Fisher v Queanbeyan Palerang Regional Council

[2022] NSWCATAD 242

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fisher v Queanbeyan Palerang Regional Council [2022] NSWCATAD 242

Hearing dates:

30 May 2022

Date of orders:

21 July 2022

Decision date:

21 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1. Pursuant to s 63(3)(b) of the Administrative Decisions Review Act 1997 (NSW), I vary the respondent’s decision dated 11 March 2022 with respect to item 6 of the Schedule of Documents, as follows:

(a) Access to the email from the Barrister acting for Mr Mooney to Mr Turland dated 25 March 2022 is refused pursuant to cl 5 of Schedule 1 of the GIPA Act.

(b) The respondent is to provide the applicant with a redacted copy of the letter from Mr Tooth to Mr Mooney’s Barrister dated 13 April 2022 pursuant to cl 3(a) to the Table in s 14 of the GIPA Act.

2. The respondent’s decision dated 11 March 2022 is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – review of decision made following an order for the respondent to reconsider its decision – reasonable searches – Legal privilege

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Freedom of Information Act 1989 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Local Government Act 1906 (NSW)

Local Government Act 1993 (NSW)

Roads Act 1993 (NSW)

State Records Act 1998 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457; [2006] HCA 46 at [61]

Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62]

Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130 at [27]

Commissioner of Police v Danis [2017] NSWCATAP 7 at [43]

Fisher v Commissioner of Police, NSW Police Force [2019] NSWCATAD 205

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]

Fisher v Queanbeyan Palerang Regional Council [2022] NSWCATAD 48

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]

Hurst v Wagga Wagga City Council [2011] NSWADT 307

John Leo Fisher v The Queen [2019] NSWDC 297

Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7]

Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [18], [24]

Taylor v Destination NSW [2017] NSWCATAD 272 at [17]

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

YG & GG v Minister for Community Services [2002] NSWCA 247 at [55]

Texts Cited:

Nil

Category:

Principal judgment

Parties:

John Fisher (Applicant)
Queanbeyan-Palerang Regional Council (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Mr A Turland (Respondent)

File Number(s):

2021/00167059

Publication restriction:

Not applicable

REASONS FOR DECISION

Background

1. The background to this matter was discussed in the Tribunal’s previous decision (Fisher v Queanbeyan Palerang Regional Council [2022] NSWCATAD 48), in which the Tribunal remitted the matter to the respondent for reconsideration under s 65(2) of the Administrative Decisions Review Act 1977 (NSW) (the ADR Act).

2. The respondent then made new decision dated 11 March 2022 and this is the subject of the current administrative review.

3. The matter was listed before me for directions on 8 April 2022, at which the applicant appeared in person and Mr A Turland appeared for the respondent. I ordered the respondent to file and serve a copy of its new decision and all affidavit evidence that it relies upon by 29 April 2022. I ordered the applicant to file and serve his response to that decision by 13 May 2022 and listed the matter for hearing by way of AVL on 30 May 2022.

4. However, on 3 May 2022, Senior Member Montgomery varied the timetable, extending the time for compliance to 6 May 2022 (the respondent) and 20 May 2022 (the applicant).

Further hearing

5. At the hearing on 30 May 2022, the applicant was self-represented and Mr Turland appeared for the respondent.

Matters in dispute

6. The applicant stated that he pressed his claim for all items in the respondent’s Schedule of Documents, except for items 4 and 7. In view of this statement, the Tribunal decided to clarify the basis of the remaining dispute.

Item 1

7. The applicant complained that the respondent had not produced any correspondence between Minister Barilaro and itself.

8. In reply, Mr Turland stated that he sent an enquiry to Minister Barilaro’s office on 12 January 2022, but had not received any response and there was no response to his previous enquiries. He undertook to provide the applicant with a copy of his letter/email to Minister Barilaro’s office by close of business on 30 May 2022.

9. The applicant then stated that he did not press his request regarding Ms Tuckerman.

Item 2

10. The applicant stated that Mr Warne’s letter was at the end of a very long email exchange with the respondent about damage to gates. The letter went to gate modification and the respondent released email chains between the Police and Goulburn-Mulwaree Shire Council informally. However, he does not understand why the respondent cannot access Mr Warnes’ emails. He stated that his enquiry was handled by officers of the respondent including Dwight Cosgrove. He said that he has received some items by way of Subpoena, but he believes that the respondent has further documents that should be released to him.

11. In reply, Mr Turland stated that the respondent does not hold any further documents that comply with this item.

Item 3

12. The applicant stated that a Permit System exists and this is conditional on Local Land and Council permissions and a $20M public liability policy. He also stated that Goulburn-Mulwaree Shire Council was the road holder until 2004.

13. In reply, Mr Turland stated that information that complies with item 3 was “never generated” by the respondent “due to lack of capacity.” In other words, the respondent has no documents to produce.

Item 5

14. The applicant stated that in Mr Warne’s letter, the respondent addressed gates one to three (inclusive) but not gate four. The respondent did not liaise with him about this item and he believes that there is no reason why permission for works/modifications would have been required for gates one to three, but not for gate four. He said that the respondent became the road authority in 2004 and it is required to maintain records under the Roads Act 1993 (NSW).

15. In reply, Mr Turland stated that he had searched through emails and archived records held by the respondent and that it holds no records relating to the fourth gate. He also made enquiries with members of staff who had worked with previous Councils, without success.

Item 8

16. The applicant conceded that this item overlaps significantly with item 2. He said that Senior Constable Fitzgerald was mentioned in Mr Warne’s letter to him. He complained that he has never been provided with an explanation as to why no documents have been produced.

17. In reply, Mr Turland stated that the respondent does not hold any records that comply with this item, other than the information regarding emails to S/C Fitzgerald in respect of item 2.

Further evidence

18. The applicant filed a further Affidavit dated 18 May 2022 (which annexed an email dated 20 May 2022). The respondent did not object its admission into evidence and it was admitted and marked as Ex C. The respondent did not require the applicant for cross-examination.

