Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FGK v Legal Aid NSW [2022] NSWCATAP 92 Hearing dates: 11 March 2022 Date of orders: 30 March 2022 Decision date: 30 March 2022 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member D Robertson, Senior Member Decision: (1) Leave to Appeal is refused. (2) The appeal is dismissed. (3) Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to the material that was filed in these proceedings or proceedings 2020/00248732 on a confidential basis. That material is not to be published or released to the appellant, without further order of the Tribunal. (4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the names of the appellant, the appellant's children and the Independent Children's Lawyer are not to be disclosed. Catchwords: APPEAL – whether errors of law in application of Government Information (Public Access) Act 2009 (NSW) – whether redaction of withheld material was practicable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Family Law Act 1975 (Cth) Government Information (Public Access) Act 2009 (NSW) Legal Aid Commission Act 1979 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Collins v Urban [2014] NSWCATAP 17 Mifsud v Campbell (1991) 21 NSWLR 725 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Rice Marketing Board v Forbidden Foods Pty Ltd [2020] NSWCATAP 182 Texts Cited: None cited Category: Principal judgment Parties: FGK (Appellant) Legal Aid (New South Wales) (Respondent) Representation: Solicitors: Appellant (self-represented) Crown Solicitor(Respondent) File Number(s): 2021/00329537 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings or in proceedings 2020/00248732 on a confidential basis. That material is not to be published or released to the appellant, without further order of the Tribunal. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the names of the appellant, the appellant's children and the Independent Children's Lawyer are not to be disclosed. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: FGK v Legal Aid NSW [2021] NSWCATAD 308 Date of Decision: 22 October 2021 Before: S Montgomery, Senior Member File Number(s): 2020/00248732 REASONS FOR DECISION Introduction 1. The appellant, who is to be known in these Reasons as FGK, was involved in family law proceedings. In those proceedings, a particular Independent Children's Lawyer ("ICL") was appointed in respect of the children of the marriage. She was discharged from that role on the appellant's application. She is the subject of complaints made by the appellant to the respondent and the Office of the Legal Services Commissioner ("the OLSC"). 2. In an access application under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"), the appellant requested information held by the respondent in respect of the ICL. The application was denied and by a decision of the Tribunal dated 22 October 2021 ("the Decision"), the Tribunal affirmed the decision to deny the application. 3. This is an appeal from that Decision. For the reasons given below, we have decided to dismiss the appeal. Background 1. A summary of the factual background to these proceedings is set out in the Decision at [2]-[11]. 2. The appellant, pursuant to his access application, sought: 1. all Legal Aid NSW complaints in relation to the ICL, including actions, correspondence, emails, minutes, internal memos, reports, decisions and findings with Legal Aid NSW's Grants Division, Professional Practices Branch and Monitoring Committee; and 2. all details of the Legal Aid NSW complaint in relation to the ICL involving the appellant and other parties in relation to the family law matter before the Federal Circuit Court in Sydney. 1. The respondent had refused access to certain responsive information on the ground that there is an overriding public interest against disclosure of that information. The appellant sought administrative review of that decision which was heard by the Tribunal on 14 December 2020. At the conclusion of that hearing, the Tribunal reserved its decision and adjourned the matter. 2. By correspondence dated 26 April 2021, the appellant sought to reopen the matter and have new evidence admitted in respect of findings of a coronial inquest which involved the ICL. The appellant's application was heard by the Tribunal, which then reserved its decision. In the Decision, the Tribunal declined to admit the new evidence (at [12]) and affirmed the decision under review. 3. After the Decision was issued to the parties, the appellant sought a non-publication order with respect to his name. This application was not opposed by the respondent. 4. On 20 December 2021, the Decision was amended and the following orders made: "Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis. That material is not to be published or released to the applicant, without further order of the Tribunal. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the names of the applicant, the applicant's children and the Independent Children's Lawyer are not to be disclosed." Confidentiality Orders 1. The issue of whether a confidentiality order should be made in the appeal proceedings was listed for determination on the Tribunal's own motion on 14 January 2022. 2. The Tribunal decided to issue orders to the same effect as the previous orders of the Tribunal that the names of the appellant, the appellant's children and the Independent Children's Lawyer are not to be disclosed without further order of the Tribunal. 3. On 1 February 2022 the following order was made by the Appeal Panel: "Until further order, the names of the Appellant, the Appellant's children and the Independent Children's Lawyer who appeared in the proceedings at first instance are not to be disclosed." 1. The appellant sought the continuation of the confidentiality orders in respect of himself and his children, and this was not opposed by the respondent. Accordingly, we will make orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) that the names of the appellant and the appellant's children are not to be disclosed. 2. On the other hand, the appellant opposed any confidentiality order in respect of the name of the ICL. The respondent made submissions that it would not be appropriate for the ICL's name to be disclosed, particularly without the ICL being given notice of the proceedings. 3. The appellant's submission in this regard was essentially that the name of the ICL was already in the public domain and the subject of some publicity by the media. The appellant opposed the ICL participating in the appeal proceedings or being provided with any information relating to the appeal. 4. We note the ICL appeared at the Tribunal proceedings pursuant to her right under s 104(3) of the GIPA Act as a person who could be aggrieved by the decision of the Tribunal. 5. As noted by the respondent, the Appeal Panel has previously held in Rice Marketing Board v Forbidden Foods Pty Ltd [2020] NSWCATAP 182 that the right conferred by s 104(3) of the GIPA Act does not extend to appeal proceedings: see at [83] and [97]. Notwithstanding this, the respondent submitted that the ICL still has an interest in these proceedings, given the character of the information in issue and her participation in the proceedings below. 