Joseph v Kiama Municipal Council (No 3)

Case •

[2023] NSWCATAD 243

•

11 September 2023

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Joseph v Kiama Municipal Council (No 3) [2023] NSWCATAD 243
Hearing dates: 5 and 6 July 2023
Date of orders: 11 September 2023
Decision date: 11 September 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:

1. In relation to GIPA 1, I affirm the respondent’s decision dated 12 April 2022, as varied on 10 April 2022 and 26 May 2023.

2. In relation to GIPA 2, I affirm the respondent’s decision dated 6 May 2022, as varied on 26 May 2023.

3. In relation to GIPA 3, I affirm the respondent’s decision dated 6 May 2022, as varied on 26 May 2023.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – application for recusal – alleged improper conduct of the agency – whether a GIPA applicant can seek an order referring an Agency to the responsible minister before completion of an administrative review – whether allegations made by a GIPA applicant in relation to s 112 of the GIPA Act operate such that the respondent is deemed to have waived privilege over documents sought under a summons under s 125 of the Evidence Act

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil Procedure Act 2005 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Copyright Act 1968 (Cth)

Evidence Act 1995 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Government Information (Public Access) Regulation 2018 (NSW)

Interpretation Act 1987 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

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

Bienstein v Bienstein (2003) 195 ALR 225

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

CNY 17 v Minister for Immigration and Boarder (sic) Protection (2019) 2019 CLR 78

Charisteas v Charisteas (2021) 273 CLR 289

EMC v The University of Sydney [2021] NSWCATAD 234

Ebner v Official Receiver in Bankruptcy [2000] VLR 337

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

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

Johnson v Johnson (2000) 201 CLR 488

Joseph v Kiama Municipal Council [2022] NSWCATAD 392

Klaric v Commissioner of Police [2020] NSWCATAP 153

Leech v Sydney Water Corporation [2010] NSWADT 298

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Mino v Legal Aid NSW [2015] NSWCATAD 245

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

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

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

Saggers v Environment Protection Authority [2013] NSWADT 204

Sandy v Kiama Municipal Council [2019] NSWCATAD 49

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

Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74

Zonneyville v Secretary, NSW Department of Education [2022] NSWCATAD 56

Category:Principal judgment
Parties: Michael Joseph (Applicant)
Kiama Municipal Council (Respondent)
Representation: Counsel:
Applicant (Self-represented)
Bradley Allen Love Lawyers (Respondent)
File Number(s): 2022/00235607, 2022/00236000 and 2022/00251353
Publication restriction: Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (Kiama Municipal Council) is prohibited.

REASONS FOR DECISION

Background

  1. In this matter Mr Michael Joseph (the applicant) has lodged three separate applications with the Tribunal, each seeking administrative review of decisions that Kiama Municipal Council (the respondent) made in respect of three separate applications for access to information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) (the GIPA requests).

  2. The applications for administrative review are made under s 100(1) of the GIPA Act, which provides that a person aggrieved by a reviewable decision of an agency made under the GIPA Act may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

  3. The current applications arise out of a property and planning dispute between the applicant and his neighbours, Mr & Mrs Spencer (the Spencers). There is an extensive history of related litigation, which has previously been described by the Tribunal as “long and exhaustive”. However, I have not set that history out in this decision.

GIPA 1

  1. The applicant lodged his first GIPA request (“GIPA 1”) with the respondent on 15 March 2022, seeking access to the following information:

All documents in relation to the preparation for lodging and the assessment of development application DA 2021.45.1 in the period 1/5/2021 to date.

All documents in relation to the processing of GIPA applications lodged 15 June and 2 July 2021 including any documentation as to searches made by KMC in fulfilment [of] those applications.

All documents received by KMC from the “owners” of [address omitted], or sent by KMC to the “owners” in relation to the agenda item 12.10 to be considered by KMC at its meeting of 14th and/or 15th February 2022.

All documents prepared by KMC for any consideration of agenda item 12.10 for meeting of 14th and/or 15th February 2022.

Any document in relation to any meeting attended by any [councillor] in relation to agenda item 12.10 for meeting on 14th and/or 15th February 2022.

All communication between KMC and the independent assessor Mr P Mitchell including invoices and receipts.

All documents identifying the budget for “legal services” for financial year 2020-2021 and 2021-2022.

All documents being a communication between KMC and owners since 1/3/2020 to date.

All documents in relation to site visits by KMC to [address omitted] since 1/5/2021 to date.

All GIPA applications to KMC made by the owners since 1/5/21 to date, and the contents of the responses.

All documents in respect of the current positions held by the following employees: 1. Mr Leo; 2. Mr L Jones; 3. Mr Herbert; and 4. Mr Randall

All documents in relation to any investigation or assessment carried out by KMC in respect to a complaint of M Joseph forwarded to KMC in January 2020.

All documents in relation to any investigation or assessment as to the granting of approval [to] DA.2017.307 by KMC in October 2018 and any lessons learnt.

Initial decision

  1. On 12 April 2022, Ms Critcher, Governance Officer, made a decision pursuant to s 58(1) of the GIPA Act, in which she located a total of 46 documents that fell within the scope of the request (identified as documents 1 to 46 in the amended schedule of documents found at Tab 1 of Exhibit AC-02). She:

  1. Released 4 documents in full (documents numbered 26, 27, 28 and 29);

  2. Released 22 documents in part with redactions of personal information etc. (documents numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15, 16, 17, 18, 19, 23, 24 and 250);

  3. Withheld 18 documents on the basis that there was an overriding public interest against disclosure of the information (documents numbered 20, 21, 22, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 46); and

  4. Declined to release 4 documents on the basis that the applicant already had access to them (documents numbered 33, 43, 44 and 45).

Second disclosure

  1. On or about 10 October 2022, Ms Critcher conducted some further searches of the respondent’s internal email system (“Vault”) and located 18 additional documents (identified as documents 47 to 64b in the amended schedule of documents found at Tab 1 of Exhibit AC-02). Of these further documents, she:

  1. Released 6 documents in full (documents numbered 56a, 60, 61a, 62, 63 and 64a);

  2. Released 6 documents in part with redactions for personal information etc. (documents numbered 47, 48, 49, 50, 51, 53, 57, 58 and 59);

  3. Withheld 1 document on the basis that there was an overriding public interest against disclosure of the information (document 61b); and

  4. Declined to release 5 documents on the basis that the applicant already had access to them (documents numbered 52, 54, 55, 56b and 64b).

Third disclosure

  1. On 26 May 2023, the respondent decided to make an additional disclosure of the information and prior to the hearing on 5 June 2023, it withdrew its reliance on item 3(f) of the table to s 14(2) of the GIPA Act.

