Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Choi v NSW Ombudsman [2022] NSWCATAD 292 Hearing dates: 18 January 2022, 31January 2022 and 3 June 2022 Date of orders: 29 August 2022 Decision date: 29 August 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: (1) The application to appoint a McKenzie Friend for the applicant is refused. (2) The respondent's decision dated 3 August 2018 is valid and is an administratively reviewable decision. (3) The respondent is to provide the applicant with copies of the attachments to document no 49 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision. (4) The respondent is to provide the applicant with a copy of document no 81 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision. (5) The remainder of the documents listed in the respondent's Further Amended Confidential Schedule of Documents dated 16 February 2022, including document no 49, are "excluded documents" under cl 2 of sch 2 of the GIPA Act. (6) The respondent's decision dated 3 August 2018 is otherwise affirmed. Catchwords: ADMINISTRATIVE LAW – administrative review – Government information – Procedural fairness – Application to appoint a McKenzie Friend – Validity of an instrument of delegation – Jurisdiction – Whether the respondent has power to review the respondent's decision – Excluded documents under cl 2 sch 2 of the GIPA Act Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Court Security Act 2005 (NSW) Government Information (Information Commissioner) Act 2009 (NSW) Government Information (Public Access) Act 2009 (NSW) Interpretation Act 1987 (NSW) Legal Profession Uniform Law (NSW) (NSW) Ombudsman Act 1974 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: CEU v Ombudsman [2017] NSWCATAD 267 Capilano Honey Ltd v Dowling [2018] NSWSC 876 CEU v University of Technology Sydney [2017] NSWCATAD 323 Department of Education v Zonnevylle [2020] NSWCATAD 96 Goldfish Potts Point Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 13 McEwan v Port Stephens Council [2021] NSWCATAD 110 McEwan v Port Stephens Council [2022] NSWCATAD 148 McEwan v Port Stephens Council [2018] NSWCATAP 211 McEwan v Port Stephens Council [2017] NSWCATAD 269 McGuirk v Vice-Chancellor, University of New South Wales [2009] NSWADTAP 43 McKenzie v McKenzie [1970] 3 WLR 472; [1970] WLR 472; 3 WLR 472; [1970] 3 All ER 1034; [1971] LRP 33; (1971) 1971 P 33 Pincevic v Nicholas Panos t/as N Panos and Associates [2013] NSWDC 188 REGINA v Michael Kanaan [2003] NSWCCA 190 Webb v Port Stephens Council [2019] NSWCATAD 47 Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38 Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274 Texts Cited: None cited Category: Principal judgment Parties: Jae Hee Choi (Applicant) NSW Ombudsman (Respondent) Representation: Solicitors: Applicant (Self Represented) Ms M Smith & Mr Wong (Respondent) File Number(s): 2018/00226998 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act (NSW) 2013, the publication or disclosure of the parts of these Reasons marked "[NOT FOR PUBLICATION]", other than to the respondent {NSW Ombudsman]. REASONS FOR DECISION Background 1. These proceedings concern a request that Jae Hee Cho (the applicant) made to the NSW Ombudsman (the respondent) on 14 June 2018 for the release of documents under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act) relating to herself, as follows: a. All the correspondences, documents, emails, letters, notes and so on regarding (the applicant) which are kept at Ombudsman NSW since 21 September 2015. b. All the All the correspondences, documents, emails, letters, notes and so on regarding (the applicant) among Ombudsman NSW, Ombudsman, NSW Premiere (sic) the Hon Gladys Berejiklian and the Attorney General, Hon Mark Speakman NSW. c. All the correspondences, documents, emails, letters, notes and so on regarding (the applicant) between University of Technology Sydney and any staff at Ombudsman NSW. c. All the correspondences, documents, emails, letters, notes and so on regarding (the applicant) especially among University of Technology Sydney, Michael Polkinghorne at Ombudsman NSW, John McMillan, Megan Smith at Ombudsman NSW, Michael Conaty at Ombudsman NSW, Maxwell Britton at Ombudsman NSW, Sanya Silver at Ombudsman NSW, Veronica Brogden, Sarah Unwin, Abby B at Ombudsman Commonwealth, Emily Executive Assistant to Helen Fleming, Senior Assistant Ombudsman and Daniel Hill at Ombudsman NSW and Mr Barns at Ombudsman NSW. 1. On 18 June 2018, the respondent decided that the applicant's GIPA request was invalid because the information requested was complaints handling and investigative information and was therefore "excluded information" under cl 2 of sch 2 of the GIPA Act. 2. On 18 June 2018, the applicant applied to the Information & Privacy Commissioner (IPC) for an external review of this decision, on the following grounds: 1. University of Technology Sydney (UTS) terminated me from Bachelor of Nursing because UTS said I had failed in my July 2016 clinical placement. However, Mr Conaty at Ombudsman NSW said UTS planned to terminate me from Bachelor of Nursing even on 22 September 2015 due to my disability, which seems to be recorded in the note kept in Ombudsman NSW. Hence, the information I am trying to access would be used as evidence in the NCAT proceedings against UTS (NCAT file number 2017/211860, CEU v University of Technology Sydney [2017] NSWCATAD 323) which is currently being proceeded (redacted section follows). 2. Senior Member Ludlow at NCAT states that Ombudsman NSW disclosed my identity to UTS by breaching section 18 of the Privacy and Personal Information Protection Act 1998 in the CEU v University of Technology Sydney [2017] NSWCATAD 267. 3. Principal Member Titterton at NCAT states "On 8 October 2015, Mr Conaty wrote to the applicant and informed her that, as UTS was responding in a satisfactory way to the matters she had raised, he would now close the Ombudsman's file" at [20] in CEU v University of Technology Sydney [2017] NSWCATAD 13. 4. Mr Conaty told me in the meeting on 4 October 2016, the "UTS satisfactory response" was UTS' plan to terminate me from Bachelor of Nursing. 5. Ombudsman NSW's managers as well as Ombudsman NSW, refused to give me a proper feedback of my complaint. NSW Premier the Hon. Gladys Berejiklian and the Attorney General the Hon. Mark Speakman SC MP refused to Mr Conaty's legal statement on 14 December 2017 and 24 January 2018 (Annexure A, B and C). 6. My matters are grabbing international attention (Annexure D). 7. Ombudsman NSW is called as a watch dog whose transparency is significant. It must be the public interest to disclose the information. 8. I believe that Information Privacy Commissioner is the agency who could allow me to access to my information. In doing so, you would be able to enhance the justice in Australia and save Australia from being stigmatised as a country of discrimination. 1. On 19 July 2018, the IPC issued a Review Report under the GIPA Act and determined that it had jurisdiction to review the decision under s 89 of the GIPA Act and that the respondent's decision was a reviewable decision for the purposes of s 80(c) of the GIPA Act. 2. The IPC determined that while some of the withheld information related to the respondent's complaints handling function, including information relating to its handling of a complaint against the University of Technology Sydney (UTS), it was not all "excluded information" as some of it related to other functions of the respondent that are not listed in sch 2 of the GIPA Act. Accordingly, under s 93 of the GIPA Act, it recommended that the respondent should make a new decision by way of internal review and advise the applicant and itself within 10 working days of the actions to be taken in response to the recommendation. 3. On 24 July 2018, the applicant applied to the Tribunal for administrative review of the IPC's decision dated 19 July 2018, on the following grounds: (1) On 19 July 2018, the IPC determined its decision; "Ombudsman NSW is recommended to release "some information" which is not "the excluded information" (2) I request the Tribunal to order Ombudsman NSW to affirm the IPC's decision so that the Ombudsman would release the "some information" which is not "the excluded information. However, I believe that Ombudsman NSW must disclose "the excluded information" under section 12 of the GIPA Act "identify the relevant public interest considerations in favour of disclosure; revealing or substantiating that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct" as well. Procedural history 1. The matter has a lengthy procedural history, which is summarised below. 2. On 15 October 2018, Deputy President Hennessy LCM conducted a hearing in relation to this matter and other proceedings that the applicant commenced against the respondent under the Anti-Discrimination Act 1977 (NSW) (matter 2018/00299612), to determine whether the Tribunal should appoint a guardian ad litem (GAL). 3. The applicant opposed the appointment of a GAL and she stated that the person appointed as her GAL in the previous proceedings (x 4) should not waste his time representing her because: (1) he must focus on the proceedings against UTS and "he is not a superman;" (2) her claims will not be successful and the Tribunal will make a costs order; (3) her aim in the GIPA proceedings against the NSW Ombudsman is to influence government to amend s 43(1) of the GIPA Act which states that, "An access application cannot be made to an agency for access to excluded information of the agency;" (4) she will probably not even be given permission for her disability discrimination complaint to go ahead but the Tribunal may give her permission for her victimisation complaint to go ahead; and (5) she is "not that sensitive about the Tribunal's costs orders any more" because she has "nothing to lose." 4. Hennessy DP was satisfied that the applicant had a disability which meant that she was incapable of representing herself in all her proceedings and she appointed a GAL. 5. On 4 December 20218, Senior Member Montgomery conducted a directions hearing, during which Mr Bill Hoyles appeared as GAL for the applicant. The Senior Member noted that the GAL had applied for legal aid and that the IPC appeared and has a right to be heard but is not a party to the proceedings. He listed the matter for further directions on 18 December 2018. 6. On 17 December 2018, Mr Hoyles withdrew the applicant's four matters and requested that they be dismissed, as it was his belief that this was in the applicant's best interests. The matters were listed for hearing on 18 December 2018 to determine whether they should be withdrawn and dismissed. 7. However, on 17 December 2018, the applicant asked the Tribunal "to reverse" Hennessy DP's decision and to "postpone the two hearings listed on 18 December 2018". 8. On 18 December 2018, Principal Member Pearson conducted a hearing at which Mr Hoyles appeared for the applicant, Ms Smith appeared for the respondent and the applicant also appeared in person. The applicant said that she wanted to delay the hearing because she had asked ICAC to investigate "corrupt conduct by Mr Hoyles, UTS and the respondent" and she argued that the Tribunal should not make any decision until ICAC had made its decision. However, the Principal Member did not postpone the hearing and she made orders dismissing this matter under s 55(1)(a) of the NCAT Act. 9. The Principal Member published written reasons for her decision, in which she noted that the applicant had not internally appealed Hennessy DP's decision, and she stated, relevantly: Mr Hoyles provided a written report outlining his reasons for the decision to withdraw the applications, including a summary of the views of Ms Choi. In that report, Mr Hoyles explains his consideration of each of the applications to the Tribunal, and his reasons as to why he is satisfied that those applications lack merit. He states that he is concerned that the continuation of the proceedings is adversely impacting on Ms Choi's mental health. He notes that Ms Choi disagrees with his decision, stating: Ms Choi believes that I am a liar and that I and others have been corruptly influenced by the NSW Attorney General and/or the NSW Department of Justice and/or Legal Aid NSW, and/or the NSW Ombudsman and/or the President of NCAT to have these matters dismissed. 