19. The respondent relied upon the following evidence:

1. Affidavit of Marilyn McGrath dated 4 May 2022;

2. Affidavit of Caitlin Flint dated 5 May 2022;

3. Reconsideration decision dated 11 March 2022;

4. Affidavit of Phil Hansen dated 28 April 2022;

5. Bundle of documents filed on its behalf on 27 August 2021 (including an email from Mr Naghi to the applicant dated 26 July 2021); and

6. Affidavit of Aidan Turland dated 28 April 2022.

Dispute about admissibility of the respondent’s evidence

20. The Bundle of documents was before the Tribunal at the time of the previous hearing.

21. In relation to the respondent’s affidavit evidence, the applicant stated that he notified Mr Turland that he required all of the witnesses to be available for cross-examination. However, Mr Turland advised him that due to prior commitments, deponents other than himself were not available. He therefore objected to the affidavits being admitted into evidence.

22. In response, Mr Turland stated that when this scenario arose, he sought advice from the Tribunal and on 9 May 2022, he was advised by Deputy Registrar Skinner that if the applicant wished to compel the witnesses to attend the hearing he could apply to issue a Summons to Give Evidence. He then sent an email to the applicant dated 9 May 2022, providing him with the Deputy Registrar’s advice.

23. The applicant did not dispute that on 9 May 2022, he received an email from Mr Turland advising him that he could issue a Summons to Give Evidence to compel the witnesses to attend the hearing. However, he disputed that it is his responsibility to ensure their attendance and argued to the effect that the respondent is obliged to ensure their attendance, when requested, as a model litigant. He also stated that he has been involved in many previous GIPA Act matters and he has never before been required to issue a Summons to compel a witness to attend a hearing.

24. The Tribunal referred the applicant to the advice provided by Deputy Registrar Skinner and confirmed that it accurately reflected the Tribunal’s Guideline and Practice Direction No. 2. The evidence before me indicated that he was advised on 9 May 2022 that he would need to issue a Summons to compel the witnesses to attend the hearing, but he chose not to do so.

25. On that basis, I rejected the objection to the admission of the respondent’s affidavit evidence and the respondent’s evidence was admitted and marked as follows:

1. Affidavit of Marilyn McGrath dated 4 May 2022 – Ex 1;

2. Affidavit of Caitlin Flint dated 5 May 2022 – Ex 2;

3. Reconsideration decision dated 11 March 2022 – Ex 3;

4. Bundle of documents filed on its behalf on 27 August 2021 (including an email from Mr Naghi to the applicant dated 26 July 2021) – Ex 4;

5. Affidavit of Phil Hansen dated 28 April 2022 – Ex 5; and

6. Affidavit of Aidan Turland dated 28 April 2022.

Further application to exclude the respondent’s evidence/Request for reconsideration of the decision to admit the respondent’s evidence

26. Following the completion of the hearing on 30 May 2022, when the Tribunal reserved its decision, the applicant sent further emails to the Tribunal, as follows:

1. 30 May 2022

I note the Respondent’s submission today.

Please see attached.

UNIFORM CIVIL PROCEDURE RULES 2005 – REG 35.2

9 May 2022 the Respondent, in response to my request, denied me my written request.

Today it was orally quoted the Tribunal Registrar advised the Respondent (Mr Turland) of Subpoena.

However, a subpoena is not so stipulated or mandated. Only that attendance be sought by writing.

The Deputy Registrar has not cited what basis a written request doesn’t suffice.

It is not known what question was posed by the Respondent’s Legal Representative to the Deputy Registrar, and if the Deputy Registrar avails to giving advice of a legal nature in general or in isolation.

I press that a written request (UCPR 35.2) was made, 9 May 2020 (sic), that the Respondent to ensure availability of staff in the lead up to its reliance on such affidavits for its own case where the onus falls to the Respondent (GIPA). That the applicant wasn’t in error to request affidavits submitted available without deponents to be set aside.

2. 30 May 2022

Dear Registrar,

Please provide a written statement if reasons why, for the matter identified, the respondent (Aiden Turland – Queanbeyan Palerang Regional Council) orally quoted a Deputy Registrar gave (legal) advice that the Applicant pursue subpoenas?

The Applicant complied to UCPR 35.2 (attached) that does not mandate or prescribe a subpoena, instead that a written request is made. A written request was made and which the Agency interpreted as such.

NCAT is aware that a subpoena represent a cost hurdle, and three more so, needing such put before the Tribunal then cost for issuance, where NCAT is bound by a just, timely and economic considerations.

For GIPA, the burden of proof rests with the Agency.

That the State are a model litigant.

What is the written basis for the acting Deputy Registrar to provide advice to an Agency’s Legal Staff, that is, the Agency relied on such as legal interpretation by the Tribunal for its case management.

How was the Agency’s inquiry framed? Was it a written request? Is the advice from the Deputy Registrar something to supercede & sets aside 35.2? If such advice was sought & provided by the Tribunal, why wasn’t due process followed and a copy provided to the Applicant?

The Agency quoted the Deputy Registrar, in turn that impacted on the Sitting Member’s deference to that (recorded hearing today, 30 May 2022…)

The Respondent had ample time to ensure compliance to a written request. There was no requirement to mandate a subpoena or other judicial order as the legal system has in play a request be made in writing alone.

I await your prompt response…

3. 31 May 2022

Dear Registrar,

Further to my concern that the Member erred in adopting oral representation citing the Deputy Registrar advice to the Respondent, see attached s 173 Evidence Act 1995; in addition to UCPR.

Subpoena/s are not required or mandated to seek a deponent of an affidavit.

The Applicant is not a legal professional.

The Respondent was. It’s not know if the Deputy Registrar is. The Member has better access to legal material yet appeared to deferred to suggested authority said if the Deputy Registrar.

I’m unfamiliar with the Registrar or Deputy Registrar fiving legal direction in contradiction to that attached.

The Applicant, myself, is concerned with procedure as the repeated deference to the absence of subpoena/s was relied upon in contradiction to the attached.