  2. Therefore, the position regarding disclosure of information as at 5 July 2023 was as follows:

Document

Particulars

1

Released in part (see Ex AC-02 at Tab 1, pages 15 to 40). Redactions were made to protect an individual’s personal information: cl 3(a)

2

Released in part (see Ex AC-02 at Tab 2, page 41). Redactions were made to protect an individual’s personal information: cl 3(a)

3

Released in part (see Ex AC-02, Tab 3, pages 42-43). Redactions were made to protect an individual’s personal information: cl 3(a)

4

Released in part (see Ex AC-02, Tab 4, pages 44-45). Redactions were made to protect an individual’s personal information: cl 3(a)

5

Released in part (see Ex AC-02, Tab 5, pages 46-470. Redactions were made to protect an individual’s personal information: cl 3(a)

6

Released in part (see Ex AC-02, Tab 6, page 48). Redactions were made to protect an individual’s personal information: cl 3(a)

7

Released in part (see Ex AC-02, Tab 7, page 49). Redactions were made to protect an individual’s personal information: cl 3(a)

8

Released in part (see Ex AC-02, Tab 8, page 50). Redactions were made to protect an individual’s personal information: cl 3(a)

9

Released in part (see Ex AC-02, Tab 9, page 51). Redactions were made to protect an individual’s personal information: cl 3(a)

10

Released in part (see Ex AC-02, Tab 10, page 52). Redactions were made to protect an individual’s personal information: cl 3(a)

11

Released in part (see Ex AC-02, Tab 11, page 52). Redactions were made to protect an individual’s personal information: cl 3(a)

12

Released in part (see Ex AC-02, Tab 12, page 54). Redactions were made to protect an individual’s personal information: cl 3(a)

13

Released in part (see Ex AC-02, Tab 13, page 55). Redactions were made to protect an individual’s personal information: cl 3(a)

14

Released in part (see Ex AC-02, Tab 14, pages 56-86). This document consists of: (a) An email to which redactions have been made to protect an individual’s personal information: cl 3(a); and (b) An attachment to the email, which is a DA submission, to which redactions of photographs and other diagrams have been made to protect copyright: s 6(1) of the GIPA Act.

The respondent offered to provide the applicant with “view only” access to the unredacted document based on the Tribunal’s decision in Sandy v Kiama Municipal Council [2019] NSWCATAD 49 (Sandy)

15

Released in part (see Ex AC-02, Tab 15, pages 87-89). Redactions were made to protect an individual’s personal information: cl 3(a)

16

Withheld due to Copyright issues. The respondent offered to provide the applicant with “view only” access to this document.

17

Released in part (see Ex AC-02, Tab 17, pages 90-121). The document consists of two parts: (a) An email to which redactions have been made to protect an individual’s personal information: cl 3(a); and (b) An attachment to the email, which is a DA submission, to which redactions of photographs and other diagrams have been made to protect copyright: s 6(1) of the GIPA Act.

The respondent offered to provide the applicant with “view only” access to document 14 with the photographs and diagrams unredacted, based on the Tribunal’s decision in Sandy

18

Released in part (see Ex AC-02, Tab 18, pages 122-123). Redactions were made to protect an individual’s personal information: cl 3(a)

20

Released in part (see Ex AC-02, Tab 20, page 149). Redactions were made to protect a person’s legitimate business, commercial, professional or financial interests: s 14(2) cl 4(d) of the GIPA Act.

21

Released in part (see Ex AC-02, Tab 21, pages 150-151). Redactions were made to protect a person’s legitimate business, commercial, professional or financial interests: s 14(2) cl 4(d) of the GIPA Act.

22

Released in part (see Ex AC-02, Tab 22, page 152). Redactions were made to protect a person’s legitimate business, commercial, professional or financial interests: s 14(2) cl 4(d) of the GIPA Act.

23

Released in part (see Ex AC-02, Tab 23, page 153). Redactions were made to protect an individual’s personal information: cl 3(a)

24

Released in part (see Ex AC-02, Tab 24, page 154). Redactions were made to protect an individual’s personal information: cl 3(a)

25

Released in part (see Ex AC-02, Tab 25, page 155). Redactions were made to protect an individual’s personal information: cl 3(a)

26, 27, 28 & 29

Released in full

30

Withheld on the basis that its contents could reasonably be expected:

(a) 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: s 14(2) cl 1(e) of the GIPA Act; and/or

(b) to prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency: s 14(2) cl 1(h) of the GIPA Act; and

(c) it is subject to legal professional privilege for which there is a conclusive presumption against disclosure: Sch 1 cl 5 of the GIPA Act

31 & 32

Withheld on the basis that its contents could reasonably be expected:

(a) 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: s 14(2) cl 1(e) of the GIPA Act; and/or

(b) to prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency: s 14(2) cl 1(h) of the GIPA Act

33

Not disclosed as the applicant already had access to it.

34, 35 & 36

Withheld on the basis that its contents could reasonably be expected:

(a) 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: s 14(2) cl 1(e) of the GIPA Act; and/or

(b) to prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency: s 14(2) cl 1(h) of the GIPA Act; and

(c) it is subject to legal professional privilege for which there is a conclusive presumption against disclosure: Sch 1 cl 5 of the GIPA Act

37, 38, 39, 40, 41 & 42

Withheld due to Copyright issues. The respondent offered to provide the applicant with “view only” access.

43, 44 & 45

Not disclosed because they were publicly available

46

Released in part (see Ex AC-02, Tab 46, pages 228-229). Redactions were made to protect an individual’s personal information: cl 3(a)

47

Released in part (see Ex AC-02, Tab 47, pages 230-233). Redactions were made to protect an individual’s personal information: cl 3(a)

48

Released in part (see Ex AC-02, Tab 48, pages 234-239). Redactions were made to protect an individual’s personal information: cl 3(a)

49

Released in part (see Ex AC-02, Tab 49, pages 240-245). Redactions were made to protect an individual’s personal information: cl 3(a)

50

Released in part (see Ex AC-02, Tab 50, pages 246-252). Redactions were made to protect an individual’s personal information: cl 3(a)

51

Released in part (see Ex AC-02, Tab 51, pages 253-257). Redactions were made to protect an individual’s personal information: cl 3(a)

52, 54, 55 & 56b

Not disclosed because the applicant already had access to it

53

Released in part (see Ex AC-02, Tab 53, page 258). Redactions were made to protect an individual’s personal information: cl 3(a)

56a & 57

Released in full

58

Released in part (see Ex AC-02, Tab 58, pages 260-261). Redactions were made to protect an individual’s personal information: cl 3(a)

59

Released in part (see Ex AC-02, Tab 59, pages 262-263). Redactions were made to protect an individual’s personal information: cl 3(a)

60

Released in part (see Exhibit AC-02, Tab 60, page 264). Redactions were made to protect an individual’s personal information: cl 3(a)

61a

Released in part (see Ex AC-02, Tab 61, page 265). Redactions were made to protect an individual’s personal information: cl 3(a)

61b

Withheld on the basis that its contents 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: s 14(2) cl 1(e) of the GIPA Act

62

Released in part (see Ex AC-02, Tab 62, page 266). Redactions were made to protect an individual’s personal information: cl 3(a)

63

Released in part (see Ex AC-02, Tab 63, page 267). Redactions were made to protect an individual’s personal information: cl 3(a)

64a

Released in part (see Ex AC-02, Tab 64, page 269). Redactions were made to protect an individual’s personal information: cl 3(a)

64b

Not disclosed as the applicant already had access to it

GIPA 2

  1. On 15 March 2023, the applicant lodged his second GIPA request (“GIPA 2”) was lodged with the respondent. This sought access to the following information:

All documents received by KMC from the “owners”, or sent by KMC to the owners in relation to item 12.7 on the Agenda of meeting of KMC on 15 March 2022.

