Holman v NSW Rural Fire Service

[2025] NSWCATAD 54

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Holman v NSW Rural Fire Service [2025] NSWCATAD 54

Hearing dates:

29 January 2024 & On the papers

Date of orders:

03 March 2025

Decision date:

03 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or disclosure of documentation lodged by the respondent with the Tribunal on a confidential basis is prohibited.

(2) The respondent’s decision dated 11 August 2023, as varied on 1 November 2023, is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – where senior member resigned – reconstitution of Tribunal - alleged improper conduct of the agency – scope of access application – reasonable searches – correct and preferable decision

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Environmental Planning and Assessment Act 1979 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Rural Fires Act 1997 (NSW)

State Environmental Planning Policy Amendment (Concurrence and Referrals) 2020 (2020-667) LW 13 November 2020 (NSW)

State Records Act 1998 (NSW)

Cases Cited:

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

CLT v Secretary, Department of Education [2022] NSWCATAD 34

ECN v Commissioner of Police [2020] NSWCATAD 153

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

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

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Joseph v Kiama Municipal Council (No 3) [2023] NSWCATAD 243

Klaric v Commissioner of Police [2020] NSWCATAP 153

Leech v Sydney Water Corporation [2010] NSWADT 298

Luxford v Department of Education and Communities [2016] NSWCATAD 118

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Miriani v Commissioner of New South Wales Police [2005] NSWADT 187

Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150

Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80

Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221

Saggers v Environment Protection Authority [2013] NSWADT 204

Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317

Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189

Taylor v Destination NSW [2017] NSWCATAD 272

Tisdale v Cumberland City Council [2021] NSWCATAD 132

Transport for NSW v Searle [2018] NSWCATAP 93

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

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

Zonnevylle v Department of Justice [2019] NSWCATAP 44

Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47

Texts Cited:

None

Category:

Principal judgment

Parties:

John Holman (Applicant)
NSW Rural Fire Service (Respondent)

Representation:

Applicant (Self-represented)
Crown Solicitor(Respondent):

File Number(s):

2023/00258066

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or disclosure of documentation lodged by the respondent with the Tribunal on a confidential basis is prohibited.

REASONS FOR DECISION

Background

1. These proceedings concern a request (the GIPA request) that John Holman (the applicant) made to NSW Rural Fire Service (the respondent) on 14 June 2023 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act), in the following terms:

All correspondence, photos or video taken regarding land at [redacted] Belrose over the past 2 years from the date of determination of this GIPA request. This should include any correspondence regarding the National Park boundary with the property at [redacted].

Decision at first instance

2. On 11 August 2023, the respondent issued a Notice of Decision and decided to: (1) provide access in full to nineteen documents, on the basis that there was no overriding public interest against disclosure of the information; (2) provide access in part to two documents, on the basis that there was an overriding public interest against disclosure of some information; and (3) refuse access to eight documents on the basis that there was an overriding public interest against disclosure of the information.

3. The relevant documents were set out in a schedule of documents attached to the notice of decision (the schedule).

4. The respondent stated that it conducted reasonable searches for information requested in the GIPA request as required by s 55(2) of the GIPA Act.

5. The respondent also stated that it applied the public interest test as set out in s 13 of the GIPA Act, by: (1) identifying any public interest considerations in favour of disclosure; (2) identifying any relevant public interest considerations against disclosure; and (3) deciding whether the balance between these lies.

6. The respondent identified the public interest considerations in favour of disclosure as being: (1) there is a presumption in favour of disclosure of government in formation under s 5; (2) there is a general public interest in favour of the disclosure of government information under s 12(1); (3) disclosure could reasonably be expected to inform the public about the operations of agencies under s 12(2)(b); and (4) some of the information relates to the applicant’s property and a hazard complaint that he made. The latter was also considered to be a personal factor of the GIPA request (s 55(1)).

7. The respondent identified the relevant public interest considerations against disclosure as set out in the table to s 14(2) of the GIPA Act, and decided that disclosure of the requested information could reasonably be expected to:

1. Prejudice relations with or the obtaining of confidential information from another government agency – cl 1(c);

2. Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions – cl 1(d);

3. Reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency – cl 1(e);

4. Prejudice the effective exercise by an agency of the agency’s functions – cl 1(f); and

5. Prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law – cl 2(b).

8. The respondent stated that some of the information requested in the GIPA request relates to a hazard complaint that the applicant made about vegetation on or near the National Park boundary. It noted that its investigation of that complaint was finalised and that he was advised of the outcome, but some of the information in the documents reveals its consultative or deliberative processes in determining that complaint.

9. However, some of the documents requested reference the fact that NSW National Parks and Wildlife Service (NPWS) and Northern Beaches Council (NBC) had current investigations on foot relating to this matter. Investigations into compliance issues are a component of Government’s functions and maintaining the confidential flow of information between agencies is extremely important. The premature release of information that relates to matters under investigation may also have the potential to prejudice the investigative process.

10. The respondent also stated that some of the documents within the scope of the GIPA request reveal information that related to the exercise of the functions of other agencies (NPWS and NBC). Therefore, as required by s 54A of the GIPA Act, it undertook consultation with those agencies in relation to this GIPA request. Both agencies raised objections to the release of some information relating to the matter, on the basis that release could impede the ongoing investigation, prejudice an outcome, deliberation and/or function, and/or prejudice the supply of confidential information between agencies. Some of the requested information was not objected to.

11. The respondent stated that it considered the responses from NPWS and NBC in applying the public interest test and it concluded that the public interest considerations against disclosure outweighed those in favour of disclosure.

