Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Hearing dates: 28 August 2015 Date of orders: 11 November 2015 Decision date: 11 November 2015 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member Dr J Lucy, Senior Member Decision: 1. Appeal allowed in part. 2. Order 2 made on 14 April 2015 in proceedings 1330335 in the Administrative and Equal Opportunity Division is set aside insofar as it determines that there is an overriding public interest against disclosure of information in Document 64 and, in substitution for it, the respondent is to provide the applicant with access to the information contained in the following entries and notes in Document 64: the entries for 5 July 2010 and 19 July 2010; the first line of the entry for 24 September 2010 and the second sentence of the entry for 24 September 2010 (comprising the last word on the second line of the entry and the third line of the entry); the entry for 5 and 6 October 2010; the entry of 8 October 2010, other than the last five words of the second line of that entry and the third line of the entry; the note immediately following the entry of 8 October 2010, other than the last six words of the first line and the whole of the second and last lines of that note; the entry for 14 October 2010 other than the last six words of the first line of that entry and lines 2-5 of that entry; and the note following the entry for 14 October 2010. 3. The Tribunal's decision is set aside insofar as it implicitly refuses access to the information in Documents 90, 107, 115 and 168 and, in substitution for that decision, the respondent is to provide the applicant with access to the information contained in Documents 90, 115 and 168 and to the information contained in Document 107 other than the third and fourth paragraphs of that document (that is, the second and third paragraphs after the marginal number "2" which appear immediately before a heading then marginal number "3"). 4. No order as to costs of the Appeal. 5. The appeal is otherwise dismissed. 6. Order pursuant to s 64 (1) Civil and Administrative Tribunal Act 2013 that there be a restriction on publication of any information that will identify the applicant. Catchwords: GOVERNMENT INFORMATION – Client legal privilege – Whether Tribunal addressed the question of whether disclosure of document would disclose the content of a confidential communication – Whether Tribunal considered whether there was a real prospect of litigation – Whether Tribunal considered whether in-house lawyer had requisite independence when advising in relation to a complaint concerning conduct of the respondent for which she was responsible; GOVERNMENT INFORMATION – Personal information – Whether information of agency officer is personal information – Balancing of public interest considerations; FACT FINDING - Whether the Tribunal made findings of fact required for conclusions as to application of privilege with no evidence to support findings – Whether Tribunal entitled to draw inferences - Whether circumstances gave rise to a reasonable and definite inference – Whether Tribunal entitled to consider evidence in previous proceedings involving same parties; APPEAL – Whether grounds of appeal limited to those identified in notice of appeal – Tribunal's duty to resolve the real issues in the proceedings with as little formality as possible; PROCEDURAL FAIRNESS – Whether Tribunal erred in making a finding that litigation privilege applied when this was not part of respondent's case; COSTS –Appeal on decision not to award costs- special circumstances- whether objective test. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Aavelaid v J.A. Hayek t/as Laing & Simmons [2015] NSWCATAP 130 AIN v Medical Council of New South Wales [2015] NSWCATAD 66 AIN v Medical Council of NSW [2013] NSWADT 112 Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 Australian Hospital Care Pty Ltd & Anor v Duggan & Ors (No 2) [1999] VSC 131 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 CCB v Department of Education and Communities [2015] NSWCATAD 145 Colefax v Department of Education and Communities [2013] NSWADT 75 Constantin v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 Gaynor v Burns [2015] NSWCATAP 150 H M & O Investments Pty Ltd v Ingram (No 1) [2011] NSWSC 550 Hammond v Ozzy Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Hendrickson v Yarra Bay 16 ft. Skiff Sailing Club Ltd (No 2) [2011] NSWADT 204 House v R (1936) 55 CLR 499 Khan v Kang [2014] NSWCATAP 48 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Lithgow City Council v Jackson (2011) 244 CLR 352 Marshall v Prescott [2015] NSWCA 110 McKinnon v Blacktown City Council [2012] NSWADT 44 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 MJ v Department of Education & Commerce [2013] NSWADT 213 MJ v Department of Education and Communities [2014] NSWCATAD 12 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Office of Finance and Services v APV and APW [2014] NSWCATAP 88 Oshlack v Richmond River Council (1998) 193 CLR 72) Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re Southland Coal Pty Ltd (Receivers and Managers Appointed) (in liq) [2006] NSWSC 899 Sahade v Owners SP 62022 [2015] NSWCATAP 225 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 Smith v Giro Construction Pty Ltd [2015] NSWCATAP 214 Soliman v University of Technology Sydney [2012] FCAFC 146 Special Protection Services (NSW) Pty Limited v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112 Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 State of New South Wales v Jackson [2007] NSWCA 279 TB v New South Wales [2015] NSWSC 575 Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 Warren v NSW Trustee and Guardian [2014] NSWCATAP 20 White v Carlton Tow Bars Pty Ltd [2015] NSWCATAP 8 Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 432 Category: Principal judgment Parties: AIN (Appellant) Medical Council of New South Wales (Respondent) Representation: Counsel: T Brennan (Appellant) J Davidson (Respondent) Solicitors: A R Connolly & Co Lawyers (Appellant) NSW Crown Solicitor's Office (Respondent) File Number(s): AP 15/33336 Publication restriction: Order pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013 – that there be a restriction on publication of any information that will identify the appellant. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2015] NSWCATAD 66 Date of Decision: 14 April 2015 Before: N Isenberg, Senior Member File Number(s): 1330335 REASONS FOR DECISION 1. This appeal is from a decision of the Tribunal upon a review of an agency's decision to refuse access to information under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). The appeal, which is brought by the applicant in the Tribunal below, is mainly concerned with the questions of whether the Tribunal properly upheld the respondent agency's claim that certain information was subject to client legal privilege, and whether it applied the correct principles in refusing the applicant's costs application. BACKGROUND 1. The appellant, who is a medical practitioner, applied for information from the respondent ("the Medical Council") under the GIPA Act. She requested "[a]ll information contained in any document or metadata responsive to a search of the Medical Council's TRIM database using the TRIM container (or Doctor identifier): [versions of the appellant's doctor identifier number] with any other sub-fix." She requested that the information be provided in native electronic and readable paper format. 2. The Medical Council provided some of the requested information to her and refused access to other information. 3. Following negotiations between the parties, the appellant narrowed the scope of her application so that, by the time of the hearing, it applied to 17 documents to which she had not been provided access. 4. The Medical Council claimed that there was an overriding public interest against disclosure of the documents because they would be privileged from production in legal proceedings on the ground of client legal privilege (relying upon s 14(1) of and cl 5 of Sch 1 to the GIPA Act). It also relied on some other public interest considerations against disclosure contained in the table in s 14 of the GIPA Act, in the alternative. 5. Both parties also sought costs. 6. The Tribunal upheld the Medical Council's client legal privilege claim in relation to information in some of the documents but not in others. It declined to award costs to either party. GROUNDS OF APPEAL 1. The appellant appealed against the Tribunal's decision that there is an overriding public interest against disclosure of information in five of the documents in dispute: Documents 64, 90, 107, 115 and 169. The document numbers are numbers given to the documents by the Medical Council and used by the Tribunal in the decision below. For convenience, we will also refer to the documents by these numbers. 2. The grounds as set out in the Notice of Appeal concerning the alleged errors of law made in determining the appellant's right to access information under the GIPA Act are, in summary, as follows: 1. The Tribunal erred in finding that the redacted material in Document 64 is properly the subject of a claim for legal professional privilege, as it failed to consider or find that disclosure of the material would result in disclosure of confidential communications which were privileged; 2. The Tribunal erred in finding that Document 90 is properly the subject of a claim for legal professional privilege, because it failed to consider or find that disclosure of the document would result in disclosure of a confidential document or communication that was created or occurred for a dominant purpose contemplated by s 118 of the Evidence Act 1995 (NSW); 3. The Tribunal erred in finding that Document 107 is properly the subject of a claim for legal professional privilege, because it failed to consider or find that disclosure of the document would result in disclosure of a confidential document prepared for the dominant purpose of a lawyer providing legal advice to an in-house lawyer of the Medical Council in the capacity of a client; 4. The Tribunal erred in finding that a claim for legal professional privilege had been made out in relation to Document 115 because it failed to address certain submissions made by the appellant and because the finding of a dominant purpose of provision of legal advice was made in the absence of evidence of a request for or provision of advice and direct evidence of the author's purpose; 5. The Tribunal erred in finding that there was an overriding public interest against disclosure of Document 168 because it failed to consider any public interest considerations under s 14 of the GIPA Act or to weigh that public interest against the grounds favouring disclosure upon which the appellant relied. 1. The alleged errors of law concerning the Tribunal's privilege findings which were identified by the appellant in written submissions and in oral argument are more extensive than those identified in the appellant's ground of appeal. The Appeal Panel considers the grounds of appeal to include, in this case, the grounds identified in submissions which were not included in the notice of appeal, as these identify some of the real issues in dispute between the parties (see White v Carlton Tow Bars Pty Ltd [2015] NSWCATAP 8 at [9]). The objects of the Civil and Administrative Tribunal Act 2013 (NSW) include to "enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (Civil and Administrative Tribunal Act, s 3(d)). The Tribunal is entitled to determine its own procedure and "is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms" (Civil and Administrative Tribunal Act, s 38(1) and (4)). In the context of these statutory provisions, a formalistic approach to determining the grounds of appeal is not warranted. 2. The Medical Council has had an opportunity to respond to the further alleged errors of law identified by the appellant so there is no breach of the rules of procedural fairness in the Tribunal considering them. Further, the grounds identified in written submissions are not unrelated to those in the Notice of Appeal as they all concern the question of whether the Tribunal properly found that the withheld information is privileged. In these circumstances, the real issues in the proceedings are, we consider, those developed in the parties' submissions and we have approached the appeal in this light. The additional grounds raised by the appellant are identified and dealt with below in relation to each document. 