FVA v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 235

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FVA v Commissioner of Police, NSW Police Force [2023] NSWCATAD 235

Hearing dates:

On the papers

Date of orders:

29 August 2023

Decision date:

29 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member

Decision:

1. An oral hearing of the application is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2.   The amended application for set-aside and stay of the Tribunal decision is dismissed.

3.   The application for non-publication of the Tribunal decision made on 14 July 2023 and the written reason is refused

Catchwords:

ADMINISTRATIVE LAW – access to government information

PRACTICE AND PROCEDURE – non-publication orders – Principles governing the power to make orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW)

SET ASIDE – Application to set aside final order – whether there was an absence of the applicant and whether that resulted in case not being adequately put – exercise of discretion

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Regulation 2022 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 104

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

FVA (applicant)
Commissioner of Police, NSW Police Force (respondent)

Representation:

Solicitors:

FVA (Self-Represented)
McCullogh Robertson (Respondent)

File Number(s):

2023/00077447

Publication restriction:

Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and or publication of the name of the applicant who has been allocated the pseudonym “FVA”, is prohibited.

Reasons for Decision

1. On 8 March 2023 the applicant lodged an application with the Tribunal seeking administrative review of a decision of the respondent made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. On 1 May 2023, the proceeding came before the Tribunal for case conference. Orders were made for the parties to provide materials and the final hearing was listed for 14 July 2023. An order was also made prohibiting the publication or broadcast of the applicant name. The applicant has been allocated a pseudonym.

3. Prior to the final hearing the applicant made various applications for extensions of time to provide documents, adjournment of the hearing and review of a decision of the Registrar to refuse issuing summonses which the applicant had applied for. The applicant was notified that the proceeding remained listed on 14 July 2023 and that the applications for extension of time, adjournment and review of the decision of the Registrar would be dealt with at the hearing on 14 July 2023. The applicant did not appear at the final hearing and the Tribunal Member telephoned the applicant to enquire if he would be attending. After an exchange between the Tribunal Member and the applicant, the applicant disconnected the call and the hearing proceeded in the applicant’s absence. At the end of the hearing, the Tribunal made the following orders:

1 The Tribunal will publish written reasons for its decision within 28 days

2 The Respondent’s decision made on 12 October 2022 is affirmed

4. On 21 July 2023, prior to the written reasons for the decision being published, the applicant lodged a set aside application. The applicant sought orders for the setting aside of the respondent’s decision made on 12 October 2022, orders in relation to cross examination of witnesses and an order prohibiting the publishing of any order or judgement of the proceedings. It can be inferred from the applicant’s submissions with the set aside, that he was also making an application to set aside the decision of the Tribunal made on 14 July 2023. On 24 July 2023, the Tribunal made directions for the parties to provide materials and submissions in relation to the set aside application. On 24 July 2023 the applicant sought to amend the set aside application and sought a stay on the decision made by the Tribunal on 14 July 2023, until the set aside application was decided. On 25 July 2023, the Tribunal made further directions in relation to the stay application and directed the parties to address in their written submissions whether a hearing was required in relation to the application. The Tribunal also noted:

Note: By email sent on 24 July 2023, the applicant has indicated that he seeks to amend the set aside application to include a request for a stay of the original decision while awaiting the outcome of the set aside application. It is unclear how the decision would become “otiose”, as the applicant has submitted, if the stay is not granted. The Tribunal is not prepared to make a stay order at this stage and has instead allowed for the exchange of materials in relation to the stay application and it will be decided in due course.

5. On 15 August 2023, prior to the determination of the set aside application, the parties were notified that the reasons for the decision made on 14 July 2023 would be published to NSW Caselaw on 16 August 2023. On 16 August 2023 the applicant made a miscellaneous application for an order prohibiting the publication or broadcast of the decision made on 14 July 2023 and prohibiting the written reasons from being to be published to NSW Caselaw. The Tribunal subsequently directed the Registry that the written reasons for the decision were to be sent to the parties and that the publication of the decision and reasons for decision to NSW Caselaw would be delayed until the parties had a further opportunity to make submissions on the set aside and non-publication applications.