By rights, my legislation, 3 affidavits without the requested deponents should be set aside, as the Respondent misled the judicial process by reliance on hearsay nor law to abjurcate compliance requested in in writing 9 May 2022 and reput 20 May 2022 be that then as an annexure of that request.

The Member was misled.

I’s noted the Member estimated 3 weeks to consider the matter. I wish the Registrar or Deputy Registrar bring my concerns to the Member’s attention as well as to the Deputy Registrar…

27. On 1 June 2022, Deputy Registrar Skinner wrote to the applicant in the following terms:

Dear Mr Fisher,

I refer to your emails of 31 (sic) May 2022 regarding information given to the respondent in this case.

I attach for your reference a copy of the enquiry received from the respondent, and my response.

The Registry provide advice on tribunal procedures but do not provide legal advice to the parties. The response to this enquiry was of a generic nature on how to get information on summons processes. The information is available at start="28">

Deputy Registrar Skinner attached the following documents to her letter:

1. Email from Mr Turland dated 9 May 2022, which stated:

I called the registry and spoke briefly earlier this morning and was advised to put my enquiry into writing. I am a staff member of the respondent local government agency for matter 2021/00167059-001…

The orders made by Senior Member Riordan on 8 April 2022 and Senior Member Montgomery on 3 May 2022 have been complied with. On 29 April and 5 May the Council sent a copy of the relevant decision to both the Tribunal and the applicant, as well as several supporting affidavits.

Among the affidavits was a statement from one of the agency’s Portfolio General Managers and Acting CEO, whose time and availability are constantly in high demand and short supply.

The agency has now been contacted independently by the applicant on two separate occasions, asserting that all those who have supplied affidavits must make themselves available on the day of the hearing for further questioning. The requirement is not set out in the Orders, nor was it raised in the previous hearing session on 18 January 2022.

I am now seeking some guidance from the Tribunal as to what the relevant procedural requirements are in this situation.

2. Her email to Mr Turland dated 9 May 2022, as follows:

I refer to your email below about making a witness available at a tribunal hearing. The applicant may apply for a summons to give evidence.

I attach for your information the tribunal’s guideline on summons to produce and give evidence, which includes information on making applications to set aside a summons (link provided).

3. Printout of the NCAT Guidelines;

4. Printout of the NCAT Procedural Direction 2 (effective 29 April 2021), which provides, relevantly:

Introduction

1. A party can ask a person to come and give evidence in the Tribunal or to hand over documents or other things for use in the Tribunal. If the person will not agree to do this or it is otherwise necessary or useful:

(a) to have the person attend and give oral evidence; or

(b) to have the person hand over the documents or other things to the Tribunal,

the Tribunal or a registrar can issue a document, called a summons, which requires the person named in the summons to attend at the Tribunal and give evidence…

29. I have decided to consider the applicant’s emails dated 30 May 2022 (x 2) and 31 May 2022 as being a request for reconsideration of my decision to admit Ex 1, Ex 2 and Ex 5 into evidence in this matter.

30. Section 61 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT ACT) and s 66 of the ADR Act provide, in effect, that a decision takes effect on the date on which it is given, or such later date as may be specified in the decision. As my decision in relation to the substantive application was reserved on 30 May 2022 and the decision has not yet been given, I am satisfied that it is appropriate to determine this request and that that in doing so, the Tribunal is not functus officio.

31. The applicant relies upon s 173 of the Evidence Act 1995 (NSW) and the Uniform Civil Procedure Rules – Reg 35.2 (UCPR) in support of his argument that these affidavits should not have been admitted into evidence because the respondent did not make the deponents available for cross-examination. He also complained that the Deputy Registrar provided the respondent with legal advice.

32. However, proceedings in this Tribunal are not governed by the UCPR and the rules of evidence do not apply to proceedings in the Administrative and Equal Opportunity Division.

33. Section 36 of the NCAT Act applies to these proceedings and provides, relevantly:

35. Guiding principle to be applied to practice and procedure

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

34. On 9 May 2022, the respondent advised the applicant by email that the deponents of Ex 1, Ex 2 and Ex 5 were not available to attend the hearing and that if he wished to compel their attendance he would need to issue a summons. The respondent provided this advice to the applicant after seeking clarification from Deputy Registrar Skinner. I am satisfied that the Deputy Registrar’s advice to the respondent is soundly based on both the NCAT Guidelines and Procedural Direction 2.

35. However, the applicant did not issue a summons or otherwise seek to clarify the respondent’s advice with the Tribunal at any time before the hearing on 30 May 2022. Based on his emails to the Tribunal, I am satisfied that he chose not to issue a Summons based on his erroneous belief, that it was the respondent’s obligation to compel the deponents to attend the hearing.

34. For these reasons, I dismiss the request for reconsideration of my decision to admit Ex 1, Ex 2 and Ex 5 into evidence in this matter.

Applicant’s further evidence

37. In Ex C, the applicant addressed the reconsideration decision. He appeared to dispute Mr Turland’s qualifications and expertise to make this decision and he asserted that Mr Turland commenced employment with the respondent in June 2021 and that he had no experience “in GIPA legislation”. He also asserted that Mr Turland indicated that he was unaware that this decision was reviewable and “demonstrated, during direction hearings, unfamiliarity with GIPA.”

38. The applicant complained that the respondent failed to indicate what searches it conducted, “if at all” for this decision or the time spent upon such searches “or a reiteration “. It also failed to indicate who “of anyone” conducted searches for this decision or their qualifications and experience in satisfying formal requests for information. It “failed to list preceding and post-ceding documents, including correspondence with various staff, had either side of the letter sent by it, signed by Bill Warne.” It is bound by s 666 of the Local Government Act 1993 (NSW) “guarding against wilful destruction of documents”.

39. The applicant stated that the respondent failed its statutory obligation “per Roads Act 1993 to publicly fully denote public roads, relevance being that for Taradale Road from 2004-now.”

