AEF v Northern Sydney Local Health District
[2011] NSWADT 170
•15 July 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AEF v Northern Sydney Local Health District [2011] NSWADT 170 Hearing dates: 17 June 2011 Decision date: 15 July 2011 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: 1.All parties shall file and serve any statements of evidence and other documentary evidence upon which it wishes to rely by 4 August 2011.
2.All parties shall file and serve any statements of evidence and other documentary evidence in reply by 25 August 2011.
3.The matters are listed for a further planning meeting on 30 August at 11:00AM (allow 1.5 hours).
4.Until the determination of these proceedings, order under 75(2)(b) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure of the name, address, or any other material that identifies, or may lead to the identification of the applicant, his wife and daughter, or the joined party.
Catchwords: Non-disclosure order - power to vary or revoke Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Government Information Public Access Act 2009Cases Cited: Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46
C v New South Wales Scientific Committee and Anor [2008] NSWADT 42
CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315
McGuirk v University of NSW [2009] NSWCA 321
Walton v Momot [1997] NSWCA 334
Z v University of A, Dr D & B (No 4) [2002] NSWADT 14Category: Interlocutory applications Parties: AEF (Applicant)
Northern Sydney Local Health District (Respondent)
CY (Joined party)Representation: Counsel:
J Darams (Respondent)
C Jackson (Joined party)
Solicitors:
AEF (Applicant in person)
Slater & Gordon (Joined party)
Information Commissioner
File Number(s): 113084 Publication restriction: Until the determination of these proceedings order under 75(2)(b) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure of the name, address, or any other material that identifies, or may lead to the identification of the applicant, his wife and daughter, or the joined party.
REasons for decision
Introduction
The preliminary issue in this case concerns whether the Tribunal has power under s 75(2B) of the Administrative Decisions Tribunal Act 1997 to vary or revoke an order prohibiting the disclosure of documentary evidence admitted in made in earlier, concluded proceedings.
The earlier proceedings were heard under the Freedom of Information Act 1989 (the FOI Act). They related to an appeal against a decision by the then Northern Sydney Central Coast Area Health Service - now the Northern Sydney Local Health District ('the agency') - to release a document know as 'the Kimber Report' to AEF and his wife. The Kimber Report related to an external investigation conducted for the respondent into a complaint made by AEF and his wife, who were the parents of a patient who had left a Hospital Unit administered by the respondent and subsequently died. The Kimber Report also concerned CY, an employee of the respondent.
CY objected to the release of the Kimber report on the ground that it was exempt by reason of clause 6, clause 9, sub-clause 13(b) or sub-clause 16(a)(iii) of Schedule 1 to the FOI Act . When an internal review decision was made to release the report, over CY's objections, CY sought internal review in this Tribunal.
The Tribunal constituted by Montgomery JM determined not to release the Kimber Report. The Tribunal's decision is CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315. AEF and his wife were not parties to those proceedings. The Tribunal wrote -
37The Respondent's decision was that the Kimber Report should be released to the parents in a redacted form and without attachments but including a list of those attachments. The Respondent also determined that the Hoyle/Landrigan report was not the subject of the parent's application under the FOI Act.
38The history of the matter suggests that the Respondent's decision was made in the light of the recommendation made by the Ombudsman and that it was an effort to provide some support for the parents. The Ombudsman's recommendation was given at a time when the Respondent had taken the decision that there would be no disciplinary action against CY. It is clear that the Respondent's position on that issue changed after receipt of the Taylor Report. After that time CY was advised that disciplinary action was anticipated.
39It is common ground that in its complete form the Kimber Report is an exempt document pursuant to clause 6 of Schedule 1 to the FOI Act. It is also common ground that the Kimber Report still contains findings that concerns CY. At paragraph 16 it is stated that CY "may well be guilty of a breach or breaches of discipline as a result of being careless, inefficient or incompetent in the discharge of [CY's] duties..."
40The NSW FOI Manual, August 2007, published by the NSW Department of Premier and Cabinet and NSW Ombudsman at paragraph 12.3.19(19) provides:
"Without attempting to set out a comprehensive list of relevant matters, in assessing FOI applications it can be assumed that, in the absence of special circumstances to the contrary, information concerning the following matters could constitute the 'personal affairs' of a person in terms of the first part of the test in clause 6:
...
