Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wojciechowska v Commissioner of Police, NSW Police Force [2023] NSWCATAP 34 Hearing dates: 17 December 2021 Date of orders: 07 February 2023 Decision date: 07 February 2023 Jurisdiction: Appeal Panel Before: T Simon, Principal Member J Lucy, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the material filed by the respondent on a confidential basis is prohibited. (4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the material filed by the respondent on a confidential basis, to the appellant is prohibited. (5) If the respondent seeks to make a costs application: (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: APPEALS — question of law - administrative review — Government Information — denial of procedural fairness — actual and apprehended bias — whether Tribunal has jurisdiction to determine an application under the Government Information (Public Access) Act 2009 — transfer of proceedings to the Supreme Court — confidentiality orders - reversal of onus — application of s 105 of the Government Information (Public Access) Act 2009 (NSW) — no evidence Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Constitution (Cth) Criminal Procedure Act 1986 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: AON Risk Insurance Pty Ltd v Australian National University (2009) 239 CLR 175 Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Johnson v Johnson (2000) 201 CLR 488 Sunol v Collier (2012) 91 NSWLR 619 Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 Wojciechowska v Commissioner of Police (No 2) [2021] NSWCATAP 311 Texts Cited: None Category: Principal judgment Parties: Paulina Wojciechowska – (Appellant) Commissioner of Police (Respondent) Representation: Appellant (Self-represented) Crown Solicitor (Respondent) File Number(s): 2021/00231441 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to the material filed by the respondent on a confidential basis. That material is not to be released to either the applicant or the public. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 210 Date of Decision: 19 April 2021 Before: D Dinnen, Senior Member File Number(s): 2020/00333837 Reasons for Decision 1. This is an appeal from decisions of the Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal (NCAT), made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). 2. At the hearing, the appellant made an application that Principal Member Simon disqualify herself from presiding in the appeal proceedings. That application was refused, and parties were advised that reasons would be provided for that decision with the final decision. The reasons are provided by Principal Member Simon at the end of these reasons. Material before the Appeal Panel 1. We received the following submissions and documents relating to the appeal from the parties: 1. The Notice of Appeal filed on 13 August 2021 2. A Reply to the Appeal filed on 30 August 2021 3. Submissions of the respondent on the interim application filed 5 October 2021 4. The appellant's miscellaneous application and documents, marked PW1, filed on 7 October 2021 5. A bundle of documents marked PW2, filed by the appellant on 4 November 2021 6. A transcript of the primary proceedings, filed by the appellant on 8 November 2021 7. Submissions and documents filed by the respondent on 10 December 2021 8. Documents marked PW3 and a DVD copy of the sound recording of the filed by the appellant on 16 December 2021. 9. Two attachments sent by email from the appellant on 17 December 2021. The first includes documents referred to as PW4 including material relating to the application for disqualification. The second document is titled "Orders asked by the Appellant". 10. The respondent sought leave to provide a further confidential document which was before the Tribunal the primary proceedings, relating to Sergeant Mills which was omitted from the confidential bundle provided on appeal. The respondent noted that they would provide the omitted document after the appeal hearing. The document was not provided to the Appeal Panel as part of the confidential documents after the appeal hearing. 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 provided by the Tribunal on 19 April 2021 (in relation to miscellaneous matters) and the reasons for the decision of 16 July 2021 and a copy of the application that was made by the appellant to the Tribunal on 24 November 2020. Background 1. On 5 June 2020 the appellant applied to the NSW Police Force for access to certain information under the GIPA Act. 2. On 6 July 2020 an authorised officer of the respondent decided: Pursuant to s. 58(1)(b) of the GIPA Act that the information sought at Pts 1–3 of the Access Application was not held by the NSWPF; and Pursuant to s. 58(1)(a) of the GIPA Act to provide access to the information sought at Pt 4 of the Access Application. 1. On 29 July 2020 the respondent made a supplementary decision in relation to the appellant's access application which provided: Pursuant to s. 58(1)(a) and (3) of the GIPA Act to provide access to additional information found in response to Pt 4 of the Access Application. 1. On 31 August 2020, the appellant applied to the Information Commissioner for review of the respondent's decisions of 6 July 2020 and 29 July 2020, pursuant to s 89 of the GIPA Act. By report dated 11 November 2020 (IPC Report), the Information Commissioner concluded that the respondent's decisions were justified. 2. By application to NCAT, dated 24 November 2020 the appellant sought administrative review, under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), of the respondent's decisions of 6 July 2020 and 29 July 2020. 3. On 19 April 2021, the Tribunal made orders dismissing miscellaneous applications made by the appellant on the basis that NCAT had jurisdiction to hear and determine the application for review and making orders prohibiting the publication and disclosure of certain material in the proceedings (confidentiality orders). Those confidentiality orders were as follows 1 Pursuant to s 64(1)(c) of the CAT Act, until further order, the publication of matters contained in the documents marked Exhibit CR-3 is prohibited; and 2 Pursuant to s 64(1)(d) of the CAT Act, until further order, the disclosure to the Applicant of the contents of the document marked Exhibit CR-3 is prohibited. 1. On 16 July 2021, the Tribunal made orders affirming the respondent's reviewable decision. 2. We note that in the material provided by the appellant marked PWI she has included an email from the Registry (annexure "F"), dated 9 September 2021, attaching a written statement of reasons for the decision made on 19 April 2021, regarding the confidentiality orders. The orders and decision date are listed as being made 9 September 2021 and the hearing date is noted as 19 April 2021. In a subsequent email from the Registry sent 24 September 2021, also included by the appellant in PWI (annexure "L"), the Registry sent the same reasons, however the date of hearing, orders and decision are all noted on the coversheet as being 19 April 2021. The text of the orders and reasons in both sets of documents sent on 9 September 2021 and 24 September 2021, are the same, it is only the dates on the coversheet that differ. 3. The appellant alleges various matters in that regard, but we infer that the change on the coversheet is to properly reflect when the orders and decisions were made, that is on 19 April 2021. At the outset of the reasons for decision relating to the confidentiality orders, the Tribunal explained: In my reasons for decision dated 16 July 2021, published as Wojciechowska v Commissioner of Police [2021] NSWCATAD 210 ("the substantive decision") I neglected to provide reasons for the confidentiality orders made at the hearing on 19 April 2021, and these have been requested by the applicant. 1. It is clear from that paragraph, that the reasons for the confidentiality order were provided after the orders were made on 19 April 2021 and after publication of the substantive decision and reasons on 16 July 2021. We have dealt with the allegations raised by the appellant in more details at [35] – [40] of our reasons below. Transfer Application and Stay 1. At the appeal hearing before us the appellant made an application for a stay of the appeal proceedings and transfer of the appeal to the Supreme Court. At the hearing we made orders refusing to transfer the matter or stay the proceedings and told the parties that we would provide reasons for that decision with our reasons for the substantive appeal. 