Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAP 103 Hearing dates: 10 March 2023 Date of orders: 12 April 2023 Decision date: 12 April 2023 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President Dr R Dubler SC, Senior Member Decision: 1. The Appeal is allowed. 2. The decision is set aside with the whole of the decision remitted to the Administrative and Equal Opportunity Division, differently constituted, to be reconsidered, with fresh evidence allowed. 3. In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication, other than to the Commissioner of Police, NSW Police Force of the contents of the Respondent's 'Confidential Bundle' received by the Appeal Panel is prohibited. Catchwords: ADMINISTRATIVE LAW – freedom of information – government information public access – public interest considerations – failure to make findings as to whether there were any public interest considerations in favour of disclosure and the weight to be given to them – whether reasons were inadequate Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Crewdson v Central Sydney AHS [2002] NSW 345 DMP v Sydney Local Health District [2022] NSWCATAP 357 GA v The University of Sydney [2009] NSWADT 230 Leech v Sydney Water Corporation [2010] NSWADT 298 Meacham v Commissioner of Police [2020] NSWCATAP 107 Nasr v State of NSW [2007] NSWCA 101 NSW Land and Housing Corporation v Orr [2019] NSWCA 231 Robinson v Department of Health [2002] NSWADT 222 Ros v Commissioner of Police [2020] NSWCATAP 70 Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 The Secretary, Department of Family and Community Services v Smith [2017] NSWCAT 206 The State of New South Wales v Forbidden Foods Pty Ltd [2020] NSWCATAP 182 Texts Cited: Nil Category: Principal judgment Parties: Julie Bailey, Appellant Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Robin Gurr (Agent) (Appellant) Crown Solicitor (Respondent) File Number(s): 2022/00370355 Publication restriction: In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication, other than to the Commissioner of Police, NSW Police Force of the contents of the Respondent's 'Confidential Bundle' received by the Appeal Panel is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2022] NSWCATAD 362 Date of Decision: 11 November 2022 Before: M Griffin, Senior Member File Number(s): 2022/00141161 REASONS FOR DECISION Introduction 1. This matter involves an appeal from a decision of the Tribunal made on 11 November 2022. 2. The Applicant before the Tribunal, who is the Appellant in these proceedings, sought administrative review of a decision by the Respondent refusing her access to certain NSW Police information. The information related to an alleged incident involving her motor vehicle. 3. On 11 October 2021, the Appellant was attempting to park her motor vehicle, number plate 1 [XXX XXX]. She attempted to reverse park into a parking space but she was unsuccessful on two attempts. She then drove on to find another parking space and was able to park there. 4. A witness claimed to have observed the Appellant's motor vehicle reverse into a parked vehicle with the number plate 2 [XXX XXX]. We will refer to this person as the 'Witness'. The Witness left a note on the windscreen of the vehicle 2 [XXX XXX]. 5. The note reported what the Witness allegedly had seen and provided the Witness' contact details. The owner of the vehicle found the note and reported the matter to the NSW Police. 6. The Police, following an investigation, issued a Question of Fitness to Drive Form to the Appellant on 23 October 2021. The Appellant then had to sit a driving test and undergo a medical assessment. 7. The insurer for vehicle 1 [XXX XXX] on 28 October 2021 wrote to the Appellant seeking to recover damages for loss which was subsequently quantified by the insurer in the amount of $550 which the insurer demanded be paid by the Appellant. 8. This was the background which led the Appellant on 19 December 2021 to apply to NSW Police Force for certain information under the Government Information (Public) Access Act 2009 (NSW) (the GIPA Act). 9. The Application sought the following information: 1. A copy of any police report by the Blue Mountains Police Area Command and from Katoomba police station on the incident of 11 October 2021. 2. A copy of the interview with me conducted 16 October at the Katoomba Police Station. 3. A copy of the statement made by any person who alleges to be a witness to any incident in which my car was involved. 4. Any statement made by the owner of the damaged vehicle. 5. Any notes made by the Police officer who decided to refer the matter to Transport NSW. 1. We were informed at the hearing of the appeal that only three documents remained in issue: the statement by the Witness, the note left by the Witness on the vehicle 2 [XXX XXX] and the statement made by the owner of vehicle number 2 [XXX XXX]. 2. On 10 January 2022, the Respondent decided to release some information to the Appellant and to refuse to release other information. 3. The Appellant then sought external review of the decision by the Information Commissioner. 4. The Appellant sought administrative review from the decision refusing her access to certain NSW Police information. The Tribunal affirmed the decision of the Respondent to refuse the Appellant access to certain information. 5. The Appellant appeals from that decision and this is our decision in respect of the Appellant's Notice of Appeal. The Decision of the Tribunal 1. The Tribunal was satisfied that it had jurisdiction under the GIPA Act and noted that the Respondent bore the burden of establishing that its decision to refuse access was justified pursuant to s 105(1) of the GIPA Act: [8]. 2. The Tribunal summarised the legislative framework, noting that pursuant to s 5 of the GIPA Act there is a presumption in favour of the disclosure of information unless there is an overriding public interest against disclosure: [11]. 3. The Tribunal noted that the Respondent relied upon various clauses of the table to section 14(2) of the GIPA Act and the Tribunal also noted that an applicant was entitled to access the information sought unless there is an overriding public interest against disclosure of the information pursuant to s 9(1) of the GIPA Act: [11] – [12]. 4. The Tribunal considered in turn the grounds relied upon by the Respondent for refusing access, being s 14 cl 1(d), 2(a) and 3(a). 5. The Tribunal [13] noted that each of the clauses relied upon a public interest against disclosure where disclosure could 'reasonably be expected to' have a particular effect. The Tribunal referred to two decisions where that phrase had been considered: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at [190] and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. 6. The Tribunal [14] considered the first ground of refusal, being s 14 cl 1(d). That clause provides that there is a public interest consideration against disclosure of information if disclosure of the information 'could reasonably be expected to … prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions'. 7. The Tribunal [15] referred to the decision of Robinson v Department of Health [2002] NSWADT 222 at [71] where this phrase had been considered. 8. The Tribunal [16] referred to the evidence of Constable Tunks and in particular paragraph 13 which asserted the confidential basis on which information is received by the Police and how this facilitates the agency's functions. The Tribunal [16] referred to Constable Tunks' concession in cross-examination that his statement was 'too general' and that he did not recall discussing confidentiality at the time with the witness. 9. The Tribunal [17] then quoted from Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [40] where previous decisions of tribunals and courts have recognised the confidentiality that 'ordinarily attaches' to communications made to law enforcement agencies. 