(19) Disciplinary investigations or proceedings, particularly where disciplinary action was taken."
41In my view, the evidence supports the contention that the Kimber Report forms the basis of disciplinary proceedings to be taken against CY. It is my view that the Kimber Report, even in a redacted form, is a document that concerns CY's personal affairs.
42Action has been commenced in the NSW Industrial Relations Commission in relation to the disciplinary proceedings and those proceedings remain to be determined.
43In these circumstances, the disclosure of the Kimber Report, even in a redacted form, would be unreasonable. It is therefore exempt under clause 6 of Schedule 1 to the FOI Act.
44In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 the Supreme Court confirmed that the Tribunal has discretion to order access to be given to documents which are exempt documents. The approach to be taken by the Tribunal in exercising that discretion has been discussed in several decisions. In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the Tribunal's President noted that there should be strong grounds justifying the exercise of this residual discretion to grant access to a document that is found to be exempt. At paragraph [27] the President set out some of the factors relevant to the exercise of the discretion.
45Having regard to all the circumstances, it is my view that there are no strong grounds that would justify overriding the exemption claimed. This position may change once the Industrial Relations Commission proceedings have been completed. However, on the evidence before me I am satisfied that the Kimber Report should not be released at this stage.
46I note that there is no agreement between the parties with respect to the other exemptions asserted by CY. However, having formed the view with respect to the clause 6 exemption, I do not need to consider whether the other asserted exemptions are applicable.
During the course of that hearing the Kimber Report, and two related reports, the Hoyle/Landrigan Report and the Taylor Report were tendered to the Tribunal. The latter two reports contained apparently contradictory conclusions concerning whether disciplinary action against CY was warranted: see [2008] NSWADT 315 at [3-4]. It is common ground that during the course of the proceedings the Tribunal made the following order-
1.A general order is made under s 75 of the Administrative Decisions Tribunal Act 1997 and s 55 of the Freedom of Information Act 1989 in these proceedings prohibiting and restricting disclosure of the name of the applicant, the documents lodged with the Tribunal and received in evidence, and the transcript of the hearing.
2.Order 1 does not apply to disclosure between the parties or to disclosure between their legal representatives, servants or agents or to disclosure to any Tribunal member constituted to deal with the matter and Tribunal staff.
Section 75 of the ADT Act, at all relevant times, has provided -
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(a) an order that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.
(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).
(3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private.
The Tribunal when making that order also relied on section 55 of the FOI Act. It provided -
In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.
On 1 July 2010 the Government Information Public Access Act 2009 (the GIPA Act) commenced operation. It replaced the FOI Act and made substantial changes to the law relating to public access to government information.
On 9 November 2010 AEF and his wife made an application for access to the three reports under the GIPA Act. On 1 December 2010 the agency's right to information officer refused access to the reports on the basis that, under the GIPA Act, there was a conclusive presumption that there is an overriding public interest against their disclosure. This was so because the reports were subject to confidentiality order made under s 75 of the ADT Act.
AEF then sought review of that decision by the Information Commissioner under s 89 of the GIPA Act.
On 28 March 2011 the Information Commissioner referred the decision of the agency to the Tribunal for review under s 99 of the GIPA Act. In her referral letter the Information Commissioner wrote -
The OIC agrees with the decision of the agency. However, this matter cannot be determined on its merits under the GIPA Act because of the confidentiality orders, which create a conclusive presumption of an overriding public interest disclosure of the information pursuant to s 14(1) of the GIPA Act.
In CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315 Judicial Member Montgomery said the following at paragraph 45:
Having regard to all the circumstances, it is my view that there are no strong grounds that would justify overriding the exemption claimed. This position may change once the Industrial Relations Commission proceedings have been completed. However, on the evidence before me I am satisfied that the Kimber Report should not be released at this stage.
It appears from the above comment that Judicial Member Montgomery did not intend the confidentiality orders to remain on foot indefinitely and left open the possibility of considering whether the Kimber Report could be released in the future.
I would propose to exercise my right to appear and be heard in the ADT in relation to the matter pursuant to s 104(1) of the GIPA Act.
