Clark v NSW Trustee and Guardian

[2019] NSWCATAD 73

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Clark v NSW Trustee and Guardian [2019] NSWCATAD 73
Hearing dates:	20 November 2018 and on the papers (Submissions closed 21 January 2019)
Date of orders:	30 April 2019
Decision date:	30 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1)   The decision of the respondent is set aside. (2) The matter is remitted to the respondent pursuant to s 65 (1) of the Administrative Decisions Review Act 1997 to make a fresh decision. Such decision to be completed by 16 May 2019 and conveyed to the applicant electronically on or before that date. (3)   The matter is listed for further directions before Senior Member McAteer at 9:30am on 21 May 2019 (the applicant may appear by telephone by arrangement with the Registrar if he is overseas at that time).
Catchwords:	ADMINISTRATIVE LAW – Government Information (Public Access) Act -– GIPA –- meaning of excluded information – whether nature of information and term ‘related to’ can be ascertained from description of a process – whether determination as to whether to apply for administration constitutes exercising functions as executor, administrator or trustee capacity.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 NSW Trustee and Guardian Act 2009 Probate and Administration Act 1898 Supreme Court Rules 1970 Uniform Coil Procedure Rules 2005
Cases Cited:	McClymont v Department of Family and Community Services [2017] NSWCATAD 202 Shepherd and Department of Housing, Local Government and Planning (1984) QAR 464 Watson v NSW Trustee and Guardian [2015] NSWCATAD 139
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Bradley Roy Clark (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: B Clark (Self Represented)(Applicant) Crown Solicitor’s Officer (Respondent)
File Number(s):	2018/00119958
Publication restriction:	Nil

REASONS FOR decision

1. This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

2. These proceedings relate to an application for government information concerning the management of the estate of the late Ms G Reiner. During the last years of her life Ms Reiner was subject to a Financial Management order issued by the former NSW Guardianship Tribunal appointing Mrs Sondra Pieters as financial manager for Ms Reimer. Such an arrangement is referred to as ‘private management’ and is subject to the oversight by the NSW Trustee and Guardian who at that time were called the Public Trustee.

3. Ms Reimer died on 21 October 2011 intestate (without leaving a will), and as a result of her death the private management order ceased to have effect by operation of s 93 of the NSW Trustee and Guardian Act 2009 (the TAG Act). From the date of Ms Reimer’s death until the Supreme Court made a grant of administration on 10 December 2015, the Estate was deemed to be vested to the NSW Trustee pursuant to s 61 of the Probate and Administration Act 1898. The applicant was associated with the deceased and the Tribunal understands has been liaising with beneficiaries of the Estate and has concerns about the manner in which the respondent engaged and renumerated a third party to provide services in respect of the preparation and ultimate administration of the Estate. The Tribunal also understands from information in these proceedings that the applicant is a beneficiary to the Estate.

The GIPA Act application process

4. On 31 July 2017 the NSW Trustee and Guardian received a request for information under the GIPA Act. The request sought:

All files, correspondence, file notes and other documents relating to the Estate of the late Gladys Ivy Reiner from the Trustee and Guardian (TAG) in particular:

(a)   A review of all transactions undertaken during the management of Ms Reiner’s affairs by Ms Sondra Pieters under the Financial Management Order between 2009 and her death on 2 October 20; and

(b)   A review of any invoices issued by Michelle Johnston by NSW Trustee and Guardian and paid from the estate.

5. On 20 September 2017 the respondent determined that the access application was invalid because in their view it concerned what the GIPA Act refers to as excluded information. Excluded information is information of the type listed in schedule 2 of the GIPA Act . Section 5 provides for how an agency determines the validity of an access application.

51 Initial decision as to validity of application

(1)   When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either:

(a)   acknowledging receipt of the application as a valid access application, or

(b)   notifying the applicant that the application is not a valid access application.

Note. An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications.

(Emphasis added)

6. Schedule 2 of the GIPA Act deals with what is excluded information and relevantly provides:

Schedule 2 Excluded information of particular agencies

Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.

