Sethi v Secretary, Department of Communities & Justice

[2024] NSWCATAD 35

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Sethi v Secretary, Department of Communities & Justice [2024] NSWCATAD 35

Hearing dates:

23 January 2024

Date of orders:

14 February 2024

Decision date:

14 February 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1. The applicant’s request that I disqualify myself from conducting these proceedings on the ground of apprehended bias is refused.

2. The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – whether the Tribunal ought to recuse itself on the ground of apprehended bias – Whether information sought in the applicant’s request is held by the respondent.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Bankruptcy Act 1966 (Cth)

Civil and Administrative Tribunal Act 2013 (NSW)

Corporations Act 2001 (Cth)

Crimes Act 1900 (NSW)

Criminal Code Act 1995 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Native Title (New South Wales) Act 1994 (NSW)

Native Title Act 1993 (Cth)

Privacy Act 1988 (Cth)

State Records Act 1998 (NSW)

Supreme Court Act 1970 (NSW)

Supreme Court Rules 1970 (NSW)

Taxation Administration Act 1953 (Cth)

Workplace Surveillance Act 2005 (NSW)

Cases Cited:

Antoun v The Queen (2006) 80 ALJ 458

British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283

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

Evans v Chief Commissioner of State Revenue [2022] NSWCATAD 307

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

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

Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98;

Griffin v Sydney Trains [2020] NSWCATAD 234

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Johnson v Johnson (2000) 201 CLR 488

Kitson v Manly Council [2015] NSWCATAD 102

Leech v Sydney Water Corporation [2010] NSWADT 298

Livesey v New South Wales Bar Association (1983) 151 CLR 288

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

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

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

Re JRL; Ex parte CJL (1986) 161 CLR 342

Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288

Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286

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

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Shvetsova v University of New England [2015] NSWCATAD 49

Spencer v Bamber [2012] NSWCA 274

Taylor v Destination NSW [2017] NSWCATAD 272

Ugur v Commissioner of Police [2020] NSWCATAD 293

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191

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

Texts Cited:

None

Category:

Principal judgment

Parties:

Akhil Sethi (Applicant)

Secretary, Department of Communities & Justice (Respondent)

Representation:

Applicant (Self-Represented)

Respondent:
Department of Communities & Justice

File Number(s):

2023/00305968

Publication restriction:

None

REASONS FOR DECISION

Background

1. These proceedings concern a request that Mr Akhil Sethi (the applicant) made initially to the Executive Director and Principal Registrar, Supreme Court of NSW, seeking access to information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) (the GIPA request). The GIPA request was dated 31 March 2023 and sought access to the following information:

1. A schedule of all matters lodged or finalised in the Supreme Court of New South Wales, between 01/01/2010 to 01/01/2023, with the file number, application type, summary, applicant/appellant details and solicitor for applicant or appellant, where any of the blow entities is a respondent or a defendant:

a. Macquarie Group Limited (CAN 122 169 279)

b. Macquarie Bank Limited (CAN 008 583 542)

c. Macquarie Group Services Australia Pty Ltd (CAN 116 467 031)

2. A schedule of all matters lodged or finalised in the in the Supreme Court of New South Wales, between 01/01/2010 to 01/01/2023, with the file number, application type, summary, applicant/appellant details which relates to any of the allegations or charges as below:

a. White-collar crime

b. Corruption

c. Conspiracy

d. Conspiracy to defraud

e. Unlawful surveillance

f. Obstruction of justice

g. Computer crime

Please note the requested schedule at 1. and 2. to exclude any matters lodged for the purposes of ‘Bankruptcy’, ‘Native Title’ or ‘Taxation’, under but not limited to:

i. Bankruptcy Act 1966 (Cth)

ii. Native Title Act 1993 (Cth) or Native Title (New South Wales) Act 1994

iii. Taxation Administration Act 1953 (Cth)

Also note that this is not an application to access Court documents which I understand may be governed by Supreme Court Act 1970 or Supreme Court Rules 1970, however this is an application to request the schedule of the matters with the outlined parameters which I understand is governed by the Government Information (Public Access) Act 2009 (GIPA Act). I understand that supreme Court case law and other case law portal has limitations to search and produce a schedule with the above criteria. I also understand that this will be a very straightforward search to produce the requested schedule in supreme Court databases. I am aware that the below search and production of the document will not take longer than a few hours if done diligently in the correct systems. However, for some reason, if it takes longer and considered as unreasonable and substantial diversion of resources then I am open to consider or bear a processing fee as outlined Division 5 Section 64 of the GIPA Act if agency/Court provide me with the relevant information.

I also understand that schedule will have all matters as requested and nothing will be exempt give, I am only seeking the schedule with the limited parameters as outlined. In order to swiftly process the request and as per the GIPA legislation, can I request registry or chief executive/principal registrar to assist me i.e., the applicant as per their obligation under the Act and provide any other parameters or information which are available and can be released.

Please can I request an acknowledgment of my request within 5 days of the receipt of this request with a Court reference id and timelines. Please advise should any further information be required from me..

Disclosure Log: I OBJECT to have the information released being included in the disclosure log due to the nature of my requested information is confidential.

While sending the documents, please can I request you to ensure that the documents are sent via registered express post with a tracking id requiring signature on delivery at the address (address provided)…

2. On 6 April 2023, the Department of Communities & Justice (the respondent) wrote to the applicant advising that his GIPA request was invalid and that it was referred to the Open Government Information and Privacy Unit of the respondent, as it was the only authorised business unit that can respond to GIPA requests. They advised the applicant that the GIPA request was invalid because an application fee of $30 had not been paid.

3. On 17 May 2023, the respondent wrote to the applicant acknowledging receipt of the application fee, but stating that the GIPA request remained invalid under s 41(1)(e) of the GIPA Act, as he had not provided sufficient information in relation to point 2 of the request to enable it to identify the requested information. The respondent stated, relevantly:

Can you please also confirm that where a record does not currently exist, you would like the Department to collate and create such a record?

4. The respondent also referred the applicant to point 2 of the GIPA request and stated, relevantly:

However, the terminology you’ve used in point 2 (a) – (g) are generic terminologies and will require further specificity such as the relevant sections of the relevant legislation that a particular person was charged under.

As an example, you may wish to review the Crimes Act 1900 (NSW) which can be located in the link below to identify the relevant sections that capture the relevant charges…

This is because section 49(1)(e) requires the Department to be provided with information that is reasonably necessary for the agency to identify the government information applied for and at this stage, we are of the view that the scope in relation to point 2 of your application requires a value judgment on the part of the agency to identify the information applied for and therefore the scope of it is unclear and does not meet the requirements of section 41(1)(e) of the GIPA Act.

I also note that statistical information held by the Supreme Court of NSW which is publicly available and may assist you is available in the two website addresses below…

5. On 15 June 2023, the applicant wrote to the respondent in response to its letter dated 17 May 2023. He stated, relevantly:

The letter outlines that my GIPA access application is invalid pursuant to section 41(1)(e) of the GIPA Act due to the insufficient information provided in relation to point 2 of my application. I also refer to my conversation on a call received from one of the Department’s GIPA officer, where it was clearly identified that the application is valid with respect to both point 1 and point 2 of my application. However, applicant can try and identify any relevant sections of the relevant legislations where possible and where a legislation does not exist or cannot be clearly identified then applicant asks that the Department apply a value judgment to identify the information applied. Moreover, applicant also asks that if such schedule requested in the Applicant’s application does not currently exists, the Department can create and collate such a record as outlined in applicant’s original application.

So, the Department can continue to proceed ahead clearly in terms of point 1 of my application and apply the relevant sections of the relevant legislations where clearly identified in the updated point 2 below (see Table 2.1) and search with the keywords or use value judgment to identify all relevant matters as per the schedule. Hence, I do not agree that my application is invalid as part of my application i.e. point 1 is clearly valid and point 2 can also be progressed on the further information provided in the correspondence.

However, if the GIPA officer still consider my application was invalid as a whole, and confirm back in writing, then I am happy to consider this correspondence as a lodgement of review of the decision under Part 5 of the GIPA Act and can provide the appropriate application free of $40.

6. Table 2.1 of item 2 of the GIPA request was set out as follows:

Table 2.1
S. No	Keyword for charges or allegations	NSW Legislation where available
a.	White-collar crime	(i) No specific legislation exists however please provide access to requested information for the matters related to – an organisation or organisations conspiring or acting together to defraud or attempt to defraud – an individual. Legislations cited can be Corporations Act 2001 in conjunction with Crimes Act 1900.
b.	Corruption	(i) No specific legislation available but say – Wilful Misconduct in Public Office, in conjunction with (ii) Independent Commission Against Corruption Act 1900\\88.
c.	Conspiracy (includes Conspiracy to murder and related crimes)	(i) s 26, s 29, s 95(2)(c), s 111(3), s 113(3), s 114(1)(a) of the Crimes Act 1900 NSW (ii) s 319 of the Crimes Act 1900 – conspiring to pervert the course of justice (iv) tort of conspiracy
d.	Conspiracy to defraud	(i) schedule 10(1)(e) of the Crimes Act – The common law offence of conspiracy to cheat and defraud (ii) s 135.4 of the Criminal Code (Cth)
e.	Unlawful surveillance	(i) Workplace Surveillance Act 2005 NSW (ii) Privacy Act 1988 (Cth) (iii) Severe breaches or intrusion of privacy (iv) PPIP Act 1990
f.	Obstruction of justice	(1) s 312 of the Crimes Act 1900
g.	Computer Crime	(i) Part 6 of the Crimes Act 1900

7. On 20 June 2023, the respondent issued a letter to the applicant acknowledging that his GIPA request (received 19 June 2023) was valid and that the due date of decision is 17 July 2023 (20 working days from receipt of the valid application). However, it requested an extension of time to 17 November 2023. It also stated, relevantly:

Alternatively, if you are a party to current legal proceedings before a Court or tribunal, please consider lodging a subpoena/summons as this will provide a quicker pathway to receiving the information…

8. On 19 July 2023, the applicant telephoned the respondent and said that he was prepared to agree to a 1-week extension of time to respond to the valid GIPA request.

