Port Stephens Council v Webb

[2021] NSWCATAD 180

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Port Stephens Council v Webb [2021] NSWCATAD 180

Hearing dates:

10 December 2020

Date of orders:

25 June 2021

Decision date:

25 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Goodman SC, Senior Member

Decision:

(1)   The applicant has leave to amend its application    dated 3 December 2019 by the deletion of sub-   paragraph 1(b); and

(2)   The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – access applications – application for restraint order under s 110 Government Information (Public Access) Act 2019 – exercise of discretion

CIVIL PROCEDURE – amendment of application to abandon part

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act

Cases Cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180

Palerang, Queanbeyan City and Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44

Pittwater Council v Walker [2015] NSWCATAD 34

Port Stephens Council v Webb [2017] NSWCATAD 341

Port Stephens Council v Webb [2020] NSWCATAD 81

Webb v Port Stephens Council [2020] NSWCATAP 152

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Port Stephens Council (Applicant)
Telina Webb (Respondent)

Representation:

Counsel:
B Tronson (Applicant)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Respondent (Self-Represented)

File Number(s):

2019/00380640

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The applicant Council seeks an order under s 110 of the Government Information (Public Access) Act 2009 (“GIPA Act”), restraining the respondent from making further access applications without the prior approval of the Tribunal.

2. This is the third time that the Tribunal has considered an application by the applicant for such an order against the respondent. The first application was unsuccessful: see Port Stephens Council v Webb [2017] NSWCATAD 341 (“2017 Tribunal Decision”), a decision of Senior Member Lucy.

3. The second application was considered by the Tribunal, differently constituted, and was successful: see Port Stephens Council v Webb [2020] NSWCATAD 81 (“2020 Tribunal Decision”). In the 2020 Tribunal Decision, the Tribunal made an order which prohibited the respondent from making an access application “whether solely on her own behalf or acting jointly or in concert with any other person without first obtaining the approval of the NSW Civil and Administrative Tribunal”.

4. On 27 July 2020, the 2020 Tribunal Decision was set aside on appeal: Webb v Port Stephens Council [2020] NSWCATAP 152 (“Appeal Panel Decision”). The Appeal Panel remitted the proceeding for re-determination, differently constituted. These Reasons represent that re-determination.

5. For the reasons set out below, the application is dismissed.

Materials before the Tribunal

6. The materials before the Tribunal in the present hearing were:

1. the applicant’s application filed on 3 December 2019 (“3 December 2019 Application”);

2. an affidavit of Mr Tony Wickham affirmed 30 January 2020, together with an exhibit titled “TW-1” of almost 3000 pages across three volumes;

3. an affidavit of Mr Wickham affirmed 9 September 2020, together with an exhibit titled “TW-2”;

4. a bundle of documents titled “Bundle of Code of Conduct Complaints against Tony Wickham”;

5. cross examination of Mr Wickham;

6. written submissions on behalf of the applicant;

7. written submissions on behalf of the respondent, together with numerous attachments of several hundreds of pages, across three volumes; and

8. a transcript of the hearing before the differently constituted Tribunal on 24 February 2020.

A preliminary point

Background

7. A preliminary point arises with respect to the form of relief sought by the applicant. The 3 December 2019 Application sought the following orders:

“1. Orders pursuant to s 110 of the [GIPA Act] that the Respondent not be permitted to:

(a) make an access application to Port Stephens Council; and/or

(b) act in concert with another person to make an access application to Port Stephens Council,

without first obtaining the approval of the NSW Civil and Administrative Tribunal”

8. As noted above, in the 2020 Tribunal Decision, the Tribunal made an order under s 110 of the GIPA Act which prohibited the respondent from making an access application “whether solely on her own behalf or acting jointly or in concert with any other person without first obtaining the approval of the NSW Civil and Administrative Tribunal”.

9. In the Appeal Panel Decision at [58] – [65], the Appeal Panel set out its view that the Tribunal lacked power to make an order prohibiting a person from making an access application in concert with another person.

10. On 15 September 2020, the applicant filed supplementary submissions, which addressed the effect of the decision of the Appeal Panel Decision. In those submissions, the applicant indicated that it no longer pressed that part of its application which sought an order that the respondent be restrained from acting in concert with another person to make an access application. In other words, the applicant decided to pursue Order 1(a) but not Order 1(b).

Submissions

11. The respondent’s position is that the applicant is not permitted to no longer press that part of its application. She submitted that:

1. the applicant had not filed an application for leave to amend its 3 December 2019 Application;

2. the applicant had previously, in other proceedings, objected to the respondent having leave, in reply, to amend her application to narrow the scope of her proposed access application. The objection was on the bases that it was inappropriate and prejudicial;

3. the same prejudice and inappropriateness arise in this case;

4. the applicant’s actions in seeking to circumvent the appropriate process for amending the 3 December 2019 Application do not align with the applicant’s Code of Conduct;

5. the transcript of the first hearing records that the orders sought were not severable;

6. thus, the whole of the 3 December 2019 Application is before the Tribunal; and

7. an application which contains a proposed order concerning the applicant acting in concert with another person is flawed and must be dismissed in its entirety.