1. The Principal Member noted that Mr Hoyles had given written notice of his withdrawal as GAL, and she held that she was satisfied that he had acted in the applicant's best interests. She concurred with Mr Hoyles' view that it was not in the applicant's best interests for the matter to continue and she dismissed it. 2. The applicant appealed to the Appeal Panel on the following grounds: 1. The Tribunal did not appoint Mr Hoyles as GAL pursuant to the order made on 19 October 2018. However, the Member relied on the decision of Mr Hoyles in making the orders recorded in the Decision. 2. Mr Hoyles did not act in a way which was in her best interests. 3. The Tribunal relied upon Mr Hoyles' "baseless legal opinion". 4. The Tribunal failed to take account of her interests by relying upon the "baseless psychological opinion" of Mr Hoyles that continuing the proceedings would impact upon her mental health negatively. 5. There was no evidence that her decision to raise an issue of alleged corruption in the Attorney General's Office and in the University of Technology Sydney (UTS) was the result of the impact of continuing these proceedings on her mental health. 6. The Tribunal rejected her applications made on 6 and 14 December 2018 to "reverse" the decision to appoint a GAL and, as a consequence, she was unable to represent herself. 1. On 9 March 2020, the Appeal Panel dismissed the appeal and the applicant then appealed to the Court of Appeal and challenged the validity of Mr Hoyles' appointment as her GAL. 2. On 23 April 2021, the Court of Appeal (Meagher, White & Brereton JJA) upheld the appeal in part. The Court held that an appointment of "a person" as a GAL, without nominating the person appointed, is not an appointment in accordance with s 45 of the Act. Therefore, Mr Hoyles was not validly appointed as the GAL in the two proceedings in question and because the Appeal Panel's decision in was premised on the view that there was no arguable basis for challenging the validity of Mr Hoyle's appointment, the appeal must be allowed. 3. However, the Court held that the appellant could not demonstrate any error in Hennessy DP's reasoning that a person should be appointed as her GAL and there was ample evidence of her incapacity to represent herself. Accordingly, the Court remitted the matter to the Tribunal for consideration of the appointment of a GAL. 4. Upon remitter, Senior Member Montgomery conducted a directions hearing on 26 May 2021. He ordered the respondent to file and serve a notice of appearance by 16 May 2021. He ordered the applicant to file and serve evidence, submissions and statements in relation to the issue of whether the Tribunal should appoint a GAL by 25 June 2021. He ordered the respondent to file and serve any material in reply by 9 July 2021, and he ordered the applicant to file and serve any material in response by 16 July 2021. He listed the matter for hearing of the GAL issue on 26 July 2021. 5. On 26 July 2021, Montgomery SM made an order under s 64(1)(c) of the NCAT Act, prohibiting the publication of evidence given before it. He refused to appoint a GAL for the applicant and listed the matter for directions on 17 August 2021. 6. On 17 August 2021, Senior Member Ransome vacated the directions hearing because the Tribunal's VMR system was not working properly and the applicant could not be contacted. She ordered the respondent to file and serve a further copy of the documents released to the applicant following the IPC's recommendation by 15 September 2021 and she ordered the applicant to advise the Tribunal by 15 October 2021 whether she was continuing with her application or withdrawing it. She listed the matter for directions hearing on 19 October 2021. 7. On 21 October 2021, Ransome SM issued amended orders, which also required the respondent to file and serve a chronology of events in relation to the access application by 2 November 2021. She listed the matter for further directions on 9 November 2021. 8. On 9 November 2021, Ransome SM ordered the respondent to file and serve all open evidence and submissions, including a schedule of documents released to the applicant in response to her access application and documents withheld, by 7 December 2021. She also ordered the respondent to file and serve all confidential evidence and submissions (marked "Confidential") by that date. She directed the applicant to file and serve evidence and submissions by 11 January 2022 and she listed the matter for hearing on 31 January 2022. 9. The matter came before me for directions on 18 January 2022. The applicant appeared in person and Ms M Smith appeared for the respondent. The IPC did not appear. 10. This directions hearing lasted approximately 2 hours and proceeded much like a preliminary hearing, during which the applicant complained that the respondent had not provided her with any documents until 7 January 2022, because those sent to her on 3 August 2018 were in ".zip" format and her computer could not open them. However, Ms Smith stated that the same documents were re-sent to the applicant with a covering letter dated 6 August 2018, and those documents are identical to those which were re-sent to her on 7 January 2022. 11. Ms Smith agreed to an extension of time for the applicant to file her submissions, but she stated that the respondent opposed the hearing date being vacated. 12. The Tribunal ordered the respondent to serve a schedule of documents in PDF upon the applicant by 19 January 2022. It ordered the applicant is to file and serve any further evidence and submissions by 27 January 2022 and confirmed the hearing date of 31 January 2022. 13. The Tribunal observed, based on the documents before it, that the issue in dispute was whether the information that was withheld by the respondent on 3 August 2018 was "excluded information" under sch 2 of the GIPA Act. Therefore, it decided that on 31 January 2022, it would conduct a confidential hearing to determine this issue, as required by the GIPA Act, and it advised the applicant that she would not be involved in the confidential hearing. 14. However, the applicant immediately complained that these orders were "unfair". The Tribunal noted that the applicant said that she received the documents on 7 January 2022, but she responded, "You are in the wrong". 15. The Tribunal advised the applicant that if she wished to raise any further issues on 31 January 2022, she must notify it and the respondent of those matters and they could then be dealt with at the hearing. If the Tribunal needed to adjourn the hearing on a part-heard basis in order to properly determine all of the issues it would do so. 16. However, the applicant continued to complain that the Tribunal's orders were unfair because she is a single mother, and she has to work, and she also said that she "will go to the Court of Appeal and the High Court of Australia." 17. The directions hearing then ended. Further applications made by the applicant 1. The applicant subsequently sent numerous emails and "applications" to the Tribunal in which she took issue with the orders made on 18 January 2022, and she sought to raise further "matters". 2. In her email dated 19 January 2022, the applicant asserted that there was "an obvious error in law, procedural irregularity, bias and judicial misconduct" in the orders made on 18 January 2022. She alleged that the Tribunal said that it would order the respondent "to give to the Tribunal and the other party a pdf format Notice of Decision including Schedule of document in response to my access application," but it did not order the respondent to file and serve a notice of decision. She asked for the orders to be amended "as soon as possible." 3. On 21 January 2022, the Tribunal amended its orders dated 18 January 2022, in order to allow the applicant to file and serve any material in reply by 28 January 2022, but it otherwise confirmed the orders made on 18 January 2022. 4. The applicant then sent an email to the Tribunal requesting a further extension of time to file and serve any material in reply. An extension was granted to 29 January 2022. 5. On 27 January 2022 at 2:36am, the applicant lodged an "Application to Set Aside or Vary Tribunal Decision" by email, which sought to vary the orders dated 21 January 2022 as follows: 1. The respondent is to file and serve a reviewable decision by way of internal review in response to the applicant's access application with the Government Information (Public Access) Act 2009 (GIPA). 2. The Tribunal revokes order 1, 2 and 3 dated 21 January 2022. 3. The applicant is to give to the Tribunal and other party any material in reply 4 weeks after the respondent's notice of decision. 4. The respondent replies. 5. The applicant replies. 6. The Tribunal accepts an audio telephone recording file of the conversation between Mr Conaty at NSW Ombudsman and me at the YouTube as evidence. 7. The Tribunal accepts the applicant's assertions in complying with order 3. 8. The Tribunal grant leave for the applicant to file the applications under s 116, s 117, s 118 and s 120 under the GIPA Act, an application under s 12(2)(e) of the GIPA Act and s 112 of the GIPA Act. 9. The hearing is adjourned until the Tribunal ensures that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings under s 38(6)(a) of the Civil and Administrative Tribunal Act 2013 No 2 (NCAT Act). 10. The Tribunal refers a question of law to the Supreme Court for the option under s 54 of the NCAT Act. (1) Whether or not the Tribunal has power to order the respondent to make a new decision by way of internal review before the hearing. (2) Whether or not the respondent determined my access application which the GIPA Act requires. (3) Whether or not the review application confers the Tribunal to divide non-excluded information from excluded information. (4) Whether or not I am entitled to submit an audio recording as evidence. (5) Whether I should request for leave to raise new assertions in these circumstances where I realised there is more information possessed by the respondent on 11 January 2022 and the respondent submitted a schedule of documents which is faulty (there is no determination, fully released or partly released). Objection to jurisdiction 1. In her submissions in support of the application lodged on 27 January 2022, the applicant raised an objection to the Tribunal's jurisdiction to determine the current application for administrative review. She asserted that the respondent had not yet determined her access application under the GIPA Act and that the Tribunal has no jurisdiction to review the IPC's decision (which found that some of the withheld information is not "excluded information"). She stated that the Tribunal has power to review the respondent's "invalid" decision dated 18 June 2018 and that the decision dated 3 August 2018 is not an administratively reviewable decision because it was made by a legal representative (Ms Smith). Therefore, "what Senior Member Riordan plans at the hearing cannot be enhanced." 2. In the alternative, the applicant argued that if the respondent's new decision dated 3 August 2018 was made by an administrator under s 84(2) of the GIPA Act, it is reviewable under s 80(c) as a "deemed refusal decision" within the meaning of s 108(1) of the GIPA Act. However, she repeated her demand that the respondent should determine her access application and make a new decision by way of internal review under the GIPA Act as soon as possible, after which the matter could be listed for hearing. 3. The applicant also complained about the respondent's late compliance with Ransome SM's orders dated 9 November 2021 and that the Tribunal had "rejected an audio telephone recording of the conversation between Mr Conaty at NSW Ombudsman and me as evidence". She argued that this was "an error of law because ss 38(2) and (4) of the NCAT Act allows her to file and serve an audio recording file as evidence "especially in circumstances where I have little time due to the respondent's breach of the order 1 dated 9 November 2021 (month late submissions on 7 January 2022)." 