Commissioner of Police v Ritson (“DVT”) (No 2)

The plaintiff in this matter seeks leave to appeal, pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), against the decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Appeal Panel) dismissing her appeal: Commissioner of Police (NSW Police Force) v DVT [2022] NSWCATAP 231 (the Appeal Panel Decision). The Appeal Panel hears appeals from decisions made by the New South Wales Civil and Administrative Tribunal (the Tribunal) and from some external bodies. The decision sought to be appealed in the present case was the determination of the Tribunal making orders in favour of the first defendant in relation to his application to the plaintiff seeking access to his personal information pursuant to the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act): DVT v Commissioner of Police [2021] NSWCATAD 108 (the Breach Decision) and DVT v Commissioner of Police (No 3) [2021] NSWCATAD 290 (the Remedies Decision). Section 83 of the CAT Act provides that a party to an external appeal or an internal appeal (as was the case here) may, with the leave of the Court, appeal on a question of law against the decision of the Tribunal.

The first defendant did not appear on this application. The plaintiff was represented by Mr Emmett SC with Ms Curtin. An order was made in the proceedings joining the Privacy Commissioner as a party, making her the second defendant: see Commissioner of Police v Ritson (“DVT”) [2023] NSWSC 108. For ease of reference, in these reasons the first defendant will be referred to as the defendant and the second defendant will be referred to as the Privacy Commissioner. Mr Lim with Ms Ryan appeared for the Privacy Commissioner.

At the commencement of the proceedings, the plaintiff tended various emails to and from the defendant related to this appeal. On 6 October 2022, the defendant sent an email responding to an email from the chambers of Fagan J indicating that he had no objection to his Honour making orders in chambers granting an extension of time sought by the plaintiff. The defendant’s email was copied to the solicitor for the plaintiff. The matter was before the Court on 6 December 2022, on which date Yehia J made orders with respect to the amendment of the summons and the extant stay of the orders of the Tribunal: Commissioner of Police v Brendan Ritson (Supreme Court (NSW), Yehia J, 6 December 2022, unrep). Her Honour noted (at [3]) that the defendant had not appeared but was satisfied that he had been given notice of the matter by the plaintiff, and consequently, the matter was determined in his absence.

Subsequent to her Honour’s decision, emails were sent by the plaintiff to the defendant dated 6 and 9 December 2022 respectively, the first setting out the orders made by her Honour and the second providing a copy of her Honour’s reasons. On 8 February 2023, the plaintiff’s solicitor again wrote to the defendant by email, referring to the Privacy Commissioner’s motion seeking leave to intervene, which was listed for 14 February 2023 at 9:00 am. The email asked if the defendant would consent to the adjournment of that motion to 10:00 am in order for the motion to commence at the same time as the hearing of the summons seeking leave to appeal. There was no response from the defendant. Each of the emails were sent to the email address used by the defendant in his email to Fagan J’s chambers, which was the address that had been used by the defendant in the course of proceedings.

In the circumstances set out above, I was satisfied that the defendant had been provided with adequate notice of the proceedings.

In the proceedings before the Tribunal and the Appeal Panel, the defendant was identified as DVT. This was in accordance with orders made pursuant to s 64(1)(a) and s 64(1)(c) of the CAT Act prohibiting the disclosure of the name of the defendant (the then applicant), the publication of evidence given in the proceedings, or documents lodged with the Tribunal which identified the defendant.

No similar order was sought in these proceedings. The proceedings were instituted using the defendant’s name. While he did not attend at the hearing of the appeal, he communicated with the Court prior to the hearing. He did not raise, at any stage, any issue with his having been named in the initiating process. The test for an order prohibiting the publication of the name of an applicant before the Tribunal, and of the evidence given in the proceedings, is the "desirability” of such orders being made: CAT Act, s 64(1). This is to be contrasted with the test of necessity under the Court Suppression and Non-Publication Orders Act 2010 (NSW). It might also be noted that the non-publication orders made by the Tribunal appear to be the result of the application of the Tribunal’s guidelines in relation to proceedings of the nature of those brought by the defendant rather than being based on any specific concerns: see Administrative and Equal Opportunity Division Guideline Occupational Division Guideline at [17(a)]. Even if this is not the case, no basis has been established for the making of a non-publication order with respect to the proceedings in this Court.

It is unnecessary for the purposes of this application to set out the history in full. The following is sufficient. The defendant was an employee of the New South Wales Police Force (NSWPF). At some point, the defendant was discharged from the NSWPF. In November 2011, a deed of release was executed by the defendant and the NSWPF with respect to various matters, including workers compensation claims, complaints under the Police Act 1900 (NSW), and requests under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) and the PPIP Act. Some years later, between May 2017 and June 2018, the defendant sent five emails (Emails 1 to 5) to the NSWPF seeking access to information pursuant to s 14 of the PPIP Act. The emails were in the following terms:

The defendant sent a further request for information by email in December 2018 (Email 6) in the following terms:

Section 14 of the PPIP required the NSWPF to provide the defendant with his “personal information” held by the NSWPF “without excessive delay or expense”. As this protracted litigation would suggest, that apparent simplicity belies the complexities of the legislation.

On 15 January 2019, having received no response, the defendant applied for an internal review to be conducted by the NSWPF, based on the asserted breach of s 14 of the PPIP Act, in relation to the requests in Emails 1 to 5. This is a procedure provided for by s 53 of the PPIP Act. On 28 March 2019, the NSWPF determined the internal review application and found there had been no breach of s 14 of the PPIP Act in relation to Emails 1 to 5. In April 2019, the defendant made a separate application for an internal review with respect to Email 6. On 26 June 2019, the plaintiff’s internal review found there had been no breach of s 14 of the PPIP Act with respect to Email 6.

On 24 April 2019, the defendant filed an application for administrative review in the Tribunal contending that the NSWPF had breached s 14 of the PPIP Act in respect of Emails 1 to 5, the subject of the first internal review application. On 23 July 2019, a further application was made in respect of the conduct the subject of the second internal review application; that is, in respect of Email 6. On 27 August 2019, the proceedings were consolidated. Subsequently, on 21 May 2020, with the consent of the parties, the Tribunal made orders for the separate determination of the questions of breach and of (any consequent) remedies.

The breach hearing took place before the Tribunal on 2 November 2020. On 30 April 2021, the Tribunal delivered its Breach Decision. The Tribunal found that the plaintiff breached s 14 of the PPIP Act in respect of Emails 1 to 5.

On 8 October 2021, the Tribunal delivered its Remedies Decision. Relevantly for present purposes, an order was made requiring the plaintiff to perform Information Protection Principle 7 (IPP 7) (the obligation contained in s 14 of the PPIP Act, explained in more detail below) by providing the defendant with all of his personal information requested in Emails 1 to 6.

On 5 November 2021, the plaintiff appealed to the Appeal Panel against the determination of the Tribunal. Before the Appeal Panel, the plaintiff advanced a number of grounds of appeal, including, in substance, the grounds now sought to be advanced. A hearing before the Appeal Panel took place on 18 March 2022, and the Appeal Panel’s judgment dismissing the appeal was delivered on 15 July 2022.

It will be necessary to return to the internal review and the proceedings before the Tribunal and the Appeal Panel in due course.

On the present appeal, the plaintiff relied upon the affidavits of Paul Bush of 11 August 2022 and 15 November 2022. Those affidavits post-date the decision of the Appeal Panel. Reliance on those affidavits was limited to the question of leave. Additionally, the plaintiff relied upon the affidavit of Andrew James of 14 January 2022 (the James Affidavit). The plaintiff had sought to tender that affidavit before the Appeal Panel as fresh evidence on the appeal from the decision of the Tribunal at first instance. Ground 3 of this appeal complains of error with respect to the Appeal Panel’s refusal to admit the James Affidavit. The James Affidavit was considered by the Appeal Panel in deciding to refuse its admission. It is consequently relevant to this appeal beyond the question of leave.

As noted above, the plaintiff’s application is brought pursuant to s 83(1) of the CAT Act. Section 83, relevantly provides:

The appeal to this Court is confined to the decision of the Appeal Panel rather than that of the Tribunal: CAT Act, ss 82 and 83; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10] per Basten JA, Gleeson and Leeming JJA agreeing at [37] and [61] respectively.

The first barrier to any such appeal is that the plaintiff requires leave. The principles to be applied in determining whether leave should be granted were set out in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Be Financial”) at [32]-[39] (per Basten JA, Tobias AJA agreeing at [44]). Those principles have been recognised as applying to applications of the present kind: Concoran v Far [2019] NSWSC 1284 at [24] (per McCallum J) and the cases there cited.

The plaintiff must demonstrate something more than that the decision of the Appeal Panel was arguably wrong. Here, the plaintiff contends that, apart from having at least an arguable case, the present matter raises issues of principle and questions of general public importance: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (per Campbell JA, Young and Meagher JJA agreeing) approved in Be Financial at [33]. The Privacy Commissioner supported the grant of leave. Both the plaintiff and the Privacy Commissioner urged the Court to consider and resolve a question as to whether the discretion granted by s 60(1)(a) of the GIPA Act to refuse to deal with an application in circumstances where “dealing with the application would require an unreasonable and substantial diversion of the agency’s resources”, is “picked up” by the PPIP Act so as to apply to applications for personal information under that Act. This was submitted to be an important question of principle.

The second barrier is that any appeal is limited to an appeal “on a question of law”. That the expression “on a question of law” is a common enough formulation is of less assistance than might be expected. A helpful analysis is to be found in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220. Bathurst CJ and Bell P (as the Chief Justice then was) observed (at [40]) that “the expression ‘question(s) of law’ and cognate expressions are not deployed uniformly in the statute books” and that “there is no universal meaning or understanding of what is a question of law.” Their Honours continued stating that the meaning to be given to the expression in a particular case is “ultimately to be derived from its statutory context and by reference to the purpose of the provision and statute in which it appears”.

The present formulation can be contrasted with expressions such as “a question of law alone”, which has been described as a question of law that can be stated and considered separately from the facts with which it is connected in the particular case and will thus exclude questions of mixed fact of law: Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 287; R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 1999 at [25]. By contrast, a “question of law” may include a question of mixed fact and law: Aboriginal Land Council (NSW) v Minister Administering Crown Lands Act (2007) 157 LGERA 18; [2007] NSWCA 281 at [8].