12. In reply, the applicant submitted that:

1. in view of the Appeal Panel Decision, the applicant’s decision not to press part of its application is both necessary and appropriate;

2. the 3 December 2019 Application is severable and there is nothing in the transcript of the first hearing which is inconsistent. In particular, that transcript records that the applicant was seeking either or both sub- paragraphs 1(a) and (b); and

3. if contrary to the above submissions, leave were necessary, the applicant seeks such leave, and it should be granted on the basis that the respondent was given several months’ notice that the applicant would not press sub-paragraph (b) and because the respondent would suffer no prejudice.

Consideration

13. The applicant is permitted to not press for an order in the form of sub-paragraph (b) of the 3 December 2019 Application, for the following reasons.

14. First, as a general rule, a party is entitled to abandon part of its case without the need to amend its application. Such conduct is orthodox in the Tribunal (and in the Courts). Secondly, such abandonment is appropriate in view of the Appeal Panel Decision and consistent with the obligation upon the applicant to co-operate with the Tribunal so as to give effect to the guiding principle of facilitating the just, quick and cheap resolution of the real issues in the proceedings: see s 36(1) and (3) of the Civil and Administrative Tribunal Act 2013. To do otherwise, would have been to press an argument that was doomed to fail and to waste the time of the Tribunal and the respondent.

15. Thirdly, whilst the respondent has asserted prejudice, she has not demonstrated that she would suffer any relevant prejudice from the applicant not pressing that part of its case. Fourthly, the Tribunal is not in a position to evaluate what the respondent contends happened in a different proceeding, without evidence as to the circumstances of that proceeding.

16. Fifthly, the transcript of the first hearing suggests, contrary to the respondent’s submissions and consistent with the use of the conjunction “and/or” in the 3 December 2019 Application, that the applicant was keeping all of its options open. Sixthly, the applicant’s Code of Conduct is irrelevant to this issue.

17. Finally, to the extent it is necessary for the applicant to apply for leave to amend the 3 December 2019 Application by abandoning sub-paragraph(b), then the Tribunal grants such leave in circumstances where the abandonment is appropriate in light of the decision of the Appeal Panel and where no relevant prejudice has been demonstrated.

Section 110 of the GIPA Act

18. Section 110 of the GIPA Act provides:

110 Orders to restrain making of unmeritorious access applications

(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a "restraint order") if NCAT is satisfied that—

(a) at least 3 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, and

(b) the applications were made by the same person or by any other person acting in concert with the person.

(2) An access application is to be regarded as lacking merit if—

(a) the agency decided the application by refusing to deal with the application in its entirety, or

(b) the agency decided the application by deciding that none of the information applied for is held by the agency, or

(c) the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).

(3) A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to any one or more of the following—

(a) a specific time period,

(b) a specific number of applications, whether in total or to particular agencies,

(c) particular kinds of information,

(d) particular agencies.

(4) A person who is subject to a restraint order cannot apply to NCAT for approval to the making of an access application by the person without first serving notice of the application for approval on the agency concerned and the Information Commissioner.

(5) An application for a restraint order against a person may be made by an agency that receives an access application from the person (whether or not the agency has decided the application) or by the Minister or the Information Commissioner.

(5A) In deciding whether to approve the making of an access application by a person the subject of a restraint order, NCAT is to consider, without limitation, any of the following—

(a) whether the proposed application is lacking in merit,

(b) whether the proposed application is frivolous, vexatious, misconceived or lacking in substance,

(c) whether the applicant has engaged in conduct designed to harass, to cause delay or detriment, or to achieve another wrongful purpose.

(6) NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance.

(7) While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application.

Jurisdictional facts

19. Section 110 confers upon the Tribunal a discretion to make a restraint order.

20. The jurisdictional facts the existence of which enlivens the jurisdiction are that a person (or second person acting in concert with the first person) has made at least 3 access applications (to one or more agencies) in the previous 2 years that have lacked merit: s 110(1).

21. “Access application” and “agency” are defined in s 4 of the GIPA Act. There is no issue that the access applications relied upon by the applicant on this application meet the definition of “access application”, or that those applications were made to an “agency" (i.e. the applicant).

22. In considering whether applications lack merit, s 110(2) is important.

23. In the appeal hearing, the present respondent submitted that the Tribunal erred in failing to independently assess the merits of her prior access applications for the purposes of s 110(2). In rejecting that submission, the Appeal Panel said at [69]-[70] of the Appeal Panel Decision:

69. The final ground of appeal which may have some relevance to the Tribunal’s reconsideration of the Council’s application for a restraint order, is that the Tribunal erred by failing to independently assess the merits of Ms Webb’s historical applications under the GIPA Act. Under s 110(2):

(2)   An access application is to be regarded as lacking merit if—

(a)   the agency decided the application by refusing to deal with the application in its entirety, or

(b)   the agency decided the application by deciding that none of the information applied for is held by the agency, or

(c)   the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).