4. The applicant also took issue with the Tribunal stating, during the directions hearing on January 2022, that her claiming that the respondent had failed to conduct "a reasonable search" was "a new matter". She said that she "needs to apply for an application to issue a summons to Mr Conaty" and that the Tribunal should adjourn the hearing and she concluded, relevantly: 25. On 11 January 2022, I realised that the respondent has refused to make a new decision by way of internal review since June 2018. Without determining my application under the GIPA Act, the respondent released the 193 pages and a schedule of documents regardless of the GIPA Act. Further the respondent omitted the new decision dated 6 August 2018. 26. The respondent's index shows that there are records about UTS' action to take and my mental disorders, causing the respondent to reject my complaints are not provided. 27. The respondent's conduct is an offence under s 116, s 177, s 118 and s 120 of the GIPA Act. 28. The respondent should release all the information under s 12(2)(e) of the GIPA Act. 29. The Tribunal should report the respondent's misconduct to the relevant Minister under s 112 of the GIPA Act. 30. Therefore, the Tribunal should have made an order to grant for me leave to file and serve these applications. Note Senior Member Riordan said on 18 January 2002, I should seek leave to raise new assertions. 1. The Tribunal advised the applicant that it would consider this application at the commencement of the hearing on 31 January 2022. Hearing on 31 January 2022 1. At the hearing on 31 January 2022, the applicant appeared in person and Mr D Wong appeared for the respondent. A Korean interpreter was also sworn in to assist the applicant, as and when required. 2. The applicant stated that she withdrew her objection to the Tribunal's jurisdiction to determine her application for administrative review and that her application filed on 27 January 2022 was "based on a misunderstanding". She said that she no longer disputed that the Tribunal had power to review Ms Smith's decision dated 3 August 2018. 3. Based on the applicant's statement, the Tribunal identified the sole issue in dispute as being whether the documents that were withheld by the respondent on 3 August 2018 were "excluded documents" under sch 2 of the GIPA Act. 4. However, the applicant disagreed with this and said, "There is no decision." 5. The Tribunal noted that the applicant withdrew her objection to its jurisdiction to review Ms Smith's decision dated 3 August 2018. However, the applicant then referred to "the respondent's invalid decision" and said that the Tribunal should not determine whether there are excluded documents "because there are other priorities." 6. The Tribunal noted that: (1) the respondent initially decided that the access application was invalid because it sought documents that were "excluded" under sch 2 of the GIPA Act; (2) the IPC then reviewed that decision and decided that only some of the withheld documents were "excluded" documents; and (3) on 3 August 2018, Ms Smith made a new decision and released the documents that the respondent conceded were not "excluded documents" to her. 7. The applicant stated that the Tribunal has no power to review the IPC's decision. However, the Tribunal stated that it is not reviewing the IPC's decision, but rather the decision made by Ms Smith on 3 August 2018, which gave effect to the IPC's recommendation. 8. However, the applicant stated that there is no internal review decision by the respondent and that the Tribunal has no power to review Ms Smith's decision because "this is not a reviewable decision." This statement directly contradicted her opening statement. She also said that she "wants a thorough decision by NCAT." 9. Ultimately, the Tribunal identified that the following issues were in dispute: 1. Whether Ms Smith's decision dated 3 August 2018 was a valid decision that was administratively reviewable by the Tribunal? This involved considering whether Ms Smith hold an appropriate delegation from the respondent to make that decision and whether the decision was made as part of the respondent's internal review process? 2. Whether the documents that were withheld by the respondent on 3 August 2018 "excluded documents" under sch 2 of the GIPA Act? 1. However, the applicant then "demanded" that the Tribunal should review the respondent's original decision that her access application was invalid. The Tribunal declined to do so on the basis that the original decision was superseded by Ms Smith's decision dated 3 August 2018, and it was satisfied that this was the appropriate decision for the purposes of the current administrative review. 2. The applicant repeated that the respondent "has never determined" her access application. However, the Tribunal held that the access application was determined initially when the respondent decided that it was "invalid" and that it reviewed that decision in response to the IPC's recommendation on 3 August 2018. This has been the scenario for approximately 3.5 years. 3. The applicant then stated that she "is not seeking the production of excluded documents." The Tribunal asked her to clarify what she meant by that statement, and the applicant replied to the effect, "We need to deal with different issues". She then stated that there are no "excluded documents" because "everything should be produced" to her and she then sought to object to the form of Ms Smith's decision. 4. In reply, Mr Wong stated that Ms Smith held the appropriate delegation to make her decision dated 3 August 2018, but as the applicant had not previously raised that as an issue, the instrument of delegation was not currently before the Tribunal. 5. The Tribunal ordered the respondent to file and serve documentation regarding Ms Smith's delegation to make the decision dated 3 August 2018 by 21 February 2022. 6. The applicant then "demanded" to be able to file and serve submissions in response to this issue and the Tribunal ordered her to file and serve submissions by 14 March 2022, if she disputed the validity of Ms Smith's decision. 7. The applicant said that Ms Smith's decision dated 3 August 2018 is "faulty" because "it is not a new decision by internal review" and it is not an appropriate decision which is required by s 9(3) of the GIPA Act". She said that "the email is not good enough… that is why I am here." 8. The Tribunal then asked Mr Wong when the respondent filed its confidential documents, as ordered by Ransome SM in November 2021, because they did not appear to be in the file. However, he replied that the confidential documents had not yet been filed. 9. As the confidential documents had not been filed, the Tribunal was unable to determine whether the withheld documents were "excluded documents" under sch 2 of the GIPA Act and the matter had to be adjourned part heard. The Tribunal ordered the respondent to file a copy of the 'excluded documents' marked 'confidential' by 14 February 2022 and to file and serve any submissions in response to the applicant's "reply" by 14 March 2022. It listed the matter for further hearing on 28 March 2022. 10. The applicant then sought leave to file "a contempt application" against the respondent. However, the Tribunal stated that she may lodge "a contempt application" if she wished to do so, but as that is a matter for the President to determine, it will not be before me on the next hearing date. Hearing on 28 March 2022 was vacated 1. Unfortunately, the hearing date on 28 March 2022 had to be vacated because I was diagnosed with COVID-19. The matter was then listed for hearing on 3 June 2022. The applicants lodged a further "Reply" 1. On 14 March 2022, the applicant filed and served a further "Reply", in which sought to raise the following matters (Note: paragraph numbering is as per the original) (footnotes omitted): Background 1. The Respondent has not answered what UTS's action to take is and what UTS's satisfactory response is. Mr Wheeler deprived my review rights by reviewing my initial complaint C/2015/8756 without my consent (R/2015/138)1. I have endeavoured to access the information regarding UTS's action to take and UTS's satisfactory response since 8 October 2015. A copy of Mr Wheeler"s decision in R/2015/138 is at pp54-55 of BUNDLE OmboCHOI-1 dated 29 January 2022 ("OmboCHOI-1"). INTRODUCTION 2. In the delegation of the functions to Ms Smith, the "functions" are conducted in relation to Ms Smith's email dated 3 August 2018. Eg. searching the information, making a decision, Ms Smith's establishing that the decision is justified under s97(2) of the Government Information (Public Access) Act 2009 ("GIPA Act") before the Information and Privacy Commissioner ("IPC"). 3. The subjected decisions are the Respondent's invalid decision dated 18 June 2018 and Ms Smith's email dated 3 August 2018. Thus, I refer to a copy of the appointment and delegation by Mr Barbour in 2013 ("document in 2013"). SUMMARY OF REPLY 4. Ms Smith is a legal counsel. The delegation to Ms Smith was invalid. Thus, Ms Smith"s email dated 3 August 2018 is invalid. The reasons are as follows. 5. Firstly, the document in 2013 shows the delegation to the "special officer of the Ombudsman" not the delegation to the legal counsels. In short, Mr Barbour did not delegate all of the legal counsels to perform the functions. The delegation is limited to the "Ombudsman officer" appointed or acting in the position of the legal counsel. The document in 2013 can be summarised as: (1) The Ombudsman revokes the former delegations to the "Ombudsman officer" occupying the position of the legal counsel. (2) The Ombudsman appoints the "Ombudsman officer" appointed or acting in the position of the legal counsel to be a "special officer of the Ombudsman". (3) The Ombudsman delegates functions to the "special officer of the Ombudsman" to the extent permitted by the relevant legislative provisions. 6. Ms Smith was not a "special officer of the Ombudsman". 7. It should be highlighted that Ms Smith even confessed she was not appropriate to deal with GIPA review applications. On 20 April 2017, I emailed my GIPA review application to Ms Smith. On 24 April 2017, Ms Smith replied to me, stating "Dear Ms Choi, This internal application for review has been received and sent to the appropriate Ombudsman officer for review" 8. Secondly, the document in 2013 failed to specify the functions delegated. No details of the functions which are delegated. Probably, the functions were not determined seen from the statement the Ombudsman may give the functions from time to time under the "Conditions and limitations as to the exercise of functions delegated." I submit a copy of the instrument of decision including a detailed list of the functions and the delegates by the IPC. 9. Thirdly, the Administrative Decisions Review Act 1997 ("ADR Act") does not permit the delegation of the administrators" functions to the legal counsels. The ADR Act s8(2) provides "…only administrator…". Also, the Tribunal has administrative review jurisdiction over a decision of an administrator under s9(1) of ADR Act. Additionally, the conduct of an administrator is administratively reviewable: the ADR Act s7(2)(a). 10. Fourthly, the fact the GIPA Act s112, s116, s117, s118, s119 and s120 which are about offences linking the conduct of administrators indicates the Government Information (Public Access) Act 2009 ("GIPA Act") does not permit the delegation of the administrators" functions to the legal counsels. On the contrary, the conduct of the legal counsel is reviewed by the Legal Profession Uniform Law. Thus, delegation to Ms Smith is invalid. 11. It could be assumed that Ms Smith who is not an administrator and is free from the offence under the GIPA Act made a decision to conceal the information5 sought in my access application. 12. The administrators at NSW Ombudsman have dealt with GIPA matters. (1) The Ombudsman has encouraged the public to contact the Right to Information officers in the Office of NSW Ombudsman for GIPA matters.6 (2) On 7 December 2016, Mr Wheeler made a privacy internal review decision in response to my privacy complaint. Also, on 19 April 2017, Ms Sanya Silver made an invalid decision in response to my access application under the GIPA Act8. Additionally, on 15 May 2017, the Ombudsman, Mr McMillan made an internal review decision regarding Ms Silver's notice of decision under the GIPA Act. (3) The administrators at NSW Ombudsman tried to respond to the GIPA enquiries. Ms Sanya Silver consented to the third-party consultation when Ms Deborah, Information Officer at UTS requested in relation to my access application under the GIPA Act. 19. It could be assumed that Ms Smith who is not an administrator and is free from the offence under the GIPA Act made a decision to conceal the administrative review jurisdiction over a decision of an administrator under s9(1) of ADR Act. Additionally, the conduct of an administrator is administratively reviewable: the ADR Act s7(2)(a). 