Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Marrickville Council v Botany Council [2015] NSWCATAD 144 Hearing dates: 25 June 2015 Decision date: 25 June 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer Senior Member Decision: 1. The application to join Sydney Airports Corporation Limited to the proceedings is granted. 2. Sydney Airport Corporation is joined as the second respondent in these proceedings. Catchwords: JOINDER – right to appear and be heard – party to proceedings – appeal rights – adduce evidence – proper and necessary party – person directly affected Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Review Act 1997. Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Commissioner of Police, NSW Police Force v Fine and Anor [2014] NSWCA 327 Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50 Black v Hunter New England Local Health District [2011] NSWADT Hurst v Wagga Wagga City Council [2011] NSWADT 307 Ross v Lane Cove Council [2014] NSWCA 50 Category: Procedural and other rulings Parties: Sydney Airports Corporation Limited (Third Party Applicant) Marrickville Council (Applicant) City of Botany Bay Council (Respondent) Representation: Counsel: J Hutton (Third Party Applicant) V McWilliam (Respondent) Solicitors: J Strati (Marrickville Council) Applicant Sparke Helmore Lawyers (Respondent) File Number(s): 1510097 Reasons for decision Background 1. On 13 February 2015 Marrickville Council (the applicant) filed an application for administrative review with the Tribunal concerning a decision of the City of Botany Bay Council (the respondent) to withhold release of certain government information under the provisions of the Government Information (Public Access) Act 2009.(the GIPA Act). 2. The government information withheld by the respondent concerned a deed of release between Sydney Airport Corporation Limited (the third party) and the City of Botany Bay. The third party (Sydney Airport Corporation Limited) is the applicant in this application to be joined to the proceedings. 3. The matter first came before the Tribunal for a planning meeting on 31 March 2015. At that time in addition to the parties, Sydney Airport Corporation Limited's legal representatives were present. The matter was adjourned but in the interim the parties agreed to engage in discussions to examine whether there was any way of resolving the issue concerning access to the withheld information. It was noted that Sydney Airports Corporation Limited was to be involved in those discussions by consent. That approach seemed appropriate due to the claim that the withheld information concerned information relating to both the respondent and Sydney Airports Corporation Limited. The matter was adjourned to a further planning meeting on 9 June 2015. 4. On 9 June 2015, the matter had not resolved and Sydney Airport Corporation Limited foreshadowed an application to be joined to the proceedings under section 44 of the Civil and Administrative Tribunal Act 2013. The foreshadowed application was opposed by Marrickville Council who submitted that the appropriate course was that Sydney Airport Corporation Limited had an interest in the matter and therefore had a right to appear and be hard in the proceedings in accordance with provisions in the GIPA Act. Due to the nature and function of planning meetings, it was agreed that the appropriate course was to fix the joinder application for hearing as soon as practical, whilst setting a hearing date and timetable for the substantive (access) application to follow a decision in the joinder application. 5. The joinder application was heard by me on 25 June 2015. At the conclusion of the hearing I gave my decision and foreshadowed that I would publish reasons in due course. That course was adopted so that all parties could properly and efficiently prepare for the substantive hearing set down in five weeks on 30 July 2015. I made an order pursuant to section 44 of the Civil and Administrative Tribunal Act 2013 joining Sydney Airport Corporation Limited as the second respondent in these proceedings. Applicable legislation 1. At issue in this application was whether the applicant's rights should be ventilated by way of the formal joinder to the proceedings, or the exercising of a statutory right to appear and be heard. Section 44 of the Civil and Administrative Tribunal Act 2013 provides: Civil and Administrative Tribunal Act 2013 No 2 44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has: (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party. (3) For the avoidance of doubt, the member or members who constituted the Tribunal when it made an internally appealable decision cannot be made parties to an internal appeal against the decision. (4) The following persons may intervene and be heard in proceedings to which they are not already parties: (a) the Attorney General, (b) a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings, (c) any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings. (5) A Minister may (from money otherwise lawfully available for the purpose) authorise the payment to a party to the proceedings in which the Minister or the Minister's delegate intervenes such costs (if any) as the Minister considers were reasonably incurred by that party in relation to the proceedings as a result of that intervention. 