2. The appellant sought we make the following orders: 1. Pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the question of whether the Tribunal exercises judicial or executive power when conducting the review pursuant to GIPA Act is referred to the Supreme Court of New South Wales. 2. The proceedings are stayed pending the determination of the issue by the Supreme Court of New South Wales. 1. The appellant submits that it is appropriate for us to exercise the discretion under s 54 of the NCAT Act because it is consistent with the objects of the Tribunal set out in s 3 of the NCAT Act and the guiding principle of the Tribunal provided in s 36 of the NCAT Act for a just, quick and cheap resolution of the issues. The appellant also relies on AON Risk Insurance Pty Ltd v Australian National University (2009) 239 CLR 175. 2. Section 54 of the NCAT Act allows the Appeal Panel to refer a question of law to the Supreme Court for the opinion of the Court and relevantly provides: (2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred. (3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so. (4) If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not— (a) to give a decision in the proceedings to which the question is relevant while the reference is pending, or (b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question. 1. In Sunol v Collier (2012) 91 NSWLR 619, the Court of Appeal (Bathurst CJ, Allsop P and Basten JA) determined that the Administrative Decisions Tribunal did not have the power to refer constitutional questions to the Supreme Court from proceedings in that Tribunal, which were conducted under a provision and in a statutory context that is materially identical to s 54 of the NCAT Act. Having referred to Sunol v Collier, Leeming JA observed in Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1 (Gatsby), at 61 [282], that NCAT may not refer to the Supreme Court, pursuant to s 54 of the NCAT Act, the question of whether it is a court of a State and whether it is exercising judicial power. 2. On that basis, we are of the view that the appeal proceedings cannot be referred to the Supreme Court in relation to the question of law raised by the appellant. 3. However, even if we are wrong in that regard, we would still refuse to ask for the President's consent to refer the question of law to the Supreme Court. In circumstances where the same jurisdictional issue has been raised many times in other proceedings, and where, in our view, the law is clear, we consider that we should give effect to the guiding principle found in s 36 of the NCAT Act and proceed to determine the appeal. The functions assigned to the Appeal Panel and the powers given to it under the NCAT Act expressly authorise us to deal with issues such as those in the present appeal. 4. In the application for transfer and stay of the appeal proceedings the appellant also sought the following orders from the proper body that has jurisdiction to determine her application: 1. All orders listed in the 'Notice of Listing' 2. Declaration of invalidity of any purported confidentiality/non-disclosure orders. 3. Removal of any confidentiality/non-disclosure orders (if any are in place) The appellant refutes that there are any valid confidentiality/non-disclosure ordered presently in place or that the Tribunal has any power to make the confidentiality or no-disclosure order in the circumstances of these proceedings 1. Refusal to accept any "confidential" filings from the respondent 2. Refusal of the respondent's request for any non-disclosure/confidentiality orders, including but not limited to those requested pursuant to s 64 of the NCAT Act. 3. Order that the Registrar of body properly seized of the jurisdiction in this matter: * seeks permission of the Director of Public Prosecutions (if necessary) to commence prosecution of Senior Member Dinnen pursuant to ss 116, 120 and 128 of the GIPA Act and ss 14 and 49 of the Criminal Procedure Act 1986 (NSW); and * commences prosecution of Senior Member Dinnen pursuant to ss 116, 120 and 128 of the GIPA Act and ss 14 and 49 of the Criminal Procedure Act 1986 (NSW). 1. The request for those orders, in our view does not necessitate or justify a transfer or stay of the appeal proceedings. 2. In so far as the issue of jurisdiction is challenged by the appellant in relation to the appeal before us, for the reasons expressed starting at [30] below, we are of the view that NCAT did have jurisdiction to determine the application for review and we can also proceed to determine the appeal. 3. In relation to the orders sought against the Senior Member who determined the primary proceedings, that does not form part of this appeal and we have no power to make the orders as sought. We have dealt with the grounds of appeal raised by the appellant in relation to the confidentiality orders in further detail below. The Appeal 1. Each of the decisions the subject of this appeal is an internally appealable decision, and this appeal can be made as a right on any question of law, or with the leave of the Appeal Panel on any other grounds: see, s 80(1) and (2)(b) of the NCAT Act. 2. The Notice of Appeal is stamped as received on 13 August 2021 and was lodged within time. 3. The appellant is self-represented. In those circumstances we will follow 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. The appellant set out 35 purported grounds of appeal in her Notice of Appeal. The appellant agreed at the hearing that many of the appeal grounds are repetitive. The appellant did not provide detailed written submissions in relation to each of the grounds, rather she elaborated on the grounds in oral submissions at the appeal hearing. The appellant asserts that her grounds raise questions of law and in addition, she seeks leave to appeal if necessary. We have not addressed each of the 35 grounds individually, rather, doing our best to understand the grounds of appeal, we have reframed the issues raised by the appellant as best as we could understand them and have dealt with each of those in turn. Jurisdiction 1. In the primary proceedings the appellant challenged NCAT's jurisdiction to determine the review proceedings on the basis she was resident in Tasmania. The Tribunal's determination that it did have jurisdiction to conduct the administrative review is challenged as part of the grounds in this appeal. We accept that this issue raises a question of law and that the appellant does not need leave to appeal on this ground. 2. As mentioned above, the appellant has also raised the same challenge to jurisdiction in other NCAT proceedings. At [26] – [30] of the reasons for the decision in the primary proceedings, the Tribunal stated. 26. Similar issues of jurisdiction were considered by the Tribunal in Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310 at [11] to [19] in relation to a costs application against the Applicant. As discussed therein: [13] An administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) by the Administrative and Equal Opportunity Division of NCAT, of a reviewable decision made by a New South Wales administrator under the GIPA Act, is not an exercise of judicial power. Section 63 of the ADR Act provides that: (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. This does not involve an exercise an exercise of judicial power: see Drake v Minister for Immigration and Ethnic Affairs (1979) 40 FLR409, at 419 per Bowen CJ and Deane J. Rather, the Tribunal sits in the shoes of the relevant administrator and makes the administrative decision afresh. [18] When the Tribunal is exercising its administrative review jurisdiction, it not exercising judicial power or federal jurisdiction. … [19] This is to be contrasted with the Tribunal's exercise of its jurisdiction to determine rights between parties, such as complaints under the Anti Discrimination Act 1977 (NSW) between parties who are residents of different states, or between residents of different states under the Fair Trading Act 1997 (NSW) or the Residential Tenancies Act 2010 (NSW): see for example Burns v Corbett [2018] HCA 15 and Raschke v Firinauskas [2018] SACAT 19. Cases like these are examples of what are now Federal Proceedings within the meaning of Part 3A of the CAT Act: see Gaynor v Attorney General of New South Wales [2020] NSWCA 48. The Tribunal does not have jurisdiction to hear them: they must be heard by a Court of New South Wales capable of exercising federal jurisdiction. 