Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Hearing dates: 8 May 2020; 17 August 2020 (final written submissions) Date of orders: 21 August 2020 Decision date: 21 August 2020 Jurisdiction: Appeal Panel Before: A Britton, Principal Member Decision: (1) The appeal is allowed in part. (2) The Tribunal's decision is set aside. (3) The balance of the appeal is dismissed. (4) The Appeal Panel will deal with the internal appeal by way of a new hearing based on the evidence before the Tribunal at first instance. (5) Within 14 days of this decision, the Commissioner is to give to the Tribunal and Ms Wojciechowska submissions (maximum 2,500 words including footnotes and annexures) answering the questions set out at [44] above. (6) Within 28 days of this decision, Ms Wojciechowska is to give to the Tribunal and the Commissioner submissions (maximum 2,500 words including footnotes and annexures) including footnotes in response. (7) Within 35 days of this decision, the Commissioner is to give to the Tribunal and Ms Wojciechowska any submissions (maximum 1,500 words including footnotes and annexures) in reply. (8) The submissions should include the party's views as to whether a hearing should be dispensed with under s 50 of the Civil and Administrative Tribunal Act. Catchwords: GOVERNMENT INFORMATION — onus — application of s 105 of the Government Information (Public Access) Act 2009 (NSW) — whether applicant bears a "practical onus" to establish that requested information exists and is held by the agency ADMINISTRATIVE REVIEW — whether Tribunal has power to review a decision that is not the subject of an application for administrative review made under s 100 of the Government Information (Public Access) Act — whether parties can confer jurisdiction on the Tribunal by consent PROCEDURAL FAIRNESS — apprehended bias — bias by association — whether Member's previous association with a party's legal representative gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — apprehended bias — bias by conduct — whether Member's conduct in hearing gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — hearing rule — whether by permitting party to amend documents the Tribunal failed to give a party a reasonable opportunity to be heard Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Freedom of Information Act 1989 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Amos v Central Coast Council [2018] NSWCATAD 101 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 Cainfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Klaric v Commissioner of Police [2020] NSWCATAP 153 McClymont v Department of Family and Community Services [2017] NSWCATAD 202 McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at 517 Neill v Legal Profession Complaints Committee [2011] WASCA 48 PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission (2012) 247 CLR 240; [2012] HCA 33 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 Webb v Port Stephens Council [2018] NSWCATAP 224 Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1 Wootten v Godfrey [2019] NSWCATAP 255 Texts Cited: None cited Category: Procedural and other rulings Parties: Paulina Wojciechowska (Appellant) Commissioner of Police, NSW Police (Respondent) Representation: Solicitors: Appellant (Self Represented) Crown Solicitor (Respondent) File Number(s): AP 20/05836 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 1 Date of Decision: 8 January 2020 Before: C Ludlow, Senior Member File Number(s): 2019/00205731 REASONS FOR DECISION 1. In September 2018, Ms Paulina Wojciechowska reported to NSW Police that trees on her property had been removed without her permission. Dissatisfied with their response, Ms Wojciechowska made a complaint about the attending police officers to the Commissioner of Police, NSW Police Force (the Commissioner). The Commissioner dismissed that complaint. 2. Following an "access application" made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), the Commissioner gave Ms Wojciechowska copies of the entries made in the Computer Operational Policing System (COPS) by the police officers who responded to Ms Wojciechowska's report. COPS is an electronic database used by the NSW Police Force to record, among other things, information about incidents that may require police action. According to Ms Wojciechowska, those entries contained a series of "lies", describing her as a "person of interest", which she found to be "shocking and devastating". 3. Following receipt of that information, Ms Wojciechowska made a further access application seeking information relating to, among other things, guidelines used by the NSW Police Force concerning the use of terms "person of interest" and "victim" in entries made in COPS. In a decision made on 17 June 2019, a delegate of the Commissioner identified a single document, the "COPS User Guide" as falling within the scope of the information requested by Ms Wojciechowska. The delegate decided to refuse to grant Ms Wojciechowska access to that guide. 4. Dissatisfied with that decision, Ms Wojciechowska applied to the NSW Civil and Administrative Tribunal (NCAT) for review of that decision. After Ms Wojciechowska lodged that application, a delegate of the Commissioner made a further decision, reversing the decision not to grant Ms Wojciechowska access to the COPS User Guide and granting Ms Wojciechowska access to that guide (the Supplementary Decision). 5. Following review, the Tribunal decided to affirm the Supplementary Decision: Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1. Ms Wojciechowska now appeals against that decision. Among other things, Ms Wojciechowska complains that the Tribunal failed to afford her procedural fairness and misapplied various provisions of the GIPA Act. 6. For the reasons that follow, I have decided to allow the appeal in part. Legislative framework 1. The objects of the GIPA Act are set out in s 3(1): (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by— (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 1. Section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the object of that Act and that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 2. Section 9 of the GIPA Act gives a person who makes an access application for government information a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications), unless there is an overriding public interest against disclosure of the information. It is not in issue that Ms Wojciechowska made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information". (See definition of these terms in s 4 of the GIPA Act.) 3. Section 58 of the GIPA Act states: 58 HOW APPLICATIONS ARE DECIDED (1) An agency decides an access application for government information by-- (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, 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. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (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. 1. A decision made under s 58(1)(b) of the GIPA Act is a "reviewable decision": s 80(e) of the GIPA Act. Section 100(1) of that Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of that decision. The burden of establishing that a reviewable decision is justified lies on the agency: s 105(1) of the GIPA Act. 2. In determining an application made under s 100(1) of the GIPA Act, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it: s 63(1) of the Administrative Decisions Review Act. In determining that application, the Tribunal may affirm or vary the reviewable decision, or set aside that decision and make another decision in substitution, or remit the matter for reconsideration by the administrator: s 63(3) of the Administrative Decisions Review Act. 3. Section 53 of the GIPA Act is central to this appeal. It imposes an obligation on an agency to search for information that is the subject of an access application: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources. The requested information 1. In the access application the subject of this appeal made on 25 March 2019, Ms Wojciechowska requested the following documents (the requested information): "1. Definitions of terminology and abbreviations used in COPS such as 'Person of Interest', 'Victim', 'Occurrence', 'Status: verified' etc; 2. Rules governing when it is permitted to enter a person as a 'person of interest' and a 'victim'; 3. Rules regulating the creation of entries and data entries in COPS; 4. Manuals with rules how to use the COPS; 5. Internal policies of NSW Police or binding internal directives of NSW Police or its officials on investigating reports of destroyed vegetation on private land under ss 140 and 513 of Crimes Act 1900." Tribunal's decision 1. Ms Wojciechowska's application for review raised two key issues: 1. Whether the Commission had complied with the obligation imposed by s 53 of the GIPA Act to undertake "reasonable searches" for the requested information. 