9. On 28 July 2023, the respondent issued a notice of decision to the applicant. It decided that no records were held (s 58(1)(b) of the GIPA Act) and the information was already available to the applicant (s 58(1)(c)) because it is contained in a document that is usually available for purchase and is publicly available on a website (sections 59(1)(c) and (e). It stated that in response to the GIPA request, the Principal Registrar and the Manager Client Services of the Supreme Court of NSW undertook searches for relevant information and that these searches were reasonable. It stated, relevantly:

The Principal Registrar and the Manager Client Services of the Supreme Court of New South Wales conducted searches for information requested at paragraph 2 of your application. The result of these searches is that no records within the scope of your application were located.

I have taken into consideration section 75 of the GIPA Act which provides that an agency is not obliged to create a record to provide access to government information. Searches of free test or legislative provisions, including the references in Table 2.1 of your application, cannot be conducted. In order to provide information that responds to this apart of your access application the Department would be required to create a new record by reviewing every case or Court file from 1 January 2012 to 1 January 2023, including whether there are suppression/non-publications orders.

Accordingly, I have decided that no records are held in response to paragraph 2 of your application.

Information already available

In response to paragraphs 1 and 2 of your application, I note that you may access the information you seek by lodging an Application for a Civil Litigation Search Report, for an administrative fee. The application form contains options to search by name and/or keyword. The application form can be found at (hyperlink provided).

You may also access information responsive to your application for free at (Caselaw hyperlink provided).

Accordingly, in response to paragraphs 1-2 of your application, I have decided that the information you seek is already available to you.

10. The respondent advised the applicant of his rights of review, including advice that he had 20 working days from the date of the decision to apply for an internal review, or 40 working days to apply for a review by the NSW Information Commissioner or this Tribunal.

11. On 25 August 2023, the applicant wrote to the respondent, requesting an internal review of the decision under s 80 of the GIPA Act. He asserted, inter alia:

7. The decision appears to be irregular where some sections of the decision provides that “No records held” while some provides that “information already available” of the same scope.

8. However, it becomes subsequently clear that the information is held by the agency but the searches may not have been undertaken properly.

9. In my application, I’ve already addressed the reasons provided in the Notice of Decision, including that the searches should be taken in the appropriate databases of the Supreme Court of New South Wales. Clearly the schedule is requesting the matters lodged or finalised with a precisely defined scope and hence it is not even possible that a scenario of “No records held” can exist.

10. Hence, agency has an obligation and must undertake searches. Pursuant to section 54(1) and 53(2) of the GIPA act, which relevantly provides:

…

11. Further section 53(3) of the GIPA Act, which relevantly outlined the obligation and provides: …

12. It was also addressed that the Department apply a value judgement to identify the information applied w.r.t any relevant sections of the relevant legislations as per the scope.

13. Plus, it was already addressed that if such schedule requested in the applicant’s application does not currently exists, then pursuant section 75 of the GIPA Act, the Department can create and collate such a record as outlined in the applicant’s application.

14. Information NOT already available – Further it was already addressed in the GIPA application that:

…

15. In fact this schedule is required to search any information which may be available with “Application for a Civil Litigation Search Report” for an administrative fee. Without this schedule, any information cannot be considered as available via above method. Hence having the schedules in paragraph 1 and paragraph 2 are necessitated in order to even conduct any further searches.

16. Further, it was already offered that a processing fee can be considered by the applicant…. If agency/Court will provide me with the relevant information.

17. With the above relevant grounds, please can I ask the Department to conduct any searches diligently again and produce the information as requested in the schedule as per the scope in the Applicant’s application.

12. The applicant also asserted that no fee is payable for the internal review because the respondent failed to determine the GIPA request within time.

13. On 14 September 2023, the respondent wrote to the applicant advising that his request for an internal review of its decision was received out of time and it did not agree to accept the application for internal review out of time.

14. On 18 September 2023, the Information and Privacy Commissioner sent an email to the respondent, advising that she had received a request for an external review of its respondent’s decision dated 28 July 2023 from the applicant.

15. On 21 September 2023, the respondent wrote to the applicant regarding a telephone enquiry that he made on 19 September 2023. It stated, relevantly:

On 19 September 2023, you telephoned our office in relation to DCJ’s letter dated 14 September 2023. In summary of our discussion:

1. You alleged that your internal review application was received by DCJ on 28 August 2023, and that it was therefore received within time.

2. DCJ maintained its position that the Internal Review Application was not received by DCJ until 7 September 2023, meaning the application was received out of time.

3. DCJ identified that you have since sought an external review of the original decision by the NSW Information Commissioner (“Commissioner”).

4. You were advised that even if your application were received within time, DCJ could not conduct an internal review, as s 82(4) of the Government Information (Public Access) Act 2009 (GIPA Act) provides that there is to be no internal review of a decision that is the subject of a review by the Commissioner.

5. You disagreed with DCJ’s interpretation of s 82(4) and requested that an internal review and an external review by the Commissioner take place concurrently.

I provide the following response following our discussion.

On 19 September 2023 I telephoned Australia Post and was informed that delivery was attempted on 28 August 2023, however the receiver was “not known” at the premises. It appears that your Internal Review Application was originally addressed to the Henry Deane Building, 20 Lee Street HAYMARKET NSW 2000. This premises has not been used by DCJ for some time, and I am of the understanding that the delivery would have failed due to the building being unoccupied.

Due consideration has been given to the fact that you attempted to lodge your application within the required timeframe. However, I have reviewed the file for your original access application and note that all letters sent to you in relation to your original application were clearly marked with an accurate, up to date return address of Locked Bag 5000 PARRAMATTA NSW 2124.

DCJ hold the view that your Internal Review Application was received out of time and maintains its previous position not to accept a late application.

Notwithstanding, I note that you have sought an external review of the Original Decision by the Commissioner. As mentioned, s 82(4) of the GIPA Act provides that:

…

DCJ would be unable to conduct an internal review in relation to the same decision, even if your Internal Review Application were received within time, because the application is now the subject of an external review by the Commissioner.

This interpretation is consistent with NSW Information and Privacy Commission (‘IPC’) guidance material. The IPC’s Interna Reviews under the GIPA Act fact sheet, available online at (hyperlink provided) states: “An internal review is not available if the decision… is or has been the subject of review by the Information Commissioner”.

…

16. On 26 September 2023, the applicant filed the current application for administrative review of the respondent’s decision dated 28 August 2023, on the following grounds:

1. Decision is irregular where some sections of the decision provides that ‘No records held’ while some provides that ‘Information already available’ of the same scope.

2. the information is held by the agency but the searches have NOT been undertaken properly.

3. Pursuant to section 53(1) and 53(2) of the GIPA Act, Agency has an obligation and must undertake searches.

4. Agency has an obligation pursuant to s 53(3) of the GIPA Act i.e. to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

17. On 10 October 2023, the IPC sent an email to the respondent, stating relevantly:

…I refer to the application filed by Mr Akhil Sethi at the NSW Civil and Administrative Tribunal (NCAT) for an external review of your agency’s decision under the Government Information (Public Access) Act 2009 (GIPA Act).

I confirm that the IPC has now also received notification of the NCAT matter.

Section 98 of the GIPA Act provides:

98 No review of decisions administratively reviewed by NCAT

A decision is not to be the subject of review by the Information Commissioner under this Division if the decision is or has been the subject of an administrative review by NCAT.

Accordingly, as section 98 prohibits review by the Information Commissioner of a decision that is the subject of NCAT review, the IPC’s review of the decision is required to be discontinued and the matter will be closed.

Procedural matters

18. Senior Member Perrignon conducted a case conference on 30 October 2023. The applicant appeared in person and Mr Austin and Ms Lee appeared for the respondent. There was no appearance by or on behalf of the IPC. The Senior Member made the following orders:

1. The respondent is to file and serve evidence including statements, documents and submissions by 27 November 2023;

2. The applicant is to file and serve evidence including statements, documents and submissions by 11 December 2023;

3. The respondent is to file and serve all evidence in reply, submissions and a summary of legal arguments by 15 January 2024;

4. The applicant is to give the respondent a list of all witnesses required for cross-examination by 16 January 2024;

5. The respondent is to give the applicant a list of witnesses required for cross-examination by 18 January 2024;

6. The matter is listed for an in-person hearing on 23 January 2024 at 10am; and

7. Grant leave to either party to approach the Registrar for a mediation date.

The hearing

19. The matter came before me for hearing on 23 January 2024. The applicant appeared in person and Mr Austin and Ms Lee appeared for the respondent. There was no appearance by or on behalf of the IPC.