Respondent’s evidence

40. In Ex 1, Marilyn McGrath swore that she has been employed by the respondent since 1986 and is the Team Leader of the Records Management Team. She stated, relevantly:

4. To the best of my knowledge, we have already provided the applicant with all relevant documents held by the Council pertaining to Taradale Road as well as the other material requested under this Formal Access Application, either under subpoena, through informal access or else by way of previous application under the GIPA Act.

5. The records staff under my supervision, as well directly myself, looked though Council’s physical and electronic archives for all documents falling under the request in the Applicant’s formal application. This included multiple combinations of keyword searches by geographic location. Anything that was found was provided to Council Legal & Governance staff for processing.

6. To the best of my knowledge all other documents requested and not provided are not held by the agency.

41. In Ex 2, Caitlin Flint affirmed that she has been employed by the respondent since August 2021 as the Governance Specialist and Team Leader of the Legal & Governance Branch. She was previously employed by Goulburn Mulwaree Council and the Governance and Risk Coordinator.

42. Ms Flint stated that she has knowledge of the applicant through both her previous and current employment and that during her previous employment, the applicant submitted several formal access applications relating to Taradale Road between 2019 and 2021 and she stated, relevantly:

7. This is relevant to the current Formal Access Application before the Tribunal as it demonstrates a pattern of abusing public access to information rights. The applicant refuses to accept the outcome of Agency decisions when the results are not in his favour. This same behaviour is now being directed towards the Application currently under consideration by the Tribunal.

8. In October 2021, the Applicant was considered to be an Unreasonable Complainant by the QPRC CEO, Peter Tegart, given the frequency of emails sent directly to senior Executive staff in relation to past Formal Access Applications and Taradale Road. Responding to the Applicant’s constant requests was determined to be an inappropriate use of Agency time and resources.

9. I have attempted to maintain open and transparent communication with the applicant. This has resulted in diverting resources away from other matters of public interest. Council can receive up to 5 emails demanding explanation from the applicant per day.

10. My role as Team Leader of Legal & Governance means that I have oversight of work carried out by the QPRC Legal Officer, Aidan Turland, including the processing of Formal Access Applications.

11. I have training and experience in handling applications under the Government Information Public Access Act.

12. I am satisfied that the Formal Access currently before the Tribunal was processed appropriately under the legislation and that thorough searches have been carried out for all requested documents.

13. I am satisfied that since my employment with the Agency in August 2021, all available and existing documents held by QPRC have been disclosed to the Applicant either as part of a Formal Access Application process or else informally released by staff.

43. In Ex 5, Phil Hansen swore that he has been employed by the respondent since 2008 and that he is currently its Acting CEP. His standard position is that of Portfolio Manager of the Community Connections branch of the respondent and one of that branch’s many functions includes management and administration of Council roads across the Local Government Area. He stated, relevantly:

6. To the best of my knowledge, we have already provided the applicant with all relevant documents held by the Council pertaining to Taradale road as well as the other material requested under this Formal Access application, either under subpoena, through informal access, or else by way of previous applications under the GIPA Act.

7. To the best of my knowledge all other documents requested and not provided are not held by the agency.

44. In Ex 6, Aidan Turland swore that he has been employed as a Legal Officer by the respondent since 14 June 2021. The functions of his role include processing and responding to information access requests. He stated, relevantly:

5. I was told that applicant had filed multiple requests for similar subject matter across a number of years. This is also demonstrated through Council records of past access requests.

6. On 8 September 2020 QPRC responded to a subpoena from the Goulburn Local Court (proceedings numbers (x 2) provided). The contents included detailed maps of the Taradale road area and relevant boundaries. A copy of this subpoena has previously been… My understanding is that the heart of this dispute is a dispute between two neighbours along Taradale Road, and whether the gates the applicant has erected along the public road are legitimate and have a right to be there. Both neighbours have attempted to involve QPRC in this dispute (annexures A & B).

Current GIPA Application dated 11.3.21

7. A copy of the letter to John Barilaro has been provided to the applicant. A copy of the letter to Wendy Tuckerman’s office has not been located despite multiple attempts.

8. this included a search of both physical and electronic records as well as accessing the email archives for former QPRC staff members.

9. On 29 July 2021, Andrew Knight, the then Portfolio General Manager approved access to Bill Warne’s email archive to search for relevant material.

10. An email exchange was found with the previous Legal & Risk Manager Bill Warne and the Council General Manager, instructing Mr Warne to use the response to John Barilaro’s office as a basis for the response to Ms Tuckerman. A copy of the email has been provided to the applicant, with the intention that this would give a general idea of the contents of the letter. A copy of this has previously been submitted to the Tribunal.

11.A further copy of Bill Warne’s letter dated 5 February 2020 has been provided to the applicant. The letter refers to conversations that Bill Warne has had with the Collector Police. Multiple searches have been carried out for written records of exchanges between Mr Warne and the Police in relation to Taradale road. The few that there are have already been provided to the applicant. There are no other records.

12. Anecdotally, and by speaking to other QPRC staff members (who) were Bill Warne’s former colleagues, he often preferred to make phone calls over writing out correspondence.

13. The only external sources referred to in Mr Warne’s letter to the applicant dated 5 February is publicly available NSW legislation.

14. For this purpose, there are no other “documents relied upon and cited” in the letter that have not been produced.

15. Searches of physical and electronic archives have been carried out for all other documents requested in relation to public use and gates erected along Taradale road, including details of the “Forth Public Gate” and correspondence sent to owners. This has also been confirmed by the QPRC Records Office.

16. I have personally carried out searches through the current Council electronic record management software (ECM) as well as the program for electronic archives of past Council records (iferrit) across multiple occasions and multiple dates using a wide variety of relevant keywords and search terms.

17. The QPRC records office has also carried out their own independent search.

18. I have been reliably informed b the relevant QPRC Portfolio General Manager Mr Phil Hansen that “QPRC only became the roads authority for this road following the 2016 merger process. Any approval documentation for the gate that was held by the previous Mulwaree Shire Council was not transferred upon merger.”