Current proceedings

12. On 14 August 2023, the applicant filed the current application for administrative review with the Tribunal, and he sought a review of the decision dated 11 August 2023 on the following grounds:

Sections 5 and 9(1) of the GIPA Act establish a presumption in favour of disclosure of government information. This provides an applicant with a legally enforceable right to access the information requested unless the authority can stablish that there is an overriding public interest against disclosing such information.

I seek the release of document numbers 1, 2022A, 2022F (Note: this document has four attachments: document 2022D, 2022E, 2023E and 2023F(1)), 2023G, 2023H, 2023N, 2023O and 2023R.

13. On 29 January 2024, the matter was heard by Senior Member French SC. The Senior Member reserved his decision.

14. However, Senior Member French SC resigned from the Tribunal after completing the hearing of the matter, but before he issued his determination. Accordingly, it was necessary for the Tribunal to be reconstituted pursuant to s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

15. On 13 December 2024, President Armstrong made an order under s 52 of the NCAT Act and reconstituted the Tribunal by replacing Senior Member French SC with myself.

Further submissions and evidence

16. I note that the Tribunal asked the parties whether they wished to make submissions regarding the reconstitution of the Tribunal and that on 6 December 2024, the applicant sent an email to the Tribunal in which he purported to make further submissions and to lodge further documents in his case. The issue of the reconstitution of the Tribunal was not addressed by the applicant.

17. On 12 December 2024, the respondent also sent an email to the Tribunal stating that it did not wish to make any submissions regarding the reconstitution of the Tribunal and that it objected to the further submissions and evidence lodged by the applicant on the basis that evidence and submissions in the substantive proceedings closed in January 2024.

18. Neither party has applied to re-open the matter and neither has been granted leave to file and serve further evidence or submissions in the matter. I therefore reject the applicant’s purported lodgement of further submissions and evidence in the matter.

Dispense with a further hearing

19. I have reviewed the official transcript of the proceedings before Senior Member French SC on 24 January 2024.

20. Having done so, I am satisfied that the issues in dispute can be properly determined on the basis of the evidence and submissions that were before the Tribunal on 24 January 2024.

The reviewable decision

21. The reviewable decision is that of the respondent dated 11 August 2023, as varied on 1 November 2023 (when further information was released to the applicant).

Respondent’s case

22. The respondent stated that the respondent relied upon:

1. Submissions filed 15 November 2023;

2. Statement of Lauren Smith filed 15 November 2023;

3. Statement of Greg Armstrong filed 15 November 2023;

4. Updated bundles of documents that were withheld from and released to the applicant, filed on 15 November 2023;

5. Statement of Lauren Smith dated 16 January 2024;

6. Reply submissions filed 17 January 2024; and

7. Summary of legal arguments filed 17 January 2024.

23. The respondent stated that most of the information identified by the respondent in relation to the GIPA request relates to a bushfire hazard complaint that the applicant made to the respondent concerning the boundary between a property at Belrose and the National Park in 2023. In the decision at first instance, the respondent identified twenty-nine documents that were responsive to the GIPA request and it decided to release nineteen documents in full, two documents in redacted form and to withhold eight documents, on the basis that the information was subject to an overriding public interest against disclosure.

24. The respondent stated that of the twenty-nine of the documents that were listed in the schedule to that decision, twenty-two have been released in full, six documents have been released in part and only one document has been withheld in full.

Evidence of Lauren Smith

25. In her statement dated 15 November 2023, Ms Smith stated that she is the Manager, Legal of the respondent and she has held that position since March 2019. She said that she reviewed the GIPA request in this matter and the first instance decision dated 11 August 2023. That decision was made by Ms W Theresia, who was acting in her role at that time. She also reviewed the consultation records with Department of Planning and Environment (DPE) and the documents sought in the GIPA request.

26. Ms Smith stated that on 18 July 2023, Ms A Jamieson (then Acting Manager, Legal of the respondent) sent a GIPA third party consultation letter to DPE by email, to enquire whether it objected to the release of certain information sought in the GIPA request. That enquiry and email were annexed to her statement and marked “A” and “B,” respectively,

27. On 1 August 2023, the GIPA Coordinator at DPE, replied by email, advising that DPE objected to the release of documents 2022F, 2023F, 2023H, 2023N, 2023O and 2023R on the basis that the information in those documents related to a “current investigation” by NPWS. However, DPE did not object to the release of document 2023G in redacted form (referred to as “02-RE Difficult Hazard Situation- redacted”) or to the release of documents 2023Q and 2023I (referred to in her email as “2023 Pages from the Briefing Note”).

28. After the applicant commenced the current proceedings, Ms Smith stated that she and Ms Jamieson again consulted with DPE about the release of information sought in the GIPA request. They attended a conference with DPE on 23 September 2023, to discuss whether it maintained its objections to the release of certain documents and the basis of the objections.

29. On 16 October 2023, an officer of DPE, advised in writing that DPE maintained its objections to releasing email correspondence between staff of the respondent and NPWS. A copy of her letter was annexed to the statement and marked “C.”

30. Ms Smith stated that between 27 and 31 October 2023, she and Ms Jamieson discussed the potential release of further information contained in documents 2023F, 2023H, 2023N, 2023O and 2023R with DPE, following which:

1. It consented to the release of information in documents 2023H and 2023O;

2. It consented to the release of some of the information contained in documents 2023F, 2023N and 2023R; and

3. It maintained its objection to the release of information contained in document 2022F, and to certain information contained in documents 2023F, 2022N and 2023R.

31. Ms Smith stated that as at the date of her statement, her understanding was that NPWS’ investigation regarding the applicant’s activities was ongoing.