7. Clause 4 of the schedule provides:

4 Other information

The NSW Trustee and Guardian—functions exercised in the NSW Trustee and Guardian’s capacity as executor, administrator or trustee.

8. Section 43 provides that an application cannot be made under the GIPA Act for excluded information.

43 Access application cannot be made for excluded information

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

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

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

9. On this basis the respondent determined the matter invalid with the practical result being that no information was provided. The applicant requested a review by the Information Commissioner in November 2017. The Tribunal did not have the benefit of the review decision but was advised that the Information Commissioner recommended that the respondent make a new decision pursuant to s 93 of the GIPA Act. On 12 December 2017 the respondent issued their second Notice of Decision and determined that the applications scope included information that was not excluded information as they were the accounts of the Private Manager (Mrs Pieters) and as they predated Ms Reiner’s death they were not documents created for the purpose of the Trustee’s functions as executor administrator or trustee. Those documents were released to the applicant. However the respondent declined to provide any documents received after 22 October 2011 on the basis that in their view those documents related to Ms Reiner’s Estate.

10. An internal review was sought and the respondent issued a third Notice of Decision dated 7 February 2018 which identified 26 documents relating to the accounts of the financial manager. These further documents were released to the applicant. The respondent declined the application for the remaining documents for information held since 22 October 2011 as excluded information but did release a statement of the Estate account and a copy of the invoice of the engaged professional (Michelle Johnson). It is this 7 February 2018 decision which is the administrative decision under review, and the applicant seeks a review on the basis of the holdings from 22 October 2011 which have been withheld.

Jurisdiction

11. The Tribunal’s has jurisdiction to review an agency’s decision under s100 of the GIPA Act. That section provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act).

12. The task of the Tribunal is to determine what is the correct and preferable decision having regard to the material before it including any relevant factual material and any applicable written or unwritten law (s 63(1) ADR Act). The Tribunal makes its own decision in place of the respondent. However in reaching this position the onus is on the respondent to establish that the earlier decision was the correct and preferable decision.

What the respondent decided

13. The respondent’s decision dated 7 February 2018 is somewhat redundant bearing in mind the developments that have taken place since that time. The application was decided in two parts, ‘A’ and ‘B’.

14. Part ‘A’ dealt with the documents that TAG held in respect of the Private Management of Ms Reimer. The TAG role in respect of private management is one of oversight. Ordinarily it is limited to approving the initial financial plan and an annual audit of the accounts of the managed person. The respondent released all of the information that they had identified as falling within Part ‘A’ in their Notice of Decision dated 7 February 2018.

15. Part ‘B’ dealt with the information initially identified as excluded information. The respondent identified the excluded information as comprising:

all files, correspondence, file notes relating to the estate, internal reviews and documents containing information regarding internal reviews in relation to accounts and other estate matters.

16. While the respondent found this information to be excluded information under the GIPA Act (as discussed above), as the applicant was a beneficiary to the estate, and in accordance with TAG’s principles, a statement of the estate account was released to him.

Proceedings before the Tribunal.

17. The applicant lodged his administrative review on 16 April 2018 within the time provided by s 101 of the GIPA Act. Prior to the hearing of the initial phase of the matter in November 2018 there were a number of directions listings before the Tribunal and a Case Conference to attempt to narrow the issues in dispute. By the time that the matter was heard the respondent had made a number of concessions concerning the application. These concessions are summarised as:

• That the decision was wrong to find that the scope of the request was limited to ‘a review of all transactions undertaken’ in the relevant period 26 February 2009 – 21 October 2011.

• An acceptance that the respondent was not exercising functions in its capacity as an “executor, administrator or trustee” during the period 22 October 2011 to 30 April 2015. Therefore the finding that the access application was invalid (as excluded information) was incorrect as it relates to that period.

18. Four weeks before the hearing a further concession was made by the respondent concerning the scope of the application. The respondent had now identified the following (additional matters) as being within scope:

• Information relating to all documents held by the respondent during the period 26 February 2009 – 21 October 2011.

• Information relating to all documents held by the respondent during the period 22 October 2011 to 30 April 2015.