10. The Tribunal then [18] quoted from the Appellant's written submissions which disputed that there ought to be a finding of confidentiality. Matters relied upon were that the matter was treated as a safety issue rather than a crime, that the incident involved barely discernible damage, that there was no evidence that the car owner and witness were given any assurances of confidentiality and Constable Tunks' evidence asserting that people generally expect that their information and details be kept confidential was pure speculation and not evidence. 11. The Tribunal [19] accepted the evidence of Constable Tunks that Police training included emphasis on protecting the confidentiality of witnesses and reference was made to the NSW Police Customer Service Charter which states in part 'we will maintain your confidentiality'. 12. The Tribunal concluded [19] that on the available evidence witnesses expect that the information they provide to Police will be treated in confidence. 13. The Tribunal also [20] accepted the evidence that the relevant information was provided on a confidential basis. It also [20] concluded that the confidential provision of such information significantly assists the Respondent to ensure the integrity of its procedures. 14. Its conclusion [20] was 'I accept that the information facilitated the exercise of the agency's investigative function, and that disclosure could reasonably be expected to prejudice the future supply of such information by members of the public. I have considered the factors in favour of disclosure. I find that the information was properly refused pursuant to s.14 cl 1(d).' 15. The Tribunal then considered the next ground relied upon by the Respondent being cl 2(a) which provides: 'There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to... reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant'. 16. The Tribunal [23] concluded, on the face of the records, that disclosure of the information sought would reveal the identity of an informant, being the Witness: [23]. 17. Further, the Tribunal concluded [23] that disclosing such information could reasonably be expected to inhibit and prevent members of the public from coming forward in the future, which would negatively affect the Respondent's ability to gather evidence for its investigation function. 18. Nextly, the Tribunal considered clause 3 of the table to s 14 of the GIPA Act which concerns 'individual rights, judicial processes and natural justice'. Sub-clause 3(a) states: 'There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to... reveal an individual's personal information'. 19. The Tribunal referred to the Appellant's submission that the Witness' personal information was in the public domain because it had been written on a paper and left on the car windscreen in plain view of the public. The Tribunal found [28] – [29], referring to Court of Appeal decision Nasr v State of NSW [2007] NSWCA 101 at 127, that as there is no evidence as to whether the note was folded or not, or obscured by the windscreen wipers, or whether it had been seen by anyone, other than the owner of the vehicle, that the placing of the note on the car's windscreen did not amount to it being in the public domain. 20. Accordingly, the Tribunal was not satisfied the information on the note was in the public domain [31]. 21. The Tribunal then concluded that based upon the redacted information and accepting the evidence of Constable Tunks as to how the information was obtained and treated in confidence, the Tribunal was satisfied that the information in question contained the names and contact details of people or that their identity could be ascertained from the information: [32]. 22. The Tribunal was also satisfied that the redacted material was personal information and disclosure of the material could reasonably be expected to disclose an individual's personal information. 23. The Tribunal then turned to the Applicant's submissions concerning public interest factors in favour of disclosure at [33] as follows: The Applicant has made extensive submissions concerning the public interest factors in favour of disclosure, for example (at paragraph 41) "another public interest factor which should be considered in favour of disclosure is a manifest public interest in affording fairness to a person whose cognitive capacity is being questioned. Persons whose capacity is in question are, by definition, vulnerable and entitled to protection and assistance. It must be assumed that they may not be in a position to adequately protect themselves against false allegations. The decision that persons lack capacity has serious consequences for their legal rights and is not to be taken lightly. It is in the public interest that all information which is used to base a presumption that a person lacks capacity be disclosed. That applies to the information which is sought in this matter. 1. The Tribunal [35] stated that having considered the content of the Confidential Bundle, the Tribunal was satisfied that releasing the withheld information would not assist the Appellant to contest her liability to pay for the damage claim. 2. The Tribunal [36] stated that having considered the public interest factors in favour of disclosure (s 12 GIPA Act) and the personal factors of the application (s 55 of the GIPA Act), the Tribunal found that those factors were outweighed by the public interest against disclosure of the information. 3. The Tribunal then set out its final conclusion at [37] – [39] as follows: 37 The Applicant's submissions impugn the quality of the police investigation and the related Question of Fitness decision made by police. There are some matters of concern about the detail of the investigation, but they do not relate to the refusal decision. In Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95, the Tribunal held at [62]: Proceedings under the GIPA Act are concerned with the provision of government records... To attempt to use proceedings under the GIPA act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the Tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345; GA v the University of Sydney [2009] NSWADT230. 38 A review of the investigation would be for such a collateral purpose. 39 There are factors in favour of disclosure of the information and there are factors against disclosure. I have considered them carefully and I am satisfied the public interest factors against disclosure outweigh the factors for disclosure and I so find. Materials supplied on appeal 1. The Appellant supplied the following material: 1. Written submissions in chief; 2. Portions of transcript referred to in submissions; 3. List of documents before the Tribunal at the initial hearing; 4. Evidence relevant to the appeal: 1. Appellant's submissions in the initial hearing; 2. Appellant's statement of evidence in the initial hearing; 3. Bundle of documents relating to the insurance claim. 1. Written submissions in reply; 2. Audio of the hearing before the Tribunal. 1. The Respondent supplied written submissions in response, a Confidential Bundle of the documents in question and an Appeal Book consisting of the following material: Respondent's documents in chief 1. Respondent's written submissions, filed 7 July 2022 2. Affidavit of Constable Jack Tunks, sworn 6 July 2022 Applicant's documents 1. NCAT List of Documents 2. Applicant's written submissions, 26 September 2022 3. Statement of Julie Bailey, 25 July 2022 Documentary evidence filed by applicant 1. Notice of Decision, 10 January 2022 (including documents released) 2. Email from Chief Inspector Scheinflug 3. Documents relating to insurance claim Respondent's reply material 1. Responde nt's written submissions in reply, filed 7 October 2022. Principles on appeal 1. To succeed in an appeal, the Appellant must demonstrate either an error on a question of law, which may be argued as of right, or that permission (that is, 'leave') to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 80 (2). 