Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Page v Southern Cross University [2017] NSWCATAP 89 Hearing dates: 17 March 2017 Date of orders: 28 April 2017 Decision date: 28 April 2017 Jurisdiction: Appeal Panel Before: K O'Connor, AM, ADCJ, Deputy President, Appeals Dr J Lucy, Senior Member Decision: Appeal dismissed Catchwords: GOVERNMENT INFORMATION (PUBLIC ACCESS) – Reviewability of decisions as to discounts and advance deposits – Appeal – Law provides for discounts for financial hardship and special public benefit – Whether reviewable decisions to impose a processing charge and to refuse a reduction in a processing charge may be made before access application determined – Finding that they may not be - Agency purported to grant a financial hardship discount - a second discount on the ground of special public benefit is not available – Adequacy of an agency's notice requiring an advance deposit is not reviewable - Appeal dismissed. Legislation Cited: Government Information (Public Access) Act 2009 Government Information (Public Access) Regulation 2009 Civil and Administrative Tribunal Act 2013 Interpretation Act 1987 Cases Cited: BY v Director General, Attorney General's Department [2002] NSWADT 79 National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 Page v Southern Cross University [2016] NSWCATAD 199 Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 Texts Cited: Bennion, Statutory Interpretation (3rd ed. 1997) Category: Principal judgment Parties: James Smith Page (Appellant) Southern Cross University (Respondent) Representation: In person (Appellant) B Atkinson, Legal Officer (Respondent) File Number(s): AP 16/46936 Publication restriction: Suppression Order has been made under s64 of the Civil and Administrative Tribunal Act 2013 in respect of part of the contents of paragraphs 2 and 9 of the Reasons. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2016] NSWCATAD 199 Date of Decision: 31 August 2016 Before: S Montgomery, Senior Member File Number(s): 1510627 REASONS FOR DECISION 1. APPEAL PANEL: This is an appeal by the review applicant against the decision of the Tribunal at first instance in Page v Southern Cross University [2016] NSWCATAD 199 (31 August 2016). The Tribunal decided to affirm the respondent agency's decisions under the Government Information (Public Access) Act 2009 (GIPA Act) to require an advance deposit, to refuse a reduction in a processing charge, and to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment. These decisions are made reviewable by s 80(j), s 80(k) and s 80(l) of the GIPA Act. Background 1. On 23 October 2013 the appellant applied for access to information held by the agency. The appellant was at relevant times a staff member of the respondent agency, a university. His application was divided into several categories. Its contents indicate that it had as its background various interactions between the appellant and the agency over the years 2006 to 2013, including, for example, [SUPPRESSED]; a complaint made against him by a staff member around 2011, and its investigation; and the giving of a 'direction' to the appellant around 2012. The application expresses the appellant's belief that the agency has engaged in 'wrongdoing' and refers to an Independent Commission Against Corruption assessment said to support his belief. 2. The GIPA Act permits an agency to require access applicants to pay a processing charge: s 64 and to require the payment of advance deposits in respect of the processing charge, based on an estimate of the processing charge: s 68. The agency's initial estimate of the processing charges was $4920 and it required the applicant to pay an advance deposit of $2,640. As the following history shows, the advance deposit was later reduced to $1080. The applicant has refused to pay the deposit. The agency has refused to process the access application, giving rise to his application for review and this appeal. 3. In its notice requiring an advance deposit, the agency stated that the access application consisted of 5 pages, 11 parts plus explanatory notes and contained 37 requests that require decision. 4. The agency referred in addition to other factors that influenced its decision to: the number of previous requests that the appellant had made since 2006; the age of the information and where it is located (around 7 years, and some archived); and the number and intricacy of third party consultations required (the appellant stated that the application required ten non-university staff to be consulted). Its estimate of the processing charges was calculated by reference to work already done, being 24 hours at a rate of $30 per hour; and estimated future work, being 164 hours by $30 per hour. 5. An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the applicant is suffering financial hardship: s 65(1). An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally: s 66(1). The Information Commissioner has published detailed guidelines in relation to the operation and application of ss 65 and 66, Guideline 2: Discounting Charges (first published, 14 March 2011; current edition, December 2016). 6. The appellant applied for 50% discounts under each of s 65 and s 66. 7. The agency did grant his financial hardship application (s 65). It refused his special public benefit application (s 66). It reduced the advance deposit charge by 50%, to $1320. It later lowered the charge to $1080 after reducing its estimate of the processing charges to $4320. 8. In support of his s 66 application, the appellant referred to recommendations made by the State Records office that led to changes in the way the agency manages [SUPPRESSED] and handles communications between staff and others involved in the process of investigation. He also argued that the revelation of the information sought by his present access application would shine light on alleged maladministration and corrupt conduct, promote public discussion of corruption in public institutions [SUPPRESSED]. 