2. Whether the 2010 version of the COPS User Guide given to Ms Wojciechowska under the Supplementary Decision is the most recent version of that guide. 1. Mr Matthew Smith, the maker of the Supplementary Decision, was the sole person called to give evidence in the proceedings. Mr Smith is a Senior Advisory Officer at Infolink, a Command within the NSW Police Force responsible for administering the Commissioner's obligations under the GIPA Act. 2. At [14] of its Reasons, the Tribunal recorded Mr Smith's claim that the version of the COPS User Guide marked "Version 2.1 Issue date September 2010" released to Ms Wojciechowska had not been updated since the date of issue and was current between August and October 2018, when the offending COPS reports were made. 3. The Tribunal summarised at [15], [16] the evidence given by Mr Smith about the steps he took to search for the requested information. The Tribunal recorded Mr Smith's claim that he: 1. searched on the Operational Policies and Procedures sections of the NSW Police Force's intranet, where he claimed, all policies relating to NSW Police's investigative functions, are located. 2. examined the titles of those policies to identify whether they might contain the requested information. 3. conducted a key word search using the terms "COPS definitions"; "COPS terminology"; "COPS User Guide"; "definition COPS"; and "rules COPS" within the following locations: Policies and Procedures section of the intranet, the COPS system and the NSW Police Force's Records Management System. 4. conducted a key word search in each of the above locations (except the COPS system) using the terms, "investigation vegetation", "environmental investigation" and "investigation". 5. asked a serving police officer, where they would search for policy information about "investigating damage to vegetation" and was told they would search in the locations searched by Mr Smith. In evidence, Mr Smith claimed that the above searches did not identify the requested information.. 1. The Tribunal went on to record at [17] that under cross-examination, Mr Smith: 1. agreed he did not search for the term "person of interest". 2. agreed that police training materials covering some or all parts of the requested information may exist but claimed that he did not find such information in his searches. 3. in answer to a question about the likelihood of a Standard Operating Procedure covering COPS being in existence, said that he did not know but assumed that if there was, it would be mentioned in the COPS User Guide. 4. stated that Standard Operating Procedures were available on the Policies and Procedures section of the NSW Police intranet, which he searched. They usually have the words relating to their subject matter in the title. 5. said that he was not sure how the revisions to the COPS User Guide were numbered but stated that serving officers were using the version given to Ms Wojciechowska in answer to her access application. 1. The Tribunal went on to record the evidence adduced by Ms Wojciechowska at [19], [20]: 1. the NSW Police Force Handbook 2017, which included topics on "mentally ill people" and "person of interest". Ms Wojciechowska contended that the existence of that information in the Handbook revealed that the searches conducted by Mr Smith were deficient as he did not find that information in his searches. 2. various COPS entries, including the acronym "CAS". That acronym is not mentioned in the COPS User Guide. Ms Wojciechowska contended that this revealed that the User Guide did not contain all the terms and acronyms used in COPS. 3. the COPS User Guide, which states on its opening page "Version 2.1 / Issue Date September 2010/ © NSW Police Force 2003". 4. page ii of that Guide, which states under the heading "Document Control": "This document is based on the original COPS User Guide (versions 1.1, 1.2, and 1.3 1994) released with the implementation of the COPS system. The aim of creating this document is to make a soft copy of the document available online to all COPS users. As such, this release is a revision increase (i.e. Going from version 1.3 to 1.4) not a version increase. Plans are currently underway to conduct a complete and thorough review of the content of this document." 1. page iii of that Guide under "Revision History", which states that the first version of that Guide was released in 1994. It states that the September 2010 version is Version 2.1 and the Description for this version is: "Update Security Classification of IR Reports to current practice." 1. After outlining at [22]-[24] the principles the Tribunal considered relevant to the determination of Ms Wojciechowska's review application, the Tribunal considered the material about the searches claimed to have been undertaken by Mr Smith. 2. The Tribunal considered it relevant that "points 1 to 4 of the request [made by Ms Wojciechowska] sought definitions and rules applying to COPS" (emphasis added). The Tribunal concluded at [28] that the "fact that another document such as the [NSW Police Force] Handbook contains a reference to a term in the request [made by Ms Wojciechowska] does not necessarily establish that the Handbook reference is relevant to how the term is used in COPS". The Tribunal noted that while Mr Smith had not used the term "person of interest" in conducting searches, the access application made by Ms Wojciechowska was not for all information about that term but rather for "definitions, terminology and abbreviations used in COPS such as "person of interest" and others". The Tribunal concluded at [29]: I accept Mr Smith's evidence that he did use keyword searches in all parts of his search and those terms were adequate in the circumstances of the particular request. The fact that the searches did not discover training materials is not conclusive in my view. I am not satisfied that the applicant has established that there are reasonable grounds to believe that the requested information exists and is held by the agency. 1. With respect to Mr Smith's claim that his enquiries had revealed that the version of the COPS User Guide given to Ms Wojciechowska was the most current version of that Guide, the Tribunal accepted that claim, reasoning at [32]: The 2010 COPS User Guide is unlikely to be comprehensive as the document itself stated that it required a "complete and thorough review" of the content. There was no evidence as to the procedure for updating of the document, but I accept Mr Smith's evidence that this is the version currently in use. There was no evidence to suggest that how entries are made or how the terms are defined has changed over time. Therefore the fact that the term "CAS", for example, is not defined in the Guide does not establish that it must be documented in a later version of the Guide. Grounds of appeal 1. Ms Wojciechowska has a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Ms Wojciechowska grouped her numerous grounds of appeal under five main headings: 1. "Factual material not considered 2. Relevant law not considered 3. Denial of procedural fairness 4. Acting under dictation 5. Manifest unreasonableness." 