1. The GIPA Act provides the following relevant provisions: Government Information (Public Access) Act 2009 No 52 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. (2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14). (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review. 1. In my view the crucial provisions are section 44 (1) of the Civil and Administrative Tribunal Act 2013 and section 104 (3) of the GIPA Act 2009. Joinder application 1. Mr Hutton of Counsel provided detailed written submissions in support of the application. Submissions were also provided by Ms McWilliam of Counsel for the City of Botany Bay Council in support of the joinder application. Mr Strati the Solicitor for Marrickville Council provided written submissions opposing the joinder application. Applicant (Sydney Airport Corporation Limited) submissions 1. Mr Hutton's submissions focused on the case of Commissioner of Police New South Wales Police Force v Fine and Anor [2014] NSWCA 327 ('Fine') which was submitted was both the leading case and authority for the appropriate application of section 44 of the Civil and Administrative Tribunal Act 2013. 2. The applicant submitted that the Court of Appeal in Fine's case considered the general provisions of section 44 and noted that section 44 (2) provided a specific power to remove a party from proceedings before the Tribunal. It was submitted that this indicated that the provision of section 44 provided a general discretion to join parties (in section 44 (1)) but a clear power to remove in specified circumstances (section 44 (2) ). Authority for this wide discretion was contained in the decision under appeal in 'Fine' noting that unlike the Administrative Appeals Tribunal Act 1975 (Cth), under the Civil and Administrative Tribunal Act 2013 the power to join was not limited by a requirement that the party seeking to be joined could demonstrate that it's interests would otherwise be affected. 3. The applicant set out in both oral and written submissions the differing level of rights that would constitute potential interests of the parties and how they were potentially affected by the general application before the Tribunal. 4. Reference was made to paragraph 44 of 'Fine' in that it was submitted that the applicant's rights were even greater than those of the Commissioner of Police in that their relationship to the interests was by a more direct route than the factual situation in 'Fine'. 5. At paragraphs 38-40 the Court of Appeal considered this issue: 38. The power of joinder conferred by the Civil and Administrative Tribunal Act, s 44 is stated in general terms. It is a power to join a party "if the Tribunal considers the person should be joined as a party": s 44(1). The Tribunal also has the power to remove a party. The power of removal may be exercised if the person is "improperly or unnecessarily joined, or ... ceased to be a proper or necessary party": s 44(2). The Commissioner submitted that the power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a "proper or necessary party" ought to be joined in the proceedings. That submission may be accepted. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions "proper" and "necessary", noting that the expressions are used in s 44(2) disjunctively and that a "proper" party may not be a "necessary" party. 39. A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application. The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal. The Appeal Panel appeared to accept that this was so: see at [37], referred to at [30] above. Further, the Rules provide for the joinder of the decision-maker: r 27(b). For that reason alone, the Authority was properly joined as a party in this case and because of the provisions of the rules is a necessary party to the proceedings. However, the fact that a party such as a decision-maker is a necessary party to proceedings does not of itself require that party to take an active role in the proceedings. This is discussed below in relation to the Hardiman principle. 40. The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister's department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene. 1. Further at paragraphs 43 and 44 the Court of Appeal observed that: 43. The Liquor Act, s 3(2) provides that in order to secure the objects of the Act, each person who exercises functions under the Act is required to have due regard to the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour). The functions of the Police Force specified in the Police Act, s 6(3)(b) and the provisions of the Liquor Act, in particular, s 3(2), are, properly viewed, complementary. This is reinforced by the requirement in the Liquor Act, s 116AE, that the Commissioner of Police is the only party who may bring an application for a long term banning order. 44. It follows that the Commissioner is a proper party to be joined in the Tribunal proceedings. He is the statutory applicant before the Commissioner. In bringing the application under s 116AE, he is doing so, not only pursuant to the statutory power conferred by that section, but also in furtherance of the statutory functions of the Police Force. He has an interest in not only the decision of the Authority, but also in the outcome of any administrative review of that decision. 1. It was submitted that in the current case, the applicant's interests would not only be affected by any decision in the proceedings, but that in addition it would be necessary for the applicant to take an active part in the proceedings. 