Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Walker v Northern Beaches Council [2021] NSWCATAD 277 Hearing dates: On the papers Date of orders: 22 September 2021 Decision date: 22 September 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: (1) The following application by Mr Walker to Northern Beaches Council under the Government Information (Public Access) Act 2009 is approved: All documents and plans relating to stormwater management and disposal arising from the original subdivision and any subsequent approvals for numbers 11 and 12 Buena Vista Avenue, Mona Vale. (2) Parties have liberty to apply with 5 days' notice. Catchwords: ADMINISTRATIVE LAW - access to government information - restraint order in place - leave required for applicant to apply for information under Government Information (Public Access) Act 2009 (NSW) - Transitional Provisions Northern Beaches Council Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Walker v Pittwater Council (2015) NSWCATAD 198 Walker v Pittwater Council (2015) NSWCATAD 222 Walker v Pittwater Council (2016) NSWCATAD 78 Category: Principal judgment Parties: P Walker - Applicant Northern Beaches Council - Respondent Representation: Solicitors: Ken Webber - Respondent File Number(s): 2021/00164982 REASONS FOR DECISION Introduction 1. The applicant (Mr Phil Walker) seeks approval of this Tribunal to issue an access application on the respondent (Northern Beaches Council) in circumstances where he is restrained from bringing that application pursuant to s110(1) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The respondent consents to the application. Disposal of a Hearing 1. On 20 July 2021, the Tribunal made an order pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) that the matter is to be determined without the need for a hearing. In these circumstances the matter is to be determined on the papers. The Statutory Scheme 1. The application arises under the implied power of the Tribunal pursuant to s110(1) of the GIPA Act to grant approval to Mr Walker, who is the subject of a restraint order under that section, to make a further access application despite the order. 2. S110(1) provides: "(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a 'restraint order') if NCAT is satisfied that: (a) at least three access applications (to one or more agencies) in the previous two years have been made that lack merits, and (b) the applications were made by the same person or by any other person acting in concert with the person. (2) An access application is to be regarded as lacking merit if: (a) the agency decided the application by refusing to deal with the application in its entirety, or (b) the agency decided the application by deciding that none of the information applied for is held by the agency, or (c) the access applicant's entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable). … (4) A person who is subject to a restraint order cannot apply to NCAT for approval to the making of an access application by the person without first serving a notice of the application for approval on the agency concerned and the Information Commissioner. (5) An application for a restraint order against a person may be made by an agency that receives an access application from the person whether or not the agency has decided the application or by the Minister or the Information Commissioner. (5A) In deciding whether to approve the making of an access application by a person the subject of a restraint order, NCAT is to consider, without limitation, any of the following: (a) whether the proposed application is lacking in merit, (b) whether the proposed application is frivolous, vexatious, misconceived or lacking in substance, (c) whether the applicant has engaged in conduct designed to harass, to cause delay or detriment, or to achieve another wrongful purpose. (6) NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance. (7) While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application." 1. The specific order made by the Tribunal in Pittwater Council v Walker [2015] NSWCATAD 34 on 10 March 2015 was: "The Respondent is restrained from making any access application to Pittwater Council without first obtaining approval of the Tribunal pursuant to section 110 (1) of the Government Information Public Access Act 2009. Transitional Provisions 1. It is not in contest that the Pittwater, Warringah and Manly Councils amalgamated pursuant to legislation on 12 May 2016 to form the new Northern Beaches Council. 2. The Local Government (Council Amalgamations) Proclamation 2016 - current version 7 November 2016 at Part 2 Division 5 Clause 34 provides: '34 Continuation or institution of proceedings by or against new councils (1) Proceedings that were instituted by or against a former council before its dissolution, or that could have been instituted by or against a former council but for its dissolution, may be continued or instituted by or against the new council. (2) For that purpose: (a) proceedings instituted by or against the former council are taken to be proceedings instituted by or against the new council and (b) anything done by or in relation to the former council is taken to have been done by or in relation to the new council. (3) In this clause: Proceedings means criminal proceedings, civil proceedings, civil penalty proceedings or other legal proceedings (including the issue of penalty notices for alleged offences and proceedings arising out of the issue of any such penalty notice).' 1. The Respondent in its outline of written submissions contends, which I accept, the following: '6. We note particularly clause 2(b) above that anything done in relation to the former council is taken to have been done in relation to the new council. This wording is very broad and purposely so to include the many kind of directives, orders, rights, limitations, obligations that might relate to an old council. 7. The order under s110 of the GIPA applying to Mr Walker is in relation to civil proceedings before the Tribunal and is in relation to the former Pittwater Council. Accordingly it is now in relation to the new council, Northern Beaches Council.' 1. I find that the order made by the Tribunal on 10 March 2015 as it related to Pittwater Council also applies to the new Northern Beaches Council given the operation of clause 2(b) above. 