Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McEwan v Port Stephens Council [2022] NSWCATAP 300 Hearing dates: 2 September 2022 Date of orders: 14 September 2022 Decision date: 14 September 2022 Jurisdiction: Appeal Panel Before: T Simon, Principal Member M Gracie, Senior Member Decision: (1) Leave to Appeal is refused. (2) The Appeal is dismissed. (3) If the respondent seeks to press the costs of this appeal: (a) The respondent must provide to the Appeal Panel and the appellant any written submissions and documents, which the respondent intends to rely on in relation to the costs application within 7 days from the date of these orders. (b) The appellant is to provide to the Appeal Panel and the respondent any written submissions and documents, which the appellant intends to rely on in relation to the costs application within 14 days from the date of these orders. (c) The respondent is to provide to the Appeal Panel and the appellant any further any written submissions and documents, which the appellant intends to rely on in reply within 21 days from the date of these orders. (d) Submissions must include submissions concerning whether an order should be made under s 50(2) of the Civil and Administrative Tribunal Act, 2013 dispensing with a hearing. Catchwords: GOVERNMENT INFORMATION —application of s 107 of the Government Information (Public Access) Act 2009 (NSW) - revocation of non-publication orders - interlocutory decision – ancillary decision PROCEDURAL FAIRNESS — dispensing with an oral hearing - irrelevant matters – failure to deal with substance of the application – new evidence. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: AQO v Minister for Finance and Services [2016] NSWCA 248; (2016) 93 NSWLR 46 Italiano v Carbone [2005] NSWCA 177 Chapman v Taylor [2004] NSWCA 456 CLD v Children's Guardian [2017] NSWSC 936 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Collins v Urban [2014] NSWCATAP 17 Danis v Commissioner of Police [2021] NSWCATAP 57 Craig v State of South Australia (1995) 184 CLR 163 GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 McEwan v Port Stephens Council [2017] NSWCATAD 269 McEwan v Port Stephens Council [2018] NSWCATAP 211 McEwan v Port Stephens Council [2021] NSWCATAD 110 McEwan v Port Stephens Council [2022] NSWCATAD 148 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Ritson v Commissioner of Police [2022] NSWCATAP 223 Webb v Port Stephens Council [2018] NSWCATAP 224 Webb v Port Stephens Council [2019] NSWCATAD 47 Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb [2020] NSWCATAD 81. Webb v Port Stephens Council [2020] NSWCATAP 152 Texts Cited: None Category: Principal judgment Parties: Paul McEwan (Appellant) Port Stephens Council (Respondent) Representation: Solicitors: Telina Webb (Agent) (Appellant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/00158230 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Date of Decision: 9 May 2022 Before: M Riordan, Senior Member File Number(s): 2019/00017318 Reasons for decIsion 1. This is an appeal from a decision of the Administrative and Equal Opportunity Division of the Tribunal. 2. On 9 May 2022 the Tribunal made orders in relation to an application for miscellaneous matters that had been filed by the appellant, Paul McEwan. The appellant was seeking revocation of non-publication orders that had previously been made in the proceedings. The Tribunal made orders dispensing with a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and dismissed the application to revoke the non-publication orders that had previously been made by the Tribunal: McEwan v Port Stephens Council [2022] NSWCATAD 148 (Revocation Decision). 3. It is those orders against which the appellant now appeals. Material before the Appeal Panel 1. The Appeal Panel has received the following submissions and documents relating to the appeal from the parties. 1. Notice of Appeal lodged on 31 May 2022 2. A reply to the Appeal received from the respondent on 12 July 2022. 3. Appellant's submissions and documents filed on 30 June 2022 4. Respondent's submissions and documents filed 29 July 2022. 5. Appellant's submissions in reply filed on 12 August 2022 6. Submissions in reply from the appellant, in relation to the respondents application for costs filed by the appellant on 26 August 2022. 1. The Appeal Panel also had before it a copy of the directions that have been made by the Appeal Panel, a copy of the original orders and reasons for the Revocation Decision. 2. Ms Telina Webb, the appellant's wife, appeared as agent in the Appeal proceedings before us. Jurisdiction 1. The Notice of Appeal was filed within the 28-day time specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules). The decisions of the Tribunal are internally appealable decisions and an appeal can be made from them as of right where the appeal raises a question of law and with the leave of the Appeal Panel on specified grounds: see, s 80(1) and (2)(b) of the NCAT Act. 2. The respondent submits that the Appeal Panel has no jurisdiction to determine this appeal because: 1. The Revocation Decision was not a decision made in the same proceedings as the substantive administrative review application. The Tribunal decision was not a decision made by the Tribunal in proceedings for an 'administrative review decision' because the decision of the Tribunal to make non-publication orders in the proceedings was not an 'administratively reviewable decision' over which the Tribunal has 'administrative review jurisdiction': NCAT Act, s30 and Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 7. 2. The application for miscellaneous matters that was made under s64(3) of the NCAT Act, was a stand-alone application for a decision at first instance. 3. The Revocation Decision was not a decision made by the Tribunal in proceedings for a general decision or administrative review decision and consequently the Appeal Panel does not have jurisdiction to hear the appeal under s80 of the NCAT Act, or under any other provision. 