20. Fifthly, even if it is assumed that the delegation to the legal counsels had been made, that delegation is invalid because it was not publicized. On 22 February 2022, the Respondent emailed me "The two delegation documents are not available from our public website" upon my question of whether or not they are publicly available. A copy of the email correspondence is at pp35-36 of BUNDLE OmboCHOI-4 dated 14 March 2022 ("OmboCHOI-4"). 13. The Fact Sheet titled "Delegation or authorization of GIPA functions; Publicise the delegation or authorisation" by the IPC states "The instrument of delegation or authorization should also be published on the agency's website as open access information". 14. There is no written statement of the decision maker's authority such as "I am authorised by the principal officer for the purposes of section 9(3) of the GIPA Act to decide your access application" in Ms Smith's email dated 3 August 2018. 15. The Fact Sheet provides "where a decision is made under delegation or authorisation, notices of decision on access applications should expressly state the basis of the decision maker's authority to make the decision referring to section 9(3) of the GIPA Act or the relevant power of delegation". 16. Sixthly, Ms Smith's authority is not made apparent to anyone. There is no written statement the principal officer gave Ms Smith the authority to search the information or/and make a decision. It should be said the delegation to Ms Smith was not exercised in accordance with the IPC's directions. The Fact Sheet under the subtitle "Prepare the delegation or authorisation" provides: A delegation or authorization by the principal officer should be made in writing. Apart from any legal requirement to do so, this ensures the decision maker's authority can be made apparent to the recipients of the decision, as well as on review or appeal… It may be an instrument or letter that is provided to the individual or position holder who is the recipient of the authority. Generally, the instrument will state whether it is a delegation or an authorization. It will also: * identify and be signed by the principal officer. * identify the individuals or positions being given authority, and in respect of which functions. * state the duration of the delegation or authorization, for example, if it is in effect until it is replaced or for a specific time or purpose. * state whether the delegation or authorization is about a specific access application or applications * in the case of a delegation, state whether the delegate is allowed to sub-delegate to another person. 17. The name of Ms Smith as well as an administrator's title or name are required on the delegation instrument. However, they are missing. The Interpretation Act 1987 (NSW) s49 provides: Section 49 Delegation of functions (1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned. (2) A delegation— (a) may be general or limited, (b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and … 18. Rather, Ms Smith delegated herself as a Right to Information officer despite no power to delegate. Michael Polkinghorne in the same division with Ms Smith, Corporate, informed the administrators (Chris Wheeler and Sanya Silver) of the delegation. Mr Polkinghorne's emails says "Megan has advised that she will take carriage of this matter." Only the Ombudsman has power to delegate the functions to Ms Smith by virtue of s9(3) of the GIPA Act. Ms Smith's email dated 3 August 2018 is not an internal review which the IPC recommended under the GIPA Act 19. I stay with my assertions at paras 12 to 16 filed and served on 29 January 2022. In addition to para 15, I assert that Ms Smith's email of 3 August 2018 did not comply with s126(1)(b) and s126(1)(d) of the GIPA Act "Requirements for notices given by agencies" not by providing the date of the decision and the contact details of an officer to whom inquiries. 20. I submit a copy of the template of an agency's notice of decision under the GIPA Act from the IPC"s website at pp42-52 of OmboCHOI-4. 21. Even if it is assumed that Ms Smith's email of 3 August 2018 were lawfully made under s84(2) of the GIPA Act, it is a reviewable decision under s80(c) of the GIPA Act: a deemed refusal decision. The Respondent has not decided my access application under s58 of the GIPA Act yet. It is a delayed decision in s108 of the GIPA Act as well. 22. On 16 February 2022, I received a notice of decision by Ms Smith dated 6 August 2018 for the first time. Thus, I do not agree with the document name "5 Email from Mr Polkinghorne, Project Officer, to Ms Choi attaching (among others) a letter of Legal Counsel dated 6 August 2018 ("Ms Smith's decision dated 6 August 2018"). The contents of Ms Smith's email dated 3 August 2018 (pp1230-1233 of OmboCHOI-1), Ms Smith's decision dated 6 August 2018 and Mr Polkinghorne's email dated 6 August 2018 (pp1234-1237 of OmboCHOI-1) are all slightly different one another. It should be said the Respondent made three reviewable decisions having no reference number in response to one access application. Thus, Ms Smith's email dated 3 August 2018 is not an internal review decision under the GIPA Act. 23. On 4 January 2017, Ms Smith wrote an apology letter to the IPC in response to the IPC"s complaint about Mr Wheeler's privacy internal review decision (p1013 and pp1220-1221 of OmboCHOI-1). In her letter, Ms Smith criticised Mr Wheeler's omitting the review rights from the internal review decision. Then, it could be inferred that Ms Smith omitted the review rights from her email dated 3 August 2018 on purpose not by mistake to prevent external reviews. A FAILURE OF CONDUCTING REASONABLE SEARCHES 24. I was unable to raise an issue of a failure of conducting reasonable searches in my NCAT review application dated 19 July 2018 because I was only dissatisfied with the Respondent's invalid decision in response to my access application under the GIPA Act. 25. On 3 August 2018, a legal counsel, Ms Smith emailed 53 attachments in a zip format15. I have been unable to open these 53 attachments. The Respondent claimed Ms Smith's email with 53 attachments is an internal review decision following the recommendation of the Information and Privacy Commissioner ("IPC") dated 19 July 2018. 26. On 15 September 2021, the Respondent emailed a 193-page bundle pursuant to Order 117 dated 14 September 2021. On 11 January 2022, the Respondent asserted the 193-page bundle is the same as the 53 attachments dated 3 August 2018. 27. Thus, it was on 11 January 2022 when I acknowledged that the Respondent failed to conduct reasonable searches by viewing the 193-page bundle. In other words, I was only able to notice the Respondent had fail to conduct reasonable searches in collecting excluded and non-excluded information on 11 January 2022. On 18 January 2022 at the preliminary hearing, I raised an issue of reasonable searches. 28. Therefore, the Tribunal should judge whether or not the Respondent had conducted reasonable searches as well. I request the Tribunal to stick to amended Order 3 Note 2 dated 21 January 2022 "If the applicant wishes to raise any further issues, she must notify the Respondent and Tribunal of this as soon as possible and the Tribunal will consider them in the context of the rules of procedural fairness on the hearing date." Excluded information vs non-excluded information among filed ones 29. Before the Tribunal judge whether or not the Respondent conducted reasonable searches, it would be good if the Tribunal evaluate whether all the information filed under "confidential" is excluded information in Schedule 2 of the GIPA Act. Also, a reason among complaint-handling function or investigative function should be identified. 30. The Respondent's list titled excluded information has been amended several times since 3 August 2018. (1) On 3 August 2018, the Respondent determined everything except for the following information in the table is the "excluded information". Its ground is Ms Smith's 53 attachments were not used in handling and investigating the complaints. Correspondence Between Choi and the Respondent in relation to: (1) Choi's NCAT privacy proceedings (2017/10926) (2) Choi's complaint to the Anti-Discrimination Board (3) Choi's GIPA access application in 2017 (2) On 15 September 2021, the Respondent served 193-page bundle. On 9 November 2021, Senior Member Ransome noted "all information not released to Ms Choi is excluded information" at Order 5. (3) On 7 December 2021 and 18 January 2022, the Respondent said a bundle with a list of excluded information (from Doc No 1 to 61) was filed. (4) On 31 January 2022, at the hearing, the Respondent said it did not file excluded information. Thus, a hearing was adjourned. (5) On 10 February 2022, an around 808-page bundle with an amended list of excluded information (from Doc No 1 to 133) was filed. (6) On 16 February 2022, the Respondent filed an around 220-page bundle with a further amended list of excluded information without asking for leave. Numerous items were omitted.20 (7) On 16 February 2022, the Respondent amended Ms Smith decision with the 53 attachments dated 3 August 2018 without asking for leave. The Respondent served a list of documents titled "SCHEDULE-DOCUMENTS THAT OMBUDSMAN AGREES TO PROVIDE TO APPLICANT (EMAIL SENT 11 FEBRUARY 2022)." However, the Respondent did not email me anything on 11 February 2022. (8) My email to Mr McMillan dated 22 June 2017 was determined as excluded information on 3 August 2018. On the contrary, Ms Smith provided my email to Mr McMillan dated 8 June 2017 which is similar with my email dated 22 June 2017. However, on 10 February 2021, the Respondent submitted a list of excluded information including my email to Mr McMillan dated 8 June 2017 at Doc No 100. Soon, on 16 February 2022, the Respondent re-determined to provide my email to Mr McMillan dated 8 June 2017. (9) The Respondent provided me with my submissions although it was used in handling my privacy complaint. 31. The Respondent was not honest. As a result, the hearing dated 31 January 2022 was adjourned. It should be said the Respondent endeavoured to conceal the information. The Respondent continued to amend a list of excluded information. The Respondent's material is not accountable. More materials are still kept by the Respondent 32. I contend there is more information that is still kept by the Respondent. The Respondent served or/and filed around 1000 pages as excluded and non-excluded information in this matter. In late 2016, I sent over 500 pages to Mr Conaty in my complaint about Provost's exclusion (C/2016/9206). Further, ten more complaints were lodged during the material period from 22 September 2015 to 13 June 2018. 33. Sending voluminous emails, my disability, caused UTS to exclude me in December 2016 and caused the Respondent to determine to reject my complaints in February 2017. Therefore, much more information should have been filed or/and served. A brief summary of complaints is at para 16 to p610 of OmboCHOI-1. 34. NCAT proceedings Choi v NSW Ombudsman 2018/299612 whose leave decision is reserved is my application under the Anti-Discrimination Act 1977. A Chronology in the proceedings could assist the Tribunal to imagine the volume of the materials and understand my complaints. Thus, I attach a Chronology attached to the back of this reply. 