2. It was also submitted that the applicant would qualify as a person / entity who would be aggrieved by a potential decision of the Tribunal and that the necessity to join such entities was a well understood principle in accordance with the High Court's decision in Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50 A "person aggrieved" 57. The three appellants alleged that each was a person aggrieved because its interests are adversely affected by the Minister's decision. The effect on interests to which the appellants pointed was what they said would be the economic consequences, for each, of the Minister's decision. The second and third appellants alleged that if the Minister's decision stood, each would have reduced turnover and would earn about eight or ten per cent less profit from its business than it would have expected to earn if the Minister had not approved the development at Giralang. By contrast, the first appellant alleged that, if the development at Giralang went ahead, it might (not would) lose the benefit of the lease it had made with the second appellant because the second appellant might (not would) go out of business. 58. The facts established demonstrated that each of the second and third appellants is a person whose interests are adversely affected by the Minister's decision. The facts established did not show that the first appellant is a person whose interests are adversely affected by that decision. The second and third appellants are persons aggrieved; the first appellant is not. 1. It was submitted that a person aggrieved would meet the criteria set out in section 104 (3) of the GIPA Act, however the applicant's role and rights were more closely aligned to the proceedings that merely those who (should) have a right to appear and be heard. Reference was made to the Administrative Decisions Tribunal case of Black v Hunter new England Local Health District [2011] NSWADT 295 which was a case concerning the GIPA Act. However that decision limited somewhat the scope of the benefit afforded by section 104. 51. The written submissions of the Information Commissioner contended that where evidence is received and heard in the absence of the public, the applicant and the applicant's representative pursuant to subsections 107(2) and (3) there remained an issue as to how the information the subject of an order under these subsections is to be treated in so far as they relate to her and her Office. It was contended that this remained an issue as the Information Commissioner could not be regard as comprising 'the public'. Hence, it was submitted, the Tribunal was not obliged to exclude the Information Commissioner from evidence and hearings under subsection 107(2) and (3). 52. In my view, there is no clear support for the contentions of the Information Commissioner arising from the terms of subsection 107(2) and (3). Nor are they supported from the terms of subsection 104(1) of the GIPA Act. That subsection provides that the Information Commissioner has a right of appearance before the Tribunal in any review application of a decision under the GIPA Act. That right of appearance extends to appeals from decisions of the Tribunal in regard to such applications. Subsection 104(2) is a provision in similar terms in regard to the Privacy Commissioner. 1. It was submitted that an entity exercising a right under section 104 may be limited in their participation in the hearing. In another GIPA Act consideration, Hurst v Wagga Wagga City Council [2011] NSWADT 307 provides at 54 that: 54. While the Information Commissioner has a right to appear and be heard in a Tribunal review, it is for the applicant and the agency to determine how they will argue their respective cases. Given the structure of the GIPA Act, and the provisions of s 105(2) which provides the Information Commissioner with a right to appear and be heard in Tribunal reviews, but which does not provide that the Information Commissioner is a party to the review, I think that the Information Commissioner's role in not one which should descend to the merits. Rather, the Information Commissioner's role is to assist the Tribunal with respect to the applicable law, relevant polices and guidelines, and on issues of interpretation of the Act. I do not read s 104, in the context of the Act as a whole, as envisaging the Information Commissioner's role as being one that descends to merits arguments and contentions. 55. I am reinforced in this conclusion by the provisions of Division 3 of Part 5, which are operate so that the Information Commissioner is not a party to a Tribunal review of a decision that has been the subject of review by the Information Commissioner. The Act provides that when conducting a review the Information Commissioner makes recommendations, which can then be considered by the agency on reconsideration under s 93. The decision then made is that of the agency, not that of the Information Commissioner. If there is then a Tribunal review, it is the applicant and the agency that are parties to that review: not the Information Commissioner. The fact that the Information Commissioner is not a party to such proceedings, reinforces the point that the legislature did not intend the Information Commissioner's role in Tribunal review to be one in which that office would argue the merits. 1. In addition, limitations could arise in not only the areas of adducing of evidence and making submissions, by also in appeal rights. The right of appeal under section 80 of the Civil and Administrative Tribunal Act 2013 is conferred on parties to the proceedings in first instance. 