All documents being any briefing notes created by KMC in relation to item 12.10 in respect of meetings of 15 February 2002 and/or item 12.7 of meetings of KMC.

All documents prepared by KMC for consideration of any councillors in respect of item 12.7 of meeting of KMC on 15 March 2022.

All communications between KMC and the “owners” in respect to possible outcomes should the 2021 was or was not withdrawn including the costs implications of in respect to each outcomes (sic).

All documents in relation to any claim by KMC for costs by reason of the withdrawal of DA 2021.45.1 and DA 2017.301.1 by the owners, including receipts.

Any policy documents (for period 2017 to date) of KMC in respect of the consequences of an applicant withdrawing a development application from KMC considerations.

Any document which informed or could have informed the Mayor, or directed or recommended that Mr Joseph would address Council before Mrs Spencer at the KMC meeting of 15 March 2022.

All documents sent to and from councillors in respect of item 12.7 of meeting of KMC of 15 March 2022.

All documents arising out of and/or relating to the email and attachments sent to all councillors, and to Ms Rippon and to Mr and Mrs Spencer by M Joseph on 12 March 2022.

Any document identifying any “assistance” received by either Councillors Keast or Rice in the 2021 election campaign.

Initial decision

  1. On 6 May 2022, Ms Critcher made a decision under s 58(1) of the GIPA Act, in which she stated that she located a total of 17 documents that were within the scope of the request (identified as documents 1 to 17 in the amended schedule of documents at Tab 2 of Ex AC-02). She:

  1. Released document 8a in full;

  2. Released 13 documents in part (documents numbered 2, 3, 4, 5, 12a, 12b, 12c, 13a, 14, 15, 16a, 17a and 17b) with redactions to protect an individual’s personal information: cl 3(a).

  1. Withheld documents 1, 6 and 13c on the basis that there was an overriding public interest against their disclosure; and

  2. Declined to release documents 7, 8b, 9, 10, 11, 13b and 16b on the basis that the applicant already had access to them.

Further disclosure

  1. On 26 May 2023, the respondent decided to make an additional disclosure of information sought this request and it withdrew its reliance on item 3(f) in the table to s 14(2) of the GIPA Act. Therefore, the position regarding disclosure of information as at 5 July 2023 was as follows:

Document

Particulars

1

Withheld pursuant to cll 1(d) and 1(g) of the table to s 14(2) of the GIPA Act

2

Released in part (see Ex AC-02, Tab 2, page 276). Redactions were made to protect an individual’s personal information: cl 3(a)

3

Released in part (see Ex AC-02, Tab 3, page 277). Redactions were made to protect an individual’s personal information: cl 3(a)

4

Released in part (see Ex AC-02, Tab 4, pages 278-279). Redactions were made to protect an individual’s personal information: cl 3(a)

5

Released in part (see Ex AC-02, Tab 5, pages 280-281). Redactions were made to protect an individual’s personal information: cl 3(a)

6 & 8a

Released in full

7

Not released as it was publicly available

8b, 9 & 10

Released in full

11

Not disclosed as the applicant already had access to it

12a

Released in part (see Ex AC-02, Tab 12a, page 369). Redactions were made to protect an individual’s personal information: cl 3(a)

12b

Released in part (see Ex AC-02, Tab 12b, pages 370-384) due to copyright issues under s 6(1) of the GIPA Act. The respondent offered to provide the applicant with view-only access based on the Tribunal’s decision in Sandy

12c, 13a & 13c

Released in full

13b

Not released as it was publicly available

14

Released in part (see Ex AC-02, Tab 14, pages 423-424). Redactions were made to protect an individual’s personal information: cl 3(a)

15

Released in part (see Ex AC-02, Tab 15, pages 56-86).

The document consists of 2 parts:

(a) an email to which redactions were made to protect an individual’s personal information: cl 3(a)); and

(b) an attachment to which photographs and diagrams have been redacted in order to protect copyright.

The respondent offered to provide the applicant with view-only access based on the Tribunal’s decision in Sandy.

16a

Released in part (see Ex AC-02, Tab 16, page 430). Redactions were made to protect an individual’s personal information: cl 3(a)

16b

Not released as it was publicly available

17a

Released in part (see Ex AC-02, Tab 17, page 431). Redactions were made to protect an individual’s personal information: cl 3(a)

17b

Released in full

GIPA 3

  1. On 23 April 2023, the applicant lodged his third GIPA request (GIPA 3), which sought access to the following information:

Any document obtained as a result of third party consultation in relation to my GIPA application file ref 22/18953; and

Any document considered or used by the decision maker to assess reliance on s 14(3)(a)-(f) of GIPA Act in relation to my GIPA application file ref 22/18953.

First decision

  1. On 8 May 2022, Ms Critcher made a decision under s 58(1) of the GIPA Act, in which she stated that she located a total of 3 documents that fell within the scope of the request (documents 1 to 3 in the amended schedule of documents found at Tab 3 of Ex Ac-02). She:

  1. Withheld document 1 on the basis that there was an overriding public interest against its disclosure; and

  2. Declined to release documents 2 and 3 on the basis that the applicant already had access to them.

Application for External Review

  1. The applicant applied to the Information and Privacy Commissioner (IPC) for a review of the decision dated 8 May 2022 under s 89 of the GIPA Act.

  2. On 6 July 2022, the IPC issued a recommendation that the respondent should reconsider that decision by way of an internal review.

Internal review decision

  1. Ms Salviejo conducted that internal review and on 18 August 2022, she made a decision under s 58(1) of the GIPA Act, in which she refused to provide access to part of the information sought because there was an overriding public interest against its disclosure.

Further disclosure

  1. However, on 26 May 2023, the respondent decided to make an additional disclosure of information sought by GIPA 3, as follows:

  1. Document 1 was released in part (see Ex AC-02, Tab 11, pages 434-436). Redactions were made to protect an individual’s personal information: cl 3(a); and

  2. Documents 2 and 3 were not disclosed as the applicant already had access to them.

Interlocutory hearing and decision

  1. In my interlocutory decision dated 9 August 2023, I determined a Miscellaneous Application that was lodged by the respondent, which sought to set aside the following summonses that had been issued at the applicant’s request:

  1. Summons to Produce Documents to its General Manager dated 22 February 2023;

  2. Summons to Produce Documents to its General Manager dated 8 May 2023; and

  3. Summons to Give Evidence to Ms Salviejo dated 21 March 2023.

  1. For the reasons contained in my decision dated 9 August 2023, I decided to set aside summonses (1) and (2), but I refused to set aside summons (3).

Hearing of the substantive applications

  1. The three substantive applications for administrative review came before me for hearing on 5 July 2023 and 6 July 2023. The applicant was self-represented and Mr D Robertson of counsel appeared for the respondent.

Recusal application

  1. When the matter was called on 5 July 2023, the applicant made a recusal application on the following grounds:

On 5 June 2023, you referred to my professional background on two occasions. One was that I was Senior Counsel at some stage and the other was that I had been a Member of this Tribunal…

It is clear that I have been enquired upon, my background, at a time when I'm a party and a potential witness. I am sure that you did not do the same in respect of Kiama Council and its witnesses.