20. I note that at 7:12pm on 22 January 2023, the applicant sent an email to the Registrar in the following terms:

Re: Objection on Presiding Member… Tomorrow’s hearing

…

I note that Senior Member MA Riordan has been assigned as a presiding officer for Hearing of the matter tomorrow.

I would like to raise strict OBJECTION on the allocation of MA Riordan as the presiding officer to this or any of the Applicant’s matters. In a current matter in the NCAT Appeal Panel, you will note that I’ve raised serious concerns on the conduct of the Tribunal member and have also officially raised complaints. Further to that I’ve requested MA Riordan as a witness to provide evidence.

Hence it is highly inappropriate to have same presiding officer allocated to this matter, given the other Appeal Panel matter is active and official complaints made to the NCAT’s Principal Registry are Open. Please can you address this immediately prior to the hearing tomorrow and have another Presiding officer allocated and confirm back.

21. At 9:19am on 23 January 2023, the Registrar responded to the applicant’s email as follows:

Dear Mr Sethi

I refer to your email below and advise that the issue may be raised at the outset of the hearing…

Application for recusal

22. Accordingly, when the hearing commenced, I noted that the applicant had made an application that I recuse myself from hearing the matter. In response, the applicant launched into a tirade, which is extracted below:

Sethi: Yes, Member, I have sent an e-mail yesterday as well upon the notification of the allocation of this matter.

Tribunal: Yes, I have your e-mail. Is there anything else you wish to say in support of your application?

Sethi: Well, I well, I can't because it's...

Tribunal: You can it's your application so. If you wish to tell me anything, any further information as to why you think I should recuse myself, now is your opportunity to do so.

Sethi: Well, as I have explained in my e-mail that there has been other matter and other complaint which are pending and outstanding with the appeal panel....

Tribunal: Well, OK, then. Mr. Sethi, if the basis for the application is that I determined a matter in your absence when you chose to be in the Supreme Court Registry...

Sethi: No, no, no, no.

Tribunal: Please, please. That's what you've just said.

Sethi: No, it's not so first, first, that's why I'm saying. That's why I'm saying Member, we cannot discuss that matter.

Tribunal: Yes we can.

Sethi: No, we cannot. When the other party...

Tribunal: Because I am not aware of any complaints against me...

Sethi: What I'm what I'm saying.

Tribunal: It has been raised in your e-mail.

Sethi: Well then, then, then that. So that's as, as I said that the complaint is still outstanding. Well. And it's not about, it's not about the matters outcome or something like that. That matter is confidential. It is a separate matter. Here we have a different party and which is. Why I have...

Tribunal: Well, you chose to raise it, Mr. Sethi, so why is it relevant if you if it's confidential? You can't have it both ways. It's either a ground for your application or it's not.

Sethi: Yes, so I have provided the grounds that my complaints are still outstanding with the Principal Registry.

Tribunal: And you are assuming that I am aware of these complaints and that they have been actioned by the Principal Registry?

Sethi: As far as I'm aware, they are outstanding. They have not been finalized, so as far as I am aware they are outstanding if they have actioned or not. If they if it has come down to yourself or not or to your supervisor or not, I don't know.

Tribunal: No, it has it has not, so if we take that out of the equation because I have no idea what you're talking about.

Sethi: But that's what I'm talking about, so you need to get that file from the Principal Registry.

Tribunal: No, I don't. No, because they have not been brought to my attention. They are not within my knowledge. So the only other matter you're referring to is an appeal. So how does the determination of an appeal by an Appeal Panel prevent me from determining your current application?

Sethi: No, as I said, because there is a... How do I know that it has not come down to your attention? I have already my submissions. I have provided my submissions and it is there.

Tribunal: Because I'm telling you as a Senior Member of the Tribunal.

Sethi: As I said that there are outstanding items and there is and there is nothing preventing to have it allocated and dealt with by a separate Member. I'm not saying there could be because I have basic complaint, there could be some procedures. How do I know?

Tribunal: Excuse me, there is no other amendment. Mr. Sethi, your matter is listed for hearing today. I have been allocated to hear it. I'm not aware of any complaints having been made against me on a personal or a professional level.

Sethi: No, it's not directly. Can you name...

Tribunal: Please no, I am answering your question. I expect you to have the Courtesy to allow me to finish without interrupting me.

Sethi: Not because you are not aware. That's why I have been staying. I thought you would be aware. No, but let me finish because this is the first time I'm getting to know that you're not aware. It is not about. It is not about particularly yourself.

Tribunal: No, no. Mr. Sethi. Do you? Do you understand that? OK, this is not the Supreme Court, but we have procedures here. You are representing yourself. I expect you to act in a Courteous manner. Are you able to do that.

Sethi: That's why I've sent the e-mail prior to commencing and that's not been done. It could have been done offline.

Tribunal: Well, no, because the only person that can deal with the recusal application is the person who's allocated to hear it.

Sethi: it was an allocation application that it should be allocated to a different member, not a recusal application.

Tribunal: I have been allocated to hear this matter. You want me to disqualify myself and to have the matter allocated to another presiding officer this morning. That is, that is what you wanted, isn't it? That is what you're asking for?

Sethi: Yeah, and it could have been dealt with by whoever has allocated yourself the matter.

Sethi: No, you don't understand. Once a matter is allocated to a Member it stays with them until they decide to do something about it. That’s why you were told by the Registry that you could raise this with me at the outset of the hearing today.

Sethi: So as I said, it was about my application allocation.

Tribunal: Are you saying you did not receive this e-mail from the Registry?

Sethi: I haven't checked it.

Tribunal: Well, I think you should.

Sethi: Not up, but no, but up until 9:00 AM this morning.

Tribunal: 9:19 AM this morning.

Sethi: Right.

Tribunal: I will read it to you - “I refer to your e-mail below and advise that the issue may be raised at the outset of the hearing.”

Sethi: When I checked myself on the list it was appearing about 4:00 PM yesterday and I promptly replied to Tribunal to have you dealt with offline.

Tribunal: Actually you sent an e-mail at 7:12 PM and the Registry closes at 4:30 PM, so I don't know when you thought someone was going to deal with it.

Is there anything other than the two paragraphs in your e-mail sent at 7:12 PM last night that you wish to say in support of your application?

Sethi: And I'm saying that other matter is outstanding. My complaints are outstanding. Those complaints need to be dealt with by the Principal Registry in their entirety. I need, and they need to provide me a response. And so that. And which is why this is. This is one of the grounds that any Member who has dealt with that matter need not to intervene or interfere with my any other matter because there may be some other grounds for them to not deal with my other matters properly.

Tribunal: OK. Thank you.

Mr Austin do you wish to say anything about this?

Austin: The first that we've heard of this application this morning. We were not aware of any e-mail sent last night. But...

Sethi: But it has got nothing to do with them. It has to do with something that Tribunal.

Tribunal: Excuse me Mr. Sethi, I am hearing from your colleague now. I will come back to you for a response.

Sethi: They're not my colleague.

Tribunal: They are a party to these proceedings and...

Sethi: Yes, there are bodies.

Tribunal: You will treat them with respect.

Sethi: I am treating. I'm treating them with them, with them, with respect.

Tribunal: Then you will remain silent until I come back to you.

Austin: I mean, really, I'm. I'm not seeing any basis for recusal.

Tribunal: You're saying it's a matter for the Tribunal?

Austin: Essentially, we don't see any basis for recusal. If parties were to complain about Members and then ask that the Members recuse themselves, nothing would ever get done. So that's all I'll say on the matter.

Tribunal: Mr Sethi is there anything that you wish to say in response to what Mr. Austin has specifically just said?

Sethi: As I said. Previously that it has, it has got, it has got nothing to do with the other party or this matter. That complaint pertains to some other matter.

Tribunal: Well, it does because they are a party. Are you just going to continue to talk over me?

Sethi: But you just asked me do I have something to say? And I'm saying when you started interrupting me.

Tribunal: No, I said Did you have something to say specifically in response to what Mr. Austin said.

Sethi: And that's what I was saying. And then you started interrupting. So can I say.

Tribunal: Does it specifically respond to Mr Austin saying it is a matter for the Tribunal?

Sethi: As I said, it has got nothing to do with the other body. They shouldn't have been asked the question in the first place. It doesn't matter. It does matter to have the matter allocated properly.

Tribunal: The application for me to recuse myself is refused and the Tribunal will provide written reasons within 28 days.

Sethi: As I said, it was not a recusal application. It was an allocation application. It could have gone to your supervisor.

Tribunal: The matter allocated to me. You have asked me not to hear it and to have someone else hear and that is a recusal application, whether you decide that it's called that or not. The recusal application and application for reallocation to another member is refused and the Tribunal will provide written reasons within 28 days

23. However, the applicant continued to interrupt and attempt to re-agitate the recusal application. He also demanded that I provide him with reasons for my decision before the matter proceeded. The following exchange then occurred:

Sethi: I'm sorry. Can I go back? Can you provide the reasons right?

Tribunal: Now? No. You will get written reasons within 28 days.

Sethi: Because then we have to, we have to adjourn the hearing and have a....

Tribunal: In accordance with the Tribunal’s procedures.

Sethi I am suffering a detriment just because you are, you are saying that it will be provided in 28 days.

Tribunal: Well, you will be provided with written reasons within 28 days in accordance with the Tribunal’s procedures.

Sethi: The matter needs to be adjourned.

Tribunal: No. This matter is proceeding.