4. The Tribunal only has 'administrative review jurisdiction' over a decision where enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act: ADR Act, s8. The respondent further submits that even if s64(3) of the NCAT Act is within the definition of 'enabling legislation' as defined by s4 of the ADR Act, that provision does not provide those applications may be made to the Tribunal for an administrative review under the ADR Act as required by s8 of that Act. 5. The Revocation Decision was not a decision made by the Tribunal in proceedings for a 'general decision' because a 'general decision' of the Tribunal is 'a decision of the Tribunal determining a matter over which it has general jurisdiction': s29(3) NCAT Act. Consideration 1. Non-publication orders had been made by the Tribunal in proceedings on 27 March 2019 pursuant to s 64(1) of the NCAT Act Webb v Port Stephens Council [2019] NSWCATAD 47 (Remitted Decision). 2. Section 64 of the NCAT Act provides: (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. Section 64 relates to restrictions and non-publication orders regarding proceedings in the Tribunal. The Tribunal can only have jurisdiction to determine a matter under s 64 if there are or have been substantive proceedings in the Tribunal. An application under s 64 would be futile in any other case. Subsection 64(3), under which the application for miscellaneous matters as made, relates to revocation of orders made under s 64(1). Section 64(3) cannot operate in the absence of such orders having been made. For those reasons the Revocation Decision is not a stand-alone decision and is made in the context of the substantive administrative review application. 2. However, it is important for the purposes of the appeal to determine whether the Revocation Decision was an interlocutory or ancillary decision. That is because in the case of an appeal of an interlocutory decision, leave is required to appeal, whereas an appellant may appeal an ancillary decision as of right on a question of law: – s 80(2) of the NCAT Act 3. 'Ancillary decision' is defined in s 4 of the NCAT Act as follows: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including- (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. 1. In Ritson v Commissioner of Police [2022] NSWCATAP 223 (Ritson) the Appeal Panel dealt with an appeal of a decision in which the Tribunal had decided to revoke a non-publication order. At [24] of the reasons for decision the Appeal Panel stated: By s.80(2)(a) of the NCAT Act an internal appeal, such as the appeals before us, can be made to the Appeal Panel with leave in the case of an 'interlocutory decision' of the Tribunal at first instance. 'Interlocutory decision' is defined as including any decision concerning 'the prohibition or restriction of the disclosure, broadcast or publication of matters'. This plainly would include the two Decisions that are before us. Accordingly, leave of the Appeal Panel is required. 1. The respondent seeks to distinguish Ritson on the basis that the appeal in Ritson was made at an interlocutory stage and while the primary proceedings were still on foot in the Tribunal. 2. 'Interlocutory decision' is also defined in s 4 of the NCAT Act: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following— (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. 1. In AQO v Minister for Finance and Services [2016] NSWCA 248; (2016) 93 NSWLR 46 Basten JA, in obiter, addressed the issue of whether a decision is ancillary or interlocutory. His Honour expressed the view that a summary dismissal based on a lack of jurisdiction is interlocutory in nature, but also stated the following in relation to the NCAT Act at [127] to [128] [127] It is true that there is a specific reference to a decision regarding the jurisdiction of the Tribunal in the definition of ancillary decision and it may be inferred that the Appeal Panel thought that the specific reference to jurisdiction determined the issue. However, it appears from the chapeau to the definition of ancillary decision that one must determine that the decision is "other than an interlocutory decision" before coming to specific paragraphs which identify, non-exhaustively, what is meant by the term. If jurisdiction were determined as part of the final determination of a matter by the Tribunal, it might constitute an ancillary decision; however the refusal of a summary dismissal application, albeit based on an alleged absence of jurisdiction, is almost certainly an interlocutory issue, falling within either par (h) or par (i) of the definition of interlocutory decision. [128] A contrary approach might rely upon what appears to be an internal inconsistency in the chapeau to the definition of ancillary decision, which envisages a decision which is "preliminary to" a final determination but is not an interlocutory decision. It is unfortunate that members of the public, in seeking to resolve disputes before a Tribunal which is meant to facilitate the just, quick and cheap resolution of the real issues in proceedings, and which is required to dispense with formality, are faced with such potentially confusing provisions. 1. It may be argued that any decision about whether to revoke a non-publication order is an interlocutory decision under the NCAT Act. That is because the definition includes the prohibition or restriction of the disclosure, broadcast or publication of matters. It is arguable that the definition also extends to the revocation of non-publication orders. 2. However, in our view, for the reasons that follow, the proper reading of the NCAT Act and the relevant definitions, is that in this case the Revocation Decision was an ancillary decision. 3. By its ordinary meaning, an 'interlocutory decision' is a decision that is determined provisionally during proceedings. Ancillary decisions are supplementary or secondary to the decision – being 'preliminary to, or consequential on,' a decision determining proceedings. 