6. Having considered the submission of the parties, I have decided to dismiss the set-aside application (including the stay application) and the application for non-publication of the decision and reasons for the decision.

Dispensing with the hearing

7. Section 50 (1) (c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a hearing is required for proceedings in the Tribunal, except if the Tribunal makes an order under the section dispensing with a hearing. The Tribunal may make an order dispensing with a hearing if the Tribunal is satisfied pursuant to s 50(2) of the NCAT Act that:

… the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal

However, the Tribunal may not dispense with a hearing unless the Tribunal has afforded the parties an opportunity to make submissions about dispensing with the hearing and has taken any submissions into account (NCAT Act, s 50 (3)).

8. A hearing is not required for determination of set-aside applications (cl 9 (8), Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulations)). However, that does not prevent the Tribunal from holding a hearing even if the Act does not require it. (NCAT Act, s 50 (5))

9. In the various directions made by Tribunal in relation to the exchange of material regarding the set-aside application and for non-publication, the parties were provided with the opportunity to make submissions as to whether a hearing was required and whether a hearing could be dispensed with.

10. Neither party has sought an oral hearing. In the submissions provided by the respondent to the Tribunal on 3 August 2023, the respondent submits that the applications could adequately be dealt with on the papers.

11. Having considered the respondent’s submissions in relation to dispensing with the hearing and having read the parties submissions and material in relation to set aside and non-publication applications, I am satisfied that the issues for determination can be determined without a hearing, by considering the submissions and other documents provided to the Tribunal (NCAT Act, s 50(2)). A hearing would cause the parties to incur further unnecessary costs. Accordingly, as far as is necessary in relation to the non-publication application, I have made an order under s 50(1)(c) of the NCAT Act dispensing with a hearing.

Set – Aside Application

12. Clause 9 of the NCAT Regulations relevantly provides as follows:

9 Additional power to set aside or vary decision determining proceedings—the Act, s 90(2)(a)

(1)  In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if—

(a)  all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or

(b)  the decision was made in the absence of a party and the Tribunal is satisfied that the party’s absence has resulted in the party’s case not being adequately put to the Tribunal.

Example—

The Act, sections 45(3), 53(4), 63, 64(3) and 73(3) expressly confer powers to set aside or vary decisions of the Tribunal.

(3)  Unless the Tribunal grants an extension under the Act, section 41, an application for an order under this section must be made within 7 days after the decision concerned was made.

…

13. The application for set aside was made on 21 July 2023, and that is within 7 days after the decision was made by the Tribunal on 14 July 2023. The respondent opposes the setting aside of the decision made on 14 July 2023.

14. The application to set aside the decision of the respondent made on 12 October 2022, is misconceived. Clause 9 of the NCAT Regulations does not provide a power to set aside the decision of the agency. That power arises under s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and is the basis for the substantive administrative review application. Clause 9 only allows the Tribunal to set aside a decision of the Tribunal. In that regard I have proceeded to consider whether the Tribunal should set aside the decision of the Tribunal made on 14 July 2023.

15. In submissions provided on 30 July 2023, the applicant submits that the order made on 14 July 2023 should be set aside because the hearing proceeded in his absence and orders were made at the conclusion of the hearing and he did not have an opportunity to put forward his case.

16. At [48] – [52] of the reasons for the decision of 14 July 2023, the Tribunal records the following in relation to the applicant’s appearance at the hearing:

48 The matter came before me for hearing on 14 July 2023. Mr N Roberts appeared for the respondent, but there was no appearance by or on behalf of the applicant.

49 Mr Roberts advised the Tribunal that he had this morning sent an email to the applicant, advising him that the Tribunal had yesterday informed the parties that they were to attend the hearing today and that the matter could proceed in the absence of either party. He also stated that a witness was in attendance for cross-examination at the applicant’s request.

50 The Tribunal attempted to contact the applicant on his mobile phone. However, the phone rang out unanswered and eventually went to voicemail. I left a message for the applicant, advising that I was conducting a hearing of his application for administrative review and that he had not appeared. I stated that I would attempt to call him again in a further 5 minutes and that he should answer his phone, failing which I may have no option but to dismiss the matter under s 55 of the NCAT Act or to proceed to hear the matter in his absence.

