Zonnevylle v Minister for Education and Early Childhood Learning

NCAT Administrative and Equal Opportunity|2022-05-25

Background

In the Affidavit of Ms Sarah Hargans filed on behalf of the respondent the following background to these proceedings is set out which I adopt: "5 I am aware that the applicant made an application for information under the Government Information (Public Access) Act 2009 ('the GIPA Act') on 21 February 2020. 6 Following correspondence between the applicant and the Minister's office, the scope of the applicant's application was revised as reflected in an email from the applicant dated 13 May 2020. A copy of that email is annexed to this affidavit and marked 'A'. 7 By a notice of determination dated 19 June 2020, the Minister's office determined the applicant's access application, providing access in part to 99 pages of information, and refusing access to the balance of information requested. 8 The applicant sought review of the determination of 19 June 2020 by the Information Commissioner. In a review report issued on 28 October 2020, the Information Commissioner recommended pursuant to s.93 of the GIPA Act that the Minister's office make a new determination by way of internal review. 9 By application to the Tribunal filed on 6 October 2020, the applicant made an application for administrative review, naming the Minister as respondent to the application. The application for administrative review did not identify which decision the applicant sought to have reviewed. 10 At the first case conference in this matter on 10 November 2020, the applicant advised the Tribunal and the respondent that his application related to the determination of 19 June 2020. The respondent advised that it had determined to accept the Information Commissioner's recommendations and make a new decision. The matter was stood over to 15 December 2020 to allow for the new decision to be made. 11 On 14 December 2020, the respondent issued its internal review decision in response to the applicant's access application. The respondent determined that: a. certain items of information requested by the applicant were not held by the Minister's office; and b. to provide access in part to the 292 pages of information identified as responsive to the applicant's access application."

Substantive Application - The Issues before the Tribunal

The applicant in both his statement (entitled affidavit, which is not signed, not sworn, nor affirmed and is undated) and in written submissions, contends that many officers of the respondent and past and current ministers of the crown are allegedly corrupt. These allegations and complaints are wide-ranging assertions alleging breach of statutory obligations and other matters. To the extent that those assertions relate to and are incorporated within and relevant to the application for administrative they will be dealt with, but otherwise will not be dealt with in this decision because they are assertions without relevance to consideration of the application.
Having carefully considered the written material, I see no need to record the applicants assertions and submissions to the extent that they are not relevant to the application. That is because they are not only irrelevant and wide-ranging (straying far from the decisions which are the subject of this application) but also unsupported by cogent and probative evidence.
It is important to remember in considering the application and in reading these reasons for decision, the applicant chose not to participate in the hearing of the substantive application. He did not seek to challenge any evidence of the respondent by cross-examining Ms Hargans'. The only challenge to the respondent's evidence is what is contained in the applicant's unsigned statements which has not been adopted by him under oath. Where relevant, the appropriate weight has been attached to his written material in that regard.
The Applicant contends that several issues are raised in the application and that these include: 1. alleged corrupt conduct of various officers; 2. the respondents alleged lack of good faith (or bad faith) in dealing with GIPA applications and enquiries; 3. the respondent's refusal to grant access to personal information; 4. the respondent's decision that information is not held; 5. the respondent's decision that there is a risk of harm or of serious harassment or serious intimidation; 6. the respondent's decision that information would reveal deliberative process and prejudicial deliberations; 7. release of access to information is subject to client legal privilege; and 8. release of access to information is subject to client legal privilege.
The applicant seeks the following orders: "(1) The tribunal is required to clarify / confirm my GIPA Act rights as sought by the enclosed Questions of Law. (2) The tribunal is required to ensure & confirm those GIPA Act rights have not been compromised / abused or otherwise by misconduct by any officer exercising functions for the processing of the access application. (3) The tribunal is to clearly & specifically state what conduct standards are used for their misconduct complaint assessment (4) The tribunal is required to provide transparent & detailed decisions to ensure that: (i) the GIPA Act function of providing legal advice and/or oversight and (ii) breaches of mandatory statutory obligations (such as the obligation to exercise discretions to promote the object of the Act) and (iii) breaches of mandatory statutory obligations (such as the obligation to promote the object of the Act) and (iv) statutory conduct obligations required by GSE Act officers such as Hargans have not breached my GIPA Act rights (4) Where appropriate, the tribunal is required to order the release of those relevant documents (5) The tribunal is required to make a Sect. 112 referral to the appropriate authority (OMBO, ICAC, OLSC, minister, parliament standards, or otherwise) and / or explain in full detail how the conduct of Hargans or other officers has not breached statutory conduct obligations required under the Act."
In my view these issues require the Tribunal to determine whether the Respondent's decisions: 1. that information is not held; 2. refuse access to information clause 3(f) - risk of harm or of serious harassment or serious intimidation; 3. information would reveal deliberative process and prejudice deliberations - clause 1(e); 4. information is subject to client legal privilege; 5. information is subject to client legal privilege; and 6. application of s 112 of the GIPA Act. are the correct and preferable decisions.
Section 112 of the GIPA Act is in the following terms: 112 Report on improper conduct If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

Confidential documents

Section 107 of the GIPA Act provides that in determining an application for review, the Tribunal is to ensure that it does not, in the reasons for decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. The Tribunal must receive evidence and hear argument in the absence of the public, the review Applicant and their representative if in the Tribunal's opinion it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
The respondent has provided a bundle of documents on a confidential basis, including the unredacted version of the documents provided in response to the access application, and the Tribunal has had regard to that material.
The confidential bundle has not been disclosed to the Applicant.

Legislation

The object of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information: s 9(1) of the GIPA Act.
There is a general public interest in favour of disclosure of government information: s 12(1) of the GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12.
The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act, and as relevant to this review are discussed below. Relevantly, this conclusive presumption applies with respect to: 1. information, the public disclosure of which would, but for any immunity of the Crown, infringe the privilege of Parliament (Schedule 1, cl.4(c)); and 2. information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) (Schedule 1, cl.5).
The determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the Applicant may be taken into account: s 55 of the GIPA Act. Those factors are the Applicant's identity and relationship with any other person, the Applicant's motives for making the access application, and any other factors particular to the Applicant.
Section 55 factors provide, namely: "(a) the identity of the applicant and relationship with any other person; (b) the applicant's motives for making the access application; and (c) any other factors personal to the applicant."
They may also be taken into account as factors against providing access, to the extent those factors are relevant to public interest considerations against disclosure under cl. 2-5 of the table to s 14 of the GIPA Act.
Section 58 of the GIPA Act sets out how access applications may be decided by agencies. Relevantly, an agency may determine an access application by deciding: "(a) that information is not held by the agency (s58(1)(b) of the GIPA Act); (b) to refuse to provide access to information because there is an overriding public interest against disclosure (s58(1)(d) of the GIPA Act)."
A decision that information is not held, and a decision to refuse access to information are both 'reviewable decisions' under the terms of s 80(d) and (e) of the GIPA Act. A person aggrieved by a 'reviewable decision' may seek a review of that decision by the Tribunal under s 100 of the GIPA Act. The onus lies on the respondent to establish that the decision is justified which is set out in s 105(1) of the Act.
Disclosure of information in response to an access application cannot be made subject to any conditions on the use or disclosure of the information: s 73 of the GIPA Act.
The Tribunal's task when undertaking administrative review is to determine what the 'correct and preferable decision' is: s 63 of the Administrative Decisions Review Act 1997. The time at which the determination is to be made as to the correct and preferable decision is the date and time that the Tribunal makes its decision: WG & GG v Minister for Community Services [2002] NSWCA 247 at [25].
In determining this application the Tribunal is required to: 1. Identify the public interest considerations in favour of disclosure of the information; 2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the respondents; and 3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under, and as permitted by, s 55 of the GIPA Act: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19.
That process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport NSW v Searle [2018] NSWCATAP 93 at [104].