19. information on the maximum width of towed agricultural machinery is the subject of legislation and is not contained in records held by the QPRC. I have been reliably informed in the same correspondence with Phil Hansen (who is presumably speaking from general knowledge of the laws, rather than based on any record held by QPRC) that: “The maximum width of a vehicle permitted to travel on any public road is 2.5 metres however wider vehicles are permitted to travel on road with approval.”

20. Copies of all communication held in QPRC between Bill Warne, SC J Fitzgerald have already been provided to the applicant. There are no further records of information and action resulting from John Fisher’s complaints of damages to gates by vehicles.

21. It is generally not Council’s role to become involved in civil dispute or damage to property, regardless of an y past comments or actions carried out by Bill Warne (annexures C & D).

22. There have been multiple searches over the past few months of both Council physical and electronic records to identify any and all records falling within the scope of the Applicant’s request under the GIPA Act. Everything that has been found has been provided. Everything that hasn’t been provided is simply not held by the Agency.

45. The following documents were annexed to Ex 6:

46. Annexure A, which comprises:

1. An email from Mr Turland to the applicant dated 20 April 2022, enclosing a letter from Derek Tooth (Acting Portfolio Manager) dated 20 April 2022; and

2. The applicant’s response dated 26 April 2022.

47. Annexure D, which comprises Mr Tooth’s letter dated 20 April 2022. This provides, relevantly:

We are writing today on behalf of the Queanbeyan-Palerang Regional Council as you have been identified as a relevant stakeholder of the gates erected along Taradale road.

QPRC has recently received enquiries from other neighbouring residents, including information access applications for Council’s Gate Register, as well as requests for the Council to take enforcement action in dismantling these gates.

Considering your own vested interest, in addition to ongoing contact with QPRC staff in relation to this matter, we have determined it is appropriate that you are also privy to an extract from this letter. This will ensure that all relevant parties have equal access to key information.

The letter states:

Council is aware these gates have been installed over Taradale Road for some years and hold historical legacy issues between the neighbours.

It is the intention of Council to undertake an audit of private gates installed on roads across our vast Local Government area in the future.

Until such time, Council intends to rely on legislative provisions that recognise that Government agencies must work within the boundaries of limited resources when carrying out their functions.

We hope this information provided can satisfy some of your own enquiries as to the Council’s information records and enforcement policy.

48. In his email to Mr Turland dated 26 April 2022, the applicant stated:

Given the letter forwarded to me, what basis would there be for dismantling public gates, and which gates were they?

See attached, this gateway was cited by the Inspector of Goulburn Police 1924, never an issue with the Road Authority. The bend in the gate was caused by one party, and maliciousness of the party carried through to binding up the date chain to hinder use (documented) – something I discovered when conveying an injured child to Goulburn Hospital (documented), so for two other occasions I took injured children the other way, straight to the highway and to hospital.

Given SC Fitzgerald was preoccupied in measuring this gate and several night time visits (2019/2020), it raises the question why he never measured machines, why he never questioned movement of wide machinery at night contrary constraints per registration, why any concerned parties never utilised generous width access off the Federal Highway.

It raises the question why Council then failed treat a complaint (unknown to me or others) per policy or in delegating staff. Why was that?

I await your response…

PS: Wide machinery has and does use all gates along Taradale Road, both from the Currawang Road and from the Federal Highway.

There is concern with wide towed agricultural machinery moved pre-dawn & post-dusk, apart from being unnecessary and contrary law, artificial lighting generates shadows and otherwise avoidable errors.

49. Annexure B comprises a letter dated 13 April 2022 from Derek Tooth to a Barrister instructed by Mr Mooney regarding “Gates on Taradale Road”. This letter has been largely extracted in Mr Tooth’s letter to the applicant dated 20 April 2022, although it also referred to an email from the Barrister to the respondent dated 25 March 2022 and informed him that both neighbours had recently contacted it with correspondence and concerns about the gates.

50. Annexure B was lodged with the Tribunal on a confidential basis and Mr Turland raised a public interest consideration against disclosure of the name and contact details of the said Barrister under cl 3(a) of the Table to s 14 of the GIPA Act.

51. Annexure C comprises an email from Mr Mooney’s Barrister to Mr Turland dated 25 April 2022. This was lodged with the Tribunal on a confidential basis and Mr Turland stated that it is subject to a claim for legal privilege under cl 5 of sch 1 of the GIPA Act and a public interest consideration against disclosure under cl 3(a) of the Table in s 14 of the GIPA Act.

52. I note that the email raised a complaint regarding the gates on Taradale Road and formally requested the respondent take action to remove them.

Mr Turland’s oral evidence

53. As the applicant wished to cross-examine Mr Turland, the Tribunal called him and he took an oath and stated that the contents of his Affidavit are true and correct.

54. In cross-examination, the applicant asked Mr Turland how long he had worked for the respondent? He replied, “One year.”

55. The applicant then asked Mr Turland how long he had “done GIPA matters?” and he replied that he completed training in the GIPA Act “just after I started work” with the respondent.

56. The applicant asked Mr Turland how GIPA applications are delegated within the respondent? He replied to the effect that this depends on whether the request is assessed as being formal or informal in nature. If it is formal, the respondent awaits payment of fees and the matter is then referred to the Legal & Governance Office to assess the application and conduct the required searches.

57. The applicant asked Mr Turland if the respondent will contact an applicant to see “if anything further is needed?” He replied to the effect that this is only done where there is an ambiguity in the application and he agreed that he not contacted the applicant.

58. The applicant asked Mr Turland what searches were conducted in relation to the new decision? He replied that he conducted fresh searches and also “reviewed the old searches.”

59. The applicant asked Mr Turland if there was any specific reason why he did not produce any orders from Dwight Cosgrove? He replied, “No”.

60. The applicant then asked whether Mr Turland had searched Mr Cook’s records? Mr Turland replied, “No” and said that he did not contact any of the respondent’s Rangers.