1. Each ground has numerous sub-grounds. Many overlap. Ms Wojciechowska asserts that each sub-ground raises a question of law. The Commissioner disagrees and contends that many of the grounds on which Ms Wojciechowska relies are in effect a challenge to the merit of the decision and require the leave of the Appeal Panel. Relevant law not considered 1. In support of this ground, Ms Wojciechowska relies on five sub-grounds. She asserts that the Tribunal erred by: 1. "placing onus of proof on the Appellant 2. not making a correct and preferable decision 3. failing to consider the June Decision or the deemed refusal 4. upholding the decision unsupported under GIPA Act 5. deny[ing] of material witness and lack of Jones v Dunkel inference." Misapplication of ss 105 and 53 of the GIPA Act 1. Central to each of sub-grounds 1, 2 and 4 is the contention that the Tribunal misapplied ss 105 and 53 of the GIPA Act. 2. Ms Wojciechowska contends that the Tribunal misapplied s 105 of the GIPA Act by requiring her to establish that the Commissioner had failed to "undertake such reasonable searches as may be necessary to find any of the government information applied for …". She asserts that the following extracts from the Reasons reveal "the Tribunal admits to have placed the onus of proof on the Appellant": [23] The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied… [29] … I am not satisfied that the applicant has established that there are reasonable grounds to believe that the requested information exists and is held by the agency. 1. The Commissioner disagrees, contending that the Tribunal correctly stated and applied the established principles governing the operation of ss 53 and 105 of the GIPA Act. The Commissioner contends that the substance of Ms Wojciechowska's complaint is that the Tribunal did not accept her contention that further material existed and was held by the agency. Consideration 1. The Tribunal at [22], [23] set out its understanding of the applicable law with respect to the operation of s 105 of the GIPA Act: [22] Where the Tribunal is reviewing a decision that an agency does not hold information, it should consider: (1) whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so, (2) whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of the case. (Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5; McClymont v Department of Family and Community Services [2017] NSWCATAD 202.) [23] The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186 at [33]-[34]). However this does not reverse the onus on the respondent under s 105(1) (Amos v Central Coast Council [2018] NSWCATAD 101 at [39]). The fact that there may be weaknesses in the searches conducted or failures in record keeping does not necessarily lead to a conclusion that searches have not been reasonable or adequate (Camilleri). 1. As the Commissioner points out, the two-step approach set out by the Tribunal in [22] reflects a long line of authority that has been followed by NCAT and one of its predecessors, the NSW Administrative Decisions Tribunal (the ADT). See for example, BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 at [30]; Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 and the authorities referred to by the Tribunal at [22]. 2. That approach stems from the decision of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 (Shepherd). In that decision the Commissioner formulated two questions which he considered must be answered in an external review application involving "sufficiency of search" issues: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency …; and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. 1. In Cainfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195, in the context of reviewing a decision to refuse access to a document under s 24(2) of the now repealed Freedom of Information Act 1989 (NSW), ADT President, O'Connor J commented on the first step of the test in Shepherd: [69] An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence. 1. The legislative scheme considered by O'Connor J was materially different from the current legislative scheme. In contrast to the GIPA Act, a notification that an agency does not hold a document was not a reviewable decision under the Freedom of Information Act. (see, Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140). In addition, the Freedom of Information Act did not contain an equivalent to s 53 of the GIPA Act. 2. In Webb v Port Stephens Council [2018] NSWCATAP 224, the Appeal Panel at [37] cited with approval the following passage from Amos v Central Coast Council [2018] NSWCATAD 101 (Amos) at [39], in which the Tribunal questioned the correctness of the test formulated in Shepherd, in particular, the notion that the applicant bears a "practical onus": [39] The Council submitted that the onus is on the applicant to establish that the additional information exists. That proposition is not supported by the legislative scheme, nor by authority. In Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69], a case dealing with the Freedom of Information Act, Judge O'Connor remarked that an applicant "must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists [that is, that there is further material]." These remarks were applied in the context of the GIPA Act in Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [22]. These decisions suggest that the applicant has what is sometimes referred to as a "practical onus" to establish the existence, or possible existence, of further information. However, these comments should not be taken to detract from the respondent's legal onus to justify its decision under s 105 of the GIPA Act. 1. Section 53 of the GIPA Act imposes an obligation on an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). That obligation is limited to "information held by the agency when the [access] application is received": s 53(1). The search must be conducted "using the most efficient means reasonably available to the agency": s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources". 2. The question of whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by an agency, is plainly relevant to the nature and extent of the searches required to be undertaken to discharge the obligation under s 53. Where, for example, the likelihood of the requested information existing and being held by the agency is farfetched or fanciful, for example, NSW Health holding information about US President Donald Trump's Twitter account or evidence of alien life in Wagga Wagga, arguably no search could properly be characterised as being a "reasonable search … as may be necessary to find any of the government information applied for" and, therefore no obligation to search arises. Conversely, where it is reasonably likely that the requested information exists and is held by the agency, a cursory search said to be unable to find the requested information, is unlikely to satisfy the obligation imposed by s 53. 3. However, in my view, there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake "reasonable searches" is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that "there are reasonable grounds to believe that the requested information exists and is held by the agency". Being familiar with the type of information it holds, its information management and retrieval systems, generally the agency will be best placed to make an assessment about the likelihood that the requested information exists and is held by it. Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s 53. This is not to say that the stated basis for an applicant's belief that the requested information exists and is held by the agency. Indeed, the basis for that belief may assist the agency in identifying and finding the requested information. However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency's "information is not held" is the correct and preferable decision. 4. While reluctant to depart from a long line of authority, I have concluded that in the context of an administrative review of an "information is not held" decision made under s 58(1)(b) of the GIPA Act, the application of the two-step test in Shepherd is plainly wrong. Applying that test requires the Tribunal to first determine whether there are "reasonable grounds to believe that the requested documents exists and are documents of the agency". If the Tribunal concludes that the answer to that question is no, the antecedent question of whether the "search efforts made by the agency to locate such documents have been reasonable" does not arise. In my view, that approach is at odds with s 105 of the GIPA Act which places the burden on the agency of establishing that its decision that information is not held, is justified. 5. In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal's power when reviewing an "information not held" decision, stating at [33]: The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. 1. I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". I do not understand the Appeal Panel in Klaric to suggest otherwise. 2. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 3. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 4. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: 1. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) – (5); 2. determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; 4. applying those findings, decide what the correct or preferable decision is; 5. affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act. Conclusion 1. Here, the Tribunal largely confined its consideration to whether the first step of the test in Shepherd had been satisfied, concluding: [29] I am not satisfied that the applicant has established that there are reasonable grounds to believe that the requested information exists and is held by the agency. 1. While the Tribunal considered aspects of the submissions made by the parties about the reasonableness or otherwise of the searches undertaken by Mr Smith, it made no express findings about whether the searches undertaken satisfied the obligation imposed by s 53 of the GIPA Act. 2. While the Tribunal applied established principles, as discussed above in my view those principles are plainly wrong. It follows the Tribunal misapplied ss 53 and 109 of the GIPA Act. Sub-ground 1 of ground B is established. It is unnecessary to consider sub grounds 2 and 4 as each raise the same issue. 3. This ground of appeal is established. 4. Because of the error identified by sub ground 1 of Ground B I have decided to deal with the appeal by way of a new hearing. However, I will proceed to consider those remaining grounds of appeal that may be relevant to the re-determination of the application for review or raise issues of significance. Misapplication of the "rule" in Jones v Dunkel 1. By sub-ground 5, Ms Wojciechowska contends that the High Court decision in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, required the Tribunal to draw an adverse inference from the Commissioner's failure to call Mr Kadian, the maker of the original decision. 2. Referring to the argument made by Ms Wojciechowska about the Commissioner's failure to call Mr Kadian, the Tribunal stated at [25]: [Ms Wojciechowska] also sought to cast doubt on Mr Smith's evidence and said that the officer who made the first decision would have been a more relevant witness. I am not satisfied that this is the case. I accept that Mr Smith conducted searches over all the areas of the request. It was Mr Smith who determined that the User Guide should be released. 1. In submissions filed in support of her initiating application to NCAT, Ms Wojciechowska requested the Commissioner to, among other things, make Mr Kadian available for questioning at the hearing. The Commissioner refused to accede to that request. Ms Wojciechowska asserts that, as a consequence, the Commissioner failed in his obligation to act as a "model litigant". 2. The Commissioner rejects the contention that his failure to call Mr Kadian to give evidence permitted the Tribunal to infer that Mr Kadian's evidence would not have assisted his case. He points to the explanation he gave the Tribunal for that decision: because Mr Smith had undertaken the most recent searches, in the Commissioner's view he was the most appropriate person to give evidence about the search conducted. Consideration 1. Jones v Dunkel is authority for the proposition that an unexplained refusal by a party to give evidence, to call witnesses or to lead other evidence may, in appropriate circumstances, entitle the tribunal of fact to draw an inference that the uncalled evidence would not have assisted that party's case. Here the Commissioner gave a plausible explanation for not calling Mr Kadian to give evidence. In those circumstances, the Tribunal did not err by not drawing the adverse inference Ms Wojciechowska asserts arises from the Commissioner's failure to call Mr Kadian. 2. It is not to the point, as Ms Wojciechowska contends, that the Commissioner's claim of having satisfied his obligation to conduct reasonable searches would have been strengthened had Mr Kadian been called to give evidence. The Commissioner was entitled to decide how to run his case. He was not obliged, as Ms Wojciechowska appears to suggest, to adduce all evidence that might support his claim. Indeed, in compliance with the obligation imposed by s 36(3) of the NCAT Act to co-operate with the Tribunal to give effect to the "guiding principle", to "facilitate the just, quick and cheap resolution of the real issues in the proceedings", the Commissioner was required to consider whether calling additional witnesses was necessary, proportionate and consistent with that obligation. 3. Ms Wojciechowska has not articulated the basis for the assertion that by failing to accede to her request to call Mr Kadian, the Commissioner failed to comply with the NSW Government Model Litigant Policy, less still how this raises a question of law. That Policy requires agencies to act as a model litigant in the conduct of litigation and "to act with complete propriety, fairly and in accordance with the highest professional standards": at [3.1]. The Policy does not require agencies to automatically accede to requests made by a party to make a person available to give evidence. There may be circumstances where a refusal to accede to such request could amount to a failure to comply with the Model Litigant Policy. For example, where the party has an intellectual disability or suffers some relevant disadvantage, which makes it difficult for them to present their case or to arrange for the issue of a summons. I am not satisfied that this is such a case. 4. This ground of appeal fails. Failure to consider the deemed refusal and the Original Decision 1. By sub-ground 3 of Ground B, Ms Wojciechowska contends that the Tribunal lacked the power to review the Supplementary Decision because her application to NCAT for review was not made in respect of that decision. 2. In support of that contention, Ms Wojciechowska refers to the following passage from the decision of the Appeal Panel in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68: [47] In our view, the scheme of the GIPA Act is such that there is no unilateral general power given to the agency to change a final decision. The Act has a complex scheme of review – internal review, the possibility of external review by the Information Commissioner, and external review by the Tribunal. It would undermine this scheme if an agency could unilaterally alter the decision at any stage of the review process. In our view, the provisions of the Act proceed on the basis that a decision once made binds the agency, and remains the decision under review, unless clear statutory mechanisms are utilised to alter it. (Emphasis added.) 1. The Commissioner submits that it is not open to Ms Wojciechowska to contend that the Tribunal lacked power to review the Supplementary Decision, given that when asked by the Tribunal, Ms Wojciechowska stated that she sought to have that decision reviewed together with the decision made on 17 June 2019 reviewed. Procedural history 1. The Commissioner failed to determine Ms Wojciechowska's access application made on 25 March 2019, within the time prescribed by the GIPA Act. By the operation of s 63 of that Act, the Commissioner was deemed to have decided to refuse to provide Ms Wojciechowska with access to the requested information. 2. On 17 June 2019, as permitted by s 63(2) of the GIPA Act, the Commissioner went on to make a "late decision". In that decision the Commissioner: (i) refused to provide Ms Wojciechowska access to the COPS User Guide "because there is an overriding public interest against disclosure" (s 58(1)(d)), and (ii) declared that apart from that document, the requested information was not held by the Commissioner (s 58(1)(b)) (the Original Decision). 3. On 28 June 2019, Ms Wojciechowska lodged with NCAT an "Application for miscellaneous matters". In that application Ms Wojciechowska sought various procedural orders in respect of proceedings then on foot, relating to an earlier access application she had made (NCAT 2019/142529). In addition, Ms Wojciechowska sought: "Order adjourning all proceedings … in relation to my access application IASU2019-360 until: (a) my access application IASU2019-1225 is reviewed by NCAT; (b) the NCAT's decision on my access application IASU2019-1225 is complied with by the Respondent; (c) I am afforded reasonable opportunity to acquaint myself with the information disclosed as a result of IASU2019-1225 the review by the NCAT." (IASU2019-360 is the file number given by the Commissioner to Ms Wojciechowska's earlier access application. IASU2019-1225 is the file number given to Ms Wojciechowska's access application that was the subject of these proceedings.) 