69.   This is a statutory definition which sets out the circumstances in which an access application is to deemed to be lacking merit. The Tribunal has no power under the legislation to make an independent assessment as to whether an access application lacks merit. (See also, Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44 at [66]).

(emphasis added)

24. Thus, if s 110(2)(a), (b) or (c) is satisfied with respect to a particular application, that application is deemed to be lacking merit. No further inquiry into the merits of the application is to be made for the purposes of establishing that an application meets the requirements of s 110(2).

25. Despite the Appeal Panel Decision, the respondent submitted that it is necessary for the Tribunal to consider each of the applications relied upon to enliven the discretion, so as to determine whether it was lacking in merit. The respondent cited, in support of this argument, paragraph [17] of Palerang, Queanbeyan City and Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44. That paragraph contained a submission to the effect that the Tribunal should consider the merits of each application. However, that submission was rejected in that proceeding (see [18] and [64]-[66]). Further, the Tribunal is bound by the decision of the Appeal Panel. Thus, it is inappropriate to consider the merits of each of the applications for the purposes of s 110(2).

26. The time period of “the previous 2 years” in s 110(1) is determined from the date of the application for an order under s 110: see the Appeal Panel Decision at [68]. In the present case, that date is 3 December 2019.

27. The applicant has identified four applications made within the two years prior to 3 December 2019. The salient information concerning those applications is summarised in the table below.

Date of Application	Application Number	Outcome of Application	Provision relied upon
26 June 2018	PSC2018-02398	Applicant refused to deal with the access application in its entirety as it would require an unreasonable and substantial diversion of applicant’s resources.	s110(2)(a)
19 July 2018	PSC2018-02577	Applicant did not hold the information requested.	s110(2)(b)
14 January 2019	PSC2019-00108	Applicant did not hold the information requested.	s110(2)(b)
14 January 2019	PSC2019-00110	Applicant did not hold the information requested.	s110(2)(b)

28. The Tribunal is satisfied that the information in the table set out above is correct based upon the evidence in Mr Wickham’s 30 January 2020 affidavit and exhibit TW-1. Thus, the Tribunal is satisfied that the respondent has made more than three applications within the 2 year period prior to 3 December 2019 which lacked merit as defined in s 110(2). It follows that the jurisdictional facts within s 110(1) exist and that the Tribunal’s discretion is enlivened.

Exercise of the discretion

29. The discretion is broad: see the 2017 Tribunal Decision at [24]. Section 110(1) does not identify particular matters that may or must be taken into account or not taken into account in the exercise of the discretion.

30. As s 110 does not expressly set out what must or must not be considered, there is a range of permissible considerations which the Tribunal may consider see Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [9]. However, guidance on the exercise of the discretion may be provided by consideration of the subject matter, scope and purpose of the GIPA Act. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [15], Mason J said at p 40:

“ …In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505)…”

31. Of particular importance is s 3(2) of the GIPA Act, which provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the object of that Act (being to open government information to the public) and that discretions conferred by the GIPA Act (including the discretion provided by s 110) are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

32. The facilitation and encouragement of prompt access to government information at the lowest reasonable cost requires consideration from several viewpoints. First, the respondent has a legally enforceable right to access government information under the GIPA Act and the making of a restraint order will remove or restrict that right. Secondly, the general public also has that right and their ability to obtain prompt access to government information at the lowest reasonable cost may have been affected by the applications that have been made by the respondent and the consequent effect upon the applicant’s ability process applications, such that a restraint order is justified so as to remove this impediment to access.

33. Other features of the GIPA Act which may also inform the exercise of the discretion include, at least in the present case:

1. s 3(1)(b), which provides that the object of the GIPA Act is to open government information to the public by, amongst other things, giving members of the public an enforceable right to access government information;

2. s 5, which provides that there is a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure;

3. s 8, which authorises an agency to release information in response to an informal request unless there is an overriding public interest against disclosure, but which states that an agency cannot be required to consider an informal request, or be required to release information in response to such a request;

1. s 9, which provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act unless there is an overriding public interest against disclosure of the information;

2. Part 4, which deals with access applications and includes:

1. s 41, which sets out the requirements for an access application to be a valid access application;

2. s 58, which provides various ways in which access applications may be decided, including deciding:

1. to provide access to the information (s 58(1)(a);

2. that the information is not held by the agency (s 58(1)(b);

3. to refuse to provide access because there is an overriding public interest against disclosure of the information (s 58(1)(d);

4. to refuse to deal with the application (s 58(1)(e)). Section 58(1)(e) includes an internal reference to s 60;

3. s 60, which provides that an agency may decline to deal with an access application in various circumstances, including where:

1. to do so would require an unreasonable and substantial diversion of the agency's resources (s 60(1)(a));

2. the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application (s 60(1)(b));

6. s 110 itself and in particular:

1. s 110(1) and the requirement that 3 access applications lacking in merit enlivens the discretion;

2. s 110(2) and absence of merit being deemed in three circumstances, namely:

1. the agency decided the application by refusing to deal with the application in its entirety (i.e. invoking ss 58(1)(e) and 60)

2. the agency decided the application by deciding that none of the information applied for is held by the agency (i.e. invoking s 58(1)(b)); and

3. the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable) (i.e. invoking s 77).

