McEwan v Port Stephens Council

[2022] NSWCATAD 148

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McEwan v Port Stephens Council [2022] NSWCATAD 148

Hearing dates:

On the papers

Date of orders:

9 May 2022

Decision date:

09 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) I dispense with a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

(2) The application to revoke orders made under s 64(1) of the NCAT Act by the Tribunal in proceedings known as Webb v Port Stephens Council [2019] NSWCATAD 47 is dismissed.

Catchwords:

Administrative review – Non-publication orders made under s 64 of the NCAT Act in prior proceedings – whether circumstances require the variation or revocation of the non-publication orders – principle of open justice and public interest – prior orders not revoked.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Federal Court of Australia Act 1976 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46 at [61]

BJQ v Children's Guardian [2016] NSWCATAD 99

BJQ v Children's Guardian (No 2) [2016] NSWCATAD 291

Council of the New South Wales Bar Association v BRJ (No 3) [2015] NSWCATOD 159

Hogan v Australian Crime Commission (2010) 240 CLR 651; (2010) 84 ALJR 479; (2010) 267 ALR 12; (2010) 75 ATR 794; [2010] HCA 21 at [30]

Howell v Macquarie University [2007] NSWCATAP 10 at [85]

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1987) 5 NSWLR 465 at 476-477; 5 NSWLR 465

McEwan v Port Stephens Council [2021] NSWCATAD 110

NAB v Meyers [2008] NSWSC 247 at [8]

Raybos Australia Pty Ltd v Jones (1987) 2 NSWLR 47 at 55; 2 NSWLR 47

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81]

Webb v Port Stephens Council [2019] NSWCATAD 47

Webb v Port Stephens Council [2020] NSWCATAP 152

Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb [2020] NSWCATAD 81

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Paul McEwan (Applicant)
Port Stephens Council (Respondent)

Representation:

T Webb (Agent) (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2016/00378193

Publication restriction:

Not applicable

REASONS FOR DECISION

Background

1. In 2016, Paul McEwan (the applicant) and Telina Webb each lodged applications for review of decisions made by Port Stephens Council (the respondent) under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The Tribunal made orders for the matters to be heard together and evidence in one to be evidence in the other and directed that evidence given in prior proceedings could be used in those matters.

2. On 27 March 2019, in proceedings known as Webb v Port Stephens Council [2019] NSWCATAD 47, Senior Member Hamilton SC finally determined that application and he made the following non-publication orders:

1.   The order made in the hearing that part of the hearing be conducted in private is confirmed (s 49(2) CAT Act).

2. Pursuant to s 64 CAT Act it is ordered that:

a.   the publication of evidence given before the Tribunal in private, and of matters contained in confidential documents received in evidence by the Tribunal, and of the transcript of the private hearing; and

b.   the disclosure to applicants in the proceedings of confidential evidence given before the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal, and of the transcript of the private hearing,

be prohibited.

3. On 21 February 2022, the applicant filed a Miscellaneous Application (the current application), which seeks revocation of the non-publication orders made on 27 March 2019. The application named Ms Webb as the applicant’s agent. The respondent opposes the application.

Relevant Statutory Provisions

4. Section 49 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) provides:

49. Hearings to be open to public

(1)   A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2)   The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

5. Section 50 of the NCAT Act provides:

50 When hearings are required

(1)   A hearing is required for proceedings in the Tribunal except—

(a)   in proceedings for the granting of leave for an external or internal appeal, or

(b)   in connection with the use of any resolution processes in proceedings, or

(c)   if the Tribunal makes an order under this section dispensing with a hearing, or

(d)   in such other circumstances as may be prescribed by the procedural rules.

(2)   The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)   The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

(a)   afforded the parties an opportunity to make submissions about the proposed order, and

(b)   taken any such submissions into account.

(4)   The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5)   This section does not prevent the Tribunal from holding a hearing even if it is not required.

6. Section 64 of the NCAT Act provides:

64   Tribunal may restrict disclosures concerning proceedings

(1)   If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders -

(a)   an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)   an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c)   an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)   an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2)   The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3)   The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4)   For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Is a hearing required?

7. On 3 March 2022, the Registrar wrote to the parties in accordance with s 50(3) of the NCAT Act. She ordered the applicant to file and serve a copy of the current Application and his submissions upon the respondent by 11 March 2022 and directed the respondent to file and serve its submissions in reply upon the applicant by 21 March 2022.

8. The Registrar advised the parties that the Tribunal may consider the application on the papers and ordered them to make any submissions about whether they objected or consented to dispensing with a hearing under s 50(2) of the NCAT Act by 21 March 2022.

Applicant’s case

9. The applicant sought an open hearing of the current application and filed an Affidavit, which he swore on 11 March 2022, and written submissions from his agent dated 21 March 2022. The submissions are lengthy, but I have endeavoured to summarise them as follows.

1. An open hearing is necessary to enable the respondent’s Governance Manager, Mr Wickham, to be cross-examined. He has full knowledge of the facts, matters and circumstances of this case and filed confidential and open statements with the Tribunal, which are relevant to the current application. He also provided confidential submissions and/or additional documentation during the hearing by the Appeal Panel in May 2018, and during the hearing on remittal in December 2018. The Tribunal should not expect that it will be suitably equipped to make a fully informed decision in response to this application without having the opportunity to hear Mr Wickham’s responses to previous and current statements, affidavits and submissions.