19. The respondent now identified the questions for the Tribunal to determine at hearing as:

1. The adequacy of the searches of the respondent to locate the information relating to the period 25 February 2009 until 21 October 2011 and;

2. The decision finding the access application invalid in so far as it relates to the period 1 May 2015 to 9 December 2015.

The hearing

20. The applicant appeared at the hearing by telephone, his lawyers having ceased to act some three months prior to the hearing. The applicant made a submission that the main basis of the application was to examine the respondent’s dealings with the intestate lawyer Ms Johnson and understand the amount, basis and purpose of the Trustee’s payments to her from the Estate of Ms Reimer.

21. The applicant indicated that it was his understanding that Ms Johnson only acted for one beneficiary to the Estate – the former Private Manager. The applicant submitted that what he really seeks access to is Ms Johnson’s itemised account which the respondent paid. It was further submitted that Ms Johnson had submitted a bill for $27,000.00 but the TAG had paid $17,200.00.

22. The applicant indicated that he was still seeking information on these matters as it would better allow him to understand what transpired with the Estate funds.

23. Prior to hearing from the witness the respondent conceded that in the information produced, there was a gap in the emails provided. This it said arose because of the transition of the email system by the Department from IBM Lotus Notes to Microsoft based Outlook email systems during the relevant period 2011-2015.

24. The Tribunal received evidence from two witnesses for the respondent and adjourned for a short while during the hearing so that the parties could discuss attempts to resolve the outstanding issues.

Respondent’s Evidence

25. Sharon Sharma a legal officer for TAG affirmed an affidavit of 22 October 2018 and gave evidence at the hearing. Her evidence set out the procedural history of the financial management order and the dealing with the Estate leading to the grant of administration of the Estate.

26. The witness gave evidence of the Director of Legal Services TAG contacting Ms Johnson to inform her that TAG was considering applying to the Supreme Court for administration of Ms Reimer’s Estate and further correspondence arsing from this issue.

27. The witness offers the opinion that review of file notes from the period 1 May 2015 to when the application to the Court was submitted later that year, indicates that TAG was reviewing existing documents and actively seeking further documents to support the administration application. Annexure ‘C’ to the affidavit includes in the email correspondence a reference to TAG being unable to guarantee Ms Johnson’s costs for preparatory work in respect of the Estate, but states that:

NSWTG is unable to guarantee full or part payment. However as you have obtained certain certificate proofs which would normally have been obtained by NSWTG consideration could be given to make an adjustment against what NSWTG would normally charge in your favour.

28. Another affidavit was tendered by the respondent which focused on the searches for the information rather than the nature of the information itself. The affidavit of L Zin affirmed 22 October 2018 deposes at [9] that the records related to a managed person’s estate are stored on:

‘SWTG’s Client Information System database and TRIM Records Management System.

The affidavit goes on to state that:

.. all documents relevant to trusts and estates are stored on the Trusts and Estates Administration and Management System (TEAMS) and TRIM Records Management System.

29. At [10] of the affidavit Ms Lin states:

10. NSWTG maintains hard copy files for managed person’s estates, and when estates are under administration or are in the process of becoming under administration. However, it is my understanding that all hard copy files are to be replicated in the electronic databases.

Respondent’s submissions at hearing

30. In respect of the schedule 2 (excluded information argument the respondent submitted that the Financial Management file was closed in mid 2012. TAG was only exercising functions relating to the administration of the Estate.

31. The respondent’s primary submission concerned the meaning of the words ‘related to’ as defined in the GIPA Act. In support of this the respondent made a submission that the period when it is exercising such functions extends to exercising functions connected with certain capacities (related to the proposed administration) even if TAG was not yet formally appointed.

32. The respondent submitted that it conducted work in the relevant period which related to the preparation and submissions for Letters of Administration. The work referred to at [27] above is considered by the respondent as part of the administration of the Estate even though this status had not been conferred legally on the respondent by the Court at that time.

33. In addition the respondent submitted that the Tribunal could be satisfied from Ms Sharma’s affidavit that a new file was only opened for Estate Administration and that TAG’s action only elated to the administration of the estate. For those reasons the information was properly characterised as excluded information.

