Administrative Law Quarterly - December 2023

Agency not required to deal with personal information requests if its resources would be unreasonably and substantially diverted

Commissioner of Police v Ritson [2023] NSWCA 300

The appellant challenged an order that effectively upheld an order made by the Tribunal that required her to provide the first respondent with access to his requested personal information under s.14 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) within 30 days, in circumstances where there had been no evidence or submissions made as to the application of certain exemptions due to a misunderstanding of the scope of the proceedings.

The appellant submitted that the Tribunal’s order was beyond power or legally unreasonable as the PPIP Act required the exemptions to the obligation in s.14 to be given effect. One of the exemptions that could apply was that dealing with the request would involve an unreasonable and substantial diversion of an agency’s resources as that 'condition or limitation' in s.60(1)(a) of the Government Information (Public Access) Act 2009 (GIPA Act) is imported into the PPIP Act through s.20(5) of the PPIP Act.

The first respondent did not participate. The Privacy Commissioner, the second respondent, relevantly submitted that s.60(1)(a) of the GIPA Act was not imported.

The Court held that the Tribunal exceeded its power as it could not order an agency to provide an individual access to their requested personal information under s.55(2)(c) of the PPIP Act without a finding or concession that no exemption under the PPIP Act applied to the obligation in s.14. The Court accepted that s 60(1)(a) of the GIPA Act was imported into the PPIP Act through s.20(5) of the PPIP Act and, interestingly, added that a similar result might have been reached by application of s.25(b) of the PPIP Act.

No breach of privacy from unwanted fine correspondence

Chaouk v Chief Commissioner of State Revenue [2023] NSWCATAD 305

The respondent sent email correspondence, including a penalty reminder notice, to the applicant, who had previously indicated to the respondent that he did not consent to receiving emails from the respondent. The applicant contended this amounted to a breach of privacy and sought administrative review under s.55 of the Privacy and Personal Information Protection Act 1998 (PPIP Act).

The respondent applied to have the proceedings dismissed pursuant to s.55(1)(b) of the Civil and Administrative Tribunal Act 2013 on the basis that they were misconceived and lacking in substance.

The applicant submitted that, as he had withheld consent to receiving emails from the respondent, the sending of email indicated that his personal information was not properly protected in accordance with s.12 of the PPIP Act and that the inclusion of his residential address on a penalty reminder notice that was sent to him by email constituted ‘use’ of that information for a purpose other than that for which it was collected, contrary to s. 17 of the PPIP Act.

The Tribunal found that the applicant’s contentions were misconceived and dismissed the proceedings pursuant to s. 55(1)(b) of the CAT Act.

Joinder of unrelated party to administrative review proceedings

FTN v NSW Ombudsman [2023] NSWCATAD 319

The applicant sought to join the Commissioner for Fair Trading to an existing application for administrative review, which related to alleged conduct of the NSW Ombudsman in breach of the Privacy and Personal Information Protection Act 1998 (PPIP Act).

The applicant had previously made unsuccessful attempts to summons the Commissioner and certain officers of Fair Trading to give evidence in relation to his application against the Ombudsman. The applicant subsequently filed an application naming “Fair Trading NSW and Ombudsman NSW” as respondents and a Notice of Motion seeking that the application be heard “in conjunction” with the application for administrative review in relation to the Ombudsman.

The Ombudsman submitted that its alleged conduct, of which the applicant sought review, did not involve the Commissioner. The Commissioner opposed joinder and submitted that the Tribunal did not have jurisdiction to determine the application as it related to the Commissioner.

The Tribunal refused the application and dismissed the Notice of Motion, on the basis that they were misconceived.

Principles for dealing with self-represented appellant

Ugur v Public Guardian [2023] NSWCATAP 273

The appellant sought to appeal the Tribunal’s decision in Ugur v Public Guardian, arguing that the Tribunal had erred in its findings and conclusions and denied him procedural fairness in the conduct of the hearing.

The appellant was self-represented. His Notice of Appeal raised 49 separate grounds of appeal and, by further documents and submissions filed throughout the course of the appeal, he sought to raise numerous additional grounds.

In considering the appellant’s material, the Appeal Panel acted in accordance with the established principles for approaching matters where a party is self-represented, as set out in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69. In particular, the Appeal Panel was not required to undertake a 'partisan analysis of lengthy, unstructured assertions and misconceptions' to ensure that the appellant had not missed some arguable point.