3. The appellant also appealed against the Tribunal's decision not to award costs. The appellant accepts that she needs to demonstrate an error by the Tribunal in the exercise of its discretion and that the principles in House v R (1936) 55 CLR 499 apply. The appellant submitted that the discretion of the Tribunal in refusing her application for costs miscarried as the Tribunal applied the wrong test in that it applied a subjective test (finding the respondent acted in good faith) rather than an objective test (whether the conduct of the respondent was reasonable). If such an error was made, it is an error of law, such that leave to appeal is not required. The appellant submitted that the conduct of the respondent in dealing with her request was objectively unreasonable and it unreasonably prolonged the proceedings. 4. The appellant identified a number of grounds of appeal under the heading "slips." These grounds identified alleged factual errors and did not identify errors of law. The appellant did not point to any persuasive reason why she should be given leave to appeal on these grounds (see Civil and Administrative Tribunal Act, s 80(2)(b)). Leave is refused. RELEVANT LEGISLATION 1. Section 14(1) of the GIPA Act provides: "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." 1. Clause 5 of Sch 1 to the GIPA Act 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 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 all or some 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. Sections 118 and 119 of the Evidence Act provide: "118 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. 119 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 131A(1) of the Evidence Act which, like ss 118 and 119, is in Part 3.10 of that Act, provides: "131A Application of Part to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence." 1. Where an agency refuses to provide an applicant with access to government information, as occurred in this case, the burden of establishing that that decision is justified lies on the agency (GIPA Act, s 105(1)). JURISDICTION 1. The Tribunal has jurisdiction to hear the appellant's application to this Tribunal pursuant to s 100 of the GIPA Act. The Appeal Panel has jurisdiction to hear and determine this appeal pursuant to ss 30, 32, 80 and 81 of the Civil and Administrative Tribunal Act. CLIENT LEGAL PRIVILEGE CLAIM Determination of privilege according to Evidence Act 1. It was not in question that the provisions of the Evidence Act apply to the determination of the question of whether there is a conclusive presumption that there is an overriding public interest against disclosure of information within cl 5(1) of Schedule 1 to the GIPA Act: see Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 at [28]; Colefax v Department of Education and Communities [2013] NSWADT 75 at [26]. 2. As cl 5(1) of Schedule 1 to the GIPA Act refers to "information that would be privileged from production in legal proceedings on the ground of client legal privilege" (our emphasis), the applicable provision of the Evidence Act is s 131A which applies ss 118 and 119 with necessary modifications: see Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 at [32]; Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 at [70]; Colefax v Department of Education and Communities [2013] NSWADT 75 at [24]. For convenience, we will generally refer to ss 118 and 119 in these reasons without referring to the modifications to those provisions which are made by s 131A. Evidence in support of privilege claim 1. The evidence before the Tribunal was also before the Appeal Panel, including the transcript of the hearing in the Tribunal. Very little of that evidence was directed towards the Medical Council's privilege claim. 2. There was evidence that one of the Medical Council's in-house lawyers, who the Tribunal referred to as Ms H, had created some of the documents in issue and had had carriage of Medical Tribunal proceedings concerning the appellant, to which some of the information in the documents related. She did not give evidence. The respondent's evidence was given by the Medical Council's acting director of legal services. 3. Mr Brennan, for the appellant, submitted that the respondent had the onus of proof and that there was no reason why Ms H could not have given evidence where her evidence was relevant to factual questions affecting privilege (such as the dominant purpose for which a document was prepared). Ms Davidson, for the Medical Council, said that it was explained in the transcript of the proceedings below that Ms H was on long service leave at the relevant time. 4. Whilst it is unfortunate that the officer with greatest knowledge of some of the relevant factual matters was on leave around the time of the hearing, the Tribunal can only make findings of fact on the basis of evidence or, more broadly, on the basis of the "relevant factual material" before it (Administrative Decisions Review Act 1997 (NSW), s 63(1)). Where an agency claims that certain information would be privileged from production in legal proceedings on the ground of client legal privilege, it has the onus of establishing this (see GIPA Act, s 105 and Sch 1, cl 5). This means it is required to establish the factual matters necessary to found a claim under s 118 or s 119 of the Evidence Act, including that relevant persons are a client and a lawyer, that a document or communication is confidential and that the dominant purpose for which a communication was made or a document was prepared is one contemplated by the provision relied upon. Whilst some of these matters can, in some cases, be found in or inferred from the document the subject of the privilege claim, it is almost always necessary to provide some evidence relevant to the privilege claim before it can be concluded that s 118 or s 119 applies. It is not uncommon in GIPA Act proceedings for an agency to underestimate the need for evidence to establish privilege. That occurred, to some extent, in this case. 5. As will be apparent from the reasons which follow, we have found that the Tribunal made errors of law in its findings concerning privilege. In these circumstances, we have taken the view that the most efficient way to deal with such errors is to set aside the Tribunal's decision and to substitute our own decision for it, as the matter was fully argued before us and the issues are primarily legal issues (see Civil and Administrative Tribunal Act, s 81(1)(d)). 6. We were provided with a folder containing the relevant documents. It was marked "confidential documents". We have had regard to the documents in assessing whether the Tribunal erred and, if so, in reaching our own conclusion on whether the document, or the relevant part of it, should be disclosed. Document 64: File Note 1. Document 64 was provided in redacted form to the appellant. It is a document dated 12 November 2010 with the heading "File Note" followed by the appellant's name. It is a chronology of events concerning the appellant's history of registration as a medical practitioner and the appellant's correspondence and interactions with both the Medical Board (the predecessor to the Medical Council) and the Medical Council about such registration. It also records dates of events concerning the appellant's appeals against the Medical Council's refusal to register the appellant as a medical practitioner and related matters. 2. The majority of the four and a half page document comprising Document 64 has been provided to the appellant. The Medical Council has redacted about half a page of text within the document in accordance with the orders of the Tribunal below. 3. The Tribunal found that the redacted parts of the document were properly the subject of a claim for legal professional privilege. It reasoned that those parts referred to some confidential communications between the Medical Council's officers and external lawyers and found that the communications were for the purpose of the Medical Council being provided with legal advice and for the provision of legal services to the Medical Council (AIN v Medical Council of New South Wales [2015] NSWCATAD 66 at [54]). Although the Tribunal engaged in a general discussion about ss 118 and 119 of the Evidence Act in its reasons, it did not specifically refer to those provisions, or to the elements the Medical Council had to establish in each provision, in relation to Document 64. Its reference to both "legal advice" and "legal services" (at [54]), however, indicates that it was of the view that both provisions applied. 4. Mr Brennan, for the appellant, submitted that the Tribunal erred to the extent that it found that s 119 of the Evidence Act applied (that is, to the extent that it found the documents were the subject of "litigation privilege"). This was because, in his submission, it failed to make a finding that the communications were made for "the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding" within s 119. He submitted that if the Tribunal found a privilege to subsist under that provision that was an error of law because the Tribunal asked itself the wrong question. 5. Mr Brennan submitted, in relation to the Tribunal's finding that Document 64 attracted "advice privilege" within s 118 of the Evidence Act, that this was an error because there was no evidence as to the dominant purpose of any of the communications referred to in that document. 6. In relation to the application of both ss 118 and 119, Mr Brennan submitted that the Tribunal failed to address the question of whether disclosure of the redacted parts of Document 64 would explicitly reveal the content of the confidential document or communication referred to in that document, or support an inference of fact, having a definite and reasonably foundation, as to such content (relying upon Re Southland Coal Pty Ltd (Receivers and Managers Appointed) (in liq) [2006] NSWSC 899 at [14(e)]). 7. Ms Davidson, for the Medical Council, submitted that references in the Tribunal's decision indicated that it found that the redacted material in Document 64 recorded communications made for the purpose of the Medical Council being provided with legal services relating to a specific Australian or overseas proceeding, namely the Medical Tribunal proceeding involving the appellant. She said that the Tribunal did not ask itself the wrong question in respect of s 119. Ms Davidson submitted that the evidence of the purpose of the communications was apparent on the face of the document. The Medical Council's position was that the Tribunal did not err in finding that the redacted parts of Document 64 were privileged, as they recorded communications made for the dominant purpose of the Medical Council being provided with legal advice by external lawyers and for the provision of legal services to the Medical Council with respect to Medical Tribunal proceedings. Consideration 1. The appellant's ground of appeal in relation to Document 64 is that the Tribunal failed to consider or find that disclosure of the redacted material would result in disclosure of confidential communications which were privileged. 2. A "confidential communication" is defined in s 117 of the Evidence Act to mean a communication made in such circumstances that, when it was made the person who made it, or the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. The term refers to the substance of what is communicated, not to the mere fact of communication. In H M & O Investments Pty Ltd v Ingram (No 1) [2011] NSWSC 550, McDougall J said at [20]: "If the common law is to be taken as a safe guide, it would suggest that the word 'communication' in s 118(a) of the Evidence Act should refer to the terms or substance of what was communicated, and not to the mere act of communicating it. That conclusion finds support in the reason of Austin J in Re Southland Coal Pty Ltd (Receivers and Managers Appointed) (in liq) [2006] NSWSC 899 at [14(a)]. His Honour there said that the question raised by s 118 was 'whether what is disclosed by adducing the evidence explicitly reveals the confidential communication or the contents of the confidential document, or supports an inference of fact as to the content of the confidential communication or document, which has a definite and reasonable foundation'. Disclosure of the fact of making a communication does not disclose the content or substance of what was communicated, nor does it lead to any inference as to the content of what was communicated." 