Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Joseph v Kiama Municipal Council (No 3) [2023] NSWCATAD 243 Hearing dates: 5 and 6 July 2023 Date of orders: 11 September 2023 Decision date: 11 September 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: 1. In relation to GIPA 1, I affirm the respondent's decision dated 12 April 2022, as varied on 10 April 2022 and 26 May 2023. 2. In relation to GIPA 2, I affirm the respondent's decision dated 6 May 2022, as varied on 26 May 2023. 3. In relation to GIPA 3, I affirm the respondent's decision dated 6 May 2022, as varied on 26 May 2023. Catchwords: ADMINISTRATIVE LAW – administrative review – Government information – application for recusal – alleged improper conduct of the agency – whether a GIPA applicant can seek an order referring an Agency to the responsible minister before completion of an administrative review – whether allegations made by a GIPA applicant in relation to s 112 of the GIPA Act operate such that the respondent is deemed to have waived privilege over documents sought under a summons under s 125 of the Evidence Act Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil Procedure Act 2005 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Copyright Act 1968 (Cth) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Government Information (Public Access) Regulation 2018 (NSW) Interpretation Act 1987 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Bienstein v Bienstein (2003) 195 ALR 225 CLT v Secretary, Department of Education [2022] NSWCATAD 34 CNY 17 v Minister for Immigration and Boarder (sic) Protection (2019) 2019 CLR 78 Charisteas v Charisteas (2021) 273 CLR 289 EMC v The University of Sydney [2021] NSWCATAD 234 Ebner v Official Receiver in Bankruptcy [2000] VLR 337 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Johnson v Johnson (2000) 201 CLR 488 Joseph v Kiama Municipal Council [2022] NSWCATAD 392 Klaric v Commissioner of Police [2020] NSWCATAP 153 Leech v Sydney Water Corporation [2010] NSWADT 298 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Mino v Legal Aid NSW [2015] NSWCATAD 245 Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 Pedestrian Council of Australia Limited v North Sydney Council [2014] NSWCATAD 80 Saggers v Environment Protection Authority [2013] NSWADT 204 Sandy v Kiama Municipal Council [2019] NSWCATAD 49 Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189 Taylor v Destination NSW [2017] NSWCATAD 272 Tisdale v Cumberland City Council [2021] NSWCATAD 132 Transport for NSW v Searle [2018] NSWCATAP 93 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 YG & GG v Minister for Community Services [2002] NSWCA 247 Zonnevylle v Department of Justice [2019] NSWCATAP 44 Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47 Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74 Zonneyville v Secretary, NSW Department of Education [2022] NSWCATAD 56 Category: Principal judgment Parties: Michael Joseph (Applicant) Kiama Municipal Council (Respondent) Representation: Counsel: Applicant (Self-represented) Bradley Allen Love Lawyers (Respondent) File Number(s): 2022/00235607, 2022/00236000 and 2022/00251353 Publication restriction: Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked "NOT FOR PUBLICATION", other than to the respondent (Kiama Municipal Council) is prohibited. REASONS FOR DECISION Background 1. In this matter Mr Michael Joseph (the applicant) has lodged three separate applications with the Tribunal, each seeking administrative review of decisions that Kiama Municipal Council (the respondent) made in respect of three separate applications for access to information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) (the GIPA requests). 2. The applications for administrative review are made under s 100(1) of the GIPA Act, which provides that a person aggrieved by a reviewable decision of an agency made under the GIPA Act may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). 3. The current applications arise out of a property and planning dispute between the applicant and his neighbours, Mr & Mrs Spencer (the Spencers). There is an extensive history of related litigation, which has previously been described by the Tribunal as "long and exhaustive". However, I have not set that history out in this decision. GIPA 1 1. The applicant lodged his first GIPA request ("GIPA 1") with the respondent on 15 March 2022, seeking access to the following information: All documents in relation to the preparation for lodging and the assessment of development application DA 2021.45.1 in the period 1/5/2021 to date. All documents in relation to the processing of GIPA applications lodged 15 June and 2 July 2021 including any documentation as to searches made by KMC in fulfilment [of] those applications. All documents received by KMC from the "owners" of [address omitted], or sent by KMC to the "owners" in relation to the agenda item 12.10 to be considered by KMC at its meeting of 14th and/or 15th February 2022. All documents prepared by KMC for any consideration of agenda item 12.10 for meeting of 14th and/or 15th February 2022. Any document in relation to any meeting attended by any [councillor] in relation to agenda item 12.10 for meeting on 14th and/or 15th February 2022. All communication between KMC and the independent assessor Mr P Mitchell including invoices and receipts. All documents identifying the budget for "legal services" for financial year 2020-2021 and 2021-2022. All documents being a communication between KMC and owners since 1/3/2020 to date. All documents in relation to site visits by KMC to [address omitted] since 1/5/2021 to date. All GIPA applications to KMC made by the owners since 1/5/21 to date, and the contents of the responses. All documents in respect of the current positions held by the following employees: 1. Mr Leo; 2. Mr L Jones; 3. Mr Herbert; and 4. Mr Randall All documents in relation to any investigation or assessment carried out by KMC in respect to a complaint of M Joseph forwarded to KMC in January 2020. All documents in relation to any investigation or assessment as to the granting of approval [to] DA.2017.307 by KMC in October 2018 and any lessons learnt. Initial decision 1. On 12 April 2022, Ms Critcher, Governance Officer, made a decision pursuant to s 58(1) of the GIPA Act, in which she located a total of 46 documents that fell within the scope of the request (identified as documents 1 to 46 in the amended schedule of documents found at Tab 1 of Exhibit AC-02). She: 1. Released 4 documents in full (documents numbered 26, 27, 28 and 29); 2. Released 22 documents in part with redactions of personal information etc. (documents numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15, 16, 17, 18, 19, 23, 24 and 250); 3. Withheld 18 documents on the basis that there was an overriding public interest against disclosure of the information (documents numbered 20, 21, 22, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 46); and 4. Declined to release 4 documents on the basis that the applicant already had access to them (documents numbered 33, 43, 44 and 45). Second disclosure 1. On or about 10 October 2022, Ms Critcher conducted some further searches of the respondent's internal email system ("Vault") and located 18 additional documents (identified as documents 47 to 64b in the amended schedule of documents found at Tab 1 of Exhibit AC-02). Of these further documents, she: 1. Released 6 documents in full (documents numbered 56a, 60, 61a, 62, 63 and 64a); 2. Released 6 documents in part with redactions for personal information etc. (documents numbered 47, 48, 49, 50, 51, 53, 57, 58 and 59); 3. Withheld 1 document on the basis that there was an overriding public interest against disclosure of the information (document 61b); and 4. Declined to release 5 documents on the basis that the applicant already had access to them (documents numbered 52, 54, 55, 56b and 64b). Third disclosure 1. On 26 May 2023, the respondent decided to make an additional disclosure of the information and prior to the hearing on 5 June 2023, it withdrew its reliance on item 3(f) of the table to s 14(2) of the GIPA Act. 2. Therefore, the position regarding disclosure of information as at 5 July 2023 was as follows: Document Particulars 1 Released in part (see Ex AC-02 at Tab 1, pages 15 to 40). Redactions were made to protect an individual's personal information: cl 3(a) 2 Released in part (see Ex AC-02 at Tab 2, page 41). Redactions were made to protect an individual's personal information: cl 3(a) 3 Released in part (see Ex AC-02, Tab 3, pages 42-43). Redactions were made to protect an individual's personal information: cl 3(a) 4 Released in part (see Ex AC-02, Tab 4, pages 44-45). Redactions were made to protect an individual's personal information: cl 3(a) 5 Released in part (see Ex AC-02, Tab 5, pages 46-470. Redactions were made to protect an individual's personal information: cl 3(a) 6 Released in part (see Ex AC-02, Tab 6, page 48). Redactions were made to protect an individual's personal information: cl 3(a) 7 Released in part (see Ex AC-02, Tab 7, page 49). Redactions were made to protect an individual's personal information: cl 3(a) 8 Released in part (see Ex AC-02, Tab 8, page 50). Redactions were made to protect an individual's personal information: cl 3(a) 9 Released in part (see Ex AC-02, Tab 9, page 51). Redactions were made to protect an individual's personal information: cl 3(a) 10 Released in part (see Ex AC-02, Tab 10, page 52). Redactions were made to protect an individual's personal information: cl 3(a) 11 Released in part (see Ex AC-02, Tab 11, page 52). Redactions were made to protect an individual's personal information: cl 3(a) 12 Released in part (see Ex AC-02, Tab 12, page 54). Redactions were made to protect an individual's personal information: cl 3(a) 13 Released in part (see Ex AC-02, Tab 13, page 55). Redactions were made to protect an individual's personal information: cl 3(a) 14 Released in part (see Ex AC-02, Tab 14, pages 56-86). This document consists of: (a) An email to which redactions have been made to protect an individual's personal information: cl 3(a); and (b) An attachment to the email, which is a DA submission, to which redactions of photographs and other diagrams have been made to protect copyright: s 6(1) of the GIPA Act. The respondent offered to provide the applicant with "view only" access to the unredacted document based on the Tribunal's decision in Sandy v Kiama Municipal Council [2019] NSWCATAD 49 (Sandy) 15 Released in part (see Ex AC-02, Tab 15, pages 87-89). Redactions were made to protect an individual's personal information: cl 3(a) 16 Withheld due to Copyright issues. The respondent offered to provide the applicant with "view only" access to this document. 17 Released in part (see Ex AC-02, Tab 17, pages 90-121). The document consists of two parts: (a) An email to which redactions have been made to protect an individual's personal information: cl 3(a); and (b) An attachment to the email, which is a DA submission, to which redactions of photographs and other diagrams have been made to protect copyright: s 6(1) of the GIPA Act. The respondent offered to provide the applicant with "view only" access to document 14 with the photographs and diagrams unredacted, based on the Tribunal's decision in Sandy 18 Released in part (see Ex AC-02, Tab 18, pages 122-123). Redactions were made to protect an individual's personal information: cl 3(a) 20 Released in part (see Ex AC-02, Tab 20, page 149). Redactions were made to protect a person's legitimate business, commercial, professional or financial interests: s 14(2) cl 4(d) of the GIPA Act. 21 Released in part (see Ex AC-02, Tab 21, pages 150-151). Redactions were made to protect a person's legitimate business, commercial, professional or financial interests: s 14(2) cl 4(d) of the GIPA Act. 22 Released in part (see Ex AC-02, Tab 22, page 152). Redactions were made to protect a person's legitimate business, commercial, professional or financial interests: s 14(2) cl 4(d) of the GIPA Act. 23 Released in part (see Ex AC-02, Tab 23, page 153). Redactions were made to protect an individual's personal information: cl 3(a) 24 Released in part (see Ex AC-02, Tab 24, page 154). Redactions were made to protect an individual's personal information: cl 3(a) 25 Released in part (see Ex AC-02, Tab 25, page 155). Redactions were made to protect an individual's personal information: cl 3(a) 26, 27, 28 & 29 Released in full Withheld on the basis that its contents could reasonably be expected: 30 (a) to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: s 14(2) cl 1(e) of the GIPA Act; and/or (b) to prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency: s 14(2) cl 1(h) of the GIPA Act; and (c) it is subject to legal professional privilege for which there is a conclusive presumption against disclosure: Sch 1 cl 5 of the GIPA Act Withheld on the basis that its contents could reasonably be expected: 31 & 32 (a) to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: s 14(2) cl 1(e) of the GIPA Act; and/or (b) to prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency: s 14(2) cl 1(h) of the GIPA Act 33 Not disclosed as the applicant already had access to it. Withheld on the basis that its contents could reasonably be expected: 34, 35 & 36 (a) to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: s 14(2) cl 1(e) of the GIPA Act; and/or (b) to prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency: s 14(2) cl 1(h) of the GIPA Act; and (c) it is subject to legal professional privilege for which there is a conclusive presumption against disclosure: Sch 1 cl 5 of the GIPA Act 37, 38, 39, 40, 41 & 42 Withheld due to Copyright issues. The respondent offered to provide the applicant with "view only" access. 43, 44 & 45 Not disclosed because they were publicly available 46 Released in part (see Ex AC-02, Tab 46, pages 228-229). Redactions were made to protect an individual's personal information: cl 3(a) 47 Released in part (see Ex AC-02, Tab 47, pages 230-233). Redactions were made to protect an individual's personal information: cl 3(a) 48 Released in part (see Ex AC-02, Tab 48, pages 234-239). Redactions were made to protect an individual's personal information: cl 3(a) 49 Released in part (see Ex AC-02, Tab 49, pages 240-245). Redactions were made to protect an individual's personal information: cl 3(a) 50 Released in part (see Ex AC-02, Tab 50, pages 246-252). Redactions were made to protect an individual's personal information: cl 3(a) 51 Released in part (see Ex AC-02, Tab 51, pages 253-257). Redactions were made to protect an individual's personal information: cl 3(a) 52, 54, 55 & 56b Not disclosed because the applicant already had access to it 53 Released in part (see Ex AC-02, Tab 53, page 258). Redactions were made to protect an individual's personal information: cl 3(a) 56a & 57 Released in full 58 Released in part (see Ex AC-02, Tab 58, pages 260-261). Redactions were made to protect an individual's personal information: cl 3(a) 59 Released in part (see Ex AC-02, Tab 59, pages 262-263). Redactions were made to protect an individual's personal information: cl 3(a) 60 Released in part (see Exhibit AC-02, Tab 60, page 264). Redactions were made to protect an individual's personal information: cl 3(a) 61a Released in part (see Ex AC-02, Tab 61, page 265). Redactions were made to protect an individual's personal information: cl 3(a) 61b Withheld on the basis that its contents could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: s 14(2) cl 1(e) of the GIPA Act 62 Released in part (see Ex AC-02, Tab 62, page 266). Redactions were made to protect an individual's personal information: cl 3(a) 63 Released in part (see Ex AC-02, Tab 63, page 267). Redactions were made to protect an individual's personal information: cl 3(a) 64a Released in part (see Ex AC-02, Tab 64, page 269). Redactions were made to protect an individual's personal information: cl 3(a) 64b Not disclosed as the applicant already had access to it GIPA 2 1. On 15 March 2023, the applicant lodged his second GIPA request ("GIPA 2") was lodged with the respondent. This sought access to the following information: All documents received by KMC from the "owners", or sent by KMC to the owners in relation to item 12.7 on the Agenda of meeting of KMC on 15 March 2022. All documents being any briefing notes created by KMC in relation to item 12.10 in respect of meetings of 15 February 2002 and/or item 12.7 of meetings of KMC. All documents prepared by KMC for consideration of any councillors in respect of item 12.7 of meeting of KMC on 15 March 2022. All communications between KMC and the "owners" in respect to possible outcomes should the 2021 was or was not withdrawn including the costs implications of in respect to each outcomes (sic). All documents in relation to any claim by KMC for costs by reason of the withdrawal of DA 2021.45.1 and DA 2017.301.1 by the owners, including receipts. Any policy documents (for period 2017 to date) of KMC in respect of the consequences of an applicant withdrawing a development application from KMC considerations. Any document which informed or could have informed the Mayor, or directed or recommended that Mr Joseph would address Council before Mrs Spencer at the KMC meeting of 15 March 2022. All documents sent to and from councillors in respect of item 12.7 of meeting of KMC of 15 March 2022. All documents arising out of and/or relating to the email and attachments sent to all councillors, and to Ms Rippon and to Mr and Mrs Spencer by M Joseph on 12 March 2022. Any document identifying any "assistance" received by either Councillors Keast or Rice in the 2021 election campaign. Initial decision 1. On 6 May 2022, Ms Critcher made a decision under s 58(1) of the GIPA Act, in which she stated that she located a total of 17 documents that were within the scope of the request (identified as documents 1 to 17 in the amended schedule of documents at Tab 2 of Ex AC-02). She: 1. Released document 8a in full; 2. Released 13 documents in part (documents numbered 2, 3, 4, 5, 12a, 12b, 12c, 13a, 14, 15, 16a, 17a and 17b) with redactions to protect an individual's personal information: cl 3(a). 3. Withheld documents 1, 6 and 13c on the basis that there was an overriding public interest against their disclosure; and 4. Declined to release documents 7, 8b, 9, 10, 11, 13b and 16b on the basis that the applicant already had access to them. Further disclosure 1. On 26 May 2023, the respondent decided to make an additional disclosure of information sought this request and it withdrew its reliance on item 3(f) in the table to s 14(2) of the GIPA Act. Therefore, the position regarding disclosure of information as at 5 July 2023 was as follows: Document Particulars 1 Withheld pursuant to cll 1(d) and 1(g) of the table to s 14(2) of the GIPA Act 2 Released in part (see Ex AC-02, Tab 2, page 276). Redactions were made to protect an individual's personal information: cl 3(a) 3 Released in part (see Ex AC-02, Tab 3, page 277). Redactions were made to protect an individual's personal information: cl 3(a) 4 Released in part (see Ex AC-02, Tab 4, pages 278-279). Redactions were made to protect an individual's personal information: cl 3(a) 5 Released in part (see Ex AC-02, Tab 5, pages 280-281). Redactions were made to protect an individual's personal information: cl 3(a) 6 & 8a Released in full 7 Not released as it was publicly available 8b, 9 & 10 Released in full 11 Not disclosed as the applicant already had access to it 12a Released in part (see Ex AC-02, Tab 12a, page 369). Redactions were made to protect an individual's personal information: cl 3(a) 12b Released in part (see Ex AC-02, Tab 12b, pages 370-384) due to copyright issues under s 6(1) of the GIPA Act. The respondent offered to provide the applicant with view-only access based on the Tribunal's decision in Sandy 12c, 13a & 13c Released in full 13b Not released as it was publicly available 14 Released in part (see Ex AC-02, Tab 14, pages 423-424). Redactions were made to protect an individual's personal information: cl 3(a) Released in part (see Ex AC-02, Tab 15, pages 56-86). The document consists of 2 parts: 15 (a) an email to which redactions were made to protect an individual's personal information: cl 3(a)); and (b) an attachment to which photographs and diagrams have been redacted in order to protect copyright. The respondent offered to provide the applicant with view-only access based on the Tribunal's decision in Sandy. 16a Released in part (see Ex AC-02, Tab 16, page 430). Redactions were made to protect an individual's personal information: cl 3(a) 16b Not released as it was publicly available 17a Released in part (see Ex AC-02, Tab 17, page 431). Redactions were made to protect an individual's personal information: cl 3(a) 17b Released in full GIPA 3 1. On 23 April 2023, the applicant lodged his third GIPA request (GIPA 3), which sought access to the following information: Any document obtained as a result of third party consultation in relation to my GIPA application file ref 22/18953; and Any document considered or used by the decision maker to assess reliance on s 14(3)(a)-(f) of GIPA Act in relation to my GIPA application file ref 22/18953. First decision 1. On 8 May 2022, Ms Critcher made a decision under s 58(1) of the GIPA Act, in which she stated that she located a total of 3 documents that fell within the scope of the request (documents 1 to 3 in the amended schedule of documents found at Tab 3 of Ex Ac-02). She: 1. Withheld document 1 on the basis that there was an overriding public interest against its disclosure; and 2. Declined to release documents 2 and 3 on the basis that the applicant already had access to them. Application for External Review 1. The applicant applied to the Information and Privacy Commissioner (IPC) for a review of the decision dated 8 May 2022 under s 89 of the GIPA Act. 2. On 6 July 2022, the IPC issued a recommendation that the respondent should reconsider that decision by way of an internal review. Internal review decision 1. Ms Salviejo conducted that internal review and on 18 August 2022, she made a decision under s 58(1) of the GIPA Act, in which she refused to provide access to part of the information sought because there was an overriding public interest against its disclosure. Further disclosure 1. However, on 26 May 2023, the respondent decided to make an additional disclosure of information sought by GIPA 3, as follows: 1. Document 1 was released in part (see Ex AC-02, Tab 11, pages 434-436). Redactions were made to protect an individual's personal information: cl 3(a); and 2. Documents 2 and 3 were not disclosed as the applicant already had access to them. Interlocutory hearing and decision 1. In my interlocutory decision dated 9 August 2023, I determined a Miscellaneous Application that was lodged by the respondent, which sought to set aside the following summonses that had been issued at the applicant's request: 1. Summons to Produce Documents to its General Manager dated 22 February 2023; 2. Summons to Produce Documents to its General Manager dated 8 May 2023; and 3. Summons to Give Evidence to Ms Salviejo dated 21 March 2023. 