Notably, the present provision relates to an appeal against a decision made by the Appeal Panel, which, in turn, was hearing an appeal from the decision of the Tribunal reviewing a decision of the NSWPF (in its own internal review). For present purposes, the significance is that the provision is sought to be applied to a determination by the Appeal Panel that itself necessarily required the relevant facts to be found, to which law was applied, in order to arrive at its decision: see Orr v Cobar at [47]. This is to be contrasted with referrals of questions of law at an early stage where the facts may not have been found.

Consideration was given to the ambit of the expression “on a question of law” in the CAT Act in Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353. McDougall J (with whom Beazley P and Simpson JA agreed) observed (at [61]) that the statutory scheme created by the CAT Act evinces “a clear intention that questions of fact that require to be resolved, for the purpose of deciding disputes within the jurisdiction of the Tribunal, ought be dealt with by specialist members applying their expertise”. His Honour, in a case involving repudiation of a contract, found (at [65]) that if the primary facts found are capable of justifying the Appeal Panel’s ultimate finding, namely, in that case, that the owners repudiated the contract, there would be no error of law. Similarly, the converse would also be true. If the primary facts found are incapable of justifying the legal finding or are “necessarily outside” the legal construction, there would be an error of law. In other words, that question of mixed fact and law would be a question of law within the provision.

In the circumstances of the present case, it is necessary to consider the plaintiff’s grounds in order to determine whether a question of law is raised and the merits of those grounds to determine the grant of leave. That need for detailed consideration will not be the case in every application for leave, particularly given the practical effect of this course will be to subvert the requirement for leave to be granted.

The plaintiff seeks that order 2 made by the Appeal Panel be set aside and the proceedings be remitted to the Tribunal to be determined according to law, including with the hearing of further evidence. Order 2 made by the Appeal Panel gave effect to the order made by the Tribunal at first instance that:

The provision of 30 days to provide the material was modified by the Appeal Panel to refer to the date of the Appeal Panel’s decision. The reference to Emails 1 to 6 was a reference to the emails referred to above by which the defendant sought his personal information from the plaintiff. IPP 7 is a reference to s 14 of the PPIP Act. Part 2 of that Act is titled “Information Protection Principles”, and in Division 1 of that Part, ss 8 to 19 set out a number of principles (discussed in more detail below). The seventh of these principles (IPP 7), contained in s 14, as noted earlier, imposes an obligation on a public sector agency (as defined) to provide, upon request, a person access to their personal information “without excessive delay or expense”.

Thus, the relief sought by the plaintiff is to overturn the order requiring her to provide the defendant with his personal information sought in the six emails. The grounds on which that relief is sought are set out below.

The plaintiff relied on the following grounds of appeal:

On 15 February 2023, pursuant to leave granted at the hearing of this matter, the plaintiff filed a draft further amended summons, which seeks to amend ground 2 to read as follows (with the proposed amendment underlined):

Before embarking on a review of the proceedings in the Tribunal (both at first instance and before the Appeal Panel), it is convenient to say something about the PPIP Act, the GIPA Act, and the relationship between them.

The following overview of the PPIP Act is not comprehensive but is, I hope, sufficient to provide an understanding of the proceedings before the Tribunal.

The PPIP Act is a legislative response to concerns which arise from the collection, retention, and dissemination of personal information by public sector agencies. The long title to the PPIP Act is:

Part 1 of the PPIP Act, titled “Preliminary”, provides, in s 3, various definitions of terms used in the Act. The terms “law enforcement agency” and “public sector agency” are both defined so as to include the NSWPF. “Personal information” is defined in s 4. Section 5, which is of present significance, provides as follows:

Part 2 of the PPIP Act is titled “Information protection principles”. Division 1 of Part 2 is titled “Principles” and contains ss 8 to 19. It is understood these are commonly referred to as “Information Protection Principles” (or IPPs) 1 to 12. Sections 8 to 12 (IPPs 1 to 5) generally deal with the obligations of public sector agencies with respect to the collection and retention of information. Those principles are directed to ensuring that information is collected for a lawful purpose; collected directly from the relevant individual; that that individual is aware that the information is being collected, the purpose of collection, and the intended recipients of the information, together with the person’s rights with respect to the information; the maintenance of accuracy; proportionality with respect to the time for which information is kept, together with the protection and safe disposal of the information. Sections 16 to 19 (IPPs 9 to 12) provide a number of things a public sector agency must not do with respect to information, including conditions as to the use of information.

Sections 13 to 15 of the PPIP Act, by contrast, deal with things that a public sector agency must do to facilitate a person’s access to their personal information, including taking steps to allow any person to ascertain whether an agency holds personal information of the person and its nature and purpose, and to ensure that it is amended to ensure it is accurate, relevant, and up-to-date, having regard to the purpose for which it was collected. As already observed, of present relevance is s 14 (IPP 7), which is set out in full below:

Division 2, Part 2 of the PPIP Act is titled “General provisions relating to principles”. Section 20(1) provides that the IPPs apply to public sector agencies (although this would appear to be clear from the principles themselves). The remaining sub-sections of s 20 were not suggested to be presently relevant, with the exception of s 20(5), which has some importance in this application. It provides:

Division 2, Part 3 of the PPIP Act is titled “Specific exemptions from principles”. Within the Division, ss 23 to 26 and ss 27A to 28 provide for a number of exemptions to the IPPs, none of which are presently relevant. Section 24(1), which provides an exemption from compliance with various IPPs, including IPP 7, where compliance might detrimentally affect the agency’s complaint-handling functions, was raised before the Tribunal based on the submission with respect to maintaining the efficacy of the deed of release between the NSWPF and the defendant but this does not arise on the application before me. Of present importance is s 27, which provides:

Thus, with respect to the present matter, it can be observed that the plaintiff was not required to comply with s 14 (IPP 7) other than to the extent that the information sought was in connection with the exercise of the NSWPF’s “administrative and educative functions” (and subject to any other potential exclusions).

Part 3 of the PPIP Act is titled “Privacy codes of practice and management plans” and contains provisions with respect to those matters, the details of which are not presently relevant. Part 4 provides for the appointment and the role of a “Privacy Commissioner”.

Part 5 of the PPIP Act is titled “Review of certain conduct”. It applies, as is presently relevant, to conduct, including alleged conduct, by a public sector agency in contravention of an IPP that applies to the agency. It also applies to a contravention by a public sector agency of a privacy code of practice applicable to the agency and disclosure by a public sector agency of personal information kept in a public register.

Section 53 of the PPIP Act, contained within Part 5, entitles a person who is aggrieved by the conduct of a public sector agency to an internal review by that public sector agency. In the present case, the defendant sought a review under this section with respect to Emails 1 to 5 and separately sought a review with respect to Email 6. Section 55 allows a person who is not satisfied with the findings or action taken on an internal review under s 53, to apply to the Tribunal under the Administrative Decisions Review Act 1997 (NSW) for a review of “the conduct that was the subject of the application under section 53”. In the present case, the defendant applied to the Tribunal pursuant to s 55 for an administrative review of the NSWPF’s internal reviews under s 53.

The remaining parts of the PPIP Act, Parts 6, 7, 7A, and 8, are respectively titled “Public registers”, “Information and Privacy Advisory Committee”, “Reports by Privacy Commissioner”, and “Miscellaneous”. Other than s 66B, which sets out the circumstances in which a public sector agency may charge a fee and is discussed below, these provisions are not presently relevant.

The long title to the GIPA Act is:

The provision of access to information under the GIPA Act includes, but, unlike s 14 of the PPIP Act, is not limited to the personal information of the applicant. It is to be recalled that s 5 of the PPIP Act, set out above, specifically provides that nothing in that Act affects the operation of the GIPA Act. The defendant, like any other person, could have obtained at least some information from the NSWPF under the GIPA Act. It is convenient at this stage to provide a brief overview of the GIPA Act focusing on presently relevant provisions.

Part 1 of the GIPA Act, titled “Preliminary”, includes s 3, which provides the object of the Act in the following terms:

Section 4 of the GIPA Act provides various definitions. It defines “government information” as “information contained in a record held by an agency”. An “agency” is, in turn, defined in a manner which includes the NSWPF. An “access application” is defined as “an application for access to government information” under the GIPA Act that is “a valid access application” under the GIPA Act. The term “record” (as used in the definition of “government information”) is also defined, though in a manner not presently requiring consideration.

Part 2 of the GIPA Act is titled “Open government information – general principles”. Division 1 of Part 2 is titled “Ways of accessing information”. Within that Division, s 5 provides as follows:

Sections 6 to 8 of the GIPA Act provide for, variously, the mandatory proactive release of certain government information, the authorised proactive release of government information, and the informal release of government information. In each case, the obligation or authorisation is qualified as not to apply where there is an “overriding public interest against disclosure”. Beyond the mandatory proactive release and voluntary release, either proactively or in response to an informal request for information, a key provision of the GIPA Act is s 9, which provides individuals with a right to government information in certain circumstances. Sections 9 and 10 provide:

The concept of an “overriding public interest against disclosure” is contained in Division 2, Part 2 of the GIPA Act, titled “Public interest considerations” (ss 12 to 15). Section 12(1) provides that there is a general public interest in favour of the disclosure of government information, and s 12(2) provides that “[n]othing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.” The note to s 12 includes information that is personal information of the person to whom it is to be disclosed, as a public interest consideration in favour of disclosure.

Section 13 of the GIPA Act provides:

Section 14(1) of the GIPA Act then provides for a conclusive presumption of an overriding public interest against disclosure of certain government information, being that government information described in Sch 1. With respect to other information, the balancing act provided in s 13 is to be performed on the basis of the public interest considerations against disclosure listed in the table to s 14. These (in contrast to s 12(2)), are the exclusive considerations against disclosure: s 14(2).

Part 3 of the GIPA Act deals with “open access information”, which is information required to be made publicly available. Those provisions are not presently relevant.

Part 4 of the GIPA Act is titled “Access applications”. In Division 1, provision is made for the making of “access applications”. There is a formality to the process, including the requirement that a fee be paid as set out in s 41. Section 43 provides that an access application cannot be made for excluded information of an agency. Excluded information of an agency is information related to a function of the agency as set out in Sch 2 of the GIPA Act (see the definition of “excluded information” in Sch 4). The NSWPF is not referred to in Sch 2 (and it was not suggested that the present application sought excluded information). Division 3 of Part 4 is titled “Process for dealing with access applications” and provides the formal obligations of an agency when dealing with an “access application”.