Sethi: What? What do you mean? You provide me the reasons right now.

Tribunal: I am providing you with the reasons that your application is refused because you have not established any grounds for recusal.

Sethi: That is not. The reason that is. The reason that is a decision that is a decision, the reason.

Tribunal: That is the reason, Mr. Sethi. Please behave yourself. If you cannot contain yourself. Then I suggest you instruct someone to represent. You.

Sethi: Well, look, that's...

Tribunal: You will get written reasons within 28 days.

Sethi: Just for the record, you have failed to provide any reasons.

Tribunal: You can say whatever you wish on the record. In accordance with the Tribunal’s procedures you will be provided with written reasons within 28 days.

…

Sethi: Firstly, I just disagree. It's not the ideal circumstances for which applicant has to proceed with the hearing, however, the applicant reserves his rights.

Tribunal: Well Mr Sethi if you don't like my decision at the end of the day, you're quite welcome to appeal it.

Sethi: It should not have gone to you.

Tribunal: Mr Sethi you do not get to choose which Member of the Tribunal hears your matters.

Sethi: I'm not choosing. I’m saying...

Tribunal: Mr. Sethi, Mr. Sethi, Mr. Sethi I have made my ruling.

Sethi: Do a different allocation. That's it, unless until.

Tribunal: The matter is proceeding.

Sethi: So do you so do you act with, Would you act with integrity? And would you act with the courage? What what? What's required to deal with the matter?

Tribunal: Mr. Sethi, I find the suggestion that you're making from the bar table, that I would not act with integrity, to be highly offensive. I have been a solicitor since 1986.

Sethi: I'm covering, but I'm just covering myself. Yes, you’re the Member. Nothing, nothing to be taken personally, not nothing to be taken personally.

Tribunal: Mr. Sethi if you cannot behave in a professional manner...

You've described yourself as "Executive Director”. Are you a legal practitioner?

Sethi: How does it matter?

Tribunal: I'm asking you.

Sethi: How does it matter for a Tribunal proceeding?

Tribunal: I'm asking you if you are. You're not. OK. Well, I expect you to behave in a professional manner.

Sethi: I'm not answering you. I have been behaving appropriately and very professionally, which is why I wanted to have this matter dealt with outside the hearing so that we can save everyone's time.

Tribunal: Well Mr Sethi, I have twice now explained to you that when a matter is allocated to a Senior Member, it remains with them until they decide otherwise...

Sethi: Don't jump up and down Member. Can I please complete my sentence at least? Right when I'm saying list of witnesses I'm saying I've provided required witnesses and there is only one present. That's what I can say. That's what I wanted to raise. The Case Officer I required because I have had...

Tribunal: I'm not jumping up and down. Will you...

Sethi: Numerous correspondence with the case officer and the submissions I have received doesn't collaborate with that correspondence at all, which is why I am wanting to have that witness as well. So for the cross examination because of the conduct issues I have raised with the meaning of this application as well…

Sethi: But what I'm saying is the case officer is required because, as you may have, if you have had. A chance to review all the documents. There have been extensive submissions also says that few things didn't occur, but as per my correspondence with the case officer and it was an extensive correspondence as well via phone which is why it is really necessitated to have case officer here. So that firstly we will be able to see the conduct of the agency has been for 10 months and they haven't provided anything. And with respect to their submissions, now that the information is not held and things like that, it is really disrespectful to my time to GIPA Act to deprive everyone's time. So that's what I'm saying.

Tribunal: This is a matter for the Tribunal to decide on the evidence...

Sethi: You won't be able to. When I say with respect to the conduct, and why are able to make these submissions by not having the case officer available to cross examine. That would have a detriment to my submissions and my conduct of the hearing. First of all, they should have provided an affidavit by the case officer anyway - by the original decision maker.

24. The applicant continued to attempt to re-agitate his “reallocation” application, which resulted in further exchanges including the following:

Sethi: Given that both witnesses are required. First of all I have concerns on the presiding officer anyway, so there are few concerns that need to be dealt with the fraud.

Tribunal: Mr. Sethi, if we need to be part heard, we will be part-heard.

Sethi: No, it can't be part-heard and I have concerns and I am raising objection again for you to preside the proceedings.

Tribunal: OK, well, I've already dealt with that application.

Sethi: But you are not supposed to deal with it. Someone else needs to deal with it.

Tribunal: I have dealt with the application. I have made a ruling. If you want this matter heard, we're here today to hear it. We will deal with the evidence that we can deal with and if I'm satisfied at the end of the day that the Tribunal needs to hear from Miss Lin, then we will list it on another day so we can hear from Miss Lin. How does that prejudice you in any way?

Sethi: Well, I'm prejudiced anyway that you are deciding on this.

Tribunal: We will keep going. I've made my ruling.

Sethi: Look, but you, you can't make the ruling on your own allocation to the matter.

Tribunal: It was allocated to me and it stays with me unless I am satisfied that there are appropriate grounds to recuse myself. I've already made a ruling that you haven't established any grounds for me to recuse myself, so the matter is proceeding.

Sethi: But you have, as I said, I can't. I can't bring the whole matter – the previous matter where you presided right to here, because that is confidential. This is not. And that is not the same party.

Tribunal: Mr. Sethi, I am dealing with an application for administrative review of the decision made by the Department of Communities and Justice. Do you wish to have that matter heard today or not?

Sethi: With a different presiding member, yes.

Tribunal: I've already ruled on that application.

Sethi: But as I said there, I'm, I'm not accepting that ruling. You can’t rule on your own allocation.

Tribunal: It was a recusal application, Mr. Sethi.

Sethi: It was an allocation application.

Tribunal: So well, the only way that the matter could be reallocated was if there were grounds for me to recuse myself. What part of that don't you understand?

Sethi: No, it's that that can't be done. This is the problem with the allocation process.

Tribunal: Mr Sethi, I have made my ruling. You will get written reasons within 28 days.

Sethi: Firstly and firstly...

Tribunal: Do you wish to have your matter heard? Yes or no. We are already part-heard and we have admitted the evidence.

Sethi: No there is no part-heard. The hearing hasn't been commenced accepting the documents.

Tribunal: the hearing commenced at 10:00 this morning.

Sethi: No it didn't.

Tribunal: Mr Sethi do you wish to have your matter heard?

Sethi: I want another presiding member.

Tribunal: No.

Sethi: Then what will happen if I don't want to continue?

Tribunal: Well, if you choose not to continue, the matter can proceed in your absence, or you can withdraw your application.

Sethi: Because you are assigned, yes, no. What do you mean? Why would I be withdrawing?

Tribunal: OK. So then we'll deal with it.

Sethi: If we will deal with it, Member, I'm making a request. There is no written reasons we published the written reasons of your refusal. Listen to me. Firstly, please listen to me first. ...

Tribunal: No. I will stand the matter for 10 minutes for 10 minutes to allow Mr. Sethi to compose himself because the Tribunal will not tolerate these outbursts.

Sethi: I'm not. No, not any outbursts. Whatever. What application I'm making...

Tribunal: We are, we are back in 10 minutes.

25. Unfortunately, when the hearing resumed, the applicant continued to attempt to re-agitate his application and he was generally disruptive, argumentative and discourteous towards the Tribunal. The following exchange occurred:

Tribunal: Mr Sethi are you ready for your hearing to proceed?

Sethi: Well, if I would have to with you as presiding officer and yes. However, I would like to make this application that you did mention that you will be providing the reasons and ask can I ask that they only be provided to me.

Tribunal: Reasons will be provided on the record as it’s a matter of public record.

Sethi: Why am I asking because the other matter is a confidential matter and any reasons you may have details of that matter, which I don't want you to have.

Tribunal: Mr. Sethi, I will be dealing with the very limited grounds that you have raised in your two-paragraph e-mail.

Sethi: As long as you do not mention...

Tribunal: Mr. Sethi, I have told you I will provide written reasons within 28 days. You do not get to dictate what’s in my written reasons.

Sethi: No, but what? What I'm saying is that the other matter is confidential matter that your reason should not breach that confidentiality. I'm reminding you of that.

Tribunal: Mr Sethi, your name has not been anonymised in these proceedings. Is there some reason for that?

Sethi: I haven't requested yet, no. But I'm saying other proceedings are confidential.

Tribunal: Your name has not been anonymised and this matter is on the public record.

Sethi: This is why I'm saying that you can provide different reasons confidentially to me or to the parties, or just to me, because the other matter is confidential and my recusal or my allocation application...

Tribunal: You are not the only party to these proceedings, Mr. Sethi.

Sethi: What am I saying is my allocation application relates to that that matter, which is why I'm only requesting that you can provide me the reasons confidentially.

Tribunal: It is not an allocation application.

Sethi: Well, for me it was an allocation application.

Tribunal: Well, it's not an allocation application as I've explained to you several times so far today. I will provide written reasons within 28 days and they will be provided to yourself and to the respondent as per the rules of procedural fairness.

Sethi: Well, as long as it does not breach the confidentiality of the other matter. Well, I'm just making a point here which is very valid.

Tribunal: For the last time, I will provide written reasons for my decision to not recuse myself within 28 days.

Sethi: And your reasons will not...

Tribunal: And my reasons would be sufficient to justify my decision. Full stop. End of story. You do not get to dictate what's in my reasons for decision.

Sethi: Breach the confidentiality of further life. You demonstrate misconduct continuously and do proceedings... The reason I have...