The Appeal Panel proceeded to address each of the six broad contentions that could be discerned from the appellant’s material, going to concerns regarding the agency’s original decision, as well as the conduct of proceedings below. Ultimately, the Appeal Panel dismissed each ground of appeal falling within these broad categories, finding no error on the part of the respondent.

Scope of the exclusions to ‘government information’ created by the GIPA Act Sch.4 cl.12(4)

Webb v iCare NSW [2023] NSWCATAD 316

This is the first case considering the scope of the exclusion in Sch.4 cl.12(4) of the Government Information (Public Access) Act 2009 (GIPA Act), which provides that '[i]nformation contained in a record held by the agency that is information that is unsolicited and is not relevant to the agency’s business or functions is not government information held by the agency'.

An employee of icare held the voluntary role of chairperson of the NSW Right to Information and Privacy Practitioner’s Network and, in this capacity, had saved certain documents into a folder on the respondent’s server and set up an email address for the Network’s business. The applicant sought review of the respondent’s decision under the GIPA Act that it did not hold the requested information concerning membership and meetings of the Network.

While there was no dispute that the respondent 'held' certain documents in the literal sense, it had determined that the documents were not 'government information held by the agency' as they fell within the exclusion in Sch.4 cl.12(4) of the GIPA Act. The respondent submitted that documents arising in this context were neither solicited nor relevant to the agency’s business or functions and, accordingly, fell within the scope of the exclusion in Sch.4 cl.12(4).

The Tribunal found, having regard to the text, context and purpose of Sch.4 cl.12(4), that the information held by the respondent was not unsolicited information. It held that the term 'unsolicited' cannot apply to material that was created, rather than merely collected, by an employee of an agency. It also considered that the fact that the respondent had created a dedicated email account by which the chairperson could send and receive emails to fulfil her role as chairperson and the authorised establishment of a dedicated OneDrive folder for Network business tended against a finding that the material held by the respondent was unsolicited. Furthermore, the Tribunal found that the information held by the respondent related to its functions in discharging obligations to determine applications it receives pursuant to the GIPA Act.

Access to information relating to welfare check

Karakaya v Commissioner of Police, NSW Police Force [2023] NSWCATAD 282

The applicant sought administrative review of a decision under the Government Information (Public Access) Act 2009, refusing access to information relating to a welfare check that had been conducted on the applicant following a report made to police.

The applicant argued that various public interest considerations favouring disclosure applied - in particular, that disclosure would reveal misconduct both on the part of police officers performing the welfare check and the person who had made the report to police.

The Commissioner argued that various public interest considerations against disclosure applied to the information, including that disclosure would: prejudice the future supply of confidential information; prejudice the effective exercise of the agency’s functions; reveal information supplied in confidence; and reveal personal information.

In considering the public interest favouring disclosure, the Tribunal accepted that disclosure of the information requested would inform the public about the operations of agencies and that some of the information was personal to the applicant. However, there was no evidence that would support the allegations of misconduct made by the applicant, nor was there anything in the redacted information that would support these allegations.

The Tribunal accepted that each of the public interest considerations against disclosure relied on applied, save with respect to one discrete portion of a document, which the Tribunal ordered be released. In balancing the public interest, the Tribunal was satisfied that, even though the information requested was personal to the applicant, the public interest considerations against disclosure 'far outweigh' the public interest favouring disclosure, having regard to the circumstances in which the information was provided to police, community expectations that such information will remain confidential, and the broader impact on police operations if information of this nature was disclosed.

Application of public interest test by Tribunal on remittal

Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAD 275

Following a partially successful appeal by the applicant, the Appeal Panel in Bailey v Commissioner of Police, NSW Police Force remitted the decision under the Government Information (Public Access) Act 2009 to a differently constituted Tribunal for redetermination. The Tribunal was required, therefore, to consider afresh the application of the public interest test to the various documents in issue (being documents relating to an incident where the applicant was alleged to have damaged a car, as observed by an independent witness and reported to the owner of the damaged car).

The applicant argued that various public interest considerations favoured disclosure of the information requested, including that the information was primarily the applicant’s personal information and that disclosure would: promote the open discussion of public affairs and enhance government accountability; inform the public about the operations of agencies; and reveal misconduct (in the form of age discrimination).

The respondent argued that various public interest considerations against disclosure applied to the information, including that disclosure would: prejudice the future supply of confidential information; reveal the identity of an informant; and reveal personal information.