On 4 April 2011 AEF lodged an application with the Tribunal in which he sought to review the decision of the agency made under the GIPA Act. He also sought orders under s 75(2B) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) reviewing the confidentiality orders made by the Tribunal in CY v Northern Sydney Central Coast Area Health Service.
The matter was listed for a planning meeting before me on 10 May 2010. All parties appeared. CY, who was not then a party to the proceedings, appeared by his solicitor. He wished to be heard in relation to both AEF's application under s 75(2B) of the ADT Act and the review under the GIPA Act. I determined to join CY as a party the proceeding under s 67(4) of the ADT Act. That sub-section provides -
The Tribunal may, by order, make a person who is not a party to proceedings (other than proceedings on an internal appeal) a party to the proceedings if the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings.
I considered that as a party to the proceedings in which the non-disclosure order had been made CY had a right to be heard with respect on any application to revoke or vary that order under s 75(2B) of the ADT Act. Similarly, given that the Tribunal had previously determined that the Kimber Report contained information about his personal affairs, he was a person who s 54 of the GIPA Act required be consulted, and his views considered, before a determination to give access to the report could be made. As such, I considered his joinder to AEF's GIPA application necessary to the determination of that dispute.
Following discussion with the parties at that planning meeting two preliminary issues, which required determination before the GIPA Act application could proceed, were identified. They were:
- AEF's application under s 75(2B) of the Administrative Decisions Tribunal Act 1997; and
- CY's contention that the Tribunal did not have jurisdiction under the GIPA Act, given its previous decision under the FOI Act.
A date was fixed for a preliminary hearing of those issues on 17 June 2011 and directions were made for the filing and service of submissions,
The preliminary hearing
At that hearing all parties made submissions with respect to the Tribunal's powers to revoke or vary the order under s 75(2B) of the ADT Act. A consensus emerged that, if the Tribunal did have the power do vary or revoke the non-disclosure order, it would be necessary to hear evidence going to circumstances said to be in favour of and against such a decision. This was likely to be much the same evidence as that which would be relevant to the review of the decision under the GIPA Act, assuming the non-disclosure orders were varied or revoked.
There was agreement that, if I decided that the Tribunal as constituted had power to make an order under that section, then AEF's applications under the GIPA Act and s 75(2B) of the ADT Act should be heard together, with evidence in the one being evidence in the other. It would then be necessary to decide the s 75(2B) issue first, because of its impact on the GIPA Act application.
In the event that I found that the Tribunal did not have power to vary or revoke the non-disclosure order, CY submitted that I should summarily dismiss AEF's application for review under the GIPA Act, as it would be bound to fail.
The agency's submissions
The agency submitted that the non-disclosure order was made pursuant to s 75(2)(d) of the ADT Act. As s 75(2B) provides that, 'The Tribunal may from time to time vary or revoke an order made under subsection (2)', the agency submitted that there was no constraint on the Tribunal, as now constituted, to prevent it from varying or revoking the order.
While acknowledging that it was difficult to find any authority on the issue of whether the power may be exercise in different/later proceedings. The agency did refer to three previous decisions of the Tribunal. In Z v University of A, Dr D & B (No 4) [2002] NSWADT 14 - proceedings in the Equal Opportunity Division - the Tribunal varied suppression orders previously made in the same proceedings to enable a party to speak with witnesses and prepare a case for hearing. In making its decision, the Tribunal, at [29] stressed that, "should circumstances change warranting the lifting of the suppression order, we may need to reconsider our current decision."
In C v New South Wales Scientific Committee and Anor [2008] NSWADT 42 - proceedings under the FOI Act - in making a suppression order sought by consent the Tribunal said -
4 The exercise of the Tribunal's powers conferred by section 75(2) is conditioned on a finding that "it is desirable to" make such an order. The proceedings were brought by the applicant in order to protect his identity. This, together with the resolution of the proceedings in a way that will protect the applicant's identity, is sufficient reason for the Tribunal making an order of the type here sought. It will set the resolution at nought if such protection is not afforded. The respondent accepts the applicant's submissions in this regard and consents to an appropriate order being made. Therefore the only issue for consideration is the terms of the order that should be made.