Of relevance here, s 53 concerns the obligations of an agency in dealing with a request and the nature of the search or searches required to be undertaken. Section 53(5) provides that “[a]n agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources”.

Division 4 of Part 4 is titled “Deciding access applications”. Section 57 provides the period within which applications must be decided. Section 58 provides as follows:

Section 60 of the GIPA Act provides for the circumstances in which an agency may refuse to deal with an application. Of particular relevance in this matter is s 60(1)(a), which allows an agency to refuse to deal with an access application if “dealing with the application would require an unreasonable and substantial diversion of the agency’s resources”.

The remaining parts of the GIPA Act, Parts 5 and 6 are respectively titled “Review of decisions” and “Protections and offences”. Other than s 68, which provides for the concept of an “advance deposit”, and s 80, which sets out the “reviewable decisions” for the purposes of the GIPA Act and which are discussed below, these provisions are not presently relevant.

The above discussion of the PPIP Act and the GIPA Act is sufficient to establish the following in respect of the present case:

The contention referred to above with respect to the application of s 60(1)(a) of the GIPA Act to the PPIP Act was central to the application for leave and the subject of detailed submissions from the plaintiff and the Privacy Commissioner.

As noted above, the process began when the defendant sought, through six separate emails, access to his personal information held by the plaintiff. His dissatisfaction led him to seek that a review be conducted by the plaintiff (the internal review pursuant to s 53 of the PPIP Act). His subsequent dissatisfaction with that process led him to seek review in the Tribunal pursuant to s 55 of the PPIP Act. The plaintiff, unhappy with the result of that review, appealed to the Appeal Panel of the Tribunal pursuant to s 80 of the CAT Act. Unhappy with that decision, the plaintiff seeks leave to appeal to this Court. Acknowledging the different nature of the various applications for leave, appeals, and reviews, I am, in effect, dealing with a review of a review of a review of a review.

To add to the malaise, the determination of this application does not turn on a simple analysis of the law applied to findings of fact contained in the decision of the Appeal Panel. Rather, in order to consider the question of any denial of procedural fairness (ground 1), it is necessary to understand, in some detail, what transpired before the Tribunal, which, given the nature of the function being exercised, brings into focus the application to the NSWPF for internal review. If there is anything to be thankful for, there has, at least, been a narrowing of the grounds between the appeal to the Appeal Panel and the application brought before me.

Pursuant to an order by the Tribunal on 21 May 2020, the Tribunal proceedings were initially limited to the question of whether there had been a breach of s 14 of the PPIP Act (IPP 7). This resulted in separate breach and remedies decisions by the Tribunal.

The breach proceedings before the Tribunal were complicated by an issue as to whether the plaintiff could rely on the deed of release that had been executed by the parties on 22 November 2011. For reasons not necessary to canvass, the Tribunal held that the plaintiff could not rely on that deed. This aspect of the Tribunal’s decision is not in issue in this appeal.

It will be recalled that the plaintiff now complains of error on the part of the Appeal Panel in rejecting her complaint that she was denied procedural fairness by the Tribunal. The process undertaken before the Tribunal was described in the Breach Decision as follows (at [31]-[34]):

The plaintiff, before the Tribunal, accepted the following propositions, subsequently summarised in the Breach Decision (at [48]):

I pause to note that, clearly, the plaintiff had the opportunity to put evidence before the Tribunal and make submissions. Her complaint that she was denied procedural fairness does not dispute this.

In her written submissions on breach, the plaintiff, by way of introduction, put her case as follows:

In her written submissions on breach, under a separate heading, the plaintiff referred to the scope of the Tribunal’s jurisdiction and set out various statements of principle before submitting:

For clarity, the point sought to be made was that, despite the defendant having not received access to his personal information, his complaint with respect to which the internal review was sought was not a complaint that he had been denied access to his personal information, but rather, was confined to a complaint of excessive delay in providing access to that information.

The plaintiff’s submissions to the Tribunal immediately following the submissions extracted above addressed the question of excessive delay. The submissions relied on the plaintiff’s lack of awareness of the requests; an absence of any obligation to respond, at least in relation to some of the requests; and, in relation to Email 5, that a response had been provided. Elaborating on the second of these matters, under the heading “Second limb - no obligation to comply with requests”, the plaintiff submitted that “to the extent that the Tribunal considers that NSWPF should have been aware of the [defendant’s] requests in Emails 1, 2, and 3, NSWPF was [in] any case relieved of the obligation to respond to those requests arising under [s] 14 of the PPIP Act”. A number of bases were put forward in support of this submission, discussed further below in the context of ground 1 of the appeal.

The defendant (who was representing himself), in his submissions on breach, accepted that the scope of the Tribunal’s jurisdiction was set out in [11] to [16] of the plaintiff’s submissions on breach. To the extent that that involved acceptance that the Tribunal’s jurisdiction was defined by the terms of the defendant’s application for internal review, being that the plaintiff “failed to provide [him] with access to [his] personal information without excessive delay”, it was uncontroversial. Paragraph 16 of the plaintiff’s submissions did however, go further, asserting that the terms of the application for internal review were such that the internal reviewer, in dealing with the substantive complaint, went outside the terms of the review and that, by contrast, confined by the terms of the review, the Tribunal was “not able to make orders that address the substantive outcomes each request”. While appearing to accept this, the defendant, however, also noted, under the heading “Remedies”, that the submissions were limited to the question of breach, effectively leaving open the question of what remedies were available or appropriate. This will be discussed in more detail below.

A hearing took place, including cross-examination by the defendant of a witness for the plaintiff on the subject of the plaintiff’s email system. On this present application, the plaintiff did not point to anything in the course of submissions by which the Tribunal expressly misled or otherwise positively conducted itself in a manner that resulted in the plaintiff being denied procedural fairness at the breach hearing.

In the course of giving reasons in the Breach Decision, the Tribunal summarised the decision of the plaintiff’s internal reviewer as follows (at [10]):

In relation to the internal review decision regarding Email 6, the Tribunal recounted in the Breach Decision (at [11]-[12]):

In the Breach Decision, the Tribunal (at [19]) acknowledged the limitation on the scope of its review, and in particular that it was limited to “reviewing the scope of the conduct of concern [that was] the subject of the original application(s) for the internal review”, referring to Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 at [7]; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [17]; CEU v University of Technology Sydney [2018] NSWCATAD 13 at [76].

The Tribunal (at [55]) referred to the obligation on the plaintiff to have in place procedures in order to ensure that, when a personal information access request is made under IPP 7, the request will be dealt with “without excessive delay”. The Tribunal continued (at [60]-[63]):

The Tribunal, in the Breach Decision, made the following findings with respect to each of the emails (at [65]):

Consistent with the above, the Tribunal ruled that the plaintiff had breached s 14 of the PPIP Act (IPP 7) with respect to the access requests made by the defendant in Emails 1 to 5. Orders were made with respect to the filing and service of submissions by the defendant with respect to remedies and submissions in reply by the plaintiff.

The defendant, in compliance with the orders, provided submissions dated 17 May 2021. By way of remedy, the defendant sought that the plaintiff do various things, including the provision of a personal undertaking from the then NSWPF Commissioner that the “conduct of concern the subject of this proceeding will not occur again”, together with a “unreserved formal apology to the [defendant]” directed to various matters. In addition to this, the defendant sought that the plaintiff take various administrative measures and publish statements in various media, not identifying the defendant, with respect to what had occurred. Importantly for present purposes, the defendant sought an order that:

The plaintiff, in her written submissions on remedies, acknowledged that she was responding to a finding that she had, with respect to Emails 1 to 5, “failed to provide [the defendant] with access to the personal information requested without excessive delay” (referring to the Breach Decision at [7]). The plaintiff again raised the issue of the scope of the Tribunal’s jurisdiction based on the limits of the application for internal review and the implications for the orders that it could make. The plaintiff submitted:

As submitted by the plaintiff (at [4] of her submissions, extracted above), the defendant had, in his breach submissions, accepted that the scope of the Tribunal’s jurisdiction was set out in [11] to [16] of the plaintiff’s breach submissions. Those submissions, that is, the plaintiff’s breach submissions, included (at [16] of the submissions) a submission that the Tribunal did not have jurisdiction to “make orders that address the substantive outcomes of each request”. While, as I have discussed above, the defendant indicated an acceptance of this paragraph of the plaintiff’s submissions, little can be made of this. The defendant was self-represented. Importantly, the defendant, later in his breach submissions, under the heading “Remedies”, noted that the submissions were limited to the question of breach. Subsequently, in his submissions on remedies, the defendant sought an order that the plaintiff perform IPP 7. The plaintiff, in her submissions in reply on breach, had also reserved her position on appropriate remedies in the event that a breach was found.

In her submissions in reply on remedies, the plaintiff, beyond asserting the defendant had accepted the plaintiff’s position, did (at [5]-[6] of her submissions, set out above at [82]) stress that her case had been conducted on the basis that the Tribunal’s jurisdiction was limited to the question of excessive delay. The plaintiff, in her remedies submissions, also sought to be heard “as to any orders under consideration by the Tribunal in addition to those sought by the [defendant]”. The plaintiff had, of course, been heard on the orders sought by the defendant. Among the orders explicitly sought by the defendant was the order at the centre of these proceedings – the order for performance of IPP7.

After the filing of the above submissions, on 10 June 2021, a directions hearing was held by telephone, in the course of which the parties were heard as to whether an oral hearing with respect to remedies could be dispensed with: see CAT Act, s 50. While the plaintiff sought an oral hearing, the Tribunal, on 15 June 2021, ordered that an oral hearing with respect to remedies be dispensed with and that the determination would be made “on the papers”. In reasons given later, the Tribunal referred to the “guiding principle” of facilitating the “just, quick and cheap resolution of the real issues in the proceedings”: DVT v Commissioner of Police (No 2) [2021] NSWCATAD 195 at [9]. Orders were made for further written submissions.

In the further submissions on remedies, the plaintiff, under the heading “Performance of IPP 7”, reiterated her position. The defendant submitted that the question of his entitlement to the information was before the Tribunal and had been determined against the plaintiff.