1. We accept the appellant's submission that the Tribunal made an error of law when finding that the redacted material in Document 64 was privileged. The error is, as the appellant submitted, that the Tribunal did not address the question of whether disclosure of the redacted material would result in the disclosure of confidential communications. This is because it did not consider whether disclosure of that material would disclose the contents of the confidential communications referred to in Document 64. 2. As we have found that the Tribunal made an error of law, and as we have also heard the parties' submissions as to whether redacted information in the document is privileged, we have decided that the most efficient course is to determine whether there is an overriding public interest against disclosure of the information. This involves determination of the Medical Council's privilege claim. The Medical Council did not rely upon any other public interest consideration against disclosure of the information in Document 64. 3. At the hearing, Ms Davidson properly conceded that the entries for 5 July 2010 and 19 July 2010 were not privileged. We are not satisfied that they attract the advice privilege in s 118 of the Evidence Act, because there is no evidence that the communications referred to were made for the dominant purpose of a lawyer providing legal advice to the Medical Council. Further, we are not persuaded that they attract the privilege in s 119 of the Evidence Act. The Medical Council has not established that disclosure of those entries would result in disclosure of a "confidential communication between the client and another person" with s 119. Disclosure of those entries would disclose the fact of making a communication but not the substance of what was communicated. Accordingly, the information in these entries should be provided to the applicant. 4. The entry of 24 September 2010 refers to a communication between the Medical Council and counsel. We are satisfied that the dominant purpose of the communication is apparent from the face of the document, and that it is for the lawyer (counsel) to provide legal advice to the client (the Medical Council), within s 118 of the Evidence Act. The fact that the communication referred to is confidential is also apparent from the face of the document. Disclosure of the first line of that entry and the second sentence of that entry would not disclose the substance of the communication, but disclosure of the first eleven words of the second line of the entry would do so. We are accordingly satisfied that the claim of client legal privilege is made out in respect of the first eleven words of the second line of the entry, but not otherwise. 5. The entry for 5 and 6 October 2010 appears to refer to the Medical Council's internal communications. There is no evidence as to whether these communications were contained in a document or not (other than in Document 64). It is not apparent from the face of Document 64 that it is a confidential document. Even if it were, there is no evidence as to its dominant purpose, other than evidence the Tribunal rejected, being that it was prepared for a lawyer representing the Medical Council in legal proceedings. It is now common ground that the document was prepared after the conclusion of those proceedings. There is nothing to indicate that one party to the communications referred to in the entry for 5 and 6 October 2010 was a lawyer, or that the communications were with a person other than the client. Accordingly, the Medical Council has not established that disclosure of this entry would result in disclosure of a relevant confidential communication or confidential document within s 118 or s 119 of the Evidence Act. 6. For these reasons, we are not persuaded that client legal privilege attaches to the entry for 5 and 6 October 2010. 7. The entry for 8 October 2010 refers to a communication with counsel as does the note immediately following that entry. The entry for 14 October 2010 also refers to a communication with counsel. We are satisfied from the face of the document that those references are to a confidential communication between the Medical Council as client and a lawyer for the dominant purpose of the client being provided with professional legal services relating to an Australian proceeding (being the Medical Tribunal proceedings involving the appellant). 8. Only parts of the entry for 8 October 2010, the note following it and the entry for 14 October 2010 concern the content or substance of what was communicated between the Medical Counsel and its lawyer or lawyers. The remainder merely concerns "the fact of making a communication" and is not privileged. We find that s 119 of the Evidence Act applies to the last five words of the second line and the whole of the third line of the entry of 8 October 2010. We also find that s 119 applies to the last 6 words of the first line and the balance of the note immediately following the entry of 8 October 2010. Access to the remainder of the entries of 8 and 14 October 2010 and to the remainder of the note following the entry of 8 October 2010 should be provided to the appellant. 9. The Medical Council has not established that the note following the entry for 14 October 2010 refers to a communication between the Medical Council and its lawyers. We are therefore not satisfied that s 118 or s 119 of the Evidence Act applies to this note and it should be provided to the appellant. Document 90: Draft letter 1. The Medical Council described Document 90 as a draft letter from an internal lawyer of the Council to the appellant "re draft response to [the appellant's] submissions dated 4 November 2011." The document was described in TRIM (the Medical Council's electronic records system) as a response to submissions re publication, with a reference to a doctor's letter of 21 October 2011 in parentheses. The Medical Council's acting director of legal services gave evidence that it was a draft letter dated 4 November 2011 from the Council's legal officer to the appellant regarding various issues, including the appellant's Medical Tribunal appeal. 2. The Tribunal found as follows: "Ms H [the Medical Council's legal officer], it appears, was responding to the applicant's correspondence to the Chairman of the Respondent; it is reasonable to assume that she did so at his request. It was unclear if the final letter was sent to the applicant. In any event, the letter may not reflect Ms H's final view on a legal issue and, more importantly, might not reflect her client's instructions." 1. The appellant submitted that this finding was an error of law. Mr Brennan, for the appellant, said that there was no evidence that the document constituted or evidenced any communication made between any client and the Medical Council's legal officer. Further, in Mr Brennan's submission, it was no part of the Tribunal's function to assume matters of fact which are susceptible of proof through evidence and, as the Medical Council had led no evidence of a request being made to its legal officer, it was not open to infer that any such request had been made. That being so, Mr Brennan said it was not open to conclude that the draft letter constituted a confidential communication or document within s 118 of the Evidence Act having the dominant purpose of the provision of legal advice to a client. 2. The appellant also relied upon evidence of the Medical Council's legal officer that lawyers in its in-house legal unit undertook non-legal tasks. She submitted that the Tribunal did not address the question of whether the drafting of the letter by the legal officer was in her role as independent legal adviser or in her role as "action officer." The appellant accepted that, if the legal officer drafted the letter as an independent legal adviser, the Tribunal's finding that the document was privileged was correct. 3. The Medical Council submits that it is open to infer from an examination of Document 90 that its legal officer was responding to correspondence which had been sent to its chairman. It said that it was apparent from the face of the document that the terms of the response had not yet been finalised and it was open to the Tribunal to infer that further instructions from the Medical Council were contemplated. 4. The Medical Council also submits that the dichotomy the appellant seeks to draw between acting in the capacity of a "legal officer" and an "action officer" is a false one. The Medical Council's position is that, having found that a lawyer/client relationship subsisted between it and its in-house lawyer, the Tribunal was entitled to infer that the letter was prepared in response to a request for advice. Consideration 1. The appellant's submissions raise the "no evidence" ground of review. To establish an error of law on the ground of no evidence, the appellant must show that there "is no evidence of a primary fact" and that this fact is "crucial to [the Tribunal's] decision" (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Kirby P at 151) or a critical finding of fact (Soliman v University of Technology Sydney [2012] FCAFC 146, the Court at [23]; SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19]). 2. The critical finding of fact in this case is the Tribunal's implicit finding that Document is a confidential document or confidential communication. This is critical as it is necessary for the conclusion that s 118 and/or s 119 of the Evidence Act applied to the information in the document. There is some question as to whether the Tribunal actually made this finding. If it did not do so, that would be a failure to give adequate reasons and/or a failure to ask itself the right question, and would be an error of law. The question is whether on a "fair reading" of the reasons, the reasons being "entitled to a beneficial construction," the Tribunal made such a finding (Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 432 at 444). We should not take the view that the Tribunal applied the wrong test unless this appears clearly from the reasons (Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 432 at 444). In our view, on a fair reading of the Tribunal's reasons, particularly at [58], it found that the document was a confidential communication or confidential document. 3. The Tribunal explicitly "assumed" that Ms H was responding to the appellant's correspondence at the Chairman's request. This was a finding on which it relied to make the finding that the document was a confidential document or communication. The Tribunal is not entitled to act upon assumptions. It may, however, make inferences from evidence. 4. The High Court has observed that, to ground an inference where direct proof is not available, "it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture" (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; see also TB v New South Wales [2015] NSWSC 575 at [85] and [86]; Marshall v Prescott [2015] NSWCA 110 at [83]). An inference cannot be drawn in the absence of evidence (Marshall v Prescott [2015] NSWCA 110 at [83]). 5. The Tribunal did not address the question of whether the circumstances gave rise to a reasonable and definite inference that the Council's chairman had requested the legal officer to respond to correspondence from the appellant. In our view, they did not. It may be that correspondence addressed to the chairman is not always sighted by the chairman. It may be that such correspondence is internally directed straight to the Council's legal unit or to the officer responsible for a particular matter. Without evidence of how such correspondence was generally dealt with by the Medical Council, or what happened in this particular case, the assumption that the chairman instructed the legal officer to respond to the letter is not "more than an inference of equal degree of probability with other inferences" and does not "avoid guess or conjecture" (Lithgow City Council v Jackson (2011) 244 CLR 352, Crennan J at 386 [94]; see also Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 274 [79] - 276 [88]). Such an inference therefore cannot be properly made. 6. The Medical Council submitted, as indicated above, that it was open to the Tribunal to infer from the face of the document that further instructions from the Medical Council were contemplated in respect of Document 90. The Tribunal did not explicitly make this inference. There is a question as to whether such an inference is reasonably open and, if so, whether the Appeal Panel should make it. 7. From an examination of Document 90, it is clear, as the Medical Council submits, that the terms of the response had not yet been finalised. However, the circumstances do not, in our view, give rise to "a reasonable and definite inference" that the in-house lawyer was, through the letter and possibly other correspondence which is not in evidence, seeking further instructions from the Medical Council. 