The Tribunal accepted that each of the public interest considerations favouring disclosure applied and should be given strong weight. The fact that the applicant was being pursued by the insurer of the damaged vehicle for the costs of repairs was a further personal factor favouring disclosure. The Tribunal was also satisfied that each of the public interest considerations against disclosure applied and, where they arose, outweighed the public interest favouring disclosure. However, the Tribunal found that certain documents could be released with redactions of personal information and varied the respondent’s decision accordingly. 

Whether 'government information' held by agency

COVID Safe Schools Inc v NSW Ministry of Health [2023] NSWCATAD 293

The applicant sought access under the Government Information (Public Access) Act 2009 (GIPA Act) to the 'dataset' underlying certain graphs published with respect to daily COVID rates aggregated by age group. The applicant sought administrative review of the Ministry’s decision that it did not hold any existing records responsive to the applicant’s request.

The respondent acknowledged that the published graphs referred to were based on daily COVID data taken from its database but submitted that this raw data was transmitted to another government agency that performed the aggregation and analysis and published the graphs. The respondent did not hold any record of aggregated daily COVID figures, as reflected in the published graphs. While it would, theoretically, be possible for the respondent to produce a responsive record drawing on its database, this would involve the creation of a new record (which it was not obliged to do) and would take several hundred hours.

The applicant submitted that the respondent could produce a responsive record using more efficient means than described in its decision and disputed the contention that doing so would involve the creation of a new record.

The Tribunal set aside the Ministry’s decision, finding that the application for the 'dataset' was an application for the raw data that existed in the Ministry’s database. It followed that the Ministry did, in fact, hold responsive information, albeit in a more granular form than as it appeared in the published graphs. The Tribunal found that the process of converting the data into a form that could be provided to the applicant did not constitute the creation of a new record but, rather, the deletion or redaction of non-responsive information from an existing record. The Tribunal considered that the agency had, implicitly made a decision to refuse to deal with the application on the grounds that doing so would require an unreasonable and substantial diversion of resources. It remitted the decision back to the Ministry, so that the Ministry could comply with its obligation under s. 60(4) of the GIPA Act to give the applicant an opportunity to refine the scope of its application for information.

High Court finds Victorian zero- and low-emission vehicles charge invalid

Vanderstock v Victoria [2023] HCA 30

The Attorney General intervened pursuant to s.78A of the Judiciary Act 1903 (Cth) to support the State of Victoria in defending the plaintiffs’ challenge to the constitutional validity of s.7(1) of the Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) (ZLEV Charge Act) on the basis that it imposed a duty of excise contrary to s.90 of the Constitution, which confers exclusive legislative power on the Commonwealth to impose duties of excise. Section 7(1) imposes on the registered operators of electric vehicles, hydrogen vehicles and plug-in hybrid electric vehicles (collectively, ZLEVs), a charge for the use of ZLEVs on ‘specified roads’.

By a majority of four Justices to three, the High Court found that the ZLEV charge was a duty of excise, such that s.7(1), in imposing the ZLEV charge, was invalid.

The majority Justices (Kiefel CJ, Gageler and Gleeson JJ, writing together, and Jagot J, writing separately) essentially found that a duty of excise was any tax imposed on goods that: bears a close relation to the production or manufacture, sale or consumption of goods; and is of such a nature as to affect those goods as the subjects of manufacture or production or as articles of commerce, including by dampening or otherwise affecting demand in a market for the sale of the goods. The majority’s view represents an expansion in the scope of what is understood to comprise a duty of excise.

The minority Justices (Gordon, Edelman and Steward JJ, each writing separately) expressed strenuous disagreement with the approach of the majority, both as to substance and as to method, considering it to be unsupported by authority or principle in a number of respects.

Solicitor convicted of aggravated indecent assault found not to be a fit and proper person to remain on the Roll of Australian Lawyers

The Prothonotary of the Supreme Court of NSW v "A" (a pseudonym) [2023] NSWCA 258 

The applicant sought removal of the name of the respondent from the Roll of Australian Lawyers on the basis that the respondent was not a fit and proper person to remain on the Roll. The respondent, in 2020, pleaded guilty to seven counts of aggravated indecent assault and, during sentencing, four other counts of aggravated indecent assault were taken into account on the Form 1 documents. The offending conduct occurred on at least 10 occasions and the victim was the respondent’s daughter. The respondent was sentenced to an aggregate term of imprisonment of four years with a non-parole period of two years.