To this point, the Tribunal had given no indication to the plaintiff that her submission as to the limits of the Tribunal’s jurisdiction might not be accepted. Neither, however, had the Tribunal given any indication to either party that the order sought by the defendant that the plaintiff be required to perform IPP 7 was not on the table.

On 8 October 2021, the Tribunal gave its Remedies Decision. The Tribunal noted that the plaintiff was found to have breached IPP 7 in relation to Emails 1 to 5 and that, while there had been no breach in relation to Email 6, the plaintiff had since received notice of the request with the defendant’s application for internal review on 26 April 2019. The Tribunal noted that the defendant had not received any of his personal information as requested in the six emails. The Tribunal (at [7]) identified the conduct of concern as:

The Tribunal noted the plaintiff’s argument that the Tribunal’s jurisdiction was limited on the basis that the defendant’s entitlement to the information was not in issue and that, consequently, no evidence was adduced by the plaintiff as to the question of that entitlement. The Tribunal rejected this argument. It found, in the Remedies Decision (at [17]), that the defendant’s review applications were not limited to “excessive delay” but included the failure to provide the information.

This finding is, to my mind, entirely unsurprising. The defendant’s application for internal review complained that the “NSWPF has failed to provide [him] with access to [his] personal information without excessive delay and has contravened section 14 of the [PPIP Act]”. That complaint, quite obviously, takes its language from s 14 of the PPIP Act. The section imposed two obligations on the plaintiff. The first was to provide the defendant with access to his personal information, and the second was to do so “without excessive delay or expense”. The defendant’s primary objective was to obtain his information. He had an interest in achieving that primary objective without excessive delay. To construe his complaint as being limited to the delay is to take an unrealistic and somewhat idiosyncratic approach to the words used. A complaint that there had been undue delay might be made if the documents had already been provided. In circumstances where no documents had been provided, it would be surprising to make a complaint limited to the delay. The complaint is more naturally read as a compendious complaint of a failure to provide the requested information without delay. To the extent that there was a complaint about the delay, it was a complaint which was necessarily encompassed within the complaint as to not having been provided with the information he had requested at all.

The Tribunal found in the Remedies Decision (at [16(2)]):

And later (at [18]-[19]):

The Tribunal made the following orders:

The plaintiff appealed to the Appeal Panel of the Tribunal against the decision of the Tribunal. The Appeal Panel noted that there was no information before it as to whether the defendant had obtained access to the personal information identified in the orders of 3 December 2021. Various grounds were relied on before the Appeal Panel, the majority of which are not presently relevant. Included amongst the grounds was a complaint that the Tribunal had mistaken its jurisdiction as that jurisdiction was limited to the question of excessive delay. That argument was rejected by the Appeal Panel for reasons essentially the same as those I have expressed above in the context of the same argument.

The appeal grounds were divided into grounds directed to the Breach Decision and grounds directed to the Remedies Decision. Ground 10 of the appeal against the Breach Decision was summarised by the Appeal Panel in the Appeal Panel Decision as follows (at [34(10)]):

Ground 5 of the appeal against the Remedies Decision was summarised by the Appeal Panel in the Appeal Panel Decision as follows (at [38]):

Needless to say, all of the plaintiff’s grounds, including the above, failed. Of relevance is the rejection of the plaintiff’s argument that the Tribunal’s jurisdiction was limited to the question of excessive delay, with the result that the Appeal Panel found that the Tribunal had jurisdiction to deal with the matter as a review of a complaint that the plaintiff had failed to provide the defendant with his personal information without excessive delay, or at all. In this regard, the Appeal Panel noted in its decision (at [123]) that the plaintiff’s attempt to rely on the deed was inconsistent with the submission that the proceedings did not extend to the issue of entitlement.

The Appeal Panel found (at [125]):

And further (at [136]):

Ground 1 is in the following terms:

The plaintiff submitted that this ground gave rise to the following questions of law:

That the plaintiff was entitled, as was the defendant, to procedural fairness before the Tribunal is not in issue. Thus, the answer to the question of law raised by the plaintiff of whether the Tribunal is required to give an agency a proper opportunity to demonstrate whether or not any lawful excuse or exemption from compliance with s 14 of the PPIP Act applies to the request, is a somewhat facile “yes”. The real question is whether the Appeal Panel erred in law by rejecting the plaintiff’s contention that the plaintiff had not been given such a proper opportunity.

The plaintiff, by this ground, does not raise any issue with respect to the reasons of the Appeal Panel. There is no principle of law which it is said the Appeal Panel misstated or failed to take into account in its reasons. Nor is there any suggestion that the Appeal Panel either took into account an irrelevant consideration or failed to take into account a relevant consideration. Rather, the complaint is that the Appeal Panel erred in failing to find that the plaintiff had been denied procedural fairness by the Tribunal. A denial of procedural fairness amounts to jurisdictional error: Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [5], [17]-[42], [151]-[152], [170]. An appeal on the basis that such an error occurred is an appeal on a question law: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92.

The principles or rules deriving from the obligation to provide procedural fairness “do not have immutably fixed content”: HT v The Queen [2019] HCA 40; (2019) 93 ALJR 1307 at [18]. The obligation will be affected by numerous variables, including the legislative framework, the issues in contention and their significance to the parties, the submissions made, and the conduct of the Tribunal, including any indications given by it. The fairness of the proceedings will be affected by gradations. However, at some point on that line, a threshold will be crossed. The question of whether there has been error based on a denial of procedural fairness is necessarily binary. Thus, while the determination of this ground of appeal has the feel of the plaintiff simply being given a “second go” with respect to an argument which failed before the Appeal Panel, I accept that the Appeal Panel will have erred in law if it failed to find that the Tribunal denied the plaintiff procedural fairness, in circumstances where the Tribunal had denied the plaintiff procedural fairness: see, for example, Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401. Thus understood, it is a question of whether the plaintiff was or was not denied procedural fairness by the Tribunal, not whether it was open for the Appeal Panel to find that there was no such denial.

Consistent with the above, the question is not to be determined in the plaintiff’s favour on the basis that the Tribunal “could have done more”. Rather, the question is to be determined on the basis of whether what was done by the Tribunal was adequate to meet the requirements of procedural fairness in this case. To answer this question, it is necessary to consider the application of the principles of procedural fairness to the circumstances of this case.

In HT v The Queen, the High Court said (at [17]):

In National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296; [1984] HCA 29, Brennan J said (at 326):

In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6, Gleeson CJ said (at [37]):

The procedure before the Tribunal was governed by s 38 of the CAT Act, which provides:

It can be immediately seen that s 38 of the CAT Act, and, in particular, s 38(2) and s 38(5), enshrine principles of natural justice in the Tribunal’s procedures. They operate in addition to any common law procedural fairness requirements: Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401 at [57]. It can also be seen that the Tribunal, in adopting the procedures set out above (at [66]), gave each of the parties an opportunity to be heard. While the plaintiff sought an oral hearing with respect to the remedies determination, no specific complaint has been made with respect to the decision to proceed on the basis of further written submissions. Nor could it. There was no “practical injustice” suggested in the procedure. In particular, there was nothing that could have been put orally that could not have been put in the written submissions. As it was, the further written submissions provided by the plaintiff, at least with respect to this issue, simply reiterated what had been said before.

The content of the requirement to afford natural justice to the parties is not derived solely from the CAT Act. It is also necessary to have regard to the legislation giving rise to the issue before the Tribunal. In this case, this was the PPIP Act and the GIPA Act. Beyond this, it is further relevant to have regard to the context, including the issues arising under that legislation and the importance of the issues between the parties. To borrow from an entirely different context, the procedural fairness to be afforded to a person being sentenced for a criminal offence and seeking a bond may be different as between a case where the court decides to impose a bond but does not hear from the parties as to relatively commonplace conditions attached to the bond, and a case where the court decides to impose a sentence of full-time imprisonment. That, however, is not to say that a court is necessarily bound, in the latter circumstance, to inform a party that their submission is likely to be rejected in favour of a significantly more onerous punishment.

Returning to the present context, as discussed above, subject to exclusions, the defendant had a right to access his personal information as sought in his requests without excessive delay or expense. Any order by the Tribunal requiring the plaintiff to provide the defendant access to the information sought had the potential to require the plaintiff to provide access to information which included information:

The plaintiff was under no obligation to provide such information. Additionally, on the plaintiff’s argument in this Court, she was also entitled to refuse to deal with the application if it “would require an unreasonable and substantial diversion” of the resources of the NSWPF: GIPA Act, s 60(1)(a). Of course, if the plaintiff is wrong in her contention as to the application of s 60(1)(a) of the GIPA Act, this avenue was not available to her. This would, in turn, limit the potential adverse consequences of an order requiring the plaintiff to provide the defendant access to his information to the possibilities set out in the previous paragraph.

While the potential for adverse consequences to accrue to the plaintiff can be acknowledged, in circumstances where each of the parties was given an opportunity to put its case and make such submissions as it chose, the question must be asked as to how it is that the plaintiff was denied procedural fairness? The plaintiff’s answer to this question lies in the conduct of the proceedings.

As set out above (at [70]), in her submissions on breach, the plaintiff sought to narrow the scope of the Tribunal’s jurisdiction. Despite this, while at all times before the Tribunal the plaintiff ostensibly sought to limit the issue for resolution to “excessive delay”, as noted by the Appeal Panel, submissions were made by the plaintiff which appeared to go beyond this. The “second limb” of the plaintiff’s argument, as she called it, albeit framed as a reason why there was no excessive delay, was that there was no obligation to comply with the requests. In this regard, the plaintiff submitted before the Tribunal:

Contentions (a), (b), and (c) above relate to the deed . (In respect of contention (c), the submission was that as the defendant’s requests were caught by the deed, compliance would subvert the deed and undermine the future capacity of the plaintiff to conclusively resolve disputes by means of private settlement.)

With respect to contention (d), the plaintiff submitted that at least some of the information caught by Email 1 was exempt from production on the basis that it went beyond the “administrative or educative functions” of the NSWPF and was consequently excluded by s 27 of the PPIP Act. The plaintiff, however, accepted that at least part of the information in Email 1 was within the “administrative or executive functions” of the NSWPF and was therefore not caught by the s 27 exclusion. The plaintiff, in this regard, submitted that each document would need to be individually considered and that that determination was potentially open to challenge. The submission was made that the plaintiff “does not consider that is a practically viable course of action, (insofar as it now bears on the question of excessive delay), and may also constitute an unreasonable and substantial diversion of resources within the meaning of s 53(5) of the GIPA Act”. The reference to “insofar as it now bears on the question of excessive delay”, sought to reinforce the point that the plaintiff was dealing only with excessive delay and not to the substantive issue of entitlement.