34. The respondent submitted that the TAG was attempting to complete the details of a Form 119 of the Uniform Civil Procedure Rules 2005 and Rule 12 (Part 78) of the Supreme Court Rules 1970 concerning the material required in support of a probate or administration application.

35. Concerning the submission that the information created in this period should be properly assessed as excluded information the respondent outlined that the type of work referred to in the emails annexed to their affidavits and as set out in Ms Sharma’s affidavit, is work critical to the estate administration process. This it was submitted applied to the work done from 1 May 2015 (when the TAG decided that they would apply for the administration of the estate) until when the application was actually made and letters of administration granted.

36. The respondent submitted that if the Tribunal did not find this material to be material covered by Sch 2 and therefore excluded information then the respondent submitted that they should be allowed to consider whether there were any relevant overriding public interest considerations against disclosure which attached to the information, so that it could be assessed afresh in accordance with Part 2 of the GIPA Act.

Applicant’s submissions

37. The applicant submitted that the respondent had not been acting in accordance with the initial request and had been years late in disclosing documents that he was rightfully and lawfully entitled to. Some 500 folios had now been disclosed predominantly due to these proceedings and the requirement that the respondent continue to search and assess documents for release.

38. The applicant submitted that the respondent was withholding documents under some motivation to prevent scrutiny and transparency of the handling of the oversight of both the financial manager and the estate administration process generally. Many assertions were made about the individuals involved in this process. A criticism of Ms Johnson was made by the applicant, and this was submitted as grounds for both why the applicant sought to inquire into her activities concerning the Estate, and why TAG was reluctant to provide information.

39. In support of the criticisms of the handling of the Estate issues the applicant referred to s 12 (2) of the GIPA Act and referred to item (e) from the Note to the section as a basis for the Tribunal granting him access to the information.

2 Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. 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.

(Emphasis added)

40. The applicant made a number of other submissions primarily focussing on his understanding of the handling and management of the Estate matters by the respondent and others, and was primarily concerned with the alleged conduct of the respondent (concerning the Estate and access to information generally).

41. In closing submissions the applicant requested full and proper disclosure befitting the matter in respect of proper management of the administration process and handling of the Estate generally

Consideration

42. I observe that the applicant’s final submission (like many of the applicant’s arguments) appears to go beyond the GIPA Act provisions but has some relationship to s 65 of that Act, but these ‘personal factors’ are only enlivened if the excluded information argument is resolved in the applicant’s favour.

43. Examining the matter broadly, the issues canvassed by the parties up to and including the hearing raise a number of issues. The central issue in my view is deciding what function (if any) the respondent was engaged in prior to the grant of administration of the Estate by the Supreme Court on 10 December 2015.

44. The next issue concerns the sufficiency of search issue. Then there is a further issue concerning the respondent’s election at hearing for there to be a further opportunity to determine the public interest factors against disclosure should the Tribunal find that the information is not excluded information. I will deal with that issue at the end of these reasons.

45. For these reasons the Tribunal proceeded upon a dispute resolution process both at brief intervals during the hearing and in the post hearing directions concerning the conduct of the parties. Consistent with the guiding principle of the Tribunal the ‘settlement’ approach was seen and agreed as the most expeditious manner of disposing of the matter.

46. At the conclusion of the hearing detailed orders were made and agreed to by the parties. On the sufficiency of search issue the following order was made:

5. NSW Trustee and Guardian is to conduct further searches for the following three classes of documents as agreed at hearing: (1) Information concerning any Swiss Bank Account relating to the estate, (2) the itemised account of Legal Practitioner Ms Johnson, (3) correspondence between Ms Johnson and Ms Pollard – officer of the respondent. Such information as identified is to be assessed for release either within the parameters of the GIPA Act, or considered for release outside of the parameters of the GIPA Act by consent (with such conditions as may be agreed between the parties). These matters are to occur on or before 11 December 2018.

47. These orders and others made at the end of the hearing (1-4 and 6) were extended by consent until 18 January 2019 at the respondent’s request. I observe that the parties were on notice that if the excluded information argument of the respondent failed then further orders concerning assessing the information under s-14 of the GIPA Act were necessary.