1. For the reasons contained in my decision dated 9 August 2023, I decided to set aside summonses (1) and (2), but I refused to set aside summons (3). Hearing of the substantive applications 1. The three substantive applications for administrative review came before me for hearing on 5 July 2023 and 6 July 2023. The applicant was self-represented and Mr D Robertson of counsel appeared for the respondent. Recusal application 1. When the matter was called on 5 July 2023, the applicant made a recusal application on the following grounds: On 5 June 2023, you referred to my professional background on two occasions. One was that I was Senior Counsel at some stage and the other was that I had been a Member of this Tribunal… It is clear that I have been enquired upon, my background, at a time when I'm a party and a potential witness. I am sure that you did not do the same in respect of Kiama Council and its witnesses. The inquiry, the nature of which I'm unaware, could have revealed matters and, as I understand from my own observations on the Internet, that go to matters of credit and which would have been revealed to you if that had been your source. 1. I asked the applicant whether he was asserting that I could not have known that he was a legal practitioner unless I "Googled" him? However, he did not respond. 2. I observed that the applicant is well-known within the Sydney legal community, and I stated that I did not, and I would not in any circumstances, "Google" a party to any Tribunal proceedings that were before me. The following exchange occurred: Applicant: Well I find the idea that you did it a matter of concern if you did it. Tribunal: Well I have not done it, nor would I ever do it, and in the context in which I made the comment… Applicant (interjecting): Whilst my status as senior counsel may be well known in the legal community, my position at NCAT was short-lived and could only be learned with some sort of enquiry. Tribunal: And I was only referring to the fact that I had online two legal representatives who were "duking it out like they were in a boxing ring", and I found that quite confronting, and I asked both parties – I addressed my comments to both parties – to behave in a professional manner. 1. The applicant then stated that "this is not the gravamen of the matters" that he was referring to and that his application was based on my having "some knowledge, which would not have been generally known, because he was only a Deputy Chairman for a short time". He argued that the fact that I knew of this would give rise to an understanding in the mind of a reasonable bystander that there had been some enquiry made in order to assist the Tribunal to understand the background of these matters. 2. The applicant also complained that on 5 June 2023, I referred to the respondent's application for summary dismissal as "historical" and he alleged that I used that term in order "to dismiss the relevance of those proceedings in this matter" and that he regarded this as "a judgement you have made without any evidence". 3. I rejected these allegations and stated that I described those proceedings as "historical" because the application for summary dismissal had been determined by the Tribunal and it was not directly relevant to the determination of the substantive applications that are before me. However, the applicant interjected and he stated: Yes it is relevant, but you would not let me develop it and you still will not let me develop it. 1. The applicant then stated that he was "seeking to develop an argument that your use of the word "historical" was pre-judgement", and that it should lead me to recuse myself because I did not hear argument on it. He maintained that it was relevant to the matters before me, which I would have realized if I had read his submissions regarding the interlocutory hearing on 5 June 2023. 2. I confirmed that the matter came before me on 5 June 2023 to determine an interlocutory application only and I did not hear the substantive applications. However, the applicant again interjected: Had you read my submissions, which you never did, and gave judgment without referring to them, you would have observed that part of my case against the strike out case was that there was no legal professional privilege and that there had been misconduct within the meaning of s 125. Neither of those matters did you consider, and both were relevant to the decision before you. Because you described the matters as "historical", the question is whether a reasonable bystander believe that you would have no regard to them? 1. The applicant stated that I asked Mr Coffey if there was any "overlap" between the documents that the respondent lodged with the Tribunal on a confidential basis and those that he sought to obtain in the summonses to the General Manager of the respondent. 2. I noted that Mr Coffey informed the Tribunal that documents in relation to summons (1) were lodged with the Tribunal on a confidential basis. I repeated that I am required to determine whether they are properly the subject of a claim for LPP. However, the applicant again interjected, and he stated: There are two different processes in play and you refuse to understand that and still do. 1. I confirmed that I dealt with the summonses on 5 June 2023, but the applicant again interjected and stated, "Yes and you never made any finding about legal professional privilege and you never even read the documents." 2. I replied that I needed to consider the question of privilege in the context of a substantive hearing, and not an interlocutory application, but the applicant again interjected and he stated, "You may or you may not. However, the interlocutory application was not brought by me and you upheld it." 3. I confirmed that I upheld the application to set aside summons (1) on the basis that the documents were already in the Registry, but the applicant again interjected and the following exchange occurred: Applicant: No you upheld it on the basis that they were subject to legal professional privilege and you had no evidence of that. Tribunal: There was a claim for legal professional privilege over the documents that were produced to the Tribunal on a confidential basis in accordance with the orders made during the procedural stages… Applicant: There was never an order that these documents be produced. Maybe they were, maybe they weren't, but the application which is what you were dealing with was on the basis that they were subject to legal professional privilege and you never made a finding and you never read my submissions as to whether you should make that finding… The short point is, I suppose, that you refused to give me procedural fairness on that issue and it would support a reasonable bystander believing that when you came to consider whether the confidential documents were legally professionally privileged documents, you have already determined that they will not be available for access. 1. I repeated that made no determination as to whether the documents were privileged, but the applicant again interjected and he stated, "You set aside the subpoena, you set aside the subpoena." 2. I repeated that on 5 June 2023, I observed that the documents were already in the Registry, in an envelope marked "Confidential", and I stated that I would consider whether they are properly the subject of a claim for LPP in the context of a confidential hearing under s 107 of the GIPA Act. However, the applicant again interjected: Ms Riordan, you know as well as I do that the only documents that could be considered confidential will be those that are against public interest in revealing them, which is a totally different legal fact to whether something is privileged or not. 1. I confirmed that: (1) These proceedings are being conducted under the GIPA Act; (2) I am aware of the public interest test and how I am required to apply it; (3) I intend to apply the public interest test; and (4) I have not yet made any findings, although I observed that there was no utility in maintaining a summons when the documents were already in the Registry and could be considered on their merit at the substantive hearing. The following exchange occurred: Applicant: That was erroneous. Tribunal: Well if you believe it to be erroneous, when my decision is made you can appeal it. 1. I asked the applicant if there were any matters that he wished to raise in support of his recusal application? He replied "No". Recusal application refused 1. I refused the recusal application and stated that I would provide my reasons for decision in due course. My reasons are as follows. 2. Firstly, Principal Member Pearson set out the law in relation to recusal applications in Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 74 at paragraphs [15] – [18] as follows: 15 My reasons for declining the requests that I recuse myself are as follows. 16 A decision maker has an obligation to hear and determine a matter unless a reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36]; see also Charisteas v Charisteas [2021] HCA 29. The general test for apprehended bias, whether in a court or in a tribunal, is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. 4 D22/0337478/DJ 17 The two-step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy at [8]: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 18 For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ. 19 As explained in the Information Sheet provided to the parties with the Notice of Listing-Directions, the purpose of a directions list is to make directions for each of the matters in that list as to what the parties need to do to resolve the case or prepare it for a hearing, including by setting a timetable and listing a hearing date. The fact that a decision-maker makes a ruling on a procedural issue in such a list against a party does not, of itself, demonstrate that the decision-maker does not bring an impartial mind to bear upon the determination of the issues in the matter: Zonnevylle v Secretary, NSW Department of Education [2022] NSWCATAD 56 at [12]. 1. In my view, the fact that I set aside the summonses to produce documents following a hearing of an interlocutory application on 5 June 2023, does not demonstrate the required connection between the facts and circumstances of those matters and the asserted conclusion that I might not bring an impartial mind to the resolution of the matters that are required to be addressed in the substantive hearing. 2. I regard the grounds raised by the applicant on 5 June 2023 as misguided and misconceived, and possibly misleading, for the following reasons: 1. In para 4 of his affidavit dated 22 October 2022 (Ex A), the applicant deposed that he felt able to refer to "legal principles/submissions and my beliefs as to particular legal failures by KMC" because of his qualifications, "(graduate in Bachelor and Master of Laws) and given my career as a practising barrister for over 45 years and a senior council (sic) for over about 25 years." 2. In para 127 of Ex A, the applicant stated, relevantly: No doubt this course of conduct was influenced by the fact that I was a barrister for 45 years, and a senior counsel for 25 years before I retired. I have used the legal processes of subpoenas, notices to produce and orders for compliance to reveal the wrongful conduct of both KMC and Mr and Mrs Spencer. No doubt this has led to their frustration and embarrassment which I believe has generated many of their unsupportable determinations and Mr and Mrs Spencer's third party responses… 1. Following the decision made by SM Griffin in Joseph v Kiama Municipal Council [2022] NSWCATAD 392 on 9 December 2022, which refused the respondent's application for summary dismissal of the substantive applications, he applied for an order for costs under s 60 of the NCAT Act. On 13 April 2023, Senior Member McAteer published a decision which awarded him limited costs (part of claimed disbursements) on the basis that he was a legal practitioner who appeared in his own interest. That decision was published and was part of the public record before the hearing of interlocutory application on 5 June 2023; 2. In Ex B, the applicant described his occupation as follows: "Retired Barrister (2020) – admitted 1976, appointed Senior Counsel"; and 3. The email correspondence that this Tribunal has received from the applicant in this matter indicates that his email address is in the format: "first initial.surname@"a domain belonging to barristers' chambers". 1. For these reasons, I am satisfied that there was no proper basis for the applicant's allegation that I could not have known that he was a legal practitioner as at 5 June 2023 unless I had "made enquiries" about him. The contrary position is clearly established based on the public record and the applicant's own evidence and correspondence in relation to these proceedings. 2. I also reject the applicant's assertion that I must have "made enquiries" about him in order to ascertain that he was at one time been appointed as a Deputy Chairman of this Tribunal. Having been appointed to this Tribunal from 1 January 2014, my clear recollection is that the names of all appointees were announced in an official release on the public record at that time and they were subsequently published in the Tribunal's Annual Report. No further enquiry was required and I made none. 3. For these reasons, I am satisfied that the applicant failed to establish either of his "grounds" for recusal, let alone the causal connection that was discussed by Principal Member Pearson in Zonnevylle. The evidence Respondent's evidence 1. The respondent relied upon the following evidence: 1. Statement of Angela Critcher dated 19 October 2022 + Exhibit AC01. This was marked Ex 1. Paras 17 to 19 (inclusive) were not pressed and were deleted by the Tribunal; 2. Statement of Angela Critcher dated 29 June 2023 + Exhibit AC02. This was marked Ex 2; 3. Letter from BAL Lawyers to the applicant dated 1 November 2022. This was marked Ex 3; 4. Respondent's chronology regarding GIPA 1. This was marked MFI 1; 5. Respondent's chronology regarding GIPA 2. This was marked MFI 2; 6. Respondent's chronology regarding GIPA 3. This was marked MFI 3; 1. The respondent also relied upon confidential evidence, and this will be identified in relation to the confidential hearing. The applicant's evidence 1. The applicant relied upon the following evidence: 1. Affidavit dated 24 October 2022 + 4 volumes of attachments. This was marked Ex A; 2. Affidavit dated 16 January 2023. This was marked Ex B; 3. Submissions and Statement. This was marked Ex C; 4. Submissions and Statement to Application dated 19 April 2023. This was marked Ex D; 5. Annexures A to F and his Affidavit, which were marked as Ex E; and 6. "Documents to be relied upon by the applicant". This was marked MFI 4. Confidential hearing 1. I confirm that the matters in dispute included: 1. Whether the documents that the respondent lodged with the Tribunal on a confidential basis are subject to a conclusive presumption against disclosure under cl 5 of Sch 1 to the GIPA Act; and 2. Whether the documents that the respondent lodged with the Tribunal in answer to a summons to produce documents issued by the applicant, are properly subject to a claim for LPP under ss 118 or 119 of the Evidence Act. 1. In order to properly consider and determine these issues, I determined that it was necessary to conduct a confidential hearing in the applicant's absence pursuant to s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 2. [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] GIPA 1 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] 7. [NOT FOR PUBLICATION] 8. [NOT FOR PUBLICATION] 9. [NOT FOR PUBLICATION] 10. [NOT FOR PUBLICATION] 11. [NOT FOR PUBLICATION] 12. [NOT FOR PUBLICATION] 13. [NOT FOR PUBLICATION] 14. [NOT FOR PUBLICATION] 15. [NOT FOR PUBLICATION] 16. [NOT FOR PUBLICATION] 17. [NOT FOR PUBLICATION] 18. [NOT FOR PUBLICATION] 19. [NOT FOR PUBLICATION] GIPA 2 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] 7. [NOT FOR PUBLICATION] GIPA 3 1. [NOT FOR PUBLICATION] Further documents disclosed on 26 May 2023 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] 7. [NOT FOR PUBLICATION] 8. [NOT FOR PUBLICATION] 9. [NOT FOR PUBLICATION] GIPA 1 1. [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] GIPA 2 1. [NOT FOR PUBLICATION] GIPA 3 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] 7. [NOT FOR PUBLICATION] 8. [NOT FOR PUBLICATION] 9. [NOT FOR PUBLICATION] 10. [NOT FOR PUBLICATION] 11. [NOT FOR PUBLICATION] 12. [NOT FOR PUBLICATION] 13. [NOT FOR PUBLICATION] 14. The confidential hearing then concluded. Resumption of the open hearing 1. When the open hearing resumed, the Tribunal advised the applicant of the following determinations: 1. Document 1 of GIPA 2 should be disclosed to him subject to redaction of Mrs Spencer's personal information under cl 3(a); and 2. The documents sought under the summons to produce documents filed on 19 April 2023 are privileged under ss 118 and/or 119 of the Evidence Act and would not be disclosed to him. Evidence of Ms Salviejo 1. Ms Stephanie Carol Salviejo was called and sworn. She was provided with a copy of her decision dated 8 June 2022 and she was then cross-examined at length by the applicant. I have set out the cross-examination in detail as it was difficult to follow at times: Applicant: Did you undertake any search, forget who you sent it to, of documents or of information that would you thought support s 109? Witness: Well, obviously to prepare a chronology I would have, yes. Can you let me finish this time? Obviously, to prepare a chronology, I needed to research all of the previous matters that had been before, like, sorry, that Council had been involved in regarding yourself, so yes, if you're talking about did I research anything? Yes, I did prepare that chronology. Applicant: Did you? Did you read submissions which had been made by me of Council's actions in respect to the DA? Witness: I can't recall reading them, no, because it wasn't in my area. Applicant: So did you get, did you research the history of the development applications. Were they not in your area? Witness: No, I didn't. No, I've said they weren't in my area. Applicant: Did you ever acquire information that I had made scurrilous statements about staff? Witness: Yes, I think that was in the last lot of documentation we received before I left Council. There were, and I can't recall, I don't have the email here, but I do recall getting quite upset about language you had used about both myself and Angela and our capabilities. That really offended me. Applicant: So it was limited to the GIPA application and you don't recall what that was? Witness: No, I don't. Applicant: And your role in respect of the GIPA application ceased when you left on the 11th of May 2023, that's correct? We now know, shortly thereafter, Council has produced documents and reconsidered your decision as well as the other decisions of Miss Critcher. You were aware of that were you not? You were not part of what might be called "the revision exercise" that took place within Council concerning the determination on the non-release of the documentation? Witness: When? When did this happen? Applicant: Well, I'm... did it happen? Witness: I don't know. You're telling the story. I left on the 11th of May. I have not been involved in anything with Kiama Council since that date. Applicant: I'm sorry, before you left. Witness: That's not what you said. Applicant: No, no, I'm sorry. I'm sorry, before you left, were you in involved in any reassessment by Kiama Council of the determinations made by you and… Witness: Yes, I was. From memory there was a discussion with our lawyers via Teams and I think they mainly related to Angela's decisions and reviewing what information we might consider releasing. Applicant: So did you consider… you don't recall that the one document that you withheld has also now been released. Were you aware of that? Witness: No, I wasn't. Aware of that? When did that happen? Robertson: So if it's the one document, the subject of this GIPA application that was withheld, that was disclosed on the 26th of May 2023. Witness: OK. So that's the decision I made, because I was only referring to one document in my decision. So that was the 26th of May 2023, after I'd left Council. So no, I had no idea that had been released. Applicant: The schedule of documents which was sought… at page 346 of my Affidavit (also in Ms Critcher's Exhibit AC01) - You have your determination there and you see on page two there you summarise there were two documents initially and you released none. Witness: Yes, yes. Applicant: Is that right? Witness: That's correct. Applicant: And the second dot point was "any document considered or used by the decision maker to assess reliance on section 14(3)(a)?" Witness: That's quoting from your application, yes. Applicant: Did you approach Miss Critcher at any stage to find any document that she may have used or considered? Witness: When she made her determination all of those documents would have been contained within a folder on Council's electronic Content Management System and we also had a folder on the network drive, so... Applicant: Answer the question please. Witness: I'm trying to yes, … Applicant: You're telling us what documents exist somewhere else. Witness: Because I'm saying that, Oh, my goodness. No, I didn't approach Ms Critcher. Applicant: You would have approached Ms Critcher in order to find out what documents she considered or used? You would have to approach her, wouldn't you? Witness: That's what I was trying to explain. Applicant: Well, the fact there is a library of documents doesn't mean that she considered or used all of those documents that might be in a library, does it? Tribunal: Is that a hypothetical? Applicant: Well, you'd agree with me that the fact that documents exist in folders or various folders doesn't tell you as to what Ms Critcher considered or used? Witness: No, I wouldn't agree with that. Tribunal: And I'm disallowing this because the only person that can possibly answer that question is not the person in the witness box. Applicant: No, no, that's not the issue here. It is. The issue is search. Tribunal: No, you are asking this witness…. Applicant: It is. Whether she did any searching for that document. Tribunal: No, what you asked this witness was whether or not Ms Critcher considered all the documents in the database. That is quite a different matter. Applicant: All right, I will if you please. Do you not agree that the second dot point on this page is referring to a decision maker. Who is that decision maker in respect of that. Witness: Angela, Miss Critcher. Applicant: And how would you find out what documents she considered or used? Witness: Because there are certain processes in Council that are adhered to in relation to GIPA applications and each GIPA application has a separate folder on the network and everything relating to that application was put into that folder and that's where I would have searched for them. Applicant: Well, are you are you are you saying there were no such documents in that folder? Witness: No, I'm not saying that at all. Applicant: Well, I'm asking. Witness: Oh my goodness. Applicant: How? How, how? How was it even that there are documents which you believe Ms Critcher would have used because of the nature of her decision. How was it that you did not identify those documents in your determination? Witness: Well, its my determination and I'm just trying to say that in paragraph 2 on page 347, I've written that this decision is specific to withholding of document 1 listed in the schedule attached to the original notice dated the 8th of June 2022, because from memory no other documents were raised as a matter of concern by the IPC. That's why I honed in on that one document. I've written this decision in relation to one document. Applicant: Indeed, but you were reconsidering the determination because