It was the plaintiff’s contention at the breach proceedings that she was, consequently, at least with respect to Email 1, relieved of the obligation to provide the information by s 53(5) of the GIPA Act, which she submitted applied by operation of s 20(5) of the PPIP Act. Section 53(5) of the GIPA Act is a provision in similar terms to s 60(1)(a) but qualifies the obligation to undertake searches when dealing with an access application, as opposed to a basis on which an agency may refuse to deal with an access application. The submission in this Court, discussed in more detail below, was that the relevant limitation on the plaintiff’s obligation is in s 60(1)(a) of the GIPA Act.

As set out above (at [79]), the Tribunal found that IPP 7 had been breached with respect to Emails 1 to 5. Having lost her argument on breach, on remedies, as set out above (at [82]), the plaintiff submitted she had conducted her case on the question of “excessive delay” and that no evidence had been adduced going to the question of entitlement, “as it would have been had entitlement been in issue”. The submission indicated that the evidence “would have included, but not been limited to, the applicable public interest considerations against disclosure” and “the diversion of resources required to answer the requests”. The relevance of evidence going to the diversion of resources is obviously dependent on the applicability of s 53(5), or as now argued, s 60(1)(a) of the GIPA Act. I propose to deal with the question of procedural fairness on the assumption that s 60(1)(a) did apply before considering whether that assumption is correct.

As earlier indicated, the plaintiff, on this appeal, accepted that there had been nothing positively said by the Tribunal in the breach proceedings to indicate to the plaintiff that the issue was limited to a question of excessive delay, as the plaintiff sought to establish. It was not, in the circumstances, open to the plaintiff, in the breach proceedings, to assume that her argument seeking to limit the proceedings would be accepted and then complain that things would have been done differently if it was not. Indeed, it was forensically unwise to assume it would be accepted.

Further to the above, the Tribunal’s decision on breach did not bring the proceedings before it to an end. The Tribunal’s reasoning in the Breach Decision (particularly at [61], set out above at [78]) made plain the Tribunal’s view that the defendant was entitled to such information as was not exempt, even if this required some discrimination on the part of the plaintiff to determine what he was entitled to and what he was not. Further, following this, as set out above (at [81]), the defendant, in his submissions on remedies, clearly stated that an order was sought that the plaintiff “perform IPP 7 by providing [him] with access to his personal information the subject of [his] requests in Emails 1-5”. The plaintiff chose to meet these submissions with submissions on remedies that again sought to limit the issue before the Tribunal. But the question of whether the Tribunal could determine the defendant’s entitlement to the information sought was clearly in issue. Any complaint of silence on the part of the Tribunal could not affect this: cf DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [39].

Moreover, as noted above, subsequent to this issue being joined in the remedies submissions, the parties were, on 10 June 2021, before the Tribunal to be heard on the question of whether an oral hearing was required with respect to the question of remedies. The plaintiff had the opportunity at this directions hearing to seek orders for the filing of evidence relevant to the question of remedies and on which she might wish to rely. She did not seek any such orders. While the defendant’s submission that he was entitled to his personal information referred only to Emails 1 to 5, there is no suggestion that the plaintiff would have responded differently had Email 6 also been referred to. No submission has been made in this Court that there should be any differentiation between the requests in the various emails. In the defendant’s further submissions of 2 July 2021, he made plain (again) that his entitlement to access to the information was in issue.

In HT v The Queen, the Court, in a continuation of the passage set out above at [106], said (at [17]):

The plaintiff was made aware of the defendant’s position and had the opportunity to respond to it. Rather than acknowledging this, the plaintiff’s submissions in this Court tended to focus on the obligations of the Tribunal to the exclusion of the obligations of the plaintiff. I accept that, in the remedies submissions, the plaintiff made explicit that she had conducted the litigation in a particular way on a particular basis. It would, of course, have been open to the Tribunal to inform the plaintiff that this would not necessarily be accepted and to have, in that context, invited the plaintiff to put on evidence and make submissions with respect to the defendant’s entitlement to access the information. Whatever the desirability of that course, the question is whether the plaintiff was afforded the minimum requirements of procedural fairness.

In seeking to establish that the minimum requirements had not been met, the plaintiff observed that certain public sector agencies, including the NSWPF, are obliged to withhold certain information under the legislation. It was submitted that the obligation on a public sector agency to exclude, if necessary, certain information “is not only to give effect to private interests but is also to give effect to the balance struck by Parliament in the public interest”. As noted above, the potential consequences for the plaintiff arising out of the legislative framework were relevant to the requirements for procedural fairness. Additionally, I would accept it is relevant that the potential adverse consequences went beyond what might be described as simply adverse consequences to the plaintiff but included the potential for consequences contrary to the public interest, such as the disclosure of information held by the NSWPF outside its administrative functions and educative functions, information it was not in the public interest to disclose (that is, in relation to which there was an overriding public interest against disclosure) and, in relation to s 60(1)(a) of the GIPA Act, the expenditure of public funds. The plaintiff’s submission, based on the foregoing, was that it follows that, “before ordering any remedy requiring access to information, the Tribunal must first, as a matter of procedural fairness, ensure that an agency has had a proper opportunity to demonstrate whether certain information should be excluded or is exempt from being disclosed”. As has been detailed above, the plaintiff had an opportunity to put evidence before the Tribunal with respect to the issues before it. The plaintiff necessarily relies on whether she was given a “proper opportunity”.

While maintaining her submission with respect to the potential consequences of orders against her, the plaintiff accepted that the Tribunal was entitled to regard the plaintiff as an experienced litigant with a consequent understanding of the adversarial process, a matter which, in turn, impacted on what was required on the part of the Tribunal. To this, it might be added, without seeking to detract from the importance of the proceedings before the Tribunal, there was nothing out of the ordinary about the proceedings. Courts and tribunals are required to determine matters of importance to the parties and beyond on a daily basis. While it can be accepted that the subject matter of the proceedings, including the role and responsibilities of the plaintiff, are relevant to the need to provide procedural fairness, there is a countervailing expectation that the plaintiff and her counsel will conduct litigation efficiently and with an understanding that neither party has a right to limit the arguments or control the proceedings.

Further, while the plaintiff sought to contest the matter before the Tribunal on the limited basis of excessive delay, such an approach did not deny that the plaintiff was obliged to deal with the requests at some point and, indeed, without excessive delay. (I cannot accept the alternative which would be that not only was the defendant’s application for internal review limited to excessive delay, but that was his only concern. That is, he had given up his interest in access to his information.) Given this, the practical reality was that the plaintiff could be expected to have considered, or at least be in the process of considering, its response to the substantive requests and consequently in a position to put evidence before the Tribunal with respect to any issues that it considered existed with regards to the defendant’s entitlement to the information sought. (The internal review suggested that this had, in fact, occurred.) The alternative, that the plaintiff was doing nothing to further the requests while resisting the proceedings in the Tribunal by seeking to limit those proceedings to a question of excessive delay, would be inconsistent with her obligations under s 14 of the PPIP Act.

It is also relevant to note that, had the Tribunal invited the plaintiff to put further evidence and submissions before it, the defendant would have been faced with a further requirement to respond. The process would have been further delayed. Having regard to the length of time over which the hearings had already proceeded and the detailed written and oral submissions that had been provided, such a step would have been at odds with the “just, quick and cheap resolution of the proceedings”.

The context is also informed by the nature of the relationship between the parties. The defendant was a former employee of the NSWPF and had been engaged in a dispute with the NSWPF in relation to that employment. Information sought by him was, as a general proposition, more likely to fall within the NSWPF’s administrative functions as opposed to its investigative functions (although this was not necessarily exclusively the case). While the defendant’s relationship with the NSWPF was affected by matters beyond the ordinary relationship of employer and employee (the details of which I will not canvass here), there was nothing in the email requests that obviously suggested the information would compromise the plaintiff’s investigative functions, particularly in circumstances were the defendant was, from his own service, aware of at least some of the internal workings of the NSWPF’s investigatory functions. This last matter would not take information out of s 27(1) of the PPIP Act but would rather operate as a pragmatic factor relevant to the plaintiff’s consideration of whether or not to rely on s 27(1).

There was, between the internal reviews and the Tribunal hearings, ample time for the plaintiff to determine whether she wished to continue to deny the defendant’s entitlement to the requested documents and to present any contention that the defendant was not entitled to access to the information, or some part of it, to the Tribunal. As has been noted above, in addition to denying the existence of excessive delay, the internal review also considered the merits of the requests. The submission that the plaintiff, at the time of the Tribunal hearing, had “not yet had an opportunity” to consider whether there was a basis on which the defendant’s access to the documents could be refused cannot be accepted.

As observed above, submissions for the plaintiff tended to focus on the obligations of the Tribunal to the exclusion of the obligations of the plaintiff. The plaintiff sought to shift the weight of obligation from the plaintiff to the Tribunal on the basis that the plaintiff was responsible for protecting public rather than private interests. While maintaining the submission, the plaintiff accepted that the Tribunal was entitled to regard the plaintiff as an experienced litigant with a consequent understanding of the adversarial process. I have above set out the circumstances relevant to the conduct of that adversarial process. Having regard to those matters, even accepting the availability of s 60(1)(a) of the GIPA Act to the plaintiff, I do not accept that the plaintiff was denied procedural fairness before the Tribunal. It follows that the Appeal Panel did not err in not finding to the contrary.

I have above found that there was no denial of procedural fairness independently of any question of whether s 60(1)(a) of the GIPA Act applied to the defendant’s requests under the PPIP Act. A question arises as to whether, in these circumstances, it is necessary to consider the contentions of the plaintiff and the Privacy Commissioner with respect to the application of s 60(1)(a) of the GIPA Act.

As noted above, the plaintiff submitted before the Tribunal on breach that partial compliance with Email 1 would require consideration of each document caught by the request and consideration of whether each document could be considered to be “within the administrative or educative functions” of the NSWPF and that this was not a “practically viable course of action ... and may also constitute an unreasonable and substantial diversion of resources within the meaning of s 53(5) of the GIPA Act, which is applicable [pursuant] to s 14 of the PPIP Act by way of s 20(5) of the PPIP Act”.