8. Even if such an inference was open, there is no evidence as to the dominant purpose of the document. It is not, we consider, open to the Tribunal to infer, as it apparently did, that the document was prepared for the dominant purpose of providing the Medical Council with legal advice or with professional legal services relating to an Australian proceeding. 9. Whilst the Tribunal is not bound by the rules of evidence, it is an error of law for it to make a finding of fact when there is no evidence in support of the finding: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [91]; Khan v Kang [2014] NSWCATAP 48 at [25]. 10. We are not satisfied that the Medical Council has established that Document 90 is subject to client legal privilege. As the Medical Council did not rely upon any other public interest consideration against disclosure of the information in Document 90, access to that information should be provided to the appellant. Document 107 1. This document is headed "Notes re Chronology by [Appellant]." It is described by the Medical Council as "Council's notes on [the Appellant's] chronology, 30 November 2011 prepared by [an in-house lawyer]." In TRIM, it is entitled "Notes re complaint." 2. The Medical Council's acting director of legal services gave evidence that the document was created for the purpose of advising the Medical Council regarding matters put to the Council by the appellant in correspondence. The correspondence concerned a complaint by the appellant about the Council's breach of a non-publication order. 3. It was common ground that the appellant had made a complaint to the Legal Services Commissioner about the in-house lawyer referred to in the Tribunal's decision as Ms H. The acting director of legal services gave oral evidence as to Ms H's involvement in the conduct the subject of the appellant's complaint to the Medical Council when under cross examination. She accepted that instructions were given by Ms H about the publication of a Medical Tribunal decision concerning the appellant. She also accepted that this publication occurred by a legal support officer of the Medical Council scanning the hard copy of the decision on the instructions of Ms H then redacting it using a pdf highlighting tool which was "electronically ineffective". This meant that, when searching for Ms H's name, search engines produced a link to the Medical Tribunal decision. This was a breach of the Tribunal's non-publication order. This conduct was also the subject of a complaint by the appellant to the Medical Council about its conduct. 4. The Tribunal concluded in respect of Document 107 (at [65]): "The document appears to be have been prepared by Ms H in response to the applicant's complaint, a matter with respect to which both she and the respondent received legal advice. It would appear, on its face, to be a document prepared for the dominant purpose of the receipt of such advice, and consequently is properly the subject of a claim for LPP." 1. Although the Tribunal did not make an explicit finding that s 118 of the Evidence Act applied to Document 107, that finding is implicit in the paragraph quoted above. 2. The Tribunal also appears to have been of the view that Document 107 attracted the privilege in s 119 of the Evidence Act, although again it did not make this explicit. The Tribunal observed that the "allegation that Ms H or her staff had breached the non-publication order of the Medical Tribunal was a serious allegation for which the Respondent may have considered that it would be found to be vicariously liable" and also found that the document clearly foreshadowed the prospect of litigation. 3. The appellant submits that the Tribunal made an error of law in finding that the document was prepared for the dominant purpose of receiving legal advice within s 118 of the Evidence Act because: 1. the finding was directly inconsistent with the evidence of the acting director of legal services, which was the only evidence on the matter, and the Tribunal failed to address that evidence; 2. the Tribunal applied a test not known to the law, being whether the document was created for the purpose of receiving advice; and 3. the finding was made without considering whether Ms H was acting as an independent legal adviser in creating the document. 1. The appellant also submits that the Tribunal did not address the relevant question under s 119 of the Evidence Act when making findings, that being whether legal services were provided in relation to an extant or anticipated legal proceeding. Further, the appellant says that it was not open to the Tribunal to infer merely from a reference in Document 107 by the acting director of legal services to matters being "in contention" that there was a real prospect of litigation. 2. The Medical Council submits that the appellant characterises the alleged error as a failure to make a finding about providing legal advice to Ms H as client, but the relevant privilege, as determined by the Tribunal, was that of the Medical Council, the client of the external lawyers. It relies upon the Tribunal's finding that the Medical Council may have considered that it would be vicariously liable for a breach of the Medical Tribunal's non-publication order by Ms H or her staff. 3. Ms Davidson, for the Council, submitted that the Tribunal had not rejected the evidence of the acting director of legal services as to the purpose of Document 107, as a document can have more than one purpose. The Council also said that the document itself formed evidence from which the Tribunal could infer purpose. 4. As to the appellant's contention that the Tribunal had erred by failing to consider whether Ms H was acting as an independent legal adviser, Ms Davidson submitted that it was not necessary for the Tribunal to consider this because the dominant purpose of the document's creation was held to be the provision of legal advice by external lawyers to the Medical Council and Ms H. 5. The Medical Council submits, in respect of the alleged error concerning the Tribunal's application of s 119 of the Evidence Act, that the Tribunal addressed the relevant question, namely whether there was a real prospect of litigation when the document was prepared. It submits that it was open to the Tribunal to find that there was such a prospect based upon its inspection of Document 107. Consideration 1. The appellant's submission that the Tribunal's finding as to the dominant purpose for which Document 107 was prepared was contrary to the only evidence on the matter is, in substance, a submission that the Tribunal made a finding without evidence to support it. 2. The Tribunal relied for its finding on the appearance of the document "on its face" (see [65] of its decision). We have reviewed Document 107 and we consider that it does not, on its face, give rise to a reasonable and definite inference that the dominant purpose of the document was "the receipt of legal advice". Further, to use the language employed in s 118 of the Evidence Act, the document does not give rise to a reasonable and definite inference that it was prepared for the dominant purpose of a lawyer providing legal advice to the client. 3. There is then a question as to whether any other evidence before the Tribunal supports its finding of dominant purpose. As the appellant pointed out, the evidence of the Council's acting director of legal services indicates that Document 107 was prepared for a different purpose (that is, for the purpose of the in-house lawyer advising the Medical Council). Whilst it is possible for a document to be prepared for more than one purpose, the statement of a senior legal officer of the Medical Council that it was prepared to advise the Medical Council, with no reference to any other purpose, is strong evidence that the dominant purpose of the document is that purpose. 4. The Tribunal relied upon findings it had previously made in AIN v Medical Council of NSW [2013] NSWADT 112 that Ms H had permitted the Medical Council to retain copies of information relating to the appellant's complaint to the Legal Services Commissioner concerning Ms H's professional conduct. It commented that it had accepted that the Medical Council was properly regarded as the client when external lawyers were engaged to provide advice. 5. The decision in AIN v Medical Council of NSW [2013] NSWADT 112 was not before the Tribunal. There is no issue estoppel in merits review proceedings (see Special Protection Services (NSW) Pty Limited v Commissioner of Police, NSW Police Force; Constantin v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112 at [52]-[57]), so the Tribunal was not bound by its previous decision. It was an error of law for the Tribunal to rely upon evidence before it in previous proceedings (concerning the Medical Council's retention of information) and findings it had previously made on the basis of that evidence, without first informing the parties of its intention to do so and giving them an opportunity to make submissions about the use of this material. It is doubtful that such evidence was factual material "before" the Tribunal within s 63(1) of the Administrative Decisions Review Act. 6. The evidence before the Tribunal concerning the complaint made about Ms H was contained in one paragraph of a statement made by the Council's acting director of legal services in addition to some limited oral evidence from the acting director. This paragraph does not identify the nature of the complaint against Ms H and contains no reference to Ms H permitting the Medical Council to retain copies of information relating to the appellant's complaint. The statement also indicates that a barrister had provided Ms H with legal advice in relation to the complaint and that "subsequently" the Health Professional Councils Authority ("HPCA") instructed the Crown Solicitor to act in relation to the complaint. The date on which the Crown Solicitor started acting for the HPCA, according to the evidence of the acting director of legal services, is after the date given in the Medical Council's schedule of documents as the date Document 107 was created. 7. There is no basis for inferring, upon the evidence before the Tribunal, that the Medical Council was properly to be regarded as the client of the external lawyers in relation to the complaint against Ms H at the time Document 107 was created. Nor is there any evidence on which the Tribunal could conclude that Document 107 was prepared for the dominant purpose of the receipt of legal advice from external lawyers. It therefore made an error of law when implicitly finding that Document 107 was prepared for the dominant purpose of a lawyer (external to the Medical Council) providing legal advice to the client (being the Medical Council). 8. As indicated above, it is unclear from its reasons whether the Tribunal intended to make a finding that s 119 of the Evidence Act was engaged. The respondent did not rely upon s 119 in the proceedings below. Litigation privilege was not part of its case in relation to Document 107 and it had the onus of proof. Further, the Tribunal did not address the necessary components of s 119 (whether legal services were provided in relation to an extant or anticipated legal proceeding). A finding that the respondent "may have considered" that it was vicariously liable in respect of an allegation does not address the relevant question. The observation that the document itself "clearly foreshadows the prospect of litigation" does not address the relevant test either, because it does not consider whether there was a real prospect of litigation, objectively considered: State of New South Wales v Jackson [2007] NSWCA 279, Giles JA (Mason P and Beazley JA agreeing) at [67]. 9. Accordingly, the Tribunal made errors of law with respect to any implicit finding that s 119 of the Evidence Act applied. These were denying the applicant procedural fairness by determining an issue not in dispute and providing inadequate reasons for the finding. It also failed to address the relevant questions as to whether s 119 applied. 10. Having found that the Tribunal made an error of law in respect of its findings concerning Document 107, the most efficient course is for the Appeal Panel to make its own determination as to whether the information in that document is subject to an overriding public interest against disclosure. 