of the request I made on the 21st of April were you not? Witness: Mm-hmm. Yes, I was. Applicant: Whether or not there were documents in full under the second heading did you? Witness: No. I would have done that because of the recommendations in the IPC decision, which you said to me earlier that I should be considering when I'm making my decision, which is what I did. Applicant: We're reconsidering, not the IPC decision, you were reconsidering the application were you not? Witness: Yes, I was. Applicant: And you failed to… Tribunal: Excuse me. Her evidence was that she acted in accordance with the recommendations made by the IPC. Please, let's be fair to the witness… Witness: And I state quite clearly in my decision, no additional searches were required. No additional searches were required is what it says in my decision. Applicant: What searches it did Ms Critcher do? Witness: I can't answer for Miss Critcher… Applicant: Did you make any inquiries of Miss Critcher as to what searches she made? Tribunal: That has been asked and answered previously. Applicant: No, it hasn't. Witness: Yes, I think it has. And my answer was 'no'. Tribunal: The witness' evidence is that she looked at all the documents in the Council's database, which had been received in respect of the application, and that she did not make any specific inquiries with Miss Critcher because she was conducting the review. Now can we move on please? … Applicant: You say at the bottom of page 348, no personal factors were provided. Witness: That's correct. Applicant: Right. Was there anything to stop you asking as to what personal factors might be known? Witness: I was reviewing the decision of Angela Critcher. I wasn't dealing with your original GIPA application that had been dealt with by Miss Critcher. Applicant: Which found personal factors. Witness: I don't know. Can you refer me to the decision and I'll be able to tell you, or your application form. Applicant: At the bottom of page 272. Tribunal: That's the decision dated 8th June 2022? Witness: Mine commences at 282. Applicant: Oh sorry, I've got… well that might be the subsequent decision. Whether or not whether it was in the application or not, it was clear enough from Miss Critcher's determination that she was able to determine personal factors. Tribunal: We're talking about the review of the GIPA decision not to release the document in response to 3rd party consultation. That's what this decision is about. It's not a decision about seeking to know why access had been previously denied using third party Information and consultation. Witness: What's the question? Applicant: Why did you not consider if you, if you were reconsidering Ms Critcher's statement that those personal factors could not have been used by you, if you were making a bona fide decision. Witness: I didn't choose… Tribunal: Excuse me. You can ask questions, but you can ask them properly, but that is not in a bullying manner. I will not permit it. Applicant: I put to you that in denying the existence of personal factors in your determination you were seeking to carve out an excuse for doing nothing in terms of giving information, weren't you? Because what you then went on to decide did you not? Tribunal: OK. Can someone please refer me to the actual original GIPA application and we'll see. Applicant: I'm I'm sure it's here I just don't know where to find it… Robertson: Ex 1 being Miss Critcher's statement of 19 October 2022 and Exhibit AC-01. Witness: So there's no personal factors that I can see there under question 3 – "… address and any relevant personal factors". Applicant: You say that you've looked through all of the applications. Witness: No, I didn't. Applicant: Right, you've made a schedule of all the GIPA applications previously made, both formal and informal. Witness: That's correct. Applicant: You, you, you understood about the DA's that had been lodged by Mr & Mrs Spencer that had come before Council. Witness: I was aware there were applications, but I wouldn't say I understood them. Applicant: You you had. Had had you read? Had you read any of the documentation which Miss Critcher had agreed to release? Witness: Had I read it? Applicant: Any of the documentation that Miss Critcher had agreed to release. Witness: No, not read it in full, no. Applicant: Not in full. Witness: I was aware it was there. I would have glanced at it, but I wouldn't call that reading it. Joseph: Well, you wouldn't need to be Einstein to work out… Tribunal: You may ask the question. You may not continue to badger the witness. Applicant: Are you? Are you seriously suggesting with that body of information and access to such information, you could not find any personal factor that would trigger an interest in the decision making of Council by me. Witness: I referred to… Tribunal: Mr Joseph. The document speaks for itself. This is in your case, it's your application and there are no personal factors. There is no requirement on this witness to search out what may or may not be your personal factors. Applicant: No, please. You. You, you, you, you, you, you, as usual, are putting the onus on me. The onus is on the Council, they they have the information. Tribunal: Well, no. You are asserting you are, excuse me, alleging bad faith and or misconduct. You bear the onus of proving that... Applicant: They have the information and they're closing their eyes for that information. No, I don't. You do. The Tribunal makes that decision, not me. Tribunal: And I will make that decision based on the evidence. Applicant: I know you made that clear, but yes, but... Tribunal: The document speaks for itself. Applicant: I didn't. I'm not cross-examining on the document, that document. Tribunal: No, but you're putting it to her and this is her response. Applicant: I put to the witness that she was aware of personal factors. Tribunal: You are putting to this witness… Your questions are put on the basis that it is somehow the respondent's responsibility to ascertain personal factors when there are none set out in the GIPA application, and that's wrong. You may continue to question the witness. Applicant: You, you say, say. Tribunal: But you must have a proper basis for the questions. Applicant: The basis is she… Tribunal: She said she did not know what your personal factors were. Applicant: No, you you, she knew, she knew, she'd done a search. Witness: Can I clarify? I would have referred to the Form, that's all I would have referred to when… Tribunal: This witness has previously given evidence that she did not have access to the information regarding the development applications. Her involvement is in relation to responding to the GIPA application. You were questioning her about information that was in the development applications. That is not a fair question and I will not allow it. Applicant: We'll go. We'll go the long, we'll go the long way. Tribunal: We are going to take a break until 11:50 am. When I come back, I expect that the applicant will have composed himself and will decide to conduct himself in an appropriate manner. 1. When the hearing resumed, the applicant continued to question Ms Salviejo about "personal factors", as follows: Applicant: We were dealing with the concept of personal factors. Did you come to the view that there were no personal factors involved in my application. Witness: You didn't disclose any on your application form. Applicant: There were no personal factors involved in my… Witness: No, no, no, no, the document says. Applicant: I'm not asking about the document. Witness: Well, I'm referring to it. Applicant: Well, you might let me do that. Tribunal: No personal factors were provided in your application. Applicant: Yes, I understand that. We've been there and I've moved on to another matter. Thank you. I'll ask it again. Did you? Despite what I what is said in the document which the Senior Member has taken you to… Is it the fact that you came to the view in your determination that there were no personal factors involved in my application/my GIPA application which you reconsidered, yes? That it is the sole reason for you coming to that view… The fact that I did not disclose such personal factors in the application. Do you not consider it is highly irresponsible on your part to assume that because an applicant fails to reveal something in a document, that is the equivalent of what is in fact the obvious. Tribunal: I don't understand that question. Please rephrase it. Applicant: Do you did you consider, putting aside the application or what was on the application or what was not on the application, there could be personal factors involved in my application. Witness: No, I did not. Applicant: And the reason why you did not was because you did not wish to in any way advance the GIPA application. Witness: I don't think that's a question. Applicant: I'm putting it to you that the reason you chose to rely solely on the GIPA application, the reason you did that was because you did not make a genuine effort to administer the GIPA Act in in terms of that application. Witness: No I simply answered the relevant section under 4.2 of my decision, "personal factors", that none were taken into consideration because none were provided. And in in the grand scheme of things, I don't think that I would have gone researching into your relationship with the Spencers. I don't know whether that would have assisted me in making the decision at all. Applicant: But you chose, you chose not to have regard to the material that was before you. Witness: The application was before me. Applicant: In writing, not just the application. In the submissions I gave you for your reconsideration. You totally ignored what I said in those submissions, didn't you? Witness: We established that earlier. I said I didn't refer to them. Applicant: Yet in in those in those submissions, I refer to… Witness: I won't know because I didn't look at them. Applicant: See how do you justify that? There's some there, something an applicant provides you with, detailed submissions about what he considers the justification of getting access to the documents he sought. And do you ignore it? How do you how do you justify that? Witness: I justify that because it's my understanding of the role I was performing at the time that I was reviewing Miss Critcher's decision, taking into account the IPC's recommendations. Applicant: But I sent to you, did I not, information for the reconsideration. Did I? Witness: You say you did. Applicant: Well, you, you know, I did, don't you? Witness: And I've I think I've made that clear. What I based my decision on was the application and Miss Critcher's original decision and the recommendations from the IPC. I've said a number of times that I didn't refer to your submissions... Applicant: You pick, you chose to rely on what suited your ultimate desire is that is to ignore the application. Witness: I resent that question, sorry. Tribunal: OK. She's not ignoring the GIPA application, she's reconsidering the decision. Applicant: Well, that's ignoring it, sorry, in your reconsideration. Excuse me a moment. I sent to you as we know submissions and attachments correct? Do you think that are you receiving that information, did that create an expectation that those submissions will be considered. Did you ever consider it fair to accept detailed submissions and documentations from an applicant and not tell him or her that you were going to ignore them. Witness: That's not a requirement that I'm expected to do. Applicant: But its procedural fairness, do you understand that concept that create that that is, that is based on a reasonable expectation that a decision maker… Witness: Yes, I do. Applicant: Will act fairly correct?. Witness: That's correct. Applicant: And do you think it's fair that you allowed me to live under the apprehension that you would consider the documents I sent you. Whereas you had decided you would… Robertson: I think sorry, Senior Member. Tribunal: Excuse me. If you cannot contain yourself, then I'll ask you to remove yourself and come back when you can. Is there any evidence before me that the respondent sought further representations from you, or were these just sent off your own bat? Were you invited to make further submissions? It's relevant to the issues under Kiaoa v West, which appears to be what you're referring to, but why is it a procedural fairness issue? Applicant: Well, I'm not just referring to them, I'm not referring to just that, but that that for procedural fairness, if you're suggesting that procedural fairness does not apply to this decision maker, I'd find it remarkable. No. But if you are suggesting and I find… Tribunal: Did I say that? Well, I would ask you not to assume what I'm saying. Applicant: So the fact that there is no statutory requirement, for example, to undertake procedural fairness, that it doesn't mean it shouldn't be addressed. Tribunal: I am simply asking whether or not you were invited by the respondent to make further submissions for their reconsideration, or whether you just decided to send them. Applicant: Sorry, you see in those submissions. Tribunal: I haven't had an answer to that question yet. Applicant: Well, I think my friend's right only… Tribunal: So the answer is no, you weren't invited, and you just made submissions. And now you're putting to this witness that submissions that she did not invite gave rise to an expectation on your part that your submissions would be considered? Applicant: No, that's not what I put. Tribunal: That sounded like what was put to me. Applicant: What I what I? What I put was that having delivered them and they having accepted them, created the expectation that they would be… Tribunal: This does not assist me as the ultimate decision maker, but if you want to ask that question you can put it. Applicant: I didn't ask a question. It was you. I was responding to your question. Tribunal: I don't think it does give rise to a legitimate expectation, but that's a matter for another place. Applicant: OK, I didn't. I didn't. I didn't. Robertson: If it assists, I've searched the GIPA Act for reference to submissions and the only place that word appears is in s 42, which provides that an access application can include submissions by the applicant as to any public interest considerations that the applicant thinks the agency should take into account in determining whether or not there is an overriding public interest against disclosure of the information. Now that that doesn't relate though, in my submission, to the to the reconsideration that Miss Salviejo was involved in. Tribunal: That is a different proposition and this line of questioning does not assist me one way or the other. Can we please move on to matters that might? Applicant: Did you think from the finding by Miss Critcher that to release documents is against the public interest because of the risk of intimidation and harassment? Witness: Did I consider? Tribunal: This is now historical. That document has been released to you, and that ground has been withdrawn. So can we move on. Applicant: No, no, no, no. Look I know you're trying to channel this into your own level of understanding, but I'm entitled to present a case. Tribunal: Excuse me. You are, provided that it's relevant. Applicant: You mightn't like it. Well, it is relevant. It's bad faith that that this this finding… I understand the finding's been withdrawn at the heel of the hunt, but this finding gives rise to a personal interest. That's the point I'm trying to make if I'm allowed to make it. Tribunal: How is that a personal interest? Applicant: But that's the fact that someone's found… Tribunal: Where did does the Act refer to "personal interest"? Applicant: Personal factor. Tribunal: Well, it's not a personal factor. It wasn't raised at the outset. Applicant: That's just wrong. Tribunal: It's not. The document speaks for itself. Applicant: This it's wrong for, for, for you to say that the decision maker is bound by whatever is in the application and cannot apply their own mind to what is the set of facts that every other decision maker other than Ms Salviejo was able to come to. Robertson: Can I make a different submission in terms of relevance? I don't understand if the applicant's case is that personal factors should have been taken into account and they weren't or that they were taken into account when they shouldn't have been. As I as I understand s 55 "personal factors of the application" are primarily taken into account as reasons for an overriding public interest against disclosure. The personal factors here could be the relationship between the applicant and the Spencers, but if… Tribunal: Personal factors can go both ways. They can be personal factors in addition to the s 12 factors in favour of disclosure. Robertson: Well, s 55 has been referred to and ss (1) states, "In determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account, as provided by this section, the applicant's identity, relationship with any person, the applicants motives for making the access application or any other factors particular to the applicant.". Now, as I understand it, Miss Salviejo's evidence is that she did not take into account any personal factors of the applicant at all. So that goes to relevance as to whether the applicant's case is that she should have taken personal factors into account or that she impermissibly took factors into account. That's why I raise the issue of relevance and given the answer, what more could be gained from exploring this topic. Tribunal: That's right, the evidence is that the witness did not take any personal factors into account. Applicant: Been through whether or not you considered my submissions and evidence and you said no. Applicant: Go to 350. Witness: Yes, this is additional material provided by Mr Joseph, including a complaint form etc. Applicant: So it's wrong to say that you didn't have regard to the material I sent you, isn't it? Witness: I didn't say I didn't have regard, I said. I glanced at it, but I didn't take it into consideration when I made the decision, is what I said. I suppose yes, that does indicate that I did. Applicant: So you, you, you, you just are not reliable about your memory but your processes. Witness: No, no it was 12 months ago. I do not recall exactly. Applicant: Just make it up as you go. Witness: Excuse me, Mr Joseph. I resent that. Applicant: Now, can I take you back then to the decision. In 4.1 you say that you took into account public interest factors is that right? Witness: I'm required. Applicant: How did you come? What, what public interest factors did you take into account? All of those nominated there? One of them is informing the public about the operations of the agencies right? Promoting open discussion of public affairs? Witness: Correct, yes. Applicant: On page 346, I sought any documents as a result of third party consultation. Witness: Yes, but sorry. Can I just make a comment there? Applicant: I'm not asking you to make a comment to this particular page of your, of your, of your report. Witness: I'd like to explain my answer. Applicant: You see that there? Thank you. Does that on its face, that is that that request satisfy any public interest consideration that you made. Witness: Before I answer that question again, I'd like to. Applicant: Do you get the witness to answer, do you? Not make speeches. Tribunal: Would you please stop badgering the witness. I'd like to hear what she has to say. Witness: I just want to refer to the evidence I gave earlier, Senior Member in that the only document I was considering when making this decision was the one referred to in the schedule, which was the one that was refused under s 14 cl (3)(f). I've made that very clear in my decision. Applicant: So the request was for a particular document, right, at dot point one. Tribunal: Sorry, the application had four dot points. Witness: That's right. But the decision very clearly states on page 347 that it is specific to the withheld one listed in the schedule attached to the decision in June 2020. Tribunal: And the 5th line "consultation" indicates it is a decision in relation to one item. Witness: That was withheld under cl 3(f). Yes, which is the second dot point and not the first dot point., OK. I wasn't sure if I was clear. Applicant: You say maybe you're only dealing with document one, right? Witness: That's correct. Applicant: Document one is not the first dot point. Page two of your decision is. Witness: That that's correct. Tribunal: That's what the witness just said. Applicant: Why not? Why did you not deal with the application on the terms in which it was asked namely a document obtained as a result of third party consultation? Witness: I would have to refer to Miss Critcher's original decision to see what the outcome of that particular request was and then also what the IPC's recommendations were in relation to that request. From memory, I haven't finished, from memory, when as I said and have said on numerous occasions, I took the IPC recommendation into consideration, which raises specific points in relation to document one and section 14 (3)(f), which is why I made the decision the way I did. Applicant: You would be reconsidering whether access should be granted to documents I sought correct. Witness: Yes, no, no. Applicant: The documents, Ms Critcher decided to.... Witness: No, I was reviewing Miss Critcher's decision is what I was doing. Applicant: And she was applying… Tribunal: On that, your evidence I as I understand it, has been that it was based on the IPC's report. Witness: That's correct, Senior Member. Applicant: You're not bound by the IPC's recommendation, are you? Witness: No, I'm not. But in my role I take it very seriously. Applicant: You didn't review the first two decisions of Ms Critcher did you? Witness: No, that's right, I didn't. I decided not to review them because I wasn't obliged to. Applicant: Look, you weren't obliged to, and you weren't obliged in making your own decision to do what the IPC had decided were you? Tribunal: Is there now some criticism that the IPC's recommendations were followed? Witness: Now that's what I'm hearing. Applicant: Can I? I ask you again. Was there any public interest in disclosing the document referred to as document one in your decision? Witness: No, which is why the application was refused. Applicant: Why was there no public interest in a person, an applicant obtaining the information, preventing that person from getting access to a document upon which a decision had been made. Witness: Can you ask the question again? Applicant: You say there is not a public interest in releasing the document which you refused to release. Is there not a public interest in knowing what considerations a GIPA decision maker had in coming to a view coming to a decision. Witness: I don't understand that question. Applicant: Well, look sections of the Act require the decision maker to reveal material considerations, right? As I understand it, you accept do you, that this document one which you refused to release had been relied on by Miss Critcher in her decision. Witness: I can't answer what for what Angela relied on. Sorry. I'm you're really confusing me, Mr Joseph. I'm not following. Tribunal: The only ground on which you relied was s 14(3)(f) wasn't it? Witness: Section 14(3)(f) yes. Tribunal: The ground has been withdrawn, you have the document and this does not assist me as the decision maker one way or the other. I'm requesting you to move on to your next point. I can't make you do it, but I'm requesting you to do so. Applicant: In your decision on page 350, you referred