Tribunal: I have rejected your application for recusal.

Sethi: It's called an allocation application, as I said. There was no point in making a recusal application because I knew what's going to happen.

Tribunal: Mr. Sethi, I asked you if you wish your matter to proceed today. You are being disruptive. You are being disruptive. What you are being, Mr. Sethi, is disruptive.

Sethi: You have asked me to make a future application. Offensive... I'm making a valid point and because you have involved in the misconduct, that's why you can’t say anything in the previous matter. I've raised a complaint Member; I've raised an official complaint.

Tribunal: Well, thank you for putting that on the public record...

Sethi: You yourself have said while commencing while commencing the proceedings, you yourself has said...

Tribunal: Thank you so much. Thank you, Mr. Sethi, thank you so much for putting that on the public record. Yes. I will now deal with what you have just put on the public record.

Sethi: No, I have not.

Tribunal: You have just put this on the public record that you have made allegations of misconduct against me.

Sethi: No, that's what that is, what that is, what I just said. It is all captured in the audio recording.

Tribunal: That is what you just said...

Sethi: This is all captured in the audio recording.

26. In view of the applicant’s continuing behaviour, the Tribunal instructed a Senior Registry Officer to request an attendance by the Sheriff. The applicant expressed the view that he did not think that was “appropriate”. However, the Tribunal observed that he may need to be removed from the hearing room because he has demonstrated that he has no boundaries and he had just accused me of gross misconduct on the public record.

27. However, the applicant continued to be argumentative and the following exchange occurred:

Sethi: Member I have made a genuine application and because the other...

Tribunal: Mr. Sethi, you chose to raise that matter in these proceedings.

Sethi: I made a genuine application that it could be a very matter is, is confidence. You could have just said yes and then...

Tribunal: I will provide written reasons for my decision to not recuse myself. And thanks to you raising on the public record that you have independently accused me of misconduct, I will also address that on the public record.

Sethi: No, I have addressed. I have said that there was a conduct issue overall.

Tribunal: Mr. Sethi, I have asked the Sheriff to come.

Sethi: If you if you. To progress... So what?

Tribunal: You have a choice. You can either choose to behave in a professional manner with Courtesy to this Tribunal or I will have you removed and the matter will proceed in your absence. What do you want to do? Because I will not tolerate this conduct.

Sethi: OK, you cannot speak. You tell me. When can I speak? And as we...

Tribunal: Are you going to speak with Courtesy or not?

Sethi: I have. If I'm making a recusal application, it doesn’t mean I haven't been prejudiced. I have been prejudiced. I haven't done anything wrong.

Tribunal: You have been discourteous. You have accused me of misconduct on the public record.

Sethi: No, you I have not. You have said it yourself.

Tribunal: You have you said that not to me. You said that, not me, or are you just going to keep talking over the top of me?

Sethi: It is captured in the audio recording. I remember you have stated that I have an application to make to you. This is how the matter...

Tribunal: I asked you. I gave you 15 minutes to compose yourself because you were being disruptive and abusive.

Sethi: I was not.

Tribunal: I came back in. I asked if you were ready to proceed...

Sethi: This is not. Making an application when you have advised me to make an application is not disrupting.

Tribunal: No, I did not advise you to make an application.

Sethi: As soon as we entered, you entered and you said that said he has an application to make.

Tribunal: I asked if you were ready to proceed.

Sethi: And I have further only requested...

Tribunal: You do not get to tell this Tribunal what a Member puts in their reasons. You do not have that right.

Sethi: Member I'm not saying what? What you put. I'm just saying that you provide confidentially to me because the other matter is confidential, OK.

Tribunal: No, it does not work that way. I've told you that three times.

Sethi: You just don't see that and which is why I'm arguing that that's why putting forward an argument is all. It is the whole purpose of the hearings.

Tribunal: You do not get to tell me what I can and cannot put in my written reasons for my decision to not recuse myself. And you have now put this matter on the public record.

Sethi: So yes, but that was the intent. But that was the confidential hearing and which is why I'm saying, which is why I'm saying...

Tribunal: Mr Sethi are you ready for your matter to proceed or not? Are you going to sit quietly and allow the respondent to present its case?

Sethi: I am. They have wasted 10 months.

28. An officer of the Sheriff arrived and he was requested to be seated at the back of the hearing room to assist in containing the applicant’s outbursts.

Reviewable decision

29. The parties ultimately agreed that the reviewable decision is the decision of the respondent dated 28 July 2023.

The evidence

Respondent’s evidence

30. The respondent tendered: (1) A tender bundle; and (2) an Affidavit of Christopher David D’Aeth dated 28 November 2023. These were admitted and marked as exhibits A and B, respectively.

Applicant’s evidence

31. On 22 December 2023, the Applicant filed his Affidavit dated 21 December 2023.

32. Further, on 22 December 2023, the applicant filed a list of witnesses required for cross-examination, which listed Mr D’Aeth and Ms Doreen Lin. However, Ms Lin was not a witness in the respondent’s case and she was not available to attend.

33. On 22 January 2024, the applicant attended the Registry and filed an application for issue of a Summons to Ms Lin to compel her attendance for the purposes of cross-examination at the hearing.

34. The Registrar refused that application on the grounds that it was not clear what the requirement for her to give evidence was as no statement/affidavit had been filed and there was insufficient time to issue a summons for the hearing on 23 January 2023. The Registrar stated that any issue regarding further witnesses could be considered at the commencement of the hearing.

Respondent’s opening argument

35. Mr Austin stated that the respondent pressed the ground that it did not hold the information sought by the applicant, but it did not rely upon the ground that the information sought was already available to him.

36. Mr Austin stated that the applicant specifically sought two schedules of matters that were finalised by the Supreme Court of NSW, but he did not seek source documents. He said that the respondent has searched for the records that the applicant sought and no records are held in the format that he requested. Therefore, to comply with the GIPA request, the respondent would need to create new records and it had no obligation to do so.

37. Therefore, the correct and preferable decision is to affirm the decision under review under s 58(1)(e) of the GIPA Act.

Evidence of Mr D’Aeth

38. As the applicant required Mr D’Aeth to attend for cross-examination, Mr Austin called him and he affirmed that his affidavit dated 27 November 2023 was true and correct.

39. Mr D’Aeth stated that his substantive role is that of Principal Registrar and Executive Director of the Supreme Court of New South Wakes, but he is currently the Acting Deputy Secretary Court Services, and that position is more senior than his substantive role.

40. Mr D’Aeth deposed this his responsibilities in his substantive role include managing the daily operations of the Supreme Court of NSW, ensuring the efficient case management of proceedings, supervising registrars and registry staff in the exercise of the Court’s functions and directing registry staff to conduct searches for and collate information for reporting purposes. As the Principal Registrar, he is the most senior representative of the respondent within the Supreme Court and exercises quasi-judicial functions.

41. Mr D’Aeth deposed that he has acquired significant knowledge and experience of the operations of the Supreme Court’s registry, including knowledge in case management and record keeping systems. He stated that the Court has assisted the Open Government, Information and Privacy Unit (‘OGIP’) of the respondent and Legal Services Division to conduct searches of the Court’s information holdings for information sought by the applicant in his GIPA request.

42. Mr D’Aeth stated that information relating to proceedings before the Supreme Court are recorded electronically in JusticeLink and in hard copy Court files. Material is received and accepted electronically by the Court via the NSW Online Registry and by email, and in hardcopy via post or over the counter at the Court’s registry. A hard copy Court file is created for each matter in the Court. The file contains physical documents relating to the matter, such as original documents filed by the parties, and where relevant, copies of transcripts of hearings. The Court holds the hard copy file, which the parties may access subject to the Rules of the Court. When a matter concludes, the hard copy file is prepared for archiving in accordance with the relevant disposal authority as agreed with Museums of History NSW (State Archives). A file can be retrieved by the Court upon request internally, or by a part, member of the public, or the media, pursuant to the Court’s Practice Note SC Gen 2.

43. Mr D’Aeth stated that JusticeLink is a computer-based case management system, used by the Court. It was implemented prior to 2010 for all Supreme Court matters. Broadly, it records information relating to criminal and civil cases including case or proceeding numbers, names of parties, applications lodged, charges brought in the case, listings and orders or outcomes of listings. A case may be comprised of multiple proceedings. In civil cases, the originating process creates a matter. Each subsequent application filed may create a separate proceeding recorded against the same civil matter/case. In criminal cases, each charge relating to a defendant that arises from the same event is recorded as a separate proceeding against the same criminal case.

44. A JusticeLink user can only conduct searches for a case of proceeding using specific search criteria, such as: (a) case number or proceeding number, e.g., 2023/00000001-02, where ‘2023/00000001’ is the case number and ‘02’ is the proceeding number within that particular case; (b) participant, e.g., using a surname or organisation name and/or given name; (c) role, being the person’s relationship to the case or proceeding, e.g., plaintiff, defendant, prosecution; (d) identified, e.g., Legacy System Identifier; (e) jurisdiction, e.g., Supreme Court Civil Jurisdiction; and (f) location, e.g., Supreme Court Sydney.

45. An advanced search for a case or proceeding can be conducted using the following non-exhaustive additional search criteria: (a) proceeding type, e.g., probate; (b) proceeding status, e.g., case open; (c) Lawpart code, which refers to a substantive offence, or Lawpart code modifier which refers to a derivative offence; (d) Court file number; (e) listing date.