The inquiry, the nature of which I'm unaware, could have revealed matters and, as I understand from my own observations on the Internet, that go to matters of credit and which would have been revealed to you if that had been your source.

  1. I asked the applicant whether he was asserting that I could not have known that he was a legal practitioner unless I “Googled” him? However, he did not respond.

  2. I observed that the applicant is well-known within the Sydney legal community, and I stated that I did not, and I would not in any circumstances, “Google” a party to any Tribunal proceedings that were before me. The following exchange occurred:

Applicant: Well I find the idea that you did it a matter of concern if you did it.

Tribunal: Well I have not done it, nor would I ever do it, and in the context in which I made the comment…

Applicant (interjecting): Whilst my status as senior counsel may be well known in the legal community, my position at NCAT was short-lived and could only be learned with some sort of enquiry.

Tribunal: And I was only referring to the fact that I had online two legal representatives who were “duking it out like they were in a boxing ring”, and I found that quite confronting, and I asked both parties – I addressed my comments to both parties – to behave in a professional manner.

  1. The applicant then stated that “this is not the gravamen of the matters” that he was referring to and that his application was based on my having “some knowledge, which would not have been generally known, because he was only a Deputy Chairman for a short time”. He argued that the fact that I knew of this would give rise to an understanding in the mind of a reasonable bystander that there had been some enquiry made in order to assist the Tribunal to understand the background of these matters.

  2. The applicant also complained that on 5 June 2023, I referred to the respondent’s application for summary dismissal as “historical” and he alleged that I used that term in order “to dismiss the relevance of those proceedings in this matter” and that he regarded this as “a judgement you have made without any evidence”.

  3. I rejected these allegations and stated that I described those proceedings as “historical” because the application for summary dismissal had been determined by the Tribunal and it was not directly relevant to the determination of the substantive applications that are before me. However, the applicant interjected and he stated:

Yes it is relevant, but you would not let me develop it and you still will not let me develop it.

  1. The applicant then stated that he was “seeking to develop an argument that your use of the word “historical” was pre-judgement”, and that it should lead me to recuse myself because I did not hear argument on it. He maintained that it was relevant to the matters before me, which I would have realized if I had read his submissions regarding the interlocutory hearing on 5 June 2023.

  2. I confirmed that the matter came before me on 5 June 2023 to determine an interlocutory application only and I did not hear the substantive applications. However, the applicant again interjected:

Had you read my submissions, which you never did, and gave judgment without referring to them, you would have observed that part of my case against the strike out case was that there was no legal professional privilege and that there had been misconduct within the meaning of s 125. Neither of those matters did you consider, and both were relevant to the decision before you.

Because you described the matters as “historical”, the question is whether a reasonable bystander believe that you would have no regard to them?

  1. The applicant stated that I asked Mr Coffey if there was any “overlap” between the documents that the respondent lodged with the Tribunal on a confidential basis and those that he sought to obtain in the summonses to the General Manager of the respondent.

  2. I noted that Mr Coffey informed the Tribunal that documents in relation to summons (1) were lodged with the Tribunal on a confidential basis. I repeated that I am required to determine whether they are properly the subject of a claim for LPP. However, the applicant again interjected, and he stated:

There are two different processes in play and you refuse to understand that and still do.

  1. I confirmed that I dealt with the summonses on 5 June 2023, but the applicant again interjected and stated, “Yes and you never made any finding about legal professional privilege and you never even read the documents.”

  2. I replied that I needed to consider the question of privilege in the context of a substantive hearing, and not an interlocutory application, but the applicant again interjected and he stated, “You may or you may not. However, the interlocutory application was not brought by me and you upheld it.”

  3. I confirmed that I upheld the application to set aside summons (1) on the basis that the documents were already in the Registry, but the applicant again interjected and the following exchange occurred:

Applicant: No you upheld it on the basis that they were subject to legal professional privilege and you had no evidence of that.

Tribunal: There was a claim for legal professional privilege over the documents that were produced to the Tribunal on a confidential basis in accordance with the orders made during the procedural stages…

Applicant: There was never an order that these documents be produced. Maybe they were, maybe they weren’t, but the application which is what you were dealing with was on the basis that they were subject to legal professional privilege and you never made a finding and you never read my submissions as to whether you should make that finding…

The short point is, I suppose, that you refused to give me procedural fairness on that issue and it would support a reasonable bystander believing that when you came to consider whether the confidential documents were legally professionally privileged documents, you have already determined that they will not be available for access.

  1. I repeated that made no determination as to whether the documents were privileged, but the applicant again interjected and he stated, “You set aside the subpoena, you set aside the subpoena.”

  2. I repeated that on 5 June 2023, I observed that the documents were already in the Registry, in an envelope marked “Confidential”, and I stated that I would consider whether they are properly the subject of a claim for LPP in the context of a confidential hearing under s 107 of the GIPA Act. However, the applicant again interjected:

Ms Riordan, you know as well as I do that the only documents that could be considered confidential will be those that are against public interest in revealing them, which is a totally different legal fact to whether something is privileged or not.

  1. I confirmed that: (1) These proceedings are being conducted under the GIPA Act; (2) I am aware of the public interest test and how I am required to apply it; (3) I intend to apply the public interest test; and (4) I have not yet made any findings, although I observed that there was no utility in maintaining a summons when the documents were already in the Registry and could be considered on their merit at the substantive hearing. The following exchange occurred:

Applicant: That was erroneous.

Tribunal: Well if you believe it to be erroneous, when my decision is made you can appeal it.

  1. I asked the applicant if there were any matters that he wished to raise in support of his recusal application? He replied “No”.

Recusal application refused

  1. I refused the recusal application and stated that I would provide my reasons for decision in due course. My reasons are as follows.

  2. Firstly, Principal Member Pearson set out the law in relation to recusal applications in Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74 at paragraphs [15] – [18] as follows:

15 My reasons for declining the requests that I recuse myself are as follows.

16 A decision maker has an obligation to hear and determine a matter unless a reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36]; see also Charisteas v Charisteas [2021] HCA 29. The general test for apprehended bias, whether in a court or in a tribunal, is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. 4 D22/0337478/DJ

17 The two-step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy at [8]:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

18 For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ.

19 As explained in the Information Sheet provided to the parties with the Notice of Listing-Directions, the purpose of a directions list is to make directions for each of the matters in that list as to what the parties need to do to resolve the case or prepare it for a hearing, including by setting a timetable and listing a hearing date. The fact that a decision-maker makes a ruling on a procedural issue in such a list against a party does not, of itself, demonstrate that the decision-maker does not bring an impartial mind to bear upon the determination of the issues in the matter: Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 56 at [12].

  1. In my view, the fact that I set aside the summonses to produce documents following a hearing of an interlocutory application on 5 June 2023, does not demonstrate the required connection between the facts and circumstances of those matters and the asserted conclusion that I might not bring an impartial mind to the resolution of the matters that are required to be addressed in the substantive hearing.

  2. I regard the grounds raised by the applicant on 5 June 2023 as misguided and misconceived, and possibly misleading, for the following reasons:

  1. In para 4 of his affidavit dated 22 October 2022 (Ex A), the applicant deposed that he felt able to refer to “legal principles/submissions and my beliefs as to particular legal failures by KMC” because of his qualifications, “(graduate in Bachelor and Master of Laws) and given my career as a practising barrister for over 45 years and a senior council (sic) for over about 25 years.”