35. Must-be items in the TRIMmed (1) Mr Conaty or/and Mr Britton recorded what "UTS"s action to take" and "UTS"s satisfactory response" are (C/2015/8756). They are the reasons why the Respondent had closed my complaint on 8 October 2015 without further investigation despite the seriousness of my complaint. The information is recorded in the TRIM records management system. I have endeavoured to access to the information without success. (2) Ms Unwin witnessed the information substantiating that the Respondent's disability discrimination was caused by my presumed mental disorders is recorded.29 The information could influence my proceedings Choi v NSW Ombudsman 2018/299612 under the Anti-Discrimination Act 1977. (3) I stay with the paras 31(6), 35-37 of my submissions dated 29 January 2022. (4) The Respondent ignored E/2016/27446, my Complaint about Mr Conaty's discrimination, UTS's exclusion, my Complaint about UTS"s forgery, my complaint Ms Wise and Complaint about the Ombudsman. Then, the Respondent would have recorded. 36. The information filed under "Confidential" or provided to me is nearly all correspondence. There must be notes or records. The GIPA Act s12(2)(e) and s112 37. I stay with paras 3, 31(2), 55 in relation to s12(2)(e) of the GIPA Act. 38. I stay with paras 4, 31(7), 57 related to s112 of the GIPA Act. 39. I wish to raise a new allegation. In reality, I have not received the email from Ms Barton on 27 November 2015 (p423 of Bundle OmboCHOI-1). On 7 December 2015, Ms Barton sent me Mr Wheeler"s review decision regarding my initial complaint about Professor Daly (R/2015/138) (pp54-55 of Bundle OmboCHOI-1). I did not request the Respondent to review C/2015/8756. On 7 December 2015, Mr Wheeler stated "…Ms Barton also emailed you on 27 November asking for clarification of your concern… You did not respond to either request." Then, Mr Wheeler emphasised "only one review policy" and rejected my questions about what UTS's action to take is and UTS's satisfactory response. APPLICATION FOR CONTEMPT OF TRIBUNAL 40. I am planning to lodge an application for contempt to the Tribunal regarding the Respondent's conduct. CONCLUSION 41. On 18 January 2022 at the preliminary hearing, Senior Member Riordan had power to order the Respondent to make a reviewable decision or subsequent decision or a new decision by way of internal review upon my exclusive request. However, Senior Member Riordan said she had no power to make such an order. I request the Tribunal to order the Respondent to make a new decision. 42. Ms Smith had no power to search the information and make a decision under the GIPA Act. Ms Smith's email dated 3 August 2018 is not an internal review decision that the IPC recommended. 43. I request the Tribunal to make an order to release all the excluded and non-excluded information which the Respondent regards. 44. I stay with my submissions including offences and report in the past. 45. My case has implications. The Respondent has abused "excluded information" in response to access applications under the GIPA Act. Thus, only very few people have applied for access applications for far. I wish my matter to encourage the public to access information. 46. The Respondent is not honest and try to conceal the information sought to conceal its misconduct, which I think. I wish my case to alarm the corrupted public officers in New South Wales. 47. I wish the Tribunal to make a landmark decision. I hardly view any decisions to order NSW Ombudsman to release the information. Instrument(s) of delegation filed and served 1. On 16 March 2022, the respondent filed and served the instrument of delegation dated 13 June 2013, which indicates that the Ombudsman appointed "Legal Counsel" as a special officer of the respondent and that the delegated functions included those under ss 8, 9, 51-79 and 83-86 of the GIPA Act. Respondent's submissions in response to the applicant's "Reply" 1. On 16 March 2022, the respondent filed submissions in response to the applicant's reply, which addressed two issues: (1) The validity of Ms Smith's delegation under the GIPA Act; and (2) Whether the decision dated 3 August 2018 was an internal review decision. 2. The respondent argued that the instrument of delegation dated 13 June 2013 remained in force until 9 January 2020, when a new instrument superseded it. It stated that on 3 August 2018, in her email to the applicant, Ms Megan Smith, Legal Counsel for the Ombudsman, stated that she had made a new decision by way of internal review in relation to the GIPA application, following a review by the IPC. She decided to provide the applicant with access to a number of documents and also decided that the access application was otherwise invalid because it sought 'excluded information.' 3. The respondent also argued that the 2013 delegation instrument was validly made in accordance with the Ombudsman Act 1974 (NSW) (the Ombudsman Act) and Ms Smith's decision dated 3 August 2018 was validly made under the authority conferred upon her by that delegation instrument. 4. The respondent submitted that s 8(2) of the ADR Act does not bar the delegation of administratively reviewable decisions to legal counsel and that the applicant "misconceives the purpose of that provision, which is to deem the relevant administrator where more than one person is involved in the making of a decision." There is also nothing in the language of ss 112 and 116 to 120 of the GIPA Act from which any such prohibition may be implied. The applicant has not set out any basis for her assertion that legal counsel is in some way "immunised from such offences by reason of being a legal practitioner" and there is no basis for that assumption. 5. There is also no legal requirement that the delegation instrument must be published in order to be valid. The applicant does not identify any provision imposing a publication requirement and there is no such requirement in the GIPA Act, the Government Information (Information Commissioner) Act 2009, the Ombudsman Act or any other relevant legislation. 6. The respondent stated that to the extent that the 2013 delegation instrument should be considered 'open access information' and published, a failure to do so could not affect its validity of that instrument because there is no provision in the GIPA Act or the Ombudsman Act to suggest otherwise. 7. While the applicant relies on an alleged non-compliance with the Fact Sheet issued by the IPC and updated in March 2020, she has not identified the legal effect of that publication or its relevance to the validity of the delegation instrument. The respondent stated that the Fact Sheet was issued to assist agencies in the exercise of their functions: GIPA Act, s 17(d) and it has no relevance to question of the validity of the delegation instrument. It stated: 21. The validity of the decision made by way of Ms Smith's email of 3 August 2018 was not affected by the absence of express statement regarding her delegated authority… This was because Ms Smith did in fact have such authority under the 2013 delegation instrument. Contrary to the applicant's submission (paragraph [17]), this was and is expressly permitted by section 49 of the Interpretation Act 1987. 22. Ms Smith's delegated authority was not confined to any specific matter, and there are no conditions or limitations on its exercise. Applicant's objection to the respondent's submissions 1. On 17 March 2022, the applicant the following email to the Tribunal: Dear Registrar, The Tribunal MUST reject the respondent's submissions which are out of the timeframe. Please see the attached 2-22-03-16 files. The respondent already gave several submissions that the Member did not order. The respondent has filed and served more than the Tribunal ordered. I enclose the order. The files should be rejected for fairness… Applicant files "The omitted Notice of Authorisation in relation to order 3 1. On 27 May 2022, the applicant filed a further document headed "The omitted Notice of Authorisation in relation to Order 3" in which she asserted that "…Ms Smith had no authorisation to make the decisions dated 3 August 2018." 2. The applicant argued that the respondent failed to file a Notice of Authorisation dated 17 April 2015, which she had "obtained", which proves that Ms Smith "…had no authorisation to make the decisions dated 3 August 2018 under the Government Information (Public Access) Act 2009." Application to appoint a McKenzie Friend 1. On 30 May 2022, the applicant emailed a further copy of her submissions dated 27 May 2022 to the Tribunal by email and she sent a further email in the following terms: Hi, 1. The hearing started at 10 am on 3 June 2022? 2. Should I ask for leave to have McKenzie friend for this matter? My four friends wish to be my McKenzie Friend in this simple and obvious matter to grab the media's attention…. 1. On 31 May 2022, the applicant sent another email to the Tribunal, in which she stated (inter alia): I wish the Member to grant me leave to have McKenzie's friend for fairness and justice. I am a single mother with non-English background and without legal knowledge in Korea… 1. On 2 June 2022, the Registry advised the parties that the Tribunal would consider the request to appoint a McKenzie friend at the commencement of the hearing on 3 June 2022. Application for Miscellaneous Matters dated 2 June 2022 1. On 2 June 2022 at 11:09 pm, the Tribunal received an email from the applicant, which attached two Interlocutory Applications "for tomorrow's hearing, scheduled at 10:00 am", which consisted of 168 pages. These documents comprised: 1. An Application for Miscellaneous Matters dated 2 June 2022; and 2. Her affidavit (comprising 6 pages) and an Exhibit (comprising 146 pages). 1. I note that document (1) above sought "the orders specified at paragraphs 1 (1), 1(2), 1(3),1(4), 1(5), 1(6), 1(7), 1(8), and 1(9) of the attached documents to this Form." The application raised the following grounds: Application of Contempt of Tribunal See the grounds for application at paragraph 1(1) a,1(1) b,1(1) c,1(1) d and 1(1) e of the attached document to this Form. Application of McKenzie Friend See the grounds for application at paragraphs 3,4,5,6,7,8 and 9 of the attached document to this Form. Total 14 pages including this Form and the attached documents with transcript (excluding Affidavit) 1. On 3 June 2022 at 8:45am, the applicant sent a further email that was addressed to me personally, in which she stated: Dear Senior Member Riordan, Please see and find the two documents for today's hearing. (1) …filed on 27 May 2022 is a significant evidence showing that Ms Smith had not power to make a decision dated 3 August 2018. The Tribunal has not acknowledged despite my numerous request to do so. (2) I wish to table one-page email. I hope the Tribunal to seek materials revealing that Executives and public officers including NSW Ombudsman discriminated me on my presumed disabilities. Applicant's "Affidavit"/Statement dated 2 June 2022 1. On 2 June 2022, the applicant lodged a document headed "Affidavit" dated 2 June 2022. However, the document has not been either sworn or affirmed and it is therefore in the nature of a statement. Mr Wong did not seek to ask the applicant any questions and the Tribunal read the document. 2. I note that much of this addresses matters that are not relevant to the current administrative review, including allegations and complaints made by the applicant against the Dean of the Faculty of Health at UTS. She asserted that she was the number 1 ranking nursing student at UTS from February 2014 to November 2016 but "was terminated from UTS under the instruction of (the respondent)." She alleged that the Dean "abused psychologists to terminate nursing students after enrolling 2000 nursing students each year" and said that she complained to the respondent "in my procuring anonymous complaint on 22 September 2015." However, she stated, relevantly: 6. …The rotten dog, Respondent disclosed my identity to (the Dean) to exclude me due to my presumed mental problems (In return, NSW Ombudsman did not investigate UTS' corruption). 1. The applicant asserted that the Tribunal only determined "from the privacy perspective" in CEU V Ombudsman [2017] NSWCATAD 267, but it did not extent its power to disability discrimination and corruption and she therefore sought "the relevant information" under the GIPA Act. She stated (at [6]): …All the information should have been provided to me under s 12(2)(e) of the GIPA Act in 2018. 