Wojciechowska v Secretary, Department of Communities and Justice [2025] NSWCATAD 2

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wojciechowska v Secretary, Department of Communities and Justice [2025] NSWCATAD 2 Hearing dates: 02 February 2024 Date of orders: 06 January 2025 Decision date: 06 January 2025 Jurisdiction: Administrative and Equal Opportunity Division Before: ADCJ Hennessy, Deputy President Decision: (1) In relation to Ms Wojciechowska's first access application I make the following orders: (a) The Respondent's decision that the government information identified in Items 1 to 5 is not held by the agency is affirmed. (b) The Respondent's decision that the application for government information identified in Items 6 to 14 is not a valid access application is affirmed. (c) The Respondent's decision that the government information identified in Item 16 is not held by the agency is affirmed. (d) The Respondent's decision that the deleted information marked "s 74 material not within scope" is not relevant to the information applied for in Item 15, is affirmed. (e) The Respondent's decision to refuse to provide access to the government information marked "s 14 cl. 3(a), s 14 cl 3(b)" in response to the access application in Item 15, is affirmed. (2) In relation to Ms Wojciechowska's second application I make the following orders: (a) The Respondent's decision in relation to Item 1 is set aside. The following decision is made in substitution for that decision: Ms Wojciechowska is to be given access to the information in Item 1. The form of access is by providing a reasonable opportunity to inspect a record containing the information, together with such facilities as may be necessary to enable the information to be viewed. A condition of access is that Ms Wojciechowska not make any record of the information including by taking notes, making an image or copying the record. (b) The Respondent's decisions that it held no information in relation to Item 2 is affirmed. (c) The Respondent's decisions that it held no information in relation to Item 3 and Item 5 is affirmed. (d) The Respondent's decision to refuse to provide access to the government information in Item 4 marked "s 14 cl. 3(a), s 14 cl 3(b)" is affirmed. (e) The Respondent's decision in relation to Item 8 is set aside. In substitution for that decision, the following decision is made: Access is given to a copy of the information in the letter from Justice Armstrong to the Attorney General referred to in paragraph 16 of the affidavit of James O'Young dated 21 November 2023 which discloses the date of all 2021 interviews conducted for the position of Deputy President and Head of NCAT's Guardianship Division. Access is refused to the remainder of the information in that letter apart from the formal parts of the letter including the address, the date, the salutation and the sign off. (f) Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent's implied decision that it does not hold information responsive to Item 10 is remitted to the Respondent for reconsideration in accordance with these reasons. (g) The Respondent's decision in relation to Items 6, 7 and 9 (apart from Ms Britton's CV) is set aside. The following decision is made in substitution for that decision: Access to the information is refused because there is an overriding public interest against disclosure. (h) Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent's decision not to give access to Ms Britton's CV is remitted to the Respondent for reconsideration in accordance with these reasons. (i) The Respondent's decision to refuse to provide access to the information in Item 11 because there is an overriding public interest against disclosure of the information is affirmed. (3) In relation to Ms Wojciechowska's third application I make the following order: (a) The Respondent's decision that the third access application is not a valid access application is affirmed. Catchwords: ADMINISTRATIVE LAW — Freedom of information — Access to information — Exemptions — Ground for refusing access -- Whether application for access is valid ADMINISTRATIVE LAW — Jurisdictional error ADMINISTRATIVE LAW — Hearing rule — Disclosure — Nature of materials requiring disclosure ADMINISTRATIVE LAW — Hearing rule — Hearing — Adjournment Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Evidence Act 1995 Government Information (Public Access) Act 2009 (NSW) Government Information (Public Access) Regulation 2018 Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Allesch v Maunz (2000) 74 ALJR 1206 Amos v Western NSW Local Health District [2017] NSWCATAD 176 Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Betzis v Commissioner of Police [2020] NSWCATAD 71 Black v Hunter New England Local Health District [2011] NSWADT 295 Brazel v Sydney Water Corporation [2021] NSWCATAP 13 Cianfrano v Department of Commerce (NSW) [2005] NSWADT 282 Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532 Jeray v Blue Mountains City Council [2023] NSWCATAD 99 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Border Protection v WZARH [2015] HCA 40 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 245 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 Sullivan v Department of Transport (1978) 20 ALR 323 Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173 Texts Cited: Mark Aronson, Judicial review of administrative action and government liability (7th ed, 2022, Thomson Reuters (Professional) Australia Limited) Category: Principal judgment Parties: Paulina Wojciechowska (Applicant) Secretary, Department of Communities and Justice (Respondent)