4. The requirement in s 80(2) of the NCAT Act to require leave for an appeal of an interlocutory decision is consistent with established legal principle, that is leave is required for appeals of interlocutory decisions, so they do not hinder the overall finalisation of the dispute and are not made against routine procedural decisions: see for example GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198 at [19] 5. For that reason, it is our view that a decision made in relation to s 64(3) of the NCAT Act may be either an interlocutory decision or an ancillary decision depending on what stage of the hearing it is made and determined. The decision whether to revoke the non-publication order in Ritson was an interlocutory decision because the substantive proceedings had not yet been finalised. However, in this case we are satisfied that the decision was an ancillary decision because the substantive proceedings were finalised and the decision as to whether to revoke the non-publication order was consequential on a decision determining the substantive proceedings. Therefore, we are satisfied that we have jurisdiction to determine the appeal. In any case, if we are wrong that the decision was an ancillary decision and was instead an interlocutory decision, we have also considered whether we would grant leave to appeal. Grounds of Appeal 1. Ms Webb, who appeared as agent in these appeal proceedings is not a lawyer. In those circumstances and in accordance with established Appeal Panel practice, we have followed what was stated by an Appeal Panel in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]: In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. 1. In the notice of appeal, the appellant was raising questions of law and did not seek leave to appeal. However, in his subsequent written submissions the appellant was seeking leave to rely on new documents. At the outset of the hearing, we conferred with the parties as to the grounds of appeal and it was agreed that they are broadly as follows: 1. The Tribunal should not have dispensed with a hearing 2. The Tribunal failed to deal with only the substantive matters in the miscellaneous application 3. The Tribunal failed to draw an adverse inference because the respondent failed to provide statements from relevant individuals employed by Council. 4. The Tribunal misconstrued s 107 of the Government Information (Public Access) Act 2009 (GIPA Act). The appellant also seeks leave to rely on the new evidence in relation to this ground and on the basis that the new evidence demonstrates that the respondent is abusing its obligations under the GIPA Act by relying on s 107 without proper grounds. 5. The Tribunal took into consideration the history of the matters which were irrelevant to the miscellaneous application. 1. We have dealt with each of the grounds raised by the appellant (albeit in a different order, and we find that none of the grounds raise a question of law. We have refused leave in relation to the new evidence and if it were necessary, we would not grant leave to appeal because each of the grounds of appeal has little prospect of success. Background 1. To understand the appellant's grounds of appeal, it is helpful to provide a history of these proceedings and related proceedings in the Tribunal. 2. Mr McEwan and Ms Webb commenced constructing a 'privacy screen' in the backyard of their property in 2011. The Council received a complaint and subsequently required them to submit a development application (DA). The DA was advertised, and objections and other submissions were received. The DA was subsequently refused by the Council. The Council issued an order for partial demolition of the screen. Mr McEwan and Ms Webb subsequently made applications to Council seeking access to the objecting submissions. Council refused Mr McEwan access to four documents on the basis that there was an overriding public interest against disclosure of the information and that access would expose a person to a risk of harm or of serious harassment or serious intimidation. 3. Mr McEwan subsequently made an application to the Tribunal seeking review of the decision refusing access to the documents pursuant to the GIPA Act. On 8 September 2017, the Tribunal made orders affirming the decision of the Council: McEwan v Port Stephens Council [2017] NSWCATAD 269 (the Primary Decision). Those proceedings were allocated file number 2016/00378193 and it is noted that on the 'Notice of Appeal' the appellant listed that as the file number which he is appealing. 4. Ms Webb had also made a series of application to the Tribunal relating to her access applications to Council. 5. Mr McEwan subsequently appealed the Primary Decision and Ms Webb also appealed the decision in relation to her applications. Both appeals were heard together. Both appeals were allowed. In Mr McEwan's appeal, the Appeal Panel set aside the decision of the Tribunal and the matter was remitted to a differently constituted Tribunal for redetermination: McEwan v Port Stephens Council [2018] NSWCATAP 211. 6. In relation to Ms Webb's appeal the Appeal Panel also allowed the appeal in relation to the review, set aside the Tribunals decision and remitted the review application to a differently constituted Tribunal for re-determination: Webb v Port Stephens Council [2018] NSWCATAP 224. 7. The proceedings remitted by the Appeal Panel were subsequently heard together and determined by Tribunal on 27 March 2019. The Tribunal made orders in both proceedings in Webb v Port Stephens Council [2019] NSWCATAD 47 (Remitted Decision) and set aside the Council's initial decision and remitted the decisions back to Council for reconsideration. It is noted that those proceedings dealing with the Remitted Decision were allocated file number 2019/00017318 and that is the file number noted on the reasons for decision for the Revocation Decision. 8. The Tribunal made the following orders in the Remitted Decision: (1) The order made in the hearing that part of the hearing be conducted in private is confirmed (s 49(2) CAT Act). (2) Pursuant to s 64 CAT Act it is ordered that: (a) the publication of evidence given before the Tribunal in private, and of matters contained in confidential documents received in evidence by the Tribunal, and of the transcript of the private hearing; and (b) the disclosure to applicants in the proceedings of confidential evidence given before the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal, and of the transcript of the private hearing be prohibited. (3) In Mr McEwan's matter (File No. 2016/378193) the decision of the respondent Council is set aside and the documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons (4) In Ms Webb's matter (File No.2016/378165) I (a) the decisions of the respondent Council in relation to those documents to which access has been refused, and (b) the decision to refuse to deal with certain documents are set aside and those documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons. (5) In Ms Webb's matter (File No. 2016/378165) the decisions of the agency in relation to the other documents to which partial access has been granted is affirmed. (6) The respondent is directed to write and advise the persons who objected to the release of the information in the documents about this decision, and if aggrieved of their rights to have the decision reviewed. 