Zillman v New South Wales Treasury

[2025] NSWCATAD 161

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Zillman v New South Wales Treasury [2025] NSWCATAD 161

Hearing dates:

19 October 2023; on the papers following reconstitution of the Tribunal

Date of orders:

04 July 2025

Decision date:

04 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Sullivan, Senior Member

Decision:

(1)   The Decision under review is set aside.

(2)   In substitution, the Respondent is to grant access to the letter dated 12 October 2022 (the redacted part of which was the subject of these proceedings) in full, without redactions.

(3)   The application for joinder of Catholic Cemeteries and Crematoria Ltd as trustee of the Catholic Cemeteries and Crematoria Trust and All Faiths Catholic Land Manager Limited is refused.

(4) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the matters contained in Exhibit Applicant 1, page 70, subheading 3 paragraph (c), and subheading 4 paragraphs (c) and (d) is prohibited for a period ending 14 days after the date of this decision.

(5) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal At 2013 (NSW), publication of paragraphs of these reasons marked “Not for Publication” to the Applicant and the public is prohibited.

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information — Ground for refusing access raised by third party objector and opposed by respondent agency

CIVIL PROCEDURE — Parties — Application for joinder

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Catholic Cemeteries and Crematoria Trust Act 2024 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crown Land Management Act 2016 (NSW)

Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”)

Cases Cited:

Cahalan v Lane Cove Council [2023] NSWCATAD 209

Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30

Cheung v Commissioner of Police [2019] NSWCATAD 249

Clarke v Blacktown City Council [2013] NSWADT 36

Commissioner of Police v Fine [2014] NSWCA 327

Commissioner of Police v Fine [2014] NSWCATAP 24

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Consolidated Press Holdings Ltd v Federal Commissioner of Taxation (1995) 128 ALR 443

Eggleton v Secretary, Department of Communities and Justice [2022] NSWCATAD 310

FDY v Commissioner of Police (NSW) [2021] 285

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

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

Marrickville Council v Botany Council [2015] NSWCATAD 144

Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254

Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182

Ross v Lane Cove Council [2014] NSWCA 50

Totterman v Richmond Valley Council [2024] NSWCATAD 368

Transport NSW v Searle [2018] NSWCATAP 93

Texts Cited:

None

Category:

Principal judgment

Parties:

Stephanie Zillman (Applicant)
NSW Treasury (Respondent)
Also heard:
Information Commissioner (see s 104(1) of the GIPA Act)
Catholic Metropolitan Cemeteries Trust, Catholic Cemeteries & Crematoria Ltd as trustee of the Catholic Cemeteries and Crematoria Trust, and All Faiths Catholic Land Manager Limited (Objectors: see s 104(3) of the GIPA Act)

Representation:

Counsel:
I King (Applicant)
Z Heger (Objectors)
H Ryan (Junior Counsel) (Objectors)
D Birch (Information Commissioner)
Solicitors:
ABC Legal (Applicant)
NSW Treasury (Respondent)
Information Commissioner (Information Commissioner)
Mills Oakley (Objectors)

File Number(s):

2023/00068940

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the matters contained in Exhibit Applicant 1, page 70, subheading 3 paragraph (c), and subheading 4 paragraphs (c) and (d) is prohibited.

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal At 2013 (NSW), publication of paragraphs of these reasons marked “Not for Publication” to the Applicant, Information Commissioner and the public is prohibited.

REASONS FOR DECISION

What is this case about?

1. The Applicant is Ms Zillman, a journalist with the ABC.

2. On 7 November 2022, she sent an application to NSW Treasury (the Respondent) for information under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”).

3. The substantive matter is whether access should be granted to the redacted part of a letter dated 12 October 2022 sent by the objector, Catholic Metropolitan Cemeteries Trust (“CMCT”), to the Auditor-General of NSW (“Disputed Letter”).

4. The Disputed Letter was held by the Respondent because it was sent (“cc-ed”) to it by CMTC. There is no dispute it was responsive to the Applicant’s request.

5. The second matter concerns an application by CMCT for joinder as a party.

6. These proceedings have not travelled an easy path.

7. First, another Senior Member of this Tribunal heard the substantive matter and the joinder application together on 19 October 2023. Decisions on both were reserved.

8. On 20 December 2024, the President reconstituted the Tribunal under s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”). The parties were provided with the opportunity to make submissions and did not object to the reconstitution.

9. Second, CMCT no longer exists. It was abolished by legislation after the matter was heard. Its application for joinder was amended after the hearing and the following “Successor Entities” to CMTC now seek joinder in its stead:

1. Catholic Cemeteries & Crematoria Ltd as trustee of the Catholic Cemeteries and Crematoria Trust (“CCC”); and

2. All Faiths Catholic Land Manager Limited (“AFCLM”).

10. Third, the original decision on the GIPA Application (“Decision”), made by Mr Brandt as the delegate of the Respondent, was overtaken by subsequent events. At the time of the Decision, two letters and accompanying emails were located that were responsive. Access to the two letters was refused, after Mr Brandt consulted with CMCT under s 54 of the GIPA Act. Following a mediation conducted after the proceedings were filed (which included CMCT), the Disputed Letter was released in redacted form, and the other letter was released in full.

11. Fourth, when consulted by the Respondent, CMCT had raised five public interest considerations against disclosure (“PICADs”) objecting to the release of both letters. Those PICADs were items 1(d), 1(g), 3(c), 3(d) and 4(d) of the Table in s 14(2) of the GIPA Act.

12. The Respondent accepted there was a “high likelihood” of litigation at that time, and withheld both letters on that ground (item 3(c)). The other four grounds advanced by CMCT were rejected by the Respondent. These are discussed further below.

13. By the time of the hearing, however, neither the Respondent nor CMCT sought to rely on item 3(c). Litigation was (and is) no longer contemplated.

14. This means the Respondent no longer advances any argument precluding the release of the redacted information in the Disputed Letter (the “Information”).

15. Fifth, CMCT still objects to the grant of access to the Information. But it has abandoned reliance not only item 1(c), but also on any of the other four PICADs raised in the consultation with the Respondent.

16. Rather, in its submissions and at the hearing, CMCT objected on two entirely new grounds:

1. First, it submitted the Information was “excluded information of an agency” because it related to an audit function of the Office of the Auditor-General, and in the absence of consent by the Auditor-General there was a conclusive presumption against disclosure under cl 6(1), Sch 1; and

2. Second, it submitted, under item 6 of the Table in s 14(2) that disclosure of the Information could reasonably be expected to contravene secrecy provisions in s 38 of the Government Sector Audit Act 1983 (NSW) (“GSA Act”), and that PICAD outweighed any public interest consideration in favour of disclosure.