27. In EFB v Commissioner of Police, NSW Police Force [2021] NSWCATAD 55 the Tribunal considered an application in similar terms to those in these proceedings, in the context of a review application relating to a complaint under s 53 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). The Tribunal provided detailed reasons at [27] to [42] why, in conducting a review under the PPIP Act, it was exercising administrative power rather than judicial power. Those reasons are also applicable to these proceedings, with reference to a review under the GIPA Act. 28. In determining an application for administrative review of a decision made by an agency under the GIPA Act, the Tribunal exercises administrative power under s 63 of the ADR Act. It is not judicial power, for reasons including the following, with reference to the questions raised in Luton v Lessels [2002] HCA 13 (Luton) at [188] – [189]: (1) The exercise to be undertaken under the relevant scheme, being Pt 5, Div. 4 of the GIPA Act, does not call for "independence and tenure of a kind traditionally enjoyed by judges". Whilst independent, Tribunal members do not have tenure, and even the President of the Tribunal, who is a Judge, is subject to a term appointment. The Tribunal member conducting the review is essentially doing the same task as the administrator who made the reviewable decision. (2) An exercise of administrative power can involve a limited amount of fact finding and the application of law to those facts: Luton at [21], [66], [76]. Findings of fact and formation of opinions as to the application of law may be elements in the exercise of administrative power: Paphos Providores Pty Ltd v Ladha (2015) 91 NSWLR 400 at [41]: Precision Data Holdings Ltd v Wills (1991) 173 CLR at 189; Attorney General (Cth) v Breckler [1999] HCA 28 at [24]. While the Tribunal's functions under s 63 of the ADR Act may include a consideration and determination of relevant factual material and the applicable law, the Tribunal must give effect to any relevant policy in force (except if it is contrary to law or produces an unjust decision in the circumstances): ADR Act s 64(1). An "important element" of judicial power is "the application of a pre-existing standard rather than by the formulation of policy or the exercise of the administrative discretion": Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 at [268]. (3) The scope of the Tribunal's function is limited to considering the reviewable decision, determining what the "correct and preferable decision" is on the material before it. Rather than finally and conclusively determining existing rights and obligations as between parties, in deciding a review application under Pt 5, Div. 4 of the GIPA Act, the Tribunal may either affirm, vary, or set aside the reviewable decision. It does not have the power to making a binding determination of a breach or contravention of the law in determining the administratively reviewable decision before it. Its decision is made relying on a balancing exercise conducted with reference to well-established criteria: see Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [24]–[25]; Williams v Department Industry and Investment (NSW) [2012] NSWADT 192 at [22]; Webb v Port Stephens Council [2017] NSWCATAD 348, at [13]. (4) Section 80 of the CAT Act provides an avenue of internal appeal against a first instance administrative review decision, which may be made not only on a question of law, which would be characteristic of a judicial decision, but, with leave, the decision may be appealed without any legal error (CAT Act s 80(2)(b)). (5) An administrative review decision under the GIPA Act is not binding and authoritative in the relevant sense because it is not final, with s 65 of the ADR Act providing that the Tribunal may remit an administratively reviewable decision to the administrator who made the decision for reconsideration at any stage of the review proceedings. (6) There is no suggestion by the legislature that the Tribunal is exercising a judicial power in determining an administrative review application under Pt 5, Div. 4 of the GIPA Act. The Second Reading Speech of the Civil and Administrative Tribunal Bill 2012 notes that tribunals "allow ordinary individuals to resolve disputes, or to have a review or executive action in a less formal setting than a courtroom": NSW Legislative Assembly Parliamentary Debates (Hansard), 21 February 2013 at 17866. (7) The Tribunal is not bound by the rules of evidence, and its procedures are informal: CAT Act s 38. Its process in undertaking a review under the relevant provisions of the GIPA Act has not been traditionally undertaken by the courts. (8) Proceedings for an offence under the CAT Act or a contravention of a civil penalty provision under s 77 of the CAT Act may only be commenced by the Minister or a person with the written consent of the Minister (CAT Act s 75). A limited enforcement jurisdiction is conferred on the Tribunal (see CAT Act s 28(2)(d)), which consists of dealing with contempt of the Tribunal, and applications under s 77 for the contravention of a civil penalty provision of the CAT Act (s 33). The Tribunal has a limited power to punish for contempt committed in the face of the Tribunal or in a hearing of the Tribunal (CAT Act s 73(1)) or may refer any contempt of it to the Supreme Court (CAT Act s 73(5)). These limited prosecution provisions under the CAT Act may be contrasted with, for example, the common informer principle established by the Criminal Procedure Act 1986 (NSW), which provides at s 14 that "a prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons". 29. Not all the factors discussed above with reference to the test in Luton carry the same weight. Significant indicators that the Tribunal's powers are not judicial when reviewing applications under the GIPA Act include the fact that the Tribunal is required to give effect to any government policy in force, and to determine the "correct and preferable decision", neither of which are required of a Court. 30. The Tribunal was satisfied that it had jurisdiction to hear and determine the application for review and reiterated that matter to the Applicant at the hearing. The Tribunal therefore refused the Applicant's request for a stay or adjournment on the basis that it had determined the issue of jurisdiction in relation to these proceedings, and dismissed the Applicant's Applications for Miscellaneous Matters. 1. It should also be noted that the Appeal Panel dealt with a similar application in relation to jurisdiction made by the appellant in Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 at [3] – [17] and Wojciechowska v Commissioner of Police (No 2) [2021] NSWCATAP 311 at [27] – [59]. In those appeals, the relevant appeal panels found that NCAT does have jurisdiction. It has always been open to the appellant to further appeal those decisions if she considered that the decisions involved error. 2. We accept as correct the reasoning of those decisions and the decision of the Tribunal in the primary proceedings. The appellant has not persuaded us that that reasoning is incorrect. 3. Section 30 of the NCAT Act states that the ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the ADR Act, the Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to NCAT for an administrative review under the ADR Act. In reviewing the administratively reviewable decision, NCAT "is to decide what the correct and preferable decision is having regard to the material then before it": ADR Act, s 63(2). As the Appeal Panel stated in Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 at [10] – [17] 10. As NCAT is not a "court of a State" within the meaning of that term in s 77(iii) of the Constitution, it does not have authority to decide matters within federal jurisdiction: Burns v Corbett [2018] HCA 15 at [39]. The question for us is whether the Tribunal is exercising State judicial power when determining an application for review under the GIPA Act. If it is, it does not have the authority to do so when the proceedings are between a State and a resident of a different State. 