1. The applicant complained that the Tribunal "determined to make me a crazy litigant" and Mr Hoyles, a GAL appointed by Ms L Kaban, General Counsel, withdrew this matter and the Appeal Panel approved this. However, Justice Wright dismissed the respondent's motion to strike out her matter in the Supreme Court and the Court of Appeal "was on my side" and remitted the matter to NCAT. She stated, relevantly: 7. … More and more this matter grabbed attention, and more and more Ms Kaban's corruption has grown up. This is because the outcomes of this matter may reveal corruption. No wonder she requested a debt collection agency in the Parramatta in NSW to harass me for collecting the legal debts in Korea. In short, this matter caused an international crime… 1. The applicant made extensive submissions concerning the respondent's alleged failure to comply with the Tribunal's orders, but as these matters are not relevant to the current administrative review and I have not included them in this decision. 2. The applicant then stated, relevantly: 11. The Information and Privacy Commissioner (IPC's) website provides a frame of the Notice of Decision. A frame of the schedule of documents is also provided. 'Released or withheld, partly-released or fully released or the public interest consideration against disclosure is applied or not' are required in the frame. By doing so, a Schedule of Documents helps applicants find whether the information was fully provided or partly provided or was not held or the reasons for volume (sic) of the information… 12. However, on 19 January 2022, the respondent served a table of documents not a schedule of documents. Thus, it is impossible to find out whether the information was fully or partly provided. Also, the 193 page information was provided in bulk, but not in response to each item. So it is hard to find out missing documents and hard to sort them out under each item. It could be only inferred that the respondent wants to conceal the information not by indicating whether item 1 is partly-released or fully-released… Ground 2. The respondent's telling a lie to the Tribunal 13. The respondent was to file all the confidential evidence and submissions marked 'Confidential' by 7 December 2021 pursuant to order 2 dated 9 November 2021. Also, Order 5 Notes provides "The Tribunal notes that the respondent claims that all information not released to Ms Choi is excluded information under schedule 2 of the GIPA Act." In addition, Order 4 by Senior Member Riordan dated 18 January 2022, "1. At the hearing on 31 January 2022, the Tribunal will determine whether the documents withheld by the respondent are 'excluded documents' under schedule 2 of the GIPA Act.'… 14. On 18 January 2022, at the preliminary hearing, Senior Member Riordan explained Order 2 in detail "Order 2 requires the Ombudsman to give the confidential evidence and confidential submissions to the Tribunal… the Tribunal will consider in confidential session" and "They [the respondent] are going to provide to me on the hearing day…" 1. However, my records from the directions hearing dated 18 January 2022 do not indicate that I either stated that confidential documents and submissions would be provided to the applicant on the hearing date. Rather, I stated that the applicant would not be involved in the confidential hearing. The accuracy of the "transcript" attached to the application dated 2 June 2022, which the applicant said originated from a tape she created from her hand-written notes, is disputed by the Tribunal. 2. The applicant continued, relevantly: 15. I suspected the respondent had not filed and would not file the materials in the envelope marked 'confidential'. This is because the excluded information will show the respondent disclosed my identity to (the Dean of UTS) in order to terminate my enrolment. Ms Lida Kaban instructed the respondent to reject my complaints on the ground I am mentally ill, the public agencies such as UTS, NSW Ombudsman, Police of NSW and Mr Attorney all shared my information together hand-in-hand to put me down. I heard the New South Wales would be turned over if my excluded information is revealed from the two previous Ombudsman's employees who contacted me through the SNS. This, on 18 January at the preliminary hearing, I persistently sought an answer from the respondent. 16. I was surprised to hear Ms Smith said confidential materials had been filed, "Yes". I did not believe that, but I had to accept that… Ground 3. The respondent's breach of Orders by two Senior Members … 18. On 31 January 2022, at the hearing, I was going to table the email from Ms Sarah Unwin dated 30 March 2017 so that Senior Member Riordan can seek the relevant records revealing the respondent's disability discrimination on my presumed disability ground in the closed session. Currently, the Judgment Choi v NSW Ombudsman 2018/299612 under the Anti-Discrimination Act is before the Supreme Court of NSW … 19. After around a 2-hour open hearing, Senior Member Riordan was going to have a closed session but said she could not find the confidential document. The respondent's new legal representative Mr Wong said he had not filed the confidential documents. Since then there was an intensive conversation between Senior Member Riordan and Mr Wong. Mr Wong gave the reason why the respondent had not filed the confidential documents; "We just understood we were not required to." Senior Member Riordan was very disappointed and said 'most unsatisfactory.' Member could not complete the matter and re-list a hearing… 1. The applicant also alleged that on 18 January 2021, I said that I saw the large envelope marked "confidential" and "a large bundle of documents filed…" and that "they are going to provide it to me on the hearing day. It is in the Tribunal…" However, I have no record of making any statements to that effect, although I did state that the Tribunal would conduct a confidential hearing in relation to the "excluded documents" on 31 January 2022. 2. The applicant continued: Ground 4. The Respondent's scam by cheating the Tribunal 21. On/around 10 May 2022, I obtained the materials regarding the Certificate of Authorities under the GIPA Act. Thus, I could file and serve the materials showing Ms Smith had no power to make the decision dated 3 August 2018. It is a scam. The respondent should have filed the Notice of Withdrawal for justice and fairness… Ground 5. Sneaky Respondent 22. Recently, I have found out that Ombudsman is not a public officer, but is an Executive Director appointed by the Attorney-General. NSW Ombudsman is a natural person having no ABN, which found from the ABN lookup website. I would not be able to obtain compensation if costs were awarded the party name NSW Ombudsman which is not even a trading name. During the proceedings 2018/226998, Ms Smith wrongly said the party name is NSW Ombudsman, pointing the party name in CEU v NSW Ombudsman [2017] NSWCATAD 267. The best thing would be to choose an entity name. In the High Court of Australia, the party name should be consistent with the entity name. As a result of the Respondent's contemptuous conduct 23. I have got hurt by the immorality of the public officers of New South Wales. I have been involved in the proceedings for 7 years by myself without support. I do need McKenzie Friend to support me, a socially-legally disadvantaged non-English background single mother in Korea. McKenzie Friend would be an Australian who could speak English very well. Further hearing on 3 June 2022 1. At the further hearing on 3 June 2022, the applicant appeared in person, Mr D Wong appeared for the respondent and a Korean Interpreter was also sworn in to assist the applicant, as required. However, Ms Telina Webb was also in the AVL hearing room, as were two other persons, one of whom identified herself as Ms Paulina Wojciechovska, but the second person did not identify themselves. 2. The Tribunal referred to the documents lodged by the applicant on 2 June 2022 and asked her to clarify the nature of the "audio recording" that was the subject of the "Transcript" that she had filed, as this did not appear to be a transcript of an official recording of the previous Tribunal hearing. 3. The Tribunal stated for the record that it is an offence under the Court Security Act 2005 (NSW) for any person to record Tribunal proceedings on a private recording device and that the Tribunal does not grant leave for any such recording to be made of this hearing. 4. The applicant replied to the effect that she took notes at the last hearing and she "made a tape of my notes" and this "tape" was turned into the transcript. 5. In relation to the Application for Miscellaneous Matters dated 2 June 2022, the Tribunal confirmed that on 31 January 2022, it stated that only the President could determine an application for contempt orders and that particular application was not before me for hearing. 6. The Tribunal noted the following grounds and submissions were relied upon in support of the application to appoint Ms Telina Webb as a McKenzie friend: 3. I make the following Interlocutory application which if refused can be internally appealed; 4. Ms Webb reached out to me and offered her assistance in this matter; 5. Ms Webb administers the following professional website, that specialises in assisting with educating the public with their GIPA applications and GIPA legislation: https://www.nswfreedomofinformation.net/advocacy-mckenzie-friend/ 6. Ms Webb has extensive experience in NCAT and can provide me with assistance and support to help me run this case as I cannot afford legal representation because I am a disadvantaged widowed mother, now forced to live in South Korea for the fear and safety of my child and myself; 7. Ms Webb is a distinguished, well educated, respected individual of great character, has a moral compass and integrity and has offered to help me at no cost because of the complex history of this matter; 8. Ms Webb understands that a McKenzie Friend's role is limited to: a. Aiding and providing support from the Bar table, Video link, Telephone or by Email; and b. Can only engage the Tribunal if leave is approved and at the request of the Tribunal Member if they request that she clarifies matters that I am unable to articulate or to assist the Tribunal to make the correct and preferable decision; 1. The applicant stated that she relied upon the following authorities: (1) Regina v Michael Kanaan [2003] NSWCCA 190; (2) Pincevic v Nicholas Panos t/as N Panos & Associates [2013] NSWDC 188; (3) McEwan v Port Stephens Council [2017] NSWCATAD 269; (4) Capilano Honey Ltd v Dowling [2018] NSWSC 876; (5) McEwan v Port Stephens Council [2018] NSWCATAP 211; (6) Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38; (7) Webb v Port Stephens Council [2019] NSWCATAD 47; (8) Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274; (9) Department of Education v Zonnevylle [2020] NSWCATAD 96; (10) McEwan v Port Stephens Council [2021] NSWCATAD 110; and (11) McEwan v Port Stephens Council [2022] NSWCATAD 148. 2. However, the applicant did not make any particular submissions in relation to those decisions. She then concluded: CONCLUSION AND RELIEF SOUGHT … 12. I further seek orders to release all the information and excluded information possessed by the Respondent. Anyhow, the Respondent should provide me such information under s12(2)(e) of the GIPA Act as I claimed during 2018/226998. 13. The fact that the Respondent has not filed and served the Schedule in Order 1 dated 9 November 2021 has already damaged the integrity of the Tribunal and makes it very likely that further incompliance will be made. 14. The Respondent called as a watchdog was corrupted enough to put down Senior Member Riordan at the hearing on 31 January 2022. I have been suffering from the Respondent's unpredictable rudeness, which impacts the proceedings. Thus, repeatedly, I request an order to appoint Ms Telina Webb to be my McKenzie Friend in 2018/00226998 and this application. 15. Finally, the extreme gravity of these circumstances warrants an order under s60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) that the Respondent pay my costs of this application on an indemnity basis. 16. When the costs order is awarded, the entity name 'Office of the Ombudsman' matched with the party name in the Judgment would enhance a quick process. Thus, an order to amend the party name NSW Ombudsman to 'Office of the Ombudsman' would be of public importance. 