6. We agree that in view of the interests of the ICL, she would be a party potentially aggrieved by any order of the Appeal Panel which disturbed the previous confidentiality order of the Tribunal with respect to her name. As previously stated, the appellant has not provided the ICL with any notice of the appeal or any of the documents in respect of the appeal or notice of the application dealing with any confidentiality order in respect of the ICL's name. 7. We note s 121 of the Family Law Act 1975 (Cth) ("FLA"), which makes it an offence to publish in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminate to the public or to a section of the public by any means, any account of any proceedings, or any part of any proceedings, under the FLA that identifies a party to the proceedings or a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned with the matter to which the proceedings relate. 8. In our view, given the history of the matter and s 121 of the FLA, we do not think the current confidentiality regime with respect to the ICL should be disturbed without the ICL being on notice that such orders may be made that could affect her interests. 9. Accordingly, we have decided to continue the previous orders of the Appeal Panel and replicate the orders of the Tribunal below. This will continue the confidentiality orders in place with respect to the ICL's name. Leave to Appeal 1. Other than in respect of a question of law, leave to appeal is required to raise other grounds of appeal: see s 80(2) of the NCAT Act. The Appeal Panel in Collins v Urban [2014] NSWCATAP 17 (Collins) considered the principles which generally guide the determination as to whether leave to appeal should be granted. 2. As a general principle, the Appeal Panel in Collins determined that "the applicant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at": at [84]. Further, with respect to factual matters, leave should only be granted where "the factual error was unreasonably arrived at and clearly mistaken" or where the Tribunal has "gone about the fact-finding process in such an unorthodox manner … that it was likely to produce an unfair result": at [84]. 3. Where the appellant has raised grounds of appeal which do not relate to questions of law and leave is required, we have applied the above principles. Notice of Appeal 1. The Notice of Appeal contains 31 grounds. We note the appellant was self-represented. 2. It is apparent that the relief or matters which the appellant seeks to have the Appeal Panel determine or consider go well beyond the scope of issues properly within the jurisdiction of the Tribunal in administrative review proceedings under the GIPA Act. For example, the appellant has raised the need for the ICL to be "accountable for her terrible actions" and for the respondent to be "held accountable" for appointing the ICL to act in the appellant's family law proceedings. It is not the Tribunal's role to address such issues nor to "address systemic failure … in relation to the ICL Scheme in New South Wales": appellant's submissions ("AS") at [15]. 3. We note the task of the Tribunal is to determine the correct and preferable decision with respect to the release of information pursuant to the principles under the GIPA Act. On appeal, the Appeal Panel's function is to consider whether the Tribunal erred at law in its conduct of that administrative review, or, if leave is granted, to decide if the Tribunal otherwise erred. 4. In order to deal with the many grounds of appeal, we have grouped certain grounds together to be dealt with in our reasons below. Grounds 1-4 and 6: Certain "errors of law" said to arise under the GIPA Act 1. At grounds 1-4 of the Notice of Appeal, the appellant refers to the Tribunal's summary of principles relating to the public interest test, which was dealt with by the Tribunal at [16], [20] and [21] of the Decision. The appellant alleges that the Tribunal's summary of principles constituted "errors of law". 2. These paragraphs are as follows: 16 The object of the GIPA Act as stated under section 3(1) is to open government information to the public. The GIPA Act is to be interpreted and applied so as to further its object. The meaning of "government information" is broad. Section 4 provides that government information means information contained in a record held by an agency. Access is only restricted when there is an overriding public interest against disclosure. . . . 20 Section 13 of the GIPA Act sets out the "public interest test" for determining whether there is an overriding public interest against disclosure of information in the following terms: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 21 The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. 1. The appellant in these grounds has not identified any relevant "errors of law" in the Tribunal's interpretation or application of these provisions of the GIPA Act. The appellant, as we understand his submission, seeks to allege that merely because the Tribunal declined to give decisive weight to the public interest in favour of disclosure, it misinterpreted or misapplied the provisions of the GIPA Act. 2. In our view, the appellant has failed to demonstrate that the Tribunal did misinterpret or misapply the provisions of the GIPA Act so as to raise any errors or questions of law. Rather, the Tribunal conducted the balancing exercise required by the Act and decided the public interest in favour of disclosure was outweighed by other considerations under the GIPA Act in accordance with the evidence and submissions of the respondent. 3. No error of law has been demonstrated to arise from such an orthodox approach. 4. Ground 6 of the Notice of Appeal reads as follows: "Paragraph 81, "Where complaints are made by clients of the respondent, the complaint is made in the context of a solicitor-client relationship. The Respondent submits that in that situation sections 25 and 26 of the [Legal Aid Commission Act 1979 (NSW)] applied to the information." [ICL] "solicitor-client relationship" does not exist given her role was to represent the "best interests" of children and this raises a question of law." 1. The paragraph of the Decision in question ([81]) is a mere statement of the respondent's submissions, as is clear from its terms and the fact that it appears under the heading "The Respondent's Arguments". Otherwise, the issue of the nature of the ICL's relationship with her clients did not arise in the Tribunal's consideration of the application. 2. In our view, no error of law or question of law arises out of paragraph [81] of the Decision. 3. Accordingly, we dismiss grounds 1-4 and 6 of the Notice of Appeal. Grounds 5 and 7: The Tribunal's consideration of s 18(1) of the Privacy and Personal Information Protection Act 1998 (NSW) ("the PPIP Act") 1. Paragraphs 5 and 7 of the Grounds of Appeal are as follows: "5. In paragraph 31, the Tribunal has not considered the following sub-section of section 18 of the PPIP Act, "(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person". By not releasing the requested information there is a real risk that further ICLs could engage in similar behaviour as [ICL] harming several other parties to family law proceedings, particularly children. … 7. Paragraph 166, "In my view the release of the personal information contained within the withheld documents would contravene section 18(1) of the PIP Act. None of the exceptions in subsections 18(1)(a) to (c) are engaged and therefore section 18(1) applies". On a question of law it is submitted the Tribunal has incorrectly interpreted the exemptions in 18(1)(a) to (c)." 