11. The evidence of the Council's acting director of legal services is that the document was prepared for the purpose of an in-house lawyer, Ms H, advising the Medical Council regarding matters put to the Council by the appellant in correspondence. The Tribunal did not provide any reason for rejecting this evidence (and did not clearly reject it even though making other findings about the dominant purpose of the document). We accept the evidence of the acting director of legal services and find that the dominant purpose of the creation of the document was as she described it. 12. It is apparent from Document 107 that it relates, at least in part, to a complaint made against Ms H, the author of Document 107. The complaint made by the appellant to the Medical Council was not before the Tribunal, and the Appeal Panel refused leave for the correspondence containing that complaint to be admitted on appeal. 13. On the material before us, we accept the appellant's argument that the Medical Council has not established that Ms H was acting as an independent legal adviser in providing advice to the Council in Document 107. She had a clear conflict of interest in providing such advice. In circumstances where it has not been established that an in-house lawyer's advice is independent, there is a real question as to whether the document can properly be said to contain "legal advice" and as to whether the author or recipient "was under an express or implied obligation not to disclose its contents" within s 117 (see CCB v Department of Education and Communities [2015] NSWCATAD 145 at [71]-[77]). 14. The Medical Council has not persuaded us that Document 107 was prepared for the dominant purpose of Ms H providing "legal advice" to the Medical Council as that term is used in s 118 of the Evidence Act, because we are not satisfied that the advice had the requisite quality of independence. Accordingly, the Council's claim for advice privilege must be rejected. 15. Nor can the claim of litigation privilege be sustained. The Medical Council has not established that Document 107 was prepared for the dominant purpose of the client (whether that be the Medical Council or Ms H) being provided with professional legal services relating to an Australian proceeding or an anticipated proceeding. We have found that the dominant purpose of preparing the document is that described by the acting director of legal services. Further, there is insufficient evidence to conclude that it was prepared for existing or anticipated legal proceedings. The oral evidence of the acting director of legal services was that she was unable to say whether there was anything, other than a complaint made by the appellant, to indicate that there was a prospect of legal proceedings in respect of the complaint. Accordingly, the respondent has not discharged the onus of establishing that s 119 of the Evidence Act applies to the document. 16. For these reasons, the Medical Council has not established that the information in Document 107 is subject to a conclusive presumption of an overriding public interest against disclosure by operation of s 14 of the GIPA Act and Sch 1, cl 5. 17. In the alternative, the Medical Council relied upon cl 3(a) and (b) in the table to s 14 of the GIPA Act, claiming that the information in Document 107 is Ms H's "personal information." The submission was not developed. As the Tribunal found that Document 107 was privileged, it did not consider this claim. 18. Clause 3(a) of the table to s 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information. "Personal information" is relevantly defined to mean "information or an opinion … about an individual … whose identity is apparent or can reasonably be ascertained from the information or opinion" (GIPA Act, Sch 4, cl 4(1)). It does not include "information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions" (GIPA Act, Sch 4, cl 4(3)(b)). 19. Clause 3(b) of the table to s 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 (NSW). 20. In order to discharge the onus of establishing that a public interest consideration against disclosure applies, it is usually necessary to do more than identify the public interest consideration in question. The Medical Council did not explain why it claims the whole or any of the document contains Ms H's personal information, nor did it identify the information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) or the health privacy principle under the Health Records and Information Privacy Act 2002 (NSW) which it says would be contravened by disclosure of the information in Document 107. 21. We consider that it would be a breach of the rules of procedural fairness for the Appeal Panel to nominate the information protection principle or health privacy principle which could be contravened by the disclosure of information in Document 107 and to consider whether it was in fact contravened, when this part of the respondent's case was wholly undeveloped. In our view, the respondent's failure to identify the privacy principle or principles it says would be contravened, and to explain why that is the case, means that it has not satisfied the onus of establishing that the public interest consideration against disclosure of information in cl 3(b) of the table applies. 22. The operation of cl 3(a) is different, because it is a more straightforward claim that the document contains the personal information of Ms H. To some degree, this claim can be determined by an examination of Document 107. However, further submissions and evidence would have assisted in understanding the extent to which the information in the document relates to Ms H as an individual, and the extent to which it relates to her role as agency employee. In addition, the respondent was required to consult with Ms H if the document included her personal information, she might reasonably be expected to have concerns about the disclosure of the information and those concerns might reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information (GIPA Act, s 54(1) and (2)(a)). There is no evidence of such consultation having occurred, which means that the Appeal Panel is required to determine the respondent's claim largely on the evidence of the document itself. 23. Very little evidence has been led about the context in which the document was written. Significantly, the letter of the appellant to the Medical Council to which the document is responding was not before the Tribunal and is not before the Appeal Panel. On the evidence before the Appeal Panel, including the evidence on the face of the document, it is unclear to what extent this document records Ms H's response to the complaint against her personally and to what extent it responds to more general concerns communicated by the appellant to the Medical Board. 24. The document does not, on its face identify Ms H. However, we are satisfied that her identity could reasonably be ascertained from information in this document in combination with other information (see Office of Finance and Services v APV and APW [2014] NSWCATAP 88 at [4]). Some of the document contains information "about" Ms H. Other parts of the document are authored by Ms H but do not contain information about her. The exception to the definition of "personal information" in cl 4(3)(b) of Sch 4 to the GIPA Act does not apply, as the information does not comprise her name and non-personal contact details and reveals more than her engagement in public functions. We conclude that the parts of the document which contain information about Ms H contain her personal information, irrespective of whether it is information about her conduct in the course of undertaking her duties, and whether or not such conduct was authorised (see McKinnon v Blacktown City Council [2012] NSWADT 44 at [73]). 25. The Tribunal is required to balance the public interest considerations in favour of disclosure against the public interest considerations against disclosure in order to determine whether there is an overriding public interest against disclosure of the information in question (see GIPA Act, s 13). 26. There is a general public interest in favour of disclosure: GIPA Act, s 12(1). The appellant also relied upon particular public interest considerations in favour of disclosure, when it became clear to her that the Medical Council relied upon cl 3(a) and (b). 27. In her submissions below, filed on 28 January 2015, the appellant stated that the respondent relied only upon claims of legal professional privilege but that, in the event that the respondent contended for any other public interest consideration against disclosure, the applicant would respond at that time with detailed submissions including on the following public interest considerations in favour of disclosure: 1. the information is personal information of the applicant; and 2. disclosure of the information could reasonably be expected to reveal or substantiate that the respondent has engaged in misconduct, or negligent, improper or unlawful conduct. 1. The respondent identified in one sentence of its submissions, filed on 18 February 2015, that it relied upon cl 3(a) and (b) in the table to s 14, in the alternative to the legal professional privilege claim. 2. In her reply submissions, filed on 25 February 2015, the appellant submitted that it was "most improbable that a senior in-house lawyer would think that information concerning her professional conduct as a lawyer would be kept confidential in the face of complaints." In respect of the public interest considerations in favour of disclosure, the appellant submitted that the information in the document is very likely to be the appellant's personal information, that disclosure of the information could reasonably be expected to inform the public about the operations of the Medical Council and in particular its practices in dealing with members of the public which it regulates, and that the Tribunal would need to scrutinise the document to consider whether it contains information which could reasonably be expected to reveal or substantiate that the in-house lawyer or the Medical Council had engaged in any improper conduct (relying on examples (b), (d) and (e) following s 12(2) of the GIPA Act). 3. We accept that some of the information withheld by the respondent is the appellant's personal information. We are not persuaded that the information in the document would usefully inform the public about the operations of the Medical Council and in particular its practices in dealing with members of the public which it regulates, as it is mostly concerned with the appellant in particular. Nor are we satisfied that disclosure of the information could reasonably be expected to reveal or substantiate that the respondent has engaged in misconduct, or negligent, improper or unlawful conduct. 4. We have weighed the general public interest in favour of disclosure and the particular public interest in favour of disclosure of the applicant's personal information against the public interest against disclosure of a third party's personal information. It is common for the Tribunal to give considerable weight to the consideration that information is the personal information of someone other than the applicant (see, for example, MJ v Department of Education and Communities [2014] NSWCATAD 12 at [40]), and we are of the view that to do so is appropriate in this case. Where the personal information is that of a person against whom allegations have been made, the fact that it is also the personal information of the person who made the allegations will not necessarily be sufficient to outweigh the public interest against disclosure of that information: see MJ v Department of Education & Commerce [2013] NSWADT 213 at [78]. 5. On the other hand, it is relevant that the conduct of Ms H, which forms the basis of the complaint against her, which is referred to in Document 107, was conduct in her capacity as an agency employee. The weight to be given to the consideration against disclosure of personal information may be diminished by the circumstance that the information is that of an agency employee acting in the course of his or her duties (see CY v AEF and Northern Sydney Local Health District [2012] NSWADTAP 46 at [43]). 6. On balance, we consider that the public interest against disclosure of information in the third and fourth paragraphs of the document outweighs the public interest in favour of disclosure of this information. These paragraphs contain both the personal information of Ms H and that of the applicant. This information is of a more personal nature than the personal information about Ms H in the remainder of the document and we give the public interest consideration against disclosure in cl 3(a) greater weight in respect of these paragraphs. 