34. It may be noted that it is sufficient to trigger an exercise of the discretion that a respondent to a s 110 application has lodged only three applications lacking in merit over the prescribed two-year period. Further, it is not necessary for the Tribunal to be satisfied that the respondent to the s 110 application has acted in a manner which may be described as vexatious (or similar), or that their access applications have been frivolous, misconceived or lacking in substance (or similar). So much is clear from the absence of such criteria in s 110(1) when compared to their presence in ss 96, 109 and 110(5A) of the GIPA Act. Compare also the criteria in other jurisdictions such as s 89K of the Freedom of Information Act 1982 (Cth) and s 114 of the Right to Information Act 2009 (Qld).

35. The conduct relied upon by the applicant as justifying the making of a restraint order falls to be considered in the exercise of the discretion in the statutory context set out above. That conduct is considered below by reference to:

1. the access applications made by the respondent;

2. the effect of those access applications; and

3. other conduct of the respondent.

The access applications made by the respondent

36. As the Tribunal noted in the 2017 Tribunal Decision at [48], s 110 has a specific focus, being to control the making of access applications which lack merit. Thus a central consideration in the exercise of the discretion is an examination of the history of applications made by the respondent.

37. The applicant’s submissions concerning the applications by the respondent were pitched at a high level and in essence were:

1. the respondent has made 50 formal access applications and 93 informal access requests between 20 July 2011 and January 2020;

2. of these, 37 of the 50 formal access applications and 32 of the 93 informal access requests were made between March 2017 and January 2020; and

3. on any view, this is an excessive number of applications and requests and their frequency has increased since 2017.

38. Further analysis, beyond the sheer number of access applications made, is needed. In particular it is necessary to consider the nature of the applications made and the outcomes achieved. That analysis is set out below.

Formal applications

39. The Schedule to these Reasons contains a table (“Table”) summarising some salient features of the formal access applications made by the respondent to the applicant. For ease of reference, references below to individual applications refer to the corresponding Nos. in the Table. From the Table, the following observations may be made:

1. the respondent made 50 access applications over the eight and one half years between July 2011 and January 2020 and 37 in the 34 months between March 2017 and July 2020. This is a rate of less than six applications per annum over the former period and of 13 per annum over the latter period. To borrow the expression of Senior Member Lucy in the 2017 Tribunal Decision at [42], this “not an inconsiderable number, but nor should it be regarded as excessive”. In the latter and busier period, the access applications were made at a rate of a little over one per month;

2. the conclusion that the number of applications does not appear to be excessive is underscored by an examination of the applications themselves and in particular the fact that (as discussed below) many of the applications are in a relatively narrow compass (one or two paragraphs) and could readily have been consolidated into larger applications, fewer in number;

3. in 36 of the 50 applications, the respondent was provided with access to at least some of the information the subject of the application. In other words, 72 per cent of her applications led to access to information. For the 34 month period between March 2017 and July 2020, the corresponding rate was 29 of the 37 applications, or 78.4 per cent; and

4. 41 of the 50 applications, or 82 per cent, were not lacking in merit within the meaning of s 110(2). For the 34 month period between March 2017 and July 2020, the corresponding rate was 31 of the 37 applications, or 83.8 per cent.

40. It may be noted that the manner in which the respondent framed her applications, generally within in a relatively narrow compass of one or two paragraphs, affected both the number of applications made and the determination of whether an application lacked merit for the purposes of s 110(2). As s 110(2) (a) requires a refusal to deal with the application in its entirety, and s 110(2) (b) requires a decision that none of the information applied for is held by the agency, applications with fewer parts are more likely to satisfy s 110 than applications with multiple parts.

41. This is evident in the applications made by the respondent on 9 March 2017 (numbered 14 to 18 in the Table). The respondent made five applications on that day, each in a relatively narrow compass. As noted in the Table, in four of the five applications (No. 14,15, 17 and 18), the respondent was provided with access to information she requested, but in the fifth (No. 16) the applicant decided that it did not hold the information requested. As the applicant decided that it held none of the information requested, the application lacked merit for the purposes of s 110. Yet, had that same request been included as part of any of the other four applications made that day, the result would have been that only some of the information requested in the consolidated application was not held and that application would not have lacked merit. Examples of the latter result are found at Nos. 8, 20,21, 23, 30 and 31. A similar analysis applies to:

1. No. 3 – had it been combined with No.4, which was made on the same day, it would not have lacked merit;

2. No. 6 - had it been combined with No.5, which was made on the same day, it would not have lacked merit; and

3. No. 50 - had it been combined with No.49, which was made on the same day, it would not have lacked merit.

42. If Nos. 3, 6, 16 and 50 had been combined with other applications and thus not been lacking in merit, then 45 of the 50 applications (or 90 per cent) would not have been lacking in merit. Further, during the 34 month period between March 2017 and July 2020, the corresponding rate would have been 33 of the 37 applications, or 89.2 per cent.