61. The applicant asked Mr Turland who did the searches for information? He replied to the effect that these were done by the Records Office.

62. The applicant noted that Ms McGrath stated that she acted in a supervisory role and asked what this meant? Mr Turland replied to the effect that Ms McGrath is aware of the searches that were carried out and how the respondent’s officers conducted themselves.

63. Mr Turland also stated that the last time that he had access to Mr Warne’s emails, he copied everything relating to the applicant and produced them to the applicant on an informal basis.

64. The applicant referred Mr Turland to para 6 of his affidavit, in which he stated:

On 8 September 2020 QPRC responded to a subpoena from the Goulburn Local Court (Proceedings 2020/00166806 and 2019/00400882). The contents included detailed maps of the Taradale road dare and relevant boundaries. A copy of this subpoena has previously been (sic).

My understanding is that the heart of the issue is a dispute between two neighbours along Taradale Road, and whether the gates the applicant has erected along the public road are legitimate and have got a right to be there. Both neighbours have attempted to involve QPRC in the dispute (annexures A & B).

He put to Mr Turland that he did not erect the gates on Taradale Road and that gate no. 1 has been there for 100 years, while his family has lived there since 1980, and this was a mistake on his part. Mr Turland replied to the effect that he was not aware of that fact.

65. Mr Turland stated that it has become known to the respondent that one of the applicant’s neighbours has made two complaints, seeking to have the gates removed and that the applicant’s position is that the gates are there legitimately and should remain on Taradale Road.

66. The applicant then referred Mr Turland to para 21 of his Affidavit, in which he stated:

It is generally not Council’s role to become involved in civil dispute or damage to property, regardless of any past comments or actions carried out by Bill Carne (annexures C & D).

He asked Mr Turland what he meant by this? Mr Turland replied to the effect that this relates to item 8 of the Schedule of Documents and that Rangers do not have an investigatory function. He also said that it is not the respondent’s role to arbitrate where neighbours cause damage to each other’s property.

67. The applicant put to Mr Turland that technically, under the Roads Act, the respondent is responsible and that there is an obligation to maintain records. Mr Turland replied that the respondent was currently looking into improving its record-keeping.

68. Finally, the applicant asked Mr Turland how many hours the respondent spent conducting searches before it made the new decision? Mr Turland replied that he could not respond in relation to the work undertaken by Records Office staff, but he had spent between two and three hours conducting fresh searches before that decision was made.

Submissions

Applicant’s submissions

69. I note that much of the information contained in Ex C is in the nature of submissions and I have also considered the submissions that were discussed in the Tribunal’s previous decision.

70. In relation to the respondent’s evidence, the applicant submitted as follows:

32. Caitlin Flint statement, her affidavit for the Respondent, point 6, demonstrates limited understanding and involvement of that the applicant put Goulburn Mulwaree Council.

33. Marilyn McGrath has not indicated what documents were passed to Legal & Governance, of when and by whom.

34. Point 27 denotes a indirect system of compliance, with Legal & Governance role akin to information reviewer/gate-keeper. But no clear articulation of delegation, reporting relationship and accountability has be made by the Respondent.

35. There was no third party consultation, no redaction of private information by the Respondent at any stage.

36. The Respondent actively had engaged NSWPF and ULSC over a span of time. NSWPF initially in respect of “gate damage” which was sidestepped and extrapolated to focus directed at me, gate modification and compliance.

37. Given no formal private complaints were yielded, therefore the Respondent was solely depended on SC J Fitzgerald as its “eyes, ears and advisor.”

38. A record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or any other manner or by any other means (clause 10(1) Schedule 4 GIPA 2009).

39. The Respondent failed to supply documents of preceding engagements with SC Fitzgerald and ULSC, or even when and how SC Fitzgerald initiated email contact. Noting it was the Respondent that outsourced its investigation.

40. Bill Warne’s letter stipulated various requested compliance issues to be discharged and closed with, words to the effect, to accommodate usage. This is inline with QPRC Compliance and Enforcement Policy, consistent with p. 11 with an identified and actionable MEDIUM level of risk, and invokes point 4.6.5.1 review and monitored to ensure compliance (annexure “G”).

41. The Tribunal removed the burden of absolute proof from the Applicant, in setting aside a subpoena on NSWPF.

42. The Respondent, Aidan Turland, 8 Apr 2022, indicated orally the (part) release of the correspondence chain between QPRC and SC Fitzgerald and ULSC may have been inadvertent.

43. Marilyn McGrath has not indicated what system, and rigour, affixing “key word” and catalogue is at play in QPRC.

44. There is no evidence the Respondent identifying any privacy concern, or had third party consultation, yet some material yielded indicated significant informal inter-Agency engagement, and the Respondent, by way of Caitlin Flint.

45. The Respondent’s proactive decision to suppress a name of a public road from its GIPA disclosure Log (annexure A & B) obscured “key-word” search by the broader public and is undermines the purpose of a Disclosure Log.

46. There is concern the Respondent’s approach to GIPA over corrected itself. It’s also noted the State, irrespective of being a model litigate and public Agency, has extended itself to frustrate and obfuscate disclosure that might cause embarrassment or a loss of confidence. (Annexure H).

47. The Respondent’s reliance on Fisher v Commissioner of Police [2019] NSWCATAD 205 failed to extrapolate that the Respondent misled the Tribunal as he had publicised his own work history online (point 62), that the Commissioner sidestepped a formal complaint documented perversion of justice, failure to disclose conflict of interest, abuse of office, and had the Commissioner subsequently set that public servant aside, a Cost Order of $61,000 against the State and two Magistrates set aside given the Respondent vigorously suppressed evidence contrary to the interest of justice, oath and public service.

48. The Respondent (Sammy Nighe) has demonstrated expenditure of resources to research the Applicant, and Member Higgins.

49. Member Higgins’ allocation to the matter of Upper Lachlan Shire Council was only known to the application, ULSC and the Tribunal.

50. No indication of what “keywords” and/or “dates” were relied upon by the Respondent in searching ECM (electronic record management) or IFERRIT.