1. Subsequently, Ms Webb made a series of other applications, including an application for the Tribunal to review the decision made by Council after the Remitted Decision: Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb [2020] NSWCATAD 81 (Webb Decision) That application was dismissed, and a further order was made by the Tribunal that Ms Webb: … was not permitted to make an access application to Port Stephens Council under the provisions of the Government Information (Public Access) Act 2009 whether solely on her own behalf or acting jointly or in concert with any other person without first obtaining the approval of the NSW Civil and Administrative Tribunal. 1. Ms Webb appealed that decision to the Appeal Panel. On 27 July 2020 the Appeal Panel determined the appeals and relevantly found that the Tribunal did not have jurisdiction to review the decision that had been made by Council on remittal after the Remitted Decision had been made. The Appeal Panel did however set aside the Tribunal's decision to make an order restraining Ms Webb from making further access applications: Webb v Port Stephens Council [2020] NSWCATAP 152 (Second Webb Appeal). 2. On 26 May 2020, Mr McEwan filed a further application for administrative review in respect of a decision that had been made by Council in response to an access application that had been made by him pursuant to the GIPA Act on 28 October 2019. Mr McEwan had sought information from the Council concerning the historical and current Secondary Employment Registers and the Pecuniary Interests Register maintained by the Council. The Tribunal made orders varying the Council's decision and required Council to provide some documents, but otherwise affirmed the balance of the Council's decision: McEwan v Port Stephens Council [2021] NSWCATAD 110 (McEwan Second Application). Ground 1 – Dispensing with the Hearing 1. This ground was not initially raised in the notice of appeal as a ground of appeal. However, the appellant submits that he had recently observed another unrelated hearing presided over by the same Senior Member who decided the Revocation Decision. The appellant submits that in that hearing the Senior Member was patient and afforded the parties every possible opportunity to make oral submissions, ask questions, press issues. The Senior Member provided detailed information about the Tribunal, its processes and requirements. The appellant submits that dispensing with the hearing may have been detrimental to his case, particularly as neither himself nor his wife are legally qualified. 2. At the appeal hearing before us we clarified with Ms Webb whether this was being raised as an appeal ground and she confirmed that it was. It is noted that at the hearing the appellant made no further substantive oral submissions in relation to this ground. 3. Sub-section 50(1) of the NCAT Act required a hearing in this type of matter. However, s 50(2) relevantly provides an exception to the requirement for a hearing and allows a hearing to be dispensed with in certain circumstances. A hearing can only be dispensed if the Tribunal has, in accordance with s 50(3): (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. 1. We accept that the denial of an oral hearing may in certain circumstances amount to a denial of procedural fairness and raise a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. 2. The Tribunal's reasons for decision at [7] – [8] of the Revocation Decision, disclose that on 3 March 2022 the Tribunal directed the parties to provide submission in accordance with s 50(3) of the NCAT Act. The parties were advised that the Tribunal may consider the miscellaneous application on the papers and allowed the parties to make a submission about whether they objected or consented to dispensing with a hearing. In the reasons for decision, the Tribunal notes that the appellant sought a hearing of the miscellaneous application and made lengthy submissions in that regard. The Tribunal set out in detail the submissions of both parties in relation to dispensing with the hearing at [9] to [13] of the reason for the decision. The appellant's submission can be summarised as follows: 1. An open hearing was necessary to enable the respondent's Governance Manager, Mr Wickham, to be cross-examined. 2. The applicant would be prejudiced if the respondent were permitted to file statements, affidavits and submissions that were not subject to test "in open session". 3. The Tribunal has jurisdiction to hear the application in an open hearing and the principles of open justice should not be disregarded or given secondary importance. 4. That the conduct of the proceedings in an open hearing "is likely to result in embarrassing and damaging facts being disclosed to the Tribunal" does not justify rejection of an open hearing. 5. The respondent is a "powerful litigant", and the applicant would be greatly disadvantaged "if the hearing was conducted on the papers and the respondent's evidence were not able to be tested". 6. The respondent had previously provided misleading statements and submissions to the Tribunal to influence decision-makers and the Tribunal should require the respondent's evidence to be tested. 7. There is an obligation on the Tribunal to make findings of fact and to form its decisions based on material that is logically probative. That cannot be confidently done by the Tribunal "absentia of the parties but most particularly the applicant". 1. After considering the submissions of both parties, including the appellant's submissions in reply, the Tribunal stated at [17] – [24] of the reasons for decision: 17. Under s 50(2) of the NCAT Act, the Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. 18. The parties have provided extensive written submissions on this issue and the applicant also filed an Affidavit. 19. I have decided to admit the applicant's Affidavit into evidence for the limited purpose of considering the chronology of the GIPA Act dispute between the parties that is set out in the document. 20. However, in my view, the applicant's evidence in support of his allegations of misleading and/or deceptive conduct by the Respondent and/or Mr Wickham are not relevant to the issues that I must determine in relation to the current Application. Accordingly, I reject the tender of the Affidavit to the extent that it contains evidence of that nature. 