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). City of Botany Bay Council submissions. 1. The respondent in the proceedings supported the joinder application. Whilst they provided independent written submissions, they also adopted the applicant's submissions. 2. Reference was made to the case of Ross v Lane Cove Council [2014] NSWCA 50. At [51] the Court stated: The test for joinder It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders. 1. The respondent submitted that the two statutory provisions ventilated in these proceedings (s-44 and s-104) do not alter the settled law. It was submitted that as a result, the position in both 'Fine' and 'Ross' should be adopted by the Tribunal. Marrickville Council's submissions 1. The Council submitted that the joinder of Sydney Airport Corporation Limited will not compliment the guiding principle in the Civil and Administrative Tribunal Act 2013 namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 2. It was submitted that the right to appear and be heard under the GIPA Act, provided the applicant with a means to adduce evidence and make submissions in the appeal proceedings. 3. It was also submitted that as any order of the Tribunal to release information would fall to the respondent as only they are the agency who has an onus under section 105 of the GIPA Act, the joinder application should fail. The respondent would be the proper entity in accordance with section 66 of the Administrative Decisions Review Act 1997. 66 Effect of administrative review decision (1) A decision determining an application for an administrative review under this Act of an administratively reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision. (2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken: (a) to be the decision of the administrator (other than for the purposes of an administrative review under this Act), and (b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise. (Emphasis added). 1. The Council also submitted that 'Fine' must be read in a fuller context and consideration of the statutory role of the decision maker. 57. In conclusion on this point, whether or not a decision-maker should be an active party, or whether a party ought to be joined, will depend upon the statutory role of the decision-maker, the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case. 1. The Council went on to distinguish the factual and legal differences in the facts and provisions in 'Fine' contrasted with the current case. In addition submissions were advanced that because of the statutory provisions in the GIPA Act, and the conduct of the proceedings to date, little utility arose in granting the application, other than the managing of potential appeal provisions for the applicant. 2. Finally, it was submitted that the joinder application should only be granted if such an order will facilitate the resolution of the real issues in the proceedings. Consideration 1. It is clear that the applicant has an interest in the proceedings. The broad position is that the grounds relied upon by the Respondent (in the substantive application), for withholding the information, are that the release of the information would be likely to diminish the competitive commercial value of any information to any person and prejudice any person's legitimate business, commercial, professional or financial interests. 2. It was submitted that due to the nature of the information only Sydney Airport Corporation Limited would be in the best placed position to provide evidence as to how the relevant provisions of the Table to section 14 of the GIPA Act would apply. Whilst the respondent (Botany) had formed the view (either prior to or after consultation) that the provisions would apply, only Sydney Airport Corporation could set out how the business interests could be prejudiced, so as to provide significant weight to override the general presumption in favour of disclosure. 3. I have carefully considered all of the arguments advanced by the three participants in this hearing. Whilst the GIPA Act provides various provisions for third parties to appear and be heard in review proceedings, in my view it is clear that the provisions as set out at paragraph 38 of 'Fine' applies. 4. Whilst the position in paragraph 57 of 'Fine' (the considerations of the relevant case – see paragraph 27 above), are relevant, in my view there is authority within section 54 (6) of the GIPA Act, that would provide the third party objector with a basis to commence review proceedings in certain circumstances. I anticipate that had the administrator's (Botany) decision been to release the information, the third party would have been an applicant in separate proceedings rather than a second respondent following a joinder application. 5. Bearing in mind the proposition that the applicant may well need to take the lead role in the substantive proceedings (in a practical rather than structural context), in my view they would be 'a proper or necessary party' and as such should be joined. Conclusion 1. It follows that Sydney Airport Corporation should be joined to these proceedings pursuant to section 44 of the Civil and Administrative Tribunal Act 2013. Orders 1. Sydney Airport Corporation Limited is joined as the second respondent in these proceedings. 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: 08 July 2015