32. In her further statement dated 16 January 2024, Ms Smith described the process involved in managing and responding to a GIPA request and the process that the respondent followed in responding to this GIPA request. She stated that she formed the view that the Field Operations Directorate may have held records in two locations: (1) Local District and Area Offices - these may have held records locally in respect of any communications, investigations or other involvement with the property; and (2) the ICON (Incident Control Online) Database, which is used to record all bushfire incidents that are responded to by the respondent. It was also possible that the Preparedness and Capability Directorate may have held records, as it is responsible for hazard complaints from a policy and advisory perspective and is the owner of the Guardian platform (the database used by the respondent to record and track the management of bush fire hazard complaints. However, she considered that no other directorate was likely to hold any records responsive to the GIPA request.

33. Ms Smith stated that searches were requested from both directorates and those searches were conducted and she provided details of those searches. Those searches produced a total of twenty-six documents (listed in the schedule). She concluded that she was not aware of any additional searches that could reasonably be conducted that would result in information responsive to the GIPA request being identified.

34. Ms Smith stated that in January 2024, she arranged for a further search of the Guardian database to be conducted, to confirm whether there was any “correspondence, photos or video” stored on it that was excluded from the schedule. The search was conducted using the identifier relating to the applicant’s bush fire hazard complaint. The search confirmed that there are only three photographs on the database in relation to the hazard complaint – documents 2022C, 2022D and 2022E in the schedule. She was advised that photographs of site visits, when they are taken, are usually uploaded to the Guardian database and are stored on staff members’ local drives. When stored locally, photos are typically saved using the address visited and/or the complainant’s name and when uploaded, they are stored in the file that has been created to track the relevant complaint.

35. The applicant gave notice that he required Ms Smith to attend for the purposes of cross-examination and she was called and affirmed. She adopted the contents of her statements as being true and correct.

36. In cross-examination, the applicant asked Ms Smith whether she believed that the respondent followed the required statutory process when dealing with that complaint? Ms Smith stated that she could not answer that question.

37. The applicant then asked Ms Smith whether she saw any evidence from NPWS regarding any wrongdoing by him regarding land clearing? Ms Smith replied that the purpose of the consultation with NPWS was not to seek evidence, but to ascertain whether it objected to the release of information under the GIPA request.

38. The applicant then asked Ms Smith whether she asserted that “a mere ongoing investigation is enough reason to withhold the information sought under the GIPA application?” Ms Smith replied that she believed it depended on the investigation and the information that is within the documents.

39. The applicant asked Ms Smith whether she was aware that no action had been taken by NBC or NPWS? Ms Smith replied, “I am not.”

40. The applicant then asked Ms Smith whether she was aware that a bush fire hazard letter was issued and whether it indicates that the respondent considered that a bush fire hazard exists? Ms Smith replied that in para 2 of that letter, it states that an officer from the service has undertaken an inspection and has determined that a bush fire hazard did exist.

41. The applicant then asked whether the letter acknowledges that the respondent considered that NPWS was in breach of its obligations under s 63 of the Rural Fires Act? Ms Smith replied that this was not stated in the letter.

42. The applicant subsequently asked Ms Smith if she believed that the respondent had acted in good faith in not providing a letter to him? However, Ms Kirk objected to this line of questioning, on the basis that the purpose of the current proceedings is not to review the respondent’s conduct in relation to the applicant’s bush fire hazard complaint, but rather to review its decision under the GIPA Act.

43. In response, the applicant asserted that the release of that document changed his case, “because it has shown that an undertaking – a review was undertaken into my complaint and this letter shows that the review showed that the hazard actually existed and that letter was never provided to me. I will deal a bit later as to different parts of the legislation that would have required it to be provided to me but I think it’s crucial that this hearing establishes the facts around this letter because this letter actually shows that the Honourable Minister Sharp has been misled as Minister for Environment by the Rural Fire Service. I think it’s very important that we get to the bottom of the facts.”

31. Ms Kirk replied that the applicant’s investment in his complaint is only relevant as a personal factor that weighs in favour of the release of information that was withheld from him. Otherwise, the material he has filed and his submissions regarding the determination of his complaint are not relevant to these proceedings.

32. However, the Senior Member decided to allow the applicant’s line of questioning, subject to the fact that his line of questioning should really be directed to the issues of whether the respondent holds any further information and whether it is entitled to rely upon public interest considerations against disclosure that it identified. Your line of questioning really should ultimately be directed at those things.

33. The applicant then raised s 112 of the GIPA Act and he stated that the purpose of his questions was to establish whether the respondent had behaved in good faith and whether NCAT should refer the respondent’s conduct to the Minister.

34. The applicant then asked Ms Smith whether she believed that the respondent acted in good faith by not disclosing the letter to him before he commenced the current proceedings? She replied to the effect that there was no evidence before her that suggested anything other than the respondent’s officers had acted in good faith.

35. The applicant then referred Ms Smith to a letter from Minister for the environment, the Honourable Penny Sharpe, and to para 3, which stated:

As part of the complaint process RFS assessed the fire risk to the shed, school and broader property. The RFS dismissed the complaint, stablishing there is no significant bushfire risk to these areas and a reasonable asset protection is in place on the property to allow for defendable space/

He asked Ms Smith whether the Minister’s statement “correctly reflects the situation as far as the letter goes?” Ms Smith replied that she was not aware of the date of that letter and she did not recall the exact course of action. It was possible that the Minister was referring to the second risk assessment or site assessment that was undertaken by the RFS, rather than the first.

49. In response to direct questioning from the applicant, Ms Smith stated that she was not aware of any other documents or reports that may fall within the date range of his GIPA request that have not been provided to the Tribunal in “the closed bundle of documents”?.