to one document that, in that second last paragraph which I had provided, contains extensive commentary... detailing the reason why she feels harassed, intimidated, bullied. Witness: Right. That's what it says, yes. Applicant: But there are other documents were they're not that went in the other direction, that in fact Mrs Spencer harasses, intimidates, and bullies. Did you read those documents? Witness: I was referring to cl 3(f) about harassment and that's yeah, where that came into question. Applicant: Answer me please. Tribunal: I would like you to put it in a form that is clear. Applicant: Did you read the other evidence which I provided you, that suggests, that clearly suggested that Mrs Spencer, not Mr Joseph, was the one harassing, intimidating and bullying? Witness: I didn't take that into account, no. Applicant: Do you think it's fair that documents have been provided to you that suggest that and that you ignored those documents. Tribunal: I disallow that question. Sorry, we've been down this path. I've asked you to move on. Please move on. Applicant: And then you go on and say, taking the discussion above into question, what discussion are you referring to? Witness: To, well, the discussion above, as in what I've written above. Applicant: Yes. So you're saying that having regard to the one document that you plucked out of the many documents I sent you, you refer to that as a discussion even though in fact… Witness: No, Mr Joseph. I'm referring to all of the text above that. Applicant: Alright, well, what other parts of the… Witness: This is all under the heading of public interest considerations against disclosure… Applicant: Do you consider a finding? Sorry, start again. You then say that at the bottom of that page, I'm satisfied that it can be reasonably expected that the release of the information requested could expose Mrs Spencer to a risk of serious harassment or serious intimidation, as Mr Joseph's behaviour is ongoing, her concerns are not trifling and transient. What ongoing behaviour are you referring to? Witness: The twenty five GIPA applications that had come before these ones. Applicant: Well, things that went back three or four years and none of which were subject to a suggestion that they were frivolous or vexatious, were they? Witness: No, but the quoting of those other cases as going to what is considered to be serious harassment, serious intimidation, that's ongoing. That's why I bolded and put those words in inverted commas, because it's referencing the case law. Applicant: But I'm not asking you to reference the evidence that you relied on to make that finding, that that ohh well what she has not. Tribunal: And the witness has previously answered that question several times. I have asked you to move on. Applicant: And I have and I'm trying to, but if you wish to interrupt me all the time, I find it very hard. Tribunal: Well, Mr Joseph. Applicant: You just seem to wish to control the litigation that finishes by a certain time because you're determined you're not gonna sit tomorrow… Tribunal: Mr Joseph, Mr Joseph. Applicant: It's all too clear… Tribunal: Mr Joseph, would you please contain your outbursts? Applicant: I didn't hear that. Tribunal: Please contain your outbursts. We have been over this, I don't know how many times, I do not know how many times I have to say that this line of questioning does not assist me. Applicant: We have not been able to… Tribunal: Would you please move on? I cannot make you move on, but as long as you know that it is not assisting me. You may conduct your case in any way that you see fit, provided that it is relevant to what I have to determine. Applicant: So I wish to pursue this. You say that there is evidence of ongoing behaviour by me and that Mrs Spencer's concerns are not trifling or transient, correct, yes? Is the evidence, well the material consideration apart from the complaint form referred to in the previous paragraph, of ongoing behaviour by me? Witness: That was from memory in Mrs Spencer's response to the third party consultation when she objected to her information being released. That was made quite clear. Applicant: Well, what she says is that she simply relied on the section. Tribunal: I don't know what she said I haven't got it in front of me. Applicant: Let's let's let's. We we haven't… Witness: I thought that's been released and now released with redaction, so I don't understand where this is all going. Tribunal: I've made it very clear that this does not assist me. If you wish to pursue it again. Applicant: Well, yeah, I make it very clear that I have a case for run, and I'm not going to be controlled by this decision. Tribunal: I'm not attempting to control you. I'm trying to direct you to use the time to refer to relevant matters. Applicant: Well, if you want to make that order, you… Make that order I. I'll abide by the order, but I'm not going… Tribunal: I formally request the applicant to contain his cross examination to matters that are relevant. Applicant: I'll take a direction. I will not take a request. Tribunal: Well, my order is in the form of a request, no I should not need to direct someone who has previously been senior counsel… Applicant: Yeah, I understand that. Well, I just don't. I don't accept your your the basis of your request. Tribunal: OK, that's fine. Applicant: This is behind the chapter. Tribunal: This does not assist you, but that's OK… Robertson: It's exhibited to the email of 24 March. Applicant: So this is the document you relied on as, to use your words, evidence of ongoing concerns that are not trifling and transient. Witness: No, I I don't agree with that. There were a number of documents received from Mrs Spencer in relation to GIPA proceedings brought by you. That one doesn't specifically refer to and that I'm not saying that I relied on that specific document. No, I'm not saying that. Applicant: Let's let's because it it it, it shows that you your your previous evidence is unreliable on this issue, isn't it? But you said you did rely on this. Well, where do you refer to it. Witness: No, I didn't say that at all. Applicant: I took you to the complaint above. And you said you relied on third party consultation and I've taken you now to the document that was in front of you at the time you made your decision. Witness: I I'm not sure of that. Applicant: Now you're going to another document, are you? Witness: Sorry, sorry. Was that the consultation in relation to? Tribunal: That's what I don't know, Mr Joseph? Witness: I'm not sure I don't have all the files in front of me. This one is dated 24th March 2022. I'm not sure which GIPA decision this third party consultation is referring to because there were three that were all done around the same time. Applicant: Well, I think we we do know, because you determined it, did you not? Robertson: Sorry, if it was the application which was lodged on 1 March 2022, which is GIPA 1, yes, but this document was then sought by Mr Joseph by the 3rd access application. So then it's slightly confusing when Mr Joseph says, "did you consider this application in making the determination" because the document itself was the subject of the determination… Applicant: You decided to have no third party consultation, correct. Witness: That's correct. Applicant: And you decided that you would rely on the third party consultation which Ms Critcher had relied on in respect of the decisions she made. Witness: So as I say in my decision, the information requested required consultation with parties affected by the access application and I noted objection to the release of the information was expressed, therefore, no further consultation was considered necessary. Applicant: So you, you you didn't undertake third party consultation and the only document of that nature you had was that which Ms Critcher had obtained on about 24th March. Great. Witness: I don't know that that was the only document. Applicant: Well, you know, wouldn't you, wouldn't it be reasonable to expect if there were other material documents which you relied on, you'd refer to them in your report, in your decision. Witness: I haven't referred to any document like that specifically as I explained before, there are a number of documents kept within the database. Applicant: If you refer to the document I gave you and you referred to in response to Mr Spencer's email, you say this in the discussion on page 350, In Mrs Spencer's response to third party consultation, she objected to the release of document 1 as listed in the schedule attached to the notice of decision of the 8th June, on the grounds specified in cl 3(f) right. Citing that Mr Joseph had instigated legal proceedings against her and her husband on numerous occasions... So you relied on Miss Critcher's document, correct? Witness: Well, no, I didn't rely on that. Applicant: Well, one assumes that you referred to it because it was part of your decision making process. Witness: I've always said I referred to it. Rely and refer mean different things to me. Applicant: You referred to that document and the complaint form because it was part of the discussion which fully informed your opinion right? And what I'm asking, in terms of the documents that you do cite, is there any reference to ongoing behaviour that is not trifling or transient. Witness: Is there any? Well, on page 349 in the 3rd paragraph from the bottom, I do say, that "Council's records indicate there have been ongoing issues between the Spencers and the Josephs who are resident neighbours at [address omitted] for some time now and both parties are very active in corresponding with Council. The applicant, Mr Joseph, has persistently lodged GIPA applications in relation to various development applications lodged by Mrs Spencer…" Council's records indicate, as I said earlier, there's been a total of 25 and various complaints in the Land Environment, Court, IPC and NCAT and this year alone you have lodged 5 GIPA applications, so to me that goes to it. Do I need to explain that I've just read the paragraph? Applicant: Well, we wish to know. That would you like to… Witness: 25 GIPA applications. Applicant: In fact if you care to look at your schedule, these GIPA applications were only triggered by the Development Application being put before Council. Witness: That's right, but the previous GIPA applications were in relation to, I think fencing, bamboo or something from memory. So there appears… Applicant: Fencing bamboo. Witness: Well, that maybe that the Land and Environment Court matter. I can't recall. Thank you for clarifying that, but my point is, it goes to ongoing issues. Applicant: Well, what are the ongoing issues. Witness: I've just said that. Tribunal: The witness has just stated what she considered to be the ongoing issues. You may disagree with her. Applicant: What do you say are the ongoing issues in respect of this DA/2O2000 and the 2021 DA? Robertson: Objection as to relevance. It doesn't have to be linked to a particular date of decision. Tribunal: No it doesn't. Applicant: Or yeah alright. Robertson: Or any particular matter? It's a course of, in relation you know, to a course of dealing. Tribunal: The question has been answered. Applicant: Miss Salviejo, you have, I want to suggest, I'll put to you, had a predetermined view as to what was going to happen in your reconsideration. Witness: I wouldn't say it was a predetermined view. As I said earlier, the evidence was there that it was more than likely that we would end up in NCAT Is that what you're referring to? Is it? Applicant: Is there some problem in in people exercising their rights to go to NCAT? Witness: Not at all, Mr Joseph. Not at all. Applicant: How do you how do you, how, why is it relevant that something might end up here? Is it the fact that you had that in the back of your mind… That whatever you decided it was gonna end up in NCAT? Witness: Yes, that's well, it wasn't. It didn't affect my decision. I think I made my decision in the appropriate manner. Tribunal: Bearing in mind this is a decision in relation to one document. Witness: That's correct. Applicant: Because you're not giving it… Tribunal: I am making an observation based on the evidence that's been presented to me, and I would appreciate that you desist from making snarky comments. Applicant: Is there anything wrong in instigating legal proceedings against neighbours whose development applications breached the law? Tribunal: Well, with all due respect, this is not the Land and Environment Court. I am not going to determine whether or not a development application breached the law… I am not sitting in the Land and Environment Court. Please move on to something relevant to the GIPA Act. It's not relevant. Applicant: Nothing further. 1. The witness was excused from further attendance. Open evidence of Angela Critcher 1. In Ex 1, Ms Critcher provided details of the background to the planning dispute between the applicant and the Spencers, a history of the previous GIPA requests made by the applicant and she described in detail her actions in response to GIPA 1, GIPA 2 and GIPA 3, including the searches that she conducted in order to locate the information within the scope of each application and reasons why she refused to release certain documents and/or information on the ground that there was an overriding public interest against disclosure. A table of these documents and the grounds relied upon has been set out previously in this decision. 2. In Ex 2, Ms Critcher provided information regarding the further disclosure of information made on 26 May 2023, and she stated, relevantly: 7. Since my statements of 19 and 20 October 2022 were prepared, the Council reconsidered documents the subject of the access decisions under review and made an additional disclosure of information to the applicant on 26 May 2023 (further disclosure). The further disclosure was made under cover letter from BAL Lawyers dated 16 May 2023 and enclosed updated schedules of documents for each of the access decisions under review. A copy of that letter is annexed hereto and marked "A". 8. Exhibited to this statement is Exhibit Ac-02 which contains the documents the subject of the further disclosure as well as the amended schedules of documents. I note that where a document has not been disclosed, the exhibit contains a blank tab to act as a placeholder so that the document numbering in the exhibit remains consistent with the amended schedules. Searches for information 9. For the purpose of making the further disclosure I did not undertake any further searches of the Council's records beyond the searches described in my open statement of 19 October 2022 at paragraphs 51-66, nor am I aware of anyone else having undertaken any further searches. Miss Critcher's oral evidence 1. The applicant required Miss Critcher to attend for the purposes of cross-examination and she was called and affirmed. She confirmed that she made three decisions: (1) 12 April 2022 in in relation to GIPA 1; (2) 6 May 2022 in relation to GIPA 2; and (3) 8 June 2022 in relation to GIPA 3. 2. The applicant then cross-examined Ms Critcher at length. I have set out the cross-examination in some detail as it was at times difficult to follow: Applicant: You did that in particular, by writing to or emailing Mrs Spencer. Witness: The same as I would with any other application. Yes I did. Applicant: Madam, thank you. And did you email Mr Spencer? Witness: No. Applicant: Why not? Witness: He wasn't the contact on it. Applicant: How did you determine what the contact was, given that the DA which was under discussion before Council was lodged in both Spencers' names? Witness: The document determines who I consult with. Applicant: Which document? Witness: Whichever document is in front of me that is returned in the search. Applicant: Sorry, the application referred to both Spencers did it not for applications. Witness: The development application? Applicant: No, the GIPA applications. Witness: Your GIPA applications did, but your GIPA application has a large scope, so I used your scope to search. Applicant: I refer to the owners. But this is on the second page of your summary of the 12th of April's decision, the owners of [address omitted], plural. Witness: In your scope… Applicant: Well, this is your summary of the documents. Witness: Which is your scope, yes. Applicant: So I asked even though I referred to owners "plural", did you seek out Mrs Spencer because you knew that she had special contacts within the Council. Witness: Not at all, Mr Joseph, no. Applicant: What is the explanation to exclude Mr Spencer from your third party consultancy? Witness: His name wasn't on any document that I can recall. Applicant: He was on every DA, you know? Witness: I wouldn't know without looking through every document for that DA. Applicant: And he was on the DA that was under consideration by Council in January, February 2022. Witness: Possibly that's not my department, Mr Joseph. Applicant: But you. I'm. Not. I'm not. I'm maybe it's not. But you are the one who's got the scope of the inquiry under s 54, I think it is, and you limited it to Mrs Spencer did you? Witness: No I limited it to what's in your scope. Applicant: No, but it was addressed to Mrs Spencer. Your email in seeking her response. Witness: My consultation, from memory, yes, it was to Mrs Spencer. It could be Mr and. Mrs, I can't recall. Applicant: What I'm saying? To you, I'm saying to you it was Mrs Spencer and you chose Mrs Spencer because you knew she was the chief troublemaker. Tribunal: You haven't laid down any proper basis for that assertion. Excuse me. Applicant: You knew pretty well… Tribunal: Can I just ask what is the relevance of whether or not consultation was made with Mr Spencer? Applicant: Because it's… Tribunal: How is it relevant? Applicant: You knew, did you not on the 1st of? I'm not. I'm not. You. You, you. You make your ruling, I'll abide by it... You rule. If you rule it's. Well, I'm not gonna contest. Tribunal: If you are not going to answer my question, OK, move on. Applicant: You knew as early as the 1st of March. 2022 that Mrs Spencer made a complaint to Kiama Council. This has been tendered yesterday. I'll start again. Perhaps you know, perhaps you don't… Are you aware that an email sent by Mrs Spencer to Council's mailbox on 1st March 2022 related to an urgent formal complaint by her because of a refusal to deal with an appropriate DA. Are you aware of that document? Witness: I'm pretty sure it's part of one of these applications. Joseph: And I want to know why it was part, why it was not part of the documents revealed. Tribunal: Where is the actual decision? Applicant: Exhibit 1 Tab 101A. Joseph: It wasn't produced until yesterday because it had been withheld. Do you see that document in front of you there. Do you cite that document in any of your schedules for your either April, May, or June GIPA decisions? Witness: Possibly. Without a TRIM reference number, which is what I would use to confirm what email it was. And I think it correlates with this document in decision no. 2, which is document 1.1 in GIPA 2 possibly. Robertson: Yes, if I can assist that's correct. Tribunal: It refers to the date of the record as 4th March 2020, so I'm assuming that is the date. Witness: Yes. Applicant: Do you agree that it obviously it relates to a DA. Witness: Well, it does mention a DA in the subject line, yes. Applicant: And do you agree therefore that there are special considerations in in terms of the public interest, as to whether a document relating to a DA should or should not be released? Witness: It would be weighed up against the considerations for or against. Applicant: Why is it against the public interest? Was was there any… Sorry, did you have a view as to why it was against the public interest for this document to have been disclosed. Robertson: I'm sorry, isn't that set out in the schedule? Applicant: I'm asking this witness as well. Tribunal: I'm saying it's set out in the schedule. If you want to clarify that, it sets out the grounds (1)(d) and (1)(g) and it is at page 307 of Exhibit AC-02. Applicant: And could you amplify why those two grounds override the public interest in favour of disclosure. You know, explain why the grounds that you have cited, which are against disclosure. Why those grounds override the general public interest in disclosing documents in relation to development applications. Witness: So in relation to cl 1(d), it was that the information was obtained in confidence and a decision to disclose it may impact the supply of similar information by persons to Council in the future. Applicant: Alright, let's just deal with that then. Tribunal: We don't need to because I made a ruling on it yesterday, which is why you got the document. So can we move onto things that are in dispute please. Applicant: What I want to suggest to you is that you use the provisions of the Act to hide from public view what was an inflammatory email from Mrs Spencer directed towards staff at Kiama Council. Witness: No, in the letter it refers to the fact that Councillors are very sympathetic. Joseph: That's an assertion in the document, not evidence. Witness: OK, well I'm not sure if this relates to the first decision? Applicant: I think it's the 2nd? Tribunal: I thought we were dealing with the second. Applicant: So you see that there, this is direct communication between you and the Councillors correct? And it seeks information from Councillors. Now my question is, did you ever follow up on the request to the Councillors? Witness: I can't recall Mr Joseph. Applicant: But would it be routine, I mean, let's assume you got 3 out of 9. Would it be routine for you to do that, to send a follow up email? Witness: In all the GIPAs I've done in the last eighteen months, this was the only one where I've had to refer or liaise with the Councillors. Applicant: Maybe, but can you just… Is it is it would… would it not be fair, would it not be reasonable action on your part, having sent out one email and having received some responses but not all responses, to follow it up? Witness: No. Whether or not the Councillor Liaison would follow it up or another Executive Assistant, but I wouldn't follow up generally. Applicant: Even though you're determining the GIPA application. Witness: I got responses. Applicant: But not from all Councillors. Witness: Not that I can recall. Applicant: Thank you. Now, it would not be unreasonable to expect a follow up to go out to the Councillors if you had not received a full response? Witness: Well, there's no way to know what is "a full response". I don't know what documents may exist. Applicant: Well, you do, to this extent that Miss Rice sent you documents that had the names of all the Councillors on them as being recipients of emails from Mrs Spencer. So you knew from that that all councillors received those emails from Mr Spencer, including Miss Rice. Witness: Well, of course, because it was addressed to them. Applicant: Yes, and you would therefore expect them to respond sending to you their, their, their, their what they had received from Mrs Spencer by way of documents in in respect of the DA being considered by Council? Witness: No, not at all. For me, as a person, as a Councillor, if I had seen that one Councillor had forwarded on an email that they had, I wouldn't duplicate it nine times over. Applicant: Well, you're making excuses. Witness: No, I said, if I was, I would assume that that one email had already been received so why complicate or duplicate? If they know that that was the only email that they had received. Applicant: It might be