Sufficiency of search issue

48. From the evidence presented at hearing a preliminary view is that the searches were reasonable having regard to the case law on this issue. The main query relates to the evidence that leads to the conclusion that paper case files were not searched prior to the hearing because of Ms Lin’s understanding (set out at [27] above) that all hard copy files are replicated in the electronic files.

49. It may be that little turns on this issue because Ms Lin did obtain detailed responses from four colleagues who were directly involved in the matters relating to the late Ms Reimer. I note that the requirement or position that the searches for the information was sufficient rests with the respondent to establish.

50. The respondent relied on the Tribunal’s reasoning in McClymont v Department of Family and Community Services [2017] NSWCATAD 202 that the Tribunal did not have jurisdiction to review the adequacy of an agency’s searches. The issue being that the Tribunal found that there was not jurisdiction to review an alleged failure by an agency to comply with an obligation under s 53 (2) of the GIPA Act to conduct reasonable searches. At [24] and [25] of McClymont the Tribunal observed:

2. This test has been applied in many decisions of the Administrative Decisions Tribunal and this Tribunal, such as Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5 at [11] to [12] and BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 at [27] to [28]. It was applied by the Administrative Decisions Tribunal in relation to applications made under the former Freedom of Information Act 1989 (NSW) until the Court of Appeal held that the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24 of that Act (and therefore not reviewable) (see Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140). The legislature addressed this issue, in the GIPA Act, by the inclusion of ss 58(1)(b) and 80(e), which make clear that a decision that an agency does not hold information is reviewable.

25. Notwithstanding that the Tribunal now has jurisdiction to review a decision that an agency does not hold information, it does not have jurisdiction to review an alleged failure by an agency to comply with the obligation under s 53(2) of the GIPA Act to conduct reasonable searches.

51. Focusing on whether the searches conducted were sufficient the respondent referred in submissions to the conventional approach of NCAT on this issue. That approach begins with the proposition from the Queensland case of Shepherd (Shepherd and Department of Housing, Local Government and Planning (1984) QAR 464) that the Tribunal must ask itself: 1. Whether there are reasonable grounds to believe that the requested material is held by the agency, and 2. Whether the search efforts made by the agency have been reasonable in the circumstances of the case.

52. The respondent submitted that the applicant’s contentions on this ground were speculative suggesting that additional information may exist. At the time of hearing the respondent submitted that it’s searches were reasonable but that if the applicant provided further credible information that other documents existed then the respondent would revisit the matter.

53. The respondent provided a further affidavit (post hearing) in accordance with the Tribunal’s directions of 20 November 2018 on the search issue. The affidavit of S Roden solicitor with TAG dated 18 January 2019 and filed the same date has been received without any objection from the applicant. That affidavit deposes that between 20 November 2018 and 30 November 2018 officers of the respondent conducted further searches in response to order 5.

54. The evidence indicates that the documents concerning Swiss Bank Accounts (as referred to in order 5) are no longer held by the respondent. However the respondent has identified a number of further documents and released a schedule of those documents to the applicant as part of a settlement offer (pending acceptance and release of the actual documents). I note that some of these documents appear dated within the period for which the respondent otherwise claims that such matters constitute excluded information.

55. A response from the applicant of 20 January 2019 appears dismissive of the genuineness of the offer, and contends that such documents (now forthcoming) illustrate the negative behaviour of the respondent in dealing with the entire matter (including the GIPA request). Again I observe that the applicant’s position somewhat conflates the GIPA response with the underlying matter of how TAG dealt with both the management and administration of Ms Reimer’s Estate. In my view the majority of the applicant’s submission on the final settlement offer and an critique of the further documents focus on a criticism of the conduct to date rather than a focused attempt to consider the merits of what the respondent is offering, in light of the initial GIPA Act application and these proceedings.

56. Having identified the further documents (some for which the respondent says GIPA should refuse access to and others which could otherwise be released), and noting the extent of the searches undertaken and the unchallenged evidence of those searches, I find on the search issue that the respondent has as at 18 January 2019 discharged its onus on this issue.