2. The applicant, who is not legally represented or legally trained, would be prejudiced if the respondent were permitted to file Statements, Affidavits and Submissions that were not subject to test “in open session”.

3. The Tribunal has jurisdiction to hear the current application in an open hearing under ss 28, 49, 50 of the NCAT Act and the principles of open justice should not be disregarded or given secondary importance. An open hearing “would give reassurance as to the Tribunal’s openness and transparency and would maintain confidence in the Tribunal’s decision-making processes”.

4. The conduct of these proceedings in an open hearing “is likely to result in embarrassing and damaging facts being disclosed to the Tribunal”. This does not justify or qualify for rejection of an open hearing.

5. The respondent is a “powerful litigant” with access to vast resources of public monies expendable on large high profile legal teams, unlike the applicant, and he would be greatly disadvantaged “if the hearing was conducted on the papers and the respondent’s evidence were not able to be tested”.

6. There are numerous examples of the respondent providing misleading statements and submissions to the Tribunal in continued efforts to influence decision-makers, most of which were successful. The applicant asks the Tribunal to ensure equity between the parties and ensure the evidence provided by the respondent can be tested, which can only be done in an open hearing.

7. While the Tribunal is not bound by the rules of evidence, there is an obligation to make findings of fact and to form its decisions based on material that is logically probative. The evidence filed by the respondent must be seen to be logically probative, or methodically tested, something that cannot be confidently done by the Tribunal “absentia of the parties but most particularly the applicant”.

Respondent’s case

10. The respondent did not file any evidence in relation to the current application. However, on 21 March 2022, the respondent’s solicitor filed submissions in reply, which largely focussed on the substantive issue of whether the non-publication orders should be revoked.

11. However, with respect to s 50 of the NCAT Act, the respondent argued that the current application can be determined on the papers because it does not wish to cross-examine the applicant, it has not called any witnesses in these proceedings, and the issue before the Tribunal does not call for a detailed examination of numerous or lengthy documentation.

12. On 23 March 2022, the respondent’s solicitor filed further submissions with respect to s 50 of the NCAT Act, which I have summarised below:

1. Determining the matter on the papers would be consistent with s 36(4) of the NCAT Act and would ensure that the Tribunal is not used as a platform to conduct a public enquiry into unsubstantiated allegations against the respondent and its staff, which are irrelevant to the current application and beyond the jurisdiction of the Tribunal.

2. The real issue for determination is whether there are circumstances that justify the Tribunal revoking orders made pursuant to s 64(1) of the NCAT Act by differently constituted Tribunals. This issue should be determined by an enquiry as to whether the circumstances have changed since the making of the orders under s 64(1), and if so, whether that change in circumstances is sufficient to justify revocation. The applicant’s submissions do not explain how a hearing would assist the Tribunal to determine the real issue in these proceedings.

3. Section 36(4) of the NCAT Act is also relevant and it will be apparent to the Tribunal that requiring the parties to appear for a hearing would be inconsistent with that provision given the nature of the proceedings and the real issue in dispute.

4. As Mr Wickham has not given evidence in the current application the applicant has no right to cross-examine him and it will oppose any application for him to be summoned to give evidence, as his involvement in the matter is irrelevant to the real issue for determination.

5. It will be clear from the applicant’s submissions filed on 11 March 2022 and 21 March 2022, respectively, that the real purpose of the current application is to ventilate unsubstantiated allegations against the respondent and Mr Wickham personally, which are irrelevant to the current application and beyond the jurisdiction of the Tribunal.

6. The applicant’s argument regarding open justice in these proceedings is based on a misunderstanding of that principle. The Tribunal made no order under s 49(2) of the NCAT Act that a hearing of the current application is to be held wholly or partly in private and the issue is whether a hearing should be conducted. Even if it could be said that determining a matter on the papers is contrary to the principle of open justice, s 50(4) of the NCAT Act is clearly a statutory exception.

7. In reply to the applicant’s arguments regarding fairness and equity, the history of the matter is irrelevant to the question of whether circumstances have changed since the Tribunal made the non-publication orders, so as to justify their revocation.

8. The respondent has not filed any evidence in these proceedings which needs to be tested and it is not for this Tribunal to test evidence that was the subject of prior applications which have been finally determined.

Applicant’s submissions in reply

13. On 31 March 2022, the applicant’s agent filed submissions in reply. A significant part of these submissions comprise an objection to the respondent’s submissions on the basis that they were filed late and the applicant argued that the Tribunal should “strike out and completely disregard” these submissions for reasons that I have summarised as follows:

1. The respondent has “continually filed documentation in contravention of the established protocols” and there is a “definitive pattern of behaviour and attitude of disrespect towards the Tribunal exhibited by the respondent and its solicitor, effectively thumbing their noses at the Tribunal’s directions and setting their own directions timetable as a result.” The applicant stated that he “…rightfully expects the Tribunal to take a very dim view of such behaviour on the part of the respondent and its solicitor”.

2. While the NCAT Act does not address the issue of striking out statements, submissions or evidence, he relied upon decisions of the Supreme Court of NSW and NSW Court of Appeal, which related to the Uniform Civil Procedure Rules, as providing “guidance and precedent” on this issue. In particular, he relied on the decision in NAB v Myers (2008) NSWSC 247, at [8], as follows:

Rule 14.28(1) of the Uniform Civil Procedure Rules provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of process of the Court.