  2. In para 127 of Ex A, the applicant stated, relevantly:

No doubt this course of conduct was influenced by the fact that I was a barrister for 45 years, and a senior counsel for 25 years before I retired. I have used the legal processes of subpoenas, notices to produce and orders for compliance to reveal the wrongful conduct of both KMC and Mr and Mrs Spencer. No doubt this has led to their frustration and embarrassment which I believe has generated many of their unsupportable determinations and Mr and Mrs Spencer’s third party responses…

  1. Following the decision made by SM Griffin in Joseph v Kiama Municipal Council [2022] NSWCATAD 392 on 9 December 2022, which refused the respondent’s application for summary dismissal of the substantive applications, he applied for an order for costs under s 60 of the NCAT Act. On 13 April 2023, Senior Member McAteer published a decision which awarded him limited costs (part of claimed disbursements) on the basis that he was a legal practitioner who appeared in his own interest. That decision was published and was part of the public record before the hearing of interlocutory application on 5 June 2023;

  2. In Ex B, the applicant described his occupation as follows: “Retired Barrister (2020) – admitted 1976, appointed Senior Counsel”; and

  3. The email correspondence that this Tribunal has received from the applicant in this matter indicates that his email address is in the format: “first initial.surname@“a domain belonging to barristers’ chambers”.

  1. For these reasons, I am satisfied that there was no proper basis for the applicant’s allegation that I could not have known that he was a legal practitioner as at 5 June 2023 unless I had “made enquiries” about him. The contrary position is clearly established based on the public record and the applicant’s own evidence and correspondence in relation to these proceedings.

  2. I also reject the applicant’s assertion that I must have “made enquiries” about him in order to ascertain that he was at one time been appointed as a Deputy Chairman of this Tribunal. Having been appointed to this Tribunal from 1 January 2014, my clear recollection is that the names of all appointees were announced in an official release on the public record at that time and they were subsequently published in the Tribunal’s Annual Report. No further enquiry was required and I made none.

  1. For these reasons, I am satisfied that the applicant failed to establish either of his “grounds” for recusal, let alone the causal connection that was discussed by Principal Member Pearson in Zonnevylle.

The evidence

Respondent’s evidence

  1. The respondent relied upon the following evidence:

  1. Statement of Angela Critcher dated 19 October 2022 + Exhibit AC01. This was marked Ex 1. Paras 17 to 19 (inclusive) were not pressed and were deleted by the Tribunal;

  2. Statement of Angela Critcher dated 29 June 2023 + Exhibit AC02. This was marked Ex 2;

  3. Letter from BAL Lawyers to the applicant dated 1 November 2022. This was marked Ex 3;

  4. Respondent’s chronology regarding GIPA 1. This was marked MFI 1;

  5. Respondent’s chronology regarding GIPA 2. This was marked MFI 2;

  6. Respondent’s chronology regarding GIPA 3. This was marked MFI 3;

  1. The respondent also relied upon confidential evidence, and this will be identified in relation to the confidential hearing.

The applicant’s evidence

  1. The applicant relied upon the following evidence:

  1. Affidavit dated 24 October 2022 + 4 volumes of attachments. This was marked Ex A;

  2. Affidavit dated 16 January 2023. This was marked Ex B;

  3. Submissions and Statement. This was marked Ex C;

  4. Submissions and Statement to Application dated 19 April 2023. This was marked Ex D;

  5. Annexures A to F and his Affidavit, which were marked as Ex E; and

  6. “Documents to be relied upon by the applicant”. This was marked MFI 4.

Confidential hearing

  1. I confirm that the matters in dispute included:

  1. Whether the documents that the respondent lodged with the Tribunal on a confidential basis are subject to a conclusive presumption against disclosure under cl 5 of Sch 1 to the GIPA Act; and

  2. Whether the documents that the respondent lodged with the Tribunal in answer to a summons to produce documents issued by the applicant, are properly subject to a claim for LPP under ss 118 or 119 of the Evidence Act.

  1. In order to properly consider and determine these issues, I determined that it was necessary to conduct a confidential hearing in the applicant’s absence pursuant to s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

  2. [NOT FOR PUBLICATION]

  1. [NOT FOR PUBLICATION]

  2. [NOT FOR PUBLICATION]

  3. [NOT FOR PUBLICATION]

  1. [NOT FOR PUBLICATION]

GIPA 1

  1. [NOT FOR PUBLICATION]

  2. [NOT FOR PUBLICATION]

  3. [NOT FOR PUBLICATION]

  4. [NOT FOR PUBLICATION]

  5. [NOT FOR PUBLICATION]

  6. [NOT FOR PUBLICATION]

  7. [NOT FOR PUBLICATION]

  8. [NOT FOR PUBLICATION]

  9. [NOT FOR PUBLICATION]

  10. [NOT FOR PUBLICATION]

  11. [NOT FOR PUBLICATION]

  12. [NOT FOR PUBLICATION]

  13. [NOT FOR PUBLICATION]

  14. [NOT FOR PUBLICATION]

  15. [NOT FOR PUBLICATION]

  16. [NOT FOR PUBLICATION]

  17. [NOT FOR PUBLICATION]

  18. [NOT FOR PUBLICATION]

  19. [NOT FOR PUBLICATION]

GIPA 2

  1. [NOT FOR PUBLICATION]

  2. [NOT FOR PUBLICATION]

  3. [NOT FOR PUBLICATION]

  4. [NOT FOR PUBLICATION]

  5. [NOT FOR PUBLICATION]

  6. [NOT FOR PUBLICATION]

  7. [NOT FOR PUBLICATION]

GIPA 3

  1. [NOT FOR PUBLICATION]

Further documents disclosed on 26 May 2023

  1. [NOT FOR PUBLICATION]

  2. [NOT FOR PUBLICATION]

  3. [NOT FOR PUBLICATION]

  4. [NOT FOR PUBLICATION]

  5. [NOT FOR PUBLICATION]

  6. [NOT FOR PUBLICATION]

  7. [NOT FOR PUBLICATION]

  8. [NOT FOR PUBLICATION]

  9. [NOT FOR PUBLICATION]

GIPA 1

  1. [NOT FOR PUBLICATION]

  1. [NOT FOR PUBLICATION]

  2. [NOT FOR PUBLICATION]

  3. [NOT FOR PUBLICATION]

  4. [NOT FOR PUBLICATION]

  5. [NOT FOR PUBLICATION]

  6. [NOT FOR PUBLICATION]

GIPA 2

  1. [NOT FOR PUBLICATION]

GIPA 3

  1. [NOT FOR PUBLICATION]

  2. [NOT FOR PUBLICATION]

  3. [NOT FOR PUBLICATION]

  4. [NOT FOR PUBLICATION]

  5. [NOT FOR PUBLICATION]

  6. [NOT FOR PUBLICATION]

  7. [NOT FOR PUBLICATION]

  8. [NOT FOR PUBLICATION]

  9. [NOT FOR PUBLICATION]

  10. [NOT FOR PUBLICATION]

  11. [NOT FOR PUBLICATION]

  12. [NOT FOR PUBLICATION]

  13. [NOT FOR PUBLICATION]

  14. The confidential hearing then concluded.

Resumption of the open hearing

  1. When the open hearing resumed, the Tribunal advised the applicant of the following determinations:

  1. Document 1 of GIPA 2 should be disclosed to him subject to redaction of Mrs Spencer’s personal information under cl 3(a); and

  2. The documents sought under the summons to produce documents filed on 19 April 2023 are privileged under ss 118 and/or 119 of the Evidence Act and would not be disclosed to him.

