CBL v Sydney Water Corporation [2016] NSWCATAD 287

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CBL v Sydney Water Corporation [2016] NSWCATAD 287 Hearing dates: 25 November 2016 Date of orders: 07 December 2016 Decision date: 07 December 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: 1. Southern Cross University's application to appear and be heard in the proceedings is granted. 2. Southern Cross University's application to be joined as a party to the proceedings is refused. 3. The matter is listed for Case Conference on 16 December 2016 at 3:00pm. Catchwords: JOINDER – application under the Government Information (Public Access) Act 2009 – third party objection to access to information being given – whether third party is a person who could be aggrieved by the Tribunal's decision Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 44, 60 and 80, Sch 3 cl 9 Civil and Administrative Tribunal Rules 2014 (NSW), r 27 Government Information (Public Access) Act 2009, ss 54, 80 and 104 Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Marrickville Council v Botany Council [2015] NSWCATAD 144. Wentworth v New South Wales Bar Association (1992) 176 CLR 239 Category: Procedural and other rulings Parties: CBL (Applicant) Sydney Water Corporation (Respondent) Representation: Applicant (self-represented) S Spargo (Corporate Compliance Manager Sydney Water Corporation) (Respondent) B Atkinson (University Lawyer Southern Cross University) (third party) File Number(s): 1610436 Publication restriction: Nil

REASONS FOR DECISION

Overview 1. Southern Cross University has applied to "appear and be heard" in proceedings under the Government Information (Public Access) Act 2009 (GIPA Act). Those proceedings are between CBL and Sydney Water Corporation. The University is a third party who has objected to CBL being given access to certain information. Sydney Water has no objection to the University appearing. CBL objects. 2. In compliance with s 54 of the GIPA Act, Sydney Water consulted with the University before deciding whether to give CBL access to the information. On each occasion the University objected. Sydney Water did not give CBL access to the information. I am satisfied that the University "could be aggrieved by a decision" of the Tribunal on review: GIPA Act, s 104(3). They have a right to appear and be heard. 3. The University also applied to be joined as a party. The Tribunal may join a person as a party if it considers that the person should be joined: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 44. As the GIPA Act gives third parties a right to be heard, and the University did not make specific submissions as to why it should be given the status of a party, I refuse the University's request to be joined as a party.

Background 1. This matter has a lengthy history beginning with CBL application to Sydney Water under the GIPA Act on 6 March 2013. The decision under review is the most recent decision made on 19 February 2016 not to give CBL access to six documents. Five of those documents are emails with either a final version or a draft version of a report attached. The other document is an email with no attachments. CBL also seeks review of a decision Sydney Water made in July 2016 not to make a new decision despite the Information Commissioner's recommendation that it do so. I make no finding as to whether that decision is a reviewable decision. 2. In line with s 54 of the GIPA Act, Sydney Water says it consulted with the University about CBL's access application. They did so in November 2013 and December 2015. The reason for the consultation was that Sydney Water says that the information relates to an independent investigation the University had commissioned that had nothing to do with Sydney Water. According to Sydney Water, the only reason they hold the information is that an employee of theirs used a work based email account to do work that was unrelated to that person's primary employment. The University has consistently objected to the release of the information.

Third party rights and obligations under the GIPA Act 1. Subject to certain conditions, an agency must consult with a third party before providing access to information: GIPA Act, s 54. The purpose of consultation is to see whether the third party objects to the disclosure of the information and, if so, the reasons for any objection: GIPA Act, s 54(4). The agency is required to take any objection into account in "determining whether there is an overriding public interest against disclosure of government information": GIPA Act, s 54(5). 2. If a third party objects to the release of the information, but the agency decides to release it, the third party may apply to the Tribunal for a review of that decision: GIPA Act, s 80(d). The information is not to be released in the meantime: GIPA Act, s 54(6). If a third party objects to the release of the information and the agency decides not to release it, s 104(3) applies. 3. The full text of s 104 is set out below: 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. (2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14). (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review. 1. This provision is re-enacted in cl 9(4) of Schedule 3 to the NCAT Act. 2. The first issue is whether the University "could be aggrieved by a decision of NCAT": GIPA Act, s 104(3). If so, they have a right to appear and be heard. The second issue is whether the University should be joined as a party under s 44 of the NCAT Act.