7. Although the remainder of the document was authored by Ms H, it was written in her capacity as an employee of the Medical Council. The evidence, which we have accepted, is that it was created for the purpose of advising the Medical Council regarding matters put to the Council by the appellant in correspondence. We do not consider that the public interest considerations against disclosure of the personal information of Ms H which is contained in the remainder of the document outweigh the considerations in favour of disclosure. 8. For these reasons, all of the information in Document 107 should be provided to the appellant, other than the third and fourth paragraphs of that document (that is, that is, the second and third paragraphs after the marginal number "2" which appear immediately before a heading then marginal number "3"). Document 115 1. As the Tribunal below indicated, Document 115 is titled, "[The appellant]: Notes to assist Council in file management - Issues raised by [the appellant] as at 1 November 2011". It is headed "Internal working document". There is evidence that its author was Ms H. 2. The Tribunal found (at [71]): "The document sets out extracts from the applicant's letter to the Respondent of 21 October 2011 in which she complained of various issues related to the Respondent's publication of the Medical Tribunal's decision. In another column it sets out what appears to be draft responses that the Respondent might wish to make to the applicant. I accept that the document was prepared for the dominant purpose of providing legal advice to the Respondent as to appropriate response to the applicant's complaints. Consequently the claim for LPP is made out." 1. The appellant submitted below that: 1. the Tribunal should conclude that Ms H's purpose in creating the document was reflected in the title she chose to give it, being "Notes to assist Council in file management"; 2. Ms H understood that it was her own secretary who had caused the offending publication to be placed on the internet without redacting identifying details (which was the source of the appellant's complaint); 3. even if the purposes of Ms H included provision of legal advice or services, the Tribunal could not conclude, in the circumstances, that her dominant purpose gave rise to the privilege. 1. The appellant contended that the Tribunal had given no consideration to her submissions below. 2. The appellant also submitted that the Tribunal's conclusion was in error as the Tribunal failed to consider whether Ms H created the document as an independent legal adviser. 3. The Medical Council submitted that the appellant's submissions below reflected assumptions about Document 115 which were unsupported by the evidence available to the Tribunal, which inspected the document. It said that there was no reason for the Tribunal to assume that Ms H understood that her own secretary had caused the offending publication or to infer her purpose in creating the document flowed from that alleged understanding. The Medical Council also submitted that it was open to the Tribunal to infer, following its inspection of Document 107, that the dominant purpose of preparation of the document was providing legal advice to the Medical Council. It said that it was not necessary for it to make a finding about whether Ms H created the document in the capacity of an independent legal adviser given the Tribunal's earlier comments that she generally acted in this capacity. Consideration 1. We are not satisfied that the Tribunal failed to consider the appellant's submissions, as alleged. The Tribunal is not, as the Medical Council submitted, required to respond to every submission put to it: Warren v NSW Trustee and Guardian [2014] NSWCATAP 20 at [24]. 2. The Tribunal referred explicitly to the appellant's first submission. Although it did not explicitly reject it, it implicitly preferred the evidence of the document itself. This does not amount to a failure to consider the submission or to a breach of procedural fairness. 3. The Tribunal did not explicitly refer to the appellant's second and third submissions. However, it referred to the appellant's submission that it should conclude that Ms H's purpose in creating the document was reflected in the title she chose for it. Following an examination of the document, the Tribunal concluded that its dominant purpose was other than that contended for by the appellant. It is implicit that this finding was based upon the evidence appearing on the face of the document. This does not mean the appellant's submission was not considered. Whilst an explanation of the reasons for the Tribunal's conclusion as to dominant purpose would have assisted the appellant to understand it, we do not consider that the lack of explanation constitutes a breach of the duty to give adequate reasons (see Warren v NSW Trustee and Guardian [2014] NSWCATAP 20 at [24]). 4. The other ground of appeal in relation to this document is that the Tribunal did not consider whether its author, Ms H, created the document in the capacity of an independent legal adviser. The Tribunal did not refer to this issue when considering Document 115 (at [69]-[71]). Earlier in its reasons, the Tribunal noted (at [44] and [45]): "The Respondent acknowledged that, when advice is given by an in-house lawyer, it warrants an extra level of scrutiny to ensure that the dominant purpose of the advice is legal in character, rather than related to administrative or policy issues: Sydney Airports Corp Ltd v Singapore Airlines Ltd [2005] NSWCA 47. In short, the lawyer must be giving 'independent legal advice ... acting in the role of a legal adviser giving advice to a client': ASIC v Rich [2004] NSWSC 1017. In applying that extra level of scrutiny one factor is whether instructions were given to Ms H by any person within the Respondent. While I accept the applicant's submission that a lawyer acts upon instructions, it is not necessarily the case that every piece of 'advice' can only be given in response to a direct request for advice." 1. Having apparently accepted the parties' joint position that an extra level of scrutiny was warranted to ensure that advice given by an in-house lawyer is legal in character, and that it is independent, the Tribunal did not expressly address this issue in relation to Document 115. Given the content of the document as described by the Tribunal (it "sets out extracts from the applicant's letter to the Respondent of 21 October 2011 in which she complained of various issues related to the Respondent's publication of the Medical Tribunal's decision": at [71]), and its other comments indicating that it accepted that Ms H or her staff were responsible for that publication, the failure to address Ms H's independence constituted a failure to give adequate reasons. 2. The failure to give adequate reasons constitutes an error of law: Aavelaid v J.A. Hayek t/as Laing & Simmons [2015] NSWCATAP 130 at [36]. Whilst the appellant did not frame the ground of appeal in this way, we are satisfied that her allegation that the Tribunal failed to consider the matter of the independence of Ms H (because the Tribunal did not refer to this matter in its consideration of Document 115) sufficiently captures this ground. 3. Having identified an error of law, it is our view that the application of privilege is most efficiently dealt with by the Appeal Panel. 4. As mentioned earlier, there is very little evidence concerning the complaint made about the Medical Council's alleged breach of a non-publication order. Both parties and the Tribunal appear to have proceeded on the basis that the appellant made a complaint to the Medical Council about its breach of a non-publication order made by the Medical Tribunal, that she also made a complaint concerning Ms H to the Legal Services Commissioner and that this complaint involved her alleged involvement in the breach of a non-publication order. 5. There was evidence that Ms H was at least partly responsible for the breach. The following exchange occurred between Mr Brennan and the acting director of legal services in cross examination: "Mr Brennan: Yes and document 115 concerns the circumstances that arose after a mistake had occurred for which [Ms H] had had, if you like, management responsibility. Acting Director: Yes document 115 is an internal working document yes." 1. This evidence clearly links the conduct of Ms H with the subject of the complaint to the Medical Council. 2. As Ms H's conduct was brought into question by the appellant in her correspondence with the Medical Council, her independence in drafting a response to that correspondence on behalf of the Council was compromised. In Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82, Boddice J said at [10]: "An independent legal adviser brings a disinterested mind to bear on the subject matter of the legal advice. If the personal loyalties, duties or interests of the in-house lawyer do not influence the professional legal advice given, the requirement for independence will be satisfied." (footnotes omitted) 1. Where the party opposing the claim for privilege establishes facts which rebut the prima facie presumption of an in-house lawyer's independence, the party claiming privilege must establish that the lawyer is in fact independent: see Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 at [9]; Australian Hospital Care Pty Ltd & Anor v Duggan & Ors (No 2) [1999] VSC 131 at [61]-[70]. This common law principle also applies, in our view, in the context of a claim of legal professional privilege made under the GIPA Act. 2. In these circumstances, we are not persuaded that Ms H was acting as an independent legal adviser when preparing Document 115. This is because she had a conflict of interest, in that, even if the appellant had not yet complained about her to the Legal Services Commissioner, or if Ms H was unaware of that complaint, she was responsible for the conduct the subject of the complaint. There are sufficient facts to rebut the prima facie presumption of her independence. 3. The Medical Council has not persuaded us that Ms H was acting as an independent legal adviser when she created Document 115. Having failed to establish that Ms H was independent in relation to the part of the document concerning the complaint against her, we do not think it can be said that she was acting as an independent legal adviser in relation to the remainder of the document. The Medical Council did not rely upon any other public interest consideration against disclosure of the information in Document 115. 4. In these circumstances, we are not satisfied that the information in Document 115 is privileged and it should be provided to the appellant. Document 168 1. Document 168 is a list of all recipients of the Council's "notification of hearing or decision in the Sch 1 Inquiry and Medical Tribunal hearing." The evidence of the Medical Council's acting director of legal services is that it was prepared by the Medical Council, at the request of the applicant, in contemplation that it could form part of a basis of a settlement between the parties in a holistic mediation of various complaints raised by the applicant (both litigated and not-yet-litigated). 2. In the proceedings below, the Medical Council relied upon s 119 of the Evidence Act in claiming client legal privilege over the document. It also relied upon mediation privilege, which it said was formerly codified in s 107 of the Administrative Decisions Tribunal Act 1997 (NSW) (an Act which has since been renamed), and which it submitted supported the application of other public interest considerations against disclosure such as cl 3(c) of the table to s 14 of the GIPA Act. 3. The Tribunal's findings are somewhat confusing. It stated (at [75]-[76]): "It is unclear whether, if [s 107 of the Administrative Decisions Tribunal Act] were engaged, it would result in the conclusive presumption that there was an overriding public interest against disclosure of the information; item 5 of Sch 1 of the GIPA Act refers only to LPP, and not to 'mediation privilege'. However, I am prepared to accept that the document was likely to have been created in anticipation of further litigation because it referred to 'holistic mediation', suggesting it was created for use in circumstances where litigation, reasonably foreshadowed, was to be forestalled. It was submitted on the applicant's behalf that the evidence does not establish that s.107(4) applies. However, I accept the evidence that it was prepared for the purpose of forming part of the basis of settlement negotiations, and that although an [sic] conclusive presumption of an overriding public interest against disclosure does not apply, I have balanced the relative interests for and against disclosure, and because of very significant weight I consider should be attached to a document prepared for the purposes of settlement negotiations, find that there is an overriding public interest against disclosure." 