1. First, contrary to the submission made by the appellant, it is plain that the Tribunal has considered s 18(1)(c) of the PPIP Act. The Tribunal expressly considered that provision and found, at [166], that it did not apply. Paragraph [166] is as follows: "In my view the release of the personal information contained within the withheld documents would contravene s 18(1) of the PIPA Act. None of the exceptions in subsections 18(1)(a) to (c) are engaged and therefore s 18(1) applies." 1. Similarly, in respect of ground 7, no further submission was made in support of the contention that the Tribunal did not incorrectly interpret the exemptions in s 18(1)(a)-(c). 2. In the absence of any further submission, we are not satisfied that the Tribunal did fall into any error of law in finding that the exemptions in s 18(1)(a)-(c) did not apply and that therefore s 18(1) did apply. Accordingly, we reject grounds 5 and 7 of the Notice of Appeal. Ground 8: Challenge to Tribunal's reasons at [167] of the Decision 1. Ground 8 of the Notice of Appeal is as follows: "Paragraph 167, "In my view it is likely that anyone who knows the context of the particular family law proceedings that are the subject of the withheld information would be able to identify some of the individuals concerned". It is submitted this interpretation is flawed given the routine publication of family law judgments where "anyone who knows the context of the particular family law proceedings", "would be able to identify some of the individuals concerned". It is submitted that the Tribunal has made multiple errors of law in the interpretation and interrelationship of the GIPA Act and the Family Law Act." 1. Paragraph [167] of the Decision is as follows: "I do not agree with the Applicant's suggestion that the withheld information can be redacted in a way that would de-identify this information to overcome these considerations against disclosure. I agree with the respondent that because of the context in which the complaints have been made it is highly likely that even with the use of pseudonyms individuals would be identifiable. The release of information under GIPA is unconditional and effectively it is released to the whole world. In my view it is likely that anyone who knows the context of the particular family law proceedings that are the subject of the withheld information would be able to identify some of the individuals concerned." 1. The Tribunal in its conclusion at [167] was responding to an argument made by the appellant that concerns as to the disclosure of personal information could be addressed by redaction of information that would serve to de-identify the information. 2. The Tribunal concluded at [167] that even redaction in a way that would de-identify the parties by the use of pseudonyms would not prevent the likelihood that anyone who knows the context of the family law proceedings would be able to identify some of the individuals concerned. 3. In our view, the appellant has failed to demonstrate that the Tribunal in coming to this conclusion, being essentially a finding of fact, erred in law in the interpretation of the interrelationship of the GIPA Act and the FLA. 4. Accordingly, we reject ground 8. Ground 9: Challenge to the Tribunal's reference to case law at [188] of the Decision 1. Ground 9 of the Notice of Appeal is as follows: "Paragraph 188, "I consider it impossible to conceive of such circumstances in relation to an [antisocial extremism behaviour] incident". It is submitted this case has no relevance to the GIPA request that is the subject of this appeal given it involves potential "anti-social extremism behaviour" on the part of children versus the systems abuse of children by [ICL], and by association Legal Aid, and this raises another question of law." 1. Paragraph [188] of the Decision is as follows: "The Respondent relies on views expressed by Senior Member Hamilton in Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [127]: "It is difficult to see any circumstances in which the best interests of a child could be served by disclosure of their personal information in response to a GIPA Act application, and I consider it impossible to conceive of such circumstances in relation to an [anti-social extremism behaviour] incident. The risk of harm to the interests of a child are obvious." 1. Accordingly, the case law cited was in the context of the respondent's submissions to the Tribunal. The Tribunal's actual consideration of the submission is to be found at [192]-[198]. The Tribunal made no reference to Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 ("Miskelly"). Accordingly, the Tribunal made no express finding as to the applicability, or otherwise, of the cited passage from Miskelly. 2. Rather, the Tribunal merely concluded that disclosure of the personal information of children would be contrary to community expectations about protecting the privacy of children, particularly where the information arises in the context of family law proceedings. The Tribunal concluded that it would not be in the best interests of those children for the information about them to be disclosed and that this established a public interest consideration against disclosure which should be given significant weight. 3. In our view, the Tribunal's reference to Miskelly in [188] when dealing with the respondent's submissions does not constitute any error of law. Accordingly, we dismiss ground 9 of the Notice of Appeal. Grounds 10 and 11: Challenge to decision regarding the application of s 26 of the Legal Aid Commission Act 1979 (NSW) (LAC Act) and clause 6 of s 14 table of the GIPA Act 1. Ground 10 of the Notice of Appeal is as follows: "Paragraphs 199 to 210, the conclusions of the Tribunal have given rise to an error of law in that all documents obtained in connection with the "administration of legal aid" would be excluded from any future GIPA request and this effectively allows Legal Aid to operate in total secrecy with no public accountability moving forward." 1. Ground 11 of the Notice of Appeal is as follows: "The Tribunal made an error of law in not taking into consideration Schedules 1 and 2 of the GIPA Act and specifically that neither the Legal Aid Commission Act 1979 (NSW) nor Legal Aid NSW are exempt as either "1 Overriding secrecy laws" or falling under "excluded information of particular agencies"." 1. The Tribunal considered the issues which appear to be raised by these grounds of appeal at [199]-[210] of the Decision. In those paragraphs the Tribunal considered, firstly, the application of s 26 of the LAC Act and, nextly, whether by reason of that section the corresponding public interest consideration against disclosure dealt with at clause 6 of the table to s 14 of the GIPA Act was engaged. 