17. However the “excluded information” ground against disclosure was withdrawn by CMCT after the hearing:

1. Mills Oakley (the solicitors for CMCT) had written to the Auditor-General on 16 October 2023 (3 days prior to the hearing), but no response had been received by the time the matter was heard.

2. Subsequently, on 20 November 2023 the Auditor-General wrote to Mills Oakley (“A-G Letter”), saying:

“I am writing to inform you that the Auditor-General does not intend to raise an objection to the release of the information referred to in your letter [being redactions in the Disputed Letter].

… I note that the Auditor-General is not party to the relevant proceedings.”

3. That letter was subsequently sent to the Tribunal, the parties and the Commissioner on 7 December 2023 by Mills Oakley who said:

“Excluded Information – Clause 6(1) of Schedule 1 to the GIPA Act

We accept that, in light of the [A-G Letter], we can no longer rely on the ground in clause 6(1) of Schedule 1 to the GIPA Act in our submissions against disclosure because the agency has effectively consented to the disclosure of the [Disputed Letter].

Therefore we withdraw reliance on the ground in cl 6(1) of Schedule 1 to the GIPA Act.”

18. That leaves the only PICAD being the ground in par 16(2) above.

19. Sixth, the Information Commissioner (“the Commissioner”) intervened. She has a right to appear and be heard in these proceedings pursuant to s 104(1) of the GIPA Act and cl 8(4)(a) of Sch 3 to the NCAT Act. And the Commissioner says this case raises several significant issues:

1. The extent to which a third party objector (CMCT) is to be permitted to raise a new ground where the respondent agency, which bears the onus of proof under s 105(1) of the GIPA Act, does not rely on that consideration “and indeed expressly asserts that [it is] inapplicable”;

2. Whether a third party objector should be permitted effectively to “hijack” proceedings and “transform the administrative review proceedings from a dispute between access applicant and agency into a dispute between access applicant and a private party”; and

3. Whether it is also inconsistent with the guiding principle of the NCAT Act (to facilitate the just, quick and cheap resolution of the real issues in the proceedings) to permit a third party objector:

1. to raise PICADs which the agency does not wish to raise; and

2. to raise PICADs which have nothing to do with the specific position/circumstances of the objector and do not depend on any prejudice to the objector arising from the disclosure.

Materials considered

20. The following documents were filed or admitted into evidence:

1. For the Applicant, Ms Zillman:

1. Administrative Review Application form filed 1 March 2023;

2. Affidavit of Kia Lyn Daley dated 12 September 2023, filed 13 September 2023 (“Exhibit Applicant 1”);

3. Submissions dated 12 September 2023, filed 13 September 2023 (AS);

2. For the Respondent:

1. Index and accompanying bundle (totalling 18 pages) filed on 28 March 2023;

2. Affidavit of Peter Brandt dated and filed on 1 August 2023 with four attachments titled “Attachment Treasury” (numbered 1 to 4); and

3. Respondent’s submissions (titled “submissions in reply”) filed on 26 September 2023 (“RS”); and

4. Special report into the financial affairs of the Catholic Metropolitan Cemeteries Trust (“Exhibit Agency 1”).

3. For CMCT (the objector) and the Successor Entities:

1. Submissions filed on 29 August 2023 (“CS”);

2. Open (redacted) version of Statement of Vera Visevic dated and filed on 29 August 2023 with attachments VV-1 through VV-8 (“Exhibit CMCT4” or VV1(O));

3. Closed (confidential and unredacted) Statement of Vera Visevic dated and filed on 29 August 2023 with attachments VV-1 through VV-8 (“Exhibit CMCT5” or “VV1(C)”);

4. Submissions in reply filed on 10 October 2023 (“CMCT -RS”);

5. Additional material tendered without objection at the hearing on 19 October 2023:

1. “Exhibit CMCT1” – Letter dated 16 October 2023 from MO to Auditor-General with “Attachment 2”;

2. “Exhibit CMCT2” – Email from MO to the Auditor-General dated 16 October 2023; and

3. “Exhibit CMCT3” – Email from Auditor-General to MO dated 16 October 2023.

6. Email from CMCT to the Tribunal dated 7 December 2023 withdrawing reliance on the ground in cl 6(1) of Sch 1 to the GIPA Act, containing the following attachments:

1. Follow-up letter from Mills Oakley to the Auditor-General dated 17 November 2023;

2. Letter from the Auditor-General to Mills Oakley dated 20 November 2023 (“2023 A-G Letter”).

7. “Submissions and evidence of CCC and AFCLM” filed on 14 March 2025, comprising:

1. Tab 1: Application for joinder with amended grounds seeking joinder of CCC and AFCLM in place of CMCT;

2. Tab 2: Written submissions of CCC and AFCLM on the amended joinder application;

3. Tab 3: List of documents; and

4. Tab 4: (Further) Statement of Vera Visevic (“VV2”) dated 13 March 2025 with annexures VV2-1 to VV2-4 (at Tabs 5 to 8).

4. For the Commissioner, submissions filed on 10 October 2023 (“IC-S”).

21. I have reviewed these materials and the transcript of the hearing held on 19 October 2023.

22. I am satisfied that the matter can be determined on the papers. The parties, the Commissioner, CMCT and the Successor Entities did not object to that course.

GIPA Act - The statutory framework and relevant principles

23. References to a section, schedule or clause is to the GIPA Act unless stated otherwise. For convenience, I refer to clauses in the Table in s 14(2) of the GIPA Act as “items”.

24. The object of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

25. The GIPA Act should be interpreted and applied to further the object of the Act, and it is the intention of Parliament that any discretions be exercised, as far as possible, to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information: s 3(2).

26. It was not disputed that the information the subject of this application is government information that is held by an agency: see s 4(1).

27. There is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”: s 5.

28. Section 9 states that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an ”overriding public interest against disclosure”.

The public interest test

29. Section 13 sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

30. In accordance with the principles established in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19,in determining this application the Tribunal is required to:

1. identify the PICIFODs;

2. consider whether the information in issue, if released, would reasonably be expected to give rise to a PICAD; and

3. if so satisfied, consider where the balance lies between the PICIFODs and PICADs, having attributed weight to each consideration, and taking into account the personal factors identified under, and as permitted by, s 55.

31. As confirmed by the Appeal Panel in Transport NSW v Searle [2018] NSWCATAP 93 at [104], while that process requires a broad value judgment to be made, it is not made in a vacuum, but having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act. Section 15 provides as follows:

32. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 which provides as follows:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

General public interest in favour of disclosure

33. Section 12(1) provides that there is a “general public interest in favour of the disclosure of government information”.