Information not held

The decision of 14 December 2020 determined that the following information requested by the applicant was not held by the respondent: 1. Zonnevylle GIPA applications - Documents/log of all Australia Post and Registered Post articles & other items addressed to / received by a. Stokes b. the Ministry for Education c. Level 18, 52 Martin Place on days between (14/6/18 to 18/6/18) & (1/5/18 to 3/5/18) 2. Zonnevylle GIPA applications - Documents/list/summary of all documents provided to Zonnevylle in response to the Nov. 5 2018 decision. 3. Documents constituting all search requests made in regards to Zonnevylle's GIPA application(s) of 2018 4. Documents identifying all Ministry, DEC officers or any other staff who exercised functions (1) and (2) and what 'function' is used. 5. Documents detailing legal expenses incurred (Paid, current or pending by the Minister/Ministry for matters related to Zonnevylle including any legal services provided for NCAT2018/0033385 Zonnevylle v Stokes (Minister for Education); SC2019/392034 Minister for Education v Zonnevylle; and all legal services provided to the Minister/Ministry related to Zonnevylle/ISSCO/ISSCOED/Injurious falsehood."
Ms Hargans evidence is that the current Minister, the Hon Sarah Mitchell, MLC was appointed to her office on 2 April 2019. The documents requested at the items numbered 1-4, related to the previous Minister, the Hon Rob Stokes.
Ms Hargans said, the office of the current Minister does not hold documents relating to Minister Stokes' term. At the time of Minister Mitchell's appointment, records relating to the previous Minister's term would remain with the Minister and his staff, or are to be dealt with in accordance with the State Records Act 1998.
As it relates to the item numbered 5, Ms Hargans said that the engagement of legal service providers for the Minister occurs through the Department. Invoices are sent directly to the Department, rather than to the Minister's Office.
The applicant contends that the items numbered 1 - 4, all relate to previous GIPA applications concerning Minister Stokes. He says the GIPA documents are "live" during the course of the litigation of his GIPA requested and matters then pending before the Tribunal. He says it is incumbent upon Minister Mitchell to ensure that the documents pertaining to the previous administration, namely Minister Stokes, remained in her possession. He refers to previous GIPA applications made concerning Minister Stokes and submits that the documents should be held by Minister Mitchell.
In relation to item 5, the applicant submits that Ms Hargans' evidence contradicts item 4. I find no such contradiction. Ms Hargans evidence that payments are sent directly to the department and not held by the Minister is plausible. The applicant chose to not to challenge Ms Hargans evidence in cross examination and I accept it.
Apart from the applicant's submissions and statements, Ms Hargans' evidence which is affirmed, is unchallenged. Ms Hargans was not cross examined and I accept her as a reliable witness. I do not accept the broad and unsubstantiated allegations made by the applicant that Ms Hargans' evidence is unreliable.
Having regard to these matters, I am satisfied that the respondent does not relevantly hold information responsive to the above categories of information requested.

Public interest considerations in favour of disclosure

I have considered the general public interest in favour of disclosure. I have also considered the application of the public interest considerations against disclosure (s 14(2) of the GPA Act).
The Appeal Panel of the Tribunal addressed the approach to be adopted to s. 14 and surrounding provisions in Pt 2 Div. 2 in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 ("Camilleri"), stating at [24]-[26]: "Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the s. 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s. 13), mindful of the injunctions that appear in both ss. 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. .. the section 14 questions needed to be examined at a broader operational level than occurred in this case ... It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.'
The Appeal Panel concluded that it was "not relevant to the Tribunal's task at the s. 14 stage of the enquiry to take account of events subsequent to the circumstances that gave rise to the document or information the subject of the refusal" as "the s. 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged".
The considerations against disclosure in the Table to s. 14 arise where the disclosure of information "could reasonably be expected" to have the relevant effect. The phrase "could reasonably be expected to" was also used in Sch. 1 of the former Freedom of Information Act 1989, as well as in the Freedom of Information Act 1982 (Cth) and has been the subject of extensive judicial consideration. In Attorney-General's Department v Cockcroft (1986) 10 FCR 180, Bowen CJ and Beaumont J held that the words: "require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298, the Administrative Decisions Tribunal held that: "The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Near v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pt Ltd v PIAC."
The Tribunal cited this approach with approval, in considering the GIPA Act, in Flack v Commissioner of Police (NSW) [2011] NSWADT 286, at [41].
The word "prejudice" is given its ordinary or everyday meaning, being "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
In Transport for SW v Searle [2018] NSWCATAP 93, the Appeal Panel found that the Tribunal had erred by applying an overly demanding evidentiary standard, as far as it required the agency to provide "factual" evidence in order to satisfy the "could reasonably be expected" standard. The Appeal Panel was critical, in particular, of the Tribunal's emphasis on the need for specific evidence as to what suppliers of information would actually do if the confidentiality of information could not be assured. Given the administrative nature of the decision in issue, and the abstract and hypothetical subject matter, the Appeal Panel found that the Tribunal had overstated the importance of such evidence and been too stringent in its approach. An ordinary weighing of the material by the tribunal would give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses.
In addition to the general public interest in favour of disclosure of, the respondent accepts that the public interest considerations in favour of disclosure are those identified in s12(1) of the GIPA Act and paras (c), (d) and (e) of the Note to s 12 in the GIPA Act. In addition, the respondent contends that the reviewable decision also took into consideration the personal factors of the applicant, and in particular, the fact that the applicant feels aggrieved by his perceived treatment by the Department of Education, and that he has made a number of complaints about the conduct of Department officers.
The Applicant contends the general interest in favour of disclosure of the information is high. He asserts that as a result of "the alleged misconduct/corrupt conduct of the alleged corrupt conduct of The Hon Minister Mitchell and Ms Hargans, that his personal factors have not been properly considered." He submits that his statement provides evidence to support his allegations of alleged corrupt conduct being perpetrated against him and his employer. He goes further to submit that the evidence establishes on a prima facie basis that Ms Hargans is complicit, if not actually participating in alleged corrupt conduct.
As a preliminary matter, I make no positive finding that Ms Hargans, The Hon Minister Mitchell, nor any other officer alleged of misconduct, or, corruption has been established by the applicant. All of the applicants allegations are made in an unsworn and unsigned statement. They are wide-ranging unsubstantiated allegations which are not supported by cogent probative evidence. The applicant refused to participate in the substantive hearing. He has not adduced any corroborative evidence apart from his statement which could go close to substantiating his allegations. By the applicants failure to engage with the Tribunal's hearing process and by not allowing evidence to be tested in the usual manner, the allegations of misconduct or alleged corruption go no further than speculative allegations. I attach minimal, if any, weight to the applicants complaints in this regard.
Notwithstanding this, I deal with the remainder of the application on its merits. What can be gleaned from the applicants material, is that is important to ensure that there is transparency in disclosure of information in terms of particular emphasis being placed on consideration (e) and (c)-(d) in the note to s 12 of the GIPA Act.
The Applicant also submits that significant weight should be given to general public interest considerations in favour of disclosure due to the harm to the public caused as a result of alleged misconduct or corruption.
I find, as set out below, each of the matters as described in paragraph [108] and [111] are relevant public interest considerations in favour of disclosure of the information sought in the access request. The matters in [107] and [108] are matters to consider pursuant to s 55 of the GIPA Act subject to its limitations.

Consideration of the grounds that release of the information gives rise to a public interest against disclosure