1. On 23 July 2019, with the consent of the parties, Senior Member McAteer granted the adjournment requested by Ms Wojciechowska and, apparently in exercise of the power conferred by s 53 of the NCAT Act to amend applications, ordered that "proceedings filed 28 June 2019 are to be treated as an application for review of Police Decision IASU2019-1225 made on 17 June 2019". 2. In the Supplementary Decision made on 22 August 2019, the Commissioner's delegate, Mr Smith, reversed the Original Decision to refuse to grant Ms Wojciechowska access to the COPS User Guide and decided to provide Ms Wojciechowska with access to that document. The notice of the Supplementary Decision referred to the "no information held" decision made on 17 June 2019, but did not state that a further "no information held" decision had been made. 3. Section 65(1) of the Administrative Decisions Review Act permits the Tribunal at any stage of the proceedings to remit the decision the subject of the application for review for further consideration by the relevant agency. On reconsideration, the agency may affirm, vary or set aside the remitted decision and make a new decision in substitution for that decision. If dissatisfied with the decision made on reconsideration, the applicant can elect to proceed with the application for review of the decision as affirmed, varied or set aside. 4. The question raised by this ground is whether the Tribunal has power to review a reviewable decision which postdates an application for review made under s 100 of the GIPA Act in circumstances where, as here, that decision had not been reconsidered by the agency following remittal by the Tribunal under s 65 of the Administrative Decisions Review Act. 5. I am not persuaded as the Commissioner contends, that because the parties consented, the Tribunal acquired jurisdiction to review the Supplementary Decision. The parties' common position does not relieve a court or tribunal from its obligation of satisfying itself that it has jurisdiction: PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission (2012) 247 CLR 240; [2012] HCA 33 at [16]; Neill v Legal Profession Complaints Committee [2011] WASCA 48 at [7]. 6. Ms Wojciechowska is correct. The Tribunal did not have power to review the Supplementary Decision because it was not the decision the subject of her application for review made to NCAT on 28 June 2019. Nor was it made on reconsideration following remittal under s 65 of the Administrative Decisions Review Act. In addition, in the Supplementary Decision, the Commissioner did not make an "information not held by the agency" decision. 7. The error made by the Tribunal is one of form not substance given that the Tribunal in fact reviewed the decision challenged by Ms Wojciechowska: the decision made under s 58(1)(b) of the GIPA Act. 8. This ground of appeal is established. 9. I note that Ms Wojciechowska has been given access to the COPS User Guide in full so that this part of the Original Decision is no longer in issue. Relevant material not considered 1. By ground A, Ms Wojciechowska contends that the Tribunal failed, as required by s 63(1) of the Administrative Decisions Review Act, to have regard to all "relevant material". The material that Ms Wojciechowska contends the Tribunal was required to but failed to consider, includes: * "Credibility evidence": "the propensity of … Mr Smith to make errors", "Mr Smith is not a specialist on searches of documents" * "Existence of reference to training in COPS User Guide" * "[the fact that NSW Police] is a large and complex organisation". 1. Section 63(1) of the Administrative Decisions Review Act states: (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. 1. The "material" that Ms Wojciechowska contends the Tribunal was required to consider could not reasonably be described as "relevant factual material" or "applicable written or unwritten law" within the meaning of s 63(1) of the Administrative Decisions Review Act. Rather, the "material" concerns a series of assertions made by Ms Wojciechowska in this appeal about conclusions which, in her opinion, the Tribunal should have drawn from the available material. 2. This ground is misconceived. Denial of procedural fairness 1. By ground 3, Ms Wojciechowska contends that the Tribunal failed to afford her procedural fairness by breaching both the hearing rule and the rule against bias (apprehended bias). Apprehended bias: the principles 1. The Tribunal was obliged to afford each party procedural fairness: s 38(2) of the NCAT Act. That obligation required the Tribunal to determine Ms Wojciechowska's application for review without bias or the appearance of bias. 2. The test for apprehended bias, the "double-might test" is whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide": CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 (CNY17) at [56]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [6]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 (Isbester) at [20]. 3. Whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made requires consideration of the "legal, statutory and factual contexts in which the decision is made": Isbester at [20]; CNY17 at [58]. While the observer is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless they are taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23]. In addition, the observer is taken to have "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]": CNY17 at [58]. In addition, the observer is taken to be a "reasonable member of the public" who is "neither complacent nor unduly sensitive or suspicious": Johnson v Johnson [2000] HCA 48; 201 CLR 488 (Johnson) at [55]. The observer would not reach a "hasty conclusion" based on an "isolated episode of temper or remarks to the parties or their representatives, which was taken out of context": Johnson at [55]. 4. The test of apprehended bias is objective. It involves possibilities (real and not remote), not probabilities: McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at 517 [110]. The issue is not whether the decision-maker would not actually bring an impartial mind to the matter but rather whether the fair-minded lay observer might reasonably apprehend that to be the case: Wootten v Godfrey [2019] NSWCATAP 255 at [28] 5. In Isbester, Gageler J explained at [59] that the determination of an allegation of apprehended bias involves "three analytical steps": [59] Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way. 1. Where, as here, the claim of apprehended bias relies on multiple instances of conduct, it is necessary to consider those instances both individually and cumulatively to determine whether they were capable of giving rise to a reasonable apprehension of bias: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [176]; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [114]. 2. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 (Webb) Deane J explained at 74, 75 that the appearance of bias can take many forms, including disqualification by conduct; disqualification by association; and disqualification by extraneous information: see also CNY17 at [57]. Apprehended bias ground 1: disallowing the "pigs are filthy" question 1. Ms Wojciechowska contends that the fair-minded lay observer would conclude from the following intervention, that the Member held a poor opinion of her and a "high opinion of police officers". The intervention occurred while Ms Wojciechowska was cross-examining Mr Smith about the terms he used when conducting electronic searches for the requested information: MS WOJCIECHOWSKA: [...] Can you just explain to me how the search works? That one. So, what I mean, for instance, if I wanted to search, if I entered in the box where you entered a phrase, "Pigs are filthy", what — SENIOR MEMBER: Okay. Ms Wojciechowska, I think a little respect is required, please, if you're going to be cross-examining somebody. MS WOJCIECHOWSKA: Okay. Dogs are filthy. Is this better? SENIOR MEMBER: Not if you like dogs, it's not better. MS WOJCIECHOWSKA: Okay. Dogs are cute then. SENIOR MEMBER: Okay. Consideration 1. The NCAT Act permits the Tribunal to determine its own procedure in relation to any matter: s 38(1). While not bound by the rules of evidence (s 38(2) of the NCAT Act) the Tribunal may have regard to those rules. Under the Evidence Act 1995 (NSW) a court must disallow a question put to a witness in cross-examination if offensive and/or oppressive: s 41(1)(b). 