PICIFODs

34. Section 12(2) provides that nothing in the GIPA Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

35. Examples of PICIFODs, which are not limited, are provided in a Note to s 12 (extracts, my emphasis):

Note.

The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

…

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

..

No conclusive presumption in this case

36. Under s 14(1), it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1. There is no longer any reliance on s 14(1). I find it is not applicable.

PICADs

37. Section 14(2) provides an exhaustive list of PICADs in the Table. Only item 6 is advanced in these proceedings:

14 Public interest considerations against disclosure

…

(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.

..

Table

….

6   Secrecy provisions

(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

(2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.

…

Factors under s 55

38. The personal factors of the application, being the applicant’s identity and relationship with any other person, their motives for making the access application, and any other factors particular to the applicant, may be taken into account as factors in favour of providing an applicant with access to information (s 55(2)).

39. However, personal factors of the application may only be taken into account as factors against providing access if relevant to consideration of items 2, 3, 4 or 5. This is mandated by s 55(3) which provides (my emphasis):

(3)  The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

“reasonably be expected to”

40. It is only necessary that disclosure of the Information “could reasonably be expected to” to have the effect identified. 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 v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41] and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

41. There must be “real and substantial grounds for the opinion that disclosure could reasonably be expected to have one of the identified effects. In addition, that opinion must be based on some probative evidence”: Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 at [46] (“Newcastle City Council”).

42. When considering the evidence on which it is asserted that disclosure could reasonably be expected to have a particular effect, prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council at [58] - [59].

Consultation

43. As noted above, CMCT was consulted under s 54. Section 54 provides the mechanism for consultation (my emphasis):

54   Consultation on public interest considerations

(1)  An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that—

(a)  the information is of a kind that requires consultation under this section, and

(b)  the person may reasonably be expected to have concerns about the disclosure of the information, and

(c)  those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

(2)  Information relating to a person is of a kind that requires consultation under this section if the information—

(a)  includes personal information about the person, or

(b)  concerns the person’s business, commercial, professional or financial interests, or

(c)  concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or

(d)  concerns the affairs of a government of the Commonwealth or another State (and the person is that government).

Note.

The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4.

(2A)  If the agency considers that information about a person consulted under this section is likely to be included in the agency’s disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements—

(a)  that information concerning the application is likely to be included in the agency’s disclosure log and that the person can object to this,

(b)  that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person’s objection.

…

(4)  The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.

(5)  The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.

(6)  If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency’s decision to provide access to the information and notice of the objector’s right to have that decision reviewed, and is not to be provided while review rights on the decision are pending.

(7)  Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.

Deciding the GIPA Application

44. Section 58 of the GIPA Act relevantly provides:

(1)   An agency decides an access application for government information by -

(a)   deciding to provide access to the information, or 

… 

(c)   deciding that the information is already available to the applicant (see section 59), or 

(d)   deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or 

…

Note : These decisions are reviewable under Part 5. 

…

(3)   If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

45. Section 61 of the GIPA Act provides:

61   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.

Review by NCAT

46. What is a “reviewable decision” by the Tribunal is prescribed by s 80 of the GIPA Act.

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part—

…

(d)  a decision to provide access or to refuse to provide access to information in response to an access application,

…

47. Section 63 of the GIPA Act provides:

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.

48. Sections 104 and 105 provide (my emphasis):

104   Right of appearance before NCAT

(1)  The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division.

…

(3)  Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.

105   Onus on agency to justify decisions

(1)  In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2)  If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

(3)  If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

(4)  If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.

49. The “guiding principle” in s 38 of the NCAT Act provides (my emphasis):

36   Guiding principle to be applied to practice and procedure

(1)  The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)  The Tribunal must seek to give effect to the guiding principle when it—

(a)  exercises any power given to it by this Act or the procedural rules, or

(b)  interprets any provision of this Act or the procedural rules.

(3)  Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

(a)  a party to proceedings in the Tribunal,

(b)  an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4)  In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5)  However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

The facts in more detail

50. The following facts are drawn from the evidence before the Tribunal, including documents filed after the hearing and statements and affidavits by the following persons, none of whom were required for cross examination:

1. Mr Brandt (mentioned above) was the Associate Director Information Access Branch of the Respondent, NSW Treasury. He signed an “Affidavit” (unsworn) filed in these proceedings. The Respondent’s “Submissions in Reply” were prepared by him and he also made oral submissions as representative of the Respondent at the hearing. Some of those submissions expanded upon some factual matters. The Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit (NCAT Act, s 38(1)). Accordingly, where the Respondent’s submissions also reveal facts relevant to my consideration, they are included below.

2. Ms Visevic was a partner of Mills Oakley (“MO”), and filed an “open” and “closed” (confidential) version of a statement in these proceedings on 29 August 2023. Ms Visevic assisted (and represented) CMCT in the negotiations with the Respondent and the Attorney-General mentioned above, and MO was the solicitor for CMCT in these proceedings.

3. Ms Kia Daley was an employed solicitor at the ABC (the employer of the Applicant) and filed an affidavit in her role as solicitor for the Applicant in these proceedings.

The GIPA Application

51. The GIPA Application was dated 7 November 2022. The Applicant requested:

“Correspondence (including emails, PDF attachments, word documents and letters) from the chair or board members of the Catholic Metropolitan Cemeteries Trust to the Secretary Paul Grimes (either as the principal recipient or cc’d recipient) between 1/10/21 and 4/11/22. Please include the replies sent to the CMCT in response to these inquiries that were either sent by Mr Grimes, cc Mr Grimes, or were sent by another member of the NSW Treasury executive.”

The consultation with CMCT prior to the issue of the Decision

52. The four responsive documents comprising the 2 covering emails with accompanying attached letters, were all dated 12 October 2022. The two letters authored by CMCT were referred to in the Decision as:

1. Document 2 – CMCT letter to the Secretary of NSW Treasury;

2. Document 4 – the Disputed Letter.

53. As Mr Brandt explained in his affidavit:

“As both letters concerned the interests of Catholic Cemeteries and Crematoria, pursuant to section 54 of the GIPA Act, I consulted Catholic Cemeteries and Crematoria as a third party, on 29 November 2022.”