11. At [21] of Burns v Corbett, the High Court (Kiefel CJ, Bell and Keane JJ) set out the nature of judicial power, which was referred to as "adjudicative authority": (footnotes deleted) It is convenient to note here that the term "jurisdiction", as it is used in the context of Ch III, is concerned with the exercise of adjudicative authority for the purpose of "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion". That function is the characteristic function of the courts, albeit that, under the constitutions of the States, adjudicative authority may be vested in organs other than those recognised as courts within Ch III of the Constitution. 12. Kiefel CJ, Bell and Keane JJ noted at [27], that the parties had agreed that when deciding proceedings under the Anti-Discrimination Act, the Tribunal was exercising State judicial power. That was the case for several reasons including the nature of the available remedies and the enforceability of those remedies. Their honours referred to the following reasons for that finding given by the Court of Appeal at [30] (Burns v Corbett (2017) 316 FLR 448 (Leeming JA, with Bathurst CJ and Beazley P agreeing)): All parties agreed that NCAT, in hearing and determining Mr Burns' complaints, was exercising judicial power. They were correct to do so. NCAT was determining whether there had been a contravention of the Anti-Discrimination Act, and, if so, whether a remedy should issue (which could include damages, an injunction, or an apology). If NCAT made such an order, Mr Burns could unilaterally obtain a certificate from NCAT's registrar which, when registered in a court, then "operates as a judgment of the Court": Civil and Administrative Tribunal Act, s 78 (monetary orders); Anti-Discrimination Act s 114 (non-monetary orders). In that way, Mr Burns would be able to obtain a binding, authoritative and curially enforceable judgment independently of the consent of the person against whom his complaint had been brought. Indeed, the pending prosecution of Ms Corbett for contempt starkly illustrates the enforceability of such orders. 13. The Victorian Civil and Administrative Tribunal (VCAT) has considered whether that Tribunal was exercising judicial power when reviewing a decision to grant a permit under s 77 of the Planning and Environment Act 1987 (Vic). In Barnsley v Darebin City Council [2021] VCAT 104, Quigley J held that the exercise of power under that provision is an exercise of administrative power, not judicial power. Her honour quoted the following principle from PJB v Melbourne Heath (2011) 39 VR 373 at [124] (Patrick's case): it is a judicial function to make binding determinations of existing legal right, while it is an administrative function to exercise discretionary authority to make orders creating new rights and obligations, especially on the basis of policy considerations 14. That principle was derived, in part, from the requirement that for there to be a "matter", there must be an "immediate right, duty or liability to be established by the determination of the Court": Palmer v Ayres [2017] HCA 5 at [27] citing In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. Applying that principle, Quigley J concluded at [43], that: The grant of a planning permit pursuant to the provisions of the P&E Act is not an adjudication on an existing right, liability or duty. It is the exercise of administrative power. The review of the responsible authority's decision by the Tribunal pursuant to the provisions of the P&E Act and the VCAT Act is a review of the initial administrative decision in which the Tribunal stands in the shoes of the original decision-maker. The decision of the Tribunal in the grant of a permit creates a new right. It does not determine existing rights. The power exercised by the Tribunal fits squarely within such a definition of an exercise of administrative power. 15. NCAT has also considered a similar issue in relation to the review of conduct under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW). In EFB v Commissioner of Police, NSW Police Force [2021] NSWCATAD 55 at [39] the Tribunal found that NCAT "may make findings of fact and apply the law, but it does not determine the legal rights and obligations of parties". In concluding that NCAT was exercising administrative rather than judicial power, the Tribunal also took into account other factors. The first was that the Tribunal cannot enforce the orders it makes under the Privacy and Personal Information Protection Act. The second was the qualified requirement to give effect to government policy. The third was that most members of the Tribunal do not have the tenure and protection comparable to that held by judges: EFB v Commissioner of Police, NSW Police Force [2021] NSWCATAD 55 at [36]-[40]. 16. In obiter remarks in Morris v Riverwild Management Pty ltd (2011) 38 VR 103, [63] Weinberg JA distinguished VCAT's "original jurisdiction" from its "review jurisdiction". When VCAT is determining a building dispute for example, it is exercising original jurisdiction. According to Weinberg J, when doing so VCAT is carrying out "a statutory function that in some ways resembles the exercise of judicial power". On the other hand, when exercising its review jurisdiction, "it is plainly engaged in a purely administrative task". 17. These cases all support the conclusion that the Tribunal is not exercising State judicial power when determining an application under the GIPA Act. It is exercising administrative power because it is conducting a merits review of a government decision. The Tribunal cannot directly enforce the orders it makes and it must give effect to any relevant government policy unless that policy produces an unjust decision. It follows that NCAT has adjudicative authority to determine applications under the GIPA Act even if one party is the State of NSW and the other party is a resident of a different State. 1. In our opinion, the authorities establish that NCAT does not exercise State judicial power when determining an application for administrative review under the GIPA Act, rather it exercises administrative power. 2. Accordingly, we consider that we have jurisdiction to determine the appeal. 3. In so far as the issue in relation to jurisdiction has been raised as part of the appeal grounds, those grounds also fail because, in our opinion, NCAT did have jurisdiction to determine the proceedings. Reasons relating to the Confidentiality Orders 1. As set out at [12] – [14] of our reasons above, there appear to be two set of identical reasons for decision relating to the confidentiality orders, with different dates on the coversheet. The appellant did not remain for the entirety of the hearing on 19 April 2021. The appellant states that the confidentiality orders were not made on 19 April 2021 as when she received the orders of the Tribunal following the hearing, they only included the following orders: 1 The Applicant's applications for miscellaneous orders dated 18 December 2020 and 11 April 2021 are refused on the basis that the Tribunal has jurisdiction to hear and determine the Applicant's Application for Review. 2 The decision is reserved. 