43. As to the nine applications in the Table which lacked merit:

1. No. 3 was a request for a single document, and the applicant refused to deal with the request because it had previously decided a request for that information or information substantially the same. The applicant’s Notice of Decision does not record any processing time;

2. No. 6 was a request for a record of the dates that the applicant had published particular information on its website. The applicant decided that it did not hold the information requested. The applicant’s Notice of Decision records processing time of three hours;

3. No. 7 was a request for a copy of a single document. The applicant decided that it did not hold the information requested. The applicant’s Notice of Decision records processing time of 4 and one-quarter hours;

4. No. 16 was a request for the dates that the applicant removed information relating to a particular development application from its “DA Tracker”, the dates that this information was reloaded, an explanation as to why these actions were performed and the identification of the person who approved these actions. The applicant decided that it did not hold the information requested. The applicant’s Notice of Decision records processing time of six and one-quarter hours;

5. No. 33 was a request for a list of Code of Conduct reports lodged with the applicant between January 2012 and June 2018. The applicant refused to deal with the request because it would require an unreasonable and substantial diversion of resources. The applicant’s Notice of Decision records processing time of four and one-half hours;

6. No. 34 was a request for Unreasonable Complainant Conduct Incident Report Forms for the respondent and her husband. The applicant decided that it did not hold the information requested. The applicant’s Notice of Decision records processing time of five and one-quarter hours;

7. No. 37 was a request for two documents. The applicant decided that it did not hold the information requested. The applicant’s Notice of Decision records processing time of six and one-half hours;

8. No. 38 was a request for a copy of a note of a meeting with a specified person on a particular day. The applicant decided that it did not hold the information requested. The applicant’s Notice of Decision records processing time of five and three-quarter hours; and

9. No. 50 was a request for “Audit Report/Statement of Account Formal GIPA payments – January 2013 to present”. The applicant decided that it did not hold the information requested. The applicant’s Notice of Decision records processing time of one and three-quarter hours.

44. As the previous paragraph demonstrates, the nine applications which have lacked merit have all been relatively confined and measured. This is a factor which weighs against the making of a restraint order: see the 2017 Tribunal Decision at [55]-[56]. Further, the total processing time recorded for these nine applications is 37.25 hours.

Informal requests

45. The informal requests are not a relevant consideration, or if they are then they are of little moment. In this regard, the Tribunal notes the effect of s 8 of the GIPA Act and its respectful agreement with the views expressed by Senior Member Lucy in the 2017 Tribunal Decision at [31]:

“Section 110 is concerned with restraining the making of access applications which Council is required to deal with. An agency is not required to process informal requests, although it may be acknowledged that it will take an agency time to respond to such a request. This may, however, only be the time needed to write a letter advising the recipient to lodge a formal access application. If a restraint order under s 110 is made, this does not restrict the making of informal requests.”

The effect of the respondent’s access applications

46. The effect of the access applications made by the respondent is a relevant consideration, and in particular to the extent that the effect of the access applications has an impact upon the prompt provision of access to information at the lowest reasonable cost: see s 3(2)(b) of the Act.

47. The applicant’s evidence is that:

1. between March 2017 and January 2020, the applicant spent a total of 327.75 hours processing the respondent’s formal access applications;

2. the respondent’s formal access applications comprised around 40 per cent of the total access applications received by the applicant and the processing of those access applications occupied around 54 per cent of the time spent by the applicant in processing formal access applications; and

3. during that period the applicant employed one officer responsible for determining access applications and budgeted for 50 per cent of that officer’s time to be spent on GIPA applications. The extent of the access applications made by the respondent affected the ability of that officer to carry out his or her other functions and another officer was required to assist in carrying out those other functions.

48. The applicant submitted that the respondent’s access applications have affected its ability to provide access to information to other access applicants. However, the only evidence cited in support of that submission is the evidence that the respondent’s access applications comprise approximately 40 per cent of all access applications but occupy approximately 54 per cent of the time. Whilst this evidence suggests that the respondent’s access application occupy more time per access application than access applications lodged by others, it does not support the submission that respondent’s access applications have affected its ability to provide access to information to other access applicants in any substantial way.

49. Further, 327.5 hours over the 34 month period from March 2017 to January 2020 equates to less than 10 hours per month (or 2.3 hours per week) applied to dealing with the respondent’s access applications. On any measure, this should leave ample time to deal with other access applications.