54. I understand the reference to “Catholic Cemeteries and Crematoria” to be, at that time, the trading name for CMCT.

55. MO sent a letter to Mr Brandt on 6 December 2022 on behalf of CMCT, objecting to the release of “all the documents” (which, relevantly, included the Disputed Letter) on the basis of five PICADs, which were:

1   Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)—

…

(d)  prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

…

(g)  found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

…

3   Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

…

(c)  prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,

(d)  prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness,

…

4   Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

… (d)  prejudice any person’s legitimate business, commercial, professional or financial interests,

56. Central to the objections raised in the MO letter were that:

1. The letters were provided by CMCT to NSW Treasury and the NSW Audit Office “in confidence”, in the course of difficult (and continuing) negotiations with those agencies, and included legal, commercial, business and financial information of CMCT;

2. If those negotiations were to cease or not be resolved to the reasonable satisfaction of CMCT, it was “highly foreseeable” that court proceedings would be instigated by CMCT, which would be prejudiced if the ABC were to publish the Records;

3. The letters would disclose CMCT’s sensitive business information, and information of competitive commercial value to CMCT.

4. More particularly, the letter stated:

“We also consider that the release of the Records would prejudice the legitimate business, commercial and financial interests of CMCT, as contemplated by item 4(d) of the Table.

Disclosure of the Records would release sensitive business information belonging to CMCT including that:

(a)   NSW Treasury has concluded that CMCT is a controlled entity of the State and the Auditor-General has accepted this position;

(b)   CMCT does not agree with the position of NSW Treasury and the Auditor-General and will obtain its own legal advice;

(c)   [Not for publication]

(d)   [Not for publication]

As a Crown cemetery operator, CMCT operates in a unique and limited market. The disclosure of any of the above information (which is contained in the Records) has serious implications for CMCT because it would release information of competitive commercial value to CMCT into the public domain.”

57. The letter concluded by saying (my emphasis):

“We submit that CMCT’s grounds for objection to disclosure of the Records, being the grounds set out in Items 1(d), 1(g), 3(c), 3(d) and 4(d) of the Table, are reasonable, and therefore, CMCT requests that the Records not be released.

Should, notwithstanding the above submissions, you determine that the Records should be released, we:

(a)   advise that CMCT will be exercising its right to have that decision reviewed; and

(b)   respectfully object to its publication on the NSW Treasury disclosure log for the same reasons as set out above.”

58. On 16 December 2022, Mr Brandt responded to the objections raised in the MO Letter, saying:

1. The Respondent would not release the documents, relying on item 3(c):

“I note your submission that:

If negotiations between CMCT, NSW Treasury and the NSW Audit Office were to cease or not be resolved to the reasonable satisfaction of CMCT, it is highly foreseeable that court proceedings would instigated by CMCT. We, therefore, consider that the release of the Records would reasonably be expected to prejudice any future court proceedings that may arise, by revealing matters related to those potential proceedings, as contemplated by Item 3(c) of the Table.”

Although you do not say how future court proceedings could reasonably be prejudiced, it is important that if such proceedings are instigated, they not be prejudiced by the release of the information… I accept that this objection provides an overriding public interest against disclosing the two documents on which you were consulted.”

2. in respect of the each of the other 4 objections raised by MO, he “did not accept that this public interest consideration outweighs the public interest considerations in favour of disclosure”; because nothing in the documents indicated or showed that the information was provided by CMCT in confidence, nor did the letter identify the relevant business interests of CMCT that would be prejudiced (nor how those interests could reasonably be prejudiced).

59. MO replied on 19 December 2022 (my emphasis):

“Thank you for your email. We are satisfied with the outcome.”

60. As there was (relevantly) no decision by the Respondent to “provide access to the information” in respect of which CMCT had objected, CMCT had no right at that time to appeal to the Tribunal under s 54(6) of the GIPA Act.

The Decision

61. The decision on the GIPA Application (“Decision”) issued to the Applicant was dated 20 December 2022.

62. The Decision granted access to the covering emails (Documents 1 and 3), but refused access to Document 2 and to Document 4 (the latter being the Disputed Letter). In respect of the objections made by CMCT, it noted (extracts):

“As required by the GIPA Act, I took the objections made on behalf of the CMCT into account when balancing the public interest considerations in favour, and against, the disclosure of the information requested by you.

In balancing the objections made on behalf of the CMCT against the public interests in favour of disclosure, I found that the public interests in favour of disclosure outweighed the objections made pursuant to Items 1(d), 1(g), 3(d) and 4(d) of the section 14 table of the GIPA Act. I found that on the submissions made on behalf of the CMCT, the public interest considerations in favour of disclosure outweighed the public interest considerations against disclosure made on behalf of the CMCT, in relation to those four Items of the section 14 Table of the GIPA Act.

In relation to item 3(c)… I decided the objection outweighed the public interest considerations in favour of disclosure. The objection on behalf of the CMCT stated that if current negotiations between CMCT, NSW Treasury and the NSW Audit Office were to cease or not be resolved to the reasonable satisfaction of CMCT, it is ‘highly foreseeable that court proceedings would be instigated by CMCT’…

I gave this objection significant weight….”

Abolition of CMCT and establishment of the Successor Entities

63. The following facts emerge from Ms Visevic’s statements and from the other documents before the Tribunal:

1. In 2009 CMCT was established by legislation which provided that CMCT and the Commercial Cemeteries Board were to be abolished on the “Transition Day” (29 January 2024) and replaced with successor entities.

2. At the time the Disputed Letter was sent, CMCT was in “negotiations” with the NSW Government (primarily, the Respondent and the Auditor-General) regarding the structure of these successor entities as and from the Transition Day.

3. Additionally, there was a dispute whether CMCT was a “State-controlled entity” (under relevant Australian accounting standards).

4. Ms Visevic was involved in those engagements with the Respondent and the Auditor-General.

64. By way of further background:

1. On 10 December 2021 the (then) Minister for Water, Property and Housing wrote to the Auditor-General to request a performance audit into CMCT’s financial affairs (“Pavey Letter”); and

2. On 9 February 2022, the Auditor-General tabled a report in Parliament titled “Special report into the financial affairs of the Catholic Metropolitan Cemeteries Trust” (“A-G Report”, at Exhibit Agency 1) recommending that the NSW Government clarify its position that CMCT was a controlled entity of the State.

65. As the Pavey Letter was included in the A-G Report, both documents were made publicly available.

66. The Pavey Letter said (my emphasis):

“I write to request a financial and performance audit into the financial affairs of [CMCT] pursuant to section 27B(3) of the [GSA Act]. I understand that [CMCT] has not submitted its financial statements to the Audit Office for inspection as required under section 7.6 of the Government Sector Finance Act 1986 [“GSF Act”].

I attach reports of recent allegations made in the NSW Parliament by Mr Shoebridge MLC and in the media about the misuse of funds by [CMCT]. While evidence has not been provided in support of these allegations, a financial and performance audit of [CMCT] will examine whether funds have been used for their proper purpose.