2. The Tribunal concluded that s 26 of the LAC Act was relevantly a "provision that prohibits disclosure" for the purpose of clause 6. Accordingly, the Tribunal concluded that this meant there was a public interest consideration against disclosure that is to be attributed weight, and weighed against the public interest favouring disclosure as part of the public interest test for which s 13 of the GIPA Act applies. Clause 6(2) makes provision for the policy underlying the prohibition to be considered as part of this process. 3. In our view, the Tribunal correctly applied these principles in its consideration of the parties' arguments and in its reasons at [199]-[210]. 4. As best we can understand the appellant's submissions, the appellant's ground 9 proceeds on a mistaken understanding as to the application of clause 6 of the table in s 14 and its operation within the broader GIPA regime. The effect of the Tribunal's conclusion is neither that "all documents obtained in connection with the 'administration of legal aid' will be excluded from any future GIPA requests", nor that it will lead to an outcome that "effectively allows Legal Aid to operate in total secrecy with no accountability moving forward". 5. Similarly, by ground 10, the appellant argues that the Tribunal erred by "not taking into consideration Schedules 1 and 2 of the GIPA Act" and the fact that s 26 is not, so it is alleged, an "overriding secrecy law" for the purpose of Schedule 1, nor is Legal Aid an agency listed in Schedule 2. 6. For the reasons we have explained above, the conclusion of the Tribunal does not amount to a conclusion that s 26 becomes an "overriding secrecy law". It also does not mean that Legal Aid is an agency listed in Schedule 2. 7. There was no error of law on the part of the Tribunal in reaching its conclusions. The Tribunal proceeded in a perfectly correct and orthodox manner to conclude that s 26 of the LAC Act was a provision that engaged clause 6 of the Table to s 14 and amounted to a public interest consideration against disclosure to be weighed against other matters under the GIPA regime. 8. Accordingly, we dismiss ground 10 and 11 of the Notice of Appeal. Ground 12: failure to address the different categories of documents in issue 1. As we understand the appellant's submissions in support of this ground, the appellant complains that the Tribunal did not "comprehensively" address the different categories of documents in issue in the proceedings in circumstances where it is contended that some of the categories of documents could have or should have been dealt with differently when it came to considering the various factors for and against public disclosure under the GIPA Act. The thrust of the complaint is that the Tribunal failed to consider the different categories of documents in question when coming to the conclusions that it did. 2. In our view, there is no support for this contention. Most notably, the Tribunal found that clause 1(d) and (f) to the s 14 table of the GIPA Act applied to "each of the withheld documents", and that these considerations were "determinative of this matter" (at [116]). In this way, the Tribunal clearly had regard to the separate categories of requested documents by expressly concluding that all of the withheld documents fell within the considerations against disclosure outlined in clause 1(d) and (f). 3. This in turn grounded the Tribunal's ultimate conclusion that the agency's decision should be affirmed and all of the withheld information not disclosed. 4. Further, whilst the Tribunal determined that the application of clauses 1(b) and 1(f) was determinative of the matter, the Tribunal went on to consider other public interest considerations, "for completeness", and in doing so it is clear the Tribunal paid close regard to each of the documents in question and the extent to which considerations against disclosure arose in relation to each of these documents. 5. The Tribunal identified specific documents at [133] and concluded that in respect of those documents, the public interest consideration at clause 1(e) was engaged and should be given "significant weight": at [139]. 6. The Tribunal also found with respect to information provided in connection with the complaints management process, which was provided in confidence, this engaged clause 1(g) and thereby in respect of those documents the consideration against disclosure should be given "reasonable weight": at [146]-[147]. 7. The Tribunal also made conclusions in respect of the documents that constituted the complaints. The Tribunal concluded that such documents, if disclosed, would reveal the identity of the complainants, and other individuals who were part of the family law proceedings; the facts and circumstances the subject of the complaint; the opinions expressed by the complainants with respect to the ICL; and the ICL's opinions and other personal information: [163]. On this basis, the Tribunal found that in respect of the documents that made up complaints, clause 3(a) and (b) applied as public interest considerations against disclosure and that this consideration should be given "reasonable weight": [168]. 8. The Tribunal considered documents within the withheld material which made allegations relating to the ICL. It concluded the allegations had not been substantiated and were defamatory: [181]. The Tribunal also found that some of the documents which made up the withheld material contained allegations and assertions about other individuals which were defamatory in nature and there was no basis on which to assess their truth or otherwise: [183]. On this basis, the Tribunal concluded that clause 3(e) was engaged as a consideration against disclosure but that this was "less significant" than other factors: [185]. 9. The Tribunal also specifically considered certain information within the withheld documents which named children in relation to family law matters that did not concern the appellant: [193]. The Tribunal concluded that these documents engaged a public interest consideration against disclosure which should be given "significant weight": [198]. 10. Finally, the Tribunal concluded that clause 6 applied as a consideration against disclosure of all of the withheld information and should be given "significant weight": [210]. 11. In our view, it is plain that the Tribunal carefully considered each of the documents that made up the withheld information and each of the categories of documents that made up the withheld information in reaching its conclusions. In our view, the Tribunal did sufficiently consider and address any differences that may have arisen in the different categories of documents sought in the original GIPA Act request. 12. Accordingly, we dismiss this ground of appeal. Ground 13: Challenge to scope of non-publication order 1. In this ground the appellant challenges the failure of the Tribunal to make any non-publication order, particularly in respect of his name and the names of his children, in its original Decision of 22 October 2021. 2. The respondent points out that following the Tribunal's amendment to its Decision on 20 December 2021 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). In particular, the identification of the appellant and his children was not to be disclosed. This meant this ground of appeal was now rendered moot. The appellant disputed this submission on the basis that the original Decision and its original publication caused himself and his children "damage". 