Clause 3(f) - Risk of harm or of serious harassment or serious intimidation

I will first deal with the redaction of the personal details of individuals from pages 9-13, 16-21, 26-30, 39-41, 47-50, 56, 59, 62, 65-68, 70-72, 79, 83, 85, 89-94, 96-97 and 99 in the documents. The personal information contained in each these documents has not been disclosed. The Respondent contends that there is an overriding public interest against disclosure of that information. This is because disclosure of this information could reasonably be expected to expose those individuals to a risk or harm, or of serious harassment or serious intimidation.
In addition to the general public interest in favour of disclosure of, I accept that the public interest considerations in favour of disclosure are those identified in s12(1) of the GIPA Act and paras (c), (d) and (e) of the Note to s 12 in the GIPA Act (see para [77] - [78] above) apply. I give moderate weight to these considerations.
Ms Hargans deposes that the applicant has a history of sending large volumes of correspondence, often repeatedly sending the same correspondence multiple times. She says that the correspondence is often aggressive in its tone, contains spurious allegations concerning the conduct of individuals, often serious in nature.
Ms Hargans said the applicant has sent duplicated correspondence to the Minister's office by facsimile. Over a period of 18 December to 22 January 2021, the same or similar facsimile was sent to the Minister's office 355 times. This was despite the applicant being told the transmission had been received and a request being made for him to desist in continuing to send duplicates of the same correspondence.
Ms Hargans said that the applicants conduct in this regard has caused considerable distress to staff in the Minister's office, particularly junior staff. She says the staff have felt threatened, harassed and intimidated.
The respondent makes the following submissions: The Tribunal has previously accepted, on a number of previous occasions, that disclosure of the names and contact details of individuals to the applicant could reasonably be expected to expose individuals to a risk of harm or of serious harassment or serious intimidation. In Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10, the Department gave evidence of the applicant's conduct in sending over 2,700 emails between October 2010 and 27 May 2011, and nearly 11,000 emails in a 3 week period in April and May 2013. Additionally, there was evidence of over 82,000 emails sent from accounts associated with the applicant that had been blocked since August 2013 (at [104]). The Tribunal accepted the Department's evidence of the "exceedingly high number of emails" sent by the applicant to Departmental officers, and that staff of the Department were concerned about the number and tone of the emails. Ultimately, the Tribunal agreed (at [125]-[128]): "that Mr Zonnevylle's conduct falls within the definition of serious harassment or serious intimidation. I accept that some staff members genuinely fear their names may be published on websites operated by Mr Zonnevylle and that they fear that they will be harassed by receiving unsolicited correspondence either from [Mrs Zonnevylle] or Mr Zonnevylle. ....I am satisfied that disclosure could reasonably be expected to expose a person to a risk of serious harassment or serious intimidation. The simple way of ensuring that the staff are not subjected to serious harassment or serious intimidation in the future is to redact their names from the information that is released. In my view, the Respondent's decision to redact the names of officers was warranted" In Zonnevylle v Department of Education [2017] NSWCATAD 101, the Tribunal relied on its earlier findings regarding the applicant and his conduct in relation to personal email addresses of the Department's staff. In those circumstances, the Tribunal considered the Department's reliance on cl. 3 ( of the Table to s. 14 to be warranted (at 841). In Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139, the Tribunal found that the applicant continued to send a high volume of correspondence, often of an accusatory nature, to officers within the Department (at [48]). The Tribunal observed as follows: "The issue for determination is whether release of the redacted names of departmental officers would expose them to a 'risk of harm or of serious harassment or serious intimidation.' It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it. In circumstances where, as here, accusatory correspondence continues to be sent on a regular basis, which is well capable of causing upset to officers who receive it in the course of their duties, I am satisfied there is such a risk." Most recently, in an application made by the Department of Education for an order under s. 110 of the GIPA Act, the Tribunal made the following findings (at [103]): "The [Department] submitted that correspondence on two applications...engaged in after the application for the restraint order was made by the [Department], shows that unless the order is made [Mr Zonnevylle] will continue to use GIPA applications as an occasion to abuse and harass departmental officers by email....The correspondence concerning LEGAL44/19 shows that [Mr Zonnevylle], knowing of the s. 110 application by the [Department], has sent harassing emails on a daily basis to officers, including those processing his application and refused to desist in the face of express requests to do so. Accordingly I agree with the [Department's] submission that an inference is to be drawn from [Mr Zonnevylle's] conduct is that unless a restraint order is made, [Mr Zonnevylle] will continue to use GIPA applications as an occasion to attack the integrity of officials" Having regard to the pattern of conduct described in the Hargans Affidavit (which includes the applicant's very recent conduct, described at [19]-[21]), and the findings of the Tribunal regarding the history of the applicant's conduct in sending voluminous and accusatory correspondence to officers of the Department and other government agencies, it is submitted that there is ample grounds for a reasonable expectation that disclosure of the contact details of individuals would give rise to a risk of serious harassment or serious intimidation. Clause 3(f) applies to this information, and should be accorded significant weight when applying the public interest test.
The applicant said that he "has received no advice that I am doing anything illegal, criminal or otherwise." He refutes that his conduct could amount to abuse harassment or intimidation. The applicant said that he has not used abusive language and that his complaints to the respondent are valid. He maintains that the allegation that his conduct would amount to harassment or intimidation is yet another example of the "alleged corrupt conduct" of Ms Hargans. He says that he and his employer have been subjected to serious harassment by the respondent and its officers.
I have considered the contents of annexures "C" and "D" to the affidavit of Ms Hargans. I have considered the applicant's statement in response to Ms Hargans affidavit. He does not deny sending the same or similar facsimile to the Minister's office 355 times over a period of 18 December to 22 January 2021. Rather he attempts to justify doing so because he is not satisfied his demands have been met. I also note the email annexed at "D" to Ms Hargans affidavit, purportedly from the applicant, where he states: "… I regret that I am forced to refuse your request on the basis…". This was in reply to an acknowledgment that the Ministers office had received his facsimile and a request was made to desist in repeatedly sending duplicates of this correspondence.
I accept that the applicant's correspondence "C" annexed to the affidavit of Ms Hargans, contains accusations of alleged corruption against a number of officers of the Ministers department.
I accept Mr Hargans evidence, which was not challenged in cross examination, and after considering the applicants reply statement, that, the applicant's conduct and history of dealing with the respondent includes sending voluminous and accusatory correspondence to officers of the Department and other government agencies.
I accept Ms Hargans concerns that disclosure of the individuals email addresses and contact details of staff of the Minister's office and Department, if released to the applicant, may be used by him to send large volumes of unsolicited correspondence in an aggressive and accusatory manner. I accept Ms Hargans evidence about the genuine concern for the wellbeing of staff within the Minister's office and the Department in these circumstances.
I find that there is a reasonable expectation that disclosure of the contact details of individuals would give rise to a risk of serious harassment or serious intimidation.
Having considered the available evidence and the submissions of each party, I agree with the respondent's submission that the applicant's conduct, and the history of his conduct in sending voluminous and accusatory correspondence to officers of the Department and other government agencies, demonstrates ample grounds for a reasonable expectation that disclosure of the contact details of individuals would give rise to a risk of serious harassment or serious intimidation. Clause 3(f) applies to this information. I accord significant weight when applying the public interest test.

1(e) - Information would reveal deliberative process and prejudice deliberations

The respondent has refused access to documents 288-292 on the grounds that there is an overriding public interest against disclosure, as the public interest at cl 1(e) of the table to s 14 of the GIPA Act applies.
Cl 1(e) provides: there it is a public interest consideration against disclosure where disclosure could reasonably be expected to "reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency."
In addition to the general public interest in favour of disclosure of, I accept that the public interest considerations in favour of disclosure are those identified in s12(1) of the GIPA Act and paras (c), (d) and (e) of the Note to s 12 in the GIPA Act (see para [77] - [78] above) apply. I give moderate weight to these considerations.
Ms Hargans said that the document at pages 288-292 reveals consultation about the Department's legislative reform, and makes certain recommendations and that the deliberative process regarding this legislative reform remained ongoing.
I have reviewed the document at pages 288-292. I am satisfied that it reveals information that is in the nature of "deliberations" with respect to legislative reform. I find that it is a document generated in the course of consultation with agencies regarding legislative reform, and that it contains material that could be characterised as "opinion, advice or recommendation". I am satisfied that the first element of the consideration at cl. 1(e) is met.
The Tribunal must also be satisfied that disclosure of this information would reasonably be expected to prejudice the deliberative process of government or an agency.
The respondent submitted, and was not challenged by the applicant, which, I accept: The government or agency's deliberative processes may be described as the "internal thinking" on an issue. The Tribunal in Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at [58] adopted the analysis of the Administrative Appeals Tribunal in Re Waterford and Department of Treasury (No 2) (1984) 1 AAR 1, in which the AAT held that deliberative processes involved in the functions of an agency are: "its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action" Subsequent decisions of the Tribunal have applied the same analysis, such as Cameron v Commissioner of Police (NSW) Г20141 NSWCATAD 13 at [661 and Miskelly v Transport for NSW [2017] NSWCATAD 207 at [72]. Further, the Tribunal has held that a "relevant connection" must be established between the deliberation as contained in the information in dispute and the "deliberative processes" that would be prejudiced: see Van der Wall v University of Sydney [2008] NSWADT 213 at [36].
Ms Hargans said disclosure of the document at pages 288-292 would prejudice the particular deliberative process regarding legislative reform that is currently ongoing.
She deposes her concern as to the prejudice that would arise to future consultations and deliberative processes. Ms Hargans said, on occasion, it may be necessary for the Department to be able to make submissions to reviews, and engage with other agencies, on a confidential basis.
Maintaining confidentiality can be necessary to enable the full range of issues and options for reform to be ventilated and considered. The document at pages 288-292, which includes an express request that it be treated confidentially, is an example of such a case.
Ms Hargans said that, if the document were to be disclosed, officers of the Department would be reluctant to provide information, advice and recommendations of the same breadth and nature in the future. This would impact the quality of submissions made in the future and, in turn, impact on the quality of decision-making and reform that results.
The applicant contends that there is substantiating evidence of serious misconduct perpetrated by Minister Mitchell and Ms Hargans. For the reasons set out above I reject that submission.
Further, the applicant submits that it is not in the public interest that the Minister and Ms Hargans be involved in legislative reform where they "may well have a conflict of interest". I also reject this submission. There is no evidence to support this contention.
I have reviewed the document. It is apparent that disclosure of the information contained in it would be likely to stifling the deliberative processes of government. This is because it would impede the full and frank provision of advice and exchange of ideas. Adopting the terminology of the Appeal Panel in Searle at [63], such an inference is available on an "ordinary weighing of the material before the Tribunal" and giving "prominence to inferences drawn from the objective and otherwise established facts". I find accordingly.
I give moderate to significant wight to this consideration.