Accordingly, I request the Audit Office undertake a full audit of the financial affairs of [CMCT] as a matter of urgency to put the matter beyond doubt…”

67. The A-G Report also included the following statements:

1. regarding the role of the Auditor-General:

“The roles and responsibilities of the Auditor-General, and hence the Audit Office, are set out in the Government Sector Audit Act 1983 and the Local Government Act 1993.

…

We also conduct performance audits. These assess whether the activities of government entities are being carried out effectively, economically, efficiently and in compliance with relevant laws. Audits may cover all or parts of an entity’s operations, or consider particular issues across a number of entities. Our performance audits may also extend to activities of non-government entities that receive money or resources, whether directly or indirectly, from or on behalf of government entities for a particular purpose. As well as financial and performance audits, the Auditor-General carries out special reviews, compliance engagements and audits requested under section 27B(3) of the [GSA Act], and section 421E of the Local Government Act 1993.”

2. in section 1, being a letter from the Auditor-General to the Minister for Lands and Property dated 14 June 2023, regarding the position adopted by CMCT (at p2, my emphasis):

“CMCT has sought to contest NSW Treasury’s determination [that it is subject to my financial and performance audit mandate] but has not provided me with a detailed explanation of its rationale for this. Following NSW Treasury’s determination, I wrote to the Chair of CMCT on 16 September 2022 advising that I would commence the requested performance audit….

My Office wrote to the Chair of CMCT on 4 October 2022 requesting documents that would be required to commence this performance audit. This request was made under section 36(1) of the GSA Act, which entitles the Audit Office to full and free access to the books, records and other documents of the entities subject to our audit mandate. I again wrote to the Chair of CMCT on 19 October 2022, 27 October 2022, and 18 November 2022 reiterating this request.

Attachment B contains a summary of all correspondence [to CMCT from the Auditor-General, from 16 September 2022 to 14 June 2023] in relation to this request.

As yet, my Office has not been provided access… This situation has not been encountered previously and should not be seen, nor accepted as appropriate.

…

As I have not been provided access to CMCT’s books and records relevant to the conduct of my audit, this means I am unable to conduct a performance audit in order to conclude on the financial affairs of the CMCT, as requested under [the GSA Act]. Again, I restate, being denied access to management, and to proper books and records for the purposes of conducting statutorily required financial and performance audits should not be normalised, nor considered appropriate. It significantly impairs transparency and accountability and raises questions about the stewardship of resources.”

Application filed

68. The Applicant filed her application to the Tribunal on 1 March 2023.

69. Under “Grounds for Application”, the Applicant said:

“NSW Treasury’s decision of 20 December 2022 was not the correct or preferable decision, having regard to the criteria in s 61 of the [GIPA Act], to the public interest considerations in ss 12 and 14 of the Act, and to the test and principles set out in ss 13 and 15 of the Act respectively.”

Participation by CMCT and application for joinder

70. CMCT actively participated in these proceedings from the outset. It attended case conferences, the mediation, filed evidence and written submissions as ordered, and was represented by solicitors and counsel at the hearing.

71. Although the mediation did not resolve the dispute it did, however, narrow it. Document 2 was released in full, and parts of the Disputed Letter were also released, on the basis it was already found to be in the public domain.

72. On 30 August 2023, CMCT filed an application to be joined as a party to the proceedings.

73. As noted above, the substantive matter, and the interlocutory joinder application, were both heard on 23 October 2023. The decision was reserved.

CMCT ceases to exist, replaced by successor entities

74. The abolition of CMCT was foreshadowed in its evidence (Statement of Ms Visevic (VV1, Exhibit CMCT )) and its written and oral submissions before the Tribunal at the hearing.

75. In February 2025, following reconstitution of the Tribunal, I held a directions hearing to discuss the position of CMCT in respect of the joinder application. The Successor Entities (who appeared at the directions hearing and are represented by the same legal representatives as CMCT) subsequently filed a bundle of documents with the Tribunal on 14 March 2025 which included the amended application for them to be joined as parties (in place of CMCT), accompanied by a further statement of Ms Visevic dated 13 March 2025 (VV2) and written submissions in support.

76. I have reviewed Ms Visevic’s further statement and its annexures. The facts regarding the abolition of CMCT on 30 June 2024 and the events which occurred are not relevantly in dispute, and so the following summary in the Successor Entities’ submissions will suffice.

77. The following occurred on or with effect from 30 June 2024 and/or 1 July 2024:

1. The Catholic Cemeteries and Crematoria Trust Act 2024 (NSW) (“CCCT Act”) commenced (“CCCT Act”);

2. CMCT was abolished (VV2-2);

3. CCC (a public company limited by guarantee established on 13 March 2024) was confirmed to be the trustee of the Catholic Cemeteria and Crematoria Trust (“CCCT”, a charitable trust);

4. legal ownership of the reserves for which CMCT had been the Crown land manager was transferred from CMCT to the Crown;

5. AFCLM (also a public company limited by guarantee established on 13 March 2024 (VV2-3)) was appointed the Crown land manager replacing CMCT;

6. AFCLM delegated its functions as Crown land manager to CCC (in its capacity as trustee of CCCT); and

78. Further, with effect from 1 July 2024:

1. all land owned by CMCT as at that date (“existing CMCT land”) was vested in the Crown (s 4); and

2. all other rights and liabilities of CMCT before 30 June 2024, other than the existing CMCT land, were transferred to CCC as trustee of CCCT, upon both Successor Entities being established under the CCCT Act.

Jurisdiction

79. The application to the Tribunal was filed by the Applicant on 1 March 2023. It was a request for a review of the Respondent’s decision to refuse access. That is a “reviewable decision” under s 80(d) of the GIPA Act. The application was filed within the time required by s 101 (40 working days), having regard to public holidays. Accordingly, the Tribunal has jurisdiction to conduct this review under s 100 of the GIPA Act, the NCAT Act and the ADR Act.

Preliminary issues

80. Various questions were raised regarding CMCT’s standing and ability to raise new grounds in these proceedings, particularly in circumstances where those grounds did not rely upon its own circumstances and were disputed by the Respondent. The submissions, particularly of CMCT and the Commissioner, were extensive and are summarised briefly below. They have been considered in full and taken into account although I have not found it necessary to assess every authority and submission in these reasons.

81. The Applicant submitted that CMCT did not have standing to raise either ground in these proceedings because:

1. it should be limited to grounds advanced when consulted by the Respondent under s 54 of the GIPA Act;

2. it waived its right to any review when it emailed the Respondent in respect of the proposed decision saying “We are satisfied with the outcome”; and

3. section 54 limits objections to grounds which go to the circumstances of the objector only, and an objector should not be permitted to advance grounds which are relevant only to the obligations of an agency.