3. During the oral hearing, the appellant confirmed that he accepted there was no order that the Appeal Panel could make to address this alleged issue of the failure of the Tribunal to make any non-publication orders from the start and at the time of its original Decision of 22 October 2021. 4. This confirms that this ground of appeal is no longer relevant and has been rendered moot by the amended decision and orders. 5. Accordingly, we reject this ground of appeal. Ground 14: Challenge to "factual errors" at [3] and [7] 1. We note leave to appeal is required to raise this ground of appeal. 2. Ground 14(i) disputes the statement at [3] that the ICL was "discharged from that role on the applicant's application". The appellant contends that this is not correct because the ICL was discharged directly by the Appeals Division of the Family Court of Australia. 3. In our view, the fact that the ICL was discharged by the Family Court of Australia, assuming this to be true, does not make the statement that the ICL was discharged on the appellant's application a false or incorrect statement. 4. Ground 14(ii) takes issue with the statement at [7] that the Information Commissioner "made no recommendations". The appellant contends this was false because whilst no "formal recommendations" were made, the Information Commissioner did make findings on the topic of defamation. 5. In our view, the fact that the Information Commissioner made findings on the topic of defamation, assuming this to be true, does not make false or incorrect the statement that the Information Commissioner made no recommendations. 6. Ground 4(iii). The appellant in this ground takes issue with the Tribunal's statement at [3] that the applicant sought the requested information for use in relation to the complaint to the Legal Services Commissioner and in relation to potential litigation against the ICL and the respondent. The respondent contends that this statement is inaccurate because the applicant's "primary objectives" are to hold the ICL accountable "for her terrible actions"; to hold the respondent accountable given they acted in "bad faith"; and to address "the systemic failure in governing in relation to the ICL scheme in NSW and specifically within the respondent's organisation". 7. It is not apparent to us that the statement made by the Tribunal at [3] is inconsistent with the appellant's statement of his "primary objectives". In any event, even if there could be said to be some tension between what the appellant says was his objectives and the Tribunal's summary in this regard, in our view this cannot alter the outcome of the Decision in any way. 8. Accordingly, we refuse leave to the appellant to raise in this ground of appeal these three alleged factual errors of the Tribunal. Grounds 15-16: The Tribunal's refusal to receive into evidence certain findings of the Coroner 1. By grounds 15 and 16 the appellant alleges the Tribunal erred in failing to have regard to "new evidence", namely, certain aspects of the published findings of the Coroner in an unrelated matter. As we understand it, the appellant's complaint is that the Tribunal ought to have received into evidence certain published findings of the Coroner. 2. The Tribunal dealt with the issue at [11]-[12]: "11. Following the hearing of the application the Tribunal's decision was reserved. The applicant subsequently applied to have the matter reopened to allow further information to be admitted into evidence. The information relates to a coronial inquiry and issues concerning Family Court proceedings in an unrelated matter, a further complaint to the respondent concerning an ICL and medical evidence relating to the applicant's children. The applicant contends that the information highlights systemic issues within the respondent and that the impact on his children is significant. 12. I have decided not to admit the further material. In my view, the material is either not relevant to the issues to be decided in this matter or touches on issues that have already been raised in the material that is already before the Tribunal." 1. The appellant put before us the findings of the Coroner and in his written submissions directed us to the parts that he believed were relevant to the Tribunal's considerations which should have been received. We have read this material and have had regard to it. 2. The thrust of the submission of the appellant was that the unsuitability of the ICL to perform the role of protecting the children's best interests in the appellant's family law proceedings should have been something that Legal Aid was aware of or put on notice of. As the appellant submitted, the Coroner's findings demonstrated that Legal Aid was "fully aware" of the ICL's "transgressions" when it appointed her as the ICL in the appellant's family law matter in May 2019. 3. The appellant submitted that there was significant public interest justification in the release of government information in circumstances where Legal Aid were the subject of such potentially damning allegations and that Legal Aid had failed to progress the other complaints against the ICL as allegedly revealed during the Tribunal hearing in December 2020. 4. The Appeal Panel notes that the Tribunal's determination not to admit the new material is an interlocutory decision regarding an evidentiary matter. As such, the appellant requires leave to bring this aspect of his appeal, pursuant to s 80(2)(a) of the NCAT Act. 5. The Tribunal noted at [68] that the appellant had provided various news articles in relation to new evidence given at an inquest in the NSW Coroner's Court in relation to a family case that is unrelated to the appellant. The Tribunal also at [69] noted that the appellant's case was that it was overwhelmingly in the public interest to release the withheld information to hold the ICL and the respondent accountable for their actions. Further, that the appellant needed the information to determine his legal case against the ICL and potentially the respondent. 6. We also note that the Tribunal at [212] recognised that the starting point in the balancing process is the general presumption in favour of disclosure of government information. The Tribunal gave reasonable weight to the public interest in transparency of the respondent's processes: [212]. The Tribunal accepted that transparency would promote public confidence in the manner in which the respondent handles ICL complaints and its oversight of ICLs: [212]. 7. The Tribunal also accepted that the appellant's personal factors were relevant in that he had a genuine interest in the manner in which the respondent handles ICL complaints, and a particular interest in the way it has handled his own complaint against the ICL: [213]. The Tribunal concluded that these factors were to be given significant weight in regard to information directly related to his complaint: [213]. 