Balancing the public interest

I have found that there are public interest considerations in favour of disclosure of the information sought by the Applicant. Indeed, it is not disputed by the respondents, that, particularly (c)-(e) to the note in s12(1) are apposite. I am satisfied that disclosure of the information sought would certainly promote each of the matters as contained in those provisions. I have attached weight to each of those matters.
It is trite to say that disclosure of the information sought would further the identified public interest considerations in favour of disclosure, and the general public interest (s 12(1) of the GIPA Act).
I am satisfied that the public interest in favour of disclosure has been substantially met by the provision of information disclosed to the applicant in response to his access application.
I have also considered the personal factors of the application to which s 55 of the GIPA Act applies, but only in relation to cl. 3(f) of the Table to s 14 of the GIPA Act. Those personal factors include, but are not limited to: the applicant's and his business relationship with the respondent, his motives for the access application, primarily being to expose alleged corruption, and his allegation of harassment and intimidation by the respondent and its officers. I have afforded some weight to the applicants submissions and statements in this regard. However, for the reasons set out above, I have given little to no weight to the allegations of corruption and misconduct.
I find there would be little, if any, utility in providing the personal contact information to the applicant of the individuals that have been redacted by the respondent in considering the factors in cl. 3(f) of the Table to s 14 of the GIPA Act. The applicant is able to contact the Minister's office and the department using generic email addresses. He does not require the individual email address or other details of individuals. I have given significant weight to the factors in cl. 3(f). In my view the public interest consideration against disclosure in 3(f) outweighs the public interest favouring disclosure.
I find that the public interest considerations against disclosure cl. 1(e) sufficiently outweigh those public interest considerations in favour of disclosure. I find that disclosure would likely prejudice the government deliberative process if information of this nature was to be released. The disclosure could reasonably result in the matters set out by Ms Hargans.
I have considered and weighed the stated public interest considerations against disclosure and find that the balance lies in not disclosing the information. I find the correct and preferable decision is to affirm the decision under review as it relates to cll. 1(e) and 3(f).

Consideration of the conclusive presumption of an overriding public interest against disclosure

The provisions of s 14(1) of the GIPA Act provide that it is to be conclusively presumed that there is an overriding public interest against disclosure of information described in schedule 1. I deal with each of the relevant grounds being cl. 5, and the privilege of Parliament.

Claim of legal professional privilege

The respondent submits that Clause 5 of Schedule 1 of the GIPA Act applies in relation to the disclosure of pages 100-101, 140-141, 142 -157, 158, the redaction on page 230, 232-234, 235-238, 239-241, 272-280, 285-287, Clause 5 of Schedule 1, provides: '5 Legal professional privilege (1) 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. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.'
The Tribunal has consistently applied the formulation of privilege as found in the Evidence Act 1995 (NSW), when assessing the concept of claims of privilege made within the context of the GIPA Act. This was not in contest between the parties. Authorities relevant to this include: Colefax v Department of Education and Communities (NW) [2013] NSWAD 75, at [24]-[26] and others.
Relevantly, ss 117 - 119 of the Evidence Act 1995 provide: 117 DEFINITIONS (1) In this Division-- "client" includes the following-- (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is-- (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client--a manager, committee or person so acting, (e) if a client has died--a personal representative of the client, (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made. "confidential communication" means a communication made in such circumstances that, when it was made-- (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. "confidential document" means a document prepared in such circumstances that, when it was prepared-- (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. "lawyer" means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. "party" includes the following-- (a) an employee or agent of a party, (b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party--a manager, committee or person so acting, (c) if a party has died--a personal representative of the party, (d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made. (2) A reference in this Division to the commission of an act includes a reference to a failure to act. 118 LEGAL ADVICE Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-- (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119 LITIGATION Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-- (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
The Tribunal has also previously found that the principles of common law legal professional privilege remain relevant - Jackson v University of New South Wales [2019] NSWCATAD 224.
Ms Hargans deposes that much of the correspondence can broadly be described as communications between herself, as the Chief Legal officer of the Department, and the Crown Solicitor's Office with respect to litigation between the Department, the Minister and the applicant. I am satisfied that both Ms Hargans and the Crown Solicitor, and the delegated legal practitioner within that office, are "lawyers" for the purposes of the statutory formulation of privilege in s 17 of the Evidence Act. Relevantly, the "client" is the State of New South Wales. The Minister forms part of the State of New South Wales - see Tebbutt v Minister for Lands [2015] NSWCATAD 95, at [38]-[46].
I have considered the evidence of Ms Hargans concerning each of the page numbers of the documents, which I accept.
The applicant submits that Ms Hargans has provided legal advice and support to two Ministers and other officers of the Department and the Minister's office. He contends that there is prima facie evidence of systemic abuse of his rights under the GIPA Act as a result. He said: "Based on the evidence before the tribunal it would appear that [Ms] Hargans does not provide independent legal advice & generally perpetrates professional misconduct / conduct that could be constructed as corrupt conduct" citing various provisions of the Independent Commission Against Corruption Act 1988. The applicant further contends that Ms Hargans has blindly applied legal professional privilege in response to his application. I reject this submission as it is not borne out on the evidence and is merely speculative.
The applicant goes on to contend that is it "highly likely that [Ms] Hargans has provided the alleged corrupt [The Hon Minister] Mitchell with "legal advice" which allegedly has the serious risk of associated professional misconduct / alleged corrupt conduct". These are serious allegations, which in my view are without merit and absent any cogent evidence to establish them. While the applicant responded in an undated and unsworn statement, he chose not to test Ms Hargans evidence in any cross examination. I prefer the evidence of Ms Hargans. The highest the applicant's submissions reach is a "fear" and speculation that legal privilege is not relevant to "some of the documents to prevent evidence of serious misconduct / alleged corrupt conduct." The applicants suspicion is both unwarranted and not demonstrated on my reading of the relevant pages to the documents in which privilege is being claimed by the respondent.
I am satisfied having read the documents listed below, that each of them fall within the category of being: a communication between the client and a lawyer, or between two or more lawyers acting for the client, for the dominant purpose of the lawyer(s) providing legal advice to the clients, and/or the lawyer(s) providing professional legal services relating to ongoing proceedings, in which the client was a party. I have read and accept each paragraph of Ms Hargans affidavit which describes the nature of the communication and how that document attracts privilege, which is set out at [29]-[36]: Pages 100-101 are an email from myself to the Minister's Chief of Staff regarding CAT proceedings 2018/333885, in which the Crown Solicitor was instructed on behalf of the Minister. Having reviewed this email, I can see that it is a communication between myself and the Minister's Office for the dominant purpose of providing legal advice and legal services in connection with those CAT proceedings. Pages 140-141 are an email between myself and the Minister's Chief of Staff regarding the Appeal Panel's decision in Zonnevylle v Minister for Education and Early Childhood [2019] NSWCATAP 274. Having reviewed this email, I can see that it is a communication between myself and the Minister's Office for the dominant purpose of providing legal advice and legal services in connection with Appeal Panel proceedings AP19/30680. Pages 142-157 are an email between myself and the Minister's Chief of Staff, forwarding correspondence between the Crown Solicitor's Office and myself, and enclosing draft submissions for instructions in Appeal Panel proceedings AP19/30680. Having reviewed this email, I can see that it is a communication between myself and the Minister's Office for the dominant purpose of providing legal advice and legal services in connection with Appeal Panel proceedings AP19/30680, and attaching a confidential draft of a document prepared by the Crown Solicitor's Office for the purposes of those proceedings. Pages 158 is an email from myself to the Minister's Chief of Staff, forwarding an email from the Crown Solicitor's Office regarding AP19/30680. Having reviewed this email, I can see that it is a communication between the Crown Solicitor's Office, myself and the Minister's Office for the dominant purpose of providing legal advice and legal services in connection with the Appeal Panel proceedings AP19/30680. The redacted part of the email correspondence on page 230 is an email from myself to the Minister's Chief of Staff. Having reviewed this email, I can see that the dominant purpose of this communication is to provide legal advice and legal services in connection with Appeal Panel proceedings AP19/30680. Pages 232-234, 235-238 and 239-241 are three chains of email correspondence between myself and the Minister's Chief of Staff, and forwarding email correspondence from the Crown Solicitor's Office. Having reviewed this email correspondence, I can see that each chain comprises of communications between the Crown Solicitor's Office and myself, and myself and the Minister's Office, for the dominant purpose of providing legal advice and legal services in connection with Appeal Panel proceedings AP19/30680. Page 272-280 is a chain of email correspondence between the Crown Solicitor's Office and myself, and myself and the Minister's Office, with an attached draft document prepared for Appeal Panel proceedings AP19/30680. Having reviewed this email correspondence, I can see that it is a communication between the Crown Solicitor's Office, myself and the Minister's Office for the dominant purpose of providing legal advice and legal services in connection with the Appeal Panel proceedings AP19/30680, and attaching a confidential draft document prepared for the purpose of Appeal Panel proceedings AP19/30680. Pages 285-287 is a chain of email correspondence between myself and the Minister's Chief of Staff. Having reviewed this email correspondence, I can see that it is a communication between myself and the Minister's Office for the dominant purpose of providing legal advice and legal services in connection with Appeal Panel proceedings AP19/30680.
There is no doubt that the contents of each of the documents fall within a category which attracts privilege. In reviewing the documents, I have also considered the privilege extends to documents used to assist a lawyer to give advice and the client to receive it Johnson v TAFE NSW [2019] NSWCATAD 152 at [35]: The privilege extends to various classes of documents and beyond communications directly between lawyer and client, including documents used to assist the lawyer to give advice and the client to receive it: Trade Practices Commission v Sterling (1979) 36 FLR 244 at [4]. It is not only the primary record of the advice that is privileged. Summaries of the advice and documents recording instructions to provide legal advice attract the privilege if they are prepared or made for the purpose of providing advice to a client: Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 at [30]; Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 at [34].
I find, the correct and preferrable decision is, that it is conclusively presumed that there is an overriding public interest against disclosure against the documents at pages 101-101, 140-141, 142 -157, 158, the redaction on page 230, 232-234, 235-238, 239-241, 272-280, 285-287 of the confidential bundle.
For completeness, the applicant submits (paragraph 28 of his response statement) that Ms Hargans' may not have put before the Tribunal the relevant documents subject to a claim of privilege in breach of s 112 of the GIPA Act. I reject that submission. The documents have been produced. I have read them and make my findings concerning privilege as set out above.

