EHW v NSW Education Standards Authority - [2023] NSWCATAD 133

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EHW v NSW Education Standards Authority [2023] NSWCATAD 133
Hearing dates: On the papers
Date of orders: 2 June 2023
Decision date: 02 June 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
(1) A hearing of the respondent’s Application for Miscellaneous Matters (summary dismissal) filed on 2 December 2022 is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(2) The applicant’s Application for Administrative Review filed on 20 September 2022 is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:
ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – administrative review of a reviewable decision – application for summary dismissal

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW) – ss 55, 58
Civil and Administrative Tribunal Act 2013 (NSW) – ss 50, 55, 64
Government Information (Public Access) Act 2002 (NSW) ss 3, 9, 14, 58, 74, 80, 89, 92, 93 100

Cases Cited:
Alchin v Rail Corporation NSW [2012] NSWADT 142
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
General Steel Industry v Commissioner for Railways (1964) 112 CLR 125
Klaric v Commissioner for Police [2020] NSWCATAP 153
Miskelly v Roads and Maritime Services [2019] NSWCATAD 133
Robinson v Commissioner of Police [2014] NSWCATAP 73
Shaw v Secretary, Department of Education [2021] NSWCATAD 224
Wojceichowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:
Nil

Category: Principal judgment
Parties: EHW (Applicant)
NSW Education Standards Authority (Respondent)
Representation:
Solicitor:

Crown Solicitor (Respondent)

Other:
EHW (Self-represented)

File Number(s): 2022/00281198
Publication restriction: The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The applicant is to be known by the pseudonym “EHW”.
Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

The substantive application before the Tribunal is an application by EHW (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for an administrative review of an internal review decision made by the delegate of the NSW Education Standards Authority (the agency) in relation to his access application dated 16 February 2022 (as subsequently amended). By that decision the agency purported to release to the applicant all the information that fell within the scope of his access application, except for Document 16, which was redacted to remove personal information relating to persons unconnected with his access request. However, the applicant contends that the agency’s searches were not reasonable such that it has failed to disclose information it holds that is responsive to his access application. This application was made to the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read EHW v NSW Education Standards Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWCATAD 133
Decision Date: 02 June 2023

CaseChat Overview and Summary

EHW sought administrative review of a decision by the NSW Education Standards Authority (NESA) that certain information was not held by the agency. The Civil and Administrative Tribunal of New South Wales (CAT) considered the application for summary dismissal filed by NESA. The primary legal issue before the CAT was whether the Tribunal had jurisdiction to review NESA's decision, and if so, what the appropriate scope of that review was under the Government Information (Public Access) Act 2009 (GIPA Act). Specifically, the CAT had to determine whether it could review the sufficiency of NESA's search for the requested information and whether it could consider new evidence that emerged after NESA made its decision.

The CAT found that while it had jurisdiction to review a decision that information was not held by an agency, it did not have the power to review the sufficiency of the agency's search. This was consistent with prior decisions, including Wojceichowska v Commissioner of Police, which noted that the adequacy of an agency's search was a relevant but not reviewable factor. The CAT also acknowledged that the burden was on NESA to prove that its decision was correct and preferable. In this context, the CAT clarified that the Tribunal’s role was to identify relevant factual issues based on NESA's reasons and the applicant's submissions, determine whether NESA had proved those issues on the balance of probabilities, and consider any new evidence that might suggest the information was held by NESA. Ultimately, the CAT concluded that the applicant's application for review was without merit.

The CAT dismissed the applicant's application for administrative review and denied NESA's application for summary dismissal. This decision underscores the importance of agencies clearly articulating the basis for their decisions and ensuring they provide sufficient evidence to meet their burden of proof under the GIPA Act.

Orders

Orders of the court

(1) A hearing of the respondent’s Application for Miscellaneous Matters (summary dismissal) filed on 2 December 2022 is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The applicant’s Application for Administrative Review filed on 20 September 2022 is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Which decisions are reviewable decisions The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has the power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search. The Appeal Panel in Wojceichowska v Commissioner of Police [2020] NSWCATAP 173 concurred with that statement, but added at [41]: … Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an “information is not held” decision is the “correct and preferable decision”. … The role of the Tribunal in reviewing an “information not held” decision (ss 58(1)(b), 80(e)) is to decide what the correct and preferable decision is having regard to the material then before it”: s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The “burden of establishing that the decision is justified lies with the agency”: s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “such reasonable searches as may be necessary to find any government information applied for that was held by the agency when the application was received”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency. Other relevant factual issues may include whether any search information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5); determine whether the agency has proved any relevant factual issues on the balance of probabilities; consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; applying those findings, decide what the correct or preferable decision is; affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act. In the present case there was no express decision that the agency does not hold further information that is responsive to the applicant’s access request other than that which has been provided to him. However, such a decision is implicit in the reviewable decision and is capable of being reviewed pursuant to s 80(e). In this respect an Appeal Panel of the Tribunal stated in Robinson v Commissioner of Police [2014] NSWCATAP 73 at [8]:

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	EHW v NSW Education Standards Authority [2023] NSWCATAD 133
Hearing dates:	On the papers
Date of orders:	2 June 2023
Decision date:	02 June 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	(1) A hearing of the respondent’s Application for Miscellaneous Matters (summary dismissal) filed on 2 December 2022 is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The applicant’s Application for Administrative Review filed on 20 September 2022 is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).
Catchwords:	ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – administrative review of a reviewable decision – application for summary dismissal
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) – ss 55, 58 Civil and Administrative Tribunal Act 2013 (NSW) – ss 50, 55, 64 Government Information (Public Access) Act 2002 (NSW) ss 3, 9, 14, 58, 74, 80, 89, 92, 93 100
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 General Steel Industry v Commissioner for Railways (1964) 112 CLR 125 Klaric v Commissioner for Police [2020] NSWCATAP 153 Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 Robinson v Commissioner of Police [2014] NSWCATAP 73 Shaw v Secretary, Department of Education [2021] NSWCATAD 224 Wojceichowska v Commissioner of Police [2020] NSWCATAP 173
Texts Cited:	Nil
Category:	Principal judgment
Parties:	EHW (Applicant) NSW Education Standards Authority (Respondent)
Representation:	Solicitor: Crown Solicitor (Respondent) Other: EHW (Self-represented)
File Number(s):	2022/00281198
Publication restriction:	The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The applicant is to be known by the pseudonym “EHW”. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.