the case that some favoured Councillors got more emails than other Councillors. Witness: I disagree with that statement, because it's a Council mailbox. Applicant: But they received your email. I'm talking about their response to your email in that they may have received emails that Miss Rice had received from Mrs Spencer. Witness: There would be no way to know that. Applicant: Other than via the Councillors. Witness: Which I did. Applicant: We have established that you had third party consultation with Mrs Spencer, correct? Witness: In respect of which application? Applicant: All, all, all, with all the applications you had third party consultation with Mrs Spencer. Witness: And others, yes. Applicant: Well, I'll. I'll go there then. Who did you ever have a third party consultation with… with the firm for whom Mr Mitchell works? Witness: Possibly I don't have copies of my consultation emails. Applicant: You see Mr Mitchell's invoices that you determined should not be released – that the sums of money disclosed on them should not be released. Tribunal: Sorry, in which application? Applicant: Well, it's the… There are 2, there is the October one, which she did. Robertson: I think it's GIPA 2. Applicant: At Tab 14 of AC01 pages 341-343). Robertson: These are the documents that Miss Critcher discovered doing a further search of Vault in/about October 2022, so the evidence concerning those is in Miss Critcher's open statement at paras 63 to 66. Tribunal: GIPA 1. Applicant: Yes, they are the invoices, but blank. Robertson: So the actual invoices are at Exhibit AC02, at Tabs 20 to 22. Witness: Yeah, which I have. Tribunal: Yes, so they've been produced, but with redactions to the amounts. Applicant: I suggest you have determined that those that the parts of the invoices that disclose what appears to be what money amounts being redacted. Witness: That includes bank account details unless I'm mistaken. Applicant: You determined, did you, that that would prejudice the conduct or effectiveness or integrity … etc. under 14(1)(e) correct? Robertson: Well, if you turn to Tab 14 of Ex AC01, the schedule says it's on the basis of cl (4)(d). Applicant: The documents I wanted to take the witness to are at page 149 of Ex AC02. Robertson: So sorry, those just to assist those documents are listed in the amended schedule in AC02 being items 20 to 22. Applicant: I wish to take you to the invoices which are documents 20, 21 and 22 in ACO2 to be found at page 149 and following. Applicant: Did you ever give consideration to contacting (the Company) as to their attitude to the release of the pay rates? Witness: I don't recall consulting with them, but a lot of a lot of time has passed, a lot of time has passed. Applicant: Yes, but it would be in the form of a document, no doubt if you had been in contact with them, would it? And you don't have such a document. Witness: I didn't know I'd need to be looking for that document. Applicant: Now in any event did you consider the IPC's Guidelines as to considerations under section 14(1)(d) when you made your decision? Witness: Did I know about it? I used it I guess. Applicant: Did you consider them? Witness: I considered it. Applicant: Right, but you don't refer to that in your in your decision do you? Witness: Yes, I do. Applicant: But under the general heading that you considered information under s 15 of the Act. Witness: So I'm not sure if I understand your question exactly, but I referred to cl (4)(d). Tribunal: I said I don't understand the question and I can't expect the witness to. Would you please rephrase the question? Applicant: You see, do you say? Well, I'll ask it again. Do you say in your in your determination that you refer to the Information and Privacy Commissioner's Guidelines concerning how to approach correctly, s 14 (4)(d) of the GIPA Act? Witness: so just so I can get it right in my head, do I specifically say in my notice of decision that I used the guidelines? I would have to reread it, but I don't think I use the word "guidelines", I use "the Act". Applicant: Yes, but the Act refers you to guidelines, doesn't it? Witness: I don't know if the Act necessarily does, the Website does. Applicant: Well, s 15 of the Act refers to guidelines. Witness: But are you not referring to the public interest considerations against disclosure? Applicant: I'm referring to how to deal with the public interest disclosure provisions as it as it relates to s 14(4)(d). Witness: I still don't understand the actual question. Sorry Mr Joseph. Applicant: We'll, start again. Tribunal: Section 15(b), just to cut through this, says agencies must have regard to any relevant guidelines issued by the Information and Privacy Commissioner. What you are being asked is whether or not you expressly referred to those guidelines in making your decision about cl (4)(d)? Witness: I don't think I refer to the guidelines specifically, no. Applicant: Yet you claim it's one of those matters you considered. Witness: Yes, it's in 4.3 of the notice of decision. Applicant:: As are a lot of other matters, and that's just a formula, is it not, that you use and others to cover yourself in ensuring that Tribunals, when they come to review your decision, can be satisfied that you've made all relevant... You've given all relevant considerations to the matter? Witness: I don't understand the terminology of formula. It is just using the GIPA Act. Applicant: Well, but you never descend into detail as to what those items required of you in respect of the specific decision before you? Tribunal: And that is now a matter that I have to deal with as the matter is now before me. Applicant: Did you have any information that disclosing of the amounts could prejudice the supply of information to Kiama Council in respect of its operations and functions? Witness: Not, not too sure of the question. Did I think that by releasing figures it could impact a company? Applicant: No. Did you have any information that releasing the information could in the future prejudice the supply of confidential information to Kiama Council? Witness: I'm not too sure what you mean by information, sorry. Applicant: Well, the confidential information you've redacted, namely the sum of money involved. Witness: Yes, I had information, so I redacted it. Applicant: Yeah, I understand that. Tribunal: Cl (4)(d) refers to legitimate business, commercial, professional financial interests. Is that what we're being referred to? Applicant: You said that if would prejudice, the supply, the supply to the Council of confidential information. Witness: No, that's a different item. It's section cl (1)(d) I'm relying on. Tribunal: The reference to s 14(4)(d) – "business, interests of agencies and other persons", provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected. To have one or more of the following effects. (d) is "prejudice any person's legitimate business, commercial, professional or financial interests." Applicant: So so. Tribunal: This would appear to cover the redacted information in the invoices. Applicant: Well, so you say, but I'm like wish to to I wish to test that. Tribunal: What is it relevant to, Mr Joseph? Applicant: Because what I tell you, what it's relevant… Tribunal: No, you're you're arguing it on a different basis. Applicant: Well, I understand. I've accepted what you have just said. Now I wish to know.. I mean it, it would be well known to the community that that that professional people charge for their services would they not? Witness: Whether anybody would charge. Applicant: Yeah, and be well known to the community that the professional services would charge sometimes significant amounts of money for their services? Witness: There would be no way to know for sure unless you've released that information. Applicant: Why would you not release the information ? Witness: Because it's because it's business, commercial, professional or financial information. Applicant: Yeah, but not, but why is it? You still then have to weigh up the public interest, do you not? Witness: I did weigh up the public interest. Applicant: And how did you come to the view that the public should not know what a service, the cost of a service to the agency? Tribunal: Clause (4)(d) - can we move on please? Applicant: In your statement of the 29th June 2023, you say there's been a review of Council's file in relation to this matter (at paragraph 4). Did you conduct that on your own? Witness: No. Applicant: Who did you conduct it with? Witness: Our legal representatives. Applicant: Did you therefore review your own decisions again with the help of the lawyers? Witness: My decisions? Applicant: Did you then review your own GIPA determinations? Witness: No, not specifically. It was a review of the matter before NCAT or matters, sorry. It is set out in para 7. Applicant: Do you know what prompted that review? Witness: What prompted it was preparing for the hearing in order to try and limit the type of information that was needed to be discussed at this hearing. Applicant: The schedule that's been provided doesn't identify, while you identify the subsections, you don't identify the facts upon which you were concerned, sorry, that led to those conclusions. Is that not fair? You simply state the reasons for redactions as being that they would disclose fees and rates charged to council, right? Witness: I haven't got this the the. Tribunal: We've already dealt with the invoices. The answer is cl (4)(d). Applicant: Please, that's not the point. Tribunal: Well, please make it. Applicant: So what you have in the final column of that schedule are the facts upon which you rely to justify the reliance on the subsection. Have you any evidence upon which you could which you can point the Tribunal to as to why disclosing that information would prejudice their business legitimate business interests? Tribunal: I reviewed these documents yesterday during the s 107 hearing. I am satisfied that the clause applies. Can we move on please? Applicant: Are you rejecting the question? Tribunal: I'm rejecting the question on the basis of relevance… Applicant: In your email to Mrs Spencer dated 12th April 2022, when dealing with the second GIPA application, you say: "I understand that your privacy is very important to you and that you have genuine fear of being identified and of reprisal. I value your privacy as well and have redacted all identifying information prior to the releasing to the applicant." What evidence did you have that Mrs Spencer had a genuine fear of being identified, and of reprisal? Witness: So when somebody I consult with has an objection, they can only object under the table to s 14, so that is the wording from that - they select or not select, but they say why they are object objecting. Applicant: But all she says she relies on the subsection. Witness: What do you mean by subsection? Applicant: But when she when she responded to you, she indicated to you that she doesn't want any information released and that she was amongst other sections, seeking to rely on the subsection 14(1)(f). Witness: Anybody can object to any ground under the Table. It's a pretty standard response if somebody objects. Applicant: It I don't know that it's in evidence yet. It was in the documents that were sent to me voluntarily by Mr Bush. Tribunal: In previous proceedings? Applicant: No, no, no, no. Robertson: It might have been in response to the summons that we were dealing with yesterday. Applicant: No , no, no. This was done informally. Mr. Bush just sent them to me. So as I understand your last answer, Ms Critcher, is that this is a standard response to try and lay to rest concerns that a third party might have expressed to you? Witness: I don't know what you mean by "lay To rest". I'm obligated to acknowledge that they've objected and to give them the right to respond. Applicant: You do more than that, you say that what she is objecting to and the basis of her objection is a genuine fear of being identified and of reprisal, and those words of reprisal don't exist in the Act do they? Witness: I don't know the Act word for word. Sorry, Mr Joseph. Applicant: That's alright, but all I'm saying to you is that you had no evidence that Mrs Spencer had a genuine fear of being identified and of reprisal despite her attempt to rely on that provision of the Act. Witness: I feel by answering that question. It may. It may say what was in Mrs Spencer's objection. I can't recall what was in her objection. Applicant: Well, you don't refer to it in your reasons to you, what was in her mind. All she did, I suggest to you, was that she told you she didn't want the release of any information and she relied on various provisions of section 14? Witness: That's an assumption. Sorry, Mr Joseph, I don't recall. Applicant: Look at page 434 of AC02. Does that refresh your memory? Witness: I haven't read it all. Applicant: No, well take your time. Witness: Is this GIPA 1 or GIPA 2? Applicant: And it's the last document. Witness: Page 434, yes, it be GIPA 1 because the email below refers to a GIPA received on 1st of March. Applicant: Yes, thank you. Witness: So I think, from just looking at this email that you referred me to in this binder was for GIPA 1, but I think it's possible that this email that you produced a couple of minutes ago, may be for the GIPA 2. Applicant: You see that is GIPA 2. The one you have in your left hand is the GIPA 2 Objection and the one you have in the folder is GIPA 1. Witness: Possibly yes. Applicant: In neither in of those two, whilst Mrs Spencer places reliance on the various subsections including (f), I'm asking you whether having regard to both letters from Mrs Spencer, whether they justified you, as you did in your emails to her, state that she has a genuine fear of being identified and of reprisal. So where do you get that from in respect of those two emails? Witness: In respect to the two emails, yeah. So I wrote it in one email. Tribunal: No, sorry. We're talking about these the emails Mr Spencer sent you. You have two emails there from Mr Spencer. Witness: No, that's from me. This one is from Mrs Spencer. Applicant: Where do you get that conclusion from, that Mrs Spencer had a genuine fear of being identified and of reprisal. Witness: So when reading that and where it says this other person has already brought 3 criminal charges against me in Port Kembla Local Court, reported an alleged crime to the police against my husband, and then it goes on to talk about that these involved information which were given to Council for a previous DA, the purpose of these charges was to harass and intimidate us until we withdrew our DA. So when reading that objection in full gave added weight to the for or against considerations. Applicant: But this is on the say so of one person. Witness: Well, it's, it's. Of course it's on the say so of one person, because that's who I'm consulting with. Applicant: But you're also considering my application and my legal rights to information are you not? Witness: To add weight to a decision, the GIPA application and the GIPA applicant and the people I consult with, everything comes together to weigh up and balance the decision, of course. Applicant: And where do you where do you do that balancing act in your determination? Witness: The determination is the outcome? I don't know. Do I write it on a piece of paper or do I scribble notes in my head or do I talk out loud? I don't understand how you'd like me to answer that question. Sorry. Tribunal: Let's just refer go to the actual decisions, shall we? Take the witness to the decision that she's talking about. I think we've established that this is about GIPA 1 and it is located at Tab 9. Applicant: OK, this is your decision dated 12th April 2022. Are we looking at the right document? Sorry. Do you agree or disagree with this? You make your decision… what you have done is to essentially adopt a formula of referring to documents, referring to those matters that you are required to refer to and then at the very end add "a bit of a Hail Mary" that, at the top of page 9, having weighed up the considerations you have decided that there is an overriding public interest against disclosure of some of the information. And that what you fail to do is to give that assessment in respect of each document you are make you are determining whether to release or not. Do you agree? Witness: I disagree with the comment of "Hail Mary". Applicant: But in terms of whether or not that's what you don't do is to weigh up the public interest in respect of each piece of information. Witness: No, I disagree. Applicant: Explaining the public interest in respect to the categories you cited. You need to make a balancing the public interest test on every piece of paper, any GIPA, on each document, you have determined you will not release. And the different public interest considerations apply to different sections, do they not? But you don't describe different considerations. You describe one overall, at the top of page nine - of having weighed up the considerations above. Tribunal: What about the discussion on page 270? At 4.3 of the notice that is the reason. Witness: Oh sorry, as well as 4.3 is where I put my weight, yeah. Applicant: You see, when we go down, when we get to the bottom of the page 7, all you say about the invoices is that they prejudice a person's legitimate business, commercial, professional or financial interests. That's it. Witness: Well, that applies to documents numbered 20, 21 and 22. Applicant: Yes, yes, yes. Yeah, but you don't… Tribunal: Mr Joseph, this is now in my hands to make a decision. Applicant: No. That's what's causing me worry. Excuse me. On the 11th of April, you received an email from Debbie Bowles, asking that you and Ms Salviejo attend her office in respect of my most recent GIPA. Do you know what that meeting was about? Tribunal: just remind me where that is found again. Applicant: It's in AC01 at tab 13 at page 329. Applicant: Did you work hand in glove with Miss Salviejo in terms of your GIPA determination? Witness: How do you mean? Did we work together to make the decision. Applicant: Why not? Witness: Because I'm the Governance Officer and it was my notice of decision. Applicant: But could she not provide assistance to you? Witness: I could ask anybody for assistance. Applicant: Indeed. Did you ask Ms Salviejo for assistance at any stage in respect of helping you in the three determinations you made? Witness: Not that I can recall. I mean, it is possible that I did for one of one or two, but not that I can recall that I needed assistance. Applicant: As you work in the same physical office as you? Witness: Oh. Physical office, no. Applicant: Now I was taking you to for some reason you and Ms Salviejo - She was your supervising officer, was she? Witness: My coordinator, yes, yes. Applicant: And do you remember being asked to attend a meeting with her concerning my second GIPA application? Witness: I vaguely recall an email, yes. Applicant: And what was what? And it was going to be a half hour appointment suggested. Do you know what was about? Witness: The Directors are very hard to catch. Directors can be hard to get time with. Debbie Bowles is the Executive Assistant to the Director and from memory, I needed to talk to the Director - just making sure regarding "all documents arising out of and or relating to the email and attachments sent to all Councillors and to Miss Rippon and to Mr and Mrs Spencer by Mr Joseph", so it's possible that I reached out to Jessica Rippon, the Director, for clarification, possibly, or to make sure that I had everything or the right documents. Applicant: Why was Miss Salviejo also asked to come, do you know? Do you recall a discussion with Ms Salviejo and saying what she perceived to be my attitude to Kiama Council? Tribunal: Can you give us a date? Applicant: No. No. During this, during the period, you were making determinations. Witness: In relation to GIPA 1 and GIPA 2 or all GIPAs? Applicant: All GIPAs. Do you recall, Miss Salviejo making remarks about my history, if I put it that Way, with Kiama Council involving prior GIPA applications? Witness: Not that I. Recall, I mean, I would know more history than Stephanie as I was employed a lot longer, so I don't recall no. Applicant: Look at AC01. Tribunal: Is that the chronology that we've discussed before? Applicant: You called it a chronology. But yes, that's the document I'm referring to. Witness: I think you asked me about it when I was cross examined in the last hearing. I think you asked me about it, yeah. Applicant: Tab 8, AC01 and what I asked you was firstly, who compiled this? Witness: it's possible that I pulled it together. I can't recall exactly. Applicant: And do you know why did you include it in your statement? As an example of excuse to your statement? Witness: Because it corresponds with the statement. Applicant: What we've got to do is decide whether your decisions are right or wrong? The issue before NCAT was whether the decisions you made were correct, correct? Witness: Sorry, so when? Applicant: When you made yours. Witness: My three decisions, yes. Applicant: And at the time you made this annexure, you knew that this was an exhibit to be lodged with proceedings in NCAT. Witness: No, this what I'm pretty sure the chronology was to accompany the IPC review well… Applicant: Let's go there. Why did you think the IPC review would be interested in this information, that is the numerous GIPA applications I've made formally and informally? Witness: So it because it outlines the number of documents that have been released to you, which correspond with the where we might talk about information already available to the applicant and things like that. Applicant: Well, you could do that without, I mean you could, you would have done that without this document, couldn't you? I mean, you have referred to some documents, given some documents, some were not given, some were refused, some withdrawn. I mean, were you not trying to spoil the mind of the IPC, as indeed you are to this reviewer, the genuineness of the need for the documents I have sought? Witness: No, not at all. Applicant: Did you discuss your statement you made in September, right? Witness: My first statement was not September, no. Applicant: It does not refer to Miss Salviejo's decision does it? Witness: Well, no, because this is my statement. Applicant: I understand that. So did you therefore expect Miss Salviejo to make a statement to cover her determination? Witness: Well, it was not my decision. Applicant: I didn't ask you that. Did you understand that Miss Salviejo would make a statement to cover her decision? Witness: I don't understand the question other than it was her decision. So how could I possibly make a statement on a decision that wasn't mine? Applicant: I'm not asking. I'm not suggesting that this picture. Tribunal: Could you please clarify what you asked? Applicant: I will. You knew that your statement only revealed your three GIPA determinations correct?. You knew that before NCAT, Miss Salviejo's decision was also being subjected to review by NCAT? Witness: Yeah. Then yes. Applicant: And you knew that as at the 19th October, correct? Witness: I knew it when the reviews were put before NCAT, when we got notification of them. Applicant: But Miss Salviejo's statement was not referred to by you and you had you lived in the expectation, did you not, that Miss Salviejo would make a statement covering that absent decision? Witness: It wasn't sorry. It wasn't an absent decision. It wasn't my decision. Applicant: I'm not asking whether you… No, I understand that. But