9. The agency refused to grant a discount under s 66. In its reasons for that decision (12 December 2013), the agency dealt with the merits of the application: We do not agree with your request for a further 50% reduction in processing charges ... [W]e are not satisfied that the information you have applied for is of special benefit to the public generally. The information you are seeking does not fall into any of the categories of examples provided by the NSW Information & Privacy Commissioner in Part 4 of their Guideline 2 ... dated March 2011. Nor does it satisfy any of the requirements in the Checklist at Appendix A of that same Guideline. The information does not relate to an issue of public debate, an issue of public significance. It does not interest or benefit the public in any way, and its release is unlikely to result in further analysis or research other than by you. There are no particular sections of the community who would have an interest in the information. The information, if disclosed, is not likely to lead to publication of the information. And the information in unlikely to be analysed or lead to further analysis. 1. The appellant applied to the Information Commissioner for review of the decision. The Information Commissioner made no recommendations to vary the agency's decision (report, 8 October 2014). The agency notified him under s 70 of its refusal to deal further with the request, reconfirmed by letters dated 14 October 2014 and 9 December 2014. The appellant then applied to the agency for internal review of its decision. It declined (20 January 2015) to undertake such a review given the bar imposed by s 82(4) where the aggrieved person has already had a review done by the Information Commissioner. He applied for further review by the Information Commissioner, which led to no recommendations (report, 14 August 2015). 2. The appellant did not pay the reduced charge by the due date. The agency refused to deal further with the application. Section 70 provides: 70 Result of failing to pay advance deposit (1) An agency may refuse to deal further with an access application if the applicant has failed to pay an advance deposit within the time required for payment (unless the applicant has applied for review under Part 5 of the decision to require the advance deposit within the time required for payment of the advance deposit). Note. The decision to refuse to deal further with an access application is reviewable under Part 5. (2) An agency must give notice to the applicant of its decision to refuse to deal further with the application. (3) The review under Part 5 of a decision to refuse to deal further with an application for failure to pay an advance deposit is to be a review of both the decision to refuse to deal further with the application and the decision to impose the advance deposit (unless the decision to impose the advance deposit has already been reviewed under that Part). 1. Section 80 provides relevantly: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: ... (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment. 1. The appellant applied to the Tribunal for review (8 October 2015) of the decision to require an advance deposit, to refuse a reduction in a processing charge and to refuse to deal further with the application. 2. Before the Tribunal, the agency contended that the Act, properly construed, gave an applicant no entitlement to two 50% discounts, and accordingly it had not been necessary for it to consider the merits of his s 66 discount application once it had granted the s 65 discount. The submission was based on a decision of the Tribunal at first instance - National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 (NTEU) (Dr J Lucy, Senior Member). It followed therefore that the appellant had received the maximum discount allowed by the Act, and the agency was entitled to refuse to deal any further with the application. 3. The Tribunal regarded itself as bound by that decision, applying principles as to comity that had been followed in the predecessor Tribunal in this area of jurisdiction, the Administrative Decisions Tribunal (see BY v Director General, Attorney General's Department [2002] NSWADT 79 at [21]-[23] per O'Connor P). 4. The Tribunal also rejected the appellant's alternative submission that no fee was chargeable because the agency had failed to comply with its obligations under s 68 in relation to the contents of the notice requiring an advance deposit. Those obligations are set out in s 68(3). The Appeal 1. The appellant's appeal puts in issue each of these findings. 2. The appellant seeks (1) an order that the decisions under appeal be set aside; (2) an order that the requirement for an advance deposit be waived, because of failure to give a notice of advance deposit that conforms with requirements of the GIPA Act; and (3), alternatively, an order that the matter be remitted to the Tribunal below for consideration of his argument that he is entitled to a discount based on the special public benefit of his access application. 3. The usual rule is that a party to a final decision at first instance is entitled to appeal that decision in relation to 'any question of law, or with the leave of the Appeal Panel, on any other grounds': Civil and Administrative Tribunal Act 2013, s 80(2)(b). The usual rule applies to this case. 4. The appellant confined his appeal (filed 25 October 2016) to what he considered to be questions of law. There was no application for leave to appeal on other grounds. The questions of law are formulated as follows: (a) mis-application of the relevant principles for the revisiting of previous Tribunal decisions; (b) mis-application (misinterpretation) of the GIPA Act by the Tribunal; (c) failure to take a beneficial construction of a beneficial provision; (d) failure to comply with the objects of the GIPA Act; (e) failure to take into account a relevant consideration and/or give adequate reasons. 