2. Not being a lawyer, the fair-minded lay observer would not be aware that the Tribunal is not bound by the rules of evidence or that the Evidence Act requires a court to disallow offensive and/or oppressive questions. However, they would have a general understanding that the Tribunal has power to determine the manner in which proceedings are conducted. In addition, they would be aware that the Tribunal would require parties to be respectful towards the Tribunal, each other, and their respective witnesses. In addition, they would be aware that in Australia, the term "pigs" is a pejorative term used to refer to police officers. 3. In my view, the fair-minded lay observer would probably conclude that in the context of proceedings where the Commissioner of Police was the respondent and the person being questioned was an employee of the NSW Police, the "pigs are filthy" question, is offensive. They would probably conclude that the actions of the Member in disallowing that question were appropriate. I am not persuaded that the observer might reasonably apprehend that the Member might not bring an impartial and unprejudiced mind to the determination of the application because she disallowed that question. 4. With respect to the Member's actions in disallowing Ms Wojciechowska's comment, "dogs are filthy", in my view the fair-minded lay observer, is unlikely to consider that intervention to be of any significance, less still to indicate that the Member might have been unfavourably predisposed to Ms Wojciechowska or her application. Apprehended bias ground 2: the laughter allegation 1. Ms Wojciechowska alleges that while she was making submissions about the "False Document" on two separate occasions the Member let out a "snort of laughter". In addition, Ms Wojciechowska alleges that in responding to the "incorrect assertion" made by the solicitor representing the Commissioner (the Solicitor) that she had been refunded the application fee for making the access application, the Member "coughed theatrically" as if to "interrupt the negative comments about the [Commissioner's] conduct". (The Commissioner was obliged to refund the application fee paid by Ms Wojciechowska because her access application was not determined within time: s 63(1) of the GIPA Act.) 2. Ms Wojciechowska contends that the fair-minded lay observer would conclude from the Member's conduct that she had a "closed mind" to her submission that the "false document" had been filed intentionally, or that the Commissioner "might be incorrect about anything". 3. The Commissioner disputes the assertion that the Member laughed as alleged. He contends that at best the sound recording of the proceedings reveals some "tonal variation" in the Member's voice. The "false document" allegation 1. To put the laughter claim in context, it is necessary to first outline the "false document" allegation. 2. The Commissioner gave Ms Wojciechowska two versions of the notice of the Supplementary Decision. The first version was given to Ms Wojciechowska on or around the date that decision was made, 22 August 2019. The second version was annexed to the affidavit sworn by Mr Smith on 30 September 2019, and served on Ms Wojciechowska shortly after that date. 3. The first version of the notice refers to a search having been undertaken for the requested information in the context of the Original Decision: "On 17 June 2019 a notice of decision was made which indicated that certain documents which you requested were not in the possession of this agency. Of the documents you requested that were in the possession of the agency, one document identified as the "COPS user guide" was refused in full. " 1. In contrast, the second version of the notice, referring to the obligation to conduct reasonable searches imposed by the GIPA Act, stated that: Under the GIPA Act, NSWPF must conduct reasonable searches to locate the government information you seek. A search of NSWPF records has been undertaken to identify all government information falling within the scope of your application. The results of these searches are listed in the Schedule of Documents included in the Notice of Decision. I can confirm that searches were carried out on various Databases such as the Computerized Operating Policing System (COPS), the Records Management System (RMS) as well as the NSW Police for intranet for policy and procedural information which would be captured under your application. Notification pursuant to Section 58(1)(b) Section 58(1)(b) provides that an agency can decide an access application for government information by deciding that the information is not held by the agency. In accordance with the provisions of section 53(2) this agency has undertaken such reasonable searches as necessary to attempt to locate the government information you seek access to. It is advised that although searches have been undertaken to identify any other records held by NSW Police Force that fall within scope of your request, no other information could be found other than the 'Cops user guide' identified in the Notice of decision of 17 June. In view of the fact that the information sought is not held by this agency, you are so advised in accordance with section 58(1)(b) of the Act. 1. In his affidavit, Mr Smith wrote that in the context of making the Supplementary Decision he searched for the requested information: affidavit of Matthew Smith, 30 September 2019 [11], [12], [17]. The submissions prepared by the Commissioner, filed on 1 October 2019, relied on those claims in support of the contention that reasonable searches had been undertaken for the requested information. 2. At the commencement of the hearing on 8 October 2019, the Solicitor advised the Tribunal that the version of the notice of the Supplementary Decision annexed to Mr Smith's affidavit had been annexed in error. Ms Wojciechowska was advised of that error about five minutes before the commencement of the hearing. 3. In oral evidence, Mr Smith claimed that the version of the Supplementary Decision annexed to his affidavit was a draft and he no longer relied on paragraphs 12 and 14 of his affidavit. He claimed that after the Original Decision had been made it had been assumed that the only remaining issue of concern to Ms Wojciechowska was the decision to refuse to release the COPS User Guide. He claims that it was not until after the Supplementary Decision was made that he became aware that Ms Wojciechowska was also concerned with the "information not held" decision. In closing submissions, the Solicitor stated that the Commissioner no longer relied on those parts of his written submission which referred to Mr Smith's claim that he searched for the requested information in the context of making the Supplementary Decision. 4. Ms Wojciechowska rejects the explanation proffered by the Commissioner. She claims that the discrepancy between the two versions of the notice amounts to "fraud". Consideration 1. I have carefully listened to the relevant parts of the sound recording. I am not persuaded that, as claimed by Ms Wojciechowska, the Member can be heard to laugh. It is possible, that the Member did laugh on the occasions as alleged, but that was not captured on the sound recording. However, for current purposes, I will assume but not decide that, as alleged by Ms Wojciechowska, the Member can be heard to laugh and consider whether, as a consequence the fair-minded lay observer might apprehend from that conduct that the Member might not bring an impartial mind to the determination of Ms Wojciechowska's application. 