Evidence of Ms Salviejo

  1. Ms Stephanie Carol Salviejo was called and sworn. She was provided with a copy of her decision dated 8 June 2022 and she was then cross-examined at length by the applicant. I have set out the cross-examination in detail as it was difficult to follow at times:

Applicant: Did you undertake any search, forget who you sent it to, of documents or of information that would you thought support s 109?

Witness: Well, obviously to prepare a chronology I would have, yes. Can you let me finish this time? Obviously, to prepare a chronology, I needed to research all of the previous matters that had been before, like, sorry, that Council had been involved in regarding yourself, so yes, if you're talking about did I research anything? Yes, I did prepare that chronology.

Applicant: Did you? Did you read submissions which had been made by me of Council’s actions in respect to the DA?

Witness: I can't recall reading them, no, because it wasn't in my area.

Applicant: So did you get, did you research the history of the development applications. Were they not in your area?

Witness: No, I didn't. No, I've said they weren't in my area.

Applicant: Did you ever acquire information that I had made scurrilous statements about staff?

Witness: Yes, I think that was in the last lot of documentation we received before I left Council. There were, and I can't recall, I don't have the email here, but I do recall getting quite upset about language you had used about both myself and Angela and our capabilities. That really offended me.

Applicant: So it was limited to the GIPA application and you don't recall what that was?

Witness: No, I don't.

Applicant: And your role in respect of the GIPA application ceased when you left on the 11th of May 2023, that's correct? We now know, shortly thereafter, Council has produced documents and reconsidered your decision as well as the other decisions of Miss Critcher. You were aware of that were you not? You were not part of what might be called “the revision exercise” that took place within Council concerning the determination on the non-release of the documentation?

Witness: When? When did this happen?

Applicant: Well, I'm... did it happen?

Witness: I don't know. You're telling the story. I left on the 11th of May. I have not been involved in anything with Kiama Council since that date.

Applicant: I'm sorry, before you left.

Witness: That's not what you said.

Applicant: No, no, I'm sorry. I'm sorry, before you left, were you in involved in any reassessment by Kiama Council of the determinations made by you and…

Witness: Yes, I was. From memory there was a discussion with our lawyers via Teams and I think they mainly related to Angela's decisions and reviewing what information we might consider releasing.

Applicant: So did you consider… you don't recall that the one document that you withheld has also now been released. Were you aware of that?

Witness: No, I wasn't. Aware of that? When did that happen?

Robertson: So if it's the one document, the subject of this GIPA application that was withheld, that was disclosed on the 26th of May 2023.

Witness: OK. So that's the decision I made, because I was only referring to one document in my decision. So that was the 26th of May 2023, after I'd left Council. So no, I had no idea that had been released.

Applicant: The schedule of documents which was sought… at page 346 of my Affidavit (also in Ms Critcher’s Exhibit AC01) - You have your determination there and you see on page two there you summarise there were two documents initially and you released none.

Witness: Yes, yes.

Applicant: Is that right?

Witness: That's correct.

Applicant: And the second dot point was “any document considered or used by the decision maker to assess reliance on section 14(3)(a)?”

Witness: That’s quoting from your application, yes.

Applicant: Did you approach Miss Critcher at any stage to find any document that she may have used or considered?

Witness: When she made her determination all of those documents would have been contained within a folder on Council's electronic Content Management System and we also had a folder on the network drive, so...

Applicant: Answer the question please.

Witness: I'm trying to yes, …

Applicant: You're telling us what documents exist somewhere else.

Witness: Because I'm saying that, Oh, my goodness. No, I didn't approach Ms Critcher.

Applicant: You would have approached Ms Critcher in order to find out what documents she considered or used? You would have to approach her, wouldn't you?

Witness: That's what I was trying to explain.

Applicant: Well, the fact there is a library of documents doesn't mean that she considered or used all of those documents that might be in a library, does it?

Tribunal: Is that a hypothetical?

Applicant: Well, you'd agree with me that the fact that documents exist in folders or various folders doesn't tell you as to what Ms Critcher considered or used?

Witness: No, I wouldn't agree with that.

Tribunal: And I'm disallowing this because the only person that can possibly answer that question is not the person in the witness box.

Applicant: No, no, that's not the issue here. It is. The issue is search.

Tribunal: No, you are asking this witness….

Applicant: It is. Whether she did any searching for that document.

Tribunal: No, what you asked this witness was whether or not Ms Critcher considered all the documents in the database. That is quite a different matter.

Applicant: All right, I will if you please. Do you not agree that the second dot point on this page is referring to a decision maker. Who is that decision maker in respect of that.

Witness: Angela, Miss Critcher.

Applicant: And how would you find out what documents she considered or used?

Witness: Because there are certain processes in Council that are adhered to in relation to GIPA applications and each GIPA application has a separate folder on the network and everything relating to that application was put into that folder and that's where I would have searched for them.

Applicant: Well, are you are you are you saying there were no such documents in that folder?

Witness: No, I'm not saying that at all.

Applicant: Well, I'm asking.

Witness: Oh my goodness.

Applicant: How? How, how? How was it even that there are documents which you believe Ms Critcher would have used because of the nature of her decision. How was it that you did not identify those documents in your determination?

Witness: Well, its my determination and I'm just trying to say that in paragraph 2 on page 347, I've written that this decision is specific to withholding of document 1 listed in the schedule attached to the original notice dated the 8th of June 2022, because from memory no other documents were raised as a matter of concern by the IPC. That's why I honed in on that one document. I've written this decision in relation to one document.

Applicant: Indeed, but you were reconsidering the determination because of the request I made on the 21st of April were you not?

Witness: Mm-hmm. Yes, I was.

Applicant: Whether or not there were documents in full under the second heading did you?

Witness: No. I would have done that because of the recommendations in the IPC decision, which you said to me earlier that I should be considering when I'm making my decision, which is what I did.

Applicant: We're reconsidering, not the IPC decision, you were reconsidering the application were you not?

Witness: Yes, I was.

Applicant: And you failed to…

Tribunal: Excuse me. Her evidence was that she acted in accordance with the recommendations made by the IPC. Please, let's be fair to the witness…

Witness: And I state quite clearly in my decision, no additional searches were required. No additional searches were required is what it says in my decision.

Applicant: What searches it did Ms Critcher do?

Witness: I can't answer for Miss Critcher…

Applicant: Did you make any inquiries of Miss Critcher as to what searches she made?

Tribunal: That has been asked and answered previously.

Applicant: No, it hasn't.

Witness: Yes, I think it has. And my answer was ‘no’.

Tribunal: The witness’ evidence is that she looked at all the documents in the Council's database, which had been received in respect of the application, and that she did not make any specific inquiries with Miss Critcher because she was conducting the review. Now can we move on please? …

Applicant: You say at the bottom of page 348, no personal factors were provided.