51 I stood the matter in the list for a period of five minutes.

52 When the hearing resumed, I called the applicant again via his mobile phone and he eventually answered it. I advised the applicant that I was calling from NCAT and I referred to the order that he received yesterday, advising him that the hearing was proceeding today. I asked why he was not in attendance. The following exchange followed…

17. Following the exchange between the Tribunal and the applicant (which is dealt with in further detail below) the Tribunal provides at [53] of the reasons for the decision:

The applicant then disconnected and the hearing proceeded in his absence.

18. The respondent refers to the decision of the Appeal Panel in Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 104 as authority that the decision in these proceedings was not made in the absence of the applicant. The respondent submits that, having regard to Li, where a party attends and participates in a hearing, to at least some degree, any decision made at the end of the hearing is not made “in the absence” of that party.

19. At [6] – [7] the Appeal Panel stated in Li:

Meaning of “decision … made in the absence of a party”

The Tribunal may reserve its decision in relation to any proceeding: Civil and Administrative Tribunal Act 2013 (NSW), s 56. Reserving a decision means that instead of giving its reasons at the end of the hearing, the Appeal Panel gives the decision and the written reasons to the parties later. A decision determining an internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision: NCAT Act, s 61. The date of decision appears on the front cover sheet of the reasons for decision. That is the date that the decision is made available to the parties.

The reference to a decision being made in the absence of a party in clause 9(1)(b) of the NCAT Regulation, is a reference to a decision being made at the end of a hearing where one party has not attended. It is not a reference to the Tribunal reserving its decision and giving a decision and written reasons later. That is because reserved decisions are made in private and no party will ever be present at the time the decision is made.

20. The circumstances of this case are distinguishable from the circumstances in Li. In Li parties were present for the hearing and the Tribunal reserved its decision at the conclusion of the hearing. In these proceedings the respondent confirms that the Tribunal made the final decision at the end of the hearing and also made an order that the written reasons in relation to the decision would be provided within 28 days. The Tribunal did not reserve it’s decision.

21. The purpose of clause 9 is to provide an opportunity for a decision to be set aside if a party, who was absent from the hearing, has not been able to put their case to the Tribunal. Where the parties were present at the hearing and a decision was reserved, the parties have had an opportunity to put their case to the Tribunal and those circumstances would not fall within cl 9 of the NCAT Regulations. The applicant in these proceedings was present at the beginning of the hearing and then disconnected, the Tribunal ultimately made the decision at the hearing, in his absence. I find no basis to interpret the provision as precluding circumstances in which a party were present for some of the hearing but were not ultimately present at the time when the decision was pronounced at the hearing. However, cl 9 confers a discretion on the Tribunal and the fact that a party was present for part of the hearing may be relevant to the exercise of the discretion.

22. In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 the Appeal Panel set out the matters and legal principles that are relevant when exercising the discretion as to whether to grant a set aside application. The Appeal Panel relevantly stated at [74]-[80] (some citations omitted):

The central question in exercising the discretion is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand. If so, it should be set aside on such terms as will minimise the possibility of injustice to the party which had obtained the original decision in its favour. ..

Justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case… In the Tribunal, s 38(5)(c) of the Act provides:

(5) The Tribunal is to take such measures as are reasonably practicable:

…

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

If a party has been given such an opportunity, however, and has deliberately not taken it, there may well be no relevant injustice if the decision is allowed to stand: see, for example, CMT [2014] NSWCATGD 11 at [68(a)]. In this regard, the issue of why the party was absent from the hearing may be very significant: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [37], [39] and [40].

Injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile. . Section 38(4) of the Act is consistent with this approach, in that it requires the Tribunal to act according to the substantial merits of the case without regard to technicalities or legal forms.

In summary, when exercising the discretion conferred by cl 9(1)(b), the Tribunal should direct its attention to whether there would be a real likelihood of injustice if the decision was allowed to stand. Relevant considerations will generally include:

Why the party was absent and whether the absent party had a reasonable opportunity to be heard or otherwise have its submissions considered in the proceedings; and

Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached.