2. Ms Wojciechowska raised the false document claim at the start of the hearing, shortly after she announced her appearance: MS WOJCIECHOWSKA: Yes. Well, I think that the Crown, by not filing proper submission and materials by the due date, which I can show to you they did in cold blood. So, this was a planned decision. Not that there was any misunderstanding. What I really applied for when you look at my application, ISAU, they reversed an onus of proof. Because the onus of proof is on them to prove their decision. But they decided not to prove anything. Left me there, out in the open. Then, when I made my submissions, they submitted the fraudulent document to you. SENIOR MEMBER: Right. Okay. MS WOJCIECHOWSKA: Yes. It's an affidavit. SENIOR MEMBER: Well, let's deal with one thing at a time. So, are you seeking an adjournment today, or do you wish to proceed? MS WOJCIECHOWSKA: I would like to get all of my orders. I do think they really even, by reversing this onus of proof, proved anything. Not in the affidavit, to which a fraudulent document is attached. Not even in the affidavit itself, which is just a confusion, and shows on its own that the officer didn't search where he should search. 1. The Member then sought to obtain clarification from Ms Wojciechowska about which decision she sought to have reviewed. This led to the following exchange (Transcript p 4 at ll 27-45): MS WOJCIECHOWSKA: That's what I mean by referring to a fraudulent document. The one attached to the affidavit, the notice of decision, I never received a notice of decision that looks like this. Mine looked completely different to the notice of decision they attached to the affidavit. SENIOR MEMBER: All right. Well, we'll come to that when we look at the affidavit. MS WOJCIECHOWSKA: Yeah. SENIOR MEMBER: All right. So, Ms Doyle, is there [alleged chuckle] anything you'd like to say at this point? MS DOYLE: No. Only to say that it is correct to say that the notice of decision that is annexed to the affidavit of Matthew Smith is incorrect. 1. The second occasion where the Member is alleged to have laughed occurred about 12 minutes into the hearing: MS DOYLE: I think it was 3 October when you emailed the CSO to ask they would accept access. MS WOJCIECHOWSKA: Yeah. I phone the registry on 2 October. So, I had a nervous breakdown when I saw the fraudulent document you were trying to flog on me. SENIOR MEMBER: All right. Well, that's enough about the fraudulent document [alleged laugh]. I understand you're not happy with it. We'll come to that when we hear from Mr Smith. All right. Well, look, given that you're here today, and you're otherwise ready to proceed, I think we'll proceed. You'll have an opportunity to cross-examine Mr Smith. Then if you feel that there is outstanding matters that you could not as Mr Smith, or Mr Smith was not able to provide information on, we can look at that issue at that point. All right. Mr Smith is the only witness, I think. 1. Might the fair-minded lay observer apprehend that the Member might not determine the review application fairly and impartially had they concluded the Member laughed on the two occasions alleged by Ms Wojciechowska? The observer would be aware that throughout the proceedings the Member treated Ms Wojciechowska and the Solicitor with respect. The observer would also be aware that in referring to the fraud allegation, Ms Wojciechowska used emotive and colourful language: "they did in cold blood"; "left me there, out in the open" "having a nervous breakdown", "the fraudulent document you were trying to flog on me". 2. Being fair-minded, the observer would have regard to the entirety of the Member's conduct and not take the two isolated instances on which Ms Wojciechowska relies out of context: see: Johnson at [55]. 3. I am not persuaded that the observer might reasonably apprehend that the Member might not bring an impartial and unprejudiced mind to the determination of the application, even had they assumed the Member laughed as alleged by Ms Wojciechowska. Apprehended bias ground 3: Member's prior association with the Crown Solicitor 1. Ms Wojciechowska contends that the fair-minded, lay observer apprised of the fact that the Member worked for the Crown Solicitor until 2016, would conclude that the Member "finds CSO inherent trustworthy and accepts uncritically everything it proposes to her likely due to the previous associations". In addition, she alleges that the observer might conclude that the Member and the Solicitor conferred "behind the appellant's back". 2. The Member was employed by the Crown Solicitor until 2016. Ms Wojciechowska made the subject access application in March 2019. Principles governing disqualifying associations 1. The principles which govern the conduct of judicial officers and Tribunal members are not the same. Nonetheless, the guidelines governing the conduct of judicial officers provide useful guidance in identifying the types of associations that might disqualify a Member from determining an application. The Guide to Judicial Conduct (3rd Edition) (the Guide) produced by the Australasian Institute of Judicial Administration Incorporated, addresses whether past professional or other associations are grounds for disqualification of a judge. Acknowledging that there are "no hard and fast rules", the Guide states at [3.3.4] that "Past professional association with a party as a client is not "of itself a reason for disqualification unless the judge has been involved in the subject matter of the litigation prior to appointment or unless the past association gives rise to some other good reason for disqualification". The Guide goes on to state: Friendship or past professional association with counsel or a solicitor is not generally to be regarded as a sufficient reason for disqualification. 1. Members of NCAT are bound by the NCAT Member Code of Conduct. Issued by the President of NCAT under s 20 of the NCAT Act, the stated purpose of the Code is to provide guidance to Members in the performance of their statutory functions as Members of the Tribunal, to assist Members in identifying and resolving ethical issues as they may arise, and to provide Tribunal users with information by reference to which to assess Members' conduct: [2], [3]. 2. The Code states: Independence 13. Tribunal Members are to perform their duties independently, free from external influence and free from the fear of adverse consequences. 14. Members should not allow themselves to be put in a position where their independence may be compromised or be perceived to be compromised. 15. Where part-time Members have a professional practice in addition to being Members of the Tribunal, they: cannot appear before the Tribunal as a representative of a party or other person; cannot advise individuals or bodies concerning Tribunal proceedings or potential proceedings involving those individuals or bodies; and cannot act for or against or provide services to individuals or bodies who are litigants before them in the Tribunal. 1. The Code does not prohibit a member from determining a matter where they have a prior professional association with a party or a representative of a party. Consideration The alleged private discussion between the Member and the Solicitor 1. Ms Wojciechowska alleges that the Member and the Solicitor had private discussions about her application. That allegation is based on two claims: (i) the Member knew the Solicitor's first name, and (ii) the Member "seems to know in advance what changes [the Solicitor] wished to make". 2. With respect to the first claim, Ms Wojciechowska relies on the following comment made by the Member during the hearing: SENIOR MEMBER: Right yes, yes, has Ms Amb, Ms Doyle seen that? 1. That comment reveals that the Member knew the Solicitor's first name, Amber. It is possible that the Member knew the Solicitor as a result of her prior employment with the Crown Solicitor's Office. Equally, it is possible that the Member knew the Solicitor's first name because it appears on correspondence between the Solicitor and the Registrar in relation to Ms Wojciechowska's application and, throughout the hearing, Ms Wojciechowska repeatedly referred to the Solicitor by both first name and surname. 