The applicant submitted that, as a result of the offending conduct, the respondent was not a fit and proper person to remain on the Roll and is likely to remain so for the foreseeable future. The respondent did not oppose the relief sought by the Prothonotary and adduced evidence to the effect that he had no intention of renewing his practising certificate or making an application for re-admission as a lawyer.

The Court held that the offending was serious criminal conduct, involving a betrayal by the respondent of his position of trust. The maximum sentence for the offending conduct was 10 years’ imprisonment for each count, which reflected the seriousness of the respondent’s conduct. The Court concluded that the respondent’s offending conduct revealed defects of character that are incompatible with the standards and behaviour required of a member of the legal profession.

The Court also considered that the respondent had not filed or served any evidence demonstrating that he is of good fame and character or that steps had been taken that would inspire confidence that reformation is a future possibility. Therefore, it was determined that the respondent’s unfitness was likely to continue for the foreseeable future.

Injurious falsehood – a ‘rare and anomalous’ tort

Jay v Petrikas [2023] NSWCA 297

The appellants were volunteer firefighters with the Rural Fire Service (RFS) who sued fellow RFS volunteers and an RFS officer for damages in injurious falsehood for referring complaints of bullying about them to their line managers. The plaintiffs were out of time to sue for defamation. The plaintiffs lost their claim in the District Court: Jay v Petrikas (No 4) [2022] NSWDC 628 and appealed to the Court of Appeal.

Injurious falsehood requires proof of four elements; malice, falsity, causation and actual damage. It was submitted that the appellants were unable to show any appealable errors.

1. The respondents were found to have a reasonable belief in the allegations made to them. They were not actuated by malice in referring the allegations of bullying to RFS staff, nor was the RFS officer actuated by malice in referring the allegations to her managers.
2. Falsity was found in only some, not all, of the representations which were considered to be honestly believed by the respondents, and incidental, rather than central, to whether the allegations of bullying should be referred for investigation.
3. A causal link between the allegations that were investigated and the actual loss claimed (being legal fees for lawyers engaged by the appellants) was not established.
4. There was no basis for claims for exemplary and aggravated damages.

As the appeal failed on the above grounds, the Court considered that the determination of the ambit of the tort should await a case where it is essential to consider that question.

The appeal was dismissed with an order for costs in favour of the respondents.

Vexatious proceedings order not unreasonable in the circumstances

Collier v Attorney General (NSW) [2023] NSWCA 273

The applicant had litigated vexatiously across various courts and tribunals since the 1990s. After hearing the respondent’s application for orders made under the Vexatious Proceedings Act 2008 in the applicant’s absence (she terminated the audio-visual link after her adjournment application had been refused), the Supreme Court made a vexatious proceedings order. The applicant sought leave to appeal the refusal to grant her an adjournment and the vexatious proceedings order itself.

The applicant contended that the primary judge had been biased and abusive in refusing her a further adjournment so that she could obtain access to court files that she alleged had been destroyed by the respondent’s legal representatives. The applicant also contended, among other things, that the vexatious proceedings order could not be made because she did not intend to litigate vexatiously, her rudeness could not be a basis for the order and the Limitation Act 1969 prohibited the respondent from seeking the order or relying upon some previous proceedings (some of which she sought to relitigate).

The respondent contended that no error had been demonstrated by the applicant.

The Court granted the applicant leave to appeal but dismissed the appeal with costs. The Court was not satisfied that the applicant had demonstrated a House v The King error in the exercise of the Court’s discretion to refuse to grant her an adjournment or in making the vexatious proceedings order. Nor was the Court satisfied that the applicant had a basis for the scandalous accusations she made against the primary judge and the respondent’s legal representatives. 

Interpreting ministerial guidelines

Granville Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 248

The applicant sought leave to appeal to the Court of Appeal from a decision of the Supreme Court, which had held that the Independent Liquor and Gaming Authority did not misconstrue cl.1.2 of the applicable Ministerial Guideline in determining the applicant’s application for a reduced gaming machines shutdown period under s.40 of the Gaming Machines Act 2001. Clause 1.2 of the Guideline states:

Authority approval may be given if the Authority is satisfied that the venue falls within an area where other hospitality and entertainment venues are open to 6am on Saturdays or Sundays or public holidays.