3. The respondent has not disclosed any reasonable defence for the tardiness of its “due filings”, including any evidence of any special arrangement for the lodgement of documentation, and it has “has embarrassed and caused undue delay to the proceedings”. It has abused the process of the Tribunal by disregarding the established protocols and directions, on the unreasonable expectation that the Tribunal would make allowances and afford favour to it as a result, “turning a blind eye”.

4. Section 36 of the NCAT Act is directly relevant to these submissions and a separate hearing on the issue of “strike out or rejection of the respondent’s submissions should not be a requirement for determination of this issue”. Further, ss 36(3)(a) and (b) of the NCAT Act make clear that the parties are under a statutory obligation to comply with directions of the Tribunal and the respondent has breached s 36(3)(b).

14. However, if the Tribunal decided not to strike out or reject the respondent’s submissions, the applicant argued to the effect that:

1. The current application is not vexatious or without substance and it is permissible under s 64(3) of the NCAT Act.

2. He has at all times acted within the laws and rules applicable to the making of this application.

3. Section 64(3) does not define the qualifying circumstances for such an application, but he has provided “ample justification and validation” for it.

4. On 19 July 2018, in response to a formal access application, the respondent provided unredacted access to several pages of Mr Wickham’s confidential statement dated 9^th September 2016. That statement is currently under the protection of the Tribunal’s Not-for-Publication orders. Further, on 24 June 2019, in response to a formal access application, it provided unredacted access to several page of Ms Marshall’s confidential submission dated 9^th September 2016. The release of these documents constitutes a concession that the documents that were the subject of the non-publication orders did not contain confidential information and any information the release of which could constitute a breach of s 107 of the GIPA Act. If that is not the case, the respondent has breached the non-publication orders and s 107 of the GIPA Act and the Tribunal should take a very dim view of its actions.

5. There is no evidence before the Tribunal to support the respondent’s notion that the Tribunal received the “not-for-publication” documents on the understanding they would be kept confidential, due to the fact no decision had been made as to the confidentiality of any document at the time of receipt by the Tribunal. It may be that the respondent gave some reassurances or promises of confidentiality to certain individuals, but this does not give it seniority or authority over the Tribunal.

6. No person, including Mr Wickham, has at any time come forward to the Tribunal and objected to the current application and there is no evidence to support the respondent’s submissions.

7. The applicant acknowledges the Tribunal’s ability to accept and consider confidential evidence under the NCAT Act 2013, but considers the circumstances in this instance constitute a gross breach of the Tribunal’s trust by the respondent and “…There can be no doubt, with the provision of information that has come to light since the orders made on 8 September 2017, that the Tribunal is now able to assure the public of its approach to procedural fairness and open justice.”

1. There can be no doubt, with the provision of information since the orders made by SM Montgomery, SMs Durack and Higgins and SM Hamilton, that the Tribunal is now in a position to be able to properly consider the ongoing relevance of the non-publication orders.

2. The applicant “insists” that the entirety of his affidavit sworn on 11 March 2022 be retained for consideration by the Tribunal. It is a truthful representation and chronology of events between the parties and the information is “pertinent to the Tribunal having a full and complete understanding of the circumstantial foundation of the proceedings the subject of the Not-for-Publication orders a full and complete understanding of the conduct and intention of the respondent in providing information to the Tribunal that was known at all times to be false and misleading”. He does not seek a review of any of the conduct, actions, or instances reports, and the information is provided to properly inform the Tribunal, perhaps for the first time.

3. The respondent has had continual access to vast amounts of public resources and the costs associated with responding to NCAT proceedings have at no time prior to the current application appeared to cause it any concern whatsoever. It has had adequate time to respond to any issue raised that might cause concern, and no further allowance of time should be permitted as this would not be an example of procedural fairness or equity between the parties.

4. The respondent should not be afforded any anonymity in these proceedings. It has not put forward any case to justify such action by the Tribunal. Public money is not for the personal use of public servants and the respondent’s use of its solicitor to plead for anonymity seeks to use public money for personal use. It has had ample opportunity to make a statement or sworn affidavit for the purpose but has declined to do so. Indeed, it has at no time had any hesitation in publicly naming and naming the applicant with false accusations that are now embedded in case law, accusations the respondent knew at all times to be false.

5. The absence of any evidence or statement or sworn affidavit from any individual, and the late filing of submissions, indicate that the respondent has no interest in the outcome of the current application. It has “left the task solely in the hands of its solicitor, abandoning him”. Therefore, any order for anonymity should be entirely rejected by the Tribunal.

6. The applicant understands that s 64(3) of the NCAT Act means that the Tribunal can vary or revoke an order under s 64(1) from time to time. The Act does not define “from time to time” and as such the Tribunal is not confined to reconsidering an order under s 64(1) under appeal alone.

7. The intention of the current application is not to challenge the application of s 49(2) of the Act to the part of the proceedings that was held in private. However, s 64(1) addresses various scenarios pertaining to prohibiting or restricting the publication or broadcasting of any report of the proceedings. “Publication” is readily defined as “the action of making something generally known”. “Broadcasting” is readily defined as “the act of transmitting speech, music, visual images, etc.”