Before the Appeal Panel and before me, the plaintiff argued that s 60(1)(a) of the GIPA Act applied (rather than s 53(5)). (There had been no reliance or even reference to s 60(1)(a) of the GIPA Act before the Tribunal.) Section 53(5) provides that a relevant agency “is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources”. This provision is contained in Division 3 of Part 4 of the GIPA Act. As noted above, Part 4 is titled “Access applications”. Division 3 is titled “Process for dealing with access applications”. Section 60(1)(a) is in very similar terms but appears in Division 4 of Part 4, titled “Deciding access applications”. Section 53 itself is concerned with the obligations of an agency in dealing with a request and the nature of the search or searches required to be undertaken. In oral submissions before me, Senior Counsel for the plaintiff submitted that s 53(5) (presumably having regard to its place in the GIPA Act) is more amenable to being construed as a provision concerned with a matter of procedure referable to the GIPA Act and is consequently not picked up by s 20(5) of the PPIP Act. On the plaintiff’s argument, s 60(1)(a) of the GIPA Act cannot be so construed and accordingly applied to the defendant’s request for information under the PPIP Act.

In submissions in this Court, the plaintiff claimed her submission before the Tribunal raised the application of s 53(5) of the GIPA Act “as a threshold issue”. I have reservations with respect to that submission. It is notable that, despite the appellation sought to be given to the submission by the plaintiff, no evidence was put before the Tribunal as to what resources the plaintiff anticipated would be required to determine the plaintiff’s entitlement to the information caught by the terms of Email 1. The plaintiff nonetheless submits the “unreasonable and substantial diversion of resources” was a relevant consideration, be it through s 53(5) or s 60(1)(a) of the GIPA Act, the issue having been raised by the plaintiff before the Tribunal. I would not give it the significance to the proceedings sought to be given to it by the plaintiff (and the Privacy Commissioner). Indeed, I have determined ground 1 adversely to the plaintiff without the need to consider the question. Nonetheless, as discussed in the context of determining the content to be given to the requirement to afford the plaintiff procedural fairness, I accept that if the unreasonable and substantial diversion of the plaintiff’s resources was a relevant consideration, it was at least capable of informing the content of the obligations of procedural fairness. In this regard, it was capable of informing the extent of any obligation on the Tribunal to alert the plaintiff that she should not assume her submission as to the limit on the Tribunal’s jurisdiction would be accepted. It would at least inform the potential for “practical injustice” to arise from the conduct of the proceedings.

Given these considerations, and in deference to the detailed submissions of the plaintiff and the Privacy Commissioner (who was given leave to appear to argue this issue), despite my view that the plaintiff must fail irrespective of the applicability of s 60(1)(a) of the GIPA Act, I will consider the question.

I am of the view that s 60(1)(a) of the GIPA Act is not picked up by s 20(5) of the PPIP Act, for the reasons that follow.

Section 20(5) of the PPIP Act has been set out above. Section 60 of the GIPA Act provides:

It might be immediately noted that to the extent that s 60(1)(a) of the GIPA Act is now relied upon, there was no suggestion that s 60(4) or s 60(5) were complied with. Of course, as noted above, there was no reference to s 60(1)(a) before the Tribunal, but rather reference only in this context to s 53(5).

Turning to the proper construction of the legislation, the determinative question is whether s 60(1)(a) of the GIPA Act is a provision which imposes a “condition or limitation” such that s 20(5) of the PPIP Act applies that provision to s 14 of the PPIP Act. As s 20(5) of the PPIP Act makes clear by the use of the words “however expressed”, that s 60(1)(a) of the GIPA Act is not expressly labelled as a condition or a limitation does not resolve this question. What needs to be determined is whether s 60(1)(a) of the GIPA Act, in fact, provides a “condition or limitation … with respect to any matter referred to in” s 14 of the PPIP Act.

The provisions in Part 2 of the GIPA Act and the associated concept of an “overriding public interest against disclosure” provide a limit on a person’s entitlement to information under the GIPA Act. A person who has made a valid application under the GIPA Act is not entitled to receive such information. Thus, the provisions in Part 2 operate as a condition or limitation on the provision of information under the GIPA Act. Personal information under the PPIP Act, access to which a person would otherwise be entitled under s 14, may include information which would be subject to an overriding public interest against disclosure under the GIPA Act. Despite the somewhat awkward wording, an overriding public interest against disclosure is a condition or limitation under the GIPA Act with respect to a matter that would otherwise be within the ambit of s 14 of PPIP Act. Consequently, by operation of s 20(5) of the PPIP Act, an application for information pursuant to s 14 of the PPIP Act does not entitle the person to such information: see, for example, EQH v Health Administration Corporation [2021] NSWCATAD 215 at [29].

Section 60(1)(a) of the GIPA Act is of a different nature. It does not provide a condition or limitation with respect to a matter in s 14 of the PPIP Act. Rather, it provides a discretion to a relevant agency to refuse to deal with an access application under the GIPA Act. It is related to the process by which information is obtained under the GIPA Act, not the entitlement to information under that Act. That an application under the GIPA Act may be dealt with in a particular way says nothing with respect to conditions or limitations on the provision of information, at least in the sense that concept is picked up by the PPIP Act. There are a number of indicators in the text which support this conclusion.

The strongest indicator is found in the words of s 60(1) of the GIPA Act itself. In providing that an “agency may refuse to deal with an access application” before setting out various bases on which it may do so, including s 60(1)(a), the provision is concerned with process rather than entitlement. The process with which s 60 is concerned is a process under the GIPA Act which has no connection to the PPIP Act.

The plaintiff did not suggest that the process prescribed by the GIPA Act was picked up or in any way applicable to the PPIP Act. She was right not to do so. The term “access application” used in s 60(1) of the GIPA Act has a particular meaning in that Act. It is defined in s 4 to mean “an application for access to government information under Part 4 that is a valid access application under that Part”. The making of such an application is fundamental to the working of the GIPA Act. It feeds into s 9 of the GIPA Act, set out above, which is central to the GIPA Act’s operation. Section 9 invests in “a person who makes an access application” a “legally enforceable right to be provided with access to the information in accordance with Part 4” of the GIPA Act “unless there is an overriding public interest against disclosure”. It will be recalled an access application means a valid access application.

As set out above, Part 4 of the GIPA Act deals with access applications, including in s 41, which deals with how to make an access application. Section 41(1) provides:

Division 3 of Part 4 of the GIPA Act is titled “Process for dealing with access applications” and again provides a formality with respect to the obligations of an agency on receiving what is, or appears intended to be an access application. The agency’s first obligation is to determine whether the application is “a valid access application” and to notify the applicant accordingly: GIPA Act, s 51(1). Various provisions are then made for dealing with the application or intended application. Division 4 is titled “Deciding access applications”. Section 58 is within this Division and has been set out above. Each of the options by which an agency may “decide” an access application are concerned with the information sought, with the exception of s 58(1)(e). It alone, in providing that an agency may decide an application by “deciding to refuse to deal with the application” and making reference to s 60, is concerned not with information but the application itself.

The formality of the access application is not reflected in the PPIP Act. To obtain information to which a person is entitled under s 14 of the PPIP Act, that person must make a “request”, whereupon the agency must provide the person with access to the information “without excessive delay or expense”.

The contrast in the mechanisms by which information is obtained can be understood in the context of the scope of the respective Acts. As discussed above, the GIPA Act deals with “government information”, which is broadly defined in s 4(1) of the GIPA Act as “information contained in a record held by an agency”. The PPIP Act deals with “personal information”, defined in s 4(1) of the PPIP Act to mean “information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion”, subject to exclusions in s 4(3) of the PPIP Act. Section 14 of the PPIP Act, of course, provides a right not to personal information generally but to the personal information of the person by whom it is sought. As already observed, any information that does not fall within the relatively narrow definition of “personal information” in the PPIP Act may potentially be the subject of a successful application under the GIPA Act, subject to the provisions attaching to such applications, including s 60(1)(a) of the GIPA Act.

It follows from the above that the discretion granted by s 60(1) to refuse to deal with an access application is a discretion directed to the particular process under the GIPA Act and has no application to the PPIP Act.

Further textual indicators within s 60 of the GIPA Act support my conclusion. For example, s 60(1)(c) provides that an agency may refuse to deal with an access application where “the applicant has failed to pay an advance deposit that is payable in connection with the application”. This subsection is plainly concerned with the mechanism for obtaining information. The concept of an “advance deposit” is established in s 68 of the GIPA Act, found in Division 5 of Part 4. In short, the Division provides for processing charges for dealing with access applications and allows an agency to require an advance deposit to be made with respect to that processing charge. While s 60(1) does not deal with the failure to pay an application fee as a basis for refusing to deal with an access application, this is because payment of the fee is a precondition to an application constituting a valid access application, subject to any waiver of that fee. Application fees, processing charges, and advance deposits are generally not provided for under the PPIP Act. The imposition of fees under the PPIP Act is limited with respect to the matters for which fees can be imposed and as to the amount of any such fee: PPIP Act, s 66B. Section 66B provides:

The Privacy and Personal Information Protection Regulation 2019 (NSW) (“the Regulations”) do not presently make any provision for the imposition of fees. Consequently, public sector agencies are not entitled to impose fees for providing information pursuant to a request under s 14 of the PPIP Act or for the making of the request other than as provided by s 66B(1) of the PPIP Act. While it is possible that the Regulations could provide for a fee under the PPIP Act, the reference to an “advance deposit” in s 60(1)(c) of the GIPA Act is specific to the GIPA Act. It was not suggested that the PPIP Act picked up s 60(1)(c) of the GIPA Act with respect to fees currently permitted pursuant to s 66B of the PPIP Act. There is no basis on which to conclude the concept of the “advance deposit” would be picked up with respect to any fee that might be imposed by the Regulations. That s 60(1)(c) of the GIPA Act is not picked up by the PPIP Act somewhat jars with the contention that s 60(1)(a) is nonetheless picked up.