Claim of Parliamentary Privilege

The respondent submits that the documents found at pages 281-284, described as a 'House Folder Note', prepared for the Minister, including draft responses for the Minister for the purpose of responding to questions that might arise in parliament, attract parliamentary privilege. Access was refused by the respondent to this information on the grounds that its disclosure would constitute a contempt of the privilege of parliament.
The doctrine of parliamentary privilege was conveniently considered by the Tribunal in Tebbutt v Minister for Lands at [56] - [71], which I adopt: 56. The Bill of Rights 1688 (Imp) provides in article 9 that "[t]he freedom of speech and debates or proceedings in Parliament ought not be impeached or questioned in any Court or place out of Parliament". The Bill of Rights 1688 is declared to have been in force since 25 July 1828 in New South Wales by s 6 of the Imperial Acts Application Act 1969 (NSW). 57. The respondent relied upon cases interpreting and applying s 16(2) of the Parliamentary Privileges Act 1987 (Cth), which defines "proceedings in Parliament" for the purposes of article 9 of the Bill of Rights 1688. Section 16(2) provides that acts done "for purposes of or incidental to, the transacting of the business of a House or of a committee" are part of "proceedings in Parliament" within article 9 of the Bill of Rights. As the respondent acknowledged, the Commonwealth provision does not apply in New South Wales. The respondent submitted that "the cases on s 16 are still highly relevant" because the principles underlying s 16(2) are the same as those underlying the common law. 58. The cases applying s 16(2) of the Parliamentary Privileges Act 1987 (Cth) must be treated with some caution when determining whether documents prepared for the purposes of a parliamentary committee are subject to Parliamentary privilege in New South Wales. It is first necessary to determine what the common law position is in New South Wales. In Sportsbet Pty Ltd v State of New South Wales (No 3) (2009) 262 ALR 27; [2009] FCA 1283, a case on which the respondent relied, Jagot J said of the doctrine of parliamentary privilege at [19]: "The state referred to s 16 of the Parliamentary Privileges Act 1987 (Cth) as a useful guide to the scope of the doctrine in NSW. Section 16, however, was a legislative response to the limited operation the courts gave to Art 9 of the Bill of Rights in R v Murphy (1986) 5 NSWLR 18; 64 ALR 498 and may well expand the scope of the common law privilege: see Mees [Mees v Road Corporation (2003) 128 FCR 418; [2003] FCA 306] at [84] and Rowley v O'Chee [2000] 1 Qd R 207 at 219; (1997) 150 ALR 199 at 207 (Rowley)." 59. In the decision of the New South Wales Supreme Court referred to by Jagot J, R v Murphy (1986) 5 NSWLR 18, the President of the Senate appeared by leave as amici curiae in a criminal trial. It was submitted on behalf of the President that witnesses could not be cross-examined in relation to the evidence which they had given before two Senate Select Committees, without breach of parliamentary privilege. It was accepted by both the Crown and the accused that the proceedings of a Senate Select Committee are included within the phrase "proceedings in parliament" in article 9 of the Bill of Rights 1688. As Hunt J described the applicant's position (at 27), it was that the effect of article 9 is that whatever is said in parliament may not be commented upon, used to draw inferences or conclusions, analysed or made the basis of cross examination or submission and no comparison may be made between what is said by someone inside parliament and what is said by him out of it. 60. Hunt J rejected what he described as the applicants' "very wide interpretation of art 9" (at 28), commenting (at 29): "The proper interpretation to be placed upon art 9 - in the sense of the width to be accorded to the privilege which it declares - necessarily must be one which recognises the freedom given by the common law to every citizen to express publicly his honest opinion concerning the conduct of members of parliament, no matter to what extent that opinion may impeach or question that conduct." 61. His Honour set out his own, much more restrictive interpretation of article 9 (at 30): "…the phrase 'impeached or questioned in any court or place out of parliament' in art 9 should be interpreted in the sense that the exercise of the freedom of speech given to members of parliament (and committee witnesses) may not be challenged by way of court (or similar) process having legal consequences for such persons because they had exercised that freedom. Such an interpretation is consistent with the relevant mischief which the Bill of Rights was enacted to remedy - namely, the previous availability in the courts of process whereby legal consequences were visited upon members of parliament for what they had said and done in parliament." 62. Hunt J concluded that the witnesses in the trial could be cross examined about what they had said in the Senate Select Committee proceedings. Burns J has usefully summarised the effect of Hunt J's judgment in Slipper v Magistrates Court of the ACT (2014) 179 ACTR 1 at [42], as follows: "…he ruled that without breach of the privilege of freedom of speech guaranteed by Art 9 of the Bill of Rights, witnesses at a trial could be cross-examined in relation to evidence they gave to a senate select committee, and that this evidence could be the subject of comment or used by the jury to draw inferences or conclusions. Hunt J held that the only protection given by Art 9 was to prevent court or similar proceedings having legal consequences against a member of parliament or a witness before a parliamentary committee where those legal consequences would have the effect of preventing that member (or committee witness) exercising their freedom of speech in parliament (or before a committee) or of punishing them for having done so." 63. The Privy Council declined to follow R v Murphy (1986) 5 NSWLR 18 in Prebble v Television New Zealand Ltd [1994] 3 NZLR 1; [1995] 1 AC 321. Lord Browne-Wilkinson, delivering the judgment of their Lordships, gave the following reasons for his view that Hunt J's decision was incorrect ([1994] 3 NZLR 1 at 8): "First, his views were in conflict with the long line of dicta that the Courts will not allow any challenge to what is said or done in Parliament. Second, as Hunt J recognised, his decision was inconsistent with the decision of Browne J in Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 (subsequently approved by the House of Lords in Pepper v Hart) and Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1, in both of which cases it was held that it would be a breach of privilege to allow what is said in Parliament to be the subject-matter of investigation or submission. 64. Finally, Hunt J based himself on a narrow construction of art 9, derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1688 as being, inter alia, the assertion by the King's Courts of a right to hold a member of Parliament criminally or legally liable for what he had done or said in Parliament. From this he deduced the principle that art 9 only applies to cases in which a Court is being asked to expose the maker of the statement to legal liability for what he has said in Parliament. This view discounts the basic concept underlying art 9, viz the need to ensure so far as possible that a member of the legislature and witnesses before Committees of the House can speak freely without fear that what they say will later be held against them in the Courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect." 65. The South Australian Supreme Court (Debelle J) determined not to follow R v Murphy (1986) 5 NSWLR 18 in Rowan v Cornwall (No 5) [2002] SASC 160, observing at [110], that "[o]ther decisions suggest that statements in the House cannot be questioned in any form at all". The Victorian Court of Appeal also doubted the correctness of R v Murphy (1986) 5 NSWLR 18 in R v Theophanous (2003) 141 A Crim R 216 (a case which concerned the application of the Parliamentary Privileges Act 1987). 66. In New South Wales, Carruthers J rejected Hunt J's interpretation of article 9 in R v Jackson; R v Hakim (1987) 8 NSWLR 116 at 121. There has been surprisingly little consideration of R v Murphy (1986) 5 NSWLR 18 in New South Wales courts since 1987. However, in Stewart v Ronalds (2009) 76 NSWLR 99, a decision of the New South Wales Court of Appeal, Hodgson JA, with whom Handley AJA agreed on this issue, considered (in obiter dicta) the interpretation of article 9 of the Bill of Rights 1688 and cast doubt on the correctness of R v Murphy (1986) 5 NSWLR 18. His Honour referred (at 123 [116]) to "a very helpful discussion of" article 9 of the Bill of Rights 1688 by Lord Woolf MR delivering the judgment of the Court of Appeal in Hamilton v Al Fayed [1999] 3 All ER 317; EMLR 501 and quoted extensively from this judgment. In part of the judgment cited by Hodgson JA, Lord Woolf himself quoted from the judgment of Lord Browne-Wilkinson in Prebble v Television New Zealand Ltd [1994] 3 All ER 407 at 415; [1995] 1 AC 321 at 333-334, where his Lordship rejected the "narrow construction of art 9" adopted by Hunt J and also rejected Hunt J's view "that art 9 only applies to cases in which a court is being asked to expose the maker of the statement to legal liability for what he has said in Parliament". Lord Browne-Wilkinson described "the basic concept underlying art 9" as being: "the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say." 67. Hodgson JA made the following comments (at 124 [119]-[120]) about the effect of Lord Woolf's judgment in Hamilton v Al Fayed [1999] 3 All ER 317: "Lord Woolf's discussion suggests that what the privilege protects from criticism in courts is anything said or done in the course of Parliamentary proceedings, and it does not protect things said or done outside such proceedings merely because they may be repeated in the course of Parliamentary proceedings (although the occasion of repetition would be protected). If the preparation of a report is directed by Parliament itself or a committee of Parliament, and the report is produced to Parliament or the committee in the first instance, then it seems clear that the report would be protected." 68. In light of the decision in R v Jackson; R v Hakim (1987) 8 NSWLR 116, and the obiter comments of Hodgson JA in Stewart v Ronalds (2009) 76 NSWLR 99, with which Handley JA agreed, I am of the view that R v Murphy (1986) 5 NSWLR 18 no longer represents the common law in New South Wales. 69. The respondent submitted that the principles underlying both s 16(2) of the Parliamentary Privileges Act 1987 and the common law include ensuring that officers preparing briefings and draft briefings to Parliamentarians are not impeded in their preparation and that the quality of information available to Parliament is not compromised. In support of these propositions, they relied upon Re OPEL Networks Pty Ltd (in liq) (2010) 77 NSWLR 128, a case concerning the application of the Parliamentary Privileges Act 1987. In that case, Austin J said at 134 [118]: It seems to me necessarily true, and not dependent upon the evidence of the particular case, that if briefings and draft briefings to Parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that might well affect the quality of information available to Parliament. To take a step that would have that consequence would, I think, derogate from the force of the Bill of Rights and run contrary to the historical justification for that legislation, so ably sketched by McPherson JA [in Rowley v O'Chee [2000] 1 Qd R 207] (and see Mees v Roads Corporation (2003) 128 FCR 418 at 442 [75]-[79] per Gray J). 70. In Tziolas v NSW Department of Education and Communities [2012] NSWADT 69 at [37], the Administrative Decisions Tribunal (Isenberg JM) considered the principles Austin J referred to above in Re OPEL Networks Pty Ltd to be "relevant to the scope and application of clause 4(c) of schedule 1 of the GlPA Act". 71 .The respondent also referred to Sportsbet Pty Limited v State of New South Wales (No 3) [2009] FCA 1283 at [21], in which Jagot J held that a document described as "House Notes," created by a public servant for a Minister's use in Parliament, was subject to Parliamentary privilege.
The doctrine was again considered in Gold and Copper Resource Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267. In that decision the Tribunal accepted that party room briefings were subject to the conclusive presumption as the documents fell within the terns of Sch. 1, cl. 4(1)(c).
In McKay v Transport for NSW [2017] NSWCATAD 212, the Tribunal applied the same reasoning ad found at [61]: The doctrine has been considered again, recently in the decision of Gold and Copper Resource Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267, in which the Tribunal accepted that party room briefings were subject to the conclusive presumption as documents falling within the terms of Sch. 1, cl. 4(1)(c).
The applicant relies upon paragraphs [40] - [45] of his reply statement to the affidavit of Ms Hargans. In effect, he contends that there is a public interest consideration in "knowing what amendments the alleged corrupt [Hon Minister] Mitchell seeks especially if it is related to the GIPA Act." He also refers to the operation s 112 of the GIPA Act and the public interest and objects of the Act in s 3. He submits that the Tribunal "should have the capability to determine misconduct has compromised an application during the review and prior to the conclusion of the review". Insofar as the respondent's argument concerning parliamentary privilege is concerned, the applicant does not specifically deal with that submission, except to further his allegations of misconduct and alleged corruption. He does not grapple with the underlying principles of parliamentary privilege as set out in the above authorities. The applicant as not in my view disturbed the evidence of Ms Hargans', which I accept and is set out below.
Ms Hargans gives evidence that the House folder Note was prepared for the Minister, including draft responses, to be used in question time in parliament. The document is also marked "SENSITIVE NSW CABINET". Ms Hargans evidence is not challenged in this regard. I accept her evidence.
The information in issue in these proceedings is contained in documents which were prepared for the Minister's use when appearing before a sitting of parliament. In my view, I am satisfied when applying the analysis adopted in Tebbutt v Minister for Lands and Water, and the following decisions also applying that rational, the documents at pages 281-284 would infringe the privilege of parliament. This is also consistent with Austin J's remarks in Re OPEL Networks Pty Ltd (in liq) (2010) 77 NSWLR 128, which are cited above.
The correct and preferable decision is that there is a conclusive presumption that there is an overriding public interest against disclosure. The decision of the respondent is affirmed.