57. Whilst there is a contention that the email transition and subsequent possible loss of information is either suspicious or somewhat negligent, the specific search provision under review relates to the reasonableness of the searches undertaken, not what external factors may or may not have lead to an (alleged) loss of data. Those matters are more concerned with records legislation or other statutes concerning how information is stored and or held and retained.

58. Whilst the applicant characterises the matter as at 20 January 2019 as a matter relating to the management and administration of the Estate, that is not what these proceedings concern.

Excluded Information issue

59. On the excluded information ground I note the respondent’s evidence and submissions as referred to at [26] – [27] and [30] – [35] above. The respondent relied on Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [31]:

13. The expression "relates to" has been considered in numerous decisions. The term has been held to be one of broad import: see Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111. This Tribunal has held that the concept of information "relating to a function" of an agency should be applied generously: see for example Miller v Director of Public Prosecutions [2012] NSWADT 38 at paragraphs [19] - [23], citing Cianfrano v NSW Ombudsman [2007] NSW ADT 273 and Raethel v Director-General, Department of Education & Training [1999]).

14. In DF v Director General, Attorney General's Department [2002] NSWADT 164, the Tribunal’s President considered documents related to the DPP's prosecuting functions. The President noted at paragraph [9] that:

"The applicant, as is usual in these cases, is faced with the difficulty that he can only make general submissions as to the applicability of the heads of exemption claimed for the documents. The documents have been supplied to the Tribunal as a confidential exhibit. The Tribunal has inspected the documents in light of the exemptions relied upon."

15.   The President was satisfied that an advice to the DPP from the relevant Crown Prosecutor in relation to the conduct of a trial was "reasonably connected with the conduct of the 'prosecuting functions' of the DPP". in relation to the scope of the exemption his Honour then said:

23 The Tribunal is satisfied that it was a document of a routine kind prepared for the DPP in accordance with office practice where a particular type of outcome occurs in a criminal trial (here acquittal by direction). I am satisfied that the entire advice is reasonably connected with the conduct of the `prosecuting functions' of the DPP, and is exempt from FOIA by virtue of s 9, Schedule 2, item (ii).

24 It is not necessary, in my view, in this case to attempt an exhaustive definition of the meaning of `prosecuting functions' in order to reach that conclusion. This is not a document which might be said to lie at the boundary between the `prosecution functions' and the FOIA-covered `non-prosecution' functions of the Office. In the practice of criminal law, the term `prosecution' refers to the conduct of criminal proceedings (see, for example, Osborn's Concise Law Dictionary, def. of `prosecution'; Mozley and Whiteley's, Law Dictionary, def. of `prosecution'.) `Prosecution' in the context of Schedule 2, item (ii) refers at least to the conduct of criminal proceedings by the Director, his officers and other persons (such as private practitioners) engaged by him.

25   The `functions' connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal). (The document contains references to individuals the release of which would, I am satisfied, involve the unreasonable disclosure of information concerning their personal affairs: cl 6(1). If this were the only ground relied upon, the document could be disclosed with appropriate deletions.)

16.   In each case, the question is the extent to which the information in issue has a connection with the specified function.

60. The reference at [16] of Watson goes to what was the connection of what TAG was doing with the information that related to the Administration function. The respondent’s position is that from the date of 1 May 2015 being the date that they notified that they were considering assuming the function of administrator, all information is captured by the excluded information provision. The question arising from this proposition might be ‘what role did the TAG have that allowed them to exercise this function’? Was TAG engaging in a speculative process where they were testing the water and considering whether consistent with their statutory obligations this was an Estate whereby they should seek to be granted letters of administration upon application to the Court? Or was there some other legislatively prescribed process in train. No submissions were received on this issue.

61. The respondent submitted that this information (through this process) was an example of information reasonably connected with the functions exercised in the respondent’s capacity and an administrator. In my view the evidence indicates that the respondent was considering applying for the equivalent of appointment as an administrator of the Estate (as there was no executor). The question then becomes: was considering applying to be appointed as administrator – consistent with exercising functions in their capacity as an administrator.