2. The Appeal Panel has a discretion whether to grant leave under s 80(2) of the NCAT Act. The principles governing an application for leave to appeal under the NCAT Act are well established and are repeated in many decisions of the Appeal Panel often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the Courts. It is enough as a summary to refer to The Secretary, Department of Family and Community Services v Smith [2017] NSWCAT 206, where the court stated at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. 1. As the Appellant apparently prepared her grounds of appeal without legal assistance, we will consider her Notice of Appeal consistently with the principles set out by the Appeal Panel in Ros v Commissioner of Police [2020] NSWCATAP 70 at [21]: In order to assist the appellant as a self-represented litigant in the articulation of [her] grounds of appeal, the Appeal Panel has considered whether it can discern any questions of law as grounds of appeal from the Notice of Appeal, the appellant's submissions and the first instance decision. 1. The Appellant was represented by an agent, being Ms Robin Gurr, who was granted leave to appear on behalf of the Appellant. The Respondent was represented by Ms Mattes, Solicitor. Ground 1 1. The Notice of Appeal contains seven grounds all said to contain errors of law respectively such that leave to appeal was not sought. The first ground of appeal was as follows: The Member failed to make a decision in accord with the GIPA Act He did not undertake the highly structured balancing exercise required by the Act and explained by the Tribunal in Commissioner of Police v Camilleri [2012] NSWADTAP 19. Pars 36 and 39 of the Reasons simply document a conclusion without explaining which factors were considered, given what weight and why. The Member did not enumerate which documents were in issue and distinguish which factors against disclosure applied to each. Not all factors applied to each document. The Member did not enumerate and consider all relevant considerations raised by the Applicant (i.e public interest reasons favouring disclosure) and assign weight to each. The Member did not give adequate weight to the powerful presumption for disclosure contained in S.5 of the Act. Appellant's submissions 1. The Appellant emphasised that she is not seeking to have the Appeal Panel make alternative findings of fact or determine the merits of the appeal. The Appellant submitted that all of the grounds of appeal were put on the basis of errors of law and accordingly leave to appeal was not required. 2. Apart from the matters raised in the grounds of appeal itself, the Appellant submitted that the Tribunal must clearly identify and weigh each of the public interest considerations for and against disclosure and may consider any relevant personal factors in order to reach a decision: citing in support Snape v Commissioner of Police No 2 [2022] NSWCATAP 244, in particular at [41]. 3. Secondly, she submitted that the Tribunal appeared to proceed by way of exception to the presumption for disclosure by initially and overwhelmingly dealing with the Respondent's arguments against disclosure (at [13] - [32]). 4. It was submitted that such decision-making process was one which applied under the previous law and was not the correct approach under the GIPA Act. 5. Thirdly, the Appellant submitted the Tribunal should have identified the information individually and distinguished which factors against disclosure applied to each and not considered all of the factors to all of the documents globally. 6. Fourthly, it was submitted that the Tribunal did not consider all relevant considerations raised by the Appellant, being public interest reasons favouring disclosure and s 55 factors and attribute weight to each. 7. The Appellant submitted that she identified five factors argued as relevant factors in favour of disclosure. The Appellant submitted that the reasons contain four paragraphs [33] - [36] which considered such factors, merely by noting the extensive submissions and then dealing with only one 'as an example'. 8. The Appellant submitted that the Tribunal did not refer to the subject of the s 55 factors raised by the Appellant. 9. Finally, the Appellant submitted that the Tribunal did not give adequate weight to the powerful assumption in favour of disclosure contained in s 5 of the GIPA Act. According to the Appellant, the Tribunal mentioned it but did not consider its weight or effect. Respondent's submissions 1. Ms Mattes contended that the Tribunal did correctly make its decision in accordance with the GIPA Act and the highly structured approach referred to by the Appeal Panel in Camilleri. 2. At (16) the Respondent submitted that the Tribunal relevantly: A. acknowledged, first, the s. 5 presumption in favour of disclosure of government information, except where there is an overriding public interest against disclosure (at [11]); B. then, in order to apply the s. 13 public interest test, considered whether any of the public interest considerations against disclosure applied with respect to the disputed information (from [13]-[32]), finding that each of cl. 1(d), 2(a) and 3(a) of the Table to s. 14 applied (at [20], [23] and [32] respectively); C. then, having identified applicable public interest considerations against disclosure, weighed these against the public interest favouring disclosure (at [33]-[36]); and D. ultimately concluded that the public interest considerations against disclosure outweighed the public interest favouring disclosure, such that there was an overriding public interest against disclosure. 1. In response to the submissions that the Tribunal failed to consider each public interest favouring disclosure and attribute weight to each such consideration, the Respondent submitted that this was not necessary and that it was sufficient that the 'central controversies' were dealt with by the Tribunal and this was sufficiently done at [33] – [36] of the Tribunal's decision. Appellant's submissions in reply 1. The Appellant disputed that the Tribunal had addressed at [35] the public interest factors identified by the Appellant as suggested by the Respondent (19). 2. Further, the Appellant submitted in reply that the Tribunal may not have needed to address every single submission of the Appellant as contended by the Respondent (19) but in order to properly carry out the balancing task, the Tribunal did need to address each of the public interest and personal factors to be considered in favour of disclosure. Consideration 1. A useful starting point of our consideration of this ground of appeal is to outline the submissions put by the Appellant below in favour of disclosure. 2. First, the Appellant contended that disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance. The Respondent noted that this public interest consideration was not in dispute by the Respondent. 3. Secondly, the Appellant submitted that disclosure of the information could reasonably be expected to inform the public about the operations of agencies, and in particular their policies and practices in dealing with members of the public. Again, this was not in dispute, by the Respondent. 4. Thirdly, the Appellant submitted that disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. This was not accepted by the Respondent. The submission made in support of this alleged public interest factor in favour of disclosure relied upon the laws prohibiting age discrimination. At (33) of the Appellant's written submissions below the following was stated: Age discrimination is unlawful under NSW and Commonwealth law. Both prohibit direct and indirect discrimination on the ground of age. Direct discrimination occurs when someone treats, or proposes to treat, the aggrieved person less favourably than it treats, or would treat, a person of a different age under circumstances that are the same or materially the same, if the discriminator does so because of a person's age or a characteristic that appertains or is generally imputed to a person of that age. Indirect discrimination occurs when someone discriminates against the person on the group of their age by: • Imposing or proposing to impose a condition, requirement or practice; • The condition, requirement or practice is not reasonable; and • The condition, requirement or practice has or is likely to have the effect of disadvantaging persons of that age. 1. Fourthly, the Appellant submitted that a public interest factor which should be considered in favour of disclosure is a manifest public interest in affording fairness to a person whose cognitive capacity is being questioned. As put by the Appellant, persons whose capacity is in question are, by definition, vulnerable and entitled to protection and assistance. 