The applicant submitted that cl.1.2. permits the Authority to approve the application if the venue is in an area where there is at least one hospitality and/or entertainment venue that is open in the relevant periods because a reference to the plural includes the singular on the bases that there was a grammatical reason for that drafting and s. 8(c) of the Interpretation Act 1987 applied. The Authority submitted that the Guideline required there to be more than one hospitality and/or entertainment venue.

The Court dismissed the appeal. It held that the Interpretation Act 1987 applies to 'all Acts and instruments', which may extend to documents beyond primary and delegated legislation, subject to a contrary intention. There is a lower threshold to establish that intention where the 'instrument' is a non-legislative practical document not drafted by parliamentary counsel. The Guideline evinced a contrary intention to the Interpretation Act applying (assuming it did apply).

The Court also held that policy documents are to be interpreted by reference to their text, context and purpose and the text and context of the Guideline indicated that cl.1.2 does not extend to a situation where there is only one other hospitality or entertainment venue in the relevant area.

Breach of contract: nominal damages only if actual damage not proven

Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288

The appellant is a psychiatrist who was employed by the respondent from December 2017 to January 2018, when the respondent terminated her contract and made complaints against her to the Health Care Complaints Commission (HCCC).

In 2018, the appellant commenced proceedings against the respondent and a locum agency, alleging misleading and deceptive conduct in relation to the terms of the locum agreement, breach of confidence and injurious falsehood. In 2021, the primary judge rejected all claims and entered judgment for the defendants.

On appeal, the appellant contended that the primary judge was biased in making the decision, and that his Honour had erred in determining the claims of misleading and deceptive conduct, breach of contract, breach of confidence, and injurious falsehood.

The Court of Appeal allowed the appeal in part with respect to the breach of contract and otherwise dismissed the appeal with costs, as follows:

1. Bias: credibility and demeanour findings in relation to a witness are not sufficient to establish bias.
2. Misleading and deceptive conduct: no error was demonstrated.
3. Breach of confidence: the evidence did not disclose the appellant’s supervisor was engaged in a malevolent campaign of harassment of the appellant, as asserted by the appellant.
4. Injurious falsehood: complaints to the HCCC were not motivated by malice.
5. Breach of contract: the respondent should have suspended the appellant’s appointment rather than terminated her contract. The appellant would have had no entitlement to payment of any fees while the suspension remained in place. In the absence of proof of actual damage, the appellant was only entitled to nominal damages of $100.

DPP's joinder application granted

Gamage v Riashi [2023] NSWSC 1400

The Court granted the Director of Public Prosecutions' (DPP) application to be joined as a third defendant to Supreme Court proceedings brought by the plaintiff against the Independent Commission Against Corruption (ICAC) and one of its officers, in which he sought leave to appeal from interlocutory decisions of the Local Court in criminal proceedings in which the DPP had taken over prosecution from the ICAC officer who commenced them.

The DPP argued that it was a proper and necessary party to the proceedings on the basis that it had appeared in and prosecuted the Local Court matter from the date that it was first listed in the Local Court and was directly affected by the leave sought. It also adduced evidence of notice from the DPP to ICAC referring to its takeover of the Local Court proceedings under s.9 of the Director of Public Prosecutions Act 1986.

Refused – yet again – to re-litigate

Zepinic v Attorney General NSW [2023] NSWSC 1396

The plaintiff sought to re-agitate matters that had been the subject of several previous decisions of the Supreme Court and Court of Appeal in relation to his de-registration as a psychologist in 2010, and his various attempts at re-instatement to that position since 2018. The plaintiff sought to set aside the judgment of Harrison AsJ in which her Honour summarily dismissed a claim to reverse a refusal by NCAT to reinstate Mr Zepinic as a registered psychologist.

Both defendants, the Attorney-General of NSW and the Australian Health Practitioner Regulation Agency, sought to have the applicant’s case summarily dismissed pursuant to r.13.4 of the Uniform Civil Procedure Rules 2005. The first respondent also sought to restrain the plaintiff from commencing further proceedings under the Vexatious Proceedings Act.

Fagan J dismissed the plaintiff’s summons and ordered that he pay the costs of both defendants. His Honour held that, to the extent these were fresh proceedings, they constituted an abuse of process given that the relief sought had already been refused by Harrison AsJ. His Honour noted that if, in the alternative, the proceedings constituted an appeal, that appeal would need to be filed in the Court of Appeal, could not be determined by a single judge of the Supreme Court and would also necessitate establishing a demonstrable error.