50. The applicant also submitted that a large number of the respondent’s access applications are expressed in broad terms such as requests for “all” records pertaining to a particular matter, “all the communications” about a subject and “background and/or supporting information” for a particular document” and that this has the result that responding to the access applications has been resource-intensive. In support of that submission, the applicant referred to the following:

1. No. 12, which used the expression “background and supporting information”. The applicant’s Notice of Decision records processing time of 20 hours;

2. No. 13, which used the expression “background information”. The applicant’s Notice of Decision records processing time of 13.5 hours;

3. No. 15, which used the expression “background and/or supporting information”. The applicant’s Notice of Decision records processing time of six and three-quarter hours;

4. No. 17, which used the expression ““background and/or supporting information”. The applicant’s Notice of Decision records processing time of two and one-quarter hours;

5. No. 18, which used the expression “background and/or supporting information”. The applicant’s Notice of Decision records processing time of two hours;

6. No. 27, which requested “full disclosure” of various topics. The applicant’s Notice of Decision records processing time of 17.25 hours;

7. No. 40, which used the expression “all [documents] generated by Council regarding [a particular address]. The applicant’s Notice of Decision records processing time of seven hours; and

8. No. 46, which used the expression “all Council records pertaining to the Tribunal Decision of 27^th March 2019 to all parties. that is all correspondence from 27 March 2019 to [4 June 2019]”. The applicant’s Notice of Decision records processing time of four hours.

51. The Tribunal does not accept that the examples used by the applicant are representative of the access applications made, which on the whole are relatively specific and measured.

52. It may also be noted that the processing times for these access applications do not appear on their face to be excessive. Further, for none of these access applications did the applicant decide that responding to it would involve a substantial or unreasonable diversion of its resources.

53. The respondent also submitted there have been multiple access applications for information relating to the same subject matter, with the result that the applicant is required to “continually divert resources to search for the same of similar material”. However, that submission cannot stand against the evidence above as to the time available and the minimal use by the applicant of s 58(1)(c) and (e) of the GIPA Act.

54. For the above reasons, the Tribunal does not accept that the respondent’s access applications have adversely affected the ability of the applicant to provide access to government information requested by members of the public other than the respondent.

55. In any event, even it were the case that the number of access applications had an adverse impact upon the applicant’s ability to process access applications, it would not necessarily follow that this is a factor which weighs heavily in favour of the making of a restraint order. It would also be necessary to consider whether the applicant had allocated sufficient resources to deal with access applications made in exercise of legal rights granted by the GIPA Act: see the 2017 Tribunal Decision at [41].

The respondent’s broader pattern of conduct

56. The applicant also relies upon the respondent’s broader pattern of conduct, which conduct the applicant says is so inextricably intertwined with her access applications that it should be a central consideration in the exercise of the discretion. The Tribunal considers that conduct outside of the making of access applications is generally of limited relevance to the exercise of the discretion: see the 2017 Tribunal Decision at [43]-49] and Pittwater Council v Walker [2015] NSWCATAD 34 at [52]. The specific conduct relied upon is considered below.

57. The applicant submitted that:

1. the respondent and her husband have lodged (at least) 18 Code of Conduct complaints concerning the conduct of the applicant’s officers or its legal representative in the handling of access applications or in relation to proceedings brought by the respondent under the GIPA Act;

2. the respondent has made 10 applications to the Information Commissioner about the applicant’s handling of access applications;

3. the respondent has commenced two separate proceedings for contempt partly in relation to determinations of the applicant to release information to the respondent;

4. the respondent has made two complaints to legal oversight bodies about the conduct of the applicant’s solicitors in relation to access applications lodged by the respondent;

5. the respondent has lodged a claim in the Local Court seeking the repayment of fees paid in respect of access applications; and

6. the respondent has, in the course of correspondence with applicant regarding access applications, repeatedly accused officers of the applicant of breaches of the applicant’s Code of Conduct and has otherwise been antagonistic toward staff of the applicant.

58. The Tribunal is satisfied that the evidentiary basis for the above submissions has been established.

59. The applicant has submitted that such conduct creates an environment in which certain officers of the applicant cannot effectively carry out their functions without fear of reprisal or heightened anxiety. In this regard, the applicant relies upon the evidence of Mr Wickham that the respondent’s conduct has made him feel intimidated and harassed and has caused heightened anxiety in the performance of his functions in so far as they relate to the respondent.

58. The Tribunal does not regard the above matters as having substantial weight in the exercise of the discretion. The respondent is entitled to make such complaints and to commence such proceedings provided she acts within the laws and rules applicable to such complaints and proceedings.

59. The applicant has also submitted that the respondent has commenced often futile challenges to decisions before the Tribunal and the Information Commissioner. The applicant cited by way of example that the respondent challenged five decisions in which she was granted full access to all of the information sought and that each of those five matters culminated in the either the respondent’s withdrawal of her review application or the affirmation of the applicant’s decision.