1. The appellant alleges, that from those orders, it can be determined that the confidentiality orders were not made at the hearing on 19 April 2021. Further, the appellant submits that the orders and reasons contained in the document sent from Registry on 9 September 2021 were not signed and sealed which vitiates the orders. The appellant also alleges that the only reason subsequent reasons were issued on 24 September 2021, was that following a call-over hearing of the appeal, Principal Member Suthers contacted the Registry to clarify the orders. The appellant alleges that by contacting the Registry, Principal Member Suthers had influenced Senior Member Dineen's decision and on that basis the appellant had sought Principal Member Suthers' recusal. The appellant also made allegations before us that Senior Member Dinnen changes her minds and that she consistently lies. 2. The respondent submits that the confidentiality orders were made, orally, at the hearing on 19 April 2021. The respondent acknowledges that Senior Member Dinnen did overlook the request for reasons for the decision regarding those orders in her substantive decision on 16 July 2021. The appellant submits that when the appeal was commenced, Senior Member Dinnen was notified of the omission and produced the reasons so they could be challenged in this appeal. 3. The hearing before Senior Member Dinnen was held by telephone. In the transcript of the hearing of 19 April 2021, provided by the appellant, following submissions about the making of the two confidentiality orders sought by the respondent (page 34 of the transcript at lines 1-15), an exchange between the appellant and Tribunal, appears as follows from page 36 at line 22 of the transcript: Paulina Wojciechowska: Are you giving them the orders or not? Are you proposing to give them the orders or not? SM … Dinnen: In relation to the confidential bundle? Paulina Wojciechowska: Yes. SM … Dinnen: I make those orders. Ms Wojciechowska: Okay. Goodbye. 1. The transcript also notes an "audible click" after that, presumably where the appellant hung up. It is clear from that part of the transcript that the confidentiality orders were made orally at the hearing. On that basis no question of law arises. Further, as we set out at [12]- [14] of our reasons above, we accept that the change to the dates on coversheet was simply an amendment to identify the correct date of the order and the decision date. The Confidentiality Orders 1. The appellant raises grounds of appeal challenging the scope of the confidentiality orders that were made and submits that the appellant was denied the opportunity to inspect the confidential documents. She also alleges that it was a denial of procedural fairness to make the confidentiality orders. 2. Section 64 of the NCAT empowers NCAT to prohibit or restrict disclosures concerning proceedings and relevantly 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- … (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. 1. In the reasons for decision for the making of the confidentiality orders, the Tribunal stated at [12]: 12. In reaching its decision, the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) CAT Act. Having heard from the Respondent what was contained in Exhibit CR-3 and its reasons for providing it to the Tribunal, and bearing in mind the Tribunal's guiding principle as set out in s 36 of the CAT Act and the objects of the CAT Act at s 3, I accepted the exhibit into evidence. I formed the view that because the Applicant had no right to access information if it was out of scope of her access application, the unredacted documents contained in Exhibit CR-3 contained information of a confidential nature. This provided the Respondent with good grounds for seeking the confidentiality orders. I took into consideration the obligation under s 105 of the GIPA Act for the Respondent to justify its decision, the narrow scope of the orders sought and the limited nature of the confidential information, being redactions made over 7 pages. I took into account the Applicant's objections to the orders, but in the circumstances I considered it was desirable for the Tribunal to make the orders sought by the Respondent. I therefore made the orders sought by the Respondent. 1. The confidentiality orders relate only to the documents which have been filed in the proceedings and to which the orders apply. We incline to the view that no question of law arises in circumstances where the Tribunal has determined that the redacted information is outside the scope of the access application. The confidential information relates to redacted information about relevant police officers' work address, internal phone number, external pager number, mobile number, fax number and email. 2. The information that the appellant sought access to on 5 June 2020 was described in the following terms at [1] of the reasons for decision in the primary proceedings: "I request all of the information specified below: 1. GPS data for the police vehicle BL21 for the whole 25 September 2018 (as it was at the end of 25 September 2018, ie unaltered and unedited; if there is an altered version of the data available, then I ask for all versions, ie the unaltered and the altered ones). 2. GPS data for police vehicle BL81 for the whole 22 September 2018 and 23 September 2018 (as it was at the end of 23 September 2018, ie unaltered and unedited; if there is an altered version of the data available, then I ask for all versions, ie the unaltered and the altered ones). 3. GPS data for police vehicle BL81 for 19 August 2018, 21 August 2018 and 22 August 2018 (as it was at the end of 22 August 2018, ie unaltered and unedited; if there is an altered version of the data available, then I ask for all versions, ie the unaltered and the altered ones). 4. Best, most reliable and official (ie not created for the purpose of this access application) documents showing name(s), surname(s) and ranks of persons who on 25 September 2018 were designated by the following numbers printed on the attached CAD document: - N29941 - N51598 - N51808 - N2002210 - N2004623 - N9734530. Note in relation to Pt (4) above: one document (can be electronic) could be enough if it shows all of the requested information. By "best, most reliable" I mean if the choice has to be made from the existing documents. If the choice is to be made, my preference is for the documents created prior to January 2019. If the documents contain some personal information, this information can be redacted (the requested information is, however, not personal under Schedule 4, cl 4(3)(b) of GIPA Act). Note in relation to Pts 1-4 above: the times and dates given above are per Sydney time. Further note in relation to Pt (4) above: CAD document referred to above is attached to the email with this access application and the payment form." 1. The access application asked for information in relation to the relevant police officers by reference to their CAD signs, it did not ask for access to the relevant police officers' work address, internal phone number, external pager number, mobile number, fax number or email. On that basis, the redacted information is properly outside the scope of the access application and the Tribunal was correct to find so. 2. We have checked the confidential documents, including the confidential documents that were before the Tribunal in the primary proceedings, which include the unredacted information relating to Sergeant Mills, and as submitted by the respondent, the redacted information relates to matters that were not within the scope of the access application and did include things such as the relevant police officer's work address, internal phone number, external pager number, mobile number, fax number or email. 3. The appellant also submits that her initial access application was not before the Tribunal in the primary proceedings. In that regard the appellant has now provided it as part of appendix PW3. It is unclear why the appellant would not have provided it in the initial proceedings. However, under the information description in the access application is contained the same description as the Tribunal set out in the reasons for decision. The description was also contained in the review conducted by the Information Commissioner, which is where the Tribunal presumably extracted it from. No question of law arises from the fact that the initial access application was not before the Tribunal as the appellant has failed to identify how the availability of the complete access application would have bought the redacted information within the scope of the access application. 4. It would also have been inappropriate for the Tribunal to allow the appellant the opportunity to inspect material over which an application is being made seeking confidentiality orders. To do so would render the confidentiality application futile. 5. It is possible that the grounds concerning the confidentiality orders, or some of them, raised a question of law, being whether the appellant was denied procedural fairness. If so, the appellant does not need leave to appeal. However, for the reasons given above, we have dismissed these grounds. To the extent that these grounds do not raise a question of law, we refuse leave to appeal. 6. The respondent in this appeal also sought that the Appeal Panel make the same confidentiality orders as were made in the proceedings at first instance. Given that we have concluded that there is no basis to the contention that the confidentiality orders should not have been made, we are satisfied that it is desirable to make the same orders in relation to the same documents in these appeal proceedings and we have done so. Typographical errors 1. The appellant refers to a series of typographical errors in the decision which she submits invalidate the primary decision. The respondent concedes there are some typographical errors in the reasons but says that they do not invalidate the decision. 2. Typographical errors in reasons for a decision, do not on their own give rise to a question of law and do not vitiate a decision or reasons for the decision. The appellant would need to demonstrate that typographical errors in the reason for the decision had some operative effect on the reasons. 3. The appellant has only made a general assertion that the Tribunal has made typographical errors and that cannot on its own give rise to a question of law. Beyond asserting the typographical errors, the appellant has failed to demonstrate how those errors vitiate the decision and for that reason we refuse leave to appeal on this ground. Actual and apprehended bias 1. The appellant alleges actual and apprehended bias on the part of Senior Member Dinnen. This ground raises a question of law, and the appellant does not need leave to appeal on this ground. 2. There are several references to bias contained in the appellant's version of the transcript. 3. From page 15 of the transcript, in relation to the jurisdictional matter being raised by the appellant, the following exchange occurred between the Tribunal and the appellant: Paulina Wojciechowska; … provision that says that if I go to the Local Court I should withdraw it. So I ask you to recuse yourself because currently you are trying to obtain a beneficial order for the respondent, [emphasis added] for the Commissioner of Police. So please don't do it unless you can point me to some clear procedural direction that exists- or rule of law that says this is the course of action I should be taking. Because I do not see anything in the law that says this is what I should be doing to get it reviewed by the Local Court. And then I had filed two now applications for miscellaneous matters seeking something that you actually can give me, that is a statement that you refuse to accept my application for review because it involves exercise of federal judicial power. And this is what I am asking of you. And this is something you actually can give me. You have jurisdiction to make that decision to provide me with this statement... SM … Dinnen; Ms Wojciechowska, because on... your saying that I have the power to do something doesn't assist. It doesn't. The power doesn't exist just because you believe it is there. I'm telling you as NCAT that I have jurisdiction to determine your GIPA application. That's under the GIPA Act. Now, if you do not wish to proceed with that application or you consider that NCAT does not have jurisdiction over the application, then you may withdraw it. I have no power to affect the outcome of the proceedings in the Local Court so if you have an issue about taking something to the Local Court that's not something I can deal with and that is not something I'm going to run proceedings on here 20 for your assistance so,.. Paulina Wojciechowska; No. I'm not asking you - please stop. You are asking in a misleading way. You are being biased, actually biased. [emphasis added] This is not what I'm asking you to do. I have applied to NCAT in accordance with the legislation and I consider that the NCAT has no power to review my application so I asked for the statement... SM … Dinnen: No, Ms Wojciechowska. Then if you consider that NCAT has no power to review your application, then your application can be dismissed, or it can be withdrawn. 1. From page 27 of the transcript, a further exchange is found concerning jurisdictional matter being raised by the appellant: SM … Dinnen: I haven't read any of the written submissions in great detail. I have them before me and Mr Hudson is making submissions now on the substantive application. Paulina Wojciechowska; Well, how do you know then that this is administrative power if you haven't read any arguments and nobody made any arguments? How do you know? SM … Dinnen; Because the Tribunal... The Tribunal cannot and does not exercise judicial power, Ms Wojciechowska. Paulina Wojciechowska; How do you know? How do you know it doesn't? SM … Dinnen; Because I am a Tribunal member and I'm well aware of the Civil and Administrative Tribunal Act as stated. Paulina Wojciechowska; Voila, you came with a pre-made mind then [emphasis added]. 1. At page 36 of the transcript, in relation to the confidentiality orders being sought, the following exchange occurred between the Tribunal and the appellant: Paulina Wojciechowska: So, when I make another GIPA, are they going to be binding me? Can then the respondent come and say the Tribunal made order that this is not to be disclosed so we can't give it to her? SM … Dinnen: Ms Wojciechowska, if you make another application, that application will be decided on the circumstances of that application. This is - the documents have been provided to the Tribunal and there are publication there, there are orders made - sorry orders being sought under section 64 1d and 1c of the Act because the respondent has determined that they do not fall within the scope of your access application. Paulina Wojciechowska: You just don't allow people to go and maybe dig somewhere else because they don't fall within the scope? That's make them confidential in your view, is this so? Because they're not within the scope? Why don't you tell me I can't read books in this country cause they're not within the scope? SM … Dinnen: Alright, thank you, Ms Wojciechowska. Please stop yelling and please stop interrupting me and Mr Hudson. Paulina Wojciechowska: You have what you deserve. You should have recused yourself long time ago [emphasis added]. SM … Dinnen: OK, Mr Hudson, please continue on the substantive application. 1. It is apparent from the transcript that the applicant repeatedly alleges bias in circumstances where a decision is made that is not in her favour. The appellant is not willing to accept the decision of the Tribunal and move on with the hearing. 2. Having reviewed the transcript, we find no evidence of actual or apprehended bias on the part of the Senior Member and are not of the view that a fair-minded lay observer might would reasonably apprehend that the Senior Member "might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. 3. There is no basis on which we could make a finding of apprehended, or actual, bias on the part of the Senior Member. This ground of appeal must fail. Denial of Procedural Fairness 1. The appellant contends that she was denied procedural fairness, and that the Tribunal breached the fair hearing rule and there was an abuse of process. The appellant also alleges the Tribunal breached ss 36, 38 and 64 of the NCAT Act and alleged that she was not given the opportunity to object to or cross examine witnesses. 2. These grounds raise questions of law and the appellant does not need leave to appeal on these grounds. 3. Section 36 of the NCAT Act sets out the guiding principle to be applied to practice and procedure of the Tribunal as follows: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it— (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal— (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. 1. Section 38 of the NCAT Act relevantly provides that: (1) 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. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable— (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal— (a) is to ensure 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, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases. 1. The transcript reveals that the appellant hung up the phone twice in the proceedings. The applicant repeatedly interrupted the proceedings and as stated above refused to accept the decisions of the Tribunal and disrupted the hearing. At one point the appellant stated: "I would sooner kiss a tapeworm than accept this Tribunal's jurisdiction on anything, Ok?" 1. Having reviewed the transcript in its entirety, we find no denial of procedural fairness, breach of the fair hearing rule or abuse of process. The transcript does not demonstrate that the appellant was not given the opportunity to object or cross examine. At page 8 of the transcript provided by the appellant, when the Senior Member asked if the appellant had any objections to the affidavit of Senior Sergeant Brombey, the appellant stated: "I will make any objections after you deliver the decision on the jurisdiction. Because you cannot proceed on anything else before you tell me if you have jurisdiction to consider the matter. And this jurisdiction will not be accepted, let me tell you this. I will be appealing it." 1. The Tribunal was under no obligation to provide a decision or reasons in relation to the whether the Tribunal had jurisdiction immediately. The appellant demanded the same thing of us in the appeal hearing. 2. At page 20 of the transcript provided by the appellant, the Senior Member clearly indicated she will provide reasons in relation to the issue of jurisdiction in the substantive decision. Consistent with s38 (1) of the NCAT Act it was open to the Tribunal to proceed with the matter in that way. There is nothing that requires the Tribunal to have to have decided or provide reasons immediately in relation to jurisdiction before proceeding to hear the balance of the matter. It is for the Tribunal to determine how to conduct the hearing. 3. Further, in the circumstances of this hearing where the appellant left the hearing of her own accord, it cannot be said she was denied the opportunity to cross examine witnesses, to be heard or to object. 4. The appellant was not denied procedural fairness and the grounds raised in that regard must fail. No evidence, unsupported inferences and failure to take into consideration relevant considerations. 1. The appellant submits that there was no evidence to support the findings made by the Tribunal that there was no further information held by the Commissioner. She also submits that the Tribunal did not examine all the material before it and the Tribunal relied on the submissions of the Commissioner with no evidence to support those submissions. To the extent that the appellant alleges that the Tribunal made findings with no evidence to support them, this raises a question of law and leave to appeal is not required. 2. The appellant refers to paras [34]-[40] and [43] of the reasons for decision in which the Tribunal makes findings as follows: 34 The Respondent relied on the affidavit of Terry Brombey filed 22 February 2021. The Applicant did not object to that evidence and did not answer the Respondent's correspondence prior to the hearing requesting whether she required Senior Sergeant (S/Sgt) Brombey for cross examination, and did not seek to cross examine S/Sgt Brombey at the hearing. 35 S/Sgt Brombey's affidavit described the extent of the Respondent's searches for information in response to the Applicant's Access Application and the results of those searches. He conducted searches for any GPS data corresponding to the callsigns "BL21" and "BL81" on the dates specified in the Access Application by directly querying the CAD database, because the PoliceCAD Command Client application did not have the facility to search for or display GPS data which was more than six months old. 36 No valid GPS data was returned for the callsign "BL21" on the specified date. Specifically, the database columns which store waypoints (x,y coordinates) contained only zeroes. S/Sgt Brombey stated that this could be because the GPS hardware was unable to obtain a fix, or due to a hardware or software fault. 37 S/Sgt Brombey stated that the callsign "BL81" is a designated police station callsign, not a callsign for a police vehicle. Nevertheless, he conducted a search for the callsign and some GPS data was returned, which was mapped using the Microsoft Power BI visualisation tool. The mapping showed the callsign to be stationary with the GPS signal "bouncing around" at times, suggesting the hardware may not have had a continuous fix. The device used to log in to the Mobile Client for callsign BL81 was a Panasonic Toughbook laptop computer, and the officer who had logged in had used the laptop at his personal residence for work-related purposes during the relevant period. Callsign BL81 was not in use in a police vehicle during the relevant period, and the stationary point depicted in the mapping was proximate to the officer's home address. 38 I accept that to the extent that GPS data was returned by the searches conducted by S/Sgt Brombey in relation to BL81, that data does not relate to a police vehicle. 39 I also accept that the searches conducted by S/Sgt Brombey were exhaustive of the information sources likely to contain GPS data responsive to the Access Application, and to the best of his knowledge, GPS data from police vehicles is not stored or archived in any other system in the NSWPF. 40 I am therefore satisfied that the respondent has undertaken such reasonable searches as were necessary to find any government information responsive to Pts 1–3 of the Applicant's Access Application pursuant to s 53(3) of the GIPA Act. … 43 I agree with the comments in Miskelly to the effect that the Tribunal does not have jurisdiction to review the decision that the redacted information was outside the scope of the Applicant's access application. 1. As we have set out at [61], the appellant did not object to the evidence Senior Sergeant Brombey and left the hearing before it was completed. The appellant also alleges that material witnesses were not provided. 2. Having considered the transcript and the reasons and the evidence before the Tribunal, there was evidence to support the Tribunal's findings, and the Tribunal did not make unsupported inferences or fail to take into consideration relevant matters. This ground of appeal must fail. Reversal of the onus 1. At the appeal hearing the appellant raised that the Tribunal had reversed the onus, placing the onus on the appellant. To the extent that this is a ground of appeal, it raises a question of law and the appellant does not need leave to appeal on this ground. 2. Section 105 of the GIPA Act places the burden of establishing the decision was justified, on the agency. There is nothing in the transcript or the reasons for decision which indicates that the onus was reversed by the Tribunal. The reasons for decision demonstrate that the respondent met the onus in establishing that the decision was justified. This ground is rejected. Edited documents 1. The appellant makes a series of allegations that the respondent and others have tampered with the documents the subject of the access application and that the respondent was responsible for the fraudulent provision of the documents and outdated and edited documents. 2. The appellant has failed to provide evidence which would support those allegations. We do not accept them. Misconstruction of the GIPA Act 1. The appellant alleges that the Tribunal misconstrued s53 of the GIPA Act and made errors in the construction of the GIPA Act. This ground raises a question of law and leave to appeal is not required. 2. Section 53 of the GIPA Act relates to searches for information held by an agency and states the following: (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. At para [10] – [15] of the reasons for decision, the Tribunal stated the following: 10 The Appeal Panel held in Klaric v Commissioner of Police [2020] NSWCATAP 153 (Klaric) at [33]: "The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. The Tribunal noted that, in reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches…It also recognised that the agency has a burden to justify its decision that it does not hold information, and that this issue is different from whether its search for information was sufficient". 