Hague Convention on Intercountry Adoption prevails over s.111 Adoption Act

The Adoption of Sophie (a pseudonym) [2023] NSWSC 1403

The plaintiff adopted Sophie in Rwanda under Rwandan law. As a precondition to obtaining Australian citizenship, Sophie’s legal relationship with her biological parents must be terminated (Rwandan law does not terminate that relationship). Accordingly, the plaintiff sought an order under reg.20 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) to terminate the legal relationship.

Regulation 34 provides that reg.20 will not apply to a State where 'there is in force a law … having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for the State'. The Court considered whether reg.20 applies in light of s.111 of the Adoption Act 2000 (NSW), which also empowers the Court to terminate the legal relationship between a child and their pre-adoption parents.

The parties submitted that s.111 of the Act does not have the 'same' or 'comparable' effect as reg.20 because under reg.20:

1. an adoptive parent can apply for an order, whereas under s.111, only the Secretary can do so
2. the Secretary must give notice to the Commonwealth Minister for Immigration and Multicultural Affairs, whereas s.111(3) of the Act requires the Secretary to give written notice to the Central Authority of the Convention country involved.

Accordingly, the Court found that s.111 of the Act does not have the 'same' or 'comparable' effect as reg.20. 

Do not assume tenure

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 ("Doyalson") [2023] NSWLEC 134

The applicant appealed against the Minister’s part refusal of a land claim under the Aboriginal Land Rights Act 1983. Pepper J upheld the appeal, finding that the land was not lawfully occupied and therefore constituted 'claimable Crown land'.

The initial term of the special lease over the claimed land, SpL 1965/21, expired on 31 December 1996. The Minister argued that, from 31 December 1996, the tenant remained in possession under a monthly tenancy and paying rent.

The applicant argued that there was no evidence that the Minister had consented to the creation of a monthly tenancy following the expiration of the special lease and disputed that the Minister had established actual occupation of the land at the claim date.

Justice Pepper accepted the applicant’s submissions, finding that the interest purportedly granted to or retained by the former tenant following the expiration of the special lease was not lawfully created under the Crown Land Management Act 2016. Her Honour further found that, while various State departments were aware that the tenant continued to occupy the claimed land, there was insufficient evidence of ministerial consent to the grant of a new tenure. Finally, her Honour held that the Minister had not established that the tenant was, as a matter of fact, occupying the land as at the claim date.

Indemnity costs in matter with no chance of success

Paulson v State of New South Wales (No 2) [2023] NSWDC 413

The plaintiff filed a Statement of Claim in the District Court seeking damages for breach of the employment contract. The defendant sought summary dismissal of the claim. The Court struck out the claim but allowed the plaintiff to amend his pleadings within 28 days of the orders.

The plaintiff resisted any order for costs on the basis that the proceedings were not summarily dismissed and that it meant that the result 'did not favour the defendant or in the alternative, did not fully favour the defendant in accordance with the Notice of Motion'.

The Court granted costs on indemnity basis and said:

[t]he plaintiff persisted in the claim based entirely on implied contractual terms in circumstances where there was scant, if any, support in law or fact to support it and in circumstances where, on any view, the claim was statute barred. Further, the plaintiff chose to persist in the claim, in light of the defendant’s offer of compromise which ought to have been accepted and adopting the words of Woodward J in Fountain Selected Meats (Sale) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 at [400] '… that the applicant properly advised, should have known that he had no chance of success’.

Assessing whether there is a “realistic possibility of restoration” of children to their parents cannot be fanciful, sentimental or idealistic

JH v Secretary, Department of Communities & Justice & Ors (No.3) [2023] NSWDC 517

The mother of two siblings appealed findings from the Children’s Court that there was no reasonable prospect of restoration and orders that parental responsibility for the siblings was allocated to the Minister until they turned 18.

The Secretary submitted that there was no realistic possibility of the children being restored to the mother within a reasonable time. The mother submitted that there was a realistic possibility of restoration.

The Court confirmed the Children’s Court’s findings/orders holding that, when assessing whether there is realistic possibility of restoration, there are two mandatory considerations: the circumstances of the children and whether the parent has satisfactorily addressed the issues that led to the removal of the children in the first place. It found that:

• both children are settled in their placements
• removal of the children now would be hugely disruptive
• the children need emotional stability from their primary caregiver
• it is not realistic to expect that they could receive that from the mother (in light of evidence that bespeaks her emotional instability or dysregulation)
• the mother had not addressed the issues that led to the removal of the children and lacks insight. 