2. The submission continued that the decision about a person's lack of capacity has serious consequences for their legal rights and is not to be taken lightly. Accordingly, it is in the public interest that all information which is used to make an assumption that a person lacks capacity be disclosed. The Appellant submitted that this applies to the information which was being sought in this matter. This factor was not expressly conceded by the Respondent. 3. The Appellant also relied upon s 55 of the GIPA Act which allows a decision maker to take into account the personal factors of the application as factors in favour of providing the applicant with access to the information. The Appellant pointed out as a factor in favour of disclosure that the information held and sought was information primarily about the Appellant, including information she has provided to the Respondent. 4. As part of this submission the Appellant pointed out that she was being held liable for damage which she was disputing. She raised this as a personal factor which should weigh heavily with the Respondent in favour of disclosure of at least the Witness statement. 5. Again, as we understand it, the Respondent did not expressly concede this to be a valid factor in favour of disclosure. 6. As referred to by the Respondent, the Tribunal dealt with the public interest factors or other factors in favour of disclosure at [33] – [36] as follows: 33 The Applicant has made extensive submissions concerning the public interest factors in favour of disclosure, for example (at paragraph 41) "another public interest factor which should be considered in favour of disclosure is a manifest public interest in affording fairness to a person whose cognitive capacity is being questioned. Persons whose capacity is in question are, by definition, vulnerable and entitled to protection and assistance. It must be assumed that they may not be in a position to adequately protect themselves against false allegations. The decision that persons lack capacity has serious consequences for their legal rights and is not to be taken lightly. It is in the public interest that all information which is used to base a presumption that a person lacks capacity be disclosed. That applies to the information which is sought in this matter." 34 This submission relates principally to the issuing of the Question of Fitness Form to the Applicant by the police. As a consequence, the Applicant was required to undergo a medical assessment and sit for a driving test, which she did. There is no evidence before the Tribunal that the Applicant is lacking in capacity. In fact, I had the benefit of observing the Applicant at the hearing and I am satisfied there is no reason to question her capacity or cognitive function. 35 One can readily understand the Applicant's desire to know the contents of the confidential information which has adversely affected her. The concessions made by Constable Tunks about the quality of the investigation. such as it was, would only serve to reinforce her concerns. There are real questions about the way that process unfolded and the assumptions made by a junior Constable about an older person. However, as submitted by the Respondent the Tribunal is not called upon to determine a claim for age discrimination in these proceedings. No such claim has been made and the Tribunal would not have jurisdiction to deal with any such claim in these proceedings. The Tribunal is not called upon to review the investigation carried out by the Respondent in relation to this incident, or the findings of that investigation. There is no reason to doubt the evidence of the witness to the incident. Moreover, having considered the content of the Confidential Bundle, I'm satisfied that releasing the withheld information would not assist the Applicant to contest her liability to pay for the damage claimed. 36 I have considered the public interest factors in favour of disclosure (s12 GIPA Act) and the personal factors of the application (s55 GIPA Act). I find those factors are outweighed by the public interest against disclosure of this information. 1. Also of relevance is the Tribunal's conclusion at [37] – [39] which we have already quoted above. 2. The following comments can be made about the Tribunal's treatment of the factors raised by the Appellant in support of disclosure. 3. First, only one of the many factors raised by the Appellant is dealt with specifically by the Tribunal, namely at [33], when summarising the submissions that it is in the public interest for all information leading to a presumption that a person lacks capacity, to be disclosed. 4. Second, even though the Tribunal identified this submission, it made no finding as to whether this public interest factor is accepted or, if so, what weight it was given. Instead, based on the lack of any evidence and the Tribunal's own observation, the Tribunal found, in effect, that the Appellant did not lack capacity. This conclusion at [34], leaves the Appeal Panel unsure as to what extent the Tribunal may have agreed with the public interest factor being considered or the weight it should be given. 5. Third, the Tribunal stated that it could 'readily understand' the Appellant's desire to know the contents of the confidential information which has adversely affected her. Also, the Tribunal commented on there being 'real questions' about the process and assumptions made by the Police. Again, this leaves the Appeal Panel unsure as to whether or not this relates to any of the specific public interest factors in favour of disclosure raised by the Appellant and the Tribunal's attitude to them. Again, one is unable to know whether the Tribunal is accepting, discounting or dismissing any of the public interest factors said to be in favour of disclosure. 6. Fourth, the Tribunal then made reference to the fact that the Tribunal was not called upon to determine a claim for 'age discrimination': at [35]. The Tribunal pointed out that it has no jurisdiction to determine such a case.. While the Tribunal was correct to conclude that it has no jurisdiction to determine a complaint of age discrimination, the question it did need to determine was whether disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct: Note to s 12 of the GIPA Act. The unlawful conduct was said to be a breach of federal or NSW age discrimination laws. The Tribunal made no finding as to that personal factor which the Appellant submitted was a public interest consideration in favour of disclosure. 7. Fifth, the Tribunal found that it was not called upon to 'review the investigation' and that 'there is no reason to doubt the evidence from the witness to the incident'. The Tribunal was correct to say that it is not its role to review the investigation, but it should identify and address each of the public interest considerations and personal factors raised by the parties as being relevant to a determination of the ultimate question. That question is whether there is an overriding public interest against disclosure; GIPA Act, s 13. 8. Sixth, the Tribunal stated at the end of [35] that it was satisfied 'that releasing the withheld information would not assist the applicant to contest her liability'. The Tribunal did not address the relevant issue which was the effect, if any, of the personal factors in s 55. In particular, what were the Appellant's motivations for making the access application and what weight should those motivations be given in determining whether there was an overriding public interest against disclosure. 