Shoebridge v Commissioner of Police, NSW Police Force (No 2)

[2018] NSWCATAD 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Shoebridge v Commissioner of Police, NSW Police Force (No 2) [2018] NSWCATAD 3
Hearing dates:	On the papers
Date of orders:	04 January 2018
Decision date:	04 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer (Senior Member)
Decision:	(1) The request by a third party to access “the specific affidavits and submissions tendered (19 December 2017)” is refused.
Catchwords:	GIPA Act – Practice and Procedure - Government Information - Access – Third party request to access documents – Whether access should be granted to documents when proceedings not concluded.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Government Information (Public Access) Act 2009
Cases Cited:	Hearne v Street [2008] 235 CLR 125 Shoebridge v Commissioner of Police, NSW Police Force [2017]NSWCATAD 334
Category:	Procedural and other rulings
Parties:	David Shoebridge MLC (Applicant) Commissioner of Police NSW Police Force (Respondent)
Representation:	Solicitors: Applicant in person Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00045369

Reasons for decision

Background

1. On 19 December 2017 Mr Max Chalmers applied to the Tribunal for access to the specific affidavits and submissions tendered that day in these proceedings.

2. For reasons which will become apparent the application will be refused. An earlier application had been made by Mr Chalmers for the material filed by the parties in these proceedings. Preceding that application Mr Chalmers had sought the material from each party. The applicant consented and as I understand the matter, provided copies of his material. The respondent did not consent.

3. The earlier application came before Deputy President Hennessy who decided the matter on 23 October 2017 and subsequently provided written reasons on 25 October 2017. See Shoebridge v Commissioner of Police, NSW Police Force [2017] NSWCATAD 334. (Shoebridge No 1)In that decision access was refused on the basis of material sought had not as yet been received in evidence, and the proceedings not being finally concluded.

4. In the current application whilst the proceedings have not been finally concluded, the open evidence has now been received. The matter has come to me (without any initial decision of the Registrar) as the substantive matter is part heard before me. I have also decided to determine the matter on the papers having regard to the fact that the applicant has again been advised to seek the further information from the relevant parties, and the arguments have been predominantly put before the Tribunal on the last occasion. I note that there has been no application to have the matter heard by the Tribunal and I note that the legislation provides for the Tribunal to determine its own procedure in relation to any matter. I note that the Tribunal may determine a matter without a hearing. (s-38(1) Civil and Administrative Tribunal Act 2013).

5. In Shoebridge No 1 Deputy President Hennessy set out in her reasons the balancing between the concept of open justice and the need to ensure that the proceedings properly facilitate the guiding principle of the Tribunal. Significantly that the proceedings are disposed of in a just manner affording fairness to the parties. At Paragraphs [4]-[6] the Tribunal observed:

4. A person is entitled to apply to a registrar of the Tribunal to inspect or receive a copy of a document relating to proceedings in the Tribunal that are finally determined: Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), r 42. Under Rule 42 and NCAT Policy 4, (January 2016) - Access to, and Publication of, Information Derived from Proceedings in the Tribunal, access by non-parties is generally limited to “public access documents” after proceedings have been finally determined. The circumstances in which a proceeding is “finally determined” are explained in Rule 42(7). Rule 42(8) provides that “public access documents” include “a statement, affidavit or document admitted into evidence in proceedings held in public” but subject to any of the exceptions in Rule 42(5).

5. The principles on which Rule 42 and NCAT Policy 4 are based are also relevant when the Tribunal, rather than the Registrar, is deciding whether to give a third party access to documents lodged in proceedings. In addition, the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the ‘guiding principle’ are relevant: The following objects are particularly relevant:

“to ensure that the Tribunal is accessible and responsive to the needs of all its users”: NCAT Act, s 3(c);

“to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible”; NCAT Act, s 3(d);

“to ensure that the Tribunal is accountable and has processes that are open and transparent”: NCAT Act, s 3(f); and

“to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members”; NCAT Act, s 3(g).

6. The Tribunal’s ‘guiding principle’ is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: NCAT Act, s36.

6. I note the references in Rule 42 to ‘relating to proceedings in the Tribunal that are finally determined.’ I also note the specific criteria for deciding whether proceedings have been finally determined. Rule 42 (7) specifies:

7) For the purposes of this rule, proceedings in the Tribunal are finally determined if:

(a) the Tribunal has completed all the processes necessary to decide the substantial merits of the proceedings (including, where required, the giving of reasons for the decision and the determination of costs), and

(b) no further internal appeal or appeal to a court in respect of the proceedings is available because:

(i) legislation does not provide for such an appeal against decisions in the proceedings, or

(ii) the period for lodging such an appeal or an application for leave to appeal in respect of the proceedings has expired (ignoring any period that may be available by way of extension of time to appeal or seek leave to appeal), or

(iii) an appeal lodged in respect of the proceedings has been determined.

7. At paragraph [10] of Shoebridge No 1 the Tribunal decided that it would be unfair to the parties to release material prior to it being received in evidence.

10. A party may not ultimately rely on all the material it has lodged. In addition, the Tribunal may decide the material is not admissible. Balancing all the relevant considerations, my view is that fairness requires that the Tribunal should not disclose that material over the objection of a party until the material has been received in evidence.

8. The case of Hearne v Street [2008] 235 CLR 125 was referred to in Shoebridge No 1. That case examined (amongst related issues) grounds for releasing material by the parties to the proceedings. The Court examined the subordinate legislation relating to access to documents. At paragraph [98] the Court conducted an examination of the relevant Practice Note. The Court observed:

98. It may be noted that the general law protection is often buttressed by protection from rules of court. Thus until 15 August 2005, the New South Wales Supreme Court Rules 1970, Pt 65 r 7, prevented strangers to litigation from having access to documents or things on the court file without the leave of the Court: see also Practice Note No 9776. From 1 March 2006, Practice Note SC Gen 2 prescribed procedures in relation to access to Supreme Court files. The

most important paragraphs are:

"6. Access to material in any proceedings is restricted to parties, except with the leave of the Court.

7. Access will normally be granted to non-parties in respect of:

-pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;

-documents that record what was said or done in open court;

-material that was admitted into evidence; and

-information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential.

Access to other material will not be allowed unless a registrar or

Judge is satisfied that exceptional circumstances exist."

9. This provision is in my view analogous with Rule 42. I note in particular that the Registrar is prohibited under that Rule from releasing the relevant material in proceedings still before the Tribunal, that is proceedings not finally determined.

10. I agree with the reasoning in Shoebridge No 1 that the principles upon which the Rule is based are also relevant when the Tribunal (rather than the Registrar) is deciding the request. Notwithstanding the fact that the open evidence has now been tendered, in my view as the proceedings in relation to that evidence are open, and there is still the possibility that a witness may be recalled or required as the matter is part heard, on balance I decline to release the requested information.

11. In my view as the matter remains part heard before the Tribunal, balancing the interests of open justice and the policy principles that apply to Rule 42, and noting that the majority of the proceedings will be held in open session, I find that the application should be refused.

Orders

1. The request by a third party to access “the specific affidavits and submissions tendered (19 December 2017)” is refused.

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

Registrar

Decision last updated: 04 January 2018