Did the applicant have a reasonable opportunity to be heard

23. The orders made by the Tribunal at the case conference on 1 May 2023 required the respondent to provide her material by 1 June 2023 and she complied with that order. The applicant was ordered to provide his material by 26 June 2023. On 26 June 2023, the applicant sought an extension of time to provide his material until 14 July 2023. He also sought an extension of time for the respondent to provide her material in reply by 28 July 2023 and for the final hearing to be adjourned and listed on a date after 4 August 2023. The reasons provided by the applicant for the extension of time and adjournment request was because of the purported unavailability of two of the respondent’s witnesses for cross examination on 14 July 2023. No reason was provided as to why an extension of time was required for him to provide his material. The respondent consented to the request for the extension of time and adjournment, however the respondent did not indicate that their witnesses would be unavailable for cross examination.

24. On 28 June 2023, in circumstances where no reasons or supporting evidence had been provided by the applicant in relation to the request for the extension of time to provide material and where there was no supporting evidence or details as to the respondent’s witnesses being unavailable for cross examination at the hearing, the Tribunal made orders allowing a short extension of time for the applicant to provide his material and for the respondent’s reply evidence to be provided and noted that the matter remained listed for final hearing on 14 July 2023.

25. On 7 July 2023 the applicant renewed his application for an extension of time to comply with directions and an adjournment. In addition, the applicant sought review of a decision of the Registrar refusing to issue a series of summonses that he had applied for. The requests for the extension of time and adjournment were made on the basis that the applicant was awaiting the outcome of the review of the decision of the Registrar, as the summonses were required so that he could lodge his material and also that he had recently commenced proceedings in the Supreme Court of NSW which were listed for hearing on 17 July 2023 and that those proceedings were taking up much of his time.

23. The views of the parties were sought in relation to the applicant’s renewed extension of time and adjournment requests. On 11 July 2023, the respondent provided her submissions opposing the applicant’s request for an extension of time to comply with directions and adjournment of the final hearing. The basis of the objection being that the Supreme Court proceedings were listed for Monday 17 July 2023 and the Tribunal proceedings were listed on Friday 14 July 2023 and they did not interfere with the hearing and that the summonses sought by the applicant were unlikely to assist in the proceedings.

24. On 13 July 2023 the Tribunal again refused the extension of time request and made the following notation:

Note: The applicant has previously been granted an extension of time. The matter remains listed for hearing and the issue in relation to the summons will be dealt with at the hearing. Any further applications in relation to an extension of time will be dealt with at the hearing.

28. The applicant continued to send further correspondence to the Registry regarding the adjournment request and on 13 July 2023, the Registry also sent the following correspondence:

The contents of the email from the applicant dated 13 July 2023 are noted. The email does not demonstrate that it has been copied to the respondent and it is unclear if they are on notice of the request being made. The application for adjournment, the review of the refusal to issue the summonses and the application for extension of time will be dealt with by the Tribunal Member at the hearing on 14 July 2023. The parties are on notice that they are expected to attend and the matter may proceed in the absence of either party.

29. At [52] of the reasons for the decision of the 14 July 2023, the Tribunal has set out the exchange that occurred between the Tribunal and the applicant when the Tribunal rang him to enquire if he was attending the hearing.

Applicant - I have responded a couple of times and also left a voicemail as well…

Tribunal: The hearing is proceeding. Do you wish to participate by way of telephone? A witness is here, available for cross-examination as per your request, and the only person who is not here is yourself, after you were told that the matter was proceeding.

Applicant: But I have requested…

Tribunal: The adjournment request was refused on the basis that the Tribunal is now the decision maker, it is a hearing de novo and if you wish to have your matter heard, this is your opportunity to do so. So, do you wish to participate by phone or do you wish me to proceed in your absence

Applicant: I would like to have it relisted Member.

Tribunal: No. It is listed for hearing today. You made an application for an adjournment and that application was refused by Principal Member Simon, and you have decided not to attend.