9. The overall impression is that the Tribunal was not particularly persuaded by the various public interest and personal factors being raised by the Appellant. However, there are no specific findings made one way or the other in this regard. 10. In the result there are no express findings made by the Tribunal as to whether or not it upheld any of the public interest or personal factors raised by the Appellant in favour of disclosure and there is an absence of findings as to what weight was being attributed to any such factors. 11. Seventh, the Tribunal at [37] – [38] refers to the proposition that it would be for a collateral purpose to seek documents under the GIPA Act in order to review the conduct of government agencies. The Appellant submitted that she is not seeking to conduct any such review and the Tribunal did not make any findings as to the application being for a collateral purpose. 12. The difficulty we have with the statements at [37] – [38] is that the Tribunal does not expressly tie them to any particular public interest factor in favour of disclosure raised by the Appellant. Again, the impression left is that the Tribunal was discounting the Appellant's submissions in favour of disclosure, though it is unknown to what extent. 13. Lastly, the Tribunal at [39] stated that it has carefully considered the public interest factors both in favour and against disclosure and found that those against disclosure outweighed the factors for disclosure. 14. The Respondent contended that the Tribunal's conclusion and reasoning are adequate particularly given that some of the public interest factors were not in dispute by the Respondent. Further, the Respondent contended that it was not necessary to make individual findings nor to attribute weight in an individual way to any particular public interest factor. Accordingly, there was no failure to apply the Act nor (this being ground 2) was there any inadequacy in the reasons. 15. We are unable to agree with this submission. 16. Under the GIPA Act there are public interest factors in favour of disclosure (s 12 GIPA Act) and there are personal factors of the application which may weigh in favour of or indeed against disclosure (s 55 GIPA Act): see Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 at [33]. 17. Personal factors under s 55 are different from public interest considerations in favour of disclosure which are provided for in s 12: see Snape No 2 at [33]. 18. In our opinion, whilst the Tribunal referred to the public interest and personal factors in favour of disclosure put forward by the Appellant in a global way and 'considered them' it failed to identify which of the public interest and personal factors in favour of disclosure might apply or assign them any weight. 19. The Tribunal did conclude that the public interest considerations against disclosure outweighed those in favour of disclosure but did not identify which of those factors it had accepted or rejected. 20. The Appeal Panel dealt with a similar situation in Snape (No 2) at [41]: In the present case the Tribunal did not identify what public interests in favour of disclosure might apply, assign them any weight, or purport to balance them against the public interest considerations against disclosure. It also did not find that there were no relevant public interests in favour of disclosure. It did conclude that the public interest considerations against disclosure outweighed those in favour of disclosure but did not identify what those factors in favour were. Rather, it treated the appellant's personal factors as the only factors favouring disclosure. In doing so the Tribunal failed to have regards to essential elements of the balancing exercise under s 13. It did not identify public interest considerations in favour of disclosure, or attribute weight to them (assuming there were some). 1. In our opinion, the Tribunal's exercise of the discretion given to it under s 13 of the GIPA Act miscarried when it failed to ask itself or determine whether any of the specific factors raised by the Appellant in favour of disclosure applied or what weight should be given to them. This amounts to an error of law or a constructive failure to exercise the jurisdiction required to be exercised under the GIPA Act. 2. Accordingly, in our view, the decision cannot stand. Whilst this makes it unnecessary for us to address the other grounds of appeal, we will briefly express our views on those grounds. Ground 2 Appellant's submissions 1. The Appellant submitted, relying substantially on the submissions made previously, that the reasons for decision were inadequate in accord with the principles set out by the NSW Court of Appeal in NSW Land and Housing Corporation v Orr [2019] NSWCA 231. Respondent's submissions 1. The Respondent did not dispute that there was a requirement for the Tribunal to give adequate reasons. 2. The Respondent sought to uphold the adequacy of the reasons of the Tribunal by submitting that focus should not just be given on the Tribunal's reasons at [36] – [39], but that regard must be had to the statement of the relevant legal principles outlined by the Tribunal earlier in its decision. 3. Further, the Respondent submitted that the fact that the Tribunal did not refer and respond to every submission made by the Appellant does not give rise to an error of law. The Respondent referred to the Appeal Panel's decision in DMP v Sydney Local Health District [2022] NSWCATAP 357 at [59], in support of the proposition that not every submission or piece of evidence put forward by the parties must be referred to by the Tribunal. According to the Respondent only the 'central controversies' which are put out for resolution by the parties must be dealt with. In this regard the Respondent contended that the Tribunal's reasons were directed primarily to the resolution of the central controversies arising before it. Consideration 1. Firstly, we note the parties accept that the Tribunal was under an obligation to provide 'adequate reasons'. We note that section 62(3) of the NCAT Act provides that a written statement of reasons, given on request by a party under s 62(2), must set out: 1. The findings on material questions of fact, referring to the evidence or other material on which those findings were based; 2. The Tribunal's understanding of the applicable law; and 3. The reasoning process that led the Tribunal to the considerations it made. 1. Otherwise, the general principles applicable to the requirement to provide adequate reasons are not in doubt in these proceedings and have been explained in recent decisions including Land and Housing Corporation v Orr [2019] NSWCA 231 at [65] – [77]; The State of New South Wales v Forbidden Foods Pty Ltd [2020] NSWCATAP 182 at [215] – [219]; Meacham v Commissioner of Police [2020] NSWCATAP 107. 2. In our opinion, the Tribunal's reasons fall short of the standard required by the legislation and the relevant principles. 3. The Appellant made specific submissions that various public interest factors supported disclosure including the fact that disclosure of the information 'could reasonably be expected to': 1. Promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance; 2. Inform the public about the operations of agencies, and, in particular their policies and practices when dealing with members of the public; and 3. Reveal or substantiate that an agency (or member of an agency) has engaged in misconduct or negligence, improper and unlawful conduct. 1. The above issues, in our opinion, are 'material questions of fact'. While the Appellant did not have access to the redacted material, she asked the Tribunal to consider the confidential information when making findings on the above questions. 2. In our view, pursuant to s 62(2) of the NCAT Act the Tribunal was required to make specific findings on the above issues and refer to the evidence or other material on which such findings were based. It was not sufficient for the Tribunal simply to 'consider' the above factors and simply state that they were 'outweighed' by the factors against disclosure. 