Webb v Secretary, Department of Communities and Justice

[2023] NSWCATAD 168

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webb v Secretary, Department of Communities and Justice [2023] NSWCATAD 168

Hearing dates:

On the papers

Date of orders:

27 June 2023

Decision date:

27 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member

Decision:

(1) A hearing in relation to the application to appear by Audio Visual Link is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

(2)   The application for the applicant to appear by audio visual link is refused.

Catchwords:

PRACTICE AND PROCEDURE – appearing in person – matters to consider

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Court Security Act 2005 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

Telina Webb (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Applicant (Self-Represented)
Department of Communities and Justice (Respondent)

File Number(s):

2023/00125842

Publication restriction:

Nil

Reasons for Decision

1. On 19 April 2023, the applicant lodged an application seeking administrative review of a decision made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. On 17 May 2023, Ms Webb made a request, in writing, that she be granted leave to appear at the final hearing which is listed for half a day on 17 August 2023 by audio visual link (AVL).

3. On 19 June 2023, the Registry sought the parties’ views in relation to the application and parties were provided with an opportunity, until 20 June 2023, to make submissions in relation to dispensing with the hearing in relation to the request to appear by AVL, as is required by s 50 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

4. Ms Webb made further submissions on 25 June 2023. Ms Webb does not object to the deciding of the request to attend by AVL on the papers. The respondent made further submissions on 20 June 2023, enclosing earlier submissions made on 13 June 2023 and consented to the making of an order dispensing with the hearing.

5. Neither of the parties’ sought an oral hearing of the application and I am that it is appropriate to deal with the application on the papers, as a hearing would amount to further unnecessary costs to the parties and the Tribunal. I have made an order under s 50(1)(c) of the NCAT Act dispensing with a hearing.

6. In her request for leave to appear by AVL, Ms Webb submits that she is seeking leave to appear by AVL because:

The applicant currently undertakes a 300 klm round-trip for nay business concerning NCAT, with premium told and premium parking charges additional to fuel costs. It is understood none of these costs are claimable.

7. The respondent opposes the application of Ms Webb to appear by AVL. The respondent submits that the proceedings can be run more efficiently and transparently if the parties were to appear in person. The respondent refers to a website which is run by Ms Webb, ‘NSW Freedom of Information’ and which advertises a forum that invites users to:

• Contribute to submissions

• Engage with a supportive community

• Consider departmental responses

• Ask questions about the GIPA Act and how the GIPA Act process varies between agencies.

8. The respondent submits that on 30 October 2022, Ms Webb tweeted that she was aware that government agencies review her website and social media and that it is reasonably likely that Ms Webb communicates and facilitates forums to discuss and assist with current litigation. The respondent provides as an example, that Ms Webb has communicated with Twitter user @ForcinNet (Friends of Royal Commission Into NCAT) which also hosts their own website with links to Facebook, Twitter, Instagram and Reddit.

9. The respondent submits that private forums or sub-forums on social media sites could be used to communicate and display information about current NCAT matters, because the respondent reasonably believes that Ms Webb may communicate on non-public forums such as ‘Sub-Reddits’.

10. The respondent submits that if Ms Webb were permitted to attend the hearing remotely, there is a risk that other people may be in attendance or that the hearing may be recorded and shared between users or forum members and that the smooth running of the proceedings is likely to be jeopardised by the need to deal with those additional issues.

11. The respondent also refers to Ms Webb’s prior conduct of publishing information concerning current litigation and inviting people to share ideas in preparation of submissions, requesting current NCAT matter details and her public views on remote hearings.

12. The respondent provides screenshots of publicly posted comments and tweets about litigation that Ms Webb was a party to.

13. On 31 October 2022, a hearing was scheduled for Webb v Port Stephens Council [2022] NSWCATAD 404. At 8:49am on the morning of the hearing, Ms Webb tweeted:

NCAT Hearing this morning, NSW Crown Solicitor objecting to public release of FOI Training Manuals and Workbooks, claiming a competitive disadvantage, prejudice business interests, and diminishing competitive commercial value of information, if documents released to public. #NSW_FOI

14. The applicant also provides a tweet from 13 October 2022, in which Ms Webb tweeted:

NCAT closes PUBLIC hearings to parties to proceedings. NCAT locks out Applicants and only has ears for agencies. #NSW_FOI

15. On 24 February 2022, Ms Webb tweeted:

The public asks the NCAT to make virtual hearings fully accessible to the public, in line with the principles of open, transparent justice. The public should not be vetted and excluded from proceedings. NCAT should ensure login details are freely available in good time.

16. The respondent also submits that Ms Webb communicates with other parties online involved in GIPA Act related litigation. They provide, as examples

1. On 8 January 2023, Ms Webb replied to a Twitter user offering to attempt to obtain sealed documents for another person who posted that they were having issues obtaining material from NCAT .

