Amos v Western NSW Local Health District

[2017] NSWCATAD 176

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Amos v Western NSW Local Health District [2017] NSWCATAD 176
Hearing dates:	10 May 2017
Date of orders:	29 May 2017
Decision date:	29 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1)   The Respondent is to provide the Applicant with a list of witnesses upon whose evidence it relies within 3 days; (2)   The Respondent is to provide the Applicant with an “open” affidavit or statement from each witness upon whose evidence it relies within 3 days; (3) Pursuant to s.107(3) of the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”), the Tribunal will receive the unredacted Investigation Report and “closed” witness statements in the absence of the public, the Applicants and the Applicants’ legal representatives; (4) Pursuant to s.107(3) of the GIPA Act, the Tribunal will hear argument at the substantive hearing regarding the unredacted Investigation Report, interview transcripts and “closed” witness statements in the absence of the public, the applicants and the applicants’ legal representatives.
Catchwords:	Preliminary hearing – disclosure - confidentiality – absence of the public, applicant, and applicant’s representatives.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Black v New England Local Health District [2011] NSWADT 295 BGC (Australia) Pty Ltd v Freemantle Port Authority (2003) 28 WAR 187
Category:	Procedural and other rulings
Parties:	David Amos (Applicant in 2016/378450) Ruth Arnold (Applicant in 2016/378451) Western NSW Local Health District (Respondent)
Representation:	Counsel: V Bulut (Applicants) N Sharp (Respondent)   Solicitors: Morris Legal (Applicants) Bartier Perry (Respondent)
File Number(s):	2016/378450 and 2016/378451

REASONS FOR DECISION

1. By separate applications filed on 27 October 2016, Dr David Amos (in file 2016/378450) and Dr Ruth Arnold (in file 2016/378451) sought review of internal review decisions made on 30 September 2016 under the Government Information (Public Access) Act 2009 (GIPA Act) to refuse, relevantly, to release certain information contained in an investigation report prepared by Dr Victoria Hiley (Investigation Report) at the request of the Western NSW Local Health District (the Respondent).

2. The Respondent completed the filing and service of its evidence in these two matters on 6 March 2017. This evidence comprised the following “open” evidence:

1. one volume of s.58 documents in the Dr Amos matter;

2. one volume of s.58 documents in the Dr Arnold matter; and

3. statement of Ms Sandra Duff (Director of Workforce and Culture, LHD) dated 3 March 2017.

3. The Respondent filed additional “closed” evidence and submissions, over which confidentiality orders were sought.

4. At a directions hearing before Senior Member McAteer on 7 March 2017, the Respondent applied for part of the substantive hearing to be heard in the absence of the public, the Applicants and the Applicants’ representatives, and for non-disclosure orders to be made over certain additional documents, including evidence and submissions, filed in the Tribunal.

5. On 14 March 2017, the Applicants filed submissions seeking access to the confidential witness statements, largely on procedural fairness grounds.

RELEVANT LEGISLATIVE FRAMEWORK

6. In the substantive applications, the Tribunal is embarking upon an administrative review of the internal review decision of the Respondent. The Tribunal has jurisdiction in this matter by reason of s.100 of the GIPA Act, s.9 of the Administrative Decisions Review Act 1997 (NSW) and s.30(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act). In exercising this administrative review jurisdiction, the Tribunal has jurisdiction to make ancillary or interlocutory decisions (s.30(2)(a) of the CAT Act). Such decisions include decisions made under ss.49(2) and 64 of the CAT Act and s.107 of the GIPA Act.

7. Section 49(1) of the CAT Act, located in Division 4 of Part 4, contemplates that hearings will ordinarily take place in public but recognises that the Tribunal has power to direct that hearings (or parts of hearings) take place in private. Section 49(2) of the CAT Act provides:

“The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.”

8. It is accepted that s.49 of the CAT Act does not go so far as to exclude a party or his or her representative from the hearing.

9. Division 6 (ss.64 to 70) of Part 4 of the CAT Act is entitled “Information Disclosure”. Section 64(1) relevantly provides:

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

…

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

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

10. Section 64 of the CAT Act expressly recognises that the principle of open justice can give way to the need to protect confidentiality in certain circumstances. Importantly, s.64 has replaced the common law test of “necessity” with a lower threshold statutory test of “desirability”.

11. Section 66(2) of the CAT Act provides:

“The provisions of the Government Information (Public Access) Act 2009 continue to apply to the disclosure of information to any person or body other than to the Tribunal as if this Act had not been enacted.”

12. Section 107 of the GIPA Act similarly makes provision to override the principle of open justice in certain cases:

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

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

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

(a)    the public and the applicant, and

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

13. The expression “overriding public interest against disclosure” is defined in s.13 of the GIPA Act as follows:

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.

14. Of present relevance, s.14(2) of the GIPA Act provides that the only public interests that can be taken into account for this balancing exercise are those listed in the attached Table.