in terms absent from NCAT, your statement was limited to your decisions and you expected Miss Salviejo's statement would cover her decision? Witness: Of course I'd had no bearing or involvement in any other statement other than my own. Applicant: I'm asking you about your… Tribunal: The answer to your question is yes. It relates to her decisions only. Applicant: You'll understand that. But she had an expectation. That's what I'm trying to get at. Well, it does, because it will. You say that. Tribunal: Does it matter whether she had?. Applicant: You, you say a lot of things Senior Member and I'm trying to make a point that that statement has been made. It's referred to in the decision. Why? Tribunal: I'll ask you this question then. Why is it not appropriate for this witness to confine her evidence to the decisions that she made? Applicant: I'm not saying. That was not the purport of my question. Tribunal: Well, please tell me what the purport was. Applicant: That she has played this game of circularity in reasoning to avoid the obvious, to you and everyone else in this room, and we know that Ms Salviejo did make a statement and it was to catch up with those matters not referred to by this. Tribunal: You have cross examined her on her statement. Applicant: I did not. Tribunal: You did not cross examine Miss Salviejo? Applicant: On her statement? No, because I haven't had access to it. Robertson: I think the applicant is referring to a draft in the privileged material produced in response to the summons. Tribunal: You've cross examined Miss Salviejo at length about whether or not this witness had any involvement in her decisions, correct? Applicant: Her decision yes. Tribunal: And she said no. Applicant: She did say that yes, and that's not what this cross examination's about. Tribunal: Well, it is reasonable for this witness to confine her evidence to matters that she has first-hand knowledge of. And if you're suggesting to the contrary, I'd like to know on what basis. Applicant: Well, it does it. If and when, if and when you read my affidavit of the 24th October. I make it quite clear that it's my belief that Miss Salviejo was being hidden from the Tribunal. She was as perhaps was displayed today, a very biased and bullish witness, and that her statement had in fact been prepared when my October Affidavit got into the hands of the solicitors for Kiama Council. At that point, Ms Salviejo was kept out of range and has been attempted to be kept out of range ever since. Tribunal: What does that point have to do with this witness? Applicant: Well, it's only a matter of credit that she's not prepared to concede the obvious. We all know what the obvious is. The obvious is that she was preparing a statement, Miss Salviejo was preparing a statement, they were working in lock and key. Tribunal: What is the obvious? Applicant: She now claims it wasn't her decision. That is her defence. Tribunal: Not here. Applicant: Yeah, I understand that. I didn't say it was, but she knew about it. They work in the same office. Let's let get a bit real. Tribunal: I don't think any of that has been established. Robertson: No, it hasn't. Applicant: No. Alright, let's go. It's all fairy, fairy fairy land stuff. Tribunal: Thank you. They are your words, not mine. Applicant: Yeah. They, they, they, they sought to set aside the subpoena for Mr Salviejo to attend. They sought again to set it aside to ensure that she did not attend and they've made every effort to keep her at arm's length from the decision making. Tribunal: We have heard from Miss Salviejo. Please move on. Applicant: I say you simply go through the documents, you take out the names and the addresses and the email addresses when you first, when you, when you consider your obligations to release.... You have there, have you not … for example, part of the submission that Mrs Spencer was making to seek support for her DA, haven't you? Witness: Yes, it's redacted, yes. Applicant: So what I'm saying and that that now those redactions have now been set aside if we can put it that way, have they not? Witness: Yes, because…. Applicant: My question is why could you not have done that very same process if you have, if you will, rather than under the Spotlight of an NCAT hearing? Why could you not have avoided those very redactions had you sought to give my application bona fide consideration? Witness: For the simple fact that I didn't treat your GIPA applications any different to any other GIPA application. That's why I redacted as I did. No, I treat every application the same when I redact. If there's a photo inside somebody's house, I redact it. Applicant: That we're not just talking photos although you also redacted the photos for whatever reason. You redacted content of submissions being made in respect of the DA's, which have now by agreement been set aside and I want to know why you couldn't have done that if you were genuinely applying the law and not your own personal preference. Witness: For the same reason I just said. I treat every application the same and redact with the same process. Any personal or identifying information is redacted. Applicant: What is personal about a submission concerning a DA? Witness: It depends on what they say. If it if under here it says that this window looks into, or is my living room window, like it is read in its entirety. Robertson: In fairness, perhaps the witness can be shown the revised version which has been released (in Exhibit 2. Tab 17 behind the larger Tab 2 at page 431. 432). Applicant: I would have thought this was done in re-examination, but there you. Go different rules, Mr... Tribunal: If you want to ask the witness why she couldn't make redactions as per the revised documents, it's only fair that you show her the revised documents at page 431. Applicant: That's only one part of those. I was taking the witness to the redaction and restated the submission. Robertson: But the applicant's question to the witness was why had this been redacted in the first place and? Tribunal: Yes and why she couldn't have done it on her own bat. Robertson: And Miss Cricher was speculating that as to reasons why it might have been redacted so well. Applicant: Alright, now you. Tribunal: In fairness, you could now ask that question. Witness: OK, that's not a six in one way or the other since I have to make the decision. Applicant: Give me a break. Tribunal: No, I will not give you a break, Mr. Joseph, if you continue with these types of comments you are at risk. I will not tolerate it. Applicant: Did you not in respect of an email from Mrs Spencer, the fact that she had corresponded with the electoral office of Mr Ward, you removed any reference to that in your redaction. In your original redaction, yes. Why? Witness: When I when I weighed it up, I felt that was personal information, as in who she decided to correspond with? Applicant: Well, Mr Ward is a state Member of Parliament. He's a public officer. Why should that be kept secret from persons who have business before Council, that other public officers have been contacted? Witness: I didn't do it to keep it secret. I did it… Applicant: That was the effect of it. Tribunal: It's been released now, hasn't it? Can we move on please? Applicant: No Senior Member. 1. The applicant then stated that he had no further questions for the witness. Mr Robertson did not wish to re-examine the witness and she was excused from further attendance. Applicant's evidence and submissions 1. As will be indicated below, much of the large volume of "evidence" filed by the applicant is in the nature of submissions and it is difficult to separate evidence from submissions on the evidence. 2. In Ex A, the applicant stated, relevantly: Overview: Never let truth get in the way of a good story (complaint) 5. KMC's GIPA (4) determinations under review reveal major errors of fact and law. I believe the decision makers were in part overwhelmed by the false paper trail created by (Mr and) Mrs Spencer permitting them to wrongly be satisfied that the onus is on it that on balance that the presumption against disclosure had been discharged. The other part of the errors was triggered by bias to protect both KMC management, councillors and employees. The final part is that the decision makers preferred the interests of the Spencers (or used them) while at the same time denying me procedural fairness. 6. The failure to comply with s 63 GIPA Act, requires some speculation on my part as to why and how the determinations were allegedly justified. 7. The use of the third party information in 2022 is but the latest example of (Mr and) Mrs Spencer insider trading which when the actual facts are revealed, (which they were not), I demonstrate this form of corruption of a process is modus operandi of Mrs Spencer… 8. Given the determinations reflect on my integrity I will be at pains to defend myself. Similarly my life-long commitment to the rule of law adds to the open wound created by KMC. On the other hand, the "new" revelations of inconsistent evidence under oath, the use of secrecy to blunt the truth, the ingratiation of herself with public officers, councillors and planning staff has led to a state of affairs whereby the Spencers' interests have been favoured over merit decision making. 9. I am conscious of the bulk of documents provided. It is a duty on me, to take the Tribunal to the relevant evidence. This I will do in this affidavit, but further references will be made depending on KMC's conduct of the matter and the evidence if any it produces and revelations/submissions during the hearing. I note that some numbered pages have been deleted because of repetition by printing proves. 10. The bulk arises because, I believe that the GIPA determinations under review need to be understood in their historical context, that is, of ongoing partiality by KMC, its councillors and public officers to favour the Spencers. KMC now seeks to hide these facts from public scrutiny and rational assessment. Disregard for its legal obligations (whether Planning or GIPA laws) also underscores much of its conduct. The bulk also arises because of the commitments of (Mr and) Mrs Spencer to lodge extravagant planning documents and conduct themselves in a provocative manner including false and misleading statements. Each form of conduct has caused me to both litigate, to respond and to lodge objections. Details of such conduct are revealed as a consequence of subpoenas and notices to produce which has led to non-compliance as the truth is sought to be hidden. It is like peeling off the various layers of onions to get to the core, it takes time and many challenges leading to bulk… 12. I understand that I have in this document made what are my "submissions" concerning the merit of the review. I do this to reveal to KMC at the earliest stage I could, what are my concerns and permit them to respond with evidence/submissions to the contrary. I hope it will truncate the process. It has been encouraged in civil litigation (s 56-60 Civil Procedure Act 2005) and I consider applicable to administrative review proceedings. It has the potential to reduce costs and delays which arise from ambush. 13. the important forensic consequence of early notice is that if KMC fails to respond to my evidence, it provides further confidence in the Tribunal to rely on my evidence, and further confidence that the onus on KMC cannot be discharged. 14. I allege partially by each of the decision makers it is not necessary but it is relevant to a s 112 GIPA Act referral which is being relied upon. Partially provides the backdrop of the perverse outcomes. The principles of actual and perceived bias can be briefly stated and considered in the light of this allegation and its history within KMC planning section. These principles only provide a framework for consideration of the erroneous GIPA determinations but it does explain their perversity and irrationality which is supported by lack of reasons: a. Lack of reasonable search (s 54) so as to limit real consideration of the public interest; b. Unexplained "need" for the third party consultation; c. Failure to evaluate the reliability of third party information (s 54); d. Refusal to provide me with procedural fairness and in consideration and assessment of the possibility/likelihood as to the third party allegations were false and/or misleading; e. Lack of consideration of my "personal factors" (s 55) including whether there has been compliance with Terms of Settlement binding both KMC and Mrs Spencer arising from previous judicial proceedings (p 152-155); f. Misapplication both legally and factually of s 14(3)(a)-(f); g. Lack of reasons (s 61) as to how, if at all, the balance of competing public interests occurred(s 15); h. Undervaluing or effectively ignoring the presumption in favour of public interest in favour of disclosure of information associated with Development Applications and its classification as open access information( ss 3, 4, 6, 12, 15 and 18 GIPA Act and Sch 1 of GIPA Regulation (cll 3(1)(a) and (4)). The determinations paid lip service to these provisions but simply citing them as having been considered. Similarly the (sic) when determining the balance to be made under s 13; i. Refusal to reconsider the first 2 GIPA determinations despite recommendation by IPC. These determinations each centred on information which if released, would have revealed information concerning councillor's and Management's interactions with Mrs Spencer in relation to DA 2021; j. The determinations were irrational and perverse, giving lip service only to the objects of the Act (s 3) and other GIPA provisions by rote recitation of them; k. Desire to cover up the process of the withdrawal of DA 2021 and the reasons behind it, as to what informed the Spencers of this decision, including whether KMC provided any insights as to its attitude to the manner any new DA would be assessed. 15. To establish that KMC by its conduct, both in and/or out of Council meetings, acted with actual or perceived bias the principles are well known. In respect of the latter, the assessment of the reasonable bystander as to what might be perceived (Johnson v Johnson [2000] HCA 48;... Ebner v Official Receiver in Bankruptcy (2000) 205 VLR 337…; CNY 17 v Minister for Immigration and Boarder (sic) Protection (2019) CLR 78… These authorities require the application of the double might test, Which are determined in two steps. First, identification of what is said (to) lead the decision maker to decide a question other than on the merits of that question; and second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question, other than on its merits. 16. The determinations of IPC of each application, is a damning review of KMC's failures. However, I believe that on further consideration, this Tribunal will find each determination under review is a gross misapplication of the known facts and the terms of the GIPA Act. While not necessary to find, I believe the Tribunal will find that the determinations are a continuation of a course of conduct whereby KMC has sought to cover up the various decisions it made in respect to 2021 DA and its failure to abide by the consent orders which both KMC and Mrs Spencer signed in the class 4 proceedings I commenced in 2021. This was a course of conduct that commenced in early 2018 after DA 2017 having been lodged in November 2017. 17. It is the primary purpose of this affidavit to provide the Tribunal evidence under oath, so it may rely on proven facts that favour of release of all information I sought. The fact that my (and Mr Leftwich) evidence is under oath is to be contrasted with not only the third party notifications, but also the "complaints" made by (Mr and) Mrs Spencer to Police (perjury etc) and Legal Services Commissioner (and others). No action has been undertaken in response to any of these complaints is powerful evidence of their limited if any probative value… 1. After reciting a number of complaints that Mrs Spencer made against him, the applicant continued as follows: 19. In the GIPA determinations which in part relied on these complaints, is there any consideration by KMC of the presumption of innocence nor did they make any effort to provide me with procedural fairness as both these doctrines would interfere with the desired outcomes. Nor does KMC consider the onus of proof of serious allegations of misconduct…. 20. … Secrecy and gaming the system are hall marks of Mrs Spencer's inveigling of support. The other is to attach those who do not support her and stand in her way. KMC's response was one of complicity or passivity. … 32 A simple communication with me by KMC's public officers as to my response to the third party consideration is a prime example of KMC accepting secrecy over transparency in their decisions… 1. I note that the applicant also asserted that Mr Spencer's involvement in the matter is "a forensic mirage, a manipulation of the truth…" He also made complaints about Mr Spencer's alleged failure to comply with a subpoena that he caused to be issued in the Local Court proceedings. 2. I note that many of the matters that have been referred to in the preceding paragraphs are not relevant to the issues that I am required to determine in these proceedings. This is particularly the case in relation to the conduct by, and the determination of, the various DA's by the respondent. 3. The applicant also argued that the respondent's failure to call the Spencers and the decision makers would lead to a Jones v Dunkel inference, namely their evidence would not assist the respondent in satisfying "the Court" of compliance with the provisions of the GIPA Act. He asserted that an inference could be made that the respondent does not rely on the truth of the third party information nor the decision makers reasons. 4. However, with respect to the applicant, the Spencers are not witnesses in this matter and the decision makers were called in the proceedings. 5. In relation to the statutory scheme, the applicant stated, relevantly: 58. I believe that, in the light of the above, public interest is generated by oversight, which is the core public interest which justifies, on balance, the release of information and must be supported, except in the rare event of s 14 displacing this presumption. The information I have sought released in 2022 GIPA applications at its core, involve public interest decisions of an elected body. It is favoured by sections 3(1), 3(2)(a), 5, 12, 13, 15, 18 and 54 of the GIPA Act. 59. By cl 4(b) of the Government Information (Public Access) Regulation 2018 Part 1, cl 49b) defines as within s 18 of GIPA Act, applications for approvals under any other Act and any associated documents received to such applications. Each of the information sought in the first 2 GIPA applications are at lease, associated documents to a DA application lodged by Mr and Mrs Spencer which were lodged after 2010 (clause 2(c) thus does not apply). 60. Section 15(2) GIPA Act required IPC Guidelines to be considered. No specific reliance is identified in any determination by KMC. 61. If my submission is correct as to bias, and/or as to the perception of bias, the Tribunal may well consider s 112 of the GIPA Act is satisfied and bring the matter to the attention of the relevant Minister, the Minister for local Government (see EMC v University of Sydney [2021] NSWCATAD 234 at [293] ff). this is especially so in the determination by Ms Salviejo which is polemic and lacking in deliberation of material considerations. How often many times does KMC need to get the message? 62. Added to this GIPA statutory scheme and which provides legislative content of the "public interest", consideration must also be given to the provisions of the Local Government Act… 1. With respect to the applicant, there is no evidence before me that satisfies a finding that in conducting an administrative review of decisions made under the GIPA Act, this Tribunal has any power to consider the provisions of the Local Government Act. Similarly, this Tribunal has no power to deal with alleged breaches of Terms of Settlement entered into in Land and Environment Court proceedings. 2. The applicant also addressed at some length, as he did in his cross-examination of Ms Salviejo, the respondent's "alleged failure to identify adequately the personal factors". He argued that when a decision maker fails to identify the personal factors, "it is inevitable that the "balancing" of the public interest (s 13) will misfire. This has occurred in each determination under review"… 3. The applicant cross-examined Ms Salviejo extensively regarding her alleged failure to consider his personal factors. However, Ms Salviejo correctly identified that he did not disclose any personal factors his request in GIPA 3. She also stated that she was reviewing Ms Critcher's decision based upon the recommendation by the IPC, which concerned one document only. 4. The applicant maintained that as the decision maker, Ms Salviejo should have ascertained what his personal factors were and he argued to the effect that her failure to do this was evidence of "perversity and bias at its most revealing" on her part: para 72 of Ex A. 5. In relation to s 15 of the GIPA Act, the applicant complained that an absence of material considerations being revealed would make any review difficult. However, in these proceedings, the Tribunal is required to make a decision de novo and to make the correct and preferable decision based on the evidence before it. While an agency's failure to provide proper reasons would properly justify a request for a review of that decision, it does not prevent this Tribunal from determining what is the correct and preferable decision in relation to each GIPA request. I agree with these submissions and during the hearing, I pointed out to the applicant that the Tribunal is now the decision maker. 6. As to whether the withheld information had been revealed, the applicant stated, relevantly: 85. The relevant consideration, not considered nor tested, was whether the information has been revealed. There is no finding in any determination this consideration. A simple question to the Spencers, may, but only may, have borne fruit. For example, the Spencers provided to Land an Environment Court and length (sic) (unsworn) statement which included major photo and information concerning properties… Of course once again it appears the public officers closed their eyes to a truck load of reports revealing photos and photomontages lodged with it involving DA 2017 and DA 2021. KMC have taken their own photographs… It is hard to believe, that the redacted photographs have not been revealed. 1. In relation to this argument, I note that the applicant failed to address the relevant case law and/or the test that applies in determining whether or not information has previously been revealed for the purposes of the GIPA Act. Ex 2 does not contain any evidence that the photographs that were the subject of para 85 were already in the public domain. 2. In relation to cl 3(a) of the table to s 14(2) of the GIPA Act, the applicant complained (at [95]) that he is at a forensic disadvantage of understanding the nature of the information that was withheld. He stated that the Tribunal must undertake this task. 3. However, the applicant appeared to consider that because he has knowledge of Mrs Spencer's mobile number and various email addresses, cl 3(a) cannot validly be relied upon by the respondent in relation to GIPA 1, GIPA 2 and GIPA 3. 