Applicant: Yes because I cannot because I have a Supreme Court matter on Monday and I am right now at the Court in the Registry to have the Court file reviewed and to go from there and I have requested …

Tribunal: Well I will have no option, since you have chosen not to attend after your adjournment application was refused by a Principal Member, the matter will proceed in your absence. It is an application for administrative review of a decision under the Government Information (Public Access) Act. You do not bear any onus of proof. The respondent does. So if you choose not to participate that is your choice, but the matter is proceeding today. So what do you say.

Applicant: Well Registrar…

Tribunal: I am not a Registrar, I am a Senior Member… How long will it take you to travel from Queens’ Square to Goulburn Street?

Applicant: No, it’s going to take time. The thing is I haven’t provided my submissions.

Tribunal: That is a problem then.

Applicant: Yes, that is why I was requesting that the summonses that Irequested could be reviewed by a Member because I had a right to have those reviewed…

Tribunal: The witness is sitting here, available for cross-examination, and the only person who is not here for the hearing is yourself. I ask you again, as the Tribunal has extended the timetable several times and you have not provided any reason for failing to file submissions, and you cannot unilaterally decide when you will and will not attend a hearing date.

Applicant: I have requested… I have provided many reasons…

Tribunal: Yes, and the requests have been determined and refused by Principal Member Simon and you received that communication yesterday and you are still not here. So I ask you again, how long will it take for you to travel from Queens Square in Sydney to Goulburn Street for your hearing today?

Applicant: No I’m not going to attend. You can count me as no-appearance. I reserve my rights. I would still like to have the summons reviewed.

Tribunal: No, the witness is here to be cross-examined. The Tribunal told you that it intended to deal with these issues at the hearing today and you have chosen not to attend.

Applicant: It needs to be relisted.

Tribunal: No, this is your opportunity for a hearing and you have just informed me that you will not be appearing.

Applicant: Is there anyone there from IPC?

Tribunal: You are not here to pursue that issue. You have chosen not to attend…. You were told that these issues would be dealt with at the hearing today, but you are not here to enable me to deal with them, so I will deal with the application for administrative review in your absence as you’ve just informed me that you will not be appearing.

Applicant: Well my request would be to have it relisted. I will have you proceed if you would like to, but I would like to cross-examine…

Tribunal: You were told the issues you raised would be dealt with today and you have chosen not to attend.

Applicant: Because of the other summonses… What is the urgency?

Tribunal: The matter is listed for hearing. You have told me for the first time this morning that you are reviewing a file in the Supreme Court registry. That is not a sufficient reason for failing to attend the hearing of your application.

Applicant: No there are other reasons Member. I have requested summons, I haven’t prepared my submissions because I am expecting some documents to be produced under those summons, which I would like to have provided in an affidavit.

Tribunal: If you had been here this morning, we could have dealt with the issue of the summonses. You are not here to make submissions on so I cannot hear from you on that, so I will have no option now but to proceed in your absence.

Applicant: I reserve my rights to have it set aside.

Respondent: If you wish to reserve your rights to lodge an appeal on the basis that you decided to not attend, after being served with a copy of the order and decision made by Principal Member Simon, then that is a matter for you.

Applicant: I reserve my right to set aside.

Tribunal: You do not have any automatic right to set aside because you did not attend the hearing.

Applicant: Yes, so I have the right for where there is a non-appearance….

Tribunal: No. If I dismiss the matter under s 55 of the NCAT Act, you have an opportunity to apply for reinstatement, but I am not going to dismiss the matter under s 55. I am going to hear it in your absence and s 55 does not apply. You have had every opportunity to comply with the directions made by the Tribunal throughout the history of the matter including preparing for the hearing today and you have chosen not to do so.

Applicant: But, why is there no equal opportunity being given to the applicant?..

Tribunal: Everyone is here, but you are not, and the matter is listed for hearing. You are not here, by your choice.

Applicant: No it is not by my choice, I have a valid reason…

Tribunal: You have chosen to be at the Supreme Court registry rather than attending your hearing.

Applicant: I have a Supreme Court hearing on Monday.

Tribunal: You have an obligation here. The matter was listed for hearing weeks ago and that is not a good enough reason.