Witness: That's correct.

Applicant: Right. Was there anything to stop you asking as to what personal factors might be known?

Witness: I was reviewing the decision of Angela Critcher. I wasn't dealing with your original GIPA application that had been dealt with by Miss Critcher.

Applicant: Which found personal factors.

Witness: I don't know. Can you refer me to the decision and I'll be able to tell you, or your application form.

Applicant: At the bottom of page 272.

Tribunal: That's the decision dated 8th June 2022?

Witness: Mine commences at 282.

Applicant: Oh sorry, I've got… well that might be the subsequent decision. Whether or not whether it was in the application or not, it was clear enough from Miss Critcher’s determination that she was able to determine personal factors.

Tribunal: We're talking about the review of the GIPA decision not to release the document in response to 3rd party consultation. That's what this decision is about. It's not a decision about seeking to know why access had been previously denied using third party Information and consultation.

Witness: What's the question?

Applicant: Why did you not consider if you, if you were reconsidering Ms Critcher’s statement that those personal factors could not have been used by you, if you were making a bona fide decision.

Witness: I didn't choose…

Tribunal: Excuse me. You can ask questions, but you can ask them properly, but that is not in a bullying manner. I will not permit it.

Applicant: I put to you that in denying the existence of personal factors in your determination you were seeking to carve out an excuse for doing nothing in terms of giving information, weren't you? Because what you then went on to decide did you not?

Tribunal: OK. Can someone please refer me to the actual original GIPA application and we'll see.

Applicant: I'm I'm sure it's here I just don't know where to find it…

Robertson: Ex 1 being Miss Critcher's statement of 19 October 2022 and Exhibit AC-01.

Witness: So there's no personal factors that I can see there under question 3 – “… address and any relevant personal factors”.

Applicant: You say that you've looked through all of the applications.

Witness: No, I didn't.

Applicant: Right, you've made a schedule of all the GIPA applications previously made, both formal and informal.

Witness: That's correct.

Applicant: You, you, you understood about the DA's that had been lodged by Mr & Mrs Spencer that had come before Council.

Witness: I was aware there were applications, but I wouldn't say I understood them.

Applicant: You you had. Had had you read? Had you read any of the documentation which Miss Critcher had agreed to release?

Witness: Had I read it?

Applicant: Any of the documentation that Miss Critcher had agreed to release.

Witness: No, not read it in full, no.

Applicant: Not in full.

Witness: I was aware it was there. I would have glanced at it, but I wouldn't call that reading it.

Joseph: Well, you wouldn't need to be Einstein to work out…

Tribunal: You may ask the question. You may not continue to badger the witness.

Applicant: Are you? Are you seriously suggesting with that body of information and access to such information, you could not find any personal factor that would trigger an interest in the decision making of Council by me.

Witness: I referred to…

Tribunal: Mr Joseph. The document speaks for itself. This is in your case, it's your application and there are no personal factors. There is no requirement on this witness to search out what may or may not be your personal factors.

Applicant: No, please. You. You, you, you, you, you, you, as usual, are putting the onus on me. The onus is on the Council, they they have the information.

Tribunal: Well, no. You are asserting you are, excuse me, alleging bad faith and or misconduct. You bear the onus of proving that...

Applicant: They have the information and they're closing their eyes for that information. No, I don't. You do. The Tribunal makes that decision, not me.

Tribunal: And I will make that decision based on the evidence.

Applicant: I know you made that clear, but yes, but...

Tribunal: The document speaks for itself.

Applicant: I didn't. I'm not cross-examining on the document, that document.

Tribunal: No, but you're putting it to her and this is her response.

Applicant: I put to the witness that she was aware of personal factors.

Tribunal: You are putting to this witness… Your questions are put on the basis that it is somehow the respondent’s responsibility to ascertain personal factors when there are none set out in the GIPA application, and that's wrong. You may continue to question the witness.

Applicant: You, you say, say.

Tribunal: But you must have a proper basis for the questions.

Applicant: The basis is she…

Tribunal: She said she did not know what your personal factors were.

Applicant: No, you you, she knew, she knew, she'd done a search.

Witness: Can I clarify? I would have referred to the Form, that's all I would have referred to when…

Tribunal: This witness has previously given evidence that she did not have access to the information regarding the development applications. Her involvement is in relation to responding to the GIPA application. You were questioning her about information that was in the development applications. That is not a fair question and I will not allow it.

Applicant: We'll go. We'll go the long, we'll go the long way.

Tribunal: We are going to take a break until 11:50 am. When I come back, I expect that the applicant will have composed himself and will decide to conduct himself in an appropriate manner.

  1. When the hearing resumed, the applicant continued to question Ms Salviejo about “personal factors”, as follows:

Applicant: We were dealing with the concept of personal factors. Did you come to the view that there were no personal factors involved in my application.

Witness: You didn't disclose any on your application form.

Applicant: There were no personal factors involved in my…

Witness: No, no, no, no, the document says.

Applicant: I'm not asking about the document.

Witness: Well, I'm referring to it.

Applicant: Well, you might let me do that.

Tribunal: No personal factors were provided in your application.

Applicant: Yes, I understand that. We've been there and I've moved on to another matter. Thank you. I'll ask it again.

Did you? Despite what I what is said in the document which the Senior Member has taken you to… Is it the fact that you came to the view in your determination that there were no personal factors involved in my application/my GIPA application which you reconsidered, yes? That it is the sole reason for you coming to that view… The fact that I did not disclose such personal factors in the application. Do you not consider it is highly irresponsible on your part to assume that because an applicant fails to reveal something in a document, that is the equivalent of what is in fact the obvious.

Tribunal: I don't understand that question. Please rephrase it.

Applicant: Do you did you consider, putting aside the application or what was on the application or what was not on the application, there could be personal factors involved in my application.

Witness: No, I did not.

Applicant: And the reason why you did not was because you did not wish to in any way advance the GIPA application.

  1. The respondent relied upon cl 3(a) of the table to s 14(2). I am satisfied that the respondent properly applied cl 3(a) and that the redacted information is a person’s personal information.

Attachments to the emails in documents numbered 14 and 17, and document no 16

  1. The respondent relied upon cl 6(1) of the table to s 14(2), namely that disclosure of the information could (disregarding the operation of the GIPA Act) reasonably be expected to constitute a contravention of the Copyright Act.

  2. The attachments to documents 14 and 17 were “DA submissions” and the respondent redacted photographs and other diagrams, but offered to provide the applicant with “view only” access to the unredacted documents in accordance with the Tribunal’s decision in Sandy.

  3. I am satisfied that the respondent properly relied upon cl 6(1) in relation to the redacted documents.

Documents 20, 21 and 22

  1. These are commercial invoices and the evidence before me indicates that information (including bank account details and commercial rates and the amount charged) was redacted in order to protect the issuer’s legitimate business, commercial, professional or financial interests under cl 4(d) of the table to s 14(2).