8. It can be accepted that the ICL's role in the family law proceedings, the subject of the coronial inquest, has heightened the appellant's concerns regarding the ICL's and the respondent's conduct. This can be relevant to the question of personal factors and is relevant to an assessment of the appellant's motive for seeking the withheld information for the purpose of s 55 of the GIPA Act. 9. Further, in a general sense, it can be accepted that the ICL being the subject of criticism in her role in other Family Court proceedings may have some, albeit marginal, relevance to the weighing up of the public interest in revealing the documents so as to support the proposition that transparency in disclosure of the documents would promote public confidence in and public discussion of the role of ICLs and the respondent in this particular area. 10. To a significant extent, this consideration was already before the Tribunal by the press articles concerning the coronial inquiry which the Tribunal received and the appellant's submissions that there were serious issues to be considered in respect of the role of the ICL and the respondent when it came to appointing the ICL and the process by which it does appoint ICLs. We note that it was not part of the Tribunal's role to come to any views or recommendations itself as to the conduct of the ICL and the respondent. 11. In the result, we do not think the Tribunal erred in declining to admit the passages in question from the Coroner's findings. Further, the appellant has failed to demonstrate how receipt of this material would have altered the outcome. 12. Accordingly, we dismiss this ground of appeal. Grounds 17 and 18: Failure to take into account considerations favouring disclosure and broader concerns re the ICL Scheme 1. By ground 17 the appellant contends that the Tribunal failed to take into account the significant considerations in relation to the systemic failures in the NSW ICL Scheme, and specifically Legal Aid's role in administering that Scheme. The appellant submitted that his GIPA request is not about merely "informed debate", but also concerns potential negligence in Legal Aid. The appellant referenced paragraph [21] of the Decision and contended that the Tribunal only took into account the respondent's submissions in relation to the public interest considerations under the GIPA Act. 2. By ground 18 the appellant similarly contended that the Tribunal's consideration of "personal factors" did not reference the appellant's broader concerns in relation to the NSW ICL Scheme. 3. In our view, the Tribunal did play close regard to the appellant's submissions regarding the public interest in favour of disclosure, and specifically the submission that there were "systemic issues" which were relevant to the appellant's application for disclosure of the withheld material: see for example at [67]-[70], [91]-[102] (especially at [91]-[93]), [127]-[132] (especially [127]), [173]-[142] and [190]. 4. In addition, the Tribunal did accept the relevance of the appellant's personal factors, and "his genuine interest in the way in which the respondent handles ICL complaints; as well as his "particular interest in the way it has handled his own complaint against the ICL": [213]. The Tribunal in this regard gave significant weight to these matters and the appellant's complaint about the operation of the ICL scheme. 5. In our view, it cannot be said that the Tribunal erred by failing to take into account the alleged significant considerations in relation to the systemic failures in the NSW ICL Scheme and Legal Aid's role in administering that Scheme or the "personal factors" relevant to the appellant. 6. Accordingly, we dismiss grounds 17 and 18. Ground 19: Failure of the Tribunal to consider whether matters should not have been allocated to ICL for the duration of the investigation 1. In respect of this ground the appellant refers to [57] of the Decision. In that paragraph the Tribunal refers to Ms Burgess' evidence on behalf of the respondent that the respondent ceases to allocate matters to any ICLs who come under investigation for the duration of that investigation. 2. The appellant contends that the Tribunal did not consider whether this was appropriate based on the actions of the ICL in the family law proceedings the subject of the coronial inquest, the prior complaints against the ICL and the appellant's own family law proceedings. 3. In our view, it would not have been necessary, nor appropriate, for the Tribunal to make findings or comments about Legal Aid's practice in this regard. The merits or otherwise of actions taken by the respondent with respect to the ICL were not relevant to the Tribunal's review of the agency's decision with respect to whether or not to release the withheld information. 4. Accordingly, in our view, there was no error of law on the part of the Tribunal in not coming to conclusions or expressing views on these matters. 5. Accordingly, we dismiss ground 19 of the Notice of Appeal. Ground 20: Alleged offences under the NCAT Act 1. Pursuant to this ground, the appellant submitted that significant evidence was provided to the Tribunal that the ICL had made materially false and/or misleading statements in her submissions contrary to s 71 of the NCAT Act. The appellant submitted that the Tribunal erred in not addressing these "serious issues" in the Decision. 2. The Tribunal in a review application for disclosure of documents under the GIPA Act is not the forum by which the Tribunal can or should decide upon alleged contraventions of s 71 of the NCAT Act. Proceedings for offences under the NCAT Act can only be commenced by an "authorised official" and are dealt with summarily by the Local Court: see NCAT Act ss.75 and 76. 3. In addition, on our review of the evidence that was before the Tribunal, there was no basis for any finding that the ICL had made materially false or misleading statements. 4. Accordingly, in our view, there was no error of law on the part of the Tribunal in not dealing with and making findings as to whether or not the ICL acted contrary to s 71 of the NCAT Act. 5. Accordingly, we dismiss ground 20 of the Notice of Appeal. Grounds 21-22: Tribunal's consideration of clause 1(e) and (f) of the Table to s 14 of the GIPA Act 1. By grounds 21 and 22 of the appellant's Notice of Appeal, it appears the appellant challenges the Tribunal's consideration of clause 1(e) and (f) of the Table to s 14 of the GIPA Act, and in particular paragraphs [108]-[109] of the Decision. 2. It is a public interest consideration against disclosure if disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's function: clause 1(d). Relatedly, it is also a public interest consideration against disclosure where disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions: see clause 1(f). 3. The Tribunal dealt with these issues at [103]-[117]. By ground 21, the appellant took issue with the statement of the Tribunal at [108] that "the Tribunal has recognised in a number of cases that the question as to prejudice is to be determined at a broader operational level rather than with respect to a specific complaint". The submission in support was that the appellant's application is not related to a specific complaint, but to a series of complaints against the ICL and potential failings in the broader management of the ICL Scheme. 