60. The Tribunal has considered the evidence concerning each of the five applications identified by the applicant (Nos. 5, 25, 26, 27 and 43). It does not follow from the fact that the final result in each was the withdrawal of the application or the affirmation of the applicant’s decision, that the respondent’s conduct should be deprecated. She was exercising legal rights of review and appeal. Further in No. 5, the Tribunal directed that the applicant re-determine its decision, and in No. 43 the Information Commissioner recommended that the applicant reduce its processing charge, which it did.

61. The applicant has also made submissions concerning the respondent’s purposes and motives in making her access applications, and in particular that:

1. the underlying subject matter of the access applications concerns a grievance held by the respondent and her husband in relation to the decision of the applicant refuse to grant consent to a development application for the installation of a privacy screen on a property formerly owned by them at Raymond Terrace, prior to them moving out of the Council area in August 2013. Of the 50 formal access applications:

1. 32 directly concern information about applicant’s conduct in relation to the privacy screen;

2. four solely concern information relating to Tribunal proceedings brought by the applicant or her husband about access applications concerning applicant’s conduct in relation to the privacy screen;

3. three relate to information about two restrictions on access to services which were imposed by the applicant because of conduct by the applicant and her husband in relation to issues relating to the privacy screen and an access application connected to the privacy screen; and

4. the remaining 11 relate tangentially to the privacy screen;

2. the respondent’s purpose in seeking the information is opaque in circumstances where the respondent asserts that she wishes to obtain information concerning the process of her development application for the privacy screen but she has not lived in the property since August 2013;

3. the respondent’s real purpose is the prosecution of various officers of the applicant involved in the processing of her access applications, as is evident from her commencement of proceedings against several officers for contempt and the lodgement of Code of Conduct complaints against those officers;

4. all of the above demonstrates a connection between the respondent’s conduct and her access applications and that the respondent’s conduct has a certain character of vexatiousness.

64. In the Tribunal’s view, the respondent’s purposes and motives for seeking access to government information are of limited relevance and weight. The respondent has a legally enforceable right to be provided with the information she seeks, absent an overriding public interest against disclosure. That right is not limited by her purposes and motives in seeking the information, or whether it relates to a property in which she has not resided for some time.

65. She is also entitled to pursue legal remedies available to her. Her success or otherwise with respect to those complaints and proceedings is of little moment to the exercise of the s 110(1) discretion.

66. It is of course conceivable that the respondent’s conduct in pursuing complaints and proceedings against the applicant is of such a magnitude that it has adversely affected the ability of the applicant to comply with it its obligations under the GIPA Act with respect to the public generally. If that were the case, it would be afforded greater weight in the exercise of the discretion. However, the applicant’s evidence does not suggest that this is the case and no submission to that effect was put.

Conclusions on the exercise of the discretion

67. The Tribunal is required by s 3(2)(b) of the GIPA Act to exercise the s 110(1) discretion, in so as far as possible, to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. Relevant considerations include the nature and effect of the access applications made by the respondent, together with her prior conduct more generally.

68. The nature of the respondent’s prior access applications is not a factor which suggests that a restraint order should be made. In particular, the respondent has made 50 access applications (of which 82 per cent were not lacking in merit for the purposes of s 110(2)) over a period of eight and one-half years and 37 applications over the 34 month period between March 2017 and January 2020 (of which 83.8 per cent were not lacking in merit for the purposes of s 110(2)) ; and has obtained access to government information in response to 70 per cent of those access applications over eight and one-half years and 78.4 per cent over the 34 month period between March 2017 and January 2020. These rates of success would have been higher had the respondent consolidated her access applications. A similar point was made by Senior Member Lucy in the 2017 Tribunal Decision at [50]-[51] and [54].

69. In making these access applications, the respondent is exercising her legally enforceable right to be provided with the information she seeks, subject to any overriding public interest against disclosure. As the Tribunal noted in Palerang, Queanbeyan City and Goulburn Mulwaree Council v Powell at [63], the right to access to government information is important and thus a restraint order will not be made lightly.

70. The effect of the respondent’s prior access applications is similarly not a factor which suggests that a restraint order should be made. During the busiest 34 month period of receipt of access applications from the respondent, the applicant spent 2.3 hours per week in dealing with the respondent’s access applications. Thus, there is no basis from which to conclude that there has been any adverse effect more generally upon the ability of the general public to obtain prompt access to government information from the applicant at the lowest reasonable cost.

71. The respondent’s other conduct is of less moment and also does not provide a basis for the Tribunal to make a restraint order under s 110.