  2. Based upon the information before me, I am satisfied that cl 4(d) was properly applied to the redacted information.

Document 30

  1. The applicant withheld the information on multiple grounds, namely:

  1. Clause 1(e) of the table to s 14(2), on the basis that its contents 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;

  2. Clause 1(h) of the table to s 14(2), on the basis that its contents could reasonably be expected to prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency; and

  3. Clause 5 of Sch 1, on the basis that it is subject to legal professional privilege for which there is a conclusive presumption against disclosure.

  1. Having examined the document, I am satisfied that cll 1(e) and 1(h) were properly applied by the respondent. However, as I found during the confidential hearing that it was subject to LPP, there is a conclusive presumption against disclosure under cl 5 of Sch 1.

Documents 31, 32, 34, 35 & 36

  1. The respondent withheld the documents pursuant to cll 1(e) and 1(h). Based on the evidence before me, I am satisfied that these considerations have been properly applied.

Documents 37, 38, 39, 40, 41 & 42

  1. These documents were withheld due to Copyright issues under cl 6(1) of the table to s 14(2) of the GIPA Act and the respondent offered to provide the applicant with “view only” access based on the decision in Sandy.

Documents 26, 27, 28, 29, 56a & 57

  1. These documents were released to the applicant in full.

Documents 43, 44 & 45

  1. These documents were not released on the basis that they were publicly available.

Documents 52, 54, 55 & 56b

  1. These documents were not released because the applicant already had access to them.

  2. I have determined that it is appropriate to afford each of these considerations significant weight, with the exception of cl 5 of Sch 1 which mandates that there is a conclusive presumption of a public interest against disclosure.

Balancing the public interest

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

  2. For the reasons set out above, I am 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.

  3. On that basis, I am satisfied that the correct and preferable decision is to affirm the respondent’s decision dated 12 April 2022, as varied on 10 April 2022 and 26 May 2023.

GIPA 2

Public interest considerations in favour of disclosure

  1. In my view, the same public interest considerations in favour of disclosure under s 12(2) apply to this GIPA request, namely:

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

  1. I repeat my previous comments regarding the applicant’s failure to raise any additional public interest factors in his submissions and in relation to the issue of his personal factors.

  2. Based upon the extensive evidence before me, I am satisfied that these public interest considerations should be given strong weight and that the applicant’s personal factors (disclosed in Ex A) should be given moderate weight.

Public interest considerations against disclosure

Document 1

  1. This document was withheld under cll 1(d) and 1(g) of the table to s 14(2). However, following the confidential hearing on 5 July 2023, the document was released to the applicant by order of the Tribunal with redactions of personal information relating to Mrs Spencer under cl 3(a) of the table to s 14(2).

Documents 2, 3, 4, 5, 12a, 14, 15 (the email), 16a & 17a

  1. The respondent relied upon cl 3(a) of the table to s 14(2). I am satisfied that the respondent properly applied cl 3(a) and that the redacted information is a person’s personal information.

Documents 6, 8a, 8b, 9, 10, 12c, 13a, 13c & 17b

  1. These documents were released in full.

Document 7

  1. This document was not released as it was publicly available.

Document 11

  1. This document was not released as the applicant already had access to it.

  2. Based upon the extensive evidence before me, I am satisfied that these public interest considerations should be given strong weight and that the applicant’s personal factors (disclosed in Ex A) should be given moderate weight.

Balancing the public interest

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

  2. For the reasons set out above, I am 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.

  3. On that basis, I am satisfied that the correct and preferable decision is to affirm the respondent’s decision dated 6 May 2022, as varied on 26 May 2023.

GIPA 3

Public interest considerations in favour of disclosure

  1. In my view, the same public interest considerations in favour of disclosure under s 12(2) apply to this GIPA request, namely:

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

  1. I repeat my previous comments regarding the applicant’s failure to raise any additional public interest factors in his submissions and in relation to the issue of his personal factors.

  2. Based upon the extensive evidence before me, I am satisfied that these public interest considerations should be given strong weight and that the applicant’s personal factors (disclosed in Ex A) should be given moderate weight.

Public interest considerations against disclosure

  1. However, it is important to note that the only document that was withheld in Ms Critcher’s determination dated 8 May 2022, was the third party consultation document that was released to the applicant subject to the redaction of personal information under cl 3(a) of the table to s 14(2). Two other documents that were located by Ms Critcher were not released on the basis that the applicant already had access to them.

  2. This decision was the subject of a recommendation by IPC that the respondent reconsider its decision regarding document 1 by way of an internal review and on 18 August 2022, Ms Salviejo made a decision that withheld part of the information on public interest grounds.

  3. I repeat my previous comments regarding cl 3(a) of the table to s 14(2) and I am satisfied that this factor should be given strong weight and that the applicant’s personal factors should be given moderate weight.

Balancing the public interest

  1. I am satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by cl 3(a) in the Table to s 14.

  2. On that basis, I am satisfied that the correct and preferable decision is to affirm the respondent’s decision dated 8 May 2022, as varied on 18 August 2022 and 26 May 2023.

Section 112 of the GIPA Act

  1. Having now completed the administrative reviews that are before me, it is necessary to consider whether it is appropriate to bring the matter to the attention of the relevant Minister because an officer of the respondent has failed to exercise in good faith a function conferred upon them by or under the GIPA Act.

  2. The applicant made extensive submissions to the effect that the decisions made by Ms Critcher and Ms Salviejo were not made in good faith, but rather were infected by bias (perceived or actual) such that the matter should be referred to the Minister.

  3. In my view, the decisions made by Ms Critcher and Ms Salviejo are not optimal, as they appear to lack detail that displays their path of reasoning in relation to the public interest considerations for and against disclosure of the disputed information.

  4. However, each of the reviewable decisions indicate the public interest considerations that were relied upon and the weight that was afforded to each and the path of reasoning was sufficient as to enable the applicant to prepare and lodge extensive submissions with the Tribunal. In my view, the lack of detail is not evidence of bad faith on the part of the decision makers.

  5. In my view, given the lengthy prior history between the applicant, the respondent and the Spencers, determining the GIPA requests that are before me would have been challenging to say the least. In my view, both Ms Critcher and Ms Salviejo made a real and genuine attempt to answer the requests for information and to perform their functions correctly.

  6. Therefore, based upon the decision in Saggers, I am satisfied that neither Ms Critcher nor Ms Salviejo failed to act in good faith in discharging their duty to properly determine the GIPA requests and I decline to exercise the discretion conferred upon me by s 112 of the GIPA Act

Conclusion

  1. In relation to GIPA 1, I am satisfied that the correct and preferable decision is to affirm the respondent’s decision dated 12 April 2022, as varied on 10 April 2022 and 26 May 2023.

  2. In relation to GIPA 2, I am satisfied that the correct and preferable decision is to affirm the respondent’s decision dated 6 May 2022, as varied on 26 May 2023.

  3. In relation to GIPA 3, I am satisfied that the correct and preferable decision is to affirm the respondent’s decision dated 6 May 2022, as varied on 26 May 2023.

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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: 11 September 2023

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Cases Citing This Decision

2

Holman v NSW Rural Fire Service [2025] NSWCATAD 54
Darley v City of Parramatta [2024] NSWCATAD 271
Cases Cited

29

Statutory Material Cited

9

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63
Australian Broadcasting Corporation v O'Neill [2006] HCA 46
Re Luck [2003] HCA 70