8. The applicant asks the Tribunal to agree that s 64(1) adequately addresses the parameters of s 49(2) and that s 64(3) is applicable under the circumstances. Revoking the non-publication orders does not reveal any individual’s personal information and the respondent does not fully comprehend either s 64(3) of the NCAT ACT or s 107 of the GIPA Act, as the purpose of the current application is not to seek the personal information of any individual.

9. The respondent’s assertions from paras 53 to 56 that procedural fairness and open justice are irrelevant considerations in this case can only be categorised as outrageous. These two principles are the foundation of the entire judicial system.

10. The respondent’s assertions at para 54 that the Tribunal had the benefit of the whole of the evidence of the matter between 2016 and 2019 is not sustainable given the new information that has come to light, which the respondent seeks to exclude from the applicant’s evidence. The applicant was at all times completely disadvantaged as he was not given any time to defend any claim against him.

11. The Tribunal was misinformed by the respondent at the time of imposing the non-publication orders. This has now been rectified and the applicant “legitimately seeks the revocation as a matter of his own public interest”.

12. There are extraordinary circumstances that support the granting of the current application. The respondent’s claim at para 65 that exceptional or extraordinary circumstances for the granting of an order under s 64(3) of the NCAT Act might only qualify on the death of an individual “is completely repugnant and can only be seen as desperate”.

13. The exceptional circumstances are that the respondent, by its officer Mr Wickham, provided false and misleading information to the Tribunal for the purposes of influencing several members of NCAT, which directly resulted in the non-publication orders. Mr Wickham was supported in his false and misleading claims by the respondent’s Head of Legal Services, Ms Marshall, who reiterated the claims in her submissions. Both individuals knew that the applicant had not acted in the manner claimed. Those actions were undertaken to prevent the release of open access information mandated for release and to secure the Tribunal’s affirmation of the respondent’s decisions.

14. The Tribunal’s decision in McEwan v Port Stephens Council [2021] NSWCATAD 110, was the result of the applicant confronting the respondent in open session concerning the ongoing claim for a serious risk of harm, saw the respondent’s claims totally discredited and disqualified. The respondent was confronted with Mr Wickham’s letter to the NSW Information & Privacy Commissioner, which falsely claimed that apprehended violence orders had been issued against the applicant and Ms Webb, that police had been called to their neighbourhood area due to disturbances involving them, and that they had personally attacked the respondent’s staff and presented a serious risk to public safety. The Senior Member found that “there is not a scintilla” of evidence that the applicant presented the harm claimed by the respondent.

15. The responsibility for the respondent’s continued application and abuse of s 14 Table 3(f) of the GIPA Act against the applicant rests entirely on the shoulders of the respondent, and Mr Wickham in particular.

Consideration

Late filing of submissions

15. While I note the applicant’s submissions regarding this issue, the applicant has not established that the late filing of the submissions by the respondent have caused him any real prejudice. On the contrary, in circumstances where the matter had not been listed for a hearing, the applicant has been clearly able to prepare and file extensive written submissions in reply.

16. I therefore reject the applicant’s application that the Tribunal should strike out or completely disregard the respondent’s submissions and I extend the time for filing of the respondent’s submissions dated 21 March 2022 and 23 March 2022 to the date of actual filing pursuant to s 41 of the NCAT Act.

Is a hearing required?

17. Under s 50(2) of the NCAT Act, the Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

18. The parties have provided extensive written submissions on this issue and the applicant also filed an Affidavit.

19. I have decided to admit the applicant’s Affidavit into evidence for the limited purpose of considering the chronology of the GIPA Act dispute between the parties that is set out in the document.

20. However, in my view, the applicant’s evidence in support of his allegations of misleading and/or deceptive conduct by the Respondent and/or Mr Wickham are not relevant to the issues that I must determine in relation to the current Application. Accordingly, I reject the tender of the Affidavit to the extent that it contains evidence of that nature.

21. Based upon the information contained in the applicant’s Affidavit and the parties’ extensive written submissions, I am satisfied that the issues before the Tribunal can be adequately determined on the papers and in the absence of the parties.

22. The guiding principle for the NCAT Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)). The parties have a duty to co-operate with the Tribunal to give effect to the guiding principle (NCAT Act, s 36(3)). I am satisfied that the guiding principle will be satisfied by determining the current application on the papers.

23. The respondent has advised the Tribunal that it does not wish to cross-examine the applicant. In any event, Mr Wickham has not filed any evidence in relation to the current application and I am satisfied that the applicant has no right to cross-examine him with respect to statements and/or evidence that he provided in relation to the prior proceedings as these were finally determined in March 2019.

24. Accordingly, I dispense with a hearing pursuant to s 50(2) of the NCAT Act.

Should the non-publication orders be varied or revoked?

The GIPA Act dispute between the parties has been finally determined

25. It is apparent from the chronology set out in the applicant’s Affidavit sworn 11 March 2022, the parties’ written submissions and the numerous published decisions of this Tribunal, that the GIPA Act dispute between the parties has a lengthy history.

26. There have been determinations by Senior Member Montgomery, which was appealed against and the Appeal Panel remitted the matter for redetermination. On 27 March 2019, Senior Member Hamilton SC finally determined the GIPA Act dispute and made the non-publication orders based upon the evidence that was before the Tribunal at that time.