5 The applicant is anxious to protect his identity and therefore seeks a suppression of his name and address and any information that would, or could, identify him. The respondent however, is concerned that the order made should not be so wide as to affect its dealings with information that it may have on its records that have no nexus with the proceedings in the Tribunal. Both points of view are rational and require an order that would satisfy each of them.
6 Consequently, the Tribunal will make an order prohibiting the publication or broadcast of any matter contained in documents lodged with the Tribunal in these proceedings which would disclose the applicant's name or address or which could lead to the identification of the applicant, his name or his address.
7 The provisions of section 75(2B) enable this order to be varied should there be proper cause to do so, without any express time limitation, but the Tribunal expresses no view as to whether this power would persist after the Tribunal has finally dealt with this application and has become functus officio. Until this question is addressed authoritatively it would not be appropriate to express this order in terms that it is permanent. Whether or not is has this effect will depend upon the operation of the statute.
In Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46 an Appeal Panel was referred to passages in a decision, subject to appeal, which were the subject on non-disclosure and non-publication orders. Chesterman DP said -
61 Having read the confidential paragraphs, I can indicate that they provide some support for Mr Bourke's submission regarding the weight placed by the Tribunal on the criminal information. In making this observation about the Tribunal's attitude to this information, I consider that I am not disclosing the content of the information. If I were doing so, it would in any event be with the approval of the Commissioner. In case my inclusion of this observation in my reasons would be considered to amount to a contravention of the order made by the Tribunal under section 75(2) of the ADT Act, I make an appropriate variation of this order, under the power conferred on the Tribunal by section 75(2B).
The agency submitted that s 75(2B) could be read in two ways. First, that the power could only be exercised in the proceedings in which the non-disclosure order was made. Secondly, that the Tribunal, properly constituted, could make an order under s 75(2B) at any time. The agency submitted that the latter view was to be preferred.
This was so given the wording of the sub-section itself. Limiting the power to vary or revoke to the proceedings in which the order was made, would be at odds with the ordinary and grammatical meaning of the words "from time to time". When viewed in its textual context, and in the light of the objects of the ADT Act, the agency submitted that the power should not be read narrowly. To read the section as requiring the an application under s 75(2B) to be made in the original proceedings, before the Tribunal as originally constituted, would be unduly legalistic and formal, and contrary to the objects of the ADT Act.
CY's submissions
CY agreed that the application of s 75(2B) was uncertain. CY submitted that the arguments were finely balanced, and that there is an argument that s 75(2B) is an interlocutory power, worded so as to operate only during proceedings. If this is the case, then the order under s 75(2)(d) merged with the Tribunal's final order in CY v Northern Sydney Central Coast Area Health Service and cannot be revisited, save in those proceedings. When I asked how this could occur, Mr Jackson, who appeared for CY, suggested that an appeal (albeit out of time) might provide a suitable vehicle for such an application to re-open. CY did not agree that such a procedure would be unduly legalistic and formal.
CY made a series of submissions as to the approach to be adopted in considering an application to vary or revoke a non-disclosure, assuming the Tribunal has the power to do so. It is not necessary to consider those submissions in the present context.
AEF's submissions
AEF adopted the submission made by the agency.
The Information Commissioner's submissions
The Information Commissioner submitted that s 75 confers an ancillary procedural power on the Tribunal, which section goes to the manner in which the Tribunal resolves disputes within jurisdiction. It also provides a mechanism 'to preserve or protect rights and interests which might, inadvertently, be prejudiced by the conduct of a hearing into a controversy.'
On this view the Information Commissioner argued that s 75(2B) provides that an order under s 75(2) may be varied or revoked from 'time to time' without requiring that the original proceedings be re-opened.
The Information Commissioner noted that the non-disclosure order was expressed to be made under both s 55 of the FOI Act and s 75 of the ADT Act. S 55 is itself a procedural provision: McGuirk v University of NSW [2009] NSWCA 321 at [39]. The Information Commissioner submitted s 55 only applies to exempt matter under the FOI Act, and is narrower in ambit that s 75. It provides a trigger for the application of s 75 in FOI reviews, and does not prevent the Tribunal varying or revoking a non-disclosure order made under s 75(2)(b).