Applicant: This is an administrative review matter and it has some criminality matters involved that I have to commence… it is important for me to deal with. That is why I have requested a few times for it to be adjourned. I will leave it up to you Member because I think we are just going around and around in circles…

Tribunal: You applied for an adjournment. The application was considered by Principal Member Simon and it was rejected. You were specifically advised that these issues would be determined at the hearing today and yet you have decided not to attend. So the matter is proceeding in your absence.

30. I note that the applicant had been informed by the Tribunal that his extension of time request, adjournment and review of the refusal of the Registrar to issue the summons would be dealt with at the hearing on 14 July 2023. I accept that that those applications were not dealt with in the telephone exchange between the Tribunal and the applicant on 14 July 2023 and that the applicant may not have been properly given an opportunity to articulate those requests over the phone. However, the applicant was on notice prior to the hearing that the proceeding remained listed for hearing on 14 July 2023 and that the matter could proceed in his absence if he did not appear.

31. As part of the set aside application, the applicant has had an opportunity to explain why he did not attend the hearing and provide any supporting material. In his submissions received on 31 July 2023, the applicant states the following in relation to his non-appearance at the hearing:

Applicant continued to maintain his request for adjournment up until the day of the hearing when he received a call from the presiding Tribunal Member conducting hearing, where he further clarified that this adjournment is necessitated and he cannot attend the hearing as he is on his way to the NSW Supreme Court registry to file some critical documents, subpoenas and inspect the court file prior to the hearing on Monday 17 July 2023.

Moreover, Applicant has not even submitted his submissions and was awaiting Tribunal member's review of the issuance of the requested summons. And due to the reasons above, Applicant can't attend the hearing.

32. The applicant unilaterally decided not to attend the hearing, even after the Tribunal telephoned him and provided him with the opportunity to attend either by phone or in person. I note the Supreme Court of NSW is about a 15-minute walk from the NCAT Sydney hearing venue. The reasons provided by the applicant for non-attendance are unsatisfactory. The applicant told the Tribunal that he was at the Supreme Court Registry reviewing a file in preparation for a matter he had on the following Monday. It is noted that the applicant has not provided any details regarding the Supreme Court proceeding and why preparation for that matter took precedence. The Tribunal proceedings were listed to commence at 10am for 3 hours and the parties had been on notice of the hearing since 1 May 2023. It is unclear why the applicant could not have filed documents or inspected the file in the Supreme Court, either before or after the hearing. The applicant submits that he was awaiting the outcome of the review of the refusal of the summons application so that he could provide his material. However, the applicant was on notice that the review of the decision in relation to the summons would be considered at the hearing. Despite that, continued to refuse to attend the hearing. As it transpired the Tribunal did review the decision in relation to issuing the summons and declined to allow leave for the issuing of the summons (see [36] below). Had the applicant attended the hearing, he would have been on notice of that and could have made any subsequent application and heard in relation to an extension of time or adjournment request. However, by not attending he denied himself the opportunity to be heard in that regard.

Does the applicant have an arguable case for a different decision

33. The initial request made by the applicant under the GIPA Act was lodged with the respondent on 21 July 2022 and the applicant sought access to the following information:

Pursuant to the GIPA Act 2009, I would like access to a copy of:

- Call recording of a call received by Police Assistance Line on 11 July 2022 by

(name provided) seeking wellbeing and/or whereabouts of (name provided),

(name provided) and (FVA).

- Transcript of that call recording.

- And a complete Police incident report that exists.

34. On 1 September 2022, the respondent disclosed some of the requested information and refused to provide the balance of the information based on an overriding public interest against disclosure. The respondent decided that it was not in the public interest to provide the applicant with recordings of either the 000 or Police Assistance Line (PAL) calls made by other people. That position was confirmed following an internal review of the decision. It was decided as part of the internal review that an incident report requested by the applicant was not held. A further external review was conducted by the Information and Privacy Commissioner who found that respondent’s decision was justified.

35. At [105] of the reasons for decision the Tribunal set out a voluntary statement that the applicant had made to NSW Police and the Tribunal took account of that statement and determined at [106] that the evidence contained in the statement was not relevant to the proceedings.