27. The applicant now seeks revocation of those non-publication orders and argues to the effect that the respondent’s later disclosure of further information under the GIPA Act essentially supports findings to the effect that: (a) the information and evidence that it presented to the Tribunal, upon which the non-publication orders were based, was misleading; and (b) the “information” that was the subject of the non-publication orders was not confidential in nature.

28. I note that following the final determination on 27 March 2019, Ms Webb filed a further application for administrative review against the respondent and that this application was dismissed by Principal Member Marks: Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb [2020] NSWCATAD 81. Ms Webb then appealed against that determination: Webb v Port Stephens Council [2020] NSWCATAP 152 (Webb appeal).

29. In its decision in relation to the Webb appeal, the Appeal Panel discussed the history of the GIPA Act dispute between the parties and referred to the proceedings before Principal Member Marks as “the second Tribunal”. The Appeal Panel stated, relevantly,

5.   In final orders, the first Tribunal affirmed the Council’s decision in relation to some information and referred other documents back to the Council “for reconsideration so that they may be suitably redacted in accordance with these reasons.” When making a new decision, the Tribunal directed Council to “mask all personal information” and “all health-related information” identified by the Tribunal. We will refer to this decision as the “remittal decision.”

6.   The first Tribunal made the remittal decision on 27 March 2019. Ms Webb emailed Council two days later, and continued to seek information about whether Council had made a new decision on several further occasions. On 26 April 2019, the Council’s solicitor emailed Ms Webb advising her that the Council “is dealing with the remitted decision in accordance with the decision” of the Tribunal and that “a response will be provided in due course.” The Council’s solicitor concluded with the statement that, “. . . until that occurs we do not intend to respond to further correspondence on this issue.”

7.   On 15 May 2019, seven weeks after the remittal decision, Ms Webb filed a new application for administrative review of the Council’s failure to make a decision in accordance with the Tribunal’s remittal decision. In the application for administrative review, Ms Webb described the “decision for review” by stating, “I have no documentation from the agency.” Ms Webb submitted that the Council had 20 days to make a new decision and she was treating their failure to do so as a refusal to make a decision: GIPA Act, s 57(1). Ms Webb wrote in that application that she was “left with no other course of action . . . other than to commence the whole process all over again by lodging a further request for administrative review of the Council’s decision . . . ”

8. On the same day as she filed the application for administrative review, Ms Webb also filed an application for Council to be referred to the Supreme Court for contempt because of non-compliance with the remittal decision: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 73(5). On 28 June 2019, more than a month after Ms Webb had lodged these applications, Council made a decision in response to the first Tribunal’s remittal decision.

9. Six months later, on 12 December 2019, Council applied to the Tribunal for an order that Ms Webb be restrained from making unmeritorious access applications: GIPA Act, s 110.

10. A differently constituted Tribunal (the second Tribunal) decided to determine Ms Webb’s administrative review and contempt applications as well as the Council’s application that she be restrained from making unmeritorious applications, at the same time. The second Tribunal summarily dismissed both Ms Webb’s applications as vexatious and lacking in substance: NCAT Act, s 55(1)(b) and GIPA Act, s 109. The second Tribunal also made an order restraining Ms Webb from making unmeritorious applications. Ms Webb has appealed to the Appeal Panel from each of these decisions.

11.   …The second Tribunal had no jurisdiction to hear a new application for administrative review of the Council’s failure to make a decision within 20 days following the remittal decision. The appeal in relation to those proceedings is also dismissed…

17.   The second Tribunal noted that the basis for Ms Webb’s application for review was the fact that, as of 15 May 2019, Council had not complied with the first Tribunal’s remittal decision. The second Tribunal gave brief reasons at [37] as to why Ms Webb’s new application for administrative review was lacking in substance:

18.   Non-compliance with orders does not sound in an application for review. In making this observation I mean no criticism of Ms Webb in undertaking this course, because she is not legally trained and is self-represented. However, to this extent, this application is without substance. In any event it has been overtaken by the provision of the material on 28 June 2019. During discussion of these matters in the course of the hearing Ms Webb asked me to review the redaction undertaken by the Council when providing documents on 28 June 2019.

19.   As I indicated to Ms Webb during the hearing, it would be inappropriate for the Tribunal as currently constituted to undertake any review of the material provided by the Council in response to the orders of (the first Tribunal) in the context of the proceedings which are the subject of these three applications.

20.   In the first sentence of the passage quoted above, we understand the Tribunal to have decided that the Tribunal does not have jurisdiction to entertain Ms Webb’s new application for administrative review. Even if that is not what the Tribunal meant, the Tribunal was correct to dismiss the administrative review application. During the appeal proceedings, we came to the preliminary view that the Tribunal has no jurisdiction to administratively review either the Council’s failure to make a new decision on remittal, or the Council’s subsequent decision in purported compliance with the Tribunal’s remittal decision.