21. Based upon the information contained in the applicant's Affidavit and the parties' extensive written submissions, I am satisfied that the issues before the Tribunal can be adequately determined on the papers and in the absence of the parties. 22. The guiding principle for the NCAT Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)). The parties have a duty to co-operate with the Tribunal to give effect to the guiding principle (NCAT Act, s 36(3)). I am satisfied that the guiding principle will be satisfied by determining the current application on the papers. 23. The respondent has advised the Tribunal that it does not wish to cross-examine the applicant. In any event, Mr Wickham has not filed any evidence in relation to the current application and I am satisfied that the applicant has no right to cross-examine him with respect to statements and/or evidence that he provided in relation to the prior proceedings as these were finally determined in March 2019. 24. Accordingly, I dispense with a hearing pursuant to s 50(2) of the NCAT Act. 1. The fact that the appellant sought a hearing did not necessarily immediately require the Tribunal to hold one. It was within the Tribunal's discretion to consider and determine whether to dispense with the hearing subject to the requirement of s 50(3) and subject to being satisfied of the requirement in s 50(2). 2. In Danis v Commissioner of Police [2021] NSWCATAP 57 the Appeal Panel dealt with a ground of appeal relation to s 50 and dispensing with a hearing. The Appeal Panel cited the decision of CLD v Children's Guardian [2017] NSWSC 936, in which Adamson J concluded that a decision of the Tribunal to confirm the decision of the Children's Guardian to cancel the applicant's working with children check clearance under the Child Protection (Working with Children) Act 2012 without first complying with s 50 of the NCAT Act was invalid. 3. The Appeal Panel in Danis stated at [47] A decision to dispense with a hearing and determine a matter on the papers under s 50 of the NCAT Act is for the Tribunal, and is not dependent on the consent or otherwise of the parties. The precondition to the making of such an order is first, the obligation imposed by s 50(3) that before an order is made, the parties have an opportunity to make submissions about whether an order dispensing with a hearing should be made, and that any such submissions be taken into account; and secondly, that the Tribunal form a state of satisfaction that "the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal". Section 50 does not require that the parties be informed that an order dispensing with a hearing has been made before the Tribunal proceeds to determine the proceedings, although the Appeal Panel notes that that may be done, depending on the management of the particular proceeding. 1. The Tribunal in the Revocation Decision afforded the parties an opportunity to make submissions about dispensing with a hearing and the reasons for decision demonstrate that the Tribunal took those submissions in consideration. Mr Wickham did not provide a statement and on that basis, there would have been no basis to cross examine him. The issues to be considered in the application for miscellaneous matters were confined to revocation of a non-publication order. The only relevant evidence that was filed in that regard was a statement by the applicant and as the Tribunal identified, the respondent had not sought cross examination of that witness. 2. Sub-section 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections (5) and (6) also embody aspects of procedural fairness. In deciding whether to dispense with a hearing, the Tribunal must in effect weigh up considerations of procedural fairness and the guiding principle of proceedings being just, quick and cheap. 3. The appellant has made brief assertions in his written submission that having the matter decided on the papers may have been detrimental to his case. However, the appellant has failed to demonstrate how dispensing with the hearing has resulted in a denial of procedural fairness or even been detrimental to his case. The Tribunal complied with s 50(3) of the NCAT and gave detailed reasons why it was satisfied under s 50(2) to dispense with the hearing. On that basis, we are not satisfied that this ground raises a question of law. Ground 4 - The Tribunal misconstrued s 107 of the GIPA Act. 1. The appellant submits that the Tribunal misconstrued the meaning and application of s 107 of the GIPA Act 2009. If the Tribunal applies a wrong principle of law, that may raise a question of law: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing). 2. The appellant submits that documents restricted by the non-publication order are restricted pursuant to s 64 of the NCAT Act and are related objecting submissions to the DA No: 483 of 2011. 3. The appellant submits that s 107 may have some bearing in relation to the submissions objecting to the DA, however the appellant states that he was not seeking access to those documents as part of the application for miscellaneous matters. He submits that the application for miscellaneous matters sought the revocation of the non-publication orders imposed under ss 64(1) and 49 of the NCAT Act. Further, the information encompassed by the Tribunal's non-publication orders under ss 64(1) and 49 was not tested to ascertain whether or not there was any public interest against disclosure. 4. In our view the submissions are misconceived, and the ground does not raise a question of law. 5. Section 107 of the GIPA Act relevantly provides that: (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of— (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. 1. The confidentiality orders that had been made by the Tribunal in the substantive proceedings were consistent with the requirements pursuant to s107 of the GIPA Act. Proceedings would be rendered futile if the Tribunal, during proceedings, disclosed the documents that an applicant was seeking to access. None of the proceedings made orders which allowed the release of the documents and even the Remitted Decision only made orders for the decision of the Council to be set aside and the documents be redacted by Council in accordance with the reasons. The Tribunal did not misconstrue s107 of the GIPA Act in its overall consideration of the Revocation Decision. 