62. The key issue seems to relate to when the respondent begins to be characterised as administrator of the estate, in order to have or hold capacity as an administrator.

63. Whilst the respondent submits that the facts in DF as referred to in the extract from Watson at [59] above are applicable in the current case, I observe that those facts related to actions of the DPP arising from a prosecution which it had already formally undertaken or held a statutory and functional role before the court. In DF the test under the former Freedom of Information Act 1989 was whether the information was reasonably connected with the prosecuting functions of the office of DPP. The DPP had already been exercising those functions at the time of the relevant issue before the Tribunal.

64. In the current matter the test is much narrower than being connected with functions or particular functions generally. In the current matter the applicant’s position is that the TAG was not the administrator at the relevant time and therefore could not hold those functions. The TAG was seeking to be ‘appointed’ as administrator of the Estate. Until such time as it was appointed by the Supreme Court (by a grant of letters of administration) it is difficult to see how it was engaged in the exercising of functions as Administrator.

65. In deciding how the excluded information issue should be interpreted I note that the words in the schedule are as follows:

functions exercised in the NSW Trustee and Guardian’s capacity as executor, administrator or trustee.

(Emphasis added)

66. There is no evidence to suggest that the TAG had any capacity as administrator at the relevant time. The issue was that it was seeking to have that capacity granted to it in a legal sense. Whilst the enabling legislation provides the TAG with various roles, responsibilities powers and functions, only the Supreme Court can provide a ‘grant’ or order creating that legal capacity.

67. In the absence of any submissions on the meaning of the term capacity and without embarking on a formal legal analysis of the meaning of the term in this context, capacity would usually be considered as equating to ones duty, role or position.

68. In my view the submission that: functions exercised in its capacity as an administrator, includes all the “professional and administrative tasks connected with the application for administration” including the process of determining whether to apply to be appointed as the administrator and the process of preparing an application for Letters of Administration’ is misconceived. (Respondent’s subs 22/10/2018 at [48] referring to DF at [25]).

69. There is ample explanation for how some information obtained during the application process can be classified as not being excluded information whereas other information forming part of the administration of the estate process (which might be similar information to the earlier holdings) would be excluded.

70. It appears that GIPA is designed to exclude access to the later information (in that form) by making it excluded information. The earlier information however is subject to a GIPA application process with all of the necessary considerations to consider prior to release. As a result it does not necessarily follow that it would be ‘an odd result if information held by NSWTG in its capacity as administrator was excluded information, but information collected to enable it to become an administrator was not.’ (Resp Subs [48])

71. The key issue concerns what capacity the relevant agency is operating in when they hold the information.

72. For this reason the claim that all of the information is excluded information cannot stand. I observe that through this process the Tribunal has not formally had access to any of the documents or information held by the respondent, other than a schedule, and copies of some of the documents obtained by the applicant and filed by him with the Tribunal.

Conclusion

73. It will be necessary for the Tribunal to receive those documents to make a proper adjudication at some future time on any remaining arguments about their release.

74. Prior to that and as foreshadowed in the respondent’s earlier submissions, the respondent wishes to be heard on the relevant considerations under the Table to s 14 of the GIPA Act. It appears that no assessment of this type has been undertaken and it will therefore be necessary to remit the matter back to the respondent to make a fresh decision on the basis that the information is not excluded information.

75. The correct and preferable decision is to set aside the decision of the respondent and remit the matter to the respondent in accordance with s 65 (1) of the ADR Act to make a fresh decision. It may be that during that process the parties can further explore whether any further documents might be forthcoming to settle the matter in respect of the GIPA Act process.

73. I therefore make the following orders:

Orders

1. The decision of the respondent is set aside.

2. The matter is remitted to the respondent pursuant to s 65 (1) of the Administrative Decisions Review Act 1997 to make a fresh decision. Such decision to be completed by 16 May 2019 and conveyed to the applicant electronically on or before that date.

3. The matter is listed for further directions before Senior Member McAteer at 9:30am on 21 May 2019 (the applicant may appear by telephone by arrangement with the Registrar if he is overseas at that time).

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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

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: 30 April 2019