1. In Ground (a) the appellant does not question the principles as to comity as formulated in BY, but he contends that the Tribunal wrongly applied them to his case. He argued that the Tribunal had failed to take account of a qualification to the principle which did not require it to be applied if a 'significant new argument' was raised in the later case, one that had not been considered in the precedent case. 2. Grounds (b) to (e) put in issue the rulings in the NTEU case, in particular the ruling that only one of the two discounts given by s 65 and 66 can be applied to the one access application, and the further ruling that a reviewable decision as to the provision of a discount can only arise once the final processing charge is established. 3. The appellant applied at the hearing for the recusal of Senior Member Lucy on the ground of apprehended bias. Dr Lucy constituted the Tribunal in the NTEU case. The appellant submitted, in essence, that a reasonably minded observer might form the view that she might not bring an open mind to reconsideration of that decision, as this appeal requires, and therefore she should recuse herself. Dr Lucy declined to recuse herself, giving oral reasons for this decision at the hearing. Grounds of Appeal 1. Ground (a). There is no need to examine ground (a). We will in this decision re-examine the ruling in NTEU. 2. K O'CONNOR, ADCJ, Deputy President: As already noted, the appeal places directly in issue reasoning found in a precedent where my colleague, Senior Member Lucy, gave the ruling. We think it is preferable in those circumstances that each of us give a separate set of reasons in connection with the grounds of appeal as they relate to that ruling, rather than follow the usual practice of giving joint reasons. 3. Part 4 of the GIPA Act deals with the subject of 'Access Applications'. It is divided into 6 Divisions. Division 1 deals with the making of an application. Division 2 deals with transfer, amendment or withdrawal of access applications. Division 3 deals with the process by which an agency deals with an access application. It sets out the criteria that need to be met for an application to be valid, and require processing under the Act. It is clear that the payment of the basic application fee ($30 at the time of the application under notice) is enough to satisfy the requirements for validity. 4. Division 4 deals with the key elements of the process – the way in which applications are decided, the time in which they are to be decided, the grounds for refusing to deal with an application, and notices of decision to refuse access (and their contents). Division 5 deals in detail with the calculation, imposition and reduction of processing charges and advance deposits. 5. The first reference to processing charges appears in Division 4. Section 62 provides: 62 Notice of processing charges Notice of an agency's decision to provide access to information must state whether any processing charges will be payable for access to the information and indicate how those charges have been calculated. 1. There is a further reference to processing charges in s 63. Section 63 provides that a failure by an agency to process a request within the applicable time will be treated as a 'deemed refusal'. Included in this provision is a stipulation that: (4) No processing charge can be imposed for dealing with an access application if the application was not decided within time (whether or not a late decision is made on the application). 1. These references clearly support a conclusion reached in NTEU that a 'processing charge' is an amount that is established at the end of the process of dealing with an access application. 2. Division 5 then goes on to deal in detail with the calculation of processing charges and the charging of advance deposits. The power to fix a 'processing charge' is conferred by s 64. It provides: 64 Processing charge for dealing with access application (1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Note. The decision to impose a processing charge is reviewable under Part 5. (2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application. 1. The next two provisions, ss 65 and 66, allow for a 'reduction in the processing charge' (the term used in sub-sections (1)) or a 'discounted processing charge' (the term used in the section headings). They provide: 65 Discounted processing charge—financial hardship (1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the applicant is suffering financial hardship. Note. The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64. (2) The agency may refuse to allow the discount if satisfied that the applicant is making the application on behalf of another person in order to obtain the discount for that person. (3) The regulations may prescribe circumstances that constitute financial hardship. [The regulations provide relevantly, cl 9(c) of the Government Information (Public Access) Regulation 2009: An agency is required to reduce, by 50%, the processing charge payable under the Act for dealing with an access application if the applicant provides evidence that the applicant: (a) is the holder of a Pensioner Concession card issued by the Commonwealth that is in force, or (b) is a full-time student, or (c) is a non-profit organisation (including a person applying for or on behalf of a non-profit organisation).] Note. A decision to refuse to reduce a processing charge is reviewable under Part 5. 66 Discounted processing charge—special public benefit (1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally. Note. The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64. A decision to refuse to reduce a processing charge is reviewable under Part 5. (2) If the information applied for was not publicly available at the time the application was received but the agency makes the information publicly available either before or within 3 working days after providing access to the applicant, the applicant is entitled to a full waiver of the processing charge imposed by the agency. (3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section. 1. Section 66 provides for a 'full waiver' of the processing charge in the circumstances specified there. Section 67 provides for 'waiver' of the processing charge in respect of the first 20 hours of processing time in the case of applications for personal information. Finally, s 127 of the Act (in Part 7 of the Act, General Provisions) gives a general power to an agency to waive, reduce or refund any fee or charge payable or paid under the Act as 'the agency thinks appropriate'. This is a general discretionary power not subject to review within the Tribunal. (Like any statutory discretion, it remains judicially reviewable.) 2. So the scheme of the Act contemplates the following types of payment decisions: * Imposing a fee - typically an application fee. * Imposing a charge - typically a processing charge or an advance deposit based on an estimated processing charge. * Allowing for a waiver of a fee or a charge – either wholly or in part. * Provision of a refund. 1. It is plain, I think, that the 'processing charge' to which the above provisions refers is the one fixed at the end of the process, at the time when the access application has been processed and a decision made. 2. Section 68 to 71 deal separately with the subject of advance deposits. 3. Section 68 allows agencies to require 'advance deposits for the payment of processing charges', and provides: 68 Advance deposit for payment of processing charge (1) An agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (as an advance deposit). Note. The decision to require an advance deposit is reviewable under Part 5. (2) The period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency. (3) The notice requiring an advance deposit must: (a) include a statement of the processing charges for work already undertaken by the agency in dealing with the application, and (b) include a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application, and (c) specify a date by which the advance deposit must be paid (being a date at least 20 working days after the date the notice is given), and (d) include a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited. (4) An agency can extend the date by which an advance deposit must be paid and is to give the applicant notice of any extension (indicating the new date by which the advance deposit must be paid). 1. Section 69 sets the maximum advance deposit at 50% of the estimated processing charges. Section 70, set out earlier in these reasons, gives the agency to power to refuse to deal further with the application if the advance deposit is not paid. It corresponds with the power given by s 60, read in combination with s 58(e). An agency is entitled to refuse to deal with an application (see s 58(e)) on the various grounds set out in s 60, one of which is that: (c) the applicant has failed to pay an advance deposit that is payable in connection with the application. Note. See section 70. 1. Finally, s 71 allows the agency to refund advance deposits. Observations 1. The agency dealt with the appellant's applications for discounts under s 65 and s 66 at a time when the final processing charge had yet to be imposed. In relation to the amount of the discount, the decision is of a preliminary nature. The ultimate amount of the discount cannot be finally settled at this stage, because it is fixed by reference to the 'processing charge' not the estimated processing charge. 2. While it may be easy to establish at the beginning of the process whether an applicant fits one of the hardship categories set out in the regulations, it will often be difficult to form a view at that point whether the access application has any 'special public benefit'. That may only become clear during the processing of the request or when it is finalised. 3. As their description connotes, the 'advance deposits' provisions involve the giving of a kind of security deposit calculated against an estimate. They are 'advance' deposits in the sense that the amount is calculated in advance of the process being undertaken (or substantially in advance of the process being undertaken) and before a final costing is possible. 4. There are no provisions within the body of the advance deposit sections (ss 68-71) for the making of discounts. There is only one cross reference to these matters. Section 69 provides: 69 Maximum advance deposit (1) The maximum advance deposit that can be required is 50% of the amount that the agency estimates to be the total processing charge for dealing with the application (ignoring any reduction in processing charge to which the applicant may be entitled). Note. An applicant can pay the full amount of the agency's estimate of the total processing charge in advance if the applicant wants to, but the applicant cannot be required to pay more than 50% of the estimate as an advance deposit. (2) More than one advance deposit can be required so long as the total of the advance deposits required does not exceed the maximum advance deposit. It will be seen that s 69(1) speaks of the estimate against which the advance deposit is to be calculated as the gross total processing charge, 'ignoring any reduction in processing charge to which the applicant may be entitled'. 'Reductions', as previously noted, are the subject of both s 65 and s 66. 1. The question of whether the Act allows an appropriately qualified applicant to obtain both discounts is not easily resolved. Section 65 and 66 are not written in 'either/or terms'. They appear as successive provisions. They do not directly deal with the possibility of the double-qualified applicant. 2. The appellant submits that the Tribunal should adopt a construction of the Act which is beneficial, in the sense that it promotes the goals of access. The argument is that a construction which promotes access should be given to provisions that set fees and charges. Therefore any doubts should be resolved in favour of an interpretation that favours the making of access applications. 3. As noted by Bennion, Statutory Interpretation (3rd ed. 1997, 343-4) : [T]here needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with. (footnotes omitted) (cited with approval by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 at [78]). 1. In my view, the limited textual indications favour a construction that s 65 and s 66 are meant to operate as alternatives. 2. Section 65 and section 66 each use the terms 'discount' and 'reduction'. These are words that in their ordinary meaning contemplate some price being paid, i.e. the usual price less the discount or reduction. 3. Among the meanings of 'discount' found in the Macquarie Dictionary (4th ed. 2005) there is '1. v. to deduct an amount from the purchase price of an item', and '8. n. amount deducted for prompt payment or other special reason'. These meanings support the interpretation that the use of the word 'discount' connotes that some part of the price remains to be paid. 4. Secondly, as noted in the reasons in NTEU, s 66 (2) introduces the concept of a 'full waiver' of the processing charge. The agency must relieve the applicant of any charge if it chooses to release publicly the information the subject of the application while seized of the application or within three working days after providing access to the applicant. 5. In my view the discount provisions are designed to provide a concession of 50% in certain circumstances. They each have an underlying assumption that a processing charge will be made. There is no indication that an applicant is to pay nothing for the cost of processing if they are qualified under both s 65 and s 66. It is plain I think from the complexity and detail of the provisions surrounding the levying of processing charges and the levying of advance deposits that the Parliament intended that access applicants make a contribution to the agency's costs of handling larger scale access applications. 6. I also agree with the reasons given by Senior Member Lucy. 7. DR J LUCY, SENIOR MEMBER: The appellant sought review, in his application to the Tribunal, of "the decision of the University to refuse to reduce the processing charges, pursuant to GIPA Section 66 (special public benefit)", "the subsequent decision of the University to require an advance deposit, pursuant to GIPA Section 68" and "the subsequent refusal of the University to deal further with the application pursuant to GIPA Section 70." 8. The issue concerning s 66 is that set out above in the joint reasons; namely, that the appellant claimed he was entitled to cumulative reductions in the processing charge, a 50% discount under s 65 of the GIPA Act for financial hardship and another 50% discount under s 66 of the GIPA Act relating to special benefit to the public. The Tribunal decided the issue concerning s 66 by deciding to follow a case which I decided at first instance, the NTEU case (see Page v Southern Cross University [2016] NSWCATAD 199 at [46]). 9. In the NTEU case, I found that, at the time an agency requires an advance deposit, it has not yet made a reviewable decision concerning the imposition of a processing charge, even though it is required to give an estimate of processing charges, because such a decision may only be made when it has decided an access application (at [26] to [37]). I also expressed the view, which was not necessary to determine the application, that the discounts in ss 65 and 66 of the GIPA Act are non-cumulative (that is, that the maximum discount to which an applicant may be entitled if both provisions apply, is 50%) (at [59]). 10. The Tribunal dealt with the remainder of the appellant's application on the basis that the respondent had given the appellant notice of its decision to require payment of an advance deposit, advising him of the amount of the deposit and the time for payment, the appellant had failed to pay the advance deposit as required and the respondent was entitled to give the applicant notice that it had decided to refuse to deal further with the access application (Page v Southern Cross University [2016] NSWCATAD 199 at [56] and [57]). 11. The appellant submitted, on appeal, that various errors had been made in the NTEU case, which meant that the Tribunal should not have followed that decision in the proceedings below. The appellant submitted that these errors included the following: 1. the Tribunal failed to take into account the beneficial purpose of ss 65 and 66 of the GIPA Act, and should have construed those provisions beneficially; 2. it was an error to find that a maximum discount of 50% could apply; 3. the Tribunal failed to consider s 3(2)(b) of the GIPA Act, which provides that "the discretions conferred by [the GIPA] Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information"; and 4. the Tribunal failed to take into consideration s 33 of the Interpretation Act 1987 (NSW), which requires a construction that would promote the purpose or object underlying the GIPA Act to be preferred. 1. The Appeal Panel is not required, by principles of comity, to follow decisions made by the Tribunal at first instance. Accordingly, I have considered these issues afresh, having regard to the appellant's submissions. 2. The appellant's written submissions did not directly engage with the finding in the NTEU case, which was accepted by the Tribunal below, that a reviewable decision to impose processing charges cannot be made until an agency has determined an access application. This was a submission put by the respondent. The appellant submitted orally that there was nothing in the GIPA Act to say that discounts cannot be applied at the advance deposit stage and also submitted that s 62 of the GIPA Act did not state that a processing charge can only be operative at the stage of determining an application. 3. I remain of the view that the scheme of the GIPA Act is to require agencies to estimate processing charges when requiring an advance deposit (see s 68(1) and (3)(b)) and for discounts and processing charges to be determined once the access application has been decided (see ss 62, 64-66). I accept, as the appellant submits, that the GIPA Act does not expressly stipulate that a decision to impose a processing charge may not be made before an access application is determined. However, s 63(4) provides that an agency may not impose a processing charge if the application is not determined within time, and s 71(2) provides that an advance deposit must be refunded if the application is not determined within time. It is implicit, from these provisions, that it is not until an agency has decided an access application that it can determine whether it is entitled or empowered to impose a processing charge and the amount of that charge. As a matter of logic, a reviewable decision to refuse a reduction in a processing charge (see GIPA Act, s 80(k)) may also only be made after an access application has been determined. 4. It follows that the only reviewable decisions before the Tribunal below were the decision of the University to require an advance deposit (GIPA Act, s 80(j)) and the University's refusal to deal further with the application because the applicant did not pay the advance deposit (GIPA Act, s 80(l)). The appellant's submissions, which are focused upon the application of ss 65 and 66, do not provide a persuasive reason for disturbing the Tribunal's affirmation of these decisions. APPEAL PANEL: The Adequacy of the Advance Deposit Notice 1. In his grounds of appeal, the respondent is critical of the Tribunal's reasoning in relation to his adequacy objection to the reasons given in the notice of refusal of the advance deposit (see requirements in s 68(3)). The adequacy of a notice requiring an advance deposit is not a matter the Tribunal has jurisdiction to review. 2. The Tribunal's jurisdiction is limited to reviewing 'reviewable decisions' as set out in s 80 of the GIPA Act. A decision to require an advance deposit is a reviewable decision (GIPA Act, s 80(j)) and the Tribunal may reach a different view as to whether an advance deposit should have been required; but it has not been given the role of considering whether the notice meets the requirements of s 68(3). However, in case we are wrong, we make the following comments. 3. The Tribunal concluded the notice did provide a statement of the processing charges for work already undertaken (requirement (a)), it included a statement of the estimated processing charges for work expected to be required (requirement (b)), it specified a date by which the deposit was to be paid (requirement (c)) and it included a statement foreshadowing refusal to deal with the application if not paid by the due date (requirement (d)). 4. These are all judgments of fact. Judgments of fact are difficult to disturb on error of law grounds. The appellant's submissions are basically to the effect that much more administrative detail should have been provided in relation to (a) and (b), going beyond the bald assertions made on these matters in the notice issued to him. 5. As asserted by the appellant, and noted by the Tribunal in its account of relevant provisions, the onus lies on the agency to demonstrate that its decision is the correct and preferable decision in the circumstances (see s 105). As indicated above, the decision under review was the decision to require an advance deposit. We consider that the review of this decision extends to a review of the amount of the deposit required. 6. In our view, there was sufficient material before the Tribunal to enable it to make a considered judgment on the question, when reviewing the agency's decision to require an advance deposit. The scope of the access application is plainly wide, covers a considerable expanse of time, and refers to a number of events which manifestly would have involved the engagement by the agency in considerable administrative effort. It was open to the Tribunal to conclude that the estimates as to time were on their face likely to be reasonable (the amount per hour is an automatic figure, and is low), and not require further inquiry. We accept there could be cases where the brief information given is not plausible when viewed in context, and the agency would need to put on additional evidence, at the least, to justify the estimates. We do not think this was a case of that kind. Order Appeal dismissed ********** 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 Amendments 25 October 2017 - Publication restriction added to decision and suppression of parts of paragraphs [2] and [9] 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: 25 October 2017