17. Alternatively, if the Tribunal refuses to grant leave, then these proceedings are stayed until this Application is dealt with by way of Internal Appeal. Refusal of Application to appoint a McKenzie Friend 1. The Tribunal refused the application to appoint Ms Webb as a McKenzie Friend for the applicant, as having read the applicant's submissions and heard her oral submissions, it was not satisfied that appointing a McKenzie Friend would assist it to determine the current matter. 2. The applicant was displeased with the Tribunal's ruling, and she demanded to know why her application was being refused. The Tribunal repeated its oral reasons and stated that written reasons would be provided when the application for administrative review was finally determined. Ms Smith's decision dated 3 August 2018 was a valid decision and is administratively reviewable 1. After considering the parties' written and oral submissions on 3 June 2022, and the evidence filed by the respondent on 16 March 2022, the Tribunal determined that it was satisfied that Ms Smith's decision dated 3 August 2018 was a valid decision. Accordingly, it is an administratively reviewable decision under s 80 of the GIPA Act and the Tribunal has power to review it under s 100 of the GIPA Act. 2. The Tribunal stated that written reasons would be provided when the current application for administrative review was finally determined. Further attempt to identify the issues in dispute 1. The Tribunal made a further attempt to identify the issues in dispute and it expressed the view that the primary issue was whether the documents that the respondent withheld on 3 August 2018 are "excluded documents" under sch 2 of the GIPA Act? 2. However, the applicant disagreed, and she said, "there are a few more issues". The Tribunal asked her what these "further issues" were, and she replied, "reasonable searches." She then stated that the respondent failed to conduct reasonable searches because she could not access the documents that it released to her until January 2022. 3. The Tribunal stated that the respondent's obligation to conduct "reasonable searches" arises under s 53 of the GIPA Act and it relates to the location of documents that sought in an access application. However, it is not relevant to the release of information in response to an access application. 4. The applicant then complained that the respondent had not produced an email from Sarah Unwin to herself. However, Mr Wong replied that this email relates to the applicant's complaint that the respondent declined to investigate her complaint against UTS and it is an excluded document under cl 2 of sch 2. 5. I again asked the applicant to identify her "other issues", but she replied, "Just get on with it and I can raise other issues later." The Tribunal repeated its request, but the applicant replied to the effect that the Tribunal "should read my submissions." 6. Accordingly, the Tribunal referred to the applicant's 'submissions" and noted that her most-recent "submissions" raised allegations of misconduct against the respondent. I asked the applicant whether she believes that the Tribunal has power to determine those matters in the context of the current administrative review? However, the applicant replied, "It sounds like you have made up your mind. Why ask me?" 7. The applicant then complained that I was "putting her under pressure" and that I was "putting her in a corner." I refuted those allegations and stated that I was simply trying to identify the issues that she believes are in dispute. However, she replied to the effect that I was "interrogating her and acting as a prosecutor" and she said that "she feels scared" and that "she would expect me to consider her submissions." 8. The Tribunal held that the remaining issue for determination was whether the documents that the respondent withheld on 3 August 2018 are "excluded documents" under sch 2 of the GIPA Act? 9. The Tribunal decided to conduct a confidential hearing in relation to this issue and it adjourned the open hearing until 3pm. Confidential hearing 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] Open hearing resumed 1. The Tribunal resumed the open hearing and noted that at 2:21pm that day, the applicant sent an email to the Principal Registrar, as follows: I refer to the above-mentioned proceedings. Last night, I lodged my interlocutory applications in 2018/226998. 1) Contempt of Tribunal application 2) McKenzie Friend application Senior Member Riordan rejected my McKenzie Friend application though the Respondent submitted 'no objection' by giving an oral judgment. I have just obtained advice that the hearing should be stayed until the interlocutory applications are solved. I wish to appeal the oral judgment. That impacts the hearing. Senior Member Riordan did not hear the matter about the qualification from me at the hearing and made an oral hearing. The Respondent has not determined that my access application is valid under the GIPA Act by a senior administrator. Thus, Ms Smith had no power to determine my access application. That is one of the several reasons. Senior Member Riordan was not going to hear what I said. Thus, McKenzie Friend would be helpful. Thus, today's afternoon hearing should be adjourned until the interlocutory applications are finalised. Now, it is a break from 3pm (NSW). Thank you. Please copy this email and give it to Senior Member Riordan. 1. The Tribunal read this email onto the record and stated that it would reserve its decision, as it had heard all of the evidence that is relevant to the current application for administrative review. 2. The Tribunal ordered the applicant to file and serve any final written submissions by indicating the issues that she raised, without filing any evidence or documents that she had already filed, by 1 July 2022. I also ordered the respondent to file and serve any final submissions by 22 July 2022. 3. The Tribunal reserved the matter for determination after 22 July 2022. Further correspondence from the applicant after the matter was reserved 1. On 6 June 2022, the applicant sent an email to the Tribunal, as follows: Dear Senior Member Riordan, (1) Could you please put down your verbal order regarding McKenzie Friend's application so that I could lodge an Application to set aside or vary the Tribunal decision as soon as possible? (2) During the haring you agreed to my request for my submission by the first week of July 2022. The, I meant 9 July 2022? Is it possible at least 2 July 2022? I said I need to file and serve by 30 June 2022 for Choi v NSW Ombudsman under Anti-Discrimination Act at the Supreme Court of New South Wales (2022/127132). Mr Wong, can you consent? Only one day to Saturday. There would not be any prejudice. (3) One order is missing. I will file and serve my reply to the respondent's submission if necessary. Looking forward to hearing from you soon. Thank you… 1. On 15 June 2022, the Tribunal responded to this request and stated that the matter was reserved and that written reasons would be provided when the application for administrative review was determined, and this would not occur until after final submissions have been received. It also stated that during the hearing, I stated that if the respondent raised any further issues in its final submissions, she would be given an opportunity to respond. The requested extension of time was granted. 2. On 15 June 2022, she sent a further email to the Tribunal as follows: Dear Registrar, Referring to the Registrar's decisions regarding my interlocutory applications regarding McKenzie Friend and the Contempt of Tribunal application. I emphasise your jurisdictional errors. You have no jurisdiction to change the rule: NCAT rule r51. The Tribunal must give reasons within 28 days after the decision. See the NCAT Act. The interlocutory decision fairly should come, and then the final decision should come next. I may request the Supreme Court of New South Wales for a judicial review. The office of the ombudsman who gives the public members of NSW disaster needs to be ethical. I recommend the Tribunal not cause any unnecessary problems. By doing so, the Tribunal looks like it endeavours to conceal the misconduct of the NSW Ombudsman. The Tribunal should be fair, which is the object of the NCAT Act. Please release the decisions before 2 July 2022. The Judgment will be dealt with by the law journals. A landmark decision is expected. The respondent's legal representatives' names and the officers' names will be published. Thank you… 1. In accordance with the applicant's demand for orders relating to her interlocutory applications, the Tribunal published the following orders on 23 June 2022: 1. The application for contempt orders against the respondent is refused. Reason for decision: An application for contempt orders must be made to the President of NCAT and the Tribunal as constituted on 3 June 2022 does not have the power to determine it. 2. The application to appoint one or more McKenzie Friends is refused. Reason for decision: Having read the applicant's submissions and heard her oral submissions, the Tribunal is not satisfied that appointing a McKenzie Friend will assist in the determination of the current dispute. Consideration Legal Principles 1. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision". 2. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. The time at which the Tribunal is to determine the correct and preferable decision is the time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55]. The GIPA Act 1. In respect of access applications, s 9 (1) of the GIPA Act relevantly provides: A person who makes an access application for government information has 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. 1. For the reasons set out later in this decision, I am satisfied that Ms Smith's decision dated 3 August 2018 is a "reviewable decision" in respect of an access application within the meaning of s 80 of the GIPA Act and that it is reviewable by the Tribunal under s 100 of the GIPA Act. 2. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance. 3. Section 5 of the GIPA Act provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 1. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies". 2. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure. 3. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information. 1. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13. 2. Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. 1. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. 2. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 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. 1. Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section— (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14. 1. Section 73 of the GIPA Act requires that access be unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world". 2. Section 105 of the GIPA Act places the onus on the agency to establish that its decision was justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]; Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7]. Ms Smith's decision dated 3 August 2018 is valid and is administratively reviewable 1. On 3 June 2022, the Tribunal held that it was satisfied that Ms Smith's decision dated 3 August 2018 was a valid decision and that it was administratively reviewable under s 80 of the GIPA Act and that the Tribunal had power to administratively review it under s 100 of the GIPA Act. My reasons are as follows. 2. Based on the evidence before me, I am satisfied that Ms Smith was duly authorised by the respondent to make her decision dated 3 August 2018 and that the relevant instrument of delegation was made on 13 June 2013. I am also satisfied that this instrument of delegation remained in force until 9 January 2020, when a new instrument superseded it. 3. The applicant challenged the validity of the instrument of delegation and Ms Smith's decision dated 3 August 2018 on many grounds, which are discussed below. However, I accept the respondent's argument that the relevant instrument of delegation was validly made in accordance with the Ombudsman Act 1974 (NSW) (the Ombudsman Act). 