30. The Appeal Panel found that Senior Member Hamilton SC’s order remitting the matter to the respondent was made under s 63(3)(d) of the Administrative Decisions Review Act 1997 (the ADR Act) as it was made when “determining an application”. The Panel described the remittal power in s 63(3)(d) as “the final remittal power”, which contrasts to “the provisional remittal power” in s 65(1) of the ADR Act, which can be made at any stage of the proceedings, and stated, relevantly:

24   If the Tribunal remits a decision under the “provisional remittal power,” the administrator may affirm or vary the decision or make a new decision in substitution for the decision set aside. If the administrator varies or sets aside the decision and makes a new decision, the original application for review is taken to be an application for review of the new decision. The applicant may either proceed with the application for review of the new decision or withdraw the application: s 65(3) and (4). We will call these provisions the “machinery provisions”. The proceedings in the Tribunal are not finalised until the applicant withdraws the application or the Tribunal makes a final decision.

25   If the Tribunal remits a decision to the administrator under the “final remittal power” in s 63(3)(d) of the Administrative Decisions Review Act, there are no machinery provisions. The Tribunal has made a final decision and its administrative review jurisdiction is exhausted.

31. The Appeal Panel referred to the decision of the Appeal Panel of the Administrative Decisions Tribunal in Howell v Macquarie University [2007] NSWCATAP 10 at [85] (Howell), which found that a remittal decision made under s 63(3)(d) of the ADR Act “finally disposes of the application” and that if the administrator makes a decision on reconsideration, that maintains the previous decision to any degree, then the applicant has to start again and initiate a fresh process of internal review and application for review by the Tribunal.

32. Based upon the decision in Howell, the Appeal Panel held that the Tribunal does not have jurisdiction to administratively review a new decision made by the agency following remittal under s 63(3)(d) of the ADR Act or to review an agency’s failure to make a decision within a specified or unspecified time.

33. Section 30(1) of the NCAT Act, states that the ADR Act provides the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator and s 9 of the ADR Act explains when administrative review jurisdiction is conferred:

The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)   in the exercise of functions conferred or imposed by or under the legislation, or

(b)   in the exercise of any other functions of the administrator identified by the legislation. (Emphasis added.)

34. The Appeal Panel held that the “enabling legislation” is the GIPA Act and that s 80 lists the “decisions of an agency in respect of an access application” that “are reviewable decisions”. Those decisions include “a decision to provide access or to refuse to provide access to information in response to an access application”. (Emphasis added.) Section 100(1) then provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for an administrative review under the ADR Act of the decision.

34. The Appeal Panel found that both the applicant and Ms Webb were aggrieved by the respondent’s decision in relation to their GIPA Act applications as they each applied to the Tribunal for administrative review. Those applications were finally determined in March 2019 and the Tribunal remitted the matter to the respondent under s 63(3)(d) of the ADR Act. As the respondent’s further decision was made in response to the remittal order, and not an access application, the GIPA Act does not give the Tribunal jurisdiction to administratively review that decision. Therefore, the second Tribunal was correct to dismiss Ms Webb’s further administrative review application.

35. In the current application, the applicant also asks the Tribunal to revoke the non-publication orders made in the GIPA Act proceedings, based upon a finding made by Senior Member Gracie on 30 April 2021 in McEwan v Port Stephens Council [2021] NSWCATAD 110. He asserts that this decision supports his allegation that the respondent (and Mr Wickham in particular) misled the Tribunal.

36. However, the applicant states, and properly in my view given the express findings made by the Appeal Panel in the Webb appeal, that he is not seeking a further administrative review of the respondent’s decision under the GIPA Act. Rather, the current application is based upon s 64(3) of the NCAT Act.

37. In my view, the applicant now seeks to overcome the Tribunal’s lack of jurisdiction to administratively review the respondent’s post-remittal decision by seeking access to information that was withheld by reason of that decision by means of the revocation of the non-publication orders.

38. In BJQ v Children's Guardian (No 2) [2016] NSWCATAD 291 (BJQ), the Tribunal considered whether it should revoke a non-publication order made under s 64 in earlier proceedings. The Tribunal promulgated Procedural Direction 9 which relevantly provides:

[4.2]   Additionally it is the Tribunal’s policy to anonymise the name of the applicant in certain types of cases. The applicant’s name is replaced with a set of initials that are not those of the applicant. In some instances this anonymisation will extend to other parties or witnesses in the case, depending on the circumstances. Anonymisation routinely occurs in the following matters:

(a) under the Child Protection (Working with Children) Act 2012: the applicant’s name is anonymised in lists and decisions. Also relevant is section 578A of the Crimes Act 1900 which prohibits the publication of any matter, which identifies, or is likely to lead to the identification of the complainant victim in a prescribed sexual offence;

40. In BJQ, the Director of Public Prosecutions (DPP) filed an application seeking the release of information and evidence that the Tribunal received in the matter of BJQ v Children’s Guardian [2016] NSWCATAD 99. The Tribunal had made an order under s 64 of the NCAT Act, which restricted publication of information that would identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

41. The DPP sought access to the exhibits and BJQ’s oral evidence in the Tribunal proceedings under s 64(3) of the NCAT Act, which allowed the Registrar to consider it under r 42 of the Civil and Administrative Tribunal Rules 2014 (NSW). In determining the revocation application, the Tribunal accessed the recording of the proceedings before it on 29 January 2016 and noted that many people other than BJQ were referred to in the evidence.

42. The DPP argued that it was already aware of the identities of those persons since it brought the prosecution before the victim died. The Tribunal found on the balance of probabilities that the alleged sexual abuse occurred and that BJQ was the perpetrator of the relevant incident(s) of sexual abuse upon the victim. As the DPP was considering whether to prosecute BJQ, there was a significant public interest involved in the request as the information would assist in determining whether to prosecute him.