4. In our view, this submission does not demonstrate any error of law or principle in the statement made by the Tribunal at [108]. The statement quoted from paragraph [108] has not been demonstrated to be erroneous in law or principle. Further, it is plain that the Tribunal appreciated that the application related to "a series of complaints" against the ICL Scheme. At [108] the Tribunal referred to the appellant's focus on specific "complaints" against the ICL. The use of the plural makes it plain the Tribunal did not think the application related to one specific complaint. 5. Further, it is clear that the Tribunal also appreciated that the application related to, on the appellant's submission, "potential failings in the broader management of the ICL Scheme". 6. Accordingly, we dismiss this ground of appeal. Ground 22 1. Ground 22 takes issue with the statement of the Tribunal at [109] as follows: "This is consistent with the view expressed by the ICL that the release of the information sought by the Applicant would have the potential to cause her irreparable professional harm." 1. The submission of the appellant was that this statement was not correct as the ICL "has already suffered "irreparable professional harm" as a result of her actions in the family law proceedings the subject of the coronial inquest discussed above". 2. In our view, the appellant has not demonstrated any error in respect of this ground of appeal. Assuming it to be the case that the ICL had suffered irreparable professional harm arising out of the Coroner's findings in respect of the other family law proceedings, this does not gainsay the proposition that release of the withheld information sought by the appellant would have the potential to cause her further irreparable professional harm. 3. Further, in our view this involves no question of law but is in essence a dispute about the fact-finding process of the Tribunal. Accordingly, leave to appeal is required. 4. In our view, the conclusion that the release of information would have the potential to cause the ICL irreparable professional harm was open for the Tribunal to make on the material before it. Accordingly, we decline to grant leave to appeal in respect of this ground. 5. In the result, we dismiss ground 22. Grounds 23-25 and 31: Should the Tribunal have released some of the withheld information in redacted form? 1. The Tribunal found complaints made to the respondent and the responses received were provided in confidence and disclosure could have a detrimental effect on the ability of the Respondent to obtain similar information in the future: at [111]. 2. By ground 23, the appellant disputes the finding of the Tribunal at [112] that it would not be practicable to redact parts of the withheld information in question by simply removing the names and identifying details of the individuals concerned. 3. In our view, the finding that it would not be practicable to redact or otherwise de-identify the material is a finding of fact. No question of law arises. Accordingly, leave to appeal is required. 4. The Tribunal had detailed evidence from Ms Burgess for the respondent which explained the confidential complaint handling process. The Tribunal also had the withheld information. We have also considered the withheld material that has been made available to the Appeal Panel on a confidential basis. 5. In our view, the conclusions reached as to the impracticality of redactions was reasonably open to the Tribunal on the evidence before it. It could not be said that the Tribunal's finding was clearly mistaken. Accordingly, we decline to grant leave to appeal in respect of this ground. 6. In ground 24, we understand the appellant disputes the Tribunal's finding at [167] which is as follows: I do not agree with the Applicant's suggestion that the withheld information can be redacted in a way that would de-identify this information to overcome these considerations against disclosure. I agree with the Respondent that because of the context in which the complaints have been made it is highly likely that even with the use of pseudonyms individuals would be identifiable. The release of information under GIPA is unconditional and effectively it is release to the whole world. In my view it is likely that anyone who knows the context of the particular family law proceedings that are the subject of the withheld information would be able to identify some of the individuals concerned. 1. The finding that even with the use of pseudonyms individuals would be identifiable is a finding of fact. No question of law arises. Accordingly, leave to appeal is required. 2. Again, in our view, the conclusion reached that even with the use of pseudonyms individuals would be identifiable was reasonably open to the Tribunal on the evidence before it. It could not be said that the Tribunal's finding was clearly mistaken. Accordingly, we decline to grant leave to appeal in respect of this ground. 3. With respect to ground 25, the appellant referred to the conclusion of the Tribunal at [152] that there is considerable public interest against disclosure of information that has been supplied incidentally and is not directly related to the complaint regarding the ICL. The appellant submitted that this issue could have been dealt with by easily removing this information from documents that could otherwise have been disclosed to the appellant. 4. This ground can only have utility if the appellant can demonstrate that the Tribunal erred in not disclosing the other information. On its own his ground adds nothing to the appellant's appeal. Accordingly, we dismiss ground 25. 5. By ground 31, the appellant challenges the conclusion of the Tribunal at [184] where the Tribunal states: "I do not agree that it would be practicable to redact the withheld information to extract any parts of the material which is defamatory." 6. The appellant submitted that the Tribunal reached that conclusion "with no explanation or justification". 7. In our view, there is no substance to this contention. First, as to 'justification', It was reasonably open to the Tribunal on the basis of the withheld information that was before the Tribunal to conclude it would not be practicable to redact the withheld information to extract any parts of the material which is defamatory. 8. Second, in terms of 'explanation', we assume this a submission that the Tribunal's reasons were inadequate. In Mifsud v Campbell (1991) 21 NSWLR 725 (Mifsud), Samuels JA said at [728]: "… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case." (emphasis added) 1. The following remarks of Meagher JA in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at [443]-[444] (citations omitted) provide guidance in determining the sufficiency of a statement of reasons: "It follows, that reasons need not necessarily be lengthy or elaborate … The scope of the reasons to be given is … related "… to the function to be served by the giving of reasons". Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. [emphasis added]. … Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. … In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal." 1. The Tribunal had the withheld information before it and plainly considered that material in coming to its conclusion. In the circumstances the reasons were sufficient and adequate. 