15. Section 112A of the GIPA Act provides:

“The provisions of this Division are intended to prevail to the extent of any inconsistency with the provisions of the ADR Act or the NCAT Act.”

16. The clear effect of s.112A of the GIPA Act and s.66(2) of the CAT Act is that s.107 of the GIPA Act prevails over ss.49 and 64 of the CAT Act to the extent of any inconsistency. It follows that the correct way of applying the provisions is that:

1. Section 107(2) and (3) of the GIPA Act apply during the course of the proceedings to have the proceedings heard in camera and to the exclusion of the applicants and their representatives. There is no role for s.49 of the CAT Act to play;

2. In the event that s.107 of the GIPA Act is found not to apply, the Tribunal may still exercise power under s.64 of the CAT Act to make non-disclosure and non-publication orders if the “desirability” test in s.64 is satisfied;

3. Section 64 of the CAT Act also applies to empower the Tribunal to make non-publication and non-disclosure orders which will apply after the hearing;

4. In addition, s.107(1) of the GIPA Act applies so that the Tribunal does not disclose certain information in its reasons for decision.

17. Section 107(3) of the GIPA Act operates not only where there “is” an overriding public interest against disclosure, but also where “there could be or is claimed to be” such an interest (see Black v New England Local Health District [2011] NSWADT 295). Where:

1. The respondent agency claims that that there is information subject to an overriding public interest against disclosure; and

2. The Tribunal forms the view that it is necessary to receive evidence of or hear argument in relation to that information in the absence of the public, the applicant and the applicant’s legal representative, in order to prevent the disclosure of that application,

3. The Tribunal must receive the evidence and hear the argument in the absence of the public, the applicant and the applicant’s representative.

18. Section 90 of the Freedom of Information Act 1992 (WA) is in similar terms to ss.107(1) and (2) of the GIPA Act. In BGC (Australia) Pty Ltd v Freemantle Port Authority (2003) 28 WAR 187 at 194-195 [16], EM Heenan J said the following in relation to s.90:

“That this scrutiny and examination, in order to protect the confidentiality of the material if the claim is justified, must be conducted without disclosure to the applicant, its counsel or solicitors is one example of these rare instances in which a party to litigation is deprived of full access to all material documents. However, this is not an isolated exception, and policy considerations which have prompted its acceptance, have been recognised in other areas of the law such as the power of a court to inspect documents in respect of which a claim for legal professional privilege has been made, or to scrutinise material relied upon for the issue of a search warrant, or to inspect documents for which a claim of public interest immunity has been asserted, without disclosing them to the party seeking inspection – see Sankey v Whitlam (1978) 142 CLR 1 at 46 and 110. None of these examples constitutes any denial of natural justice because, if the claim for privilege, confidentiality or public interest immunity is justifiably made, the party seeking to inspect the documents has no right of any kind to do so. Justice is achieved and the law applied in these situations by an examination of the documents by an independent officer or court acting on settled principles.”

Consideration

19. The Respondent’s decision to withhold certain parts of the Investigation Report is the basis for the substantive proceedings. This preliminary determination is concerned with the Applicant’s accessibility to the witness statements that support the Respondent’s decision in the substantive proceedings, and the unredacted submissions filed by the Respondent.

20. Having considered the submissions on confidentiality of both parties, there seems to be a disconnect between the confidentiality orders being sought by the Respondent, the submissions made in support of those orders, and the orders which the Applicant believes the Respondent is seeking.

21. The Respondent seeks the following orders:

1. Pursuant to s.107(3) of the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”), the Tribunal will receive the unredacted Hiley Report and confidential witness statements identified in paragraph 3 above in the absence of the public, the Applicants and the Applicants’ legal representatives;

2. Pursuant to s.107(3) of the GIPA Act, the Tribunal will hear argument at the substantive hearing regarding the unredacted Hiley Report and transcripts and confidential witness statements identified in paragraph 3 above in the absence of the public, the applicants and the applicants’ legal representatives.

3. Further and in the alternative, pursuant to s.64(1)(c) of the Civil Administrative Tribunal Act 1997 (NSW) (“CAT Act”), until further order, the Tribunal prohibits the publication of the unredacted Hiley Report and confidential witness statements identified in paragraph 3 above;

4. Further and in the alternative, pursuant to s.64(1)(d) of the CAT Act, until further order, the Tribunal prohibits the disclosure of the unredacted Hiley Report and confidential witness statements identified in paragraph 3 above to the applicants and their legal representatives.

22. The Applicant is not seeking an unredacted version of the Investigation Report at this preliminary stage. That is a matter for consideration in the substantive proceedings.

23. The Applicant’s complaint, and therefore objection to the orders sought by the Respondent, is that the Respondents:

1. Filed “closed” statements with the Tribunal without first seeking orders;

2. Won’t advise the Applicants as to the identity of the witnesses who have provided a “closed” statement;

3. Won’t advise the Applicants of the number of “closed” statements filed by the Respondent.

24. The Respondent’s submissions on confidentiality, as quoted above, make reference to “confidential witness statements identified in paragraph 3 above”. Paragraph 3 of the respondent’s submissions was withheld from the Applicants.