2. Applications for approval have been previously considered by the Tribunal concerning Mr Walker (see Walker v Pittwater Council (2015) NSWCATAD 198; Walker v Pittwater Council (2015) NSWCATAD 222 and in Walker v Pittwater Council (2016) NSWCATAD 78). 3. In Walker v Pittwater Council (2016) NSWCATAD 78 (at [9]-[25]) Deputy President Hennessy as she then was, set out an instructive analysis of the legal framework pertaining to an application under s110 which I adopt and repeat below: 9. When determining whether to approve or not to approve the making of an access application, the Tribunal is exercising discretionary power in its general jurisdiction: Civil and Administrative Tribunal Act 2013 (NSW), s 29. While that discretionary power is not expressly conferred in the GIPA Act, it is implied by s 110(1): (1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT if NCAT is satisfied that the person has made at least 3 access applications (to one or more agencies) in the previous 2 years that lack merit. Such an order is a "restraint order". 10. As with all discretionary powers, the power implied under s 110(1) to approve or not approve an access application, must be exercised reasonably and in accordance with the subject matter, scope and purpose of the statute: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 per Dixon J; [1947] HCA 21; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49; [1979] HCA 62; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26]; Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 87 ALJR 618 at [9]. 11. The object of the GIPA Act is to "open government information to the public": GIPA Act, s 3(1). That object is achieved by various means including giving members of the public an enforceable right to access government information: GIPA Act, s 3(1)(b) and (c). The discretions conferred by the Act are to "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information": GIPA Act, s 3(2)(b). 12. But there are limits on a person's right to access government information. For example, information does not have to be provided if there is an overriding public interest against disclosure or the information is not held by the agency: GIPA Act, s 58(1)(b) and (d). Five grounds on which an agency may refuse to deal with an application are set out in s 60: (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 , (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note : See section 70. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order. 13. These proceedings relate to the restrictions on a person's right to access government information when a restraint order has been made. The Tribunal may make a restraint order if a person has made at least three applications in the previous two years which "lack merit": GIPA Act, s 110(1). Under s 110(2) an application lacks merit if: (a) the agency decided the application by refusing to deal with the application in its entirety, or (b) the agency decided the application by deciding that none of the information applied for is held by the agency, or (c) the access applicant's entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable). 14. A restraint order may apply to all access applications made by the person or may be limited by reference to particular kinds of information or particular agencies: s 110(3). 15. If the Tribunal is satisfied that a person "has repeatedly made applications for approval that are lacking in substance", the Tribunal may order that the person is not permitted to apply to NCAT for approval to make an access application: GIPA Act, s 110(6). The restraint order would then permanently prevent a person from making access applications to a particular agency or generally unless the Tribunal imposed a condition as to the period for which the restraint order was to operate: NCAT Act, s 58. 16. On the basis of the subject matter scope and purpose of the GIPA Act one basis for refusing to approve an access application is where the Tribunal is satisfied that an application is "lacking in substance." Repeatedly making such applications is the test in s 110(6) for determining whether to grant a permanent restraint order. It is logical to treat the substance of an application as a relevant factor when considering whether to approve a specific application. 17. It is significant when determining the scope of the discretion in s 110(1) to approve an access application, that s 110(6) does not refer to applications which are frivolous, vexatious or misconceived. The power to dismiss applications or complaints when they are "frivolous, vexatious, misconceived or lacking in substance" exists in several statutes. For example, s 109 of the GIPA Act states that: NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance. 18. Similarly, under s 55(1)(b) of the NCAT Act, the Tribunal may dismiss proceedings "if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance." Another example is the Anti-Discrimination Act 1977 (NSW); s 92(1)(a)(i). 19. The fact that a discretion is to be exercised according to particular considerations does not mean that if a separate discretion in the same statute does not list those considerations, they are irrelevant. In R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 (27 November 1979) the High Court rejected a submission that where a decision maker was obliged by a statutory provision to take into account the public interest, that factor could not be taken into account when exercising another unconfined discretion. It could be argued that the fact that the terms frivolous, vexatious or misconceived are relevant when exercising the discretion under s 109 that does not mean that they are irrelevant when exercising the unconfined discretion under s 110(1). 20. But there is an additional factor in these proceedings that distinguishes them from the statutory framework in R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd [1979] HCA 62; (1979) 144 CLR 45. Under the GIPA Act the legislature has set out a different test for the making of a permanent restraint order from the test for dismissing or refusing to deal further with an application. That difference should be regarded as having some significance because of the maxim that an express reference to one matter indicates that other matters are excluded: Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396; 14 ALR 1. The inclusion of frivolous, vexatious and misconceived in s 109 and the absence of those terms from s 110(6), suggests that they should be excluded from consideration under s 110(6). 