It said that it would be fanciful, sentimental, or idealistic, and manifestly not sensible or 'commonsensical', to think that in the next 2 years, there is a prospect of restoration. There is a serious risk that if restored to their mother’s care, the children will be exposed to domestic violence, drug taking and emotional outbursts

Decision of Children’s Guardian affirmed for applicant with numerous alleged incidents of inappropriate sexual conduct

DJY v Children’s Guardian [2023] NSWCATAD 241

DJY sought administrative review of the decision of the Children’s Guardian to refuse him a working with children check clearance (WWCCC). There had been numerous incidents and allegations of inappropriate sexual behaviour by DJY toward adult staff members at a tutoring business that he operated and also toward students who were tutored at the premises.

The Children’s Guardian submitted that it was not necessary for the Tribunal to make a definitive factual determination about whether any of the allegations were established; the possibility that the conduct occurred meant that DJY posed a risk to the safety of children. The Children’s Guardian submitted that the correct and preferable decision was to affirm the decision to refuse a WWCCC.

DJY submitted that the expert opinion was that he did not pose a risk to children, that the allegations were denied and that he was prepared to go back to a psychologist.

The Tribunal found that, in light of DJY’s recent and repetitive incidents of a similar nature, his lack of insight and attempts to minimise his behaviour, DJY posed a real and appreciable risk to the safety of children. In coming to its decision, the Tribunal found that DJY had not been forthright with psychologists who prepared reports which were tendered in the proceedings. The Tribunal said that this conduct was an example (among others) of DJY minimising his behaviours. The Tribunal affirmed the decision of the Children’s Guardian to refuse DJY a WWCCC.

NCAT affirms Commissioner’s decision to revoke 'Jihad Jack’s' firearms licence

O’Rourke v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 297

The applicant, who in March 2001 travelled from Australia to Afghanistan to fight for the Taliban, sought administrative review by the NSW Civil and Administrative Tribunal of the Commissioner of Police’s decision to revoke his firearms licence. As a result of the applicant not providing all of his previous names in his firearms licence application, the Commissioner granted the applicant a firearm’s licence on 11 January 2022, unaware of his involvement with the Taliban and subsequent prosecution for multiple terrorism offences. Upon becoming aware of the applicant’s history, the Commissioner immediately revoked the firearms licence.

In the Tribunal, the Commissioner defended her decision to revoke the applicant’s firearms licence on two grounds. First, that, because of his past conduct, he was not a fit and proper person to hold a licence. Second, that it would be contrary to the public interest for the applicant to hold a firearms licence. The second submission drew heavily on the proposition that it is in the public interest to maintain public confidence in the firearms licensing system.

In light of the passage of time between the applicant’s involvement with the Taliban, his renunciation of his Muslim faith and multiple other lifestyle changes, the Tribunal found that the applicant is presently a fit and proper person to hold a firearms licence. However, the Tribunal found that it would be contrary to the public interest for him to hold a firearms licence because doing so would undermine public confidence in the firearms licensing system. As the Tribunal stated:

many members of the public would be concerned about the effectiveness of firearms regulation if a man with 11 known aliases who trained with Al Qaeda, met Osama bin Laden and other senior members of Al Qaeda, served at the frontline in Afghanistan for Al Qaeda and wanted to continue to fight against the Americans after 9/11 would now be entrusted with a firearms licence.

Adverse history of a single associate may be sufficient to revoke a firearms licence

Jones v Commissioner of Police, NSW Police Force [2023] NSWCATAD 284

The applicant sought administrative review of a decision of the respondent to revoke his firearms licence. The applicant lived near and worked for a third party who had a significant criminal history and was associated with an outlaw motorcycle gang. The applicant had applied for his firearms licence shortly after the third party’s spouse’s firearms licence was revoked and had shortly thereafter taken possession of the third party’s spouse’s former firearms.

The applicant argued that he was being punished for his association with the third party. He also submitted that his relationship with the third party had ceased and that the firearms had been purchased from the third party’s spouse at market price. No evidence was relied upon in support of those submissions.