50. The applicant asked Ms Smith whether a statement from NPWS would have assisted her to provide justification for the respondent’s decision to not release the withheld documents. She replied that NPWS objected to the release of some of the information upon consultation and the respondent relied upon this in applying the public interest test.

51. The applicant put to Ms Smith that the respondent was relying on information from NPWS that was provided “in a hearsay capacity.” Ms Smith replied that the respondent relied upon the advice from NPWS as an authoritative statement about its actions and the importance of withholding that information.

52. The applicant put to Ms Smith that by not providing a statement by NPWS, he did not have the ability to test that information. Ms Smith replied that there was sufficient evidence to justify the respondent’s decision to withhold the information.

53. The applicant then sought to ask Ms Smith questions about documents that were annexed to Mr Armstrong’s statement. Ms Kirk objected to those questions being asked of Ms Smith. The applicant did not press those questions and Ms Smith was excused from the proceedings.

Evidence of Greg Armstrong

54. In his statement dated 15 November 2023, Mr Armstrong stated that he is the Supervisor of Strategic Hazards Management and he is responsible for developing State-wide policies for managing bush fire hazard complaints, issuing bush fire hazard reduction notices and training and developing staff in relation to bush fire hazard management. He also supports and provides advice to HMO’s across NSW on a daily basis. HMO’s usually manage bush fire hazard complaints at a district and area level, but they often consult with him when issues come up that are not straight-forward.

55. Mr Armstrong stated that in preparing his statement, he reviewed the documents that the applicant sought access to under his GIPA request. He was not directly involved in management of the applicant’s hazard complaint, he did give general advice by telephone about the process and procedures to be followed in dealing with it.

56. Mr Armstrong stated that under the Rural Fires Act 1997 (NSW) (the RFA), an owner or occupier of land can make a complaint to the Commissioner of the Respondent that “a bush fire hazard exists on land because of the failure of a public authority or owner or occupier of the land to carry out bush fire hazard reduction work on the land”. This is called a bush fire hazard complaint. In response, the respondent can take a range of steps, including issuing a “bush fire hazard reduction notice,” which requires the owner/occupier or public authority to carry out work to reduce the hazard (referred to as “treating the hazard”).

57. Mr Armstrong identified three policies that are currently in place regarding the management of bush fire hazard complaints. He stated that owners and occupiers of land can make such complaints in a variety of ways. Under the RFA, complaints must be made in writing to the Commissioner or the local authority of the local government area. These are received by post, email and fax, but informal complaints can be accepted over the phone. It is the respondent’s policy to take action whenever a possible hazard is identified, even if a formal complaint has not been made, but the preferred method is via the online form on the respondent’s website, and district officers will generally direct a complainant to that form if they are contacted by phone.

58. When making a complaint, the owner/occupier needs to state who they are, explain where a hazard is located and explain the grounds of the complaint and why they think the person/public authority complained about is responsible for the hazard. Once a complaint has been received, it will be directed to the district office where the hazard is located and allocation to an HMO, who is responsible for investigating whether there is in fact a hazard, what treatment is required and who should be required to do the treatment. Every complaint must be entered into the respondent’s Guardian database, which retains all of the information about a complaint and tracks the progress of the investigation until it is closed and any identified hazard is resolved. The database records any correspondence sent and received in relation to a complaint, any site assessments conducted and decisions made about what treatments need to be done to address a hazard, and any environmental/development approvals that need to be obtained to carry out the treatment. The HOM responsible for investigating the complaint is responsible for logging developments in Guardian as the investigation proceeds.

59. The Guardian database also allows HMOs to conduct a “pre-inspection” or “desktop” assessment of a complaint by mapping out where the hazard complained of is apparently located and viewing satellite images of the land and its surrounds. While conducting this assessment, the HMO may be able to identify what the hazard is, what kind of land it is located on or near, what assets (such as houses) are located in the area etc. The HMO will also take that opportunity to try to identify who owns the land on which the hazard is located and who owns any neighbouring parcels of land.

60. Following a desktop assessment, the HMO will carry out an in-person site inspection. If the complaint is about a hazard on public land, the HMO will invite a representative from the relevant public authority to participate in the inspection, and to discuss whether a hazard exists and what was required to treat it. If the land is privately owned, the HMO may make arrangements with the hazard owner to visit their property, or if they do not have the hazard owner’s contact details, my just attend the property on the day.

61. When a public authority is responsible for the hazard that is complained about, the HMO will consult with them about how they are managing the land, if they consider that a hazard exists and how they propose to respond to the hazard. For example, where the public authority is the NPWS, they will generally have procedures in place to manage hazards on the land (i.e. hazard reduction programs as part of its fire management programs). They may also have additional concerns about managing a threatened species on the land, or protecting a site.

62. During the inspection, the HMO will also usually meet with the complainant. This is an opportunity for the complainant to provide further information, including why they are concerned about the hazard. The risk assessment process if different when there is an asset on land that could be affected by a bush fire.

63. When conducting a site inspection, HMOs will assess any assets that could be affected by the hazard. It is the respondent’s policy to consider taking action to reduce hazards that could cause a bush fire to spread to adjoining lands, even when there are no assets located on those lands. However, the level and type of protection that is appropriate will vary for different types of assets, such as hospitals, schools, dwellings or major buildings. For example, if the asset is a far shed, it may only be necessary to mechanically clear vegetation for a distance of up to 10m from the asset.