43. In BJQ, the Tribunal held that there is undoubted power to vary or revoke the publication restriction and the variation or revocation can occur in different proceedings: Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46 at [61] per Chesterman DP, in relation to an almost identical provision, s 75(2B) in the Administrative Decisions Tribunal Act 1997 (NSW) (now repealed). The issue for the Tribunal was whether the circumstances were sufficient for the exercise of that discretion. However, s 64 of NCAT Act does not provide guidance about how that discretion should be exercised.

44. In BJQ the Tribunal held that the confidential information in connection with the previous Tribunal proceedings is not compellable and personnel employed in the Tribunal are not competent to divulge to any “court”, such information contrary to any order under s 64, or even when an application under s 64 is not yet determined: s 68 of the NCAT Act. This establishes that the open justice principle, which applies in most courts and Tribunals in New south Wales, subject to any other legislative restrictions, is restricted by statute and Direction to protect the confidentiality of the proceedings before the Tribunal.

45. The Tribunal found that BJQ was charged under s 66C(4) of the Crimes Act 1900 (NSW), under which the identity of the complainant was prohibited from publication under s 578A, which was referred to in the Procedural Direction. That charge was a prescribed sexual offence as defined under s 3 of the Criminal Procedure Act 1986 (NSW), but as the complainant was deceased, the prohibition contained in s 578A no longer applied: see s 578A(4)(f) of the Crimes Act. Further, s 578A(5) of the Crimes Act required a consideration of the “public interest” if publication was to be authorised under subs 4. Further, as the complainant was the subject of proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105 restricted the publication of her identity and publication of identifying information was a strict liability offence. However, that prohibition ceased the complainant died: (s 105(1A)(b)).

46. The Tribunal held that BJQ’s identity was protected simply by reason of the Tribunal’s policy, which is recorded in Procedural Direction 9, and the non-publication order under s 64 of the NCAT Act. It referred to the decision of the Court of Appeal in Rinehart v Welker [2011] NSWCA 403, which discussed in some detail the considerations under the applicable legislation governing suppression and non-publication orders in the Courts of NSW under the Court Suppression and Non-publication Orders Act 2010 (NSW) (“CSPO”). Bathurst CJ and McColl JA stated (at [26]):

The principle of legality favours a construction of legislation such as the CSPO Act which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle: Hogan v Hinch (at [5], [27]) per French CJ; see also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 (at 55) per Kirby P.

47. The Court of Appeal explained the principle of open justice as follows:

[27] …The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ...'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act ) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).

[28] The word "necessary" was adopted as the test for making a suppression order on the recommendation of the NSW Law Reform Commission: see NSW Law Reform Commission, Contempt by Publication, Report 100, (June 2003), at [10.20]; see also NSW Law Reform Commission, Contempt by Publication, Discussion Paper 43, (July 2000) at Chapter 10, where the principal discussion leading to the recommendation in the final Report appears. Similar language appears in s 50 of the Federal Court of Australia Act and s 4(2) and s 11 of the Contempt of Court Act 1981 (UK). It was the test applied by courts with an inherent jurisdiction to make non-publication orders: John Fairfax Publications Pty Ltd v District Court of NSW (at [38]).

[29] A number of authorities are cited in the Discussion Paper (at [10.92]) as authority for the proposition that the test for making a suppression or nonpublication order should be that it be "necessary". Of those authorities, the clearest statement, and that which appears to underlie the form of s 8, appears in John Fairfax & Sons Ltd v Police Tribunal (NSW)(1986) 5 NSWLR 465 (at 476 - 477) per McHugh JA (Glass JA agreeing):

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.

John Fairfax & Sons Ltd v Police Tribunal (NSW) was the principal authority on the subject of making non-publication orders in New South Wales prior to the enactment of the CSPO Act: John Fairfax Publications Pty Ltd & Anor v District Court of NSW (at [38]). French CJ referred to this passage with approval in Hogan v Hinch (at [21]).

48. The Tribunal also noted that the Administrative Decisions Tribunal considered a similar provision in s 75 of the Administrative Decisions Tribunal Act 1997 (NSW) (now repealed) in State of New South Wales (Justice Health) and Anor v Dezfouli [2008] NSWADTAP 69. Chesterman DP stated at [81]:

It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2) [similar to section 64(1) of the Civil and Administrative Tribunal Act ]. It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

49. The Tribunal held that the order sought by the DPP could also be made, varied or revoked upon the motion of the Tribunal: s 64(1) of the NCAT Act. It found that: (a) it was no longer ‘desirable’ for BJQ’s identity to be suppressed in order to protect the identity of the complainant; and (b) it was in the public interest for BJQ’s identity to be known and for a publication which may thereby identify the complainant to be made. Therefore, it would no longer be an offence to publish information that may tend to identify the complainant, since the provisions of the relevant legislation were released by her death and the open justice principle requires that the information no longer be suppressed by the non-publication order.

50. Accordingly, the Tribunal revoked the non-publication order made under s 64 of the NCAT Act to permit publication of the identity of BJQ and/or the deceased complainant and the evidence given in the proceedings.