The Commissioner submitted that the timing of the applicant’s firearms licence application, his purchase of the third party’s spouse’s firearms, and their storage at his employment address suggested he was involved in a scheme to permit the third party to continue to use those firearms. The Commissioner further submitted that the applicant’s association with the third party made it contrary to the public interest for the applicant to hold a firearms licence.

The Tribunal affirmed the Commissioner’s decision under review. The Tribunal considered the third party’s criminal history and the applicant’s close association with him and was not satisfied that the applicant’s clean criminal record was sufficient overcome the risk to public safety associated with the third party. The Tribunal also found the applicant is not a fit and proper person to hold a firearms licence because of his history of non-compliance with the licensing scheme for driving motor vehicles. As the Tribunal stated, there is 'a real and appreciable risk to the public' should the applicant hold a firearms licence.

Confidentiality applications in NCAT: Procedural fairness and natural justice

Wilson v Commissioner of Police, NSW Police Force [2023] NSWCATAD 271

The applicant applied for interlocutory orders under ss.49 and 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) prohibiting the disclosure of certain documents to the respondent, while permitting the applicant to rely on those documents in his substantive application for administrative review. The interlocutory application followed a similar (successful) interlocutory application by the respondent of a similar nature.

The applicant argued that the documents upon which he relied were evidence of corruption within the NSW Police Force and that the material should be reserved for presentation to judicial officers in other proceedings brought by the applicant. The applicant further argued that, if confidentiality orders are 'good enough for [the respondent]', then the applicant should also be entitled to similar orders.

The respondent submitted in reply that there was no evidence that the applicant’s evidence was actually confidential, some of the evidence originated from the respondent and thus there was no confidentiality to preserve and, to the extent that the evidence suggests corruption, it was not in the public interest to keep the material confidential.

The Tribunal refused to grant any orders under s.64 of the CAT Act for the reasons argued by the respondent and because it would impermissibly deny the respondent procedural fairness and natural justice. However, the Tribunal made an order during the hearing of the interlocutory application for it to be heard partly in the absence of the respondent because a fully open hearing would render the application nugatory before its determination.

Limited evidence of risk may tip the public interest against an unconditional firearms licence

O’Halloran v Commissioner of Police, NSW Police Force [2023] NSWCATAD 268

The applicant sought administrative review of a decision of the respondent to impose a condition on his firearms licence that he not store firearms at any location his son lived or frequented. The applicant’s son had reported on his own firearms licence application that he had been treated for acute trauma, complex grief and resultant alcohol abuse following the death of his wife three years earlier.

The applicant submitted that the evidence before the Tribunal did not establish even a remote risk to public safety because the applicant’s son had never been involved in any adverse incidents. The applicant also submitted that a condition on his firearms licence was unbecoming of his reputation in the community.

The respondent submitted that public safety considerations should be central to the consideration of a discretion under the Firearms Act and, as a result, the Tribunal need not require detailed evidence of matters giving rise to a risk so long as there is some cause for concern. Here, there was cause for such a concern and no evidence was led to properly rebut it.

The Tribunal affirmed the Commissioner’s decision under review. It found that, in light of the applicant’s son’s mental health concerns and the absence of any medical evidence, it was appropriate for the condition to remain in place. The Tribunal acknowledged that public safety considerations should be central to the exercise of the discretion to impose a condition, to the exclusion of the applicant’s submission as to his reputation in the community. The limited evidence in relation to risk was sufficient to justify the condition in the circumstances.

Childcare provider approval cancelled after five years’ inactivity

Anchor Consolidated Holdings Pty Ltd v Secretary, Department of Education [2023] NSWCATAD 279

This was an administrative review of the Secretary’s decision under s.193(3)(a) of the Children (Education and Care Services) National Law (NSW) to     cancel the applicant’s provider approval on the ground that it had not operated any education and care service for more than 12 months.

The applicant pointed to various factors to explain the lengthy period of inactivity, including family illness and a period during which the approval was voluntarily suspended. The Secretary acknowledged the applicant’s circumstances but noted that, even without the periods of inactivity explained by those circumstances, the applicant’s inactivity significantly exceeded the 12-month threshold above which the cancellation power is enlivened. The Secretary submitted that the discretion to cancel provider approval in these instances is an important regulatory tool to ensure providers are continually being assessed and meeting National Quality Standards.

The Tribunal found that, at the time of cancellation, the applicant had not operated any education and care services for four years and that the Secretary had exercised their discretion reasonably having regard to the objects and principles of the National Law. The Secretary’s cancellation decision was confirmed.