51. The Respondent failed to demonstrate a contravention of Local Government Act 1906 (Annexure I).

52. The Respondent has “assumed”, in paragraph 6 & 18 of Aidan Turland’s affidavit, and thereby unwittingly misleads the Tribunal:

a. The applicant erected gates,

i. I did not.

b. that the applicant is a neighbour in regards to gate/s along Taradale Road.

i. I am not for which Council’s records substantiate.

c. QPRC assumed Local Road Authority from 2016

i. Taradale Road was vested with the current Council in 2004 be that before the amalgamation and subsequent name change.

d. the heart of the issue is a dispute between two neighbours

i. the Applicant made an informal information request 18 Jan 2022 that centred on Ministerial Communication.

ii. Having 13 immediate neighbours and 7 further neighbours through work, being without Council’s due diligence per natural justice sets me at an disadvantage to respond.

iii. Gate damage, was of public misuse of roadside furniture (Council terminology) running contrary a lawfully inclosed road which the Respondent put to NSWPF.

iv. The heart of the issue is record keeping, governance and public service.

53. The Respondent generated records, and assumptions, and responses without discharge of its own Complaint Policy.

54. The patter flowed from QPRC delegated out investigation that occurred over several months, from which Council sent me a letter and failed to address records.

55. It is not know what, or when, if any searches were discharged by Phil Hansen.

56. No records from Nathan Cooke were tabled, but he was contacted.

57. The Respondent is aware of the scope of responsibility with roads that extend to trees, parked cars, advertising, and beyond the road itself with issues as drainage widening, services, and so forth, and has systems in pace to formal procedures handle these matters and complaints.

58. The Respondent has not, in documents tendered to me or to NCAT demonstrated the said release of Ministerial letters to me, or to the Tribunal.

59. No copy of correspondence send to either Minister has been provided, as it’s noted Aidan Turland stated verbally to NCAT that he had sought a “back copy,” as well as his (Council’s) preference to process informal applications.

60. The applicant relies upon the email dated 9 May 2022, which has [email protected] as noted as a recipient.

61. The applicant relies upon the Evidence Act 1995.

62. The Respondent failed to indicate any alleged member of the public’s agitation/s, if any, or to what extent and dates received, or if it falls under the Applicant’s Information Request, and if it has been subjected to a review in favour of release per GIPA or otherwise.

63. No copy of correspondence cited paragraph 15, Aidan Turland’s affidavit, has been included in annexures, which puts a contradiction on record that Council is aware of “owners” to have sent correspondence . Noting failure to correct “forth” to :fourth” as was effected in the first directions hearing.

64. For best practices, consistent with the decision in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173.

65. The Respondent is found wanting for all three formal decisions, and more so given the junior and inexperience status of the Respondent’s status in discharging new decision and subsequent extension required for affidavits of a limited nature.

66. The Respondent is found disingenuous in promoting informal information requests.

71. The applicant also made oral submissions at the hearing. He stated that he continued to press item 2 of the Schedule of Documents and that he is aggrieved that Mr Warne “misidentified me” and this is what triggered his GIPA request.

72. The Tribunal asked the applicant why he submits that the searches conducted by the respondent were not “reasonable”. He replied to the effect that the respondent, unlike the Police, “did not itemise who did what” and that he considered that other Councils had conducted more robust searches than the respondent had done in this matter.

73. The applicant stated that he does not press his claim for item 3 and, in view of the respondent’s evidence, he does not press his claim for item 5.

Respondent’s submissions

74. The respondent did not file any further written submissions and I confirm that its submissions dated 21 August 2021 were discussed in the previous decision.

75. However, Mr Turland made brief oral submissions in reply to matters raised by the applicant. He stated that the initial GIPA application did not mention the respondent’s rangers and that the Rangers did not register any matters relating to the applicant in the respondent’s Records Register.

Consideration

Legal principles

76. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".

77. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states:

63. Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

78. The time at which the Tribunal is to determine the correct and preferable decision is the time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

79. In respect of access applications, s 9 (1) of the GIPA Act relevantly provides:

A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

80. The Notice of Decision dated 11 March 2022 is a "reviewable decision" in respect of an access application within the meaning of s 80 of the GIPA Act and is reviewable by the Tribunal under s 100 of the GIPA Act.

81. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance.

82. Section 5 of the GIPA Act provides:

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

83. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".

84. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.

85. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

1. identify the public interest in favour of disclosure (s 12);

2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

86. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

87. Section 14 relevantly provides:

14. Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

88. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

89. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows:

53. Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

90. Section 55 of the GIPA Act refers to “personal factors” that may be brought into consideration with respect to an agency’s determination of whether there is an overriding public interest against disclosure of information. This provides:

55. Consideration of personal factors of application

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section—

(a) the applicant’s identity and relationship with any other person,

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

91. Section 73 of the GIPA Act requires that access be unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world”.

92. Section 105 of the GIPA Act places the onus on the agency to establish that its decision was justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]; Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7].

Grounds relied upon by the respondent

93. The decision dated 11 March 2022 contains a Schedule of Documents that identified the documents (by reference to item numbers) that were not provided to the applicant and the grounds relied upon to refuse access. It stated that it decided to: (a) Confirm that portions of the information requested are not held by the agency under s 58(b) of the GIPA Act; and (b) Confirm that the portions of the information that are held by the agency have already been provided to under section 59(d) of the GIPA Act.

94. The respondent stated that in making this decision, it applied the public interest test in the manner required by s 15 of the GIPA Act. It cited the following public interest considerations in favour of disclosure:

1. There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act);

2. 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 (s 12(2)(a) of the GIPA Act);

3. 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 (s 12(2)(b) of the GIPA Act).

95. The respondent also stated that it considered personal factors of the applicant, namely that Taradale Road is a point of access for his own property and the fact that interactions between himself and the respondent were the subject of several of the requested documents.