64. Further, HMO’s may require information from the owner about the types of materials used in construction of any assets – whether they comply with any bush fire construction standard, what resources they have at their disposal to respond to bush fires, escape routes or refuges and access and egress from the property. An HMO will exercise discretion as to whether it is appropriate to have the complainant participate in the site inspection at the same time as the hazard owner complained about. However, there is often a history of disputes between the complainant and the hazard owner and to avoid exacerbating these problems, it is usually preferable to consult with the parties individually,

65. Mr Armstrong stated that an informed HMO is able to explain the appropriateness of treatments to manage the hazards and where treatment options will and will not address the owner’s concerns. In his experience, the respondent is often asked to consider a hazard management complaint when the parties have been unable to resolve a dispute and is called-in as a third party circuit breaker. In those cases, the HMO needs to use their discretion about how to maintain good lines of communication and a working relationship with all the parties involved. That is often achieved by communicating with the parties separately and keeping the details of what one says about the other confidential.

66. After conducting a site visit, an HMO may engage in further deliberations with other staff within the respondent, and further consultation with the complainant, the hazard owner and other government agencies. They often rely heavily on obtaining information from the local council, which can help the respondent to identify whether an environmental approval is already in place to authorise the hazard treatment required, or whether further approval needs to be obtained. They can also provide information on whether the complainant and the hazard owner or public authority has been managing their land appropriately, which may influence the HMO’s assessment of who should be required to treat the hazard and whether issuing a hazard reduction notice is necessary. The respondent will not require a person to treat a hazard, including by issuing a hazard reduction notice, if those steps are already required to be taken by some council approval, and should instead be enforced by the council.

67. Mr Armstrong also deposed as to the procedure that applies if there is a new or renovated development in bush fire prone land, including the making on enquiries with the local council. He stated, relevantly:

30. Although it is the RFS’s responsibility to assess bush fire hazards, including hazards that might affect assets, the RFS is conscious that it should not carry out unnecessary work, where that work involves interfering with neighbouring properties. For example, particularly where the property containing the hazard is a national park and/or Crown land. HMOs will be reticent to destroy areas of bush land where the asset being protected may be illegal, or the owner of the asset has not taken appropriate steps to protect it themselves in accordance with building codes and standards.

68. Mr Armstrong stated that he understand that the NWPS was concerned that the applicant had conducted significant land clearing and levelling on his property, possibly without appropriate approval. There were also concerns that he had refurbished a shed on his property. As per standard procedure, the HMO responding to the complaint contacted NBC to enquire about the approvals in place in relation to the property. In doing so, the HMO learned that there was an ongoing Council investigation and that the NPWS was investigating and considering other environmental concerns at the relevant site.

69. Mr Armstrong stated that when HMO’s communicate with private landowners, local councils and public authorities in relation to hazard management complaints, there is an expectation that the information shared will be kept confidential and not shared with other parties. There is no explicit requirement in the hazard management policy documents to that effect, but in managing complaints, the respondent’s staff adhere to the Service Standard 1.1.13 Personal Information and Privacy, and the respondent’s Policy P7.1.2 Public Complaints Management, which set out the principles for protecting the personal information and privacy of complainants and the details of public complaints. The same principles of accessibility, responsiveness, fairness and confidentiality are generally adhered to in the management of all complaints.

70. When consultations with public authorities and local councils involve discussion of past, ongoing or potential investigations into a landowner, it is crucial that HMOs are able to obtain information about those investigations to assist them in responding to hazard management complaints effectively and appropriately. If public authorities or local councils thought that this information would be disclosed to individual landowners, particularly where their investigations are ongoing, they would be much less likely to cooperate with the respondent in its investigations. The information obtained from public authorities and local councils is crucial for the respondent to exercise its functions in relation to hazard management. If that information could not be obtained, the respondent would be limited in its ability to effectively conduct hazard management investigations.

71. There are also some types of information, which are routinely obtained from public authorities, that it is particularly important to keep confidential. For example, Crown Lands or the NPWS may be aware that there is a sacred Aboriginal site on their land, and will be careful not to disclose information about its location to the public. However, it is still important for the respondent to have this information so that it does not take any hazard management action that could damage the site.

72. Mr Armstrong concluded that in order to have a robust process for dealing with bus fire hazard complaints, HMO’s and other RFS staff need to be able to conduct consultations with stakeholders, particularly public authorities, in confidence, and that those consultations can be kept confidential where it is appropriate to do so because of a factor such as an ongoing investigation or interaction with other regulatory processes, or because of the nature of the information.

73. In relation to the documents sought in this GIPA request, Mr Armstrong stated that in considering how to respond to the applicant’s hazard complaint, the respondent consulted with the NPWS and NBC regarding compliance issues on the land. Emails containing those consultations are in documents numbered 2022A, 2022F, 2023N and 2023R in the schedule of documents, and these documents were either withheld or released to the applicant in redacted form.

74. Further, documents numbered 01, 2023F and 2023G in the schedule of documents evidence the respondent’s internal deliberations and decision making, which refer to information obtained through the consultations with NBC and NPWS. Those documents were also withheld.

75. Mr Armstrong stated that disclosure of documents of this type would prejudice the respondents exercise of its functions regarding hazard management, as it would compromise the HMOs’ ability to communicate openly with, and to obtain information from, other agencies and private landowners. It would deter those agencies from sharing information in circumstances where they had undertaken, or were undertaking, investigations or enforcement actions in relation to the landowner, because of the risk that the information would be disclosed to the landowner. This information is crucial in order for HMO’s to assess whether a hazard exits, and what type and level of risk it poses, and what steps (if any) should be taken to treat it.

76. Mr Armstrong also stated that disclosing documents of this kind would compromise the ability of HMOs to effectively conduct investigations where it is necessary for them to obtain internal advice from other officers of the respondent. It is crucial for the respondent’s staff to be able to speak freely when they are conducting these internal consultations, in order to ensure that any potential red flags relating to a hazard complaint are understood and dealt with appropriately.