2. Moreover, as we stated at the outset of these reasons, the application for miscellaneous matters was not a stand-alone application. Section 64 relates to restrictions and non-publication orders regarding proceedings in the Tribunal. Subsection 64(3) relates to revocation of non-publication orders. Section 64(3) could not have operated in the absence of the orders that were made by the Tribunal in the Remitted Decision in March 2019 and is part of the issue of the administrative review of the proceedings. Ground 2 and Ground 5 – failed to deal with only the substantive matters in the miscellaneous application and took into consideration irrelevant matters. 1. These grounds raised by the appellant can be conveniently dealt with together. 2. Ground 2 alleges that the Tribunal failed to deal with only the substantive matters in the application for miscellaneous matters. If the Tribunal identified a wrong issue or asked the wrong question that could raise a question of law: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. 3. Grounds 5 of the appellants appeal is that the Tribunal took into account irrelevant considerations in its determination. If that was the case, that may also raise a question of law: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J at 40. 4. The application for miscellaneous matters filed with the Tribunal by Mr McEwan on 21 February 2022 sought the following order: NCAT Act 2013, Section 64 (3) Revoke Order made pursuant to sub-section (1) 1. Under the grounds for the application, it is stated: Matter of public interest. Respondent breached NCAT Act 2013, section 71. 1. The application for miscellaneous matter also included a copy of the orders that had been made by the Tribunal in the Remitted Decision on 27 March 2019. Ms Webb agreed at the appeal hearing before us that it was those orders which had been attached to the application for miscellaneous matters. 2. In the written submissions to the Appeal Panel the appellant referred to paragraphs 4 and 5 of his affidavit dated 11 March 2022. That affidavit had been filed with the Tribunal in relation to the miscellaneous application. The appellant stated: "4. This matter concerns the Not-for-Publication Orders issued by Senior Member Montgomery of the NCAT dated September 2017, Orders which were upheld in the following Appeal Hearing and Remittal. 5. This Miscellaneous Application concerns the Tribunal's power to revoke those orders and this application is the formal request the Tribunal do so completely and in full." 1. As best we have understood it, the appellant implies that the Tribunal incorrectly dealt with the non-publication orders that were subsequently made on 27 March 2019. That is presumably also the reason that the appellant had noted file number 2016/00378193 as the decision they are appealing on the 'Notice of Appeal'. Having considered the issue, we find that the appellants submission on this point is misconceived. 2. The reasons for the Revocation Decision set out at [3] make it clear that the Tribunal was dealing with the miscellaneous application seeking revocation of the "non-publication orders made on 27 March 2019" 3. While the appellant's affidavit referred to the orders made in the primary proceedings in September 2017, the orders that were attached to the application for miscellaneous matters were the orders of 27 March 2019. At paragraph 246 of the affidavit, the appellant stated: The Tribunal has the power to revoke an order. I ask with all sincerity that the Orders for Not for Publication be revoked in their entirety as a matter of public interest. 1. The orders made in the Primary Decision in September 2017 had restricted publication of material filed by the respondents, certain paragraphs of the reasons for decision and the evidence given in private before the Tribunal. In the McEwan Appeal, which was the appeal of the Primary Decision, the Appeal Panel also ordered those parts of the reasons for the Primary Decision that were marked "not for publication" not to be released or otherwise published to anyone other than the respondent without further order of the Appeal Panel. 2. At [33] – [34] of the Remitted Decision the Tribunal stated: The applicant objected to the holding of a confidential hearing which excluded them and the receipt of confidential evidence. Although open justice is an ideal to be striven for it is not always possible, and the Tribunal is able to hold confidential hearings and receive confidential evidence and make orders regarding confidentiality (ss 49 and 64 CAT Act). 1. It can be inferred that the orders made on 27 March 2019 in the Remitted Decision were in effect, extensions of the confidential orders that had been made in the Primary Decision and the McEwan Appeal and were consistent with the requirement under s107 of the GIPA Act so as not to disclose the very information for which an administrative review for access is being sought. 2. At [25] - [27] of the reasons for the Revocation Decision the Tribunal set out the following: It is apparent from the chronology set out in the applicant's Affidavit sworn 11 March 2022, the parties' written submissions and the numerous published decisions of this Tribunal, that the GIPA Act dispute between the parties has a lengthy history. There have been determinations by Senior Member Montgomery, which was appealed against and the Appeal Panel remitted the matter for redetermination. On 27 March 2019, Senior Member Hamilton SC finally determined the GIPA Act dispute and made the non-publication orders based upon the evidence that was before the Tribunal at that time. The applicant now seeks revocation of those non-publication orders and argues to the effect that the respondent's later disclosure of further information under the GIPA Act essentially supports findings to the effect that: (a) the information and evidence that it presented to the Tribunal, upon which the non-publication orders were based, was misleading; and (b) the "information" that was the subject of the non-publication orders was not confidential in nature. 