96. The respondent stated that there were no applicable public interest considerations against disclosure for this application and, further:

I considered a number if factors under sections 12 and 14 and having weighed up the considerations, starting from a presumption in favour of disclosure, I have decided that if any additional information, beyond what has already been provided, had been found, it would be in the public interest to disclose the information.

Balancing the public interest considerations

97. In applying s 13 of the GIPA Act, I have adopted the approach discussed in decisions including Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, which is discussed previously in this decision.

Item 1

98. The respondent states that it did not locate any copies of communications between itself and Minister Barilaro and Wendy Tuckerman in relation to Taradale Road in its electronic record management system.

99. However, on 30 May 2022, Mr Turland undertook to provide the applicant with a copy of the respondent’s letter to Minister Barilaro dated 3 March 2020, and his own email to the Member for Monaro dated 12 January 2022.

100. The applicant then advised the Tribunal that he did not press item 1 with respect to communications with Ms Tuckerman.

101. I note that on 30 May 2022, Mr Turland filed copies of the following documents with the Tribunal: (1) His email to the applicant dated 30 May 2022; (2) A letter from the respondent (c.f. Peter Tegart, CEO) to Minister Barilaro dated 3 March 2020; and (3) His email to the Member for Monaro dated 12 January 2022.

102. I am satisfied that these documents represent all of the information held by the respondent in relation to item 1 and that the information has been released to the applicant in full.

Item 2

103. The respondent asserted that Bill Warne’s statements in his letter to the applicant dated 5 February 2020 were “based on the material produced for the Subpoena to the Goulburn Court in September 2020, as well as publicly accessible legislation.”

104. The applicant disputes that all relevant information has been produced and states that he does not understand why the respondent could not access Mr Warne’s emails.

105. However, the evidence of Mr Turland and the respondent’s other witnesses is supports a finding that the respondent conducted searches of both physical and electronic records, which failed to produce any further information in response to this item, and that whatever information was found has already been provided to the applicant.

106. Based on the evidence before me, I am satisfied that the respondent has complied with its obligation to conduct reasonable searches, as required by s 53 of the GIPA Act, and that it holds no further information in relation to this item.

Item 3

107. During his oral submissions on 30 May 2022, the applicant stated that he did not press his claim with respect to this item.

Item 4

108. The applicant withdrew his claim for documents under item 4.

Item 5

109. During his oral submissions on 30 May 2022, the applicant stated that he did not press his claim with respect to this item.

Item 6

110. During the initial hearing, the respondent stated that it does not hold any information relating to this item, the subject matter of which is closely related to item 5. However, the applicant disputes this.

111. In the Schedule of Documents to the decision 11 March 2022, the respondent did not indicate whether documents relating to this item were “released or withheld”, although in the column headed “Location of record in agency” it stated “NA”. However, in the column headed “Relevant considerations and comments” it cited “Clauses 1(c), 1(d), 1(e) and 4(c) of the section 14 Table in the GIPA Act.”

112. I note that following the decision dated 11 March 2022, the respondent received additional information from a third party and it also generated correspondence to that third party and the applicant that falls within this item. These documents are discussed below.

113. On 25 March 2022, Mr Turland received an email from a Barrister instructed by a Mr Mooney in relation to “gates and yards erected across Taradale Road.” The email is marked as being subject to a claim for legal privilege.

114. The respondent filed a copy of this email with the Tribunal on a confidential basis and asserts that this document should not be released to the applicant because it includes personal information of a third party and it subject to legal privilege.

115. I note that cl 3(a) to the Table in s 14 of the GIPA Act provides:

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

(a) reveal an individual’s personal information,

116. I am satisfied that cl 3(a) applies with respect to the name of the Barrister who authored the email to Mr Turland dated 25 March 2022.

117. Further, I note that cl 5 of Schedule 1 of the GIPA Act provides, relevantly:

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.

118. I am satisfied that there is an overriding public interest against disclosure of this document under cl 5 of sch 1 of the GIPA Act.

119. On 13 April 2022, Mr Tooth, the respondent’s Acting Portfolio General Manager – Community Connections, sent a letter to Mr Mooney’s Barrister in response to his email dated 25 March 2022.

120. The respondent lodged a copy of this letter with the Tribunal on a “confidential basis” and asserted that it should not be released to the applicant because it includes personal information of a third party.

121. I am satisfied that cl 3(a) to the Table in s 14 of the GIPA Act applies with respect to the name and address of the Barrister to whom the letter is addressed. However, this may be resolved by redacting the name and address of the said Barrister wherever it appears in Mr Tooth’s letter dated 13 April 2022, and releasing a redacted copy of that letter to the applicant.

122. I further note that Mr Tooth wrote to the applicant on 20 April 2022, in which he extracted much of the content of his letter to Mr Mooney’s Barrister dated 13 April 2022. I am satisfied that this letter has already been provided to the applicant.

Item 7

123. The applicant withdrew his claim with respect to item 7.

Item 8

124. The respondent states that it does not hold any further information in relation to this item and that it has previously released information including emails to SC Fitzgerald to the applicant. This item also significantly overlaps with item 2.

125. The applicant complained that he has not been given any explanation as to why no documents have been produced in relation to this item.

126. However, based upon a consideration of the evidence before me, I am satisfied that the respondent has conducted reasonable searches as required by s 53 of the Act and that it does not hold any further information in relation to this item.

Conclusions

127. For the reasons set out above, pursuant to s 63(3)(b) of the ADR Act, I vary the decision of the respondent dated 11 March 2022 in relation to item 6 of the Schedule of Documents, as follows:

1. Access to the email from the Barrister acting for Mr Mooney to Mr Turland dated 25 March 2022 is refused pursuant to cl 5 of Schedule 1 of the GIPA Act.

2. The respondent is to provide the applicant with a redacted copy of the letter from Mr Tooth to Mr Mooney’s Barrister dated 13 April 2022 pursuant to cl 3(a) to the Table in s 14 of the GIPA Act.

3. The respondent’s decision dated 11 March 2022 is otherwise affirmed.

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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: 21 July 2022