72. Thus, the appropriate exercise of the discretion is to not make the restraint order sought by the applicant.

Conclusion and Orders

73. For the above reasons, the applicant is entitled to pursue its application, but the application should be dismissed.

74. The Orders of the Tribunal are:

1. The applicant has leave to amend its application dated 3 December 2019 by the deletion of sub-paragraph 1(b); and

2. The application is dismissed.

**********

SCHEDULE

No.	Date	Application No.	Result	Lacking Merit ?
1.	27.7.2011	2011-02623	Refusal under s 58(1)(d)	No
2.	20.12.2012	2012-05342	Refusal under s 58(1)(d)	No
3.	20.12.2012	2012-05343	Refusal to deal with application in its entirety under s 58(1)(e) / s 60(1)(b)	Yes
4.	20.12.2012	2012-05346	Refusal under s 58(1)(d)	No
5.	20.1.2016	2016-00216	Access granted under s 58(1)(a)	No
6.	20.1.2016	2016-00217	None of the information held - s 58(1)(b)	Yes
7.	29.1.2016	2016-00295	None of the information held - s 58(1)(b)	Yes
8.	3.3.2016	2016-00708	Part s 58(1)(a), part s 58(1)(b), part s 58(1)(d)	No
9.	3.3.2016	2016-00709	Part s 58(1)(a), part s 58(1)(d), part s 58(1)(e) / s60(1)(b)	No
10.	4.7.2016	2016-01972	Part s 58(1)(a), part s 58(1)(d)	No
11.	6.12.2016	2016-03555	Part s 58(1)(a), part s 58(1)(d)	No
12.	6.12.2016	2016-03556	Part s 58(1)(a), part s 58(1)(d)	No
13.	12.12.2016	2016-03598	Part s 58(1)(a), part s 58(1)(d)	No
14.	9.3.2017	2017-00801	Access granted under s 58(1)(a)	No
15.	9.3.2017	2017-00802	Part s 58(1)(a), part s 58(1)(d)	No
16.	9.3.2017	2017-00803	None of the information held - s 58(1)(b)	Yes
17.	9.3.2017	2017-00804	Part s 58(1)(a), part s 58(1)(d)	No
18.	9.3.2017	2017-00805	Part s 58(1)(a), part s 58(1)(d)	No
19.	24.4.2017	2017-01237	Part s 58(1)(a), part s 58(1)(d)	No
20.	24.4.2017	2017-01238	Part s 58(1)(a), part s 58(1)(b), part s 58(1)(d)	No
21.	16.6.2017	2017-01699	Part s 58(1)(a), part s 58(1)(b), part s 58(1)(d)	No
22.	16.6.2017	2017-01772	Access granted under s 58(1)(a)	No
23.	18.8.2017	2017-02557	Part s 58(1)(a), part s 58(1)(b)	No
24.	29.8.2017	2017-02640	Part s 58(1)(a), part s 58(1)(d)	No
25.	13.9.2017	2017-02787	Access granted under s 58(1)(a)	No
26.	1.11.2017	2017-03166	Access granted under s 58(1)(a)	No
27.	6.12.2017	2017-03368	Access granted under s 58(1)(a)	No
28.	31.1.2018	2018-00250	Part s 58(1)(a), part s 58(1)(d)	No
29.	1.3.2018	2018-00656	Part s 58(1)(a), part s 58(1)(b) part s 58(1)(d)	No
30.	9.5.2018	2018-01475	Part s 58(1)(a), part s 58(1)(b)	No
31.	8.6.2018	2018-02026	Part s 58(1)(a), part s 58(1)(b) part s 58(1)(d)	No
32.	19.6.2018	2018-02369	Part s 58(1)(a), part s 58(1)(c), part s 58(1)(d)	No
33.	27.6.2018	2018-0 2398	Refusal to deal as it would require an unreasonable and substantial diversion of resources – s 58(1)(e)/s 60(1)(a)	Yes
34.	20.7.2018	2018-02577	None of the information held - s 58(1)(b)	Yes
35.	24.10.2018	2018-0 3608	Access granted under s 58(1)(a)	No
36.	27.11.2018	2018-03897	Part s 58(1)(a), part s 58(1)(d)	No
37.	14.1.2019	2019-00108	None of the information held - s 58(1)(b)	Yes
38.	14.1.2019	2019-00110	None of the information held - s 58(1)(b)	Yes
39.	18.1.2019	2019-00160	Part s 58(1)(a), part s 58(1)(d)	No
40.	5.2.2019	2019-00276	Part s 58(1)(a), part s 58(1)(d)	No
41.	19.3.2019	2019-00702	Application invalid	No
42.	3.5.2019	2019-01056	Part s 58(1)(a), part s 58(1)(d)	No
43.	8.5.2019	2019-02283	Access granted under s 58(1)(a)	No
44.	16.5.2019	2019-02375	Part s 58(1)(a), part s 58(1)(d)	No
45.	24.5.2019	2019-02452	Part s 58(1)(a), part s 58(1)(d)	No
46.	4.6.2019	2019-02506	Refusal under s 58(1)(d)	No
47.	15.8.2019	2019-03530	Part s 58(1)(a), part s 58(1)(d), part s 58(1)(e)	No
48.	8.10.2019	2019-04728	Part s 58(1)(a), part s 58(1)(b), part s 58(1)(d)	No
49.	6.1.2020	2020-00026	Part s 58(1)(a), part s 58(1)(d)	No
50.	6.1.2020	2020-00028	None of the information held- part s 58(1)(b), part s 58(1)(c)	Yes

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: 25 June 2021