2. On 14 February, Ms Webb posted a message on her business Facebook page requesting members of the public to share their current NCAT matter details to receive an ‘Awareness Ribbon to wear with pride to all your Hearings’ This post provides a hyperlink to the NSW Freedom of Information website with a fillable form to enter name, email, address and NCAT matter details. This page provides an explanation of the ‘Awareness Ribbon’, stating:

Why these colours for our Awareness Ribbon?

Firstly, Victims of NCAT are grieving, so we embrace the colour associated with grief, black.

Secondly, as with our symbol of a dying justice system the Black-Eyed Susan, we also embrace the golden yellow of its falling petals.

17. In her submissions, Ms Webb’s submits that numerous assertions made by the respondent are unfounded. She also object to the final hearing being decided on the papers. In that regard the Tribunal does not propose that the final hearing on 17 August 2023 should be on the papers.

Consideration

18. Section 38 of the NCAT Act provides that the ‘Tribunal may determine its own procedure in relation to any matter’.

19. The current NCAT Factsheet about ‘Attending hearings by telephone or video’ notes that when considering a request NCAT will consider:

• The type of proceeding

• Nature and complexity of the matter

• Views expressed by other party or parties

• Reason for the request

• Any disadvantage a party might suffer.

20. I make the following general observations regarding how parties appear in the Tribunal. As is set out in the NCAT fact sheet, final hearings in this Administrative and Equal Opportunity Division are ordinarily listed in person. A hearing in person limits the disruptions that can often occur with technology and internet access and ensures a more efficient running of the case. Further, with the parties and witnesses before the Tribunal, the Tribunal can be more confident that a party or a witness is not being assisted by someone the Tribunal cannot see, this is especially important when witnesses are being cross examined or there are issues relating to credibility. Those risks may vary depending on who is being cross examined. However, those sorts of risks must be weighed up against access issues. I note that there may be circumstances where distance from the hearing venue may put a party at a disadvantage, especially in remote and regional areas where travel to the nearest hearing location may be difficult and the provision of public transport may be limited. Similarly, a disability, care responsibilities or other circumstances may impact on a party or witnesses ability to attend a hearing venue. The less complex a matter or hearing event is, the more appropriate it may be to list the matter by telephone or video, hence why directions and case conferences are ordinarily listed in this division by AVL.

21. The Tribunal must balance the competing considerations regarding how a party or witness may appear at a hearing, on a case-by-case basis. Having considered the parties’ submissions, and in circumstances where the respondent is objecting to the application to appear by AVL, I am not persuaded that it would be in the interests of justice generally to grant leave for Ms Webb to appear by AVL.

22. These proceedings involve administrative review of a decision in which the Ms Webb is seeking access to:

A full and unedited copy of a presentation which may be titled “Dealing with Difficult Applicants” made by Justice NSW /Department of Justice to the NSW Right to Information & Privacy Practitioners Network (NIPPN) on Wednesday 27^th March 2019, 9.40am.

23. The agency decided to provide access to some information and decided to refuse access to other information based on an overriding public interest against disclosure. On that basis the proceedings will involve some complexity.

24. I note that AVL hearings do not make the Tribunal any more or less transparent. Hearings in person are also open to members of the public to attend. Recording proceedings without approval is a breach of s 9B of the Court Security Act 2005 (NSW). The transmission and distribution of sound recordings is prohibited, and a breach attracts a maximum penalty of 200 penalty units or imprisonment for 12 months, or both. That penalty reinforces the objects of the Court Security Act for the “secure and orderly operation of courts” and reinforces that transmission and distribution of sound recordings is a serious matter. However, I have no evidence before me that Ms Webb does record proceedings or shares such recordings or that because she has a website or is active on social media that there is an increased risk that she will record and distribute the proceedings.

25. However, Ms Webb notes on the request to appear by AVL a PO Box address in “Marks Point” NSW. That is a suburb nearby to Lake Macquarie and about 135 kms from the Sydney hearing venue. Ms Webb has not disclosed on her application where she resides. Even assuming that it may be nearby to Marks Point, Ms Webb has not identified the costs or charges which she will incur or that the costs are substantial or that she is unable to afford them. I note that even for people living in metropolitan Sydney, they too may incur tolls and parking charges. As discussed above, a final hearing in person allows for a more efficient running of the matter and limits the technological issues which may arise and gives the Tribunal greater confidence that a party or witness is presenting their own case or giving their own evidence. For those reasons, I am not persuaded to grant leave for Ms Webb to appear by AVL.

Orders

26. Accordingly, I make the following orders:

1. A hearing in relation to the application to appear by audio visual link is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. The application for the applicant to appear by audio visual link 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: 27 June 2023