1. Whilst the finding in [75] that the document was likely to have been created in anticipation of further litigation suggests a finding that s 119 of the Evidence Act applied, the finding in [76] that "an [sic] conclusive presumption of an overriding public interest against disclosure does not apply" suggests that the Tribunal found that s 119 of the Evidence Act did not apply (because, if it did, a conclusive presumption would arise under GIPA Act, s 14(1) and Sch 1, cl 5). 2. The appellant submits that "the Tribunal declined to find that the document was privileged." The respondent submits that the Tribunal did make a finding that s 119 of the Evidence Act applied, and that the Tribunal's reference to a conclusive presumption not applying "should be read as a general statement in respect of documents falling within s 107(4)(b) of the former ADT Act, which is not expressly picked up in Sch 1 to the GIPA Act, rather than a specific finding that document 168 did not attract the conclusive presumption." 3. In our view, the Tribunal's statement that a conclusive presumption of an overriding public interest against disclosure did not apply, taken with the statement that it had balanced the relative interests for and against disclosure, indicate that it rejected the Medical Council's privilege claim. The reasons for rejection are not clear, but there has been no appeal by the Medical Council from this decision. 4. The Tribunal did not identify which public interest consideration or considerations in the table to s 14 it relied upon when balancing the relative public interests for and against disclosure. This constituted, in our view, a failure to provide adequate reasons. Accordingly, in finding that there was an overriding public interest against the disclosure of information in Document 168, it made an error of law. 5. The parties have already had an opportunity to provide evidence and submissions relevant to the claims made by the respondent that there is an overriding public interest against the disclosure of information in Document 168. The respondent submitted that, if we found an error of law, it would be appropriate to remit the matter to the Tribunal below. However, having regard to the guiding principle set out in s 36(1) of the Civil and Administrative Tribunal Act, we are of the view that the matter is more appropriately disposed of by us. 6. The only consideration explicitly relied upon by the Medical Council is cl 3(c) which provides: "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: (c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,…" 1. The respondent did not identify in its submissions below which "current or future proceedings" might be prejudiced by disclosure of the information in Document 168. There is no evidence of extant proceedings between the appellant and the Medical Council in relation to which Document 168 was prepared. 2. It follows that the Medical Council has not persuaded us that there is any public interest against the disclosure of Document 168 and the information in that document should therefore be provided to the appellant. Costs of the proceedings below 1. The appellant also seeks to appeal from the decision of the Tribunal to refuse her application that the respondent pay her costs of the proceedings. An exercise of the discretion by the Tribunal as to costs is an ancillary proceeding for which leave to appeal is required unless the appeal from the ancillary decision is on a question of law: s 4 and s 80(2)(b) of the Civil and Administrative Tribunal Act; Smith v Giro Construction Pty Ltd [2015] NSWCATAP 214 at [14]. 2. The appellant submits that in exercising its discretion with respect to costs, the Tribunal asked itself the wrong question, took into account irrelevant considerations and failed to take into account a consideration it was bound to take into account. Whether a tribunal asks itself the wrong question with respect to the exercise of a discretion, or takes into account an irrelevant consideration and fails to take into account a consideration it was bound to take account raises a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]-[21] citing Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24. 3. As we have observed above, as the award of costs is a discretionary matter, the appellant accepts that she must demonstrate an error of the type referred to in House v R (1936) 55 CLR 499 at 504-505; see also Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [75] where the Appeal Panel observed: "75 The costs discretion is a broad one. An appellate tribunal should not lightly interfere with the primary tribunal's decision. On our opinion, the Tribunal's exercise of discretion did not infringe the principles laid down in House v R,…per Dixon, Evatt and McTiernan JJ: 'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If a judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, the his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so'" 1. We accept that the arguments raised by the appellant raise questions of law. As such, leave to appeal on costs is not required. The Tribunal's Findings on costs 1. The Tribunal's findings with respect to costs are at [81]-[98] of the reasons. The Tribunal properly referred to the applicable provision being s.60 of the Civil and Administrative Tribunal Act 2013. It correctly noted that the default position on costs pursuant to s.60 is that each party to proceedings before the Tribunal is to pay their own costs, unless the Tribunal is satisfied that there are "special circumstances" warranting an award of costs, particularly having regard to the circumstances set out in s.60(3) being: 1. whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, 2. whether a party has been responsible for prolonging unreasonably the time taken to complete proceedings, 3. the relative strengths of the claims made by each of the parties, including whether a party has a claim that has no tenable basis in fact or law, 4. the nature and complexity of the proceedings, 5. whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, 6. whether a party has refused or failed to comply with the duty imposed by section 36 (3), and 7. any other matter that the Tribunal considers relevant. 1. The Tribunal (at [84]) noted the similarity of s 60 of the Civil and Administrative Tribunal Act to s 88 of the Administrative Decisions Tribunal Act, which was the provision in that statute that dealt with costs. The Tribunal stated that the purpose of costs orders "are to help ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others" (citing Hendrickson v Yarra Bay 16 ft. Skiff Sailing Club Ltd (No 2) [2011] NSWADT 204). The Tribunal said that, in its view "s 60 anticipates some degree of recalcitrance by the party against whom the costs order is sought". 2. The Tribunal, before undertaking its assessment of relevant discretionary matters listed above, said the following: "85. The matter has had a long and unfortunate history; relations between the parties are strained. I conducted multiple planning meetings at which I sought to narrow the issues between the parties. it seems to me that the parties became entrenched in their respective positions and effective communication was elusive. The broader history between the parties also did not, it seemed to me, encourage cooperation. the parties engaged in extensive correspondence but it was only immediately before the hearing that the issue is finally crystallised. The parties helpfully filed final submissions which superseded the multiple versions of submissions each had previously filed. Those final submissions were extensive, but also indicative, it seems a me, of a relationship which had seriously deteriorated on both sides." 1. The Tribunal (at [87]) then went on to note that the appellant had only been represented by solicitors in the matter since 24 June 2014. The Tribunal rejected a submission by the appellant that, nonetheless, it should take into account the fact that she may have incurred costs on legal advice on the conduct of proceedings before the date. Consequently, the Tribunal indicated that it only took into account costs the applicant may have incurred since 24 June 2014. This is one of the matters complained about by the appellant in that she says that in reaching this conclusion, the Tribunal erred by taking into account the irrelevant consideration of whether or not the appellant was represented by solicitors in deciding whether she was entitled to her costs. 2. It may be that in forming this view the Tribunal had in mind that a party to proceedings in the Tribunal who is not represented by a legal practitioner is not entitled to recover by way of costs compensation for time spent by that party in prosecuting the proceedings: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [107]. However, whilst we accept that generally whether the appellant was represented by a solicitor for only part of the time may be a matter that is only relevant to the assessment of costs if they were otherwise warranted, we reject the submission that this conclusion effected the Tribunal's conclusions as to the entitlement to costs. That is because when the Tribunal then went on to consider the criteria under s 60(3), it considered matters and conduct both earlier than and after 24 June 2014 in assessing whether there were special circumstances warranting an award of costs. It did not limit itself to matters post 24 June. We see no error of the type asserted by the appellant in this aspect of the Tribunal's reasons. 3. The Tribunal (at [88]) noted the respondent's submissions that there were special circumstances warranting the award of costs to it from 30 June 2014 as it had made all efforts to address the appellant's queries, provide additional material, and attempted to narrow the issues before the Tribunal. Despite this, the appellant had, so the respondent submitted, continued to agitate issues including serious allegations against the respondent and its legal advisers. 4. The Tribunal went on to consider, by reference to the criteria in s 60(3) whether it considered special circumstances existed so as to displace the ordinary rule. 5. The Tribunal found that the respondent did not conduct the proceedings in a way that unnecessarily disadvantaged the appellant because : 1. In response to the appellant's submission that the respondent did not respond in a reasonable or timely fashion, and that the conduct of its solicitors was false and misleading, the Tribunal held that there was no evidence that the respondent acted other than in good faith in response to the appellant's requests over a long period of time, especially where it sought clarification from the appellant as to what she was seeking; and 2. The locating of documents by the respondent was reasonable and broadly responsible to the appellant's application in so far as it was understood by the respondent. When concerns were raised by the appellant's new legal adviser, further searches were conducted and a supplementary determination was made voluntarily by the respondent. 1. The Tribunal did not find that either party was responsible for prolonging unreasonably the time taken to complete the proceedings. It found that the respondent's decision in March 2014 purported to address what documents were sought and a supplementary decision was made in September 2014. The Tribunal found that any delay in bringing the matter to a hearing was a product of attempts by the respondent to clarify the issues and locate further documents. 2. The Tribunal rejected the appellant's submission that the respondent's position of printing hard copy documents without properties, hidden text or other metadata was untenable. This was because the Tribunal found that, for a considerable amount of time the respondent was trying to understand what the appellant was seeking. Further, the Tribunal noted that, in assessing the relative strengths and weaknesses of the parties' cases, the appellant was not wholly successful. 