82. The Commissioner submitted that the matter fell to the discretion of the Tribunal (under s 104(3)) as to the extent of CMCT’s right to appear and be heard in a particular case (Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 (“Rice”) at [55]), raising four factors as to why it should not be permitted (my summary):

1. Noting comments in Rice at [66], it would not be in accordance with s 3(2)(b) of the GIPA Act to permit a third party object to raise PICODs which the agency “does not wish to raise”, as it would not facilitate and encourage access to government information. Rather, it imposed further burdens upon access applicants;

2. It would not give effect to the “guiding principle” to facilitate the just, quick and cheap resolution of the real issues in the proceedings;

3. It would not be consistent with the directive in s 105(1) that the respondent agency bears an onus of proof in the administrative r”view proceedings; it would be transforming this from a dispute between access applicant and agency into a dispute between access applicant and private party. The process prescribed under the GIPA Act contained only a limited role for third parties, and the “right to appear and be heard” conferred on third party objectors by s 104(3) was in the same terms as the right conferred on the Commissioner under s 104(1), in respect of which the following comments were made by the Tribunal in Hurst v Wagga Wagga City Council [2011] NSWADT 307 (“Hurst”) where the Tribunal held at [53]:

“I note that the Information Commissioner identified in its submissions a further two public interest considerations against disclosure that were not relied on by the agency. Given that the agency bears the burden of demonstrating the existence of public interest considerations against disclosure, and that, on balance, they outweigh the public interest in favour of disclosure, I do not intend to consider those additional matters.

4. Further, the arguments which CMCT wish to agitate are arguments which Treasury (the Respondent) would be in as good a position as CMCT to raise, if it wishes, as they appear to turn entirely on questions of statutory construction.

83. CMCT submitted, in summary, that there was no relevant dispute that it was an aggrieved party and entitled to appear and be heard under s 104(3); that it had not waived any rights by way of the letter and had standing before the Tribunal; it was entitled to rely on any grounds provided they were within the limits prescribed by s 14, that it had fully participated in the proceedings since the outset and the parties had been afforded procedural fairness in respect of the matters raised. Further, in undertaking the administrative review the Tribunal not only had the power to determine its own procedure but should not be restrained from considering grounds properly requiring consideration in arriving at the correct and preferable decision, regardless of who raised it. Its submissions and submissions in reply were extensive, as were its oral submissions.

Consideration

84. I accept that Respondent (Treasury) is the agency to whom the request was made, that s 105(1) of the GIPA Act says that the burden of proof is on the agency, and that the Respondent no longer relies on any ground. Further, I accept that the Respondent has disputed the grounds raised by CMCT. The following exchange occurred at the hearing:

SENIOR MEMBER:   .. I must decide the matter on the evidence before me today, and on the evidence before me today, I understand your submissions to be this, and tell me if I’m wrong. That the agency now does not see a basis upon which the letter should not be disclosed.

BRANDT:   My submission is that as CMCT have withdrawn their objection under item 3(c), my submission is that the letter should be disclosed, because the weight of public interest is now in favour of disclosure, having taken out the objection based on potentially prejudice in court proceedings. My other submission is that the excluding information argument and the [secrecy argument] are incorrect.

SENIOR MEMBER:    So as at the date of the hearing, the Agency’s existing decision is not the correct and preferable decision and that the Tribunal should release the letter.

BRANDT:       Yes. The world has changed 180 degrees.

85. Since then, as noted above, only item 6 remains in issue.

86. I do not accept the submissions of the Applicant that CMCT’s response “We are satisfied with the outcome” communicated to the Respondent deprived CMCT of standing to appear and be heard in these proceedings.

87. At that time, there was no decision to grant access. It was that decision that was the “outcome” that CMCT was satisfied with. That decision to refuse access also meant that CMCT did not have a right of review at that time to agitate the matter further through requesting an internal review or, subsequently, a right of further review by the Tribunal. As noted by CMCT in its submissions, if it had, then it would have been aggrieved in respect of that decision, and would have borne the onus of proof under s 105(2) of the Act.

88. I also find that CMTC had standing to participate in these proceedings under s 104(3), because it was a person aggrieved in relation to the review. I find that CMCT was a person relevantly aggrieved because a decision to release the letter would affect the interests of CMCT. That is consistent with the position of both CMCT and the Commissioner.

89. The rights of a third party objector were examined and explained in Rice at [54]-[57] where it said (my emphasis):

Role of third-party objectors in legislative scheme

54. The GIPA Act recognises the rights of third parties where government information concerns them, and contains provisions requiring consultation in certain circumstances, including where it is reasonably practicable (s 54(1) and (2)). The purpose of consultation under s 54 is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection (s 54(4)). Although the views of third parties as to the determination of the public interest test and release of information are not determinative, objections are required to be taken into account by the agency decision-maker (s 54(5)).

55. In addition to consultation rights conferred by s 54, third-party objectors can bring their own review proceedings to the Tribunal in specified circumstances; and in administrative reviews instituted by the decision-maker or access applicant, objectors (who meet the test of a ”person who could be aggrieved”) have available to them the right conferred by s 104(3) to appear and ”ventilate any arguments in support of their position or otherwise”:Walker v Gosford City Council [2016] NSWCATAD 207 at [31]. Given NCAT’s power to control its own procedure, and to inform itself as it thinks fit (NCAT Act, s 38(1) and (2)), the participation of persons appearing and being heard under s 104(3) may vary from case to case. It may extend to a full right of participation, including the ability to call evidence: CBL at [18] citing Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24.

56. In a review under s 100 of the GIPA Act, for the purpose of making the correct and preferable decision having regard to the material then before it (s 63(1) of the Administrative Decisions Review Act 1997 (NSW) (theADR Act)), the Tribunal ”stands in the position of the decision-maker”: Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327 (Fine) at [46]. Therefore, the Tribunal may have regard to any objection and reasons for objection to the disclosure of information in determining the public interest test under ss 13 and 14 of the GIPA Act.

57. We agree with the Information Commission that it is evident that the rights of third-party objectors, and the procedures for dealing with objections of third parties, in the statutory scheme are distinguished from the rights of the access applicant and the decision-maker. There are nonetheless avenues through which the Tribunal can take into account the views of third-party objectors, including through the exercise of the right to appear and be heard under s 104(3) of the GIPA Act and/or through joining a third-party objector as a party under s 44(1)(a) of the NCAT Act.