4. With all due respect to the applicant, disclosure under the GIPA Act is disclosure to the world at large and his own personal knowledge of a party's personal information does not lessen the obligation of the respondent to comply with cl 3(a) if the relevant test is satisfied. In any event, his personal knowledge does not establish that the information was previously released and/or that it was already in the public domain. 5. The applicant also addressed at great length the respondent's decision to rely upon cl 3(f) of the table to s 14(2) with respect to a complaint that Mrs Spencer made to the Council. While the applicant was understandably aggrieved by this decision, this ground was withdrawn before the hearing commenced and it was not an issue that the Tribunal was required to determine. 6. In my view, the respondent was entitled to review its position before the commencement of the hearing and to decide which clauses of the table in s 14(2) would be relied upon. 7. In any event, it is not this Tribunal's role to make findings as to the truth or otherwise of Mrs Spencer's complaint in response to the respondent's third party consultation. If the applicant wishes to pursue the extensive allegations that he has made against Mrs Spencer in Ex A, he may do so in a Court of competent jurisdiction. 8. The applicant also asserted, at considerable length, that in deciding whether or not to rely upon cl 3(f), the respondent was required to have objective evidence regarding the contents of Mrs Spencer's complaint. However, he has not identified any provision of the GIPA Act that imposes an obligation upon the respondent to determine whether an objection to disclosure received from a third party is "objectively based". 9. The only obligation imposed upon the respondent by s 54 of the GIPA Act is that of consultation on public interest considerations. Section 54(4) provides, "The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection." Section 54(5) provides: The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. 1. The applicant concluded, relevantly: 523. I believe the conduct of KMC (management, counsellors and public officers) as set out above, demonstrates it has been no commitment to quality, an unbiased decision making whether it be under GIPA legislation or environment legislation. Whether this is as a result of actual bias, or perceived biases of little importance. However, given the length, KMC goes to it seems it has been captured by the interests of the Spencers. The reasons could be multiple, it might be one of sympathy for the Spencers, it might be "political", It might be some form of revenge for the litigation (including two successful class 4 applications, a totally successful GIPA appeal to NCAT and other external reviews), that I have commenced against KMC. It might be because I have achieved success. The reason might be some reaction to the allegations/complaints that I have made in respect to its staff. The reaction might be because of some friendship or some associations with the Spencers, albeit political or otherwise. The reaction might be based on my being a (former) lawyer. It might be KMC sees itself or themselves as above the law. The fact is, I believe, there is a perception of bias of KMC in respect to the findings made in their GIPA determinations. This perception, I believe is both real and ongoing… 1. In Ex B, the applicant repeated numerous matters that he raised in Ex A, and he stated that he relied upon his submissions filed with respect to the Summary Dismissal application. 2. Much of Ex B is dedicated to submissions in support of the Tribunal conducting an in-person hearing, as opposed to an AVL hearing. On that basis, I consider that Ex B does not assist me in determining the issues in dispute. 3. Exhibit C is titled "Submissions and Statement by Michael Joseph" dated 15 February 2023, and the cover page indicates that the applicant relied upon it in support of his costs application (see Joseph no 2). 4. In my view, Ex C does not assist me in determining the issues in dispute. 5. Exhibit D is headed "Submissions and statement to application for miscellaneous matters and leave to M Joseph to issue further summons to produce" dated 19 April 2023. The cover page indicates that this is the applicant's response to the respondent's application to set aside his summonses, which was the subject of the interlocutory hearing on 5 June 2023. 6. As I have previously determined the interlocutory application and provided reasons for my decision, I do not consider that Ex D assist me in determining the issues in dispute, except to the extent that the Tribunal may consider them if, upon completion of the current administrative reviews, it determines that an officer of the respondent has failed to exercise a function conferred on them by or under the GIPA Act, and decides to report the matter to the relevant Minister under s 112 of the GIPA Act. 7. I note that Ex E comprises an affidavit of service of the summons to give evidence to Ms Salviejo. I do not consider that this assists me to determine the issues in dispute. Respondent's Final Written Submissions 1. In his final submissions dated 17 July 2023, Mr Robertson argued to the effect that the correct and preferable decisions for the Tribunal to make are dismiss the application for administrative review in respect of GIPA 1, GIPA 2 and GIPA 3. 2. Mr Robertson referred to the Tribunal's decision in Zonnevylle (regarding s 112 of the GIPA Act) and the Administrative Decisions Tribunal's decision in Saggers, and he concluded, relevantly: 148. In the present case, there is no evidence whatsoever that the relevant Council officers (Ms Critcher and Ms Salviejo) failed to exercise their functions under the GIPA Act in good faith in respect of the applicant's access applications. Both officers were cross-examined at length by the applicant. There was nothing arising from their evidence that would cause the Tribunal to form the view that either officer failed to exercise their functions in good faith in dealing with any of the applicant's access applications. The applicant's allegation is baseless. 149. For these reasons, any request by the applicant that the Tribunal exercise the power under s 112 of the GIPA Act to bring this matter to the attention of the relevant Minister should be refused. Applicant's Final Written Submissions 1. In his final written submissions dated 21 July 2023, the applicant basically repeated his previous submissions regarding the alleged misconduct of the respondent and its officers in responding to his GIPA requests. However, he also stated: 1. At [25] that the justification for the most-recent disclosure of information that was previously redacted was not explained and that this is a clear admission of how wrong the initial determinations were and how "desperate" the respondent was not to have to be accountable for its "12 months of hindrance and abuse of my legal rights via applications before NCAT". 2. At [28] that the respondent's reliance on cl 3(a) of the GIPA Act was "offensive and unjustified despite the duty of KMC and its lawyers to have the facts to support such reliance. It clearly did not and this is further demonstration of perverse and capricious decision making which is only consistent with bias and misconduct. It awaited until May 2023 to do due diligence after making every effort to avoid undertaking this responsibility prior to the last moment". 1. The applicant also sought to expand the grounds of his recusal application dated 5 July 2023, despite the fact that I refused that application on 5 July 2023. 2. I have decided that to the extent that these submissions seek to re-open the recusal application, they are otiose and I have not considered them in making this decision. 3. The applicant argued to the effect that neither Ms Salviejo nor Ms Critcher are credible witnesses and, at [59], he asserted that the Tribunal should remit the decisions in GIPA 1 and GIPA 2 to the respondent for it to undertake "proper search of correspondence between councillors and Mr or Mrs Spencer". 4. In relation to s 112 of the GIPA Act, the applicant argued ([67]) that there appeared to be "a deafness" by the Tribunal as to its duty under s 112. However, the applicant has not identified any "duty" imposed on the Tribunal by s 112. 5. The applicant further addressed the s 109 application (the subject of Joseph no 1) and he sought to argue that the fact that the respondent made that application was evidence of misconduct etc. on its part. 6. In any event, I note that the applicant did not comply with the Tribunal's order that final submissions should be cross-referenced to the evidence that supports them. do in his final submissions was to Applicant's supplementary submissions 1. On 28 July 2023, the applicant purported to file supplementary submissions, which sought to greatly expand the grounds of his recusal application on 5 July 2023, and he argued to the effect that I should not make any further determination in this matter. 2. As these submissions were filed without leave, I consider them to be otiose and I have not considered them in making this decision. Respondent's submissions in reply 1. On 28 July 2023, Mr Robertson issued the respondent's submissions in reply, which argued that there is no evidence that the respondent failed to conduct proper searches. 2. In response to the applicant's assertion that there were was not sufficient justification for the respondent's reliance on Copyright issues, it relied upon the Tribunal's decision in Sandy. 3. Section 10 of the Copyright Act 1968 (Cth) (the Copyright Act) defines "artistic works" "a painting, sculpture, drawing or photograph, whether the work is of artistic quality or not. "Drawing" is defined as including plans. "Literary works" are defined as "a table, or compilation, expressed in words, figures or symbols". 4. In Sandy, the Tribunal determined that planning reports are literary works and while "originality" is not defined in s 10, the Tribunal held that it means that the creation or production of the work required some independent intellectual effort, but novelty or inventiveness is not required. As the relevant documents were prepared for the purpose of, or related to one or more of the DAs prepared and lodged by the Spencers, the Tribunal should find that the documents are potentially subject to copyright (as found in Sandy) and that its actions in disclosing them with redactions and offering the applicant view only access to unredacted documents, was appropriate. 5. Mr Robertson also replied to the applicant's further recusal application, but as I considered those submissions to be otiose, I have not considered the submissions in reply in this decision. Consideration Relevant legislation GIPA Act 1. Section 3(2) states that the object of the Act is to open government information to the public and: (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 1. Section 5 provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 1. Section 9 confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. 2. Section 12 provides for public interest considerations in favour of disclosure. 3. Sections 13 and 14, relevantly provide: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)- (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, or… (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)… 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects— (a) reveal an individual's personal information,… 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects— … (d) prejudice any person's legitimate business, commercial, professional or financial interests,… 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. 1. Section 15 provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information: A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles— (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. Section 55 provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application" ) into account as provided by this section-- (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note : An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. 1. Section 80 sets out those decisions which are 'reviewable decisions' under Part 5. Relevantly, 'a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)' is a reviewable decision pursuant to s 80(i). 2. A person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for review of that decision (s 100 of the GIPA Act). The onus on the agency is to establish that its decision is justified (s 105(1) of the GIPA Act). 3. Section 107 provides: Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of— (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. 1. The applicant asserts that the respondent breached s 63. This provides: Deemed refusal if application not decided within time (1) If an agency does not decide an access application within time, the agency is deemed to have decided to refuse to deal with the application and any application fee paid by the applicant is to be refunded. Note— A deemed decision to refuse to deal with an application is reviewable under Part 5. (2) The deemed refusal to deal with an application does not prevent the agency from continuing to deal with the application and subsequently deciding the application and giving notice of its decision (a late decision) on the application. (3) The obligation to refund an application fee to the applicant is not affected by the making of the late decision and the late decision does not entitle the agency to payment of an application fee. (4) No processing charge can be imposed for dealing with an access application if the application was not decided within time (whether or not a late decision is made on the application). (5) Despite this section, the obligation to refund an application fee to the applicant does not apply to any application that was transferred to or from the agency. 1. However, there is no evidence before me that establishes a sound basis for a finding that s 63 applies to the current proceedings. 2. Clause 5 of Sch 1 provides: 5 Legal Professional Privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of the client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in some or all of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 1. Section 112 relevantly provides that if the Tribunal is of the opinion on the completion of an administrative review that an officer of an agency has "failed to exercise in good faith a function conferred on the officer by or under this Act", the Tribunal may on its own initiative bring the matter to the attention of the Minister who appears to have responsibility for the agency (emphasis added). Privacy and Personal Information Protection Act 1998 (NSW) 1. Section 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act), provides: (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless-- (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. ADR Act 1. Section 63 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. Evidence Act 1. Section 118 provides: Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of— (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 1. Section 119 provides: Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of— (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. 1. Section 125 provides: Loss of client legal privilege: misconduct (1) This Division does not prevent the adducing of evidence of— (a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or (b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power. (2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that— (a) the fraud, offence or act, or the abuse of power, was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power, the court may find that the communication was so made or the document so prepared. (3) In this section— power means a power conferred by or under an Australian law. Copyright Act 1. Section 10 of the Copyright Act defines "artistic works" "a painting, sculpture, drawing or photograph, whether the work is of artistic quality or not. "Drawing" is defined as including plans. "Literary works" are defined as "a table, or compilation, expressed in words, figures or symbols". 2. Section 32(4) of the Copyright Act defines a "qualified person" as "an Australian Citizen or a person resident in Australia". Relevant Legal Principles 1. The legal principles are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision". 2. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. 3. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information. 1. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13. 2. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Subsections 15(a) - (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act. 3. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. 4. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech). 5. In Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173 (Wojciechowska), the Appeal Panel concluded that the test in Shepherd (as set out in Camilleri) was "plainly wrong". This was because the test in Shepherd required the Tribunal to first determine whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency, and, if it concludes that the answer to that question is "no", the antecedent question as to whether the agency has undertaken reasonable searches does not arise. The Appeal Panel considered this to be at odds with s 105 of the GIPA Act, which places the burden on the agency to prove that the correct decision is that the information is not held (at [39]). 6. The Appeal Panel considered the nature of the issues on an application to review a decision that information is not held and it stated (at [40]-[42]): 40. In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal's power when reviewing an "information not held" decision, stating 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. 41. I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". I do not understand the Appeal Panel in Klaric to suggest otherwise. 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 1. Applying these principles, the Appeal Panel considered the correct approach to be as follows: 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: a. 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); b. determine whether the agency has proved any relevant factual issues on the balance of probabilities; c. 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; d. applying those findings, decide what the correct or preferable decision is; e. affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act. 1. The Tribunal affirmed the decision in Wojciechowska in a number of subsequent matters, including Seremitis v Commissioner of Police [2020] NSWCATAD 317; Tisdale v Cumberland City Council [2021] NSWCATAD 132 and CLT v Secretary, Department of Education [2022] NSWCATAD 34. However, principles that were developed under Shepherd remain relevant to considering the factual questions that Wojciechowska requires the Tribunal to ask and, particularly whether the obligation under s 53 of the GIPA Act has been complied with. Therefore: 1. What constitutes a reasonable search will vary with the circumstances; However, key factors include the clarity of the request, the way the agency's record keeping system is organised and the ability to retrieve any information that is 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: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. 2. A key question is whether further searches will locate other documents: Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80 at [51]; Mino v Legal Aid NSW [2015] NSWCATAD 245 at [30]; and 3. While there may be an expectation or obligation that an agency holds the information requested, a failure to locate the information does not automatically mean that the agency has failed to comply with the requirements of s 53(2). Rather, it can also mean that the agency does not hold the information, which is a decision open to the agency to make under s 58(1)(b) of the GIPA Act: Fisher No 2; 1. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher No 1); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru). 2. The Appeal Panel considered the operation of s 112 in Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [48]-[60], and it stated, relevantly: 49. Section 112 has four elements: (1) the formation of the opinion ("if NCAT is of the opinion"); (2) the circumstances in which the opinion may be formed ("as a result of an NCAT administrative review"); (3) the nature of the opinion ("that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act"); and (d) the fact that bringing the matter to the attention of the Minister is discretionary ("may bring the matter to the attention of the Minister"). 50. The second element is that the opinion must be formed "as a result of an NCAT administrative review". The administrative review is the review of any reviewable decision the Department has made under the GIPA Act. We agree with the Tribunal's finding that s 112 does not give the Tribunal power to carry out an inquiry into the officer's conduct that is separate from or additional to the administrative review proceedings… 58. The Tribunal and the Appeal Panel have specific powers to take certain action in accordance with s 111 and s 112 of the GIPA Act. The power in s 111 is to refer any matter to the Information Commissioner that NCAT considers is "indicative of a systemic issue in relation to the determination of access applications …" The power in s 112 is to bring to the Minister's attention a failure of an officer to exercise in good faith a function conferred on the officer. Although s 112 is headed 'improper conduct', headings to these sections are not part of the GIPA Act: Interpretation Act 1987, s 35(2). The Tribunal does not have power to bring to the attention of the Minister any conduct that the Tribunal may regard as improper. An opinion must be formed that the conduct is "a failure to exercise in good faith a function conferred on the officer". Nor does the Tribunal have the power under s 112 to bring to the attention of the Minister an alleged offence under the GIPA Act unless the conduct concerned also meets the test set out in s 112… 59. The Tribunal has discussed what is meant by good faith in Saggers v Environment Protection Authority [2013] NSWADT 204 and Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189 at [36]. We note that many of the submissions Mr Zonnevylle made in these proceedings were made and addressed by the Tribunal in previous proceedings: Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47. 1. In Saggers, the Administrative Decisions Tribunal held that the concept of "good faith" included a subjective element. Therefore, if in carrying out their functions under the GIPA Act, the relevant officer made a real and genuine attempt to answer the request for information, and to perform the function correctly, the officer will have exercised their functions in good faith: (at [50]-[51]). Section 112 of the GIPA Act 1. During the interlocutory hearing on 5 June 2023, I drew the parties' attention to the Tribunal's decision in Zonnevylle and I expressed the view, based upon that decision, that the Tribunal's role was to conduct an administrative review of the decisions made in relation to GIPA 1, GIPA 2 and GIPA 3, and not to conduct an investigation into the conduct of the respondent and its officers. 2. The applicant stated that he rejected the Tribunal's view and during the hearing, stated on multiple occasions that he was presenting a case on s 112 of the GIPA Act. He argued to the effect that the Tribunal should find that the respondent (and Ms Critcher and Ms Salviejo in particular) did not act in good faith etc. in determining his GIPA requests and stated that the Tribunal has a duty under s 112 to refer the matter to the relevant Minister. 