3. As to the nature and complexity of the proceedings, the Tribunal rejected the appellant's contention that the complexity of the proceedings was created solely by the untenable claims made by the respondent. The Tribunal accepted that the respondent made efforts to reduce the scope of the issues in the proceedings. The Tribunal also rejected the appellant's submissions that the respondent and its legal advisors had acted other than in good faith. 4. Finally, whist it found that better communication between the parties may have resulted in a more fruitful use of resources, the respondent provided a significant number of documents to the appellant. It noted that Ms Azad, of the respondent, had to consider each document to assess whether or not there was an overriding public interest against disclosure. 5. The Tribunal concluded that neither party had demonstrated that special circumstances existed such that an award of costs should be made. The appellant's submissions on the costs appeal 1. The appellant's primary submission is that whilst the Tribunal identified the correct statutory provision, being s 60 of the Civil and Administrative Tribunal Act 2013, it asked itself the wrong question and applied the wrong test in deciding whether or not special circumstances existed. The appellant submits that the Tribunal erred in applying a subjective test by asking whether the respondent had acted in good faith. The appellant submits that the Tribunal ought to have applied an objective test and asked, firstly, wether the respondent had made any errors in dealing with the appellant's request for information. If so, it was submitted that the Tribunal should then have considered whether those errors were, objectively, reasonable. It was submitted that then the question was whether the errors had the effect or result of imposing delays on or costs to the appellant. In considering these matters, the appellant submitted that the subjective motives or actions of the respondent were wholly irrelevant. 2. Essentially, the appellant's submission is that in considering whether special circumstances existed, the Tribunal was required to objectively consider whether the conduct of the respondent was reasonable and then exercise the discretion under s 60. The appellant submits that the Tribunal did not do this. 3. The appellant made detailed written and oral submissions taking the Appeal Panel through the evidence in support of her contention that the conduct of the respondent, through it employees and legal advisers, was objectively unreasonable. This included references to the transcript and cross examination of Ms Azad. The appellant submitted that this evidence demonstrated that the respondent materially misstated the search conducted and that this led to the hearing scheduled for August 2014 being abandoned because a further search had to be undertaken and additional documents produced. Objectively, it was submitted, this showed that the conduct of the respondent was unreasonable and that special circumstances did exist to warrant the award of costs to the appellant. Conclusion on costs appeal 1. We do not accept that the Tribunal erred in the manner submitted by the appellant. We do not accept that, in weighing up the relevant matters under s 60(3), the Tribunal only asked itself whether, subjectively, the respondent acted in good faith. To so conclude would be to ignore the other relevant matters the Tribunal did take into account in exercising the costs discretion. 2. In our opinion, a proper reading of the Tribunal's reasons on the costs issue shows that it considered the submissions of each of the parties and the relevant statutory criteria in reaching its decision. Relevant to that decision was the reference on several occasions to the delays occurred by the respondent trying to understand what it was that the appellant was seeking in her requests. The Tribunal noted that when it understood the broader nature of the appellant's requests, the respondent did produce further documents. The Tribunal also considered as relevant, correctly in our view, the fact that the relationship between the parties was strained and effective communication was elusive. We have set out [85] of the Tribunal's reasons at [147] above. 3. It was in the context of the very serious allegations made by the appellant with respect to the conduct of the respondent and its legal advisers, that the Tribunal found that at all times the respondent and the legal advisers acted in good faith. We do not accept that in considering the subjective attitude and conduct of the respondent the Tribunal asked itself the wrong question or considered an irrelevant matter. After all, if the subjective motive or conduct of the respondent was irrelevant, the appellant would not have needed to have made the allegations of misleading conduct in support of her application for costs. 4. Whilst of course, the object of an award of costs including in the Tribunal is compensatory and not punitive (see, for example, Oshlack v Richmond River Council (1998) 193 CLR 72) the starting point under s 60 is that each party is to pay its or their own costs of proceedings in the Tribunal. The exception is if there are found to be special circumstances warranting the award of costs. Relevant to that determination are the non-exclusive matters in s 60(3) of the Civil and Administrative Tribunal Act. 5. The meaning of the term "special circumstances" has been the subject of several decisions in the Appeal Panel (see for example Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Sahade v Owners SP 62022 [2015] NSWCATAP 225; Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 and Gaynor v Burns [2015] NSWCATAP 150). Those cases show that the expression "special circumstances" means circumstances which are out of the ordinary but not necessarily extraordinary or exceptional. Of course, each case will depend on its own facts and the Tribunal may "in a structured exercise of discretion, have regard to the criteria in s 60(a)-(g)": Gaynor v Burns [2015] NSWCATAP 150 at [18]. 6. When one has regard to the criteria in s 60(3)(a)-(g) it is clear, in our opinion, that the conduct of a party, including their subjective motives and conduct of the litigation, can be a relevant factor for the Tribunal to take into account. That subjective motive or conduct could be relevant to most of the criteria set out in s 60(3): s 60(3)(a) – whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party; s60(3)(b) – whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; s 60(3)(c) – the relative strengths or weaknesses of the claims of the parties and whether a claim of a party has no tenable basis in fact or law; s 60(3)(e) whether the proceedings were frivolous or vexatious; and s 60(3)(f) – whether a party has failed or refused to comply with the statutory obligation of co-operation imposed by s 36(3) of the Act. Additionally, a party's subjective motives, conduct or behaviour in relation to proceedings before the Tribunal could be relevant to the undefined "other matters" criteria pursuant to s 60(3)(g). 7. As we have observed, at [84] the Tribunal said that in its view "s 60 anticipates some degree of recalcitrance by the party against whom the costs order is sought". Whilst we do not think it is right that the discretion of the Tribunal to find "special circumstances" such as to warrant an award of costs is limited only to situations where there is some degree of recalcitrance by the party against whom the costs order is sought, where there is such "recalcitrance" (such as misleading conduct) by a party, that could undoubtedly be a relevant factor. Where, as here, such an allegation is made, the Tribunal ought to assess the evidence to support the allegation and, if it finds the allegation is made out, it may then take that conduct into account as one of the matters going to its discretion. If it rejects the allegation, for example in finding a party acted in good faith rather than having engaged in misleading conduct, that too is a matter it is able to take into account in assessing whether special circumstances warranting the award of costs exist. A fair reading of the Tribunal's reasons in this case show that this is what the Tribunal did. 8. For these reasons, we do not think it is necessary to analyse the materials to which we were taken by Mr Brennan in support of this ground of appeal. The appellant has not satisfied us that the Tribunal erred in the exercise of its discretion. As noted above, even if we would have come to a different conclusion based upon that evidence (as to which we express no view), unless the appellant establishes that the Tribunal erred in a relevant way, its decision must stand. We are not satisfied the Tribunal's discretion miscarried. We dismiss the appellant's appeal on the costs issue. Costs of the appeal 1. The appellant also seeks costs of the appeal. The respondent does not seek costs of the appeal. 2. The relevant test is set out above. The starting point is that each party must bear their own costs of the appeal unless there are special circumstances to warrant the award of costs. It is the conduct of the appeal proceedings, not any earlier proceedings, which is relevant to whether there are special circumstances such that there should be an order for costs of the appeal: Sahade v Owners SP 62022 [2015] NSWCATAP 225 at [30]-[33]. Success on the appeal may be a relevant, but not determinative factor: Hammond v Ozzy Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65; Sahade v Owners SP 62022 [2015] NSWCATAP 225 at [43]-[44]. 3. The appeal involved detailed consideration of questions of law and the findings of the Tribunal as applied to the documents to which the appellant sought access. The appeal could not be said to be simple and uncomplex. It is true that the appellant has had some success on the appeal. She has not been totally successful. Further, whilst counsel for the respondent conceded some matters at the hearing before the Appeal Panel, it cannot be said, in our view, that the conduct of the respondent otherwise unnecessarily disadvantaged the appellant, nor was responsible for prolonging unreasonably the time taken to complete the appeal. 4. Overall, we are not satisfied that there are any matters by which it could be said there are special circumstances which would displace the usual position that each party is to pay their own costs of the appeal. We make no order as to costs of the appeal. ORDERS 1. The orders we make are: 1. Appeal allowed in part. 2. Order 2 made on 14 April 2015 in proceedings 1330335 in the Administrative and Equal Opportunity Division is set aside insofar as it determines that there is an overriding public interest against disclosure of information in Document 64 and, in substitution for it, the respondent is to provide the applicant with access to the information contained in the following entries and notes in Document 64: the entries for 5 July 2010 and 19 July 2010; the first line of the entry for 24 September 2010 and the second sentence of the entry for 24 September 2010 (comprising the last word on the second line of the entry and the third line of the entry); the entry for 5 and 6 October 2010; the entry of 8 October 2010, other than the last five words of the second line of that entry and the third line of the entry; the note immediately following the entry of 8 October 2010, other than the last six words of the first line and the whole of the second and last lines of that note; the entry for 14 October 2010 other than the last six words of the first line of that entry and lines 2-5 of that entry; and the note following the entry for 14 October 2010. 3. The Tribunal's decision is set aside insofar as it implicitly refuses access to the information in Documents 90, 107, 115 and 168 and, in substitution for that decision, the respondent is to provide the applicant with access to the information contained in Documents 90, 115 and 168 and to the information contained in Document 107 other than the third and fourth paragraphs of that document (that is, the second and third paragraphs after the marginal number "2" which appear immediately before a heading then marginal number "3"). 4. There be no order as to the costs of the Appeal. 5. The appeal is otherwise dismissed. 6. Order pursuant to s 64 (1) Civil and Administrative Tribunal Act 2013 that there be a restriction on publication of any information that will identify the applicant. ********** 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 November 2015