Request for referral pursuant to s112 of the GIPA Act

The applicant seeks an order to refer the conduct of Ms Hargans or other officers of the respondent for alleged breaches of their statutory obligations and conduct, pursuant to s 112 of the GIPA Act. Section 112 provides: 112 REPORT ON IMPROPER CONDUCT If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of-- (a) the Minister who appears to NCAT to have responsibility for the agency, or (b) if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner.
Much of the applicant's extensive written submissions were concerned with his request for the Tribunal to refer the respondent's conduct to the Minister pursuant to s112 of the GIPA Act. His complaints relate to the respondent and its officers alleged breach of various provisions of the GIPA Act or demonstrated a lack of good faith in exercising their functions.
The basis for a referral under s112 of the GIPA Act has been considered in previous proceedings involving the applicant, including Zonnevylle v Department of Education [2017] NSWCATAD 101; Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, as well as Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303, Saggers v Environment Protection Authority [2013] NSWADT 204, Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189. I adopt the guidance provided by those authorities in my consideration of the application of s112 of the GIPA Act in these proceedings.
The allegations made by the applicant against the respondent and its officers incorporated many of the same allegations raised in previous proceedings in this Tribunal by the applicant. These allegations traversed evidence filed in other proceedings and previously considered by the Tribunal, and which were the subject of submissions regarding misconduct, lack of good faith, and lack of integrity and alleged corrupt conduct. I do not intend to reopen findings made by this Tribunal in previous proceedings.
Dealing with the most recent request on its merits, I am not satisfied that such a referral is appropriate. This is because the applicant makes broad ranging accusations against Ms Hargans and two Ministers of the crown and officers of the respondent. The applicant's allegations are so broad and deficient of cogent supporting evidence that I decline to make such a referral. The applicant also has not given evidence under oath, nor affirmed his evidence. His statements are undated and unsigned. In the absence of sworn probative evidence which justifies such a referral, the request is refused.
For completeness, none of the referrals sought by the applicant should be made. For the same reasons, the request is refused.

Orders 1. The applicant's request to record the proceedings is refused. 2. The applicant's request for an adjournment is refused. 3. The applicant's request that I recuse myself is refused. 4. The respondent's decision of 14 December 2020 is affirmed. 5. The application for referral pursuant to s112 of the Government Information (Public Access) Act 2009 is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2023

The Proceedings

The applicant filed his application for administrative review on 6 October 2020. The Tribunal made directions for the preparation of this matter on 15 December 2020 requiring the respondent to serve a new decision and 290 pages of information released under that decision within 7 days. The applicant was to advise the Tribunal on or before 22 January 2021 whether he was withdrawing his application for administrative review.
On 25 January 2021, the Tribunal granted leave for the respondent to file further evidence as the applicant was proceeding with the application. Directions were also made for the applicant to file evidence. The proceeding was listed for hearing on 19 May 2021.
On 14 May 2021, Senior Member Dinnen made an order granting the applicant's request to delay the start of the hearing on 19 May 2021 to commence after 12.00 p.m. Other orders were made with respect to the service of submissions.
On 19 May 2021, the Tribunal adjourned the matter part-heard for an in person hearing on 28 May 2021 commencing at 10.00 a.m.
On 25 May 2021, the Tribunal vacated the hearing on 28 May 2021 and adjourned the matter to 12 July 2021.
The applicant filed in the Tribunal's Appeal Panel an appeal against the orders made by Senior Member Dinnen on both 14 May 2021 and 19 May 2021.
In or about June/July 2021, Senior Member Dinnen became unavailable. On 1 July 2021, the President of the Tribunal gave notice to the parties that it was intended that the Tribunal be reconstituted where Senior Member Dinnen be removed from the matter and in her place Senior Member Mulvey was to determine the matter.
On 2 July 2021, at a Directions Hearing, I vacated the hearing date of 12 July 2021. I made orders that the applicant file and serve any written submission about the proposed reconstitution of the Tribunal with orders for the respondent to file documents in reply.
On 16 July 2021, the Tribunal listed the matter for a Directions Hearing with a date to be fixed not before 1 December 2021.
The parties filed written submissions about the proposed reconstitution of the Tribunal.
On 15 September 2021, the Tribunal notified the parties that the Tribunal would be reconstituted by replacing Senior Member Dinnen with Senior Member Mulvey.
On 3 December 2021, the Tribunal listed the proceedings for directions on 28 February 2022. On 10 December 2021, the Appeal Panel in Zonnevylle v Minister for Education and Early Childhood Learning [2021] NSWCATAP 398 refused leave to appeal and dismissed the applicant's appeal. The Appeal Panel made orders for the parties to provide submissions as to costs of the appeal. In a decision of the Appel Panel in Zonnevylle v Minister for Education & Early Childhood Learning (No 2) [2022] NSWCATAP 87, the applicant was ordered to pay the respondents costs of the appeal in a fixed sum.