3. It was necessary for the Tribunal to make specific findings on whether or not in its view these factors were made out by the evidence or other material before it and what weight was to be given to them. For the reasons given above, only then could the balancing exercise required by the Act be conducted. 4. Similarly, in respect of the s 55 personal factors that were contended for by the Appellant, the Tribunal made the statement that the material would be unlikely to support the Appellant in its dispute about liability for the damage to the other person's vehicle. That fact was not in issue. The issue was the weight, if any, that should be given to the Appellant's motivations for making the access application. 5. As outlined by Bell P in Orr at [73] – [77]: * whilst a detailed exposition of every element of the evidence and arguments is not necessary, a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is required; DBR_1. the reasons must indicate to the parties why the decision was made and allow them to exercise any rights that may be available to them in respect of the decision (including any rights on appeal); * the reasons must provide an explanation connecting any findings of fact with the decision; DBR_2. it is not necessary to decide each factual issue in isolation from the others, and expressing conclusions in sequence does not indicate a failure to consider the evidence as a whole. 1. In our view, the failure to make express findings on any of the individual matters put forward by the Appellant in support of disclosure and the failure to attribute them weight, leads to the conclusion that the Tribunal's reasons were inadequate. In particular, the fact that the Tribunal considered together all public interest factors or other factors in support of disclosure and merely stated that such factors were outweighed by the factors against disclosure, meant that the Appellant's rights to challenge the decision on appeal were significantly compromised. 2. In conclusion, we uphold this ground of appeal. Ground 3 Appellant's submissions 1. Ground 3 states that the Tribunal misapplied the cases of Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95, GA v The University of Sydney [2009] NSWADT 230 and Crewdson v Central Sydney AHS [2002] NSW 345 in concluding that the Appellant in this case sought the documents for a collateral purpose. 2. The Appellant referred to [37] – [38] of the decision. We have already quoted these paragraphs above. The Appellant contended that such paragraphs amounted to the Tribunal taking into consideration irrelevant matters. The Appellant was not seeking a review of the government agency in question but was raising legitimate considerations which supported her case. Respondent's submissions 1. The Respondent submitted that the Tribunal's citation of the decisions in Choi and Crewdson were in support of the proposition that seeking a review of a government agency would amount to a collateral purpose. According to the Respondent this was 'undoubtedly' a correct statement of the law. 2. Accordingly, there was no error in the Tribunal's reference to the decisions in question. Consideration 1. We agree with the Respondent that strictly the Tribunal did not err in its 'application' of the decisions in question. The decisions stand for the propositions extracted from them by the Tribunal. Nevertheless, there is some force in the Appellant's submission that the Tribunal allowed itself to be distracted by considering the principles of these cases. In this way the Tribunal was diverted from considering one of the tasks that was necessarily before it – that is, , making express findings as to the existence of factors in favour of disclosure and attributing weight to them. 2. In the result, however, we agree with the Respondent and do not uphold this ground of appeal as a separate ground of appeal from that dealt with by us as part of ground 1. Ground 4 Appellant's submissions 1. Ground 4 is that the Tribunal did not take into account that the Appellant was not seeking 'personal information' and had agreed to the redaction of any identifying information from documents, which would nullify the application of s 14, (2)(a) and (3)(a) of the GIPA Act in so far as they relate to the disclosure of 'personal information' as a reason against disclosure. 2. In this regard the Appellant referred firstly to [25] as follows: The Respondent submits that the redacted information is personal information as individuals are able to be identified from the information or their identities are reasonably apparent from the information. It includes names, contact details and other information of their personal circumstances. The disclosure of that information to the public at large renders individuals identifiable or contactable by other persons including persons unknown to the individuals to whom the information relates. 1. The Appellant nextly referred to [32]: I have read the redacted information in detail and at length. I accept the evidence of Constable Tunks as to how this information was obtained and treated in confidence. I am satisfied that it contains the names and contact details of people or that their identities can be ascertained from the information. I am satisfied the redacted material is personal information and that disclosure of the material could reasonably be expected to disclose an individual's personal information. 1. The Appellant submitted that the Tribunal erred in failing to consider that the Appellant was seeking, at least in the alternative, the information in a redacted form so as to exclude personal information and any identifying information. 2. The Appellant contends that the Tribunal, at least so far as the disclosed reasons are concerned, did not consider this alternative submission. Respondent's submissions 1. The Respondent accepted that there was at least 'one line' of the Appellant's submissions where the Appellant was seeking the information with any identifying material or personal information redacted. The submission was made that, however, the vast majority of the submissions put was in respect of seeking the information as a whole. Consideration 1. We agree with the Appellant's submissions. It is clear on the face of the two witness' statements that they contain personal information. However, there are parts of the document that do not contain personal information. 2. It appears to us that the Tribunal in making the statement that the 'redacted material is personal information and the disclosure of the material' could be expected to disclose an individual's personal information (our emphasis), the Tribunal was considering the document as a whole as opposed to the material in a redacted form where the personal information or identifying information is deleted. 3. The result of this conclusion is that the Tribunal failed to deal with a necessary and crucial submission made by the Appellant and also its expressed reasons were inadequate. 4. This involves errors of law and we uphold this ground of appeal. Ground 5 Appellant's submissions 1. The Appellant in this ground contended that the Tribunal erred in concluding that she was seeking the determination of an age discrimination case or a review of Police processes when the matter was an application under the GIPA Act for the disclosure of information. 2. The Appellant focused on [35] which we have quoted above. 