1. From those statements it is apparent that the Tribunal understood the history of the matter and the nature of the non-publication orders that had been made and the revocation order that the appellant was seeking. We are satisfied, from the reasons for the decision, that the Tribunal understood the appellant was making an application for revocation of the non-publication orders that were made in the Remitted Decision and understood the historical context of those proceedings and we do not find that the Tribunal misunderstood the issue that it was required to consider. 2. The appellant submits that the Tribunal's reasons for the Revocation Decision referred to 'administrative review' a total of 22 times and that the Tribunal misunderstood the proceedings that were before it. The appellant submits that was an error in law because the application for miscellaneous matters sought revocation of orders for non-publication and did not seek any administrative review. The appellant further submits that the miscellaneous application did not seek access to any documents the subject of any administrative review proceedings before the Tribunal in any of the previous decisions. The appellant states that the miscellaneous application seeking the revocation of the non-publication orders did not in any way relate to any historic or current applications for administrative review. 3. The Tribunal found at [38] of the reasons for the Revocation Decision that the applicant was seeking to overcome the Tribunal's lack of jurisdiction to administratively review the respondent's decision that was made after it was remitted, by seeking access to information that was withheld by reason of the non-publication orders. That was a finding open to the Tribunal to make based on the submissions and evidence that was before the Tribunal. The Tribunal exercised the discretion against allowing the revocation for the reasons contained at [55]: - While s 64(4) of the NCAT Act permits the current application to be made, I am satisfied that it is misconceived and lacking in merit for the following reasons: (1) The GIPA Act dispute between the parties was finally determined in March 2019 and the Tribunal made non-disclosure orders under s 64(1) of the NCAT Act based on the evidence then before it. (2) Ms Webb then applied for administrative review of the respondent's post-remittal decision and Principal Member Marks dismissed that application on the basis that the Tribunal had no jurisdiction to determine that application. (3) Ms Webb appealed against Principal Member Marks' determination regarding jurisdiction and the Appeal Panel dismissed the appeal and held that the Tribunal lacked jurisdiction to determine the further application for administrative review. (3) The case law establishes that if the applicant remains aggrieved by the respondent's post-remittal decision, which certainly appears to be the case given the nature of his evidence and submissions in the current application, he must restart the GIPA Act process. In other words, he must file a further access application with the respondent under the GIPA Act. (4) The relief sought under s 64(4) of the NCAT Act is discretionary, but the NCAT Act provides no guidance as to how that discretion should be exercised. Based on the decision of Hennessy DP in BRJ the Tribunal must consider whether the circumstances are sufficient for the exercise of the discretion. (6) The applicant has expressly stated that the purpose of this application is not to seek an administrative review of the final determination of the GIPA Act dispute by the Tribunal in March 2019. However, he asks the Tribunal to revoke the non-publication orders because he considers that the respondent's post-remittal decision to disclose further information supports findings that the respondent (and Mr Wickham in particular) misled the Tribunal and that the confidential information protected by the non-publication orders is not confidential information. (7) I am satisfied that this Tribunal does not have power to reconsider any evidence that was before the Tribunal when the GIPA Act dispute was finally determined in March 2019. This means, that I am do not have power to consider whether the information that was the subject of the non-publication orders is confidential information and/or whether s 107 of the GIPA Act would be breached by the revocation of the non-publication orders. (8) As the applicant's current grievances can clearly be addressed by the exercise of existing rights conferred upon him under the GIPA Act, I am not satisfied that he has established any extraordinary or exceptional circumstances for the Tribunal to revoke the non-publication orders. 1. The appellant submits that the Tribunal's consideration of the Second Webb Appeal in the reasons for the Revocation Decision was irrelevant to any determination of the application for miscellaneous matters. The appellant states that the Appeal Panel in the Second Webb Appeal was concerned with administrative review which was irrelevant to a consideration of the miscellaneous application. The appellant also makes submissions that the Webb Decision dealt with the dismissal of a contempt application, administrative review applications, and orders restraining Ms Webb making further access applications and that the decision was irrelevant to the miscellaneous application. The appellant submits that the Presiding Member in the Webb Decision: …was proven biased and as such he has been completed [sic] discredited, and the Tribunal ought to be embarrassed by his decision which has single-handedly and irreparably eroded the public's confidence in NCAT. 1. The Tribunal did set out extracts in the reasons for the Revocation Decision from the Second Webb Appeal. The extract provides context of the history of the proceedings and the fact that the Appeal Panel had previously found that the decision that had been made by Council after the Remitted Decision, was a final decision and not a review of an access application. On that basis, the Appeal Panel in the Second Webb Appeal found that the Tribunal lacked jurisdiction to determine further review of that decision. We are satisfied that the decision in the Second Webb Appeal was relevant to the overall determination of the Revocation Decision. The appellant was seeking to overcome s 107 of the GIPA Act and the Tribunal's lack of jurisdiction to administratively review the respondent's decision that was made after it was remitted. 