51. In my view, the current matter is distinguishable on its facts from those in BJQ. In BJQ the revocation application was made by the DPP, who was not a party to the earlier proceedings in which the non-publication orders were made, and the evidence established that there was a clear public interest in revoking the non-publication orders as the mandated statutory protection of the complainant’s identity had ceased as a result of her death. Further, revocation of the non-publication order allowed the DPP access to the information and evidence taken in the primary proceedings in order to determine whether or not BJQ should be prosecuted for the sexual offences that the Tribunal determined had occurred on the balance of probabilities.

52. In relation to the current application, the respondent argues that in making the non-publication orders under s 64(1) of the NCAT Act, the Tribunal was bound by s 107 of the GIPA Act to ensure that it did not disclose any information in respect of which there is an overriding public interest against disclosure. Sections 49(2) and 64(1) of the NCAT Act confer the powers necessary for the Tribunal to comply with s 107 of the GIPA Act. The respondent stated, relevantly:

46.   The remitter judgment had the effect of requiring the respondent to release documents to the applicant subject to redactions to prevent the disclosure of personal information of third parties, in respect of which he found that there was an overriding public interest against disclosure.

47.   Revoking the non-publication orders would:

a. reveal the personal information of third parties that the Tribunal required to be redacted, and therefore the Respondent says that granting the application would amount to a breach of s 107 of the GIPA Act, and

b. would reveal evidence received in confidence by the Tribunal which contains the personal information of the same third parties (being information of the same nature and the information subject to an overriding public interest against disclosure) and would be contrary to the intention of 107 of the GIPA Act.

48.   Further, the release of such information would clearly frustrate the decision of the Tribunal with respect to the access application.

53. The respondent also argued that non-publication and non-disclosure orders provide parties and witnesses with peace of mind that their identities and/or personal information will be kept confidential. The ability for such orders to be revoked many years after the proceedings have been finalised undermines this confidence. Therefore, the Tribunal should not revoke orders made under s 64(1) of the NCAT Act unless there has been an extraordinary change of circumstances or some other exceptional reason why it is in the public interest to do so. The applicant has not provided any persuasive reason for revocation of the non-publication orders.

54. The respondent relied upon the decision of Hennessy DP in Council of the New South Wales Bar Association v BRJ (No 3) [2015] NSWCATOD 159 (BRJ). In that matter, the applicant asked the Tribunal to vary an order under s 64 of the NCAT Act so that it could disclose evidence in the proceedings to the NSW Privacy Commissioner and the Anti-Discrimination Board of NSW, to enable it to defend proceedings that the respondent commenced in those forums. The Tribunal agreed to vary the order to enable limited disclosure and Hennessy DP stated:

13.   There is undoubted power to vary or revoke the publication restriction...

14. The question for the Tribunal in this matter is whether the circumstances are sufficient for the exercise of the discretion. The provisions of s 64 of the Civil and Administrative Tribunal Act do not provide guidance as to how that discretion should be exercised.

55. While s 64(4) of the NCAT Act permits the current application to be made, I am satisfied that it is misconceived and lacking in merit for the following reasons:

1. The GIPA Act dispute between the parties was finally determined in March 2019 and the Tribunal made non-disclosure orders under s 64(1) of the NCAT Act based on the evidence then before it.

2. Ms Webb then applied for administrative review of the respondent’s post-remittal decision and Principal Member Marks dismissed that application on the basis that the Tribunal had no jurisdiction to determine that application.

3. Ms Webb appealed against Principal Member Marks’ determination regarding jurisdiction and the Appeal Panel dismissed the appeal and held that the Tribunal lacked jurisdiction to determine the further application for administrative review.

4. The case law establishes that if the applicant remains aggrieved by the respondent’s post-remittal decision, which certainly appears to be the case given the nature of his evidence and submissions in the current application, he must restart the GIPA Act process. In other words, he must file a further access application with the respondent under the GIPA Act.

5. The relief sought under s 64(4) of the NCAT Act is discretionary, but the NCAT Act provides no guidance as to how that discretion should be exercised. Based on the decision of Hennessy DP in BRJ the Tribunal must consider whether the circumstances are sufficient for the exercise of the discretion.

6. The applicant has expressly stated that the purpose of this application is not to seek an administrative review of the final determination of the GIPA Act dispute by the Tribunal in March 2019. However, he asks the Tribunal to revoke the non-publication orders because he considers that the respondent’s post-remittal decision to disclose further information supports findings that the respondent (and Mr Wickham in particular) misled the Tribunal and that the confidential information protected by the non-publication orders is not confidential information.

7. I am satisfied that this Tribunal does not have power to reconsider any evidence that was before the Tribunal when the GIPA Act dispute was finally determined in March 2019. This means, that I am do not have power to consider whether the information that was the subject of the non-publication orders is confidential information and/or whether s 107 of the GIPA Act would be breached by the revocation of the non-publication orders.

8. As the applicant’s current grievances can clearly be addressed by the exercise of existing rights conferred upon him under the GIPA Act, I am not satisfied that he has established any extraordinary or exceptional circumstances for the Tribunal to revoke the non-publication orders.

56. Accordingly, the current application must be dismissed.

Order

1. I dispense with a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

2. The application to revoke orders made under s 64(1) of the NCAT Act by the Tribunal in proceedings known as Webb v Port Stephens Council [2019] NSWCATAD 47 is dismissed.

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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: 09 May 2022