An additional indicator that s 60(1)(a) of the GIPA Act is concerned with dealing with an access application rather than an entitlement to information is found in s 60(3A)(c), which is directed to the determination of any “unreasonable and substantial diversion” of resources in s 60(1)(a). As set out above, among the matters an agency may consider in determining whether an access application would require an unreasonable and substantial diversion of resources, the agency is entitled to consider the decision period under s 57 of the GIPA Act. Section 57(1) provides that an agency must decide an access application and give notice of the decision within 20 working days of receiving the application. Further provision is made by s 57(2) for an extension of this time. Importantly, however, these time periods have no application under the PPIP Act, s 14 making its own provision that there not be “excessive delay”. This is, again, consistent with the conclusion that s 60(1)(a) of the GIPA Act is concerned with the mechanism for access to information under that Act.

It should be noted that s 60(3B) of the GIPA Act includes “the demonstrable importance of the information to the applicant, including whether the information … is personal information to the applicant”. I accept that this provides some support for the contention that s 60(1)(a) is concerned with the provision of “personal information” and an intention that any entitlement to such personal information is restricted to that which can be provided without an unreasonable and substantial diversion of an agency’s resources. However, it should be noted that the fact that information is available under the PPIP Act does not prevent an application under the GIPA Act. The different treatment of applications under the respective acts is a function of the different legislative regimes. Further, the definition of “personal information” in the GIPA Act is wider than that in the PPIP Act, there being a greater number of exclusions from the definition in the PPIP Act: see GIPA Act, Sch 4, cl 4; cf PPIP Act, s 4. The result is that a person seeking their own personal information outside the definition in the PPIP Act will potentially be able to access that information under the GIPA Act. In this case, s 60(3B) of the GIPA Act will have work to do. The presence of s 60(3B), when considered against the other textual considerations to which I have referred, does not affect my conclusion.

It might also be observed that the issue to which s 60(1)(a) of the GIPA Act is directed is addressed by the PPIP Act in its own way, consistent with the general tenor of the PPIP Act to provide a person access to their personal information subject to necessary exclusions for reasons of policy. The requirement in s 14 of the PPIP Act is that information be provided “without excessive delay”. The greater the volume of information sought or the greater the difficulty of extracting the information, the longer the time that will elapse before any delay is considered “excessive”.

Consistent with the above and supporting the construction I prefer, the agencies to which the PPIP Act applies will be aware of their obligations under that Act. As such, it is to be expected that they will be capable of storing information within the definition of personal information under the PPIP Act in a manner such that it is readily retrievable by database searches, including, in the case of an agency such as the NSWPF, searches able to distinguish between records “kept in connection with the exercise of the agency’s administrative and educative functions” or otherwise. Conversely, the breadth of the definition of “government information” under the GIPA Act, and thus the information potentially caught by an access application, does not obviously lend itself to the implementation of systems to enable efficient responses to access applications that might be received. Consequently, the need for provisions such as s 60(1)(a) (and s 53(5)) is obvious in the context of the GIPA Act but far less clear in the case of the PPIP Act. This analysis is additionally consistent with the promotion of the objects of the PPIP Act while not placing undue strain on relevant agencies.

For the reasons I have given above, the plaintiff was not denied procedural fairness before the Tribunal, and the Appeal Panel did not err in rejecting the plaintiff’s argument that it had. To the extent that the plaintiff, before the Tribunal, sought to rely on s 53(5) of the GIPA Act, reliance which transmogrified to reliance on s 60(1)(a) of the GIPA Act, that provision was not available to her. To the extent that the plaintiff wished to rely on any other basis to argue that she was entitled to withhold information, such as the information being held other than in connection with “the exercise of the agency’s administrative and educative functions”, she had the opportunity to do so.

As noted above, pursuant to leave granted at the hearing of this matter, on 15 February 2023, the plaintiff filed a draft further amended summons seeking to amend ground 2 to read as follows (with the proposed amendment underlined):

It is unnecessary to consider the proposed amendment. In its original or amended form, the ground must fail. It can be dealt with briefly. For the reasons given above in relation to ground 1, the Tribunal properly dealt with the defendant’s application for review on the basis that he sought access to his personal information specified in Emails 1 to 6 be provided to him (and, to the extent it was still possible, without excessive delay). As I have indicated, it was for the plaintiff to determine the grounds on which she would resist the application. Whilst she sought to limit the nature of the contest before the Tribunal, she was not entitled to proceed on the basis that she would be successful in this regard. While certainly the Tribunal could have done more to alert her to the prospect that her arguments as to the limits of the Tribunal’s jurisdiction may fail, the plaintiff had no entitlement to such a warning. The situation might have been different if the Tribunal had given the plaintiff a positive indication that her arguments were likely to succeed. In this context, it was not for the Tribunal to positively satisfy itself that the plaintiff had “considered and given effect to” various provisions of the legislation which may have operated to allow her to deny the defendant his personal information.

The above observation has particular resonance in the context of the time which had elapsed between the defendant’s review applications and the Tribunal hearing. As discussed in the context of ground 1, by at least the time of the internal review applications, the plaintiff was aware the defendant sought access to personal information held by her. The time between those applications and the Tribunal hearing was ample to allow the plaintiff to consider the defendant’s entitlements.

The corollary of the plaintiff’s complaint under this ground is that if the Tribunal was not satisfied the plaintiff had considered and given effect to potential limitations or exceptions under the PPIP Act (including those under the GIPA Act), the Tribunal could not proceed with the matter. This is entirely at odds with the defendant’s entitlement to his information “without excessive delay”. Further, the plaintiff’s contention begs the question of what would occur if the matter was adjourned and, on its return, the Tribunal was still not satisfied that the plaintiff had considered and given effect to potentially applicable conditions, limitations, or exemptions. Could the plaintiff effectively permanently stymie the defendant’s attempt to obtain that to which he was entitled? If not, it must be accepted there are necessarily questions of degree involved. The plaintiff has obligations under the PPIP Act and an obligation to be familiar with them. She is also experienced in litigation. Having regard to the opportunity the plaintiff had already had to consider her position, there was no obligation on the Tribunal to satisfy itself as to what had been done by the plaintiff with respect to assessing the defendant’s entitlement to the requested information.

Given the view I have formed, the proposed amendment of the ground is futile. I would therefore refuse leave to amend the ground. Ground 2 is rejected.

The third ground of appeal is:

The plaintiff submitted that this ground gives rise to a question of whether an obligation to give reasons had been enlivened and the consequent question of whether that obligation was met. The plaintiff submitted these were questions of law, referring to Millar v Federal Commissioner of Taxation [2015] FCA 1104; (2015) 67 AAR 490 at [74]-[78] and New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [110]. For the purposes of dealing with the plaintiff’s complaint, I am prepared to accept that ground 3(a) raises a question of law. In relation to ground 3(b), the language of “unreasonable or plainly unjust” is plainly directed to House v The King error [1] in the exercise of discretion.

The principles relevant to the question of whether or not to admit further evidence in an appeal from the Tribunal at first instance to the Appeal Panel were set out in Ros v Commissioner of Police [2020] NSWCATAP 70 at [31]-[35]:

In dealing with this ground, it is convenient to recount the submissions made orally before the Appeal Panel with respect to the admission of the James Affidavit and the responses of the Appeal Panel to those submissions.

The plaintiff, before the Appeal Panel, pointed to the existence of a discretion to admit further evidence in order to “facilitate the avoidance of errors which cannot otherwise be remedied by the application of the conventional appellate procedures”. It was submitted that the James Affidavit demonstrated “a number of errors of law and a smaller number of errors of fact” made by the Tribunal. It was further submitted that the James Affidavit established, by giving some examples, that there was information within the scope of the Email 1 request that was subject to an exemption from IPP 7 and that the Tribunal erred in law by deciding the matter when there was “no evidence before the Tribunal of whether any exemptions applied”. The Deputy President’s immediate response to this submission was (unsurprisingly), “[b]ut, that’s because you chose not to put that evidence on”. The Deputy President’s response highlights the obvious difficulty for the plaintiff in seeking to rely upon the James Affidavit before the Appeal Panel in order to establish an error of law by the Tribunal at first instance.

Counsel’s response to the above exchange was to explain that the reason the plaintiff had not put on evidence was because she understood the scope of the proceedings was limited to the question of excessive delay in responding to the requests. It was submitted, in that context, that the Tribunal ought, as a matter of procedural fairness, to have allowed the plaintiff to put on evidence directed to the question of the defendant’s entitlement to the information sought. That complaint has been dealt with above and is not the subject of the present ground. In relation to this present ground, it was pointed out by the Deputy President that, to the extent that the plaintiff wished to argue that the Tribunal's finding that some information was not exempt was a finding made in the absence of evidence, the plaintiff did not need the James Affidavit to establish this.

Before the Appeal Panel, the plaintiff submitted that the James Affidavit established that the Tribunal ordered the disclosure of information which was subject to an overriding public interest against disclosure and thus, an error of law was established on this basis. Similarly, it was submitted that the Tribunal erred in finding that the plaintiff had not established a lawful basis for non-performance, whereas the James Affidavit established that there had been no consideration of whether there was a lawful basis for non-performance at that time. Both submissions suffered the same flaw. The Tribunal cannot have erred in law on the basis of evidence not before it.

It was additionally submitted by the plaintiff that there were errors of fact to which the James Affidavit was relevant. The plaintiff was, at least as a general proposition, on stronger ground in this regard (although it could not be suggested the Tribunal itself had mistaken the facts). The capacity of the evidence to demonstrate, with the benefit of hindsight, that, had the evidence been provided at first instance, the outcome may have been different, or that, in the absence of the evidence, serious injustice would result, was at least relevant to the exercise of the Appeal Panel’s discretion to admit the James Affidavit.