3. The Appellant contended that the Tribunal in this paragraph focused on irrelevant considerations and on submissions that the Appellant was not in fact making. Respondent's submissions 1. The Respondent submitted, when read fairly in the context of the reasons as a whole, that [35] can be understood as an acknowledgement by the Tribunal of the Appellant's very legitimate interest in accessing the information, which would be a s 55 personal factor relevant to accessing the public interest associated with disclosure. Significantly, the Tribunal acknowledged the force of the Appellant's concerns regarding the investigation. However, the Respondent contended, the Tribunal was clearly delineating the parameters of the task before it and, in doing so, explaining why the Appellant's concerns are not matters that can be substantively resolved by the Tribunal. The reference to a claim for age discrimination was a clear reference to a submission made by the Respondent. Consideration 1. We agree with the Respondent's submissions. Viewed on its own, the Tribunal's statement of what was beyond the tasks of the Tribunal when considering a request for access to documents under the GIPA Act does not amount to an error of law. However, as we have found above, while the Tribunal was correct to conclude that it has no jurisdiction to determine a complaint of age discrimination, the question it did need to determine was whether disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct: Note to s 12 of the GIPA Act. The Tribunal did not determine that issue. 2. We are not satisfied that the mere statement that a claim for age discrimination is beyond the jurisdiction of the Tribunal when assessing an application under the GIPA Act amounts to taking into account an irrelevant consideration. 3. Accordingly, we do not uphold this ground of appeal. Ground 6 Appellant's submissions 1. Ground 6 is that the Tribunal erred in law in making the following findings of fact for which there was no probative evidence: 1. That the documents sought would not assist the Appellant to resist the claims of the insurer; 2. that the information sought was for a 'collateral purpose'; 3. that witnesses automatically expect their accounts of what happened given to Police would be kept confidential; 4. that the disclosure of documents would reveal identifying information when the Appellant explicitly agreed to the remove of such information from the documents sought; and 5. that there was no reason to doubt the evidence given by Constable Tunks given that Constable Tunks conceded in cross-examination that he did not actually tell the witness that the information was obtained in confidence. Respondent's submissions 1. The Respondent's submissions at (44) – (45) were as follows: 44. While the respondent accepts the proposition that in certain circumstances, a finding of fact in the absence of probative evidence can amount to an error of law, it is submitted that the matters raised by the appellant are more properly characterised as her disagreement with various conclusions reached by the Tribunal on the basis of the material before it. This becomes even more apparent when regard is had to the respondent's submissions in support of this ground, at AS [9]. It is the respondent's primary submission that most of the matters raised by the appellant by her ground 6 are, in substance, a challenge to the merits Tribunal's decision requiring leave, and that leave should be refused. 45. Dealing more specifically with the matters raised by the appellant (adopting the same numbering as in [43] above): a. The Tribunal concluded at [35] that, "having considered the content of the Confidential Bundle, I'm satisfied that releasing the withheld information would not assist the Applicant to contest her liability to pay for the damage claimed": this was an assessment that was open to the Tribunal to make, in particular having regard to the content of the information that was in dispute, as reflected in the Confidential Bundle; b. The Tribunal did not make a finding that the applicant sought the information for a "collateral purpose" as has been contended. The Tribunal's reference to a "collateral purpose" in its reasons at [38] above has been addressed at length in the respondent's submissions above, at [28]-[31]; c. The Tribunal, at [19], did not accept the appellant's proposition that "witnesses and bystanders don't assume their evidence will be kept confidential" but instead concluded "on the available evidence I consider the reverse of that proposition to be the case." The Tribunal went on to find, at [20], "that the relevant information was provided on a confidential basis". The Tribunal's comments at [19], and conclusion at [20], were findings of fact that were open to the Tribunal: i. having regard to the evidence before it going directly to this issue, including the sworn evidence of Constable Tunks; and ii. applying the approach set out by the Appeal Panel in Transport for NSW v Searle [2018) NSWCATAP 93, having regard to "inferences drawn from the objective and otherwise established facts, rather than the subjective views of witnesses," including the considered and understandable confidentiality of the investigation process (in this case, as reflected in the NSW Police Customer Service Charter) and the rationale for such confidentiality. It is notable, also, that the Tribunal's decision in this regard is consistent with a long line of court and Tribunal decisions that have found that information supplied to the NSW Police in the course of investigations is supplied under conditions of confidentiality. d. The Tribunal's conclusion that disclosure of the disputed information would reveal personal information was a mixed finding of law and fact that was open to the Tribunal on the basis of the material before it. To the extent the applicant is aggrieved by the Tribunal not referring to her agreement to the redaction of personal information, this is addressed in the respondent's submissions in reply to ground 4, at 33-36 above. e. Having observed that the Tribunal was not "called upon to review the investigation carried out in relation to [the] incident, or the findings of that investigation", the Tribunal went on to comment that "[t]here is no reason to doubt the evidence of the witness to the incident" (at [35]). It is clear, when that latter statement is read in the context of [35] as a whole, that the Tribunal was not making a positive finding as to the truth or otherwise of the evidence of the witness, that being a matter falling outside the scope of the Tribunal's jurisdiction. The observation was one which was open to the Tribunal to make, having regard to the material before it, and also having regard to the context in which it was made. f. By this final matter the appellant, again, appears to dispute the Tribunal's finding, at [20], that the disputed information was supplied in confidence. The respondent relies on its response to this submission at [45](c) above. 1. The Respondent's submissions also cross-referenced (28 – 31) of its submissions which are as follows: 28. The appellant's ground 3 is that the Tribunal misapplied the cases of Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95; GA v University of Sydney [2009] NSWADT 230 and Crewsdon v Central Sydney AHS [2002] NSWCA 345 in concluding that the appellant sought access to documents for a collateral purpose. This ground is addressed, further, in the Appellant's Submissions at AS [7]. 29. The part of the Decision with which this ground is concerned is at [37]-[39]. Relevantly, the Tribunal noted at (37] that "[t]he Applicant's submissions impugn the quality of the police investigation and the related Question of Fitness decision made by police". The Tribunal acknowledged that "(t]here are some matters of concern about the detail of the investigation", however, concluded that these matters "[did] not relate to the refusal decision". 30. The Tribunal's citation of the decisions in Choi, GA and Crewsdon, at [37]. were in support of the proposition that the Tribunal's review was concerned with access to government records and that "[a] review of the investigation would be for a collateral purpose." This is, undoubtedly, a correct statement of the parameters of the Tribunal's task in undertaking its review of the respondent's decision under the GIPA Act. 31. There was no error in the Tribunal's reference to the decisions of Choi, GA and Crewsdon. The Tribunal did not, as the appellant contends, make a finding that the appellant sought the information requested for a collateral purpose. Rather, the Tribunal's comments must be understood as being made in response to elements of the appellant's evidence and submissions that went beyond the scope of the dispute to be determined by the Tribunal. The respondent does not understand the appellant to be suggesting that the Tribunal was incorrect in identifying the merits of the police investigation as being a matter beyond the scope of its task in undertaking a review under the GIPA Act. 32. It follows that there was no error on the part of the Tribunal as contended by ground 3. In referring to these cases, the Tribunal was making a correct statement as to the nature and scope of its task in undertaking administrative review of a decision under the GIPA Act. Consideration 1. This ground relied upon the error of law known as 'no evidence'. 