25. The confidentiality orders sought by the Respondent in relation to documents seem, on the material before me, to actually encompass:

1. The unredacted Investigation report;

2. The actual number or quantity of witnesses to the substantive proceedings;

3. Who the witnesses to the substantive proceedings are;

4. The written statement given by each of those witnesses;

5. The annexures or exhibits to each of those statements;

6. The transcripts of interview conducted with certain persons for the purpose of creating the Investigation report;

7. Correspondence with each of those persons for the purpose of third party consultation under the GIPA Act.

26. The Respondent then also seeks confidentiality orders over parts of the hearing in the Tribunal to allow evidence and submissions to be made with respect to the documents in 27.

27. The respondent claims the confidential witness statements provide:

1. evidence of consultations required under the GIPA Act where personal information is concerned and the results of those consultations. To disclose that information would disclose the identity of persons who have objected to the release of their personal information as well as the nature of that personal information. Such information was held to be within the protection of s.107(3) by Higgins DP in Black at [10] and [42]-[44];

2. evidence of the surrounding circumstances which reveal the information and illustrate why there is an overriding public interest against disclosure of that information on the grounds set out in items 1(d), 1(f), 1(g), 3(a) and 3(b) of the s.14 Table.

28. I agree with the basis for confidentiality orders expressed by the respondent in relation to the unredacted investigation report. As expressed above, the redacted sections of the Investigation report are the basis for the substantive proceedings, and providing an unredacted version to the Applicant would render the proceedings nugatory. Orders were made for the Respondent to identify which public interest considerations against disclosure were relied on for each particular redaction, and this has been done. This should provide the Applicant with some assistance in understanding the respondent’s claims, even where material has been withheld.

29. I decline the Respondent’s claim of confidentiality with respect to disclosure of the number or identity of witnesses to the substantive proceedings. The names of the individuals who provided information to the investigator for the purpose of the Investigation Report have been disclosed in the unredacted version of the Investigation Report filed in the section 58 documents. Their mere involvement in the Investigation, whether compulsory or otherwise, could not therefore be information for which there is now an overriding public interest against disclosure. Therefore there is no sufficient basis put before me by the respondent as to why such information should be subject to orders under s64 of the CAT Act or s107 of the GIPA Act.

30. I agree with the basis for confidentiality orders expressed by the Respondent in relation to those parts of the witness statements which deal with the reasons each witness gave as an objection to disclosure, and the disclosure of personal information or other information which is said to fall within items 1(d), 1(f), 1(g), 3(a) and 3(b) of the table to section 14 of the GIPA Act. In my view a redacted version of the “closed” witness statements could be provided to the Applicant so as to limit the parts over which confidentiality orders are made to those parts which are “desirable”. While the confidential witness statements were prepared on the understanding that the evidence would not be disclosed to the applicants or their legal advisers, I do not believe that any witness expressed that the mere fact that they were to be a witness in the proceedings was a cause for concern, especially in circumstances where their involvement in the investigation resulting in the Investigation Report is uncontroversial. Their evidence, to the extent that it deals with confidential matters, can be dealt with “privately”.

31. I agree with the basis for confidentiality orders being sought by the respondent with respect to the annexures to the statements, the transcripts of interview, and the third party consultation correspondence. I don’t understand those documents to be sought by the Applicant at this stage of proceedings in order to prepare its evidence for hearing. Even if the Applicant does seek those documents now, I accept the desirability of making confidentiality orders over them at this stage to protect the information subject to the substantive proceedings.

32. In relation to conducting parts of the hearing as a “closed” hearing, I agree with the Respondent’s submission that this would be desirable where evidence and submissions are to be heard that are subject to non-disclosure orders.

CONCLUSIONS

33. For the reasons set out above, I make the following orders:

1. The Respondent is to provide the Applicants with a list of witnesses upon whose evidence it relies within 3 days;

2. The Respondent is to provide the Applicant with an “open” affidavit or statement from each witness upon whose evidence it relies within 3 days;

3. Pursuant to s.107(3) of the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”), the Tribunal will receive the unredacted Investigation Report and “closed” witness statements in the absence of the public, the Applicants and the Applicants’ legal representatives;

4. Pursuant to s.107(3) of the GIPA Act, the Tribunal will hear argument at the substantive hearing regarding the unredacted Investigation Report, interview transcripts and “closed” witness statements in the absence of the public, the applicants and the applicants’ legal representatives.

5. Order 5 and 6 of the orders made 7 March 2017 are vacated.

6. Applicant to file and serve evidence and submissions on or before 5 June 2017;

1. Respondent to file and serve reply (if any) on or before 9 June 2017.

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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

Decision last updated: 01 June 2017