Consideration of application to appear and be heard 1. The University says that the information relates to an independent investigation commissioned by them and it has consistently objected to the release of the information. On that basis the University submitted that it has a right under s 104(3) of the GIPA Act to appear and be heard in these proceedings. 2. CBL submitted that there is an "overriding assumption" against parties being joined (and presumably appearing and being heard) because it makes the proceedings "more prolix." There is no such assumption in the legislation. But, when making decisions about practice and procedure, the Tribunal is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36(1). The proceedings will be resolved more quickly if the University does not appear and be heard, but justice requires that the University's application be considered on its merits. 3. CBL also submitted that the University has the onus of establishing that they "could be aggrieved by the decision" but they have not discharged that onus. In particular, they have not substantiated, by proper evidence, their claim that they were consulted by Sydney Water and objected to the release of the information. Ms Atkinson's assertions, on behalf of the University, do not, in CBL's view, constitute proof. Nor does Ms Atkinson's assertion that the University will be adversely affected if the Tribunal decides to release the information, constitute proof. 4. Even if the University has the legal burden of proving that they "could be aggrieved" by the Tribunal's decision, the test is not an onerous one. Since the University has objected to CBL being given access to the documents, and assuming the documents were commissioned by the University, it follows that it could be aggrieved by any decision to release the information. 5. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38. There is no need for the University to provide a statement or affidavit setting out the details of the consultation process or the fact that the University has objected. Those are matters which can be accepted on the basis of the written and oral assertions made by both Sydney Water and the University. For example, in written submissions under the heading "Facts" Ms Atkinson states that; 1. In November 2013 the Respondent consulted southern Cross University ("the University") pursuant to s 54 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) in relation to an application for access to information it had received. The University objected to release of certain information. … 11. In December 2015, the Respondent again consulted with the university pursuant to s 54 of the GIPA Act in relation to the Access Application. The University object to release of certain information. 1. In accepting that oral and written evidence, the Tribunal is not making an assumption that is not supported by evidence: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [54]. 2. Finally, CBL submitted that the University has already had the opportunity to provide its view as to whether the information should be disclosed and there is no need to give the University a further opportunity. The issue is not whether the University has been given an opportunity to express their view. The only issue is whether it "could be aggrieved" by the Tribunal's decision. I am satisfied on the basis of the written and oral evidence provided by Sydney Water and the University, that Sydney Water consulted with the University under s 54 of the GIPA Act and that the University objected to the release of the information. I am also satisfied that the information in the attachments to the emails was commissioned by the University. On that basis they "could be aggrieved" by the Tribunal's decision. The University has a right to appear and be heard in these proceedings. 3. Unless there is an express or implied qualification in a particular statutory context, the High Court has interpreted the phrase "appear and be heard" and similar phrases as giving "a right of full participation" including the right to call evidence: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at [23] (Deane, Dawson, Toohey and Guadron JJ). 4. The role of the Information Commissioner appearing as of right under s 104(2) has been restricted to assisting the Tribunal to make decisions about the applicable law, relevant policies and guidelines and the meaning of the legislation: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [54]. The Information Commissioner's role is not to make submissions as to the merits of the decision.

Joinder as a party 1. The University also applied to be joined as a party but did not provide detailed submissions as to why it should be joined. One negative consequence of joinder is that a party may be liable for costs: NCAT Act, s 60. A positive consequence is that a party may be entitled to appeal: NCAT Act, s 80. 2. The parties to a proceedings for an administrative review include the applicant, the administrator who made the decision, the Attorney General or Minister if he or she intervenes, any other person required to be joined and any person who is joined under s 44: Civil and Administrative Tribunal Rules 2014 (NSW), r 27. 3. Section 44 of the NCAT Act gives the Tribunal a broad discretion to join a party: (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has: (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party. (3) For the avoidance of doubt, the member or members who constituted the Tribunal when it made an internally appealable decision cannot be made parties to an internal appeal against the decision. (4) The following persons may intervene and be heard in proceedings to which they are not already parties: (a) the Attorney General, (b) a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings, (c) any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings. 1. In Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 at [38], the Court of Appeal held that the power of joinder conferred by s 44(1) is to be read in conformity with the power of removal. That means that a person who is a "proper or necessary party" should be joined. The Court went on to hold at [39] and [40], that: 39. A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. … 40. The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. … 1. The Court of Appeal summarised the factors to be taken into account at [57]: 57.In conclusion on this point, whether or not a decision-maker should be an active party, or whether a party ought to be joined, will depend upon the statutory role of the decision-maker, the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case. 1. The Court of Appeal was not considering the specific question that arises in these proceeding which is whether a party should be joined where there is a statutory right to appear and be heard. That question was considered by the Tribunal in In Marrickville Council v Botany Council [2015] NSWCATAD 144. The Tribunal joined Sydney Airport Corporation Limited as a party to proceedings under the GIPA Act. 2. When considering whether to join a party to proceedings, s 44 of the NCAT Act must be read in the light of any rights and obligations of third parties under the enabling legislation. The GIPA Act provides for a party to appear and be heard in proceedings if that party could be aggrieved by the decision. The University has the right to appear and be heard in these proceedings. It made no submissions as to why the Tribunal should exercise its discretion to give it the added status of a party. I decline to exercise that discretion.

Order 1. Southern Cross University's application to appear and be heard in the proceedings is granted. 2. Southern Cross University's application to be joined as a party to the proceedings is refused. 3. The matter is listed for Case Conference on 16 December 2016 at 3:00pm.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 07 December 2016 - added Order 3. 07 June 2017 - Anonymisation of applicant name as per order of tribunal DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2018