Request to record the proceedings

On 30 March 2022, the applicant filed a general application, in this proceeding and in all other applications pending before the Tribunal, that he be granted permission to record the proceedings. I considered that general application on the merits in this proceeding.
The applicant appeared before me in this application by telephone. The respondents solicitor appeared by AVL. At the commencement of the hearing the applicant made a number of applications. One of those was that he be granted leave to record the proceedings under the Court Security Act 2005 (NSW) ("CSA"). In particular, the application was made under s 9 of the CSA.
The applicant has made similar applications on previous occasions both before me and before differently constituted Tribunals. Since the hearing of this proceeding, the Tribunal has in other applications made by the applicant, considered requests by him to independently record directions hearings, final hearings and matters before the Appeal Panel. In a decision of the Appeal Panel in Zonnevylle v Secretary, Department of Education [2022] NSWCATAP 297, the Tribunal set out at [12] through to [32] the relevant principles which apply in respect of such an application. The following was said: "12. As is not in doubt, the Appellant's application for leave to record the proceedings is governed by the provisions of the Court Security Act. 13. Section 9(1) of the Court Security Act provides that: "A person must not use a recording device to record sound or images (or both) in court premises" and provides a maximum penalty of 200 penalty units or imprisonment for 12 months, or both. 14. Section 4 of the Court Security Act defines "Court" to include, in s 4(l), "the Civil and Administrative Tribunal". 15. Section 9(2) provides that s 9(1) of the Court Security Act: "does not apply with respect to any of the following -- (a) the use of a recording device that has been expressly permitted by a judicial officer, (b) the use by a lawyer of a recording device to record the lawyer's own voice in a part of court premises other than a room where a court is sitting, (c) the use of a recording device by a person for the purpose of transcribing court proceedings for the court, (d) the use of a recording device by a journalist while exercising a right referred to in section 6 (2), (e) the use of such recording devices in such other kinds of circumstances as may be prescribed by the regulations." 16. Section 4 of the Court Security Act defines "judicial officer" as a "judicial officer within the meaning of the Judicial Officers Act 1986 (NSW), or any other person "who is, or who alone or with others constitutes, a court". 17. Section 3(d) of the Judicial Officers Act 1986 (NSW) defines "judicial officer" to include "a judge of the District Court". By virtue of the definition of "Court" in the Court Security Act, the exception provided by s 9(2)(a) of the Court Security Act could be enlivened in the present circumstances. 18. The Appellant appeared to accept that s 9(2)(c) could not be enlivened. The "Court" has transcription services for that purpose. 19. Regulation 5 of the Court Security Regulation 2021 (NSW) provides for "permissible uses of recording devices." Relevantly for present purposes, and for the purposes of s 9(2)(e) of the Court Security Act, the use of recording devices is prescribed by Regulation 5(a) in the Court premises of the Civil and Administrative Tribunal with the approval of the Principal Registrar of the Tribunal. 20. Regulation 6 of the Court Security Regulation provides for the "permissible transmission of Court proceedings" in certain circumstances, none of which has, or could have present application. 21. In the circumstances, the only basis upon which the Appellant may have been granted permission to record the proceedings, or distribute any recording of them, is if s 9(2)(a) were enlivened. 22. In Kenny v Trip [A] Deal Pty Limited [2021] NSWCATCD 60, the Tribunal closely considered ss 9(2)(a), 9A(2)(a) and 9B(2)(a) of the Court Security Act, at [30] to [45]. The Tribunal there observed [33] that the "starting point" pursuant to the Court Security Act is that there is a statutory prohibition on recording, transmitting or distributing the sound recordings of proceedings in accordance with the objects of the Court Security Act, which include, s 3(a) "to provide for the secure and orderly operation of courts." The Tribunal further accepted [34] that it could be accepted that "relevant considerations include issues of general security and the need to prevent people inappropriately photographing witnesses or recording proceedings. This might include protecting against inappropriate use through social media and other publication platforms". 23. The Tribunal accepted [35] that the "principle of open justice is relevant in determining whether permission should be granted" and that "guidance" as to the approach to be taken and how the principle of open justice might apply in determining a request for permission under the Court Security Act was provided by the decision in John Fairfax Publications Pty Limited v Ryde Local Council [2005] NSWCA 101; [2005] 62 NSWLR 512 (John Fairfax). 24. In John Fairfax, Spigelman CJ, with whom Mason P and Beazley JA (as her Excellency then was) agreed, said (at 29): "Neither the Claimants nor the public at large, have a right to access to court documents. The "principle of open justice" is a principle, it is not a freestanding right. It does not create some form of Freedom of Information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However it remains a principle and not a right." 25. In Smith v Harris [1996] 2VR 335; (1996) VicRp 70 at 350, Byrne JA of the Supreme Court of Victoria said that the "policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself", a proposition with which Spigelman CJ agreed at 69. 26. The proceedings before the Appeal Panel on 12 August 2022 were open to the public, and thus open to "public scrutiny". 27. The Tribunal said [40] that the "principle of open justice is to allow the scrutiny of the decision making process and the court or Tribunal entrusted to perform that role", and referred to the statement by Lonergan J in Application of Fairfax Media Publications Pty Limited; NSW Crime Commission v Yucel [2017] NSWSC 1779, at [16] that: "The policy to which I need to have regard is the requirement that the judicial process be open to public scrutiny, but only to the extent necessary for the public to scrutinise the judicial process itself … the principle of open justice needs to be balanced against other principles of justice which protect the interests of the parties to litigation." 41. The Tribunal observed that the principle was not "to be deployed so as to permit an aggrieved party to make use of evidence given in proceedings in a collateral attack on a party outside the hearing." The Tribunal referred to the Judgment of McHugh JA in John Fairfax & Sons Pty Limited v Police Tribunal of NSW [1986] 5 NSWLR 465, at 481, in which His Honour stated: "I think that the right to publish a fair and accurate report of court proceedings is a common law right of sufficient significance to fall within this preferred category. The importance which the common law has attached to a fair and accurate report of court proceedings is illustrated by the rule that its publication is not a contempt of court even though it is likely to prejudice the fair trial of pending proceedings … It is also illustrated by the rule that a fair and accurate report of court proceedings made in good faith is not an actionable defamation. Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice." 29. The Tribunal also referred [43] to the Judgment of Toohey J in Esso Australia Resources Limited v Plowman [1995] HCA 19; (1995) 183 CLR 10 to similar effect. 30. Importantly for present purposes, the Tribunal said, at [44], that a: "third consideration is that once permission is given, the information is no longer subject to restriction or control by the Court or Tribunal under the CS Act. In this regard, there is no general or implied power to make orders that apply to all members of the public outside the confines of the proceedings: Attorney General v Leveller Magazine Ltd & Ors [1979] ACT 440 per Viscount Dilhorne at 456. Further, any condition that might be imposed under s 58 of the NCAT Act to control use once permission is given could not bind the public at large." 31. The Tribunal referred [45] to other considerations which included: "(i) the purpose or purposes for which permission is sought; (ii) the possibility for misuse of information by the person who might be granted permission or others to who the information might be transmitted or published; (iii) the harm or possible detriment to the person whose information might be recorded, transmitted or published." 32. Finally, the Tribunal recorded [46], and we accept that "[t]he burden to establish such a grant is appropriate is on the applicant seeking permission to record, transmit or distribute a sound recording of proceedings in the Tribunal".
There is nothing in the written submissions requesting permission to independently record the proceedings, nor in the oral submissions made by the applicant, which would indicate that the principles applied by the Appeal Panel were incorrect. I also note that in a decision of the Appeal Panel in Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53 the Appeal Panel applied the above reasoning. I also apply this reasoning.
Notwithstanding the Tribunal's previous decisions concerning these requests, the applicant can, and has done on numerous occasions, made an application to record the proceedings. I refused that application at the hearing on 25 May 2022. The applicant insisted I provide oral reasons. I declined to do so on the basis that I would provide written reasons. These are my reasons.
The applicant said that his procedural rights have been 'trashed by the registry'. He said his credit card payments have been destroyed and sound recordings delayed. The applicant alleged false statements were made by the Registry about sound recordings and that he was "fearful the sound recording would be denied" to him. As such, he submitted that the Tribunal was required to take this into account in so far as the applicant could not be guaranteed that he will receive access to the sound recording by the Registry, that he be allowed to independently record the proceedings.
The applicant contends that he would be subjected to unnecessary costs, formalities and delays in being required to request a copy of the sound recording from the Registry in the usual manner.
The applicant said that in being allowed to independently record the proceedings the integrity and security of the recording can be maintained. He can keep that recording as an accurate record of the proceedings to allow him to use that recording for any purpose with respect to the application.
The applicant also submitted that there were previous occasions when sound recordings have been unavailable and in these circumstances, consequences resulted for the parties. In a lengthy written submission, the applicant refers the necessity for him to protect himself against being referred to by Tribunal Members in their reasons. He also made allegations of bias and interference by the Registry in unlawfully preventing him, or, placing impediments upon him in obtaining sound recordings in the past. It is for these reasons, the applicant submits that I should exercise a discretion to allow him to independently record these proceedings.
The respondent opposed the application. It was submitted that the default provision is set out in s 9(1)(a) of the Court Procedure Act that there should be no private recordings. The respondent submits that no special circumstances unique to the applicant as opposed to other court users have been identified which would warrant the Tribunal granting permission to record the proceedings. The respondent submitted that the interests of the parties are adequately protected by the official recording. It was submitted that the applicant has been able to seek a review of Senior Member Dinnen's decision by the Appeal Panel because an official recording was made available to him.
The applicant in reply alleged that the solicitor acting for the respondent had a 'pecuniary interest' in the proceedings. He said that the position is unique to him because of allegations he says relate to the alleged corrupt conduct of Senior Member Dinnen.
In considering the evidence before me, the submissions made by each party, the written material filed by the applicant and previous decisions of the Tribunal, I am not satisfied there has been any systemic difficulty or inappropriate impediment for the applicant in obtaining sound recordings of the Tribunal's decisions.
I am not persuaded that I should take any different course based on the evidence before me than other Tribunals have taken with respect to similar applications made by the applicant. In determining this application I must exercise a discretion. I am not persuaded by the respondent's submissions that I need to find any unique or exceptional circumstances should I exercise that discretion to allow the applicant to independently record the proceedings.
I am not satisfied that the applicant has demonstrated any appropriate reason for me to grant the application. For these reasons the application is refused.