2. Accordingly, we reject this ground of appeal. Ground 26: Clause 3(8) – disclosure of information about a child would not be in the child's best interests 1. The issue of clause 3(8) was dealt with by the Tribunal at [192]-[198]. The submission made is that the Tribunal failed to consider the regular redaction of children's names in family law proceedings and the opportunity to redact those details in the material covered under the GIPA request. 2. For the reasons given in respect of grounds of appeal 23-24 and 31, it is plain that the Tribunal did consider the question of redaction of individual's, including children's names and that this is used in family law proceedings. Further, the Tribunal did consider the opportunity to redact those details in the material covered under the GIPA request: see at [112], [156] and [167]. 3. It is plain that the Tribunal did consider these matters but considered redaction was impracticable. For the reasons we have given above, this finding was open to the Tribunal and no error has been shown in the conclusions or approach of the Tribunal. 4. Nextly, the appellant under this ground complains that the Tribunal did not take into account the systemic failures in the NSW ICL Scheme and the potential future harm to children as part of the best interest considerations. 5. It is not appropriate for the Tribunal to make any actual findings about alleged "systemic failures in the NSW ICL Scheme". However, the Tribunal was aware that the allegation being made by the appellant was that there was systemic failures and that potential future harm could come to children as a result. 6. The Tribunal took into account this submission as a matter in favour of disclosure. It stated at [212]: I have given reasonable weight to the public interest in transparency of the Respondent's processes. I accept that transparency will promote public confidence in the manner in which the Respondent handles ICL complaints and its oversight of ICLs. 1. No error of law arises as a result. Accordingly, we dismiss ground 26. Grounds 27-30: Tribunal's consideration of clause 3(e) of the Table to s 14 of the GIPA Act 1. The appellant disputed various statements and conclusions reached by the Tribunal when considering clause 3(e). Clause 3(e) deals with the question of whether or not the withheld information revealed false or unsubstantiated allegations about a person that are defamatory. 2. In ground 27 the appellant refers to the statement of the Tribunal at [185] as follows: "I consider that this [the question of whether or not the withheld information revealed false or unsubstantiated allegations about a person that are defamatory] is less significant than the consideration of the balance of the public interest and other factors upon which the Respondent relies." 3. The appellant submitted that the topic of defamation is important, given both the Information Privacy Commissioner's view and a number of the Tribunal's conclusions. 4. It is clear that the Tribunal did not take the view that the topic of defamation was not important, but simply that in the process of weighing up the various considerations, this consideration was less significant than others that were to be considered under the GIPA Act. Further, the fact that the Tribunal considered this factor as having "less significance" results in the Tribunal favouring in this regard the approach of the appellant in seeking access to the withheld information. 5. Accordingly, we cannot see any basis for upholding this ground of appeal. 6. In respect of ground 28, the appellant focuses upon paragraph [179] of the Decision which is as follows: Pursuant to s 73(1) of the GIPA Act disclosure of the information cannot be made subject to conditions and therefore the disclosure would potentially reveal the allegations more widely than to the Applicant alone. 1. The submission of the appellant was that "there were no conditions requested as part of the proposed orders, but only the redaction of personal and identifying information". 2. The proposition that the appellant did not make any submissions as to release of documents on condition, for example, to an audience less wide than the whole world, does not demonstrate in any way that the statement made by the Tribunal at [179] is in any way erroneous. Accordingly, we reject this ground of appeal. 3. In ground 29 the appellant takes issue with the statement of the Tribunal at [181] which is as follows: In my view, some of the allegations about the ICL that were made by the Applicant have not been substantiated and they are defamatory in the sense that their disclosure would tend to be injurious to her professional reputation. 1. The submission of the appellant was that the allegations in relation to the ICL's breach of the ICL practice standards "were substantiated" by reference to the Coroner's report which was subsequently published but brought to the attention of the Tribunal when the report was published. Otherwise, the appellant has failed to provide any particulars of how he says the allegations in the withheld information about the ICL were "substantiated". 2. The issue is not in respect of the allegations about the ICL the subject of the coroner's findings but the allegations that are revealed by the withheld information. In our view, this is a dispute about a finding of fact and leave to appeal is required. 3. In this regard, the Tribunal had the withheld information before it. Having considered this material, in our view, it was open to the Tribunal to find that those allegations "have not been substantiated". Accordingly, we decline to grant leave to appeal and dismiss this ground of appeal. 4. Ground 30 takes issue with the Tribunal's statement at [182] of the Decision which is as follows: "The mere fact that the Respondent may have taken some action against the ICL does not mean that all or even some of the allegations have been substantiated." 1. The appellant submitted that this conclusion is flawed. He contended that the respondent would not have removed the ICL from the ICL Scheme unless "some of the allegations" were "substantiated". 2. In our view, there is no substance to the appellant's submission. It remains the case that merely because action has been taken against an ICL that some of the allegations against the ICL contained in the withheld information have been substantiated. No other evidence was pointed to suggest that any of the allegations in question had been substantiated by the evidence before the Tribunal. We also refer to our reasons in respect of the previous ground. 3. Accordingly, to the extent required we decline to grant leave to appeal in respect of this ground and otherwise dismiss this ground of appeal. 4. Accordingly, we dismiss the Notice of Appeal. ORDERS 1. The Tribunal makes the following orders: 1. Leave to Appeal is refused. 2. The Appeal is dismissed. 3. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to the material that was filed in these proceedings or proceedings 2020/00248732 on a confidential basis. That material is not to be published or released to the appellant, without further order of the Tribunal. 4. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the names of the appellant, the appellant's children and the Independent Children's Lawyer are not to be disclosed. ********** 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: 30 March 2022