders made on 6 January 2025 is set side.

443. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the confidential material as defined in this written statement of reasons at [118] is restricted to the Cross-Appellant.

444. If a party wishes to make an application for costs, the following directions apply:

(i) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Tribunal Registry any submissions and documents the costs applicant intends to rely on in relation to the application; (ii) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Tribunal Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs; (iii) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Tribunal Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent’s submissions and documents; (iv) the parties are to include, in their written submissions concerning the application for costs, their submissions and any materials sought to be relied upon on the question of whether a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

**********

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

[2026] NSWCATAP 9