21. That conclusion is supported by the fact that the focus when considering whether to make a restraint order is on the frequency and merits of the application, rather than on the motivation or intention of the applicant: GIPA Act, s 110(2). That situation may be contrasted with the statutory regime under s 89K of the Freedom of Information Act 1982 (Cth) which gives the Information Commissioner power to declare a person to be a vexatious applicant. Because the federal statutory scheme is different in this respect from the scheme in NSW, the federal case law and guidelines are of limited relevance. (I note that this view is different from the view I expressed in Walker v Pittwater Council [2015] NSWCATAD 222 (13 October 2015)). 22. The term "lacking in substance" is not defined in the GIPA Act but has been interpreted in many cases including under the various federal and state anti-discrimination statutes: State Electricity Commission (Vic) v Rabel [1998] 1 VR 102 [31] – [45]; Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at [10]; Gauci v Kennedy [2006] FCA 869 at [32]; Margan v University of Technology, Sydney [2003] NSWADTAP 65. See the discussion of these cases in Rees Rice and Allen, Australian Anti-Discrimination Law (2nd ed 2014, The Federation Press) at 776 to 781. The most commonly quoted definition is that an application will be lacking in substance if it is based on "an untenable proposition of law or fact": State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J. 23. Sir Ronald Wilson said in Assal v Department of Health Housing and Community Services, (1992) EOC 92-409, 78,897 at 78,900 that: ... it is unwise postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case. 24. In the context of the GIPA Act, if the Tribunal does not have jurisdiction or the application lacks merit because of a restriction or qualification on the applicant's rights under the GIPA Act, then the application will be lacking in substance. For example, an application will be lacking in substance if it meets any of the tests in s 110(2), if there is an overriding public interest against disclosure or if the information is not held by the agency. But it must always be borne in mind that an applicant has an enforceable right to access government information and the discretions conferred by the Act are to "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information": GIPA Act, s 3(2)(b). 25. The number and frequency of access applications that a person has made may be relevant when determining whether to approve an application but those factors are less significant than the substance or merit of the application. That is because the Tribunal has a separate discretion under s 110(6) to order that a person who is the subject of a restraint order not be permitted to apply to NCAT for approval to make an access application. The test to be applied in that case is "if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance". (Emphasis added.) 1. The respondent does not take any issue about whether the applicant has complied with s110(4) in terms of the procedural requirements. Indeed, the respondent makes an appearance in these proceedings and consents to the access application. Factual Background 1. The application in which Mr Walker seeks approval of this Tribunal to make against the Respondent relates to his attempt to find a subdivision stormwater plan. Mr Walker contends that there does not appear to be any inspection openings in a 60 year old subdivision plan for maintenance of stormwater drainage. He asserts the Respondent has approved renovations and extensions to two properties in Mona Vale in the past 20 years and that those approvals should show stormwater connections and plans. Given the approvals and the overland flow have the potential to and have caused flooding to his property, Mr Walker seeks his access application in respect of these matters be granted. 2. In the submissions of the Respondent, I note it is recorded that Mr Walker has complained of stormwater overland flow affecting his property presumably from upstream properties in Buena Vista Avenue, Mona Vale. The Respondent does not oppose Mr Walker's application, subject to a formal application being made in accordance with paragraph 10 of the written submissions. 3. Paragraph 10 is drafted as follows: 'To assist Mr Walker, should he be granted permission to lodge a formal application to council, the scope of the documents he should ask for include: All documents and plans relating to stormwater management and disposal arising from the original subdivision and any subsequent approvals for numbers 11 and 12 Buena Vista Avenue, Mona Vale.' My Consideration 1. The present application is for Mr Walker to seek access to information in the terms as set out in paragraphs [13] – [15] above. The application is not opposed by the Respondent. 2. This is not an application which is a continuation of the access actions that led to the restraint order being made. Exercising my discretion under s110(1), I am satisfied that this is an application that can proceed. 3. Mr Walker's request for information is in similar terms to the draft request which has been helpfully set out by the Respondent in paragraph [15] above. I am satisfied that the scope of that request is reasonable. 4. While Mr Walker has not provided submissions as to the adequacy of the proposed draft in [15] above, I am satisfied having considered his request which is drafted as: 'Council approvals for stormwater (only) for 11 and 12 Buena Vista Avenue, Mona Vale' that the access request as found in paragraph [15] reasonably captures the documents which he seeks to obtain. 5. I grant liberty for the parties to apply should the order as drafted by the Respondent require further attention. Order 1. (1) The following application by Mr Walker to Northern Beaches Council under the Government Information (Public Access) Act 2009 is approved: All documents and plans relating to stormwater management and disposal arising from the original subdivision and any subsequent approvals for numbers 11 and 12 Buena Vista Avenue, Mona Vale. 1. (2) Parties have liberty to apply with 5 days' notice. ********** 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: 22 September 2021