Consideration
In my view the starting point for consideration of the issues raised here is identifying the true source of the power under which the Tribunal made the non-disclosure order with respect to the reports. If, as is submitted, the order was made under s 75(2)(d) of the ADT Act, then the issue is simply one of the construction of s 75(2B) to determine whether it enables the non-disclosure order to be varied or revoked in the present circumstances.
The non-disclosure order, however, purported to be made under s 75 of the ADT Act and s 55 of the FOI Act. Insofar as the order applies to prohibit disclosure of the Hoyle/Landrigan Report and the Taylor Report, it could not have been made under s 55 of the FOI Act. This is so because those reports did not constitute the exempt matter considered by the Tribunal in CY v Northern Sydney Central Coast Area Health Service. Section 55 provides procedural instructions to the Tribunal concerning the protection of exempt matter from disclosure. As the Hoyle/Landrigan Report and the Taylor Report were not the subject of any exemption claimed in the FOI proceedings, the non-disclosure order made with respect to them could not have been made in reliance on s 55, and must have been made under s 75(2)(d).
That leaves the Kimber Report. It was the subject of the access application under the FOI Act, and CY was successful in arguing it contained exempt matter. The Tribunal in considering it was required to comply with the procedures required by s 55: i.e. it was not to disclose the exempt matter in its reasons or otherwise, and, if necessary, to prevent disclosure, it was to receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.
The non-disclosure order here in issue, while clearly made in aid of the requirements of s 55, prohibited and restricted (subject to defined exceptions) the disclosure of the applicant's name, the documents lodged with the Tribunal and received in evidence, and the transcript of the hearing. The order was not concerned with the Tribunal's reasons. It did not provide for a closed or partially closed hearing. It implemented none of the procedures contemplated by s 55.
Instead it cast a much wider net and, relevantly, prohibited and restricted disclosure of documents filed with and in evidence before the Tribunal. This included the Kimber Report, the Hoyle/Landrigan Report and the Taylor Report. The source of power for the making of such an order was s 75(2)(d). Similarly, the source of power for the order restricting disclosure of the applicant's name is not found is s 55 of the FOI Act, but in s 75(2)(b).
I conclude, as a result, that the non-disclosure order, insofar as it relates to the reports lodged with the Tribunal and tendered in evidence, was made under s 75(2)(d) of the ADT Act.
That being so, the issue is whether s 75(2B), properly construed, allows an application to vary or revoke an order made under s 75(2) to be made after the proceedings in which the original order was made have been completed, and before a differently constituted Tribunal.
Section 75(2B) provides -
The Tribunal may from time to time vary or revoke an order made under subsection (2).
Section 4 defines Tribunal thus -
Tribunal means the Administrative Decisions Tribunal of New South Wales established by this Act.
As a non-presidential judicial member of the General Division of the Tribunal I constitute the Tribunal for the purposes of review proceedings under the GIPA Act (see Cl 5 of Part 4 of Schedule 2 of the ADT Act and s 20-23 of the Act) and for the purposes of review proceedings under the FOI Act.
In my opinion there is nothing in the wording of s 75(2B) that justified an assertion that the words "The Tribunal" in that sub-section means anything more than a properly constituted Tribunal. I am reinforced in that conclusion that by fact that the sub-section allows orders made under s 75(2) to be varied or revoked "from time to time."
In Carter v Carter (1959) 76 AEF (NSW) 181 the Full Court of Supreme Court considered a case stated concerning s 21of the Deserted Wives and Children Act 1901-1952 which provided that an order under that Act may be suspended or varied "from time to time." Among other things, it was argued that the provision only allowed one variation. Owen J, at 183, said of the proposition, "The argument has only to be stated to be rejected and I do not accept." Having described that proposition as "a little alarming" Street CJ, at 183, found that, the words "from time to time," indicated, "the power can be exercised as frequently as the circumstances of the case require."
I am of a similar opinion with respect to the meaning of the words 'from time to time' in s 75(2B). On the ordinary and plain meaning of the words in s 75(2B) I can see no reason for holding that they mean other than what they say, or for imputing into them a requirement that the application be varied or revoked be heard in the same proceedings as that in which they were made. Similarly, I can see no textual reason for implying a requirement that the member who made the initial non-disclosure order constitute the Tribunal considering such an application.