4. The applicant asserted that Ms Smith's decision was invalid because she is "Legal Counsel", but she did not cite any authority or statutory provision to support a finding that Legal Counsel cannot make a valid decision under the GIPA Act. 5. I accept the respondent's argument that s 8(2) of the ADR Act does not bar the delegation to make an administratively reviewable decision to "Legal Counsel" and that the applicant "misconceives the purpose of that provision, which is to deem the relevant administrator where more than one person is involved in the making of a decision." I also accept that there is also nothing in the language of ss 112 and 116 to 120 of the GIPA Act from which any such prohibition may be implied. 6. The applicant asserted that the instrument of delegation dated 13 June 2013 was invalid because it was not published, but she did not identify any legislative provision that mandates publication. However, I accept the respondent's argument that there is no such requirement in the GIPA Act, the Government Information (Information Commissioner) Act 2009, the Ombudsman Act or any other relevant legislation. 7. The respondent argued that to the extent that the 2013 instrument of delegation should be considered 'open access information' and published, failure to publish it could not affect its validity because there is no provision in the GIPA Act or the Ombudsman Act to suggest otherwise. I accept that argument. 8. The applicant asserted that the instrument of delegation was invalid because it did not comply with the Fact Sheet issued by the IPC (updated in March 2020). However, she did not identify legal authority or statutory basis for that assertion. 9. However, the respondent argued that the IPC's Fact Sheet was issued to assist agencies in the exercise of their functions (s 17(d) of the GIPA Act) and it is not relevant to the issue of the instrument's validity. I accept that argument. 10. The applicant asserted that Ms Smith's decision dated 3 August 2018 was invalid because it did not contain an express statement regarding her delegated authority. 11. However, the respondent argued that an express statement of authority was not required because Ms Smith was duly authorised: see s 49 of the Interpretation Act 1987 (NSW). I accept that argument. 12. The applicant also took issue with the form of Ms Smith's decision. In relation to this issue, I note that Ms Smith's email dated 3 August 2018, provided, relevantly: I refer to the IPC Review Report published 19 July 2018 in response to your application under the GIPA Act. This email is provided in accordance with the recommendation made in that Report (at paragraph 23) that the Ombudsman make a new decision, by way of internal review, and advise of the actions to be taken in response. Paragraph 13 of that Report confirms that the Ombudsman "may therefore rely upon Clause 2 of Schedule 2 to the GIPA Act if it can demonstrate that the information withheld was information concerning its complaint handling, investigative or reporting functions." In response to the IPC's conclusion that not all of the information sought was "excluded information", the Ombudsman has again reviewed all of the information held in relation to your GIPA request, and has determined that your communications with the Ombudsman concerning • Your NCAT application made under Privacy and Information Protection Acy 1998 (NSW) • Your complaint to the Anti-Discrimination Board, and • Your previous GIPA application made to the Ombudsman Are not 'excluded information'. That material is attached. The Ombudsman reiterates that, apart from this material, the remainder of the information you seek is 'excluded information', being information related to the 'complaints handling, investigative and reporting functions' of the Ombudsman (GIPA Act Schedule 2). It follows that, to the extent that your application seeks that information, the application is not a valid application: GIPA Act s 43. 1. I note that s 43 of the GIPA Act provides: 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. Note— Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section. 1. In my view, Ms Smith's decision dated 3 August 2018 speaks for itself and I am satisfied that it: 1. Clearly indicates that Ms Smith was making a new decision after she reviewed the respondent's original decision following the IPC's report. 2. Clearly identifies (and attaches) the documents that the respondent concedes are not "excluded information" under cl 2 of sch 2 of the GIPA Act. 3. Clearly states that apart from the attached information, the respondent maintains its decision that the information sought in the access application was "excluded information" and that, to the extent that the access application sought that information, it was not a valid application under s 43 of the GIPA Act. 1. For these reasons, I am satisfied that the decision contains sufficient information to enable the applicant to understand the reasons why the respondent decided that with respect to the documents withheld on 3 August 2018, the access application not invalid. 2. The applicant also challenged the validity of Ms Smith's decision on the basis that it did not contain information regarding her rights of review. 3. However, I note that Ms Smith made her decision dated 3 August 2018 after the applicant commenced these proceedings and that her decision was made in accordance with the Tribunal's procedural orders. 4. I also note that the applicant told the Tribunal that she is an experienced litigant in relation to GIPA Act matters and in any event, she has not identified any particular prejudice arising from the absence of any advice of review rights arising from the decision dated 3 August 2018. 5. In these circumstances, I am satisfied that the applicant was not prejudiced by the absence of advice of review rights in that decision and that the absence of that advice is not fatal to the decision's validity. 6. The applicant also argued that there is no "excluded information" and that the information that the respondent withheld should be produced to her under s 12(2) of the GIPA Act and in her most-recent "submissions", she raised matters that are set out in notes (a) to (e) (inclusive) of s 12(2). 7. However, the applicant did not address the provisions of s 43 and cl 2 of sch 2 of the GIPA Act, which are the grounds relied upon by the respondent for deciding that in relation to the withheld documents, the access application is not valid. 8. Clause 2 of Schedule 2 of the GIPA Act provides, relevantly: Schedule 2 Excluded information of particular agencies Note— Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. … 2 Complaints handling and investigative information … The office of Ombudsman—complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993). 1. Accordingly, if the Tribunal determines that the documents withheld by the respondent on 3 August 2018 are "excluded documents", s 43 of the GIPA Act provides that to the extent that those documents are sought the access application is not valid. Therefore, s 12 (2) of the GIPA Act will not assist the applicant. 2. Based on the confidential evidence lodged by the respondent, the Tribunal is satisfied that with the following exceptions, the documents listed in the Further Amended Confidential Schedule of Documents dated 16 February 2022 are "excluded documents" under cl 2 of sch 2 of the GIPA Act. 3. However, although the respondent objected to producing the attachments to document no. 49, it stated that these documents were provided to it by the applicant. 4. In my view, the attachments to document no. 49 were received from the applicant in the context of the investigation of a complaint, which technically means that they are "excluded documents" under cl 2 of sch 2. However, as these documents are already within the applicant's possession, custody or control, I do not consider that there is any utility in withholding them. 5. However, I am satisfied that document no. 49 itself is an excluded document and that it should not be released to the applicant. 6. The respondent withdrew its objection to document no. 81 and that document should therefore be released to the applicant. 7. Accordingly, with the exception of the documents discussed in paras 157 and 173 of this decision, I am satisfied that the access application sought excluded documents under cl 2 of sch 2 of the GIPA Act and that to the extent that it did so it is not a valid access application: s 43 of the GIPA Act. Refusal to appoint a McKenzie Friend 1. On 6 June 2022, the Tribunal refused the application to appoint a McKenzie friend. I stated that written reasons would be provided when the administrative review application was determined. While this was superseded to some extent by the applicant's 'demand' dated 19 June 2022, my reasons for decision are as follows. 2. I note that the concept of a McKenzie Friend arose from the decision in McKenzie v McKenzie [1970] 3 All E.R. 1034 (McKenzie). 3. In 2019, Senior Member Montgomery considered an application to appoint a McKenzie Friend in the matter of Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38 (Zidar). He noted that s 38(1) of the NCAT Act provides that the Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. 4. In Zidar, Montgomery SM noted that O'Connor DCJ considered the issue of appointing a McKenzie Friend in the matter of McGuirk v Vice-Chancellor, University of New South Wales [2009] NSWADTAP 43 (McGuirk). His Honour cited the decision of Lindenmayer J in McKenzie as being authority for the proposition that a McKenzie friend is a person who is "of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings." His Honour also stated that a person who is appointed as a McKenzie Friend may not act as an advocate in the proceedings and that the appointment of a McKenzie friend was to assist (in this case) the Tribunal. 5. In this matter, the evidence before me indicates that the applicant resides in South Korea, while Ms Webb stated that she is located in regional New South Wales. The proceedings were being conducted by way of AVL and it was therefore not physically possible for Ms Webb to sit at the bar table (virtual or otherwise) and offer support to the applicant during the hearing. 6. In her application dated 2 June 2022, the applicant stated that Ms Webb reached out to her and offered her assistance in this matter. She stated that Ms Webb administers "the following professional website, that specialises in assisting with educating the public with their GIPA applications and GIPA legislation" (web address provided) and that "she has extensive experience in NCAT and can provide me with assistance and support to help me run this case." She further stated, inter alia, that Ms Webb understands that a McKenzie Friend's role is limited to: a. Aiding and providing support from the Bar table, Video link, Telephone or by email; and b. Can only engage the Tribunal if leave is approved and at the request of the Tribunal Member if they request that she clarifies matters that I am unable to articulate or to assist the Tribunal to make the correct and preferable decision. 1. The Tribunal determined that it would not assist in the orderly conduct of the proceedings or assist the Tribunal to determine the matter if Ms Webb was appointed as a McKenzie Friend. 2. In any event, based on the applicant's oral reasons on 3 June 2022, it was not necessary for Ms Webb to be appointed as a McKenzie Friend in order to provide her with "moral support" as Ms Webb was present in the AVL hearing as a member of the public and she could provide "moral support" in that capacity. Findings and Orders 1. I make the following findings and orders: 1. The application to appoint a McKenzie Friend for the applicant is refused. 2. The respondent's decision dated 3 August 2018 is valid and is an administratively reviewable decision. 3. The respondent is to provide the applicant with copies of the attachments to document no 49 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision. 4. The respondent is to provide the applicant with a copy of document no 81 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision. 5. The remainder of the documents listed in the respondent's Further Amended Confidential Schedule of Documents dated 16 February 2022, including document no 49, are "excluded documents" under cl 2 of sch 2 of the GIPA Act. 6. The respondent's decision dated 3 August 2018 is otherwise affirmed. ********** 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: 29 August 2022