2. The basis for the assertion that the Member knew in advance what the Solicitor "was going to say" is an exchange during closing submissions between the Member and the Solicitor. As stated above, in closing submissions the Solicitor advised the Tribunal that the Commissioner sought to amend his submissions on account of Mr Smith withdrawing his claim of having searched for the requested information in the context of making the Supplementary Decision. The Member then requested the Solicitor to identify those parts of the Commissioner's written submissions no longer relied upon. 3. Over several minutes the Solicitor took the Member to those parts of the Commissioner's submissions she wished to delete. It ended with the following exchange: MS DOYLE: The next one. Pardon me for taking some time. I should have brought a marked-up version. I think there's one before this. Yes. Paragraph 16. Final sentence. MS WOJCIECHOWSKA: I object. SENIOR MEMBER: Well, she hasn't said what she's doing yet. You're deleting the final sentence? MS DOYLE: I propose to delete the final sentence because the affidavit doesn't make that clear. Mr Smith having withdrawn that statement. (Emphasis added.) 1. The above exchange does not support the inference being drawn that the Member "seems to know in advance what changes [the Solicitor] wished to make", less still that the Member and the Solicitor conferred "behind the appellant's back". The Member's comment "You're deleting the final sentence?", reveals nothing more than the Member had heard and understood the statement made by the Solicitor seconds earlier. 2. There is no basis for the very serious allegation that the Member and the Solicitor have conferred "behind the appellant's back". Nor am I persuaded that the fair minded reasonable observer might have drawn that inference. Prior association with the Crown Solicitor's Office 1. Apart from pointing to the Member's former employment with the Crown Solicitor, Ms Wojciechowska has failed to articulate the logical connection between that association, and the feared deviation by the Member from the course of deciding her application on its merits. 2. The fair-minded, lay observer would be aware that the Member left the Crown Solicitor about three years before Ms Wojciechowska made her access application; there is no rule or legal principle which prohibits a judicial officer or a Tribunal member from hearing a matter where they had previously been employed by a legal firm which represents a party to proceedings, or where they have had previous professional association with a party's legal representative. While the fair-minded, lay observer might not be familiar with the details of the NCAT Member Code of Conduct, they would be aware that NCAT Members, like judicial officers, are required to perform their duties independently and with integrity. 3. I am not persuaded that the fair-minded, lay observer might apprehend that the Member's former employment with the Crown Solicitor might not bring an impartial and unprejudiced mind to the determination of Ms Wojciechowska's application. Nor am I persuaded that the observer would have reached a different view, had they assumed that the Member and the Solicitor were acquainted. Apprehended bias ground 4: the Member's alleged "one-sided distortion of evidence and arguments" 1. Under the headings: "uneven application of law" and "one-sided distortion of evidence and arguments", Ms Wojciechowska challenges the decision made by the Tribunal and the reasons given for that decision. Among other things, Ms Wojciechowska asserts that the Member failed to apply the "correct law" and to draw the "correct Jones v Dunkel" conclusion, distorted the evidence and arguments, and employed a reasoning process that was "asymmetrical". 2. This ground is in effect a challenge to the facts found by the Tribunal and the merits of the decision. The test of apprehended bias is directed not to the correctness of the outcome, but to the apparent fairness of the process: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209. I am not persuaded that the fair-minded lay observer might apprehend that the Member might not have been impartial on the basis of the decision made. Apprehended bias ground 5: instances of apprehended bias considered cumulatively 1. For the reasons given, assessed individually none of the claims of apprehended bias on which Ms Wojciechowska relies give rise to a reasonable apprehension of bias. Nor, assessed together, am I persuaded are some or all of those claims are capable of giving rise to a reasonable apprehension of bias. Lack of fair hearing 1. Ms Wojciechowska contends that the Tribunal failed to provide her with a fair hearing, by permitting the Commissioner to change his case without notice and by "not listening fairly". Relevant principles 1. In discharging the obligation to afford all parties procedural fairness (s 38(2) of the NCAT Act) the Tribunal was required among other things, to take such measures as are reasonably practicable to ensure that each party had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the NCAT Act. Permitting the Commissioner to "change his case without notice" 1. The question raised by this sub-ground is whether, by permitting the Commissioner to amend his submissions and by permitting Mr Smith to amend his affidavit, the Tribunal breached the obligation imposed by s 38(5)(c) of the NCAT Act to give Ms Wojciechowska a reasonable opportunity to be heard. This question requires consideration of the following contextual factors. 2. First, the scope of the permitted amendments. The amendments related solely to the timing of the search undertaken by Mr Smith, not the type and extent of the search conducted. It did not alter the primary submission made by the Commissioner: that he had discharged the obligation imposed by s 53 of the GIPA Act. 3. Second, the effect of the permitted amendments. By permitting those amendments to be made, the Tribunal did not accept the claims made by Mr Smith, as I understand Ms Wojciechowska to contend. That was a matter for the evidence. The Tribunal was entitled to reject Mr Smith's explanation for annexing the wrong version of the Supplementary Decision to his affidavit and his claim that he had conducted the searches described in his affidavit. 4. Third, the steps taken by the Tribunal when advised of the proposed amendments. The Tribunal offered Ms Wojciechowska the opportunity of an adjournment, which she declined. In addition, the Tribunal gave Ms Wojciechowska ample opportunity to test the claims made by Mr Smith. 5. Procedural fairness is concerned with questions of practical justice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ); Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41]. Ms Wojciechowska has failed to articulate how the amendments to the Commissioner's submissions and Mr Smith's affidavit resulted in her being deprived of a reasonable opportunity to put her case. It is regrettable that the incorrect version of the Supplementary Decision was annexed to Mr Smith's affidavit and that Ms Wojciechowska was not notified of this until the day of the hearing. It resulted in an unnecessary distraction. Nonetheless, I am not persuaded that it resulted in any practical injustice. Not listening fairly 1. In this sub-ground, Ms Wojciechowska repeats the claims that the Tribunal distorted her evidence and submissions. She contends in effect that that the only possible explanation for the Member not accepting her submissions was that the Member did not "listening fairly". She appears not to have entertained the possibility that the Member did not find her submissions to be persuasive. The contention that the Member failed to "listen fairly" is rejected. Conclusion 1. This ground of appeal is rejected. Orders 1. The appeal is allowed in part. 2. The Tribunal's decision is set aside. 3. The balance of the appeal is dismissed. 4. The Appeal Panel will deal with the internal appeal by way of a new hearing based on the evidence before the Tribunal at first instance. 5. Within 14 days of this decision, the Commissioner is to give to the Tribunal and Ms Wojciechowska submissions (maximum 2,500 words including footnotes and annexures) answering the questions set out at [44] above. 6. Within 28 days of this decision, Ms Wojciechowska is to give to the Tribunal and the Commissioner submissions (maximum 2,500 words including footnotes and annexures) including footnotes in response. 7. Within 35 days of this decision, the Commissioner is to give to the Tribunal and Ms Wojciechowska any submissions (maximum 1,500 words including footnotes and annexures) in reply. 8. The submissions should include the party's views as to whether a hearing should be dispensed with under s 50 of the Civil and Administrative Tribunal Act. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2020