The plaintiff submitted, before the Appeal Panel, that the Tribunal erred in finding (in the passage set out above at [78]) that the fact that an access request is broad and may consequently catch some exempt information is not “sufficient grounds to deny access to all personal information the subject of the access request”. It was submitted that this was an error of fact because there had “not been any denial of the access requests that were made”. The question of whether there had been a denial of an access request was determinable on the basis of the request and the response or, as was the case here, the lack of response. It might additionally be noted that the internal reviews did deny both excessive delay and the defendant’s entitlement to access the information. It is, nonetheless, convenient to set out the full exchange which followed that submission (noting the references to the “access application” appear to be references to the internal review applications):

In the Appeal Panel’s written reasons, grounds 6 to 10 before the Appeal Panel were grouped together on the basis they were concerned with the scope of the Tribunal’s jurisdiction. In effect, those grounds were sourced in the asserted failure of the Tribunal to properly consider the nature of the internal review application, the related contention that the internal review was a complaint with respect to excessive delay, and the consequent impact of this on the Tribunal’s jurisdiction. Included in these complaints was an asserted denial of procedural fairness as a result of the Tribunal determining the defendant’s entitlement to the requested information without giving the plaintiff the opportunity to adduce evidence addressing the question of any lawful excuse or exemption from compliance with s 14 of the PPIP Act. With respect to this last issue, the Appeal Panel said (at [60]-[61]):

Complaints based on the existence of the deed have fallen away, based on the Tribunal’s rejection of the plaintiff’s reliance on the deed. Complaints in relation to the diversion of the plaintiff’s resources, based on the view expressed above in relation to the non-applicability of s 60(1)(a) of the GIPA Act to the defendant’s requests for information, have also fallen away.

Subsequently, in the context of a ground complaining the Tribunal erred in making the order requiring performance of IPP 7, the Appeal Panel said (at [70]-[72]):

As can be seen, despite the indication given at the hearing (at least by one member of the Appeal Panel) that “reasons will follow in due course”, the discussion of the James Affidavit in the Appeal Panel’s decision indicated that reasons were given orally. It does not, however, follow from this that adequate reasons were not provided. While the plaintiff understandably pointed to the inconsistency, she did not submit that this of itself established inadequacy of reasons.

The existence and content of any obligation to give reasons will be informed by the context of the case: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58]. As noted by the High Court in Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38 (at [42]), “what is considered sufficient in each case does not depend on any rigid formula and will be informed by all the circumstances of the case”. While where reasons are required, it is essential to expose the reasoning for a point of critical contest between the parties (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme at [40]), the extent and content of those reasons will depend on the matters in issue as well as the court or tribunal exercising jurisdiction: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56]; NSW Land and Housing Corporation v Orr at [65]-[77]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270, 272-273.

Here, the reasons for the decision are apparent from the discussion at the hearing and the reasons then given orally by the Deputy President (whose views appear to have been adopted by the Senior Member). The Appeal Panel refused to admit the new evidence firstly on the basis that “an appeal generally does not involve the introduction of late evidence that [was not] considered at first instance”. It is plain that the Deputy President understood that the reason the evidence had not been adduced at first instance was based on the plaintiff’s contention as to the scope of the proceedings before the Tribunal. In this regard, the Deputy President observed that the issue could still be addressed by other submissions. Absent the James Affidavit, it remained open to the plaintiff to make submissions as to the proper scope of the question before the Tribunal. It similarly remained open to the plaintiff to submit that no evidence had been put before the Tribunal as to how the requests might have been properly responded to had they been considered. Finally, it remained open to make submissions to the Appeal Panel based on the form of the requests in the emails and to make submissions raising at least the possibility (rather than the fact) that the requests captured information which the plaintiff was not obliged to provide.

In giving reasons orally, the Deputy President expressed the view that the “fundamental question” was “whether the denial of access includes the fact that no access was provided”. This observation was made in a context where there was no suggestion the plaintiff was entitled to exercise a blanket denial of access to the information sought. The Appeal Panel ultimately accepted that the answer to this question was, as had been found by the Tribunal, that the denial was not just a denial to provide the information without excessive delay, but that the defendant had sought access to his information and it had not been provided at all. The point made by the Deputy President at the hearing was that evidence directed to the plaintiff’s failure to deal with the request did not assist with respect to this question.

It is also relevant to observe that the Appeal Panel understood the general nature of the evidence contained in the James Affidavit. In refusing to admit the affidavit, the Appeal Panel appreciated the affidavit had the potential to establish the existence of an overriding public interest against disclosure or some other basis for exemption with respect to the requested access to information. The reasons made clear the essential basis on which the Appeal Panel declined to admit the evidence. The Appeal Panel’s understanding of the substance of the James Affidavit necessarily informed an understanding of its potential impact before the Tribunal (and the consequent possibility of practical injustice having been occasioned by the Tribunal). It was not necessary, in the circumstances, to go further, as the plaintiff contends, to expressly address any question of whether the James Affidavit would have produced a different result before the Tribunal or whether it would demonstrate that serious injustice would result from the Tribunal’s decision: AMZ v R [2013] NSWCCA 6 at [25]; see also Selvanayagam v University of West Indies [1983] 1 WLR 585 at 587-8.

The plaintiff additionally submitted before me that the Appeal Panel’s rejection of the plaintiff’s contention that there was an “understandable misunderstanding about the scope of the Tribunal’s function at first instance” was not explained by the Appeal Panel. It was the plaintiff’s argument that the existence of an “understandable misunderstanding” at first instance supported the admission of the James Affidavit to remedy the consequent injustice. Clearly, the Appeal Panel did not accept that there had been an “understandable misunderstanding” before the Tribunal. In my view, it is also clear that the Appeal Panel regarded the plaintiff’s approach as one which attempted to limit the issue before the Tribunal, and to then adopt an alternative strategy before the Appeal Panel, the initial strategy having failed. I have, earlier in these reasons, expressed my view as to the merits of the plaintiff’s attempt to limit the scope of the hearing before the Tribunal. The attempt was, as noted by the Tribunal, in the context of the very substantial passage of time between the first email request in April 2017 and the Tribunal proceedings on breach in November 2020. I share the Appeal Panel’s view that, in essence, it was for the plaintiff to determine how she wished to best conduct her case before the Tribunal. The quality of the plaintiff’s argument in this regard additionally informs of the nature of the reasons required.

The Appeal Panel’s reasons for not admitting the James Affidavit, given at the hearing, were, in my view, adequate. That there may have been an intention to elaborate upon these reasons which did not materialise, does not establish the contrary.

Insofar as the plaintiff complains that the decision not to admit the James Affidavit was “unreasonable or plainly unjust”, she points to the content of the affidavit and its capacity to establish the consequences of the order requiring performance of IPP 7. As noted above, the Appeal Panel was aware of the matters to which the affidavit was directed.

I would accept, as the plaintiff submits, that the affidavit was capable of establishing serious consequences for the plaintiff in the event that the Appeal Panel upheld the Tribunal’s decisions. Without seeking to diminish those consequences, equally, they should not be overstated.

The James Affidavit was capable of establishing that some information responsive to the requests was caught by s 27 of the PPIP Act. The purpose behind s 27 of the PPIP Act is obvious. Clearly, there is an interest in the information held by law enforcement agencies, such as the NSWPF, relating to their investigative functions being protected. Release of such information has the potential to prejudice investigations and endanger the safety of the community and individuals, hence the general exemption in the PPIP Act with the carve-out for information held in the agency’s “administrative or educative functions”: PPIP Act, s 27. In the present case, while the James Affidavit was capable of establishing that some information responsive to the requests was caught by s 27 of the PPIP Act, it did not suggest that the information, if released, would prejudice any ongoing investigation or endanger the safety of any individual or the community.

Possibly, the most significant substantive concern raised by the James Affidavit was the prejudice to the NSWPF’s complaint handling and management functions. The James Affidavit notes that information sought by the requests covered information relating to complaints under Part 8A of the Police Act, which the affidavit notes are “particularly sensitive and must be treated confidentially”. The affidavit sets out the reasons why it “is essential to withhold information and evidence obtained and created in connection with a complaint”. The short answer to this concern is that s 4 of the PPIP Act, in defining “personal information”, excludes, by s 4(3)(h), “information about an individual arising out of a complaint made under Part 8A of the Police Act”. Such information was thus not within the order of the Tribunal requiring the plaintiff to provide the defendant access to his “personal information” pursuant to the PPIP Act. Accordingly, this part of the James Affidavit was irrelevant.

Other parts of the affidavit were capable of establishing that some documents caught by the requests contain information subject to legal professional privilege, which the NSWPF did not consider appropriate to waive. Information that would be subject to legal professional privilege (client legal privilege) in legal proceedings is listed in Sch 1, cl 5 of the GIPA Act and is conclusively presumed to be subject to an overriding public interest against disclosure: GIPA, s 14. Without seeking to diminish the general significance of legal professional privilege, in the present matter, nothing beyond the existence of that privilege was raised in the James Affidavit. There was no evidence that proceedings between the parties were ongoing or that any settlement would be prejudiced.

Other bases on which information was said to be exempt was on the basis of cl 1(e) of the table to s 14 of the GIPA Act, namely that disclosure of the information “could reasonably be expected to … reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency”. This is a public interest consideration to be weighed against the public interest in favour of disclosure: GIPA Act, s 13. This consideration was said to apply to information relating to the decision not to award the defendant the National Police Service medal and to the defendant’s application to the Attorney-General for an ex gratia payment in relation to certain legal costs he had incurred. Again, the concerns of the plaintiff are genuine but do not rise above the general concern in relation to such information.

Beyond the above, the concerns raised in the James Affidavit relate to information within the requests covered by the deed of release and the resources required to deal with the requests. As noted above, both issues have fallen away.

Whilst acknowledging the plaintiff’s concerns, they were not the only considerations before the Appeal Panel. Other obvious considerations included the opportunity the plaintiff had had at first instance, together with the period of time which had elapsed since the defendant made his first request in 2017 (and which, despite the position of the plaintiff, the Tribunal found the plaintiff had received at that time). In any event, quite apart from the point at which the first request was made, the plaintiff had been aware of the defendant’s request for information from at least the time of the review applications. To allow the plaintiff to litigate the matter on a different basis would have further added to the delay. In these circumstances, even if a different view may have been available, it cannot be said that the Tribunal’s rejection of the James Affidavit was unreasonably or plainly unjust so as to amount to legal error.

For the reasons given above, I reject ground 3 of the appeal.

Having regard to the nature of the issues raised, including issues of general importance, I would grant the plaintiff leave to appeal. However, for the reasons given above, each of the plaintiff’s grounds must fail, and the appeal must be dismissed. Given the non-appearance of the defendant and the absence of any suggestion that he has incurred any costs, it is not appropriate to make a costs order in his favour. While the Privacy Commissioner intervened and was successful in her opposition to the plaintiff’s construction in relation to the applicability of s 60(1)(a) of the GIPA Act to a request under the PPIP Act, no order for costs was sought.

I make the following orders: