Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87 Hearing dates: On papers Date of orders: 15 April 2019 Decision date: 15 April 2019 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President Decision: The application by Ms Kirkby and Mr Gibbs to be joined as parties to these proceedings is refused. Note: Ms Kirby and Mr Gibbs have the right to appear and be heard in the Appeal Panel proceedings pursuant to s 104(3) of the Government Information (Public Access) Act 2009 (NSW). Catchwords: PRACTICE AND PROCEDURE – joinder- where 3rd parties object to government agency disclosing information under Government Information (Public Access) Act 2009 – where 3rd parties not parties to first instance decision on jurisdiction – whether applicant for access appealed from first instance decision – whether 3rd parties should be joined to the appeal proceedings Legislation Cited: Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Rules 2014 Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: CBL v Sydney Water Corporation [2016] NSWCATAD 287 Commissioner of Police New South Wales Police Force v Fine and Anor [2014] NSWCA 327 DNY v Public Guardian [2018] NSWCATAD 254 Marrickville Council v Botany Council [2015] NSWCATAD 144 Category: Procedural and other rulings Parties: Office of Environment and Heritage (Appellant) Scenic NSW Pty Ltd (Respondent) Information Commissioner Representation: Counsel: J Reid (Respondent) Solicitors: Crown Solicitor's Office (Appellant) Mills Oakley (Respondent) File Number(s): AP 19/05283 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Scenic NSW Pty Ltd v Office of Environment & Heritage [2019] NSWCATAD 7 Date of Decision: 2 January 2019 Before: R L Hamilton SC, Senior Member File Number(s): 2018/00227284 REASON FOR DECISION Introduction 1. Ms Kirkby and Mr Gibbs object to the Office of Environment and Heritage (the agency) disclosing certain information, including a heritage report, to Scenic NSW Pty Ltd. They have applied to be joined as parties to an appeal from a decision of the Tribunal relating to the disclosure of that information. 2. The background to the joinder application is that Scenic NSW applied under the Government Information (Public Access) Act 2009 (NSW) for certain information. After consulting with Ms Kirkby and Mr Gibbs, the agency decided to provide access to some of the information despite their objections (the internal review decision). Scenic applied to the Tribunal for a review of the internal review decision but later withdrew the application. Ms Kirkby and Mr Gibbs then applied to the Information Commissioner for external review of the internal review decision. Following that application, the agency decided that it would not give Scenic NSW access to the information until the Information Commissioner had conducted the review (the deferral decision). 3. Scenic NSW applied to the Tribunal for a review of the deferral decision. The Tribunal decided that it had jurisdiction to review the deferral decision and directed the agency to reconsider that decision: Scenic NSW Pty Ltd v Office of Environment & Heritage [2019] NSWCATAD 7. 4. The agency has appealed to the Appeal Panel. One ground of appeal is that the Tribunal was in error in concluding that it had jurisdiction to review the deferral decision. Another ground was that it should only have determined the jurisdiction question and not gone on to direct that the agency reconsider the decision. In doing so, the Tribunal is said to have denied the parties procedural fairness. Scenic NSW agrees that in the Tribunal proceedings, the Tribunal was to determine only the issue of whether the Tribunal had jurisdiction to determine the proceedings. Submissions were not made as to what orders were appropriate if the Tribunal found that it did have jurisdiction. 5. Before the Tribunal handed down the decision, Ms Kirkby and Mr Gibbs applied to the Tribunal for a review of the internal review decision. Attempts by each of the parties and Scenic NSW to resolve the dispute have not been successful and the matter is listed for a case conference on 30 April 2019. 6. I have decided to deal with the joinder application without an oral hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50. Scenic NSW opposes the application for joinder to the Appeal Panel proceedings. The agency does not oppose the application. The Information Commissioner provided submissions to assist the Tribunal's examination of the issue. Legal principles 1. The parties to an internal appeal include "the appellant, any person who was a party to the proceedings at first instance and any person who is made a party to the proceedings under s 44 of the CAT Act": Civil and Administrative Tribunal Rules 2014, cl 29. Section 44(1) gives the Tribunal power to order "that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party." Section 44(2) provides for the removal of parties if "the person has been improperly or unnecessarily joined, or ceased to be a proper or necessary party." Given those provisions and the relevant authorities, the Appeal Panel has held that a person should be joined as a party if the Tribunal considers that joinder is "proper" or "necessary": DNY v Public Guardian [2018] NSWCATAD 254 at [11]. 2. When deciding whether to exercise the discretion to join a person as a party ", the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case" are all relevant factors: Commissioner of Police New South Wales Police Force v Fine and Anor [2014] NSWCA 327 at [57]. 3. In CBL v Sydney Water Corporation [2016] NSWCATAD 287 the Tribunal declined to join a third party objector to first instance administrative review proceedings given that the person had a right to appear and be heard under s 104(3) and given that it had failed to make detailed submissions about why it should have the additional status of party. In Marrickville Council v Botany Council [2015] NSWCATAD 144, the Tribunal joined a third party objector relying on the relevant factors set out by the Court of Appeal in Commissioner of Police New South Wales Police Force v Fine and Anor [2014] NSWCA 327 at [57]. 4. Having regard to the Tribunal's decisions in CBL v Sydney Water Corporation [2016] NSWCATAD 287 and Marrickville Council v Botany Council [2015] NSWCATAD 144 any decision to join a person as a party, rather than giving that person the right to appear and be heard, turns on the facts of the particular case. 5. Subject to certain conditions, an agency must consult with a third party before providing access to information: GIPA Act, s 54. The purpose of consultation is to see whether the third party objects to the disclosure of the information and, if so, the reasons for any objection: GIPA Act, s 54(4). The agency is required to take any objection into account in "determining whether there is an overriding public interest against disclosure of government information": GIPA Act, s 54(5). If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information, access is not to be provided until the agency has first given the objector notice of the agency's decision and of the objector's right to have that decision reviewed: GIPA Act, s 54(6). 6. There are at least two ways in which objectors such as Ms Kirkby and Mr Gibbs, may have their objections to the disclosure of information considered by the Tribunal. The first is where an agency has made an internal review decision to give access to information despite their objections and the objectors apply for a review of that decision: GIPA Act, s 54(6) and s 80(d). In that case the objectors are the applicants for review. Ms Kirkby and Mr Gibbs have made such an application, but it has not been determined. 7. Another way in which objectors may have their objections considered by the Tribunal is to exercise the right to "appear and be heard" under s 104(3) GIPA Act: Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review. Issues 1. The main issue is whether the Appeal Panel should join Ms Kirkby and Mr Gibbs as parties to the Appeal Panel proceedings. Although the application is for joinder as a party, it is also relevant to determine whether Ms Kirkby and Mr Gibbs may exercise their right to appear and be heard in the Appeal Panel proceedings. One negative consequence of joinder is that a party may be liable for costs: NCAT Act, s 60. A positive consequence is that if the proceedings are first instance proceedings, a party may be entitled to appeal: NCAT Act, s 80. Consideration 1. Ms Kirkby and Mr Gibbs submitted that they are aggrieved by the Tribunal's first instance decision because the information sought by Scenic NSW "is information that they were consulted about and which they objected to being released." I am satisfied that Ms Kirkby and Mr Gibbs could have been aggrieved by the Tribunal's review of the deferral decision. In those circumstances they would have been entitled to appear and be heard in those proceedings: GIPA Act, s 104(3). I appreciate that the Tribunal's decision was that it had jurisdiction to review the deferral decision. Nevertheless, it was "a decision of NCAT on a review". One issue in these proceedings is whether Ms Kirkby and Mr Gibbs have the same right to appear and be heard in the Appeal Panel proceedings. 2. If Ms Kirkby and Mr Gibbs had appeared and been heard in the first instance proceedings, they would not have had the right to appeal from the Tribunal's decision, but they would have had the same right to appear and be heard on appeal. 3. Ms Kirkby and Mr Gibbs say that they did not know about Scenic NSW's application for review of the deferral decision until Scenic NSW advised them of the Tribunal's decision in accordance with the Tribunal's directions. Scenic NSW submits that there is no evidence before the Appeal Panel that Ms Kirkby and Mr Gibbs were unaware of the proceedings. Despite the fact that there is no formal evidence in a statement or affidavit, I am satisfied based on what Ms Kirkby and Mr Gibbs wrote in their submission, that they were not aware of the first instance Tribunal proceedings until they were notified after the decision was delivered. 4. Scenic NSW submits that Ms Kirkby and Mr Gibbs have the right to appear and be heard, but only in relation to any reconsideration by the Tribunal or the Appeal Panel of the deferral decision. 5. I am satisfied that Ms Kirkby and Mr Gibbs could be aggrieved by a decision of the Appeal Panel on a review of the deferral decision. The Appeal Panel is part of NCAT and, even on appeal, it is making a decision "on a review". Section 104(3) of the GIPA Act should not be interpreted narrowly to deprive Ms Kirkby and Mr Gibbs of the right to appear and be heard in the Appeal Panel proceedings. It does not matter that neither of them has identified an error of law in the Tribunal's decision. 6. In circumstances where Ms Kirby and Mr Gibbs have the right to appear and be heard in the Appeal Panel proceedings, it is neither "proper" or "necessary" for them to be joined as parties to the appeal. Orders The application by Ms Kirkby and Mr Gibbs to be joined as parties to these proceedings is refused. Note: Ms Kirby and Mr Gibbs have the right to appear and be heard in the Appeal Panel proceedings pursuant to s 104(3) of the Government Information (Public Access) Act 2009 (NSW). ********** 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: 15 April 2019