36. As stated above, the Tribunal reviewed the decision of the Registrar to refuse to issue the summons. At [37] of the reasons for the decision the Tribunal set out the written submissions which the applicant has provided on 7 July 2023, regarding the refusal of the Registrar to issue the summons. At [107] of the Tribunal’s written reasons for decision, the Tribunal stated the following:

At the completion of the hearing, I gave an ex-tempore decision in the following terms:

…

(3) The Tribunal, as indicated by PM Simon in her order and correspondence dated 13 July 2023, reviewed the Registrar’s decision not to issue the summonses that the applicant applied to issue.

(4) The Tribunal has determined that the Registrar made the correct decision because there was no evidence that any of the proposed witnesses could provide any evidence that is relevant to the matter that is before it.

…

37. The applicant has not provided the ex-tempore reasons that were provided at the hearing in relation to the Tribunal decision regarding the summons. However, I have read the reasons provided for the application to issue the summons and the written submissions the applicant made to the Tribunal on 7 June 2023. The summonses were issued for various persons to attend the hearing and I find no apparent relevance of the summons to the issues in dispute.

38. The respondent submits that Sergeant Aaron Gaskell was made available for cross examination at the hearing on 14 July 2023. The applicant has failed to identify how cross-examination of Sergeant Gaskell would have advanced his review application in the proceedings.

39. In an affidavit dated 20 August 2023, the applicant has made submissions regarding the GIPA application and which presumably he would have made, had he attended the hearing. However, those submissions also do not advance the applicant’s case any further, rather they repeat matters that were considered by the Tribunal or attempt to broaden the scope of the original application made by the applicant under the GIPA Act and are not relevant to the issues in dispute.

Prejudice to the respondent

40. The respondent was ready to proceed with the witnesses at the hearing on 14 July 2023. The respondent had the onus of proof in relation to the application for review (GIPA Act, s 105) and have presented their case. If I were to set aside the Tribunal decision it would mean that the respondent would need to run the case again and that does prejudice the respondent.

Conclusion on set-aside application

41. Having considered the relevant matters, I am not satisfied that the decision of the Tribunal made on 14 July should be set aside. The applicant has not provided a satisfactory reason for his non-attendance and has not advanced an arguable case which would likely result in a different decision and the setting aside of the decision would cause a prejudice to the respondent. There is no relative injustice in allowing the decision to stand.

42. The applicant also amended the application for set aside to include an application for a stay of the decision. Given I am dismissing the set aside application, there is no basis for staying the decision of 14 July 2023.

Non-Publication

43. Pursuant to s 64 of the NCAT Act, the applicant is seeking non-publication of the Tribunal decision made on 14 July 2023 and the written reasons for that decision

44. Section 3(f) of the NCAT Act requires as one of the objects of the Act that the Tribunal has processes that are "open and transparent".

45. The Tribunal made orders that certain parts of the written reasons for the decision of 14 July 2023 are not to be published. As stated above, on 1 May 2023, the Tribunal made orders for the non-publication of the name of the applicant in these proceedings and his name has been anonymised. The basis for the anonymisation of the applicant’s name is not immediately apparent to me. The order for non-publication made on 1 May 2023 sets out that the order for non-publication was made by “consent” of the parties. On its own, the consent of the parties would not be an adequate basis for anonymisation. I have not been provided with reasons as to why the order for non-publication of the applicant’s name was made and no application has been made to remove the anonymisation and the parties have not had the opportunity to make submissions in that regard. However, in circumstances where a non-publication has already been made in relation to the name of the applicant and the applicant has been anonymised, it is not apparent that the ordinary person reading the decision could readily identify the applicant. I find no basis for the making of the orders for non-publication of the decision or the reasons and also dismiss that application.

Orders

46. Accordingly, I make the following orders:

1. An oral hearing of the application is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. The amended application for set-aside and stay of the Tribunal decision is dismissed.

3. The application for non-publication of the Tribunal decision made on 14 July 2023 and the written reason is refused.

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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

Amendments

15 September 2023 - Coversheet amended to correct typographical error on order and decision date

Decision last updated: 15 September 2023