90. I am not persuaded that the comments in Hurst raised by the Commissioner, which did not concern a third party objector, causes me to depart from the guidance in Rice. The role of the Information Commissioner is distinct from the role of a third party objector.

“Under section12(1) of the GIPA Act, there is a general public interest in favour of disclosing government information. Section 12(2) of the GIPA Act sets out some examples of additional public interest considerations in favour of disclosure. However, I am not limited to only those considerations in deciding your application.

I find the following considerations in favour of disclosure are relevant to your application

•   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate.

•   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies.”

133. I accept there is a statutory presumption in favour of disclosure in s 12(1).

134. In respect of PICADs that may be considered under s 12(2), I accept that they are not limited by the examples in that section.

135. I have had regard to the following submissions of CMCT (CMCT-S[58]):

“.. there is a public interest in informed debate on issues of public importance and matters relating to government. Nevertheless, that consideration does not loom large in this case. While the highlighted information contained in the [Disputed Letter] is of significant to CMCT, it is not likely to be of interest to a broader audience. Its disclosure would not contribute significantly to scrutiny or accountability of the Treasury or the Auditor-General. It deals essentially with a private matter: the business structure and features of CMCT.

136. I do not agree with these submissions. Although it may relate to matters relevant to CMCT, it is clear from the A-G Report that this was a matter of public concern. The personal factors of the application (s 55) are also relevant, and both matters were recorded in the Applicant’s oral submissions:

“I apprehend that you as a senior member are familiar with the role of the ABC and the role of investigative journalism in exposing these kinds of transactions between statutory trusts and government and that there is both the statutory presumption under the GIPA Act that these kind of – this kind of communication should be released but also a distinct public interest in having a public broadcaster bring these matters to public attention.

Further, we rely on Agency 1 [being the A-G Report] in support of our argument… the letter from the Auditor-General is quite an extraordinary document and it reflects a level of frustration with the actions of CMCT which I have not seen previously in similar government correspondence and the – to the extent that the release of the CMCT correspondence could facilitate the ventilation of those issues, I submit that it would be in the public interest for that to occur.” (Transcript, p47)

137. I find that there are clear public interest considerations in favour of disclosure, being disclosure of matters of public interest and/or concern, as revealed by the remarks in the A-G Report referenced in the extract above. That document was before the Tribunal (refer italics in the extract at par 67(2) above), and is plain on its face.

138. I accept that there are personal factors of the application (s 55) which add to this factor – being the role of Ms Zillman (a journalist) and her employer, the ABC (a public broadcaster) and the reason for the application being to bring the matters to public attention.

139. I therefore find that the above PICIFODs apply, and they are of significant weight.

Balancing the factors

140. On the basis that cl 6 does not apply, there is no public interest consideration against disclosure and therefore an overriding public interest in favour of disclosure.

141. Alternatively, if I am wrong and cl 6 does apply, it follows from my findings above that in undertaking the balancing exercise, as required by s 13 of the GIPA Act, the considerations in favour of disclosure (under s 12(1) and the PICIFODs discussed above) are of significant weight, and clearly outweigh the PICAD in item 6 which I have found to be of low weight.

142. I therefore find, either way, that there is an overriding interest in favour of disclosure.

143. The correct and preferable decision is to grant access to the Information.

Joinder application by the Successor Entities

144. Each of the Successor Entities seek joinder as parties to the proceedings.

145. The joinder application was opposed by the Applicant and by the Commissioner. The Respondent neither opposed nor supported it.

146. The Tribunal’s power (and discretion) to join a person as a party to proceedings arises from s 44 of the NCAT Act and, particularly, s 44(1). Section 44 relevantly provides:

44 Parties and intervention

(1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.

(2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has—

(a) been improperly or unnecessarily joined, or

(b) ceased to be a proper or necessary party.

(3) For the avoidance of doubt, the member or members who constituted the Tribunal when it made an internally appealable decision cannot be made parties to an internal appeal against the decision.

(4) The following persons may intervene and be heard in proceedings to which they are not already parties—

(a) the Attorney General,

(b) a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings,

(c) any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings.

(5) A Minister may (from money otherwise lawfully available for the purpose) authorise the payment to a party to the proceedings in which the Minister or the Minister’s delegate intervenes such costs (if any) as the Minister considers were reasonably incurred by that party in relation to the proceedings as a result of that intervention.

147. The text of the s 44 shows that the Tribunal’s discretion concerning joinder is broad.

148. The authorities suggest that the Tribunal, in the exercise of its discretion under s 44, should have regard to the statutory context of the decision, with factors relevant to the exercise of the discretion summarised in the following passage in Rice at [105]:

When deciding whether to exercise the discretion to join a person as a “party”, ”the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case” are all relevant factors: … Whether prejudice would be caused by joinder, such as delay to proceedings, is relevant. Further, as previously stated by the Tribunal, ”[w]hen exercising its powers under the [NCAT Act], including the power under s 44(1), the Tribunal is to seek to give effect to the guiding principle…to facilitate the just, quick and cheap resolution of the real issues in the proceedings” [citations omitted].

149. The authorities also suggest that the Tribunal, in exercising the discretion given to it under s 44(1), should have regard to the considerations set out in s 44(2) concerning the removal of a party as well as similar provisions contained in Uniform Civil Procedure Rules 2005, r 6.19; Commissioner of Police v Fine [2014] NSWCA 327 (“Fine CA”); Commissioner of Police v Fine [2014] NSWCATAP 24 (“Fine AP”); and Rice.

150. In each of these authorities, particular focus has been given to interpreting the term “proper or necessary”.

151. In Fine (CA) at [38]-[41], the NSW Court of Appeal said:

[38] The power of joinder conferred by the Civil and Administrative Tribunal Act, s 44 is stated in general terms. It is a power to join a party “if the Tribunal considers the person should be joined as a party”: s 44(1). … The Commissioner submitted that the power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a “proper or necessary party” ought to be joined in the proceedings. That submission may be accepted. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions “proper” and “necessary”, noting that the expressions are used in s 44(2) disjunctively and that a “proper” party may not be a “necessary” party.

[39] A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. … The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal. …

[40] The question whether a party is a “proper” party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister’s department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene.

[41] A party who is an applicant in the process before a decision-maker would also be a proper party. In the ordinary course, a successful applicant would have a relevant interest in the review proceedings and would, therefore, be a proper party to an appeal….