Cross-examination of Mr Armstrong

77. The applicant required Mr Armstrong to attend for cross-examination. He took an oath and adopted the contents of his statement as being true and correct.

78. From the outset, the applicant sought to cross-examine Mr Armstrong regarding his experience and knowledge of the respondent’s procedures for managing a bush fire hazard complaint, rather than asking its decision regarding his GIPA request.

79. For reasons that are unclear to the Tribunal, the Senior Member allowed the applicant to persist with this line of questioning over objections raised by the respondent on the basis of relevance to the issues to be determined by the Tribunal in this administrative review.

80. In particular, the applicant questioned Mr Armstrong about whether his bush fire hazard complaint was entered into the Guardian database, although Mr Armstrong stated that he did not manage that complaint and he did not know the answer.

81. The applicant questioned Mr Armstrong regarding s 6 of the Bushfire Hazard Complaint and Notice Guidelines, and particularly whether a site inspection was carried out by the respondent. Again, Mr Armstrong stated that he did not know.

82. The applicant asked Mr Armstrong whether a Fuel Hazard Assessment Form needed to be filled out, and Mr Armstrong replied that he did not know. He then asked whether the BRIN system (a predecessor of Guardian) was searched to provide documents for his GIPA request? However, Ms Kirk replied that this was addressed in Ms Smith’s second statement.

83. The applicant then asked Mr Armstrong to express an opinion about clearing vegetation to reduce fuels for a distance of ten metres from the farm shed. Ms Kirk objected on the basis that the Tribunal was not reviewing the merits of the hazard complaint, but the Senior Member replied:

I understand but I allowed a similar line of questioning in relation to Ms Smith and my view would be that the line of questioning should be permitted for the reasons I said there, unless you wish to argue any further Ms Kirk?

84. A lengthy discussion took place between the Tribunal and the parties in Mr Armstrong’s absence, during which Ms Kirk pressed her objection to this line of questioning. In response, the applicant asserted that he was attempting to show that the respondent failed to disclose documents to him in order to cover-up a failure in its proper processes and that it should have undertaken appropriate research into the information they it was provided by NPWS.

85. Ultimately, the Senior Member made the following ruling:

So, I’m going to allow the line of questioning, It may end up, Mr Homan, that none of this has much to do with anything I have to decide, but I’m going to allow you to explore the possibility that it does at this point, and for the reasons that I’ve indicated in discussion with you both…

86. The applicant asked Mr Armstrong whether an aerial photograph of his land met the requirements of an IPA. Mr Armstrong replied that it is very difficult to indicate from aerial imagery what are trees and what are shrubs or other vegetation and that he was not familiar with this area of the National Park.

87. The applicant then asked Mr Armstrong whether the imagery showed some disconnection of canopy in the northern section of the property. Mr Armstrong replied that there appeared to be a reduction in the vegetation, but as to whether or not that met the standard for an IPA, he would have to rely upon a site inspection.

88. The applicant then referred Mr Armstrong to s 74 of the RFA, which provides that if any action is to be taken by the Commissioner in relation to a bushfire hazard complaint, the complainant must be notified of the actions taken as soon as possible, and he asked if Mr Armstrong was aware whether any action was taken on his complaint. Mr Armstrong replied to the effect that he was not sure what action was taken.

89. The applicant then sought to question Mr Armstrong regarding a letter that was sent by the respondent to NPWS, which pre-dated his GIPA request. Ms Kirk objected on the basis that it is not relevant to the management of the GIPA request, but the Senior Member decided to allow it and he stated, “…Whether it is ultimately relevant to anything I need to determine, I’ll leave to deliberation...”

90. Mr Armstrong replied that as the letter was issued, it indicates an action and the respondent would have an obligation to notify the complainant. However, as he was not a party to the actual process, he did not know whether or not a notification was issued. The applicant then stated that the letter was provided to him, but only after the Crown Solicitor became involved in the proceedings.

91. The applicant then asked Mr Armstrong whether NPWS appealed the letter to the Commissioner. Mr Armstrong stated that he did not know, but that para 2.14 of the Policy refers to a s 66 Notice, and that this letter was not a s 66 Notice. Rather, it was advice to the landowner to take some action and there is no right of appeal against it. If the letter is issued and nothing else has occurred, then the letter stands.

92. The applicant then stated that the letter was asking NPWS to undertake works and he wanted to ascertain whether the respondent carried out a further inspection, or if they ignore the letter and not carry out the work. Mr Anderson stated that he did not know.

93. The applicant then asked whether a site visit form should have been completed if the respondent conducted a site inspection. Again, Ms Kirk objected on the basis of relevance, but the Senior Member allowed the question

94. The applicant argued that the purpose of these proceedings is “to determine whether documents do or do not fall within the date range of what I’ve requested” and that he was hoping that further information like forms would have been provided to the Tribunal, so that an assessment could be made as to whether or not they are “correspondence.” Ultimately, Mr Armstrong stated that he did not know if a particular form existed that recorded information from a site inspection.

95. The Senior Member asked whether such forms are completed as a matter of general policy. Mr Armstrong replied that the form is available for use, and that field officers would generally take photographs.

96. The applicant then referred to part 3.11 of the Policy – titled “Record Keeping,” which states that a paper file is to be created for each complaint. He put to Mr Armstrong that it is reasonable to assume that the listed documents should have been filled out for a site visit. Mr Armstrong replied that those documents should exist if they were used for the complaint, but that this policy did not specifically apply to bush fire hazard complaints.