3. However, s 112 of the GIPA Act does not impose a duty upon the Tribunal. Rather, it confers a discretion upon it to refer a matter to the relevant Minister in certain circumstances, but only upon the completion of an administrative review (emphasis added). It does empower the Tribunal to so act at any time before the completion of the administrative review. 4. During the hearing on 5 June 2023, the applicant relied on submissions to the effect that neither Ms Critcher nor Ms Salviejo acted in good faith in determining his GIPA requests and that this was effectively "misconduct" that invoked s 125 of the Evidence Act. On that basis, he argued to the effect that the respondent had waived privilege over documents that he sought to obtain under the Summonses to Produce Documents (x 2) and that the Tribunal should grant him access to them. 5. As I stated in my reasons for decision regarding the interlocutory application, the second Summons to Produce Documents in particular sought production of documents which, on their face, were prepared by the respondent's officers and/or its legal representatives in circumstances to which ss 118 and/or 119 of the Evidence Act would usually apply. While this Tribunal is not bound by the rules of evidence, there is no evidence before me that supports a decision that ss 118 and/or 119 should not be applied. Alleged failure to afford the applicant procedural fairness 1. The applicant argued to the effect that he was denied procedural fairness as follows: By Ms Salviejo 1. The applicant has asserted to the effect that Ms Salviejo denied him procedural fairness because she did not consider the further submissions and documents that he lodged with the respondent when she conducted the internal review of the decision in GIPA 3 following receipt of the IPC's recommendation. 2. There was no evidence before me that the respondent invited the applicant to make further submissions at that time and I therefore raised this issue with the applicant during the hearing on 6 July 2023. I ascertained that the respondent did not invite the applicant to submit further and/or evidence at that time. 3. The applicant asserted that Ms Salviejo's decision to not refer to his further submissions and evidence could not be justified and that it was evidence of bad faith etc, on her part. However, in my view, there was no obligation upon the respondent to consider the further submissions and evidence in the context of an internal review that was being conducted based upon the IPC's recommendation regarding one document that was the subject of the decision in GIPA 3. By this Tribunal 1. The applicant alleges that the Tribunal in effect denied him procedural fairness by conducting a hearing that was focussed on determining the issues in dispute in the administrative review applications and not focussing on his "case" relating to s 112. I reject that allegation. 2. I confirm that I notified the parties at the commencement of the interlocutory hearing on 5 June 2023, that I intended to follow the decision in Zonnevylle. While the applicant disagreed with this decision and he persisted in raising matters that he considered were relevant to his "case under s 112", he did not refer to any legal authority or present any compelling argument in support of a decision that the decision in Zonnevylle should not be followed. 3. I confirm that I advised the applicant on numerous occasions that matters that he was seeking to raise were not relevant to the determination of the issues in dispute before me. However, he chose to ignore that advice. 4. While the Tribunal is not bound by the rules of evidence, the evidence before it must be logical, probative and relevant to the matters in dispute in the proceedings. I therefore sought to limit the applicant's cross-examination of Ms Salviejo and Ms Critcher to matters that were relevant to the determination of the issues in dispute. 5. At one point, I even made a formal request to the applicant that he should restrict himself to relevant matters. However, he stated that he would not accept that request. 6. From the commencement of the interlocutory hearing on 5 June 2023, the applicant was on notice of the Tribunal's view regarding s 112, and of the manner in which these proceedings would be conducted. He was given every opportunity to represent his interests and to raise matters that were relevant to the determination of the administrative review proceedings. 7. In any event, at all relevant times the applicant has been able to commence proceedings against the respondent in Courts of competent jurisdiction, in which forum he can properly ventilate his complaints and/or grievances against the respondent regarding its conduct in determining his GIPA requests and/or the Spencers. However, it appears that he has not done so. Reasonable searches 1. I have applied the decisions in Wojciechowska, Seremitis, Tisdale, CLT, Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80 and Mino v Legal Aid NSW [2015] NSWCATAD 245. 2. I note that the applicant argues to the effect that the respondent did not conduct reasonable searches because Ms Critcher did not follow-up on a request for information from all Councillors in relation to his GIPA requests before she issued her decisions. 3. I accept the evidence of Ms Critcher in Ex 1 and Ex 2 in relation to the searches that she conducted in order to locate documents that fell within the scope of GIPA 1, GIPA 2 and GIPA 3. I note that she conducted further searches after her initial decisions were made and located additional documents, which were then released subject to redactions made upon public interest considerations. 4. Ms Critcher's evidence regarding the searches that she conducted was not significantly challenged by the applicant in cross-examination. As the Tribunal's decision in Fisher No 2 indicates, while there may be an expectation that the agency holds the requested information, a failure to locate it does not automatically mean that it has failed to comply with s 53(2) of the GIPA Act. It can also mean that the agency does not hold the information, which is a permitted decision under s 58(1)(b) of the GIPA Act. 5. Based upon the significant volume of documents that Ms Critcher located, I am satisfied that she conducted reasonable searches as required by s 53 of the Act. 6. The applicant also cross-examined Ms Salviejo as to why she did not conduct any additional searches in conducting the internal review of the decision in GIPA 3 following the IPC's recommendation. 7. Ms Salviejo gave evidence that as she was reviewing a decision made in respect of one document, she did not consider that any further searches were required because the documents that Ms Critcher previously located were held in the respondent's CMS database. 8. I accept Ms Salviejo's evidence on this issue and I am satisfied that in the circumstances described above, no further searches were required. Public Interest Test 1. Section 13 of the GIPA Act requires the Tribunal to determine whether, "on balance" there are public interest considerations in favour of disclosure which outweigh those against disclosure. 2. In Searle at [104], the Appeal Panel held that the application of the public interest test requires a broad value judgment to be made, having regard to the objects of the GIPA Act, the general presumption in favour of disclosure of government information, and the principles set out in s 15. GIPA 1 Public interest considerations in favour of disclosure 1. Section 12(1) of the GIPA Act provides that "there is a public interest in favour of the disclosure of government information". Section 12(2) provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure. The respondent identified the relevant public interest considerations as being: (1) the general public interest in favour of the disclosure of government information, relying on ss 3 and 12(1) of the GIPA Act; and (2) the information is personal information of the applicant. 2. In Commissioner of Police, NSW Police Force v Barrett (No 2) NSWCATAP 86 at [52], the Appeal Panel found that the weight to be attributed to the first of those considerations will depend on the "functions of the agency to which the access application is directed, and the character of the information". 3. The applicant did not identify any additional public interest considerations in favour of disclosure in Ex A. Instead he asserted that the respondent failed to adequately identify his "personal factors" as required by s 55 of the GIPA Act and that Ms Critcher and Ms Salviejo "quite deliberately" limited the personal factors that were considered. He stated, relevantly: 69. Ms Critcher at [4.2] (p 236 and p 257) in the first two determinations; identified the personal factor in this manner, that I lived directly next door to the subject property and am gathering correspondence between the DA applicant, property owner and Council in relation to DA2021 for [address omitted]. This does not do fairly describe my personal factors in seeking the information. This fails to embrace the personal factor I have in ensuring transparency, impartiality and informed decision making by Council (being management and Councillors) in relation to DA 2021 and the compliance with the Terms of Settlement. The applications was (sic) not about gathering correspondence. This mischaracterisation caused the determination to misfire in its consideration, such as it was. 70. The same characterization of personal factor was adopted in the third application, [4.2] (p272). Here the application was seeking information obtained from third party notification And documents considered by Miss Creature in her determinations under S14 in the second Determination (p270). 71. This again caused the determination to misfire legally and factually. Further, no attention was given to the second limb of the request. 72. Ms Salviejo In her redetermination of found there was no public interest in disclosure, only personal interest. (p7/9). This is perversity and bias at its most revealing, given she is KMC senior governance officer. 1. In [68] of Ex A, the applicant set out an extensive list of his personal factors for making the GIPA requests in 2022. However, he did not disclose any of these factors in any of the three GIPA requests. He cross-examined Ms Salviejo at some length as to why she did not identify any personal factors in her internal review decision and she stated that the applicant did not disclose any personal factors in the relevant GIPA request. 2. While the applicant correctly stated that s 55(4) of the GIPA Act permits an applicant to provide any evidence or information concerning personal factors, as an experienced legal practitioner and GIPA applicant he should have been aware that the relevant time for providing this information is either when the GIPA request is made or before the GIPA request is determined by the agency. 3. The applicant asserted that as he was not advised of the fact that third party consultation was being undertaken and obtained, the decision-maker's failure "to provide such an opportunity given the nature of the information" reveals bias or perceived bias of the decision maker to make an adverse decision. 4. I reject this submission as it seeks to excuse the applicant's failure to provide relevant information to the respondent before the GIPA requests were determined. A decision maker cannot be criticised for failing to consider matters that were not put before them before the determination was made. The extensive evidence before me does not include any explanation for the applicant's failure to disclose his personal factors before 22 October 2022. 5. In any event, the terms of s 54(1) of the GIPA Act are mandatory as it states that "An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that – (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. 6. Given the nature of the information sought in the three GIPA requests, I am satisfied that s 54(1)(a), (b) and (c) are satisfied ad, as an experienced legal practitioner and GIPA applicant, the applicant should have been aware that the respondent was obliged to consult with the Spencers and/or Councillors before determining whether there was a public interest consideration against disclosure of the information. 7. For these reasons, I consider the applicant's submissions concerning alleged bias (actual or perceived) or alleged cover-up of biased conduct by its alleged failure to identify his personal factors in the decisions made in GIPA 1, GIPA 2 and GIPA 3, are misconceived and without merit. 8. I am required to make what I consider to be the correct and preferable decision based upon the evidence before me. Section 12(2) of the GIPA Act gives examples of public interest considerations in favour of disclosure and I consider that the following apply to this matter: (a) 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. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. 1. Based upon the extensive evidence before me, I am satisfied that these public interest considerations should be given strong weight and that the applicant's personal factors (disclosed in Ex A) should be given moderate weight. Public interest considerations against disclosure 1. The respondent relied upon the following considerations: Documents numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 (the email), 15, 17 (the email),18, 23, 24, 25, 46, 47, 48, 49, 50, 51, 53, 58, 59, 60, 61a, 62, 63 & 64a 1. The respondent relied upon cl 3(a) of the table to s 14(2). I am satisfied that the respondent properly applied cl 3(a) and that the redacted information is a person's personal information. Attachments to the emails in documents numbered 14 and 17, and document no 16 1. The respondent relied upon cl 6(1) of the table to s 14(2), namely that disclosure of the information could (disregarding the operation of the GIPA Act) reasonably be expected to constitute a contravention of the Copyright Act. 2. The attachments to documents 14 and 17 were "DA submissions" and the respondent redacted photographs and other diagrams, but offered to provide the applicant with "view only" access to the unredacted documents in accordance with the Tribunal's decision in Sandy. 3. I am satisfied that the respondent properly relied upon cl 6(1) in relation to the redacted documents. Documents 20, 21 and 22 1. These are commercial invoices and the evidence before me indicates that information (including bank account details and commercial rates and the amount charged) was redacted in order to protect the issuer's legitimate business, commercial, professional or financial interests under cl 4(d) of the table to s 14(2). 2. Based upon the information before me, I am satisfied that cl 4(d) was properly applied to the redacted information. Document 30 1. The applicant withheld the information on multiple grounds, namely: 1. Clause 1(e) of the table to s 14(2), on the basis that its contents could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency; 2. Clause 1(h) of the table to s 14(2), on the basis that its contents could reasonably be expected to prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency; and 3. Clause 5 of Sch 1, on the basis that it is subject to legal professional privilege for which there is a conclusive presumption against disclosure. 1. Having examined the document, I am satisfied that cll 1(e) and 1(h) were properly applied by the respondent. However, as I found during the confidential hearing that it was subject to LPP, there is a conclusive presumption against disclosure under cl 5 of Sch 1. Documents 31, 32, 34, 35 & 36 1. The respondent withheld the documents pursuant to cll 1(e) and 1(h). Based on the evidence before me, I am satisfied that these considerations have been properly applied. Documents 37, 38, 39, 40, 41 & 42 1. These documents were withheld due to Copyright issues under cl 6(1) of the table to s 14(2) of the GIPA Act and the respondent offered to provide the applicant with "view only" access based on the decision in Sandy. Documents 26, 27, 28, 29, 56a & 57 1. These documents were released to the applicant in full. Documents 43, 44 & 45 1. These documents were not released on the basis that they were publicly available. Documents 52, 54, 55 & 56b 1. These documents were not released because the applicant already had access to them. 2. I have determined that it is appropriate to afford each of these considerations significant weight, with the exception of cl 5 of Sch 1 which mandates that there is a conclusive presumption of a public interest against disclosure. Balancing the public interest 1. In applying s 13 of the GIPA Act, I have adopted the approach discussed in decisions including Flack and Hurst. 2. For the reasons set out above, I am satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by those identified as relevant in the Table to s 14. 3. On that basis, I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 12 April 2022, as varied on 10 April 2022 and 26 May 2023. GIPA 2 Public interest considerations in favour of disclosure 1. In my view, the same public interest considerations in favour of disclosure under s 12(2) apply to this GIPA request, namely: (a) 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. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. 1. I repeat my previous comments regarding the applicant's failure to raise any additional public interest factors in his submissions and in relation to the issue of his personal factors. 2. Based upon the extensive evidence before me, I am satisfied that these public interest considerations should be given strong weight and that the applicant's personal factors (disclosed in Ex A) should be given moderate weight. Public interest considerations against disclosure Document 1 1. This document was withheld under cll 1(d) and 1(g) of the table to s 14(2). However, following the confidential hearing on 5 July 2023, the document was released to the applicant by order of the Tribunal with redactions of personal information relating to Mrs Spencer under cl 3(a) of the table to s 14(2). Documents 2, 3, 4, 5, 12a, 14, 15 (the email), 16a & 17a 1. The respondent relied upon cl 3(a) of the table to s 14(2). I am satisfied that the respondent properly applied cl 3(a) and that the redacted information is a person's personal information. Documents 6, 8a, 8b, 9, 10, 12c, 13a, 13c & 17b 1. These documents were released in full. Document 7 1. This document was not released as it was publicly available. Document 11 1. This document was not released as the applicant already had access to it. 2. Based upon the extensive evidence before me, I am satisfied that these public interest considerations should be given strong weight and that the applicant's personal factors (disclosed in Ex A) should be given moderate weight. Balancing the public interest 1. In applying s 13 of the GIPA Act, I have adopted the approach discussed in decisions including Flack and Hurst. 2. For the reasons set out above, I am satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by those identified as relevant in the Table to s 14. 3. On that basis, I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 6 May 2022, as varied on 26 May 2023. GIPA 3 Public interest considerations in favour of disclosure 1. In my view, the same public interest considerations in favour of disclosure under s 12(2) apply to this GIPA request, namely: (a) 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. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. 1. I repeat my previous comments regarding the applicant's failure to raise any additional public interest factors in his submissions and in relation to the issue of his personal factors. 2. Based upon the extensive evidence before me, I am satisfied that these public interest considerations should be given strong weight and that the applicant's personal factors (disclosed in Ex A) should be given moderate weight. Public interest considerations against disclosure 1. However, it is important to note that the only document that was withheld in Ms Critcher's determination dated 8 May 2022, was the third party consultation document that was released to the applicant subject to the redaction of personal information under cl 3(a) of the table to s 14(2). Two other documents that were located by Ms Critcher were not released on the basis that the applicant already had access to them. 2. This decision was the subject of a recommendation by IPC that the respondent reconsider its decision regarding document 1 by way of an internal review and on 18 August 2022, Ms Salviejo made a decision that withheld part of the information on public interest grounds. 3. I repeat my previous comments regarding cl 3(a) of the table to s 14(2) and I am satisfied that this factor should be given strong weight and that the applicant's personal factors should be given moderate weight. Balancing the public interest 1. I am satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by cl 3(a) in the Table to s 14. 2. On that basis, I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 8 May 2022, as varied on 18 August 2022 and 26 May 2023. Section 112 of the GIPA Act 1. Having now completed the administrative reviews that are before me, it is necessary to consider whether it is appropriate to bring the matter to the attention of the relevant Minister because an officer of the respondent has failed to exercise in good faith a function conferred upon them by or under the GIPA Act. 2. The applicant made extensive submissions to the effect that the decisions made by Ms Critcher and Ms Salviejo were not made in good faith, but rather were infected by bias (perceived or actual) such that the matter should be referred to the Minister. 3. In my view, the decisions made by Ms Critcher and Ms Salviejo are not optimal, as they appear to lack detail that displays their path of reasoning in relation to the public interest considerations for and against disclosure of the disputed information. 4. However, each of the reviewable decisions indicate the public interest considerations that were relied upon and the weight that was afforded to each and the path of reasoning was sufficient as to enable the applicant to prepare and lodge extensive submissions with the Tribunal. In my view, the lack of detail is not evidence of bad faith on the part of the decision makers. 5. In my view, given the lengthy prior history between the applicant, the respondent and the Spencers, determining the GIPA requests that are before me would have been challenging to say the least. In my view, both Ms Critcher and Ms Salviejo made a real and genuine attempt to answer the requests for information and to perform their functions correctly. 6. Therefore, based upon the decision in Saggers, I am satisfied that neither Ms Critcher nor Ms Salviejo failed to act in good faith in discharging their duty to properly determine the GIPA requests and I decline to exercise the discretion conferred upon me by s 112 of the GIPA Act Conclusion 1. In relation to GIPA 1, I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 12 April 2022, as varied on 10 April 2022 and 26 May 2023. 2. In relation to GIPA 2, I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 6 May 2022, as varied on 26 May 2023. 3. In relation to GIPA 3, I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 6 May 2022, as varied on 26 May 2023. ********** 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: 11 September 2023