The argument in favour of such limitation being found in the sub-section effectively derives from the context in which they appear. As the Tribunal observed in Z v University of A, Dr D & B (No 4) [2002] NSWADT 14 at [8] s 75(1) reflects the general principle that justice should be administered openly. By s 75(2) the legislature has given the Tribunal express power to depart form the principle, in defined ways, where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. This is a power which is not be exercised lightly, as it has the effect of removing the deliberations of the Tribunal form public scrutiny.
In Walton v Momot [ 1997] NSWCA 334 the Court of Appeal considered an appeal from a decision of the Chiropractors and Osteopaths Tribunal to refuse to make an order suppressing disclosure of the name of a chiropractor who faced disciplinary proceedings. The Chiropractors and Osteopaths Act 1991 contained a provisio, similar to s 75, empowering the Tribunal to make such an order. Handley JA, with whom Priestly JA and Grove AJA agreed said -
The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner.
This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule.
This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts, most recently, for relevant purposes, in John Fairfax & Sons Limited v The Police Tribunal (1986) 5 NSWLR at 465, and by Samuels JA in Bowen-James v Delegate of Director-General Department of Health (40432/91 unreported 29/7/91 ). The Chairman therefore did not misdirect himself when he said that special or exceptional circumstances had to be established before a suppression order could properly be made.
In the course of his judgment His Honour referred to need, at times, for such orders to be limited in 'duration'.
Orders made under s 75(2)(d) restricting the disclosure of evidence given to the Tribunal have, as is the case here, the potential to be of unlimited duration. Thus it is possible for such an order to continue long after the matters that led to it being made have ceased to exist, become non-controversial, or no longer have the importance that attached to them when they were made. Similarly, it is possible for an order of defined duration to prove insufficient due to changes in circumstances.
Given the primacy of the public hearing directive in s 75(1) and the need for the Tribunal's decision making to open and accountable, I consider s 75(2B), in its literal form, to be entirely consistent with an evident Parliamentary intention that the Tribunal have the capacity and power to revoke and vary orders made under s 15(2) at any time. I can see nothing in the balance of the section that indicates an intention that the section be read other than in its usual literal and grammatical sense.
I also agree with the agency's submission that such a reading of s 75(2B) is consistent with the objects of the ADT Act (particularly s 3(c) and (c) - an accessible Tribunal, whose proceedings are informal, expeditious efficient and effective, and whose decision are fair) - and the legislative injunction is s 73(3) that the Tribunal is to ' to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.' In my opinion, read literally and without limitation, s 75(2B) is consistent with the rest of the ADT Act, which contains no provision indicating that they should be read in any other way.
As a result I conclude that the Tribunal as constituted does have power to make an order under s 75(3B) of the ADT Act varying or revoking the non-disclosure order made by the Tribunal in CY v Northern Sydney Central Coast Area Health Service.
Conclusion
In accordance with the understanding reached with the parties at the preliminary hearing, I will make directions for the filing and service of the evidence upon which the parties intend to rely with respect to both the GIPA Act review and the application under s 75(3B), following which I will fix a further planning meeting to chart the course of the matter from then on.
In order to preserve the integrity of the non-disclosure orders made in CY v Northern Sydney Central Coast Area Health Service , pending the determination of these applications, I will make a further order under s 75(2)(b) prohibiting, until the determination of these proceedings, the disclosure of the name, address, or any other material that identifies, or may lead to the identification of the applicant, his wife and daughter, or the joined party.
Orders and Directions
The formal orders I make are as follows
1. All parties shall file and serve any statements of evidence or other documentary evidence upon which they wishes to rely by 4 August 2011.
2. All parties shall file and serve any statements of evidence or other documentary evidence in reply by 25 August 2011.
3. The matters are listed for a further planning meeting on 30 August at 11:00AM (allow 1.5 hours).
4. Until the determination of these proceedings order under 75(2)(b) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure of the name, address, or any other material that identifies, or may lead to the identification of the applicant, his wife and daughter, or the joined party.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
**********
Decision last updated: 26 July 2011
2
5
3