97. The applicant then took Mr Armstrong to two photographs, which he asserted showed the boundary of the property and the national park, and asked whether there was a need to clear a 10m area and whether there was a bush fire hazard? Mr Armstrong replied that this would depend on whether it had been determined that 10m was the appropriate distance for the hazard and he did not know if that was the distance that had been determined.

98. The applicant then tasked Mr Armstrong whether he believed that the letter from Minister Sharp accurately reflected the situation regarding his complaint. Mr Armstrong replied that he did not have enough information to make that judgment.

99. The applicant then put to Mr Armstrong that there appeared to be “a disparity” between the respondent’s letter to NPWS, advising it to carry out works, and the Minister’s letter. Mr Armstrong noted that there was a time lapse between those letters and he did not know what had occurred during that time and he could not answer the question.

100. The respondent did not seek to re-examine the witness and he was excused from further attendance.

Respondent’s oral submissions

101. The respondent relied upon its written submissions. However, it noted that the applicant is seeking a review of two decisions made by it, namely: (1) a decision to refuse access to disputed information; and (2) the decision that it does not hold any further information in response to the GIPA request.

(1) Decision to withhold information

102. The respondent stated that this decision now applied to only six documents that are still withheld in part and only one document that has been withheld in full. These documents contain email correspondence, which record the respondent’s internal deliberations regarding the applicant’s hazard complaint and its consultations with the NPWS in relation to that complaint. There is some overlap between the information that has been withheld and the information in the documents that have been released in redacted form. In other words, there are three recurring emails that have had the same information redacted each time they appear – they are dated 15 December 2022, 1 February 2023 and 2 February 20223 and they are labelled as documents 1, 2022A, 2023F, 2023G, 2023N and 2023R, respectively.

103. The only document that had been withheld in full is 2022F, which contains two other emails (each dated 20 December 2022). The respondent argued that in relation to this document, there is an overriding public interest against disclosure.

Clause 1(d) to the table in s 14(2) of the GIPA Act

104. The respondent argued that cl 1(d) applies to three documents, which are numbered 2022F, 2023N and 2023R. The former was withheld in full but the latter contains the same information (which has been redacted). 2023N and it relies upon six public interest considerations against disclosure. It argued that disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions.

105. These documents contain emails between the respondent and NPWS, including an investigation that NPWS was running. Mr Armstrong gave evidence about the respondent’s reliance on information obtained from complainants, neighbours, local councils, public authorities, private land owners and other stakeholders, to assist it in exercising its statutory functions under the RFA of investigating bush fire hazard complaints. He also gave evidence about the importance of maintaining the confidentiality of these consultations and he stated that disclosing the withheld information would make stakeholders less likely to cooperate with future investigations.

106. The Senior Member then asked the respondent whether it was the NPWS that was exercising statutory functions. The respondent replied that the NPWS has obligations under its own Act or Acts and that in this case, the applicant’s complaint was about the NPWS and that the RFS has a general power to undertake an investigation, but it does not have power to require information to be provided. While the applicant asserted that the respondent has investigative powers under the RFA, it does not have a power to compel other agencies or individuals to provide information.

107. Mr Armstrong’s evidence is that the respondent relies upon co-operation from complainants and those who were the subject of complaints, including public land managers and private landowners.

108. Ms Smith also gave evidence that NPWS objected to the release of the information in these documents and she annexed a document from NPWS, confirming that it provided information to the respondent in confidence and with an expectation that this would not be disclosed to the applicant. It also stated that disclosure of that information would impact its trust in and willingness to cooperate with the respondent in future for fear of prejudicing both this and other investigations.

109. The respondent argued that cl 1(d) should be given substantial weight in applying the public interest test.

Clause 1(e) of the table to s 14(2) of the GIPA Act

110. The respondent argued that this consideration applies to all of the information that has been fully or partially withheld from the applicant. This provides applies where the withheld information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.

111. The respondent argued that whilst its deliberations regarding the applicant’s hazard complaint have concluded, disclosure of this type of information would prejudice its deliberations in relation to future hazard complaints, because it would compromise the ability of its staff to be frank and open when conducting internal and external consultations about how to deal with a complaint. It is not the case that disclosure would cause embarrassment to the respondent, but rather that it would have a chilling effect on its ability to seek internal advice as to how to deal with hazard complaints.

112. In Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221, the Appeal Panel stated that the focus of cl 1(e) goes beyond prejudice to particular deliberative processes and includes prejudice to an agency’s deliberative processes generally. Further, in Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [107], the Tribunal stated:

107. Officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record: McKinnon v Department of Treasury [2006] HCA 45. Callinan and Heydon JJ. Stated at paragraph [121]:

121. The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed...

113. Similar comments were made in ECN v Commissioner of Police [2020] NSWCATAD 153, at paras [63]-[69]. The Tribunal stated that in relation to the disclosure of internal deliberations about a complaint regarding police conduct:

68. Turning to the balancing exercise required by s 13 of the GIPA Act, I consider that a public interest that supports the effective oversight of complaints under Pt 8A of the Police Act should be given significant weight. From my review of the information before the Tribunal, the information contained in document four has not previously been disclosed to the applicant. On balance, I consider that the applicant’s personal interests and the public interest in the operations of agencies and how they will deal with members of the public should be given less weight. Accordingly, document four should not be disclosed.

114. The respondent argued that based on Mr Armstrong’s evidence, cl 1(e) should be given significant weight.

Clause 1(f) of the table to s 14(2) of the GIPA Act

115. Clause 1(f) provides that there is a public interest against disclosure if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions.

116. The respondent argued that the reasons relied upon in relation to cll 1(d) and 1(e) also support reliance on cl 1(f) and that this should also be given significant weight.