11 While the reasonableness of searches is not, in and of itself, reviewable, it is a relevant consideration as to the correctness of a determination that information is not held. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [41], the Appeal Panel clarified the finding in Klaric: "whether the agency has complied with the obligation imposed by s 53 is plainly a relevant factor in determining whether an 'information is not held' decision is the 'correct and preferable decision'". 12 In Wojciechowska, the Appeal Panel also departed from the previous test as to whether reasonable searches had been undertaken. An access applicant is not required to establish that there are reasonable grounds to believe that the requested information exists and is held by an agency, before that agency must undertake searches. Instead, it falls to the agency to assess whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by the agency. The Appeal Panel then summarised the task for the Tribunal in reviewing a decision that information is not held by an agency at [44]: 1. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s. 53(1)–(5); 2. determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; 4. applying those findings, decide what the correct or preferable decision is; 5. affirm, set aside or vary the agency's decision: s. 63(3) of the Administrative Decisions Review Act. 13 In determining the reasonableness of searches, relevant considerations were identified in Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 at [30] (cited with approval in Amos v Central Coast Council [2019] NSWCATAD 226 at [14]): "…the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant." 14 That there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]. 15 In Robinson v Commissioner of Police [2014] NSWCATAP 73, the Appeal Panel at [28] observed that, in establishing whether adequate searches had been made, evidence must be shown as to the nature of searches undertaken, the means of the searching used and whether systems of electronic retrieval have been used. 1. At [40] of the reasons for the decision (extracted at [76] above), the Tribunal made the express finding that the respondent had complied with s 53(2) of the GIPA Act. Having considered the reasons for the decision, the appellant has not persuaded us that the Tribunal made any error of law in relation to its application of s 53 or any other relevant provision of the GIPA Act. 2. This ground of appeal is not established. Conclusion 1. Having considered the grounds of appeal raised by the appellant we find no error of law arises. 2. To the extent that the appellant's grounds do not raise a question of law, leave to appeal should not be granted. The grounds raise no issues of principle, no questions of public importance or matters of administration or policy. The grounds do not demonstrate an injustice which is reasonably clear or an error that is plain, readily apparent, or concerning. Many of the submissions made by the appellant are unsupported and amount to no more than assertions. 3. For those reasons leave to appeal is refused and the appeal is dismissed. 4. For completeness, we note that the appellant alleges fraud and corruption by various government employees, the Commissioner and others. There is nothing before us that would substantiate those assertions and we reject them. Costs 1. The respondent foreshadowed in the reply to the appeal that she may seek costs if the appeal was unsuccessful. We have made directions in the event the costs application is being pressed. Orders 1. Accordingly, we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the material filed by the respondent on a confidential basis is prohibited. 4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the material filed by the respondent on a confidential basis, to the appellant is prohibited. 5. If the respondent seeks to make a costs application: 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 Application to disqualify – Principal Member Simon 1. The appellant sought at the outset of the hearing that I disqualify myself from hearing the matter. The basis for the disqualification relates to an order I made on 6 December 2021, on the papers, in unrelated proceedings 2019/00368647, involving the same parties. 2. In those proceedings, I refused an application made by the respondent, , the Commissioner of Police, for the matter to proceed to be determined without further directions. My orders and reasons were as follows: 1. The matter is listed for directions on 14 December 2021 at 2:30PM. Reasons: The respondent has indicated that the matter may proceed to be determined without further directions. The applicant objects. The matter is listed to consider any further directions (if any) which need to be made so that the matter can proceed to final hearing. 1. On 13 December 2021, the appellant sought that I amend my reasons pursuant to s63 of the NCAT Act for the following reasons and relevantly stated: Requested amendment: Deletion of "The applicant objects." Proposed text of the reasons following the amendment: "Reasons: The respondent has indicated that the matter may proceed to be determined without further directions. The matter is listed to consider any further directions (if any) which need to be made so that the matter can proceed to final hearing." Reasons for the request: the Applicant did not object. I will rely on this letter in any cost proceedings related to or in connection with this matter . I believe that Principal Member T. Simon entered the sentence "The applicant objects" not in good faith, but in order to enable further harassment of the Applicant with costs proceedings. Accordingly, I consider that Principal Member Simon does not enjoy any protection granted by s 89(3) of the CAT Act. If I suffer any adverse consequences as a result of this falsification of the public record, I will seek a costs order against Principal Member including but not limited to pursuant to s 60 of the CAT Act or s 98 of the Civil Procedure Act 2005 (NSW). 1. On 14 December 2021, I refused the appellants request to amend my reasons. On 15 December 2021, the applicant sought reasons for my declining to amend the reasons. 2. The appellant alleges I entered false information in my orders and that I refused to change the orders or provide reasons when requested. 3. The decision I made on 6 December 2021 was based on an email from the respondent dated 2 December 2021. The appellant had also sent an email in which she referred to the request of the respondent as a "meritless proposition" and asked for the Tribunal to advise if they sought further comment and to "otherwise, please relist the matter for directions as ordered by SM Goodman." It was on that basis that I had stated that the applicant objects in the reasons provided on 6 December 2021 and why I refused to amend my reasons. 4. Having considered the request to recuse myself, I am not of the view that there is actual or apprehended bias which would disqualify me from hearing the appeal. 5. The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is objective: "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. 6. Having considered the applicant's submissions, as reproduced above, and the test for disqualification, I do not find that I should disqualify myself from the Appeal Panel determining the application. The basis for the applicant's assertions in relation to my alleged breaches and entering false information are unsupported. The decision I made in 2019/00368647 was an interlocutory matter, dealing with how the matter should proceed. Nothing in that decision has any logical connection with the issues required to be determined in this appeal. On that basis the recusal application is refused. ********** 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 Amendments 07 February 2023 - Date of orders and Decision date corrected to 07 February 2023 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: 07 February 2023