2. In respect of this ground, we agree with the submissions of the Respondent for the reasons put forward by it. We would add that it was not necessary for the Tribunal to make the finding in (1) or (2). 3. In our view, it cannot be said that in respect of findings (3), (4) and (5) that there was no evidence that could have grounded the Tribunal's findings. 4. For example, in respect of the key finding of the Tribunal challenged by the Appellant that the information was provided in confidence, we agree with the Respondent's submission that whether or not there existed an 'implied obligation of confidence' is a matter of inference to be drawn from all of the surrounding circumstances and can be made in the absence of any direct or express statements or agreements as to the information being kept confidential. 5. Accordingly, we dismiss this ground of appeal. Ground 7 Appellant's submissions 1. Ground 7 was that the Tribunal erred by preferring the evidence of Constable Tunks to the evidence of the Appellant. 2. This does not amount to any error of law. 3. However, as the submission developed the Appeal Panel is able to discern an error of law. The Appellant's submission focused on [22] - [23] of the decision as follows: 22 The Respondent submits "the witness to this incident was an informant, within the ordinary meaning of that word, in that they provided information to the police. The word informant is not limited to police informers (see for example NSW Office of Liquor, Gaming and Racing v Fahey (2012) NSWADTAP 55) but plainly includes them. Revealing the redacted information relating to the witness would reveal their identity as an informant. That much is plain on the face of the Confidential Bundle. Revealing the identity of an informant would expose them to the risk of reprisals from offenders. As noted above at (45], that is an actual and foreshadowed risk in this case." The latter reference comes from the evidence of Constable Tunks, to the effect that the Applicant blamed the witness who reported the incident. The Applicant submits the suggestion of possible reprisals is without foundation. The Applicant states (paragraph 65) she did not tell Tunks that she blamed the witness. 23 The principal issue for consideration here however, is not reprisal but could disclosure "reasonably be expected to...reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant"? On the face of the records the answer to that question is yes. Disclosure of the information would absolutely reveal the identity of an informant. The Respondent's investigations rely on information often from members of the public and such disclosure could reasonably be expected to inhibit or prevent members of the public from coming forward in the future with crucial and relevant information and this would negatively affect the Respondent's ability to gather evidence for its investigation function. 1. The complaint of the Appellant was that, as recorded at [22], the suggestion of possible reprisals was without foundation. Then the Appellant stated in paragraph 65 of her affidavit that she did not tell Constable Tunks that she blamed the witness. 2. The Appellant's submission focussed upon the fact that paragraph 65 of the Appellant's affidavit was not the subject of any cross-examination. Accordingly, the Tribunal ought to have accepted the Appellant's evidence in this regard and the failure to do so in the absence of any challenging cross-examination amounted to a denial of procedural fairness. 3. So framed, we accept this involves a question of law as to whether or not the Tribunal afforded the Appellant procedural fairness. Respondent's submissions 1. The Respondent submitted that essentially the Tribunal did no more than note the evidence given by the two witnesses, Constable Tunks and the Appellant and the submissions made by the Respondent that there is always the risk of reprisals in such a case. 2. According to the Respondent, having noted the evidence and submissions, the Tribunal's actual conclusion at [23] was that this was not a relevant matter that needed to be decided. 3. As identified by the Tribunal the question was whether or not it could reasonably be expected that disclosure of the information would inhibit or prevent members of the public from coming forward in the future. Consideration 1. We agree with the Respondent's submissions and uphold this ground of appeal for the reasons put forward by it. 2. The Tribunal did not, as suggested by the Appellant, find or otherwise imply that the Appellant was lying or that her evidence about not blaming the Witness was not to be accepted. There simply were no relevant findings made because the Tribunal took the view, correctly in our view, that it was not necessary to make any such findings about the conflict in the evidence between Constable Tunks and the Appellant. 3. In our view, the way that the Tribunal dealt with this matter did not involve any denial of procedural fairness to the Appellant. 4. Accordingly, we did not accept this ground of appeal. Costs 1. The Appellant in her written submissions sought costs, being her expenses on appeal and on any re-hearing. As noted above, the Appellant was not legally represented but was by leave of the Tribunal, represented by an agent being Ms Robin Gurr. 2. The Tribunal pointed out to the Appellant that costs were only awarded in the case of 'special circumstances' pursuant to s 60 of the NCAT Act. 3. The Appellant had made no submissions in support of the existence of 'special circumstances' and at the hearing of the appeal withdrew the application for costs. Orders of the Appeal Panel 1. The Appellant sought and received submissions from the parties as to whether or not the Appeal Panel, in the event of the appeal being upheld, should determine the issues for itself on a re-hearing or whether the matter should be remitted for reconsideration to the Administrative and Equal Opportunity Division of the Tribunal. 2. The Appellant expressed no preference as to whether or not the Tribunal should remit the matter. 3. The Respondent ultimately supported the matter being remitted for reconsideration. 4. This determination of the real issues in this matter involves not only consideration of the evidence but also disputed issues of fact which were explored in cross-examination. We are not confident that we can deal with these disputed issues of fact without hearing the witnesses for ourselves. 5. We are also not confident that we have all of the evidence and submissions made below. 6. Accordingly, in all of the circumstances, given the complexity of the factual issues involved and the contest on the evidence, including matters going to the credibility of witnesses, we have decided that the preferable course is to remit the matter for reconsideration with the ability to lead fresh evidence. Orders 1. The orders of the Appeal Panel are: 1. The Appeal is allowed. 2. The decision is set aside with the whole of the decision remitted to the Administrative and Equal Opportunity Division, differently constituted, to be reconsidered, with fresh evidence allowed. 3. In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication, other than to the Commissioner of Police, NSW Police Force of the contents of the Respondent's 'Confidential Bundle' received by the Appeal Panel is prohibited. 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: 12 April 2023