152. In Fine (AP) at [35], the Appeal Panel of the Tribunal observed that:

Unlike the joinder provisions in some comparable legislation, such as s 30(1A) of the federal Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) of the Act contains no requirement that applicants for joinder should show that their “interests are affected,” but empowers the tribunal to order a person to be joined as a party “if the tribunal considers that the person should be joined as a party”. Nor does it require common questions of law and fact. It is similar to r 6.19 of the Uniform Civil Procedure Rules in granting a wide discretion, although it is even more broadly expressed than that rule.

153. In Ross v Lane Cove Council [2014] NSWCA 50, the Court of Appeal considered the tests for joinder and the development of joinder at common law and equity. The Court stated at [51] that it is well settled law that a person directly affected by the orders sought in a proceeding is a necessary party. However, the Court also stated, at [61], that since the underlying concern is natural justice, joinder is not always necessary. Although in exercising its administrative review jurisdiction the Tribunal is not a court, it is required to afford procedural fairness in its proceedings, which must be the central consideration in determining the joinder application.

154. Section 104(3) of the GIPA Act (Right of Appearance before NCAT) says:

(3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.

155. The question of joinder was pressed in the Commissioner’s submissions are as follows:

“... the Information Commissioner submits that CMCT ought not be permitted effectively to hijack the proceedings because to do so is not within the scope of CMCT’s right to appear and be heard pursuant to s 104(3) of the GIPA Act; and because for a third party objector to propose to do so is a decisive consideration against granting CMCT’s application to be joined as a party.”

156. The Successor Entities referred to Marrickville Council v Botany Council [2015] NSWCATAD 144 (“Marrickville Council”). In that case, the Tribunal joined Sydney Airport Corporation Limited (SACL) as a second respondent to GIPA Act proceedings. The Tribunal found that SACL should be joined, having regard to the following matters:

30.   It is clear that the applicant has an interest in the proceedings. The broad position is that the grounds relied upon by the Respondent (in the substantive application), for withholding the information, are that the release of the information would be likely to diminish the competitive commercial value of any information to any person and prejudice any person’s legitimate business, commercial, professional or financial interests.

31.   It was submitted that due to the nature of the information only [SACL] would be in the best placed position to provide evidence as to how the relevant provisions of the Table to section 14 of the GIPA Act would apply. Whilst the respondent (Botany) had formed the view (either prior to or after consultation) that the provisions would apply, only [SACL] could set out how the business interests could be prejudiced, so as to provide significant weight to override the general presumption in favour of disclosure.

33.   … I anticipate that had the administrator’s (Botany) decision been to release the information, the third party would have been an applicant in separate proceedings rather than a second respondent following a joinder application.

34.   Bearing in mind the proposition that the applicant may well need to take the lead role in the substantive proceedings (in a practical rather than structural context), in my view they would be ‘a proper or necessary party’ and as such should be joined.

157. As noted by the Applicant, that approach was not followed by the Tribunal in Cahalan v Lane Cove Council [2023] NSWCATAD 209 at [58], a case where SM Riordan agreed with an earlier decision of SM Gatland that cast doubt on the correctness of the statements at paragraph 34 of the reasons in Marrickville Council because the onus in s 105(1) would lie on the respondent agency. In any event, none of the objectors in either case were relying on grounds that that were relevant to their own circumstances.

158. In this case:

1. CMCT was relevantly “aggrieved” and consulted under s 54 of the GIPA Act prior to the issue of the Decision;

2. CMCT had no right of review in respect of that consultation under s 105, as no relevant decision was made at that time to refuse access to the Information;

3. I have accepted that CMCT had a right to appear and be heard in these proceedings and to raise new grounds under s 104(3) of the GIPA Act;

4. I accept that CMCT participated fully since commencement of the proceedings, and that the Successor Entities have assumed the rights and obligations of CMCT; and

5. I accept that given the position of the Respondent, it may be likely that no right to appeal from the decision of this Tribunal would arise to the Successor Entities unless they were joined as a party.

159. Notwithstanding the above:

1. The statutory right granted to an objector does not automatically extend to a right to appeal;

2. I find that the Successor Entities are not a “necessary party”, as the orders made by the Tribunal will be directed only to the Respondent;

3. I also find that they are not “proper parties”. Although they have an interest in the Information, there has been no ground raised by CMCT (noting that the submissions have been adopted by the Successor Entities) in these proceedings that is relevant to their own particular circumstances. The final ground left standing has been considered above, and rejected.

160. In those circumstances, the Tribunal sees no further role for the Successor Entities in circumstances where the Respondent is of a different view and the Tribunal has found the sole ground raised not to be applicable and, in the alternative of such low weight to be balanced against significant public interest considerations in favour of disclosure.

161. I have set out the background and history of this case in detail because the path trodden by CMCT has been difficult for the Tribunal and for the parties. The Tribunal must seek to give effect to the guiding principle in s 36 of the NCAT Act, and I am satisfied that joinder of the Successor Entities would not facilitate the just, quick and cheap resolution of these proceedings, whether they were a proper party or not.

162. For the above reasons, the application is refused.

Confidentiality order previously made

163. Finally, I should deal with an order was made by the Tribunal at the hearing on 19 October 2023 in the following terms:

“Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal At 2013 (NSW) publication of the matters contained in Exhibit Applicant 1, page 70, subheading 3 paragraph (c), and subheading 4 paragraphs (c) and (d) is prohibited until publication of the decision, subject to any further order.”

164. Exhibit Applicant 1 is the letter dated 6 March 2022 sent by CMCT to the Respondent raising objections under the s 54 consultation. It is referred to in the affidavit of Ms Kia Daley filed in these proceedings. This letter was provided to the Applicant by the Respondent in full without the knowledge of CMCT. It is not a letter within the scope of the GIPA Application.

165. Having reviewed the relevant materials (including the hearing transcript), and in light of my decision that access should be granted to the Information, I will make extend the previous non-publication order on the same terms for a period ending 14 days after the date of this decision.

Orders

166. I make the following orders:

1. The Decision under review is set aside.

2. In substitution, the Respondent is to grant access to the letter dated 12 October 2022 (the redacted part of which was the subject of these proceedings) in full, without redactions.

3. The application (as amended) for joinder of Catholic Cemeteries & Crematoria Ltd as trustee of the Catholic Cemeteries and Crematoria Trust and All Faiths Catholic Land Manager Limited is refused.

4. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the matters contained in Exhibit Applicant 1, page 70, subheading 3 paragraph (c), and subheading 4 paragraphs (c) and (d) is prohibited for a period ending 14 days after the date of this decision.

5. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal At 2013 (NSW), publication of paragraphs of these reasons marked “Not for Publication” to the Applicant, Information Commissioner and the public is prohibited.

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

14 July 2025 - Representation updated on coversheet.

Decision last updated: 14 July 2025