Clause 1(g) of the table to s 14(2) of the GIPA Act

117. Clause 1(g) provides that there is a public interest against disclosure if disclosure of the information could reasonably be expected to find an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

118. The respondent argued that the reasons relied upon in relation to cll 1(d) and 1(e) also support reliance on cl 1(g) and that this should also be given significant weight.

Clauses 1(h) and 2(b) of the table to s 14(2) of the GIPA Act

119. Clause 1(h) provides that there is a public interest against disclosure if disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

120. Clause 2(b) provides that there is a public interest against disclosure if disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law.

121. The respondent argued that cll 1(h) and 2(b) apply to the withheld information in documents 2022F, 2023N and 2023R. In particular:

1. Clause 1(h) applies because at the date of the hearing, the evidence indicates that the investigation by NPWS regarding the applicant’s property was still continuing. This is indicated in the letter from NPWS that is annexed to Ms Smith’s first affidavit. Documents 2022F, 2023N and 2023R include more specific information regarding the subject matter of the investigation and its progress at relevant times.

2. Clause 2(b) applies because release of the withheld information could reasonably be expected to prejudice the investigation that was being conducted by NPWS.

122. The respondent argued that these considerations should be given significant weight.

123. The respondent accepted that there are public interest considerations in favour of disclosure, which include that disclosure could reasonably be expected to inform the public about the respondent’s operations as an agency and its practices for dealing with bushfire hazard complaints and responding to potential bushfire hazards. Further, the information sought in the GIPA request contains some personal information of the applicant, as it relates to the property that he occupies and a bushfire hazard complaint that he made in that capacity.

124. Ms Kirk stated that the respondent is personally interested in how his bushfire hazard complaint was determined by the respondent and this is a personal factor which can be taken into account as a consideration that favours disclosure of information under s 55(2) of the GIPA Act. However, this Tribunal is not the appropriate forum to review the management of the applicant’s bush fire hazard complaint by the respondent. She argued that the public interest in favour of disclosure of the information to the applicant about the respondent’s investigation of his bush fire hazard has been substantially met by its letter to the applicant dated 20 April 2023, which dismissed his hazard complaint, and the further disclosure on 1 November 2023.

125. Ms Kirk concluded that the public interest considerations against disclosure of the withheld information outweigh those in favour of disclosure. Therefore, the Tribunal should find that there is an overriding public interest against the disclosure of that information.

126. Ms Kirk also argued that the Tribunal should find that the respondent does not hold any information other than that included in the schedule. This is supported by the evidence of Lauren Smith.

127. Ms Kirk relied upon the decision of the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska). I note that the Appeal Panel stated, relevantly:

43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.

44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

1. identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

2. determine whether the agency has proved any relevant factual issues on the balance of probabilities;

3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

4. applying those findings, decide what the correct or preferable decision is;

5. affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

128. Ms Smith provided evidence of the searches that the respondent conducted of its internal systems to identify information that was responsive to the GIPA request, including searches of Guardian and its predecessor – BRIMS. These searches took more than eight hours, excluding the additional searches that she undertook in January 2024. Her evidence is that she is not aware of any additional searches that could reasonably be undertaken to locate any additional information that is responsive to the applicant’s GIPA request.

129. Ms Kirk also argued that the respondent is not obliged to create new records in order to provide an explanation of its decision to dismiss the applicant’s hazard complaint. The evidence indicates that an explanation was provided to him on 20 April 2023, and that document was released to him.

Applicant’s case

130. The Senior Member administered an oath to the applicant and he proceeded to read from an “introduction” that he had prepared. He stated that there is an independent Christian primary school on the relevant property, as well as a house and a farm building. All buildings and land uses “are legal.”

190. In my view, cll 1(d), 1(e), 1(f) and 1(h) of the table to s 14(2) of the GIPA Act applies to document 2023G, as the withheld information could reasonably be expected to have one or more of the following effects:

1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d));

2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e));

3. prejudice the effective exercise by an agency of the agency's functions (1(f));

4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)).

191. In my view, cll 1(d), 1(e), 1(f), 1(h) and 2(b) of the table to s 14(2) of the GIPA Act applies to document 2023N, as the withheld information could reasonably be expected to have one or more of the following effects:

1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d));

2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e));

3. prejudice the effective exercise by an agency of the agency's functions (1(f));

4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)).

5. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (2(b)).

192. In my view, cll 1(d), 1(e), 1(f), 1(h) and 2(b) of the table to s 14(2) of the GIPA Act applies to document 2023R, as the withheld information could reasonably be expected to have one or more of the following effects:

1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d));

2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e));

3. prejudice the effective exercise by an agency of the agency's functions (1(f));

4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)).

5. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (2(b)).

193. I am satisfied that each of the public interest considerations against disclosure of the withheld information that are relied upon by the respondent have been properly applied.

194. In my view, each of the identified public interest considerations against disclosure should be given substantial weight.

Balancing the public interest

195. In applying s 13 of the GIPA Act, I have adopted the approach discussed in decisions including Flack and Hurst.

196. I have decided that the public interest considerations in favour of disclosure should be given moderate weight, but that the public interest considerations against disclosure should be given substantial weight.

197. I am therefore satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by those identified as relevant in the Table to s 14.

Conclusion

198. I am satisfied that the correct and preferable decision is to affirm the respondent’s decision dated 11 August 2023, as varied on 1 November 2023.

Orders

199. I make the following orders:

1. Pursuant to s 64(1)(c) of the NCAT Act the disclosure of documentation lodged by the respondent with the Tribunal on a confidential basis is prohibited.

2. The respondent’s decision dated 11 August 2023, as varied on 1 November 2023, is 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: 03 March 2025