46. However, JusticeLink does not have ‘free text’ searching capabilities. For each case matching the search criteria, JusticeLink will display the case number, case title, registry, listing date, listing venue, proceeding type, proceeding status and lodgement date. JusticeLink users can view further details about a case by clicking on the case number. In order to identify specific legislation under which a criminal charge was brought, a JusticeLink user would need to review each proceeding within a particular criminal case, in addition to the corresponding hardcopy Court file if the information in JusticeLink relating to the charge(s) is unavailable or insufficient.

47. Mr D’Aeth deposed that he is satisfied, based on the purpose and functionality of JusticeLink, that here is no record within the system containing the information sought by the applicant.

48. In criminal matters, subpoenas are stored on OneTrim, an electronic document and records management system. A small number of administrative records, e.g., fee postponement applications and determinations are also stored in One Trim.

49. In relation to searches for information responsive to the GIPA request, Mr D’Aeth referred to paragraphs [26] to [30] of his affidavit, which refers to a chain of correspondence between staff of the Supreme Court and the OGIP Unit between 31 March 2023 and 20 July 2023. A copy of that email chain was annexed to his affidavit and marked “A”. He stated, relevantly:

26. On 4 April 2023, I was contacted via email by Mr Giancarlo Nalapo of the OGIP Unit with an enquiry regarding searching for information sought by the applicant relevant to his Access Application. I responded to that correspondence on the same date advising Mr Nalapo of the need for further clarification to conduct relevant searches.

27. On 20 April 2023, I exchanged several further emails with Mr Nalapo providing him with further information regarding information that is publicly available on the Supreme Court’s website, and explained the onerousness of the searches for information that may be required to produce the information sought by the applicant.

28. On 19 June 2023, I received correspondence from Ms Doreen Lin of the OGIP Unit seeking further advice regarding an amendment to the applicant’s Access application. I responded on the same date advising Ms Lin that records of the information sought by the applicant do not exist and would need to be created. I also advised Ms Lin of an alternative process through which individuals may apply to the Supreme Court for a Civil Litigation Search Report. I have set out that process in further detail at paragraphs [38] to [44] below.

29. On 30 June 2023 and 19 July 2023, I exchanged further emails with Ms Lin regarding the nature and extent of work involved with the searches that would be required to produce a record of the information sought by the applicant.

30. On 20 July 2023, I referred Ms Lin to Ms Naomi Ubrhien, Manager of the Supreme Court’s Client Services Team.

50. In relation to subsequent searches by the Operational Analysis and Reporting Team, Mr D’Aeth deposed that on 25 October 2023 and 20 November 2023, the Supreme Court’s Operational Analysis and Reporting Team (‘OAR Team’) conducted searches for any records falling within the scope of the access application. This is a two-person business unit within the Court’s registry, consisting of a Manager and Caseload Researcher. The Caseload researcher reports to the Manager, who in turn reports to himself. This team is responsible for collating data and publishing statistics in relation to Supreme Court matters.

51. In relation to this GIPA request, the OAR team conducted searches of their personal email accounts, in addition to the shared ‘inactive case’ and the ‘Analysis & Reporting’ email accounts that they managed. However, no information was located as a result of these searches. A copy of the email from the Manager dated 20 November 2023, which documents the search criteria used and the results of the searches, was annexed to the affidavit and marked “B”.

52. For these reasons, Mr D’Aeth deposed that he is satisfied that the Supreme Court does not hold an existing schedule of information as described in the GIPA request.

53. Mr D’Aeth then provided evidence about the Civil Litigation Search Report and he annexed a copy of the application form (marked “C”). He stated that generally, such a report is purchased by commercial firms for due diligence purposes, e.g., merges and acquisitions. However, anyone can purchase such a report. However, this report is not able to generate details of: (a) undefended cases before the Court’s Common law Division, unless the full name of the defendant was listed on the application; (b) matters in the Common Law Possession List; (c) cases that are subject to suppression orders; and (d) applications for overseas service of documents. Further, a report of a Civil litigation search is not able to generate case summaries or details of the solicitors on record, and further, is limited to civil cases. A report is not able to provide information relating to criminal cases.

54. In response to an application for a Civil Litigation Search, the Court conducts a comprehensive search of its records across JusticeLink to locate the relevant information. The process of searching for relevant information to produce a report cannot be automated by any computer system used by the Court. It requires a staff member to manually check the Court’s existing records and copy relevant information into a single document to produce a report.

55. Mr D’Aeth stated that Civil Litigation Searches are not produced through standard business reporting functions of the Supreme Court. These are only produced in direct response to an application lodged by a member of the public and are based solely on the select information supplied by the applicant. The applicant did not apply for a Civil Litigation Search.

56. In relation to the creation of a schedule of information relating to criminal proceedings (item 2 of the GIPA request), Mr D’Aeth stated that JusticeLink does not support ‘free text’ searches for legislation or section(s) of legislation under which a criminal charge has been brought. He stated, relevantly:

49. Advanced searches using Lawpart Code or Lawpart Code Modifier are not appropriate because:

a. a high volume of Codes and modifiers need to be searched, e.g. there are 45 Codes for charges relating to ‘conspiracy’, many of which may be unrelated to the applicant’s request.

b. the results of such searches would be inaccurate as they would include cases where the charge(s) under the specific codes were dismissed.

50. Consequently, to identify criminal cases based on the relevant charge, a Supreme Court staff member using JusticeLink would need to manually view each individual file. If relevant information is located within existing Court records, the staff member would need to copy that information from the record in which it is found into a separate schedule.

51. For a period exceeding 10 years, as with this Access application, thousands of cases would need to be individually reviewed. This may take many hundreds of hours to complete.

Cross-examination of Mr D’Aeth

57. The applicant referred Mr D’Aeth to paragraph 13 of his affidavit, in which he described JusticeLink, and asked him to clarify his evidence. The witness replied that it is a case management system and not a reporting system and that it does not hold a document containing the information sought in the GIPA request.

58. The applicant asked Mr D’Aeth when a matter concludes in the Supreme Court. The witness replied to the effect that a matter concludes when judgment is given and that files from concluded matters are then sent to a repository off-site.

59. The applicant asked Mr D’Aeth whether there are any ‘mixed’ cases in the Supreme Court? The witness replied to the effect that matters are either civil or criminal and there are no mixed cases in the Supreme Court.

60. The applicant asked Mr D’Aeth what system was used before JusticeLink, and the witness replied to the effect that there was a Legacy System.

61. The applicant asked Mr D’Aeth about a Lawpart code and what this is. The witness replied to the effect that it is a code created by the Bureau of Crime Statistics and Research (‘BOSCAR’), which is a statistical and research agency within the Department of Communities and Justice.

62. The applicant asked Mr D’Aeth whether a Lawpart code master list exists, and where he could obtain a copy of it. The witness replied to the effect that a Master List would exist but that it is not a list that belongs to the Supreme Court. However, he stated that while criminal offences generally have a Lawpart code, which would be entered into JusticeLink, it would still be necessary to search hard-copy records for the reasons he set out in his affidavit.

63. The applicant then referred to paragraphs 31, 32, 33 and 34 of Mr D’Aeth’s affidavit and he asked why he sent a request to the OAR team and why were their emails searched? The witness replied to the effect that he knew that the requested schedules did not exist, but in the case of the current proceedings, the OAR team was the only place where keyword searches could be conducted and although these were conducted, no information was found.

64. The applicant asked Mr D’Aeth how a Civil Litigation Search report is degenerated and the witness replied to the effect that as per his affidavit, it is done manually by cutting and pasting information from databases and that a new document is created for each search request.

65. The applicant then sought to cross-examine Mr D’Aeth on matters that went beyond his affidavit evidence. Mr Austin objected and the Tribunal upheld the objection.

66. This resulted in a further outburst from the applicant, as follows:

Tribunal: Mr Sethi where in your GIPA request did you ask for a master list of Lawpart codes?

Sethi: I have asked in Table 2.1, I have asked all matters related to this and in the and in their response they have provided that that can be searched by using a Lawpart code.

Tribunal: I repeat, where in your GIPA request did you ask for a master copy of the law art codes?

Sethi: In Table 2.1 I'm just asking right now because it has been provided. This is a new information in my GIPA request. This is being this affidavit has been shown on 28th of November. Right. And the searches were conducted even after my GIPA request even after the notice of decision. So, this is why I'm asking, well, this is this has become now because this is a part of the affidavit which has been provided as well.

Tribunal: It is not within the scope of your request. You may not expand the scope of your request Mr Sethi.

Sethi: We have discussed so much on Lawpart codes, what is the problem if Mr D’Aeth can answer a small question.

Tribunal: Mr. Sethi, I just asked you a question.

Sethi: What is the question?

Tribunal: Where in your GIPA request table 2.1 did you request a copy of the Lawpart code master list.

Sethi: In table 2.1, it can be responded to by the respondent.

Tribunal: Mr. Sethi why are you are not answering my question?

Sethi: I don't have to answer because that has been provided by Mr. D’Aeth.

Tribunal: You have to answer that question. It sounds like it is outside the scope of your request.

Sethi: Is not. It is no, it is clearly in the scope. It is OK you said. You said the cross examination can be done on the affidavit. I am. I am referring to 49A.

Tribunal: I'm asking you, Mr Sethi, I am referring you to table 2.1 of your request.