2. At paragraphs 242 and 243 of the affidavits which had been provided by the appellant in the application for miscellaneous matters, the appellant had stated in relation to the Second McEwan Application: I now know, as does the Tribunal, Council's claims that I posed some kind of risk of harm to members of the public was deliberately fabricated. It has taken me several years to clear my name, with due thanks to Senior Member Gracie for his valued perception and solicitor Carlo Zoppo for providing Council's false and misleading letter, that I am now asking the Tribunal to open the records on this case. 1. The appellant was seeking the revocation of the non-publication order based on findings that had been made in the Second McEwan Application. The appellant was asserting that the decision in the Second McEwan Application supported his allegation that the respondent and Mr Wickham misled the Tribunal. We find that the Tribunal's reference to the Second McEwan Application was also relevant because the appellant himself was seeking to rely on findings that were made in that decision as a basis for revoking the non-publication orders. 2. In our view, the Tribunal identified the correct issues for determination, understood the nature of the application for miscellaneous matters and properly considered whether to revoke the non-publication orders made. The matters the Tribunal considered were relevant. The reference to the related proceedings and the history and context of the application do not amount to irrelevant matters which the Tribunal should not have considered. On that basis, neither ground 2 nor ground 5 raise questions of law. Ground 3 - Failure of the Tribunal to draw an adverse inference. 1. The appellant submits that the respondent did not provide relevant statements, affidavits or evidence in the proceedings and on that basis the Tribunal should have drawn an adverse inference against the respondent. The appellant submits that the respondent did not observe its duty to cooperate with the Tribunal in accordance with s 36 (3) (a) of the NCAT Act. 2. In our view, this ground is misconceived and does not disclose a question of law. The circumstances and issues raised by the application for miscellaneous application did not require the Tribunal to draw an adverse inference in relation to Council to make its decision and the appellant does not identify what evidence should have been adduced and how a different decision would most likely have resulted. 3. In our view this ground does not raise a question of law. New Evidence 1. The appellant is seeking leave to rely on new evidence. That evidence comprised two documents The first time those documents were provided by the appellant in the appeal was as part of the submissions in reply. Leave to rely on the new evidence was not raised in the initial grounds of appeal. 2. The first document is a GIPA application that was made by Ms Webb to Council in June 2018 and a decision related to that application dated 19 July 2022. The second document was a Notice of Council's Decision dated 29 June 2022, in relation to an access application which had been made by Ms Webb on 1 June 2022. 3. Ms Webb explained in oral submissions that the new documents demonstrate that the Council is misusing the privilege for confidentiality under s 107 of the GIPA Act. She submits that is because the documents disclose that an employee abused his position by taking Council records and using them for his own purpose and the 29 June 2022 decision of Council confirms that Council had not sought consent to use the subject information. It was also submitted that the second document shows that there were no documents in the possession of Council that corroborated its assertions that third parties had been consulted and refused their consent to the disclosure of their objections made to council for fear of their 'well-being'. 4. This was not a matter raised before the Tribunal in the application for miscellaneous matters. Having considered the appellants submissions on this point we are not of the view that the documents would have materially affected the decision in relation to the application for miscellaneous matters that was before the Tribunal. As stated previously, the application was for the revocation of non-publication orders and not for review in relation to access to information that was withheld by reason of the non-publication orders. We would not allow leave for the new evidence to be considered. Leave to Appeal 1. As stated previously, if it had been necessary to consider leave to appeal on the basis that the decision was an interlocutory decision, we would decline leave to appeal. 2. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel at [84] summarised the general principles in deciding whether to grant leave to appeal: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. Having considered the grounds of appeal raised by the appellant, we are not satisfied that any of the grounds warrant leave to appeal. The grounds, as considered, lack merit and do not involve issues of principle or public importance. Costs 1. The respondent foreshadowed that it would be seeking its costs if the appeal was unsuccessful. The appellant has provided submissions in that regard. At the conclusion of the hearing of the appeal hearing we explained to the parties that we would make provision for directions in the event the costs application was being pressed. Orders 1. Accordingly, we make the following orders: 1. Leave to Appeal is refused. 2. The Appeal is dismissed. 3. If the respondent seeks to press the costs of this appeal: 1. The respondent must provide to the Appeal Panel and the appellant any written submissions and documents, which the respondent intends to rely on in relation to the costs application within 7 days from the date of these orders. 2. The appellant is to provide to the Appeal Panel and the respondent any written submissions and documents, which the appellant intends to rely on in relation to the costs application within 14 days from the date of these orders. 3. The respondent is to provide to the Appeal Panel and the appellant any further any written submissions and documents, which the appellant intends to rely on in reply within 21 days from the date of these orders. 4. Submissions must include submissions concerning whether an order should be made under s 50(2) of the Civil and Administrative Tribunal Act, 2013 dispensing with a hearing ********** 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: 14 September 2022