Application for recusal

Following my decisions in relation to the above applications, the applicant made a further application that I recuse myself. He said that I am unable to bring an open mind to the proceedings and it would be implied by a fair minded lay observer that I had made my mind up at the start of the hearing. The respondent opposed the application that I recuse myself citing that there was no proper basis put forward by the applicant to make that application.
The applicant replied that the solicitor acting for the respondent was making a false statement and I had not made an impartial and fair decision in refusing the two applications referred to above. He alleged that I was gravely biased against him and inferred that I had not raised a conflict of interest in refusing the adjournment application because I would only be paid half a day's pay if I allowed it as opposed to a full day pay. The applicant alleged that a fair minded lay observer would consider this a conflict of interest and a matter for bias. I reject his submissions. I also find the respondents solicitor did not make any false statement when making submissions about this application.
Prior to me being able to rule on that application the applicant disconnected from the call and refused to participate in the proceedings any further. Notwithstanding this, I refused his recusal application.
In deciding to refuse the application to recuse myself I considered the principles governing a recusal application as set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, which was recently reaffirmed in Charisteas v Charisteas [2021] HCA 29.
The application of the principle, in so far as it relates to an apprehension of bias was set out by the Appeal Panel in Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53 at [18] - [19], which is as follows: "[18] The application of the principle, insofar as it relates to an apprehension of bias, requires two steps as set out in Ebner at [8]. First, it requires the identification of what is said might lead the Judge to decide the case other than on the legal and factual merits. The second step is that it is necessary to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its own merits. That second step is equally as important as the first, in that the applicant for recusal must ensure that they have addressed both of those issues. It is also the case that in considering such an application, a fair minded lay observer's reasonable view is taken in the context of ordinary judicial practice, as set out Charisteas at [12]. [19] The test in relation to actual bias is that the Judicial Officer or Tribunal Member has brought a closed mind to the application or have pre-judged it and in that respect I refer to Collier v Country Women's Association of New South Wales [2018] NSWCA 36 at [27] which confirmed a decision of Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68-73]: "If actual bias is asserted to arise from a form of prejudgment, the appellant has to establish that relevantly for present circumstances I was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.""
The applicant did not specifically make it clear as to whether I am actually biased or that there is a reasonable apprehension that I might be biased. I see nothing in what I have done which would lead a fair minded observer to the potential reasonable concern that I might not bring an unbiased or impartial mind to determining the matters.

Application to refer a question of law to the Supreme Court

The applicant filed a general application on 6 May 2022. That application seeks the Tribunal to refer certain questions of law to the Supreme Court. It would appear from the application, that the same application was filed in other pending matters before the Tribunal. No oral submissions were made by the applicant given he disconnected from the hearing. However, I deal with this application on its merits.
The applicant seeks the following orders: 1 Pursuant to s 54 of the Civil and Administrative Tribunal Act the Tribunal exercise a discretion to seek permission of the President for referral of questions of law to the Supreme Court. 2 The President of NCAT is required to give written permission to refer those questions of law to the Supreme Court. 3 The Tribunal be required to give detailed and adequate written reasons why the Tribunal does not have a conflict of interest in refusing a referral of those questions of law to the Supreme Court given the substantiating evidence before the Tribunal of serious misconduct alleged corrupt conduct of the alleged corrupt Dinnen in NCAT proceedings 2020/287835. 4 The NCAT President required [sic] to give detailed and adequate written reasons why the Tribunal does not have a conflict of interest in refusing the referral of those questions of law to the Supreme Court given the substantiating evidence before the President of serious misconduct alleged corrupt conduct of the alleged corrupt Dinnen in NCAT proceedings 2020/287835. 5 NCAT President to provide detailed and adequate reasons why no decision has been provided to date for the application to publish the transcript for the NCAT 2020/287835 Dinnen May 19 2021 hearing. 6 NCAT President/Tribunal to answer those questions of law adequately and in detail (including references to relevant legislation) including how refusing the clarification and confirmation of that legislation is not in the public interest nor has application and relevance to current and future proceedings before the Tribunal. 7 Should the questions of law be in 'bad form', the self-represented/non-legal professional time poor resource poor applicant/appellant (SRNLPA) requires the opportunity, given the importance of those questions of law, to amend/refine those questions. 8 All pending orders/hearing dates/proceedings are to be set aside/adjourned until those questions of law are answered."
The applicant provides a summary for the grounds of his application which include the Tribunal and its President being fully aware of the self-represented, non-legal professional, resource poor, time poor appellant's personal circumstances: (i) not paid for submissions or otherwise related to proceedings; (ii) required to undertake that work after hours; (iii) the time of year which affects commercial companies (end of year rush).
He further states that a fair minded observer could easily form the opinion that Members of the Tribunal or the President have a clear conflict of interest in refusing to refer the questions to the Supreme Court. Further, a fair minded lay observer could easily form the opinion that the failure of the President to address serious misconduct issues of the Tribunal Members fails the public interest and comprises the public's confidence in the decision making of the Tribunal.
Section 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"), gives the Tribunal power, of its motion or at the request of a party to refer a question of law arising in the proceedings to the Supreme Court for its opinion. That power is conditional upon the President consenting in writing, although in a practical sense on most occasions that would really require the Tribunal to be satisfied that such questions exist and should potentially be referred, such that the President could consider whether to grant or refuse consent.
The Appeal Panel in Registrar of Births, Deaths and Marriages v FJG & FJH and Attorney-General of New South Wales as Intervenor [2002] NSWCATAP 270 has dealt with the referral of questions of law by the Tribunal to the Supreme Court. At [32] the Tribunal dealt with the undisputed power of the Tribunal to refer questions of law to the Supreme Court providing they do not breach any obligations in respect of exercising federal jurisdiction or referring questions of federal jurisdiction. The next question to ask is whether questions of law have been identified and the specific nature of questions of law (having regard to the terms of s 54) is that they must arise in the proceedings. The matters raised by the applicant in his request to refer, purported questions of law, to the Supreme Court are not matters in which in my view require such an order. Factors in favour of referral may include a situation where there is no existing authoritative statement from an appellate court on the question of law; that the decision may have an impact broader than on the immediate parties; and that a determination by the court may truncate the legal process. None of those factors apply here.
The real question in this matter is the substantive application in which the applicant seeks the Tribunal to undertake an administrative review. That is the reviewable decision made by the respondent on 14 December 2020 to refuse access to information to him because there is an overriding public interest against disclosure. The applicant also seeks an order pursuant to s 112 of the GIPA Act.
Factors weighing against making such a referral are that the Tribunal may resolve all of the issues, which in my view is the case here. The Tribunal can do that justly, quickly and cheaply in accordance with its obligations under the NCAT Act. Applications to undertake administrative review of decisions are routinely determined by the Tribunal and there is a remedy available to the applicant to appeal from a decision of the Tribunal if he is dissatisfied with the way that it deals with any question of law he raises in respect of the matter.
I find no reasonable basis has been established which would result in me exercising a discretion to refer matters of law for consideration by the President to the Supreme Court. I decline to exercise a discretion to do so. The application in that regard is dismissed.

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (44)