Sethi: I am referring to Mr. D’Aeth’s affidavit 49A.

Tribunal: Where did you request a copy?

Sethi: Mr. D’Aeth’s affidavit 49.

Tribunal: Are you going to continue to yell at me?

Sethi: I am not. You are just interrupting and just delaying the proceedings. We can let, we can let Mr. D’Aeth go and we and I met the conclusion of my cross examination. Please let me continue.

Tribunal: Mr Sethi, answer my answer my question, or I will have you removed.

Sethi: Just do not interrupt. That's what you can do.

Tribunal: Where did you ask for a copy of the last of the list?

Sethi: I also asked that you need to behave with integrity.

Tribunal: Where in your GIPA request did you ask for a of the master list?

Sethi: On the basis of first listen to me. Listen, can you? Can you now stop interrupting me? You have asked me a question. Let. Me. Let me. Answer it if you ask me your question, let me answer it.

Tribunal: And you said you didn't. That's the answer.

Sethi: No, I didn't answer. I didn't finish my answer. My answer is... hang on, let me finish. Let me finish. Let me finish.

Tribunal: Are you asking the witness now because you didn't ask in your application?

Sethi: Let me finish. I am cross examining. Hang on. Listen to me. I am cross examining Mr. D’Aeth on his affidavit. That's what I'm doing right? Now are...

Tribunal: And you were asking where he where you can get a copy of that document which is not in the scope of your application.

Sethi: But is the scope of my cross examination provided which is being constructed on the evidence provided by the respondent.

Tribunal: Do you agree that you did not request a copy of that document?

Sethi: I am requesting something. I'm cross examining the affidavit. I'm not discussing my submissions on the basis of my GIPA application and Table 2.1.

This is ridiculous. Because they have. Because it's OK. Can you see Mr. D’Aeth’s affidavit? Can you see a section above paragraph 48. Right. Creation of schedule it clearly says item 2 of applicant’s request that's. Right... Hang on. Listen to me first. Don't interrupt. Don't interrupt. Now, don't interrupt. Now I'm saying I on item. Two on item 2, Mr. D’Aeth has provided some evidence and I'm just clarifying something. Let Mr. D’Aeth go. I am just finishing my cross examination, which will be done in which could have been done if you wouldn't have interrupted. You are interrupting the proceedings continuously.

Tribunal: Mr. Sethi. I have asked you the same question four times now. I'm still waiting for an answer to it.

Sethi: Affidavit of Mr. D’Aeth paragraph 49A.

Tribunal: Mr. Sethi, do you agree that you did not request a master list of the Lawpart codes in table 2.1 of your GIPA request?

Sethi: Let me cross examine and I'll get back to you. Let me cross examine and. I'll get back to you.

Tribunal: No, no, no, answer it now please.

Sethi: I don't. I don't have to answer you. You have. To answer me. No, hang on. This is my, I am the member of the public. This is my application. You are you are. You are a public servant, right? And you have a duty assigned to help me. Assist me. Get this information from the agency.

Tribunal: Mr. Sethi, my role here is to make the correct and preferable decision based on the evidence.

Sethi: And do it and let me cross examine on the affidavit on the evidence provided by the respondent.

Tribunal: I am asking you a question and we're not moving on.

Sethi: Exactly because you keep disrupting.

Tribunal: Mr. Sethi, is that a yes or a no?

Sethi: I don't have to answer.

Tribunal: You do.

Austin: Irrespective of what was requested in the GIPA application, a master list of Lawpart codes is not something that's maintained by the Supreme Court. This witness. Is not positioned to answer that question. That's not maintained by his business area. It's not necessarily within his knowledge, nor is it relevant to.

If the applicant is alleging that something should have been done, that wasn't, that's a matter for his submissions. There's no evidence that Mr D’Aeth can give in support of that.

Sethi: Yeah. Yeah. So that's that's fine. Thank you, Mr. Austin. That's could have been asked and answered rather. You keep it interrupting Member. It could have saved 10 minutes of everyone's life.

Tribunal: I'm speaking now as the presiding member. If you don't like it...

Sethi: … in the middle of cross examination.

Tribunal: I'm ruling on the objection.

Sethi: There is no ruling required. Asked and answered, then there is no question. That's it.

Tribunal: You are not conducting these proceedings.

Sethi: Answer done. I don't know. Let's move on. You're just trying to keep interrupting.

Tribunal: Mr. Sethi, this is not an American TV programme.

Sethi: American there is no American TV program going on here. I'm reminding of you of your duties.

Tribunal: I am upholding the objection. There is no request before me.

Sethi: Asked and answered, let's move on then.

Tribunal: Move on.

Sethi: There was no objection.

Tribunal: Mr Austin’s objection is upheld.

Sethi: there is no objection that he has asked and answered that, and that was my question was you couldn't you...

Tribunal: Mr Sethi do you have any further questions?

Sethi: Yes, I do. Can you stop speaking?

Tribunal: Mr Sethi...

Sethi: Ms. Riordan, can you stop speaking?

Tribunal: Mr. Sheriff, would you please remove the applicant from the hearing room until he can compose himself, and then we can come back and hear the matter.

Sethi: I'm composed. OK, she's saying until I'm composed, she's saying until I'm composed. OK, I'm composed.

Tribunal: No, you're not composed because you are yelling at me and I will not tolerate it. Do you understand that? Do you understand that? Your behaviour is totally inappropriate. If you wish to have the matter proceed, then you will contain yourself and contain your outbursts and you will attempt to behave in a courteous manner to this Tribunal. If you don't, you have an option available to you. You can choose to leave now. What's your answer? I will not put up with this behaviour.

Sethi: What's my answer? Move on. There is.

Tribunal: I will not put up with these outbursts.

Sethi: I have not interrupted. You have interrupted. I have been asking questions.

Tribunal: Mr Sethi are you able to continue in a professional manner or so I have the Sheriff remove you?

Sethi: I have been continuing and I am continuing. I am about to finish, yes.

Tribunal: Mr Sethi please answer my question.

Sethi: Why?

Tribunal: Mr Sheriff could you please remove Mr Sethi for 10 minutes and if he is prepared to come back and behave in a manner that is not in a bullying manner the hearing will resume.

67. The applicant initially refused to leave, but the Sheriff instructed him that he needed to leave the hearing room for 10 minutes. The following exchanged then occurred:

Tribunal: You have 10 minutes to calm down and if you come back and you continue this behaviour, we will repeat this.

Sethi: I know what you guys are doing.

Tribunal: Mr Sethi contain yourself. I will not put up with this behaviour.

Sethi: I know what you guys are doing. Doing it all this deliberately.

68. I excused Mr D’Aeth from the witness box and stood the matter in the list for 10 minutes.

69. When the matter resumed, Mr D’Aeth returned to the witness box. I informed the applicant that because he is self-represented, I had allowed him considerable leeway, but I asked him to restrict remaining questions to matters that are relevant to the scope of his GIPA request.

70. The applicant then asked Mr D’Aeth if the Civil Litigation report would also retrieve any dismissed cases? The witness referred to paragraph 41 of his affidavit and stated that it does not include all matters. A matter is finalised by way of a judgment of the Court.

71. The applicant referred to paragraph 49b and asked whether information in criminal matters can be retrieved from JusticeLink? The witness replied that the point of paragraph 49b, which refers to Lawpart codes, is that criminal matters in the Supreme Court are complex and the Court’s policy is to retrieve the hard copy files from storage and manually search for required information. This is separate to and very different from a Civil Litigation Search Report, which can be completed using JusticeLink.

72. The applicant asked whether it would show matters that were dismissed in JusticeLink? The witness replied to the effect that once there has been a determination by either a judge or jury, depending on the type of matter, a matter is either marked open or closed.

73. The applicant referred Mr D’Aeth to annexure “A” of his affidavit and put to him that up to 20 July 2023 no searches were conducted as this was what he had been advised by the case officer. The witness replied that no searches were conducted before then because the GIPA request was broad and he formed the view that no document of the type requested was held by the Court. He said that up to 20 July, the Court was trying to assist him to identify the information that it may be able to assist him with by directing him to the Civil Litigation Search Report and to Annual Reviews and other information that may assist or caselaw where he could search judgments of the Court for finalised matters.

74. The applicant asked Mr D’Aeth to explain the difference between ‘participant’ and ‘parties’ and he asked if ‘participant’ was a company name. The witness replied that participants can be parties but there can be number of persons such as interested persons, lawyers, barristers and the like.

75. The applicant referred to annexure “D” to his affidavit and asked whether he agreed that it relates to any Civil Litigation Search that he may have applied for. The witness replied that this was a search to see whether the applicant had lodged an application for a Civil Litigation Search.

76. The applicant then stated that he had no further questions for the witness.

77. Mr Austin did not seek to ask the witness any questions by way of re-examination and I excused the witness from further attendance.

Applicant’s evidence

78. The applicant relied upon an affidavit that he affirmed on 21 December 2023. This was admitted into evidence and marked Ex “1”.

79. I note that the applicant’s affidavit largely comprised submissions rather than evidence and that the Tribunal considered his “opening” as his submissions in the matter.

80. The applicant stated that he made the GIPA request on 31 March 2023, but it was only accepted as ‘valid’ on/about 10 April 2023.

81. The applicant complained that his GIPA request could have been decided within 20 days, but the first response he received from the respondent was dated 17 May 2023, and he received it on 19 May, and it was late.

82. The applicant said that he continued to ask the respondent what information it could provide and that he had regular correspondence with case officers. He then provided Table 2.1 to the respondent “to assist them to provide further information” on 15 June 2023, but he maintained that item 1 of his GIPA request was valid from 10 April 2023. The agency implied and he understood that they did not need to create a new document and that the information sought in item 1 was available and could be provided to him.

[82] Where (as here, at least in part), prejudgment is relied upon, what must be firmly established is a reasonable fear on the part of the bystander that the decision-maker's mind is prejudiced in favour of a conclusion already framed, so that he or she will not alter that conclusion irrespective of the evidence or arguments presented. That reasonable fear must be firmly established because it is to be expected that judicial officers may have formed views or inclinations of mind with respect to particular subjects in the course of their professional careers, which will be put to one side in the determination of proceedings on the evidence and on the merits: CUR24 v Director of Public Prosecutions at [36].

[83] It is necessary to keep firmly in mind the distinction between apprehended bias and actual bias…

…

[85] In a case of actual bias, the actual state of mind of the judicial officer is in issue. In a case of apprehended bias, the focus is on the apprehension of the bystander. The latter test is usually easier to satisfy: Spencer v Bamber [2012] NSWCA 274 at [16].

…

[87] As the rule is concerned with appearance of bias, and not the actuality, it is the perception of the bystander that provides the yardstick - it is the public's perception of neutrality with which the rule is concerned: British American Tobacco Australia Services Limited v Laurie at 331 [139].

…

181. After hearing from the applicant, I was not satisfied that he had established a proper basis upon which I should recuse myself because my conduct of the current matter would give rise to an apprehension of bias.

182. The mere fact that I had determined another administrative review application contrary to the applicant’s case would not, in my view, lead a fair-minded lay observer to apprehend that I would not bring an impartial mind to the issues in this inquiry or to determine its outcome other than on its merits. This inquiry is entirely unrelated to the applicant’s previous GIPA Act proceedings. A fair minded lay observer would accept that my decision in those proceedings has no bearing on my decision in this matter. The same would be true if I had determined the GIPA Act proceedings in a manner favourable to the applicant. I am not satisfied that a fair minded observer would apprehend that this would lead to me determine the present inquiry in the applicant’s favour contrary to its merits.

183. Nor in my view would a fair-minded lay observer be concerned that the applicant’s Internal Appeal from my decision in his GIPA Act proceedings would cause me to bring other than an impartial mind to the determination of the present proceedings. Such a person would accept that appellate review of decisions made by me is an ordinary incident of my role as a Tribunal Member and is not a circumstance that would cause me to deviate from determining a different application made by the applicant other than in accordance with its merits.

184. Accordingly, I refused the application for recusal, which the applicant insisted that he had not made.

185. I also refused the applicant’s application to adjourn the matter so that the Registrar could determine his application for re-allocation of the matter to another Presiding Member.

186. The fact of the matter is that the Registrar referred the applicant’s request to me, as the Presiding Member, for consideration at the commencement of the hearing. I duly considered it and as I was not satisfied that there was any proper basis for adjourning the hearing, the matter proceeded to hearing.

Consideration

Legal principles

187. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision". On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states:

63. Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

188. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

189. In respect of access applications, s 9(1) of the GIPA Act relevantly provides:

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 (Access applications) unless there is an overriding public interest against disclosure of the information.

190. I am satisfied that the Decision dated 28 July 2023 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.

191. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.

192. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

193. In the event that the Tribunal finds that the information sought in the GIPA request is held by the respondent, then:

1. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".

2. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.

3. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

1. identify the public interest in favour of disclosure (s 12);

2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

4. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

5. Section 14 relevantly provides:

14. Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

6. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

7. Section 14(2) of the GIPA Act provides:

The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

194. Section 53 of the GIPA Act provides:

Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

195. Section 61 of the GIPA Act provides:

Notice of decision to refuse to provide access

Notice of an agency’s decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following—

(a) the agency’s reasons for its decision,

(b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based,

(c) the general nature and the format of the records held by the agency that contain the information concerned.

196. Section 73 of the GIPA Act provides that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world.”

197. Section 75 of the GIPA Act provides:

Providing access by creating new record

(1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information.

(2) An agency’s obligation to provide access to government information in response to an access application does not require the agency to do any of the following—

(a) make a new record of information held by the agency,

(b) update or verify information held by the agency,

(c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

198. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

The scope of the GIPA request

199. On its face, there is no dispute that the GIPA request sought information in a particular form, namely “schedules” containing the information set out in items 1 and 2.

200. However, during the hearing, the applicant asserted that he was not seeking schedules, but that he wanted the “underlying information”, which Mr D’Aeth’s evidence indicates is held by the respondent.

201. The difficulty with the applicant’s assertion during the hearing is that it was made late in the hearing and after Tribunal had drawn his attention, on several occasions, to the fact that the GIPA request sought information in a particular format – namely “schedules” and the evidence from the respondent indicates that it does not hold any such “schedules”.

202. I am satisfied that the scope of the GIPA request is limited in that it sought “schedules” containing the information set out in items 1 and 2 and particularly Table 2.1 of the amended GIPA request. For this reason, I consider that the applicant’s belated request to obtain “underlying information” from the respondent exceeds the scope of the GIPA request.

Did the respondent conduct reasonable searches?

203. In Wojciechowskav Commissioner of Police (supra), the Appeal Panel extensively reviewed the authorities relating to s 53 of the GIPA Act. The decision has received positive treatment at first instance: Ugur v Commissioner of Police [2020] NSWCATAD 293 at [21] per Senior Member Ludlow.

204. It is not necessary to prefer one approach over the other in the context of these proceedings. The key issue of fact, on either approach, is whether the respondent’s search efforts were reasonable in the circumstances: Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286 at [50] per Senior Member McAteer; and Seremitis v Commissioner of Police; Seremitis v Department of Communities and Justice [2020] NSWCATAD 317 at [42].

Item 1 of the GPA request

205. This sought the following documents (emphasis added):

1. A schedule of all matters lodged or finalised in the Supreme Court of New South Wales, between 01/01/2010 to 01/01/2023, with the file number, application type, summary, applicant/appellant details and solicitor for applicant or appellant, where any of the blow entities is a respondent or a defendant:

a. Macquarie Group Limited (CAN 122 169 279)

b. Macquarie Bank Limited (CAN 008 583 542)

c. Macquarie Group Services Australia Pty Ltd (CAN 116 467 031)

206. The respondent’s evidence is that it does not hold any information of this nature in the form of a schedule. While Mr D’Aeth’s evidence on this issue was challenged by the applicant, who repeatedly asserted that the respondent “could create a schedule”, the applicant did not offer any cogent reason as to why his views should be preferred to the evidence of Mr D’Aeth.

207. With respect to the applicant and his views regarding the respondent’s alleged ability to generate “a schedule” of the information that he requested using its case management system, I am not satisfied that there is a safe climate for finding that the respondent holds the information in the specific format sought in item 1 of the GIPA request.

208. I further note that while the applicant asserted that case officers had “agreed” with him that the information sought in item 1 of the GIPA request was held and could be provided, that evidence is contrary to the evidence of Mr D’Aeth and the applicant was unable to identify which case officer(s) so agreed with him and/or when their “agreement” was communicated.

209. It follows that prefer the evidence of Mr D’Aeth as the most senior operational officer of the Supreme Court of NSW to the unsubstantiated assertions made by the applicant in relation to this issue.

210. As a result, I am satisfied that the respondent conducted reasonable searches and that it does not hold any documents that are responsive to this particular request.

Item 2 of the GIPA request

211. This request was set out in detail previously in this decision and I have not re-extracted it here. However, it also sought information in the form of “a schedule” (emphasis added).

212. In my view, the views and findings that I expressed in relation to item 1 of the GIPA request apply equally to item 2.

213. For these reasons, I am satisfied that the respondent conducted reasonable searches and that it does not hold any documents that are responsive to this particular request.

Other issues raised by the applicant

214. During the hearing, the applicant argued that the respondent was guilty of misconduct because it failed to determine his application for an internal review.

215. I note that the evidence before me indicates that while the applicant did post an application for internal review to the respondent, he sent this to a redundant address which differed from the address indicated in the reviewable decision in this matter.

216. In my view, this was clearly an error on the applicant’s part, but it does not provide a safe climate for a finding that the respondent was guilty of misconduct by reason of the return of the mis-addressed internal review application by Australia Post and the respondent’s subsequent decision not to conduct an internal review as the application was received outside the timeframes set out in the GIPA Act.

217. While he did not clearly elaborate on the “misconduct” aspect of his submissions, it appears that the applicant was attempting to allude to the provisions of s 112 of the GIPA Act, which provides:

Report on improper conduct

If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of—

(a) the Minister who appears to NCAT to have responsibility for the agency, or

(b) if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner.

218. With respect to the applicant, there is no evidence before me that supports a finding that an officer of the respondent failed to exercise in good faith a function conferred upon them by or under the GIPA Act.

219. As a result, I am not satisfied that there is any sound climate for making an order under either ss 112(1) or (b) of the GIPA Act.

Conclusion

220. In my view, the correct and preferable decision is to affirm the respondent’s decision dated 28 July 2023.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

11 March 2024 - Changed Representation on Coversheet

Decision last updated: 11 March 2024