AF v RTA

[2009] NSWADT 274

CITATION:	AF v RTA [2009] NSWADT 274
DIVISION:	General Division
PARTIES:	APPLICANT AF RESPONDENT Roads and Traffic Authority of NSW
FILE NUMBER:	073135, 073275
HEARING DATES:	15.04.08, 12.06.08, 15.07.08, 16.07.08, 17.07.08, 09.09.08, 07.11.08, 10.11.08, 26.02.09, 27.02.09, 15.04.09 and 16.04.09.
SUBMISSIONS CLOSED:	16 April 2009
DATE OF DECISION:	29 October 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Summary dismissal of application. Jurisdictional issues. Preliminary determination of substantive issues. Incapacity of an applicant.
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
CASES CITED:	Y v Director General, Department of Education & Training [2001] NSWADT 149 AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86
REPRESENTATION:	APPLICANT In person RESPONDENT M A Robinson, of Counsel
ORDERS:	1.The respondent’s application that a person be appointed to represent the applicant in the proceedings is dismissed 2. The respondent’s interlocutory applications for preliminary dismissal, summary dismissal and dismissal without substantive determination are dismissed without making findings adverse to either party 3. The proceedings are listed for directions on 03 November 2009 at 11:00 am.

REASONS FOR DECISION

1 The applicant commenced these two proceedings in the Tribunal pursuant to the provisions of the Privacy and Personal Information Protection Act 1998 (the privacy legislation) alleging a series of acts done by the respondent in breach thereof. Neither matter has yet reached a substantive hearing. Presently before the Tribunal for determination is an application by the respondent for an early dismissal of certain parts of each proceeding, the application being made on several distinct grounds. The applicant has responded to this by bringing her own interlocutory application, namely that the interlocutory application brought by the respondent itself be summarily dismissed. In essence, the applicant’s interlocutory application may be taken as an argument that the respondent’s interlocutory application should not succeed on any of the grounds argued.

2 The respondent has developed clear submissions, and has presented the evidence it wishes to rely upon for the purpose of the interlocutory application in such a way that its submissions are cogently supported. There is no doubt that, on this evidence, findings in favour of the respondent’s submissions are open to the Tribunal. However, the critical question is whether the findings pressed by the respondent ought to be made at this stage on the evidence presented so far. The applicant has raised issues in argument against making the findings sought, some of which, although not always supported by evidence at this stage, have a degree of cogency. In general terms, the applicant has not engaged in disputing the evidence adduced by the respondent but has argued that it does not present the full picture. There are significant facts, she alleges, which should be considered before any final determinations are made and which, if accepted by the Tribunal, could result in ultimate determinations in her favour. The respondent did not accept that this is so, and indicated that it wished to cross-examine the applicant on the evidentiary side of her arguments. This opportunity was not afforded to the respondent, given the interlocutory nature of the application and the time that had been consumed. However, even allowing for this, the applicant’s arguments have raised sufficient doubt so as to persuade the Tribunal, for the reasons discussed hereunder, to conclude that it is not satisfied that the findings and conclusions for which the respondent contends are the correct ones to make at this stage. A proper hearing on the merits is required.

3 The respondent has approached its interlocutory application by culling from the two proceedings a series of allegations made by the applicant which the respondent has identified and crystallised as 7 specific complaints. The respondent’s interlocutory application is directed to 6 of these 7 complaints that it has so identified: one complaint (complaint number 5) is not affected and the respondent concedes that this complaint will need to go for substantive hearing. Also, the respondent indicated that it was ready to undertake a substantive hearing as to parts of the complaints dealing with access to information, should the Tribunal wish to entertain them at this stage.

4 The applicant has responded by adducing a great deal of documentary materials on the interlocutory application. Although this perhaps exceeded what was ideally necessary, the applicant explained that she thought she needed to do this so as to present her case at its highest. This aspect, together with the detailed submissions that were made, had the unfortunate consequence that the interlocutory application has consumed a great deal of time, this being compounded by the respondent’s additional application that a representative be appointed to act for the applicant, a matter that was raised during the course of the interlocutory hearing. Much of the applicant’s materials, and submissions, involved assertions of fact, rather than evidence of facts (see the discussion at transcript 15.07.08 page 456 ff). As the Tribunal should not treat these assertions as evidence, the factual findings that it is able to make are somewhat limited: such assertions however may be considered as showing what the applicant proposes to prove, should the proceedings reach a substantial hearing. This does mean though that the Tribunal is not able, at this stage, to make any final determinations of fact or law relevant to the issues now before it. Consequently, the issues raised on the interlocutory application remain open.

5 The several interlocutory applications invoke a number of significant principles. First, when the question of jurisdiction is raised, the Tribunal would be remiss if it did not at least consider the point at an early stage. It may not be able to resolve the question early, as this will depend upon how clearly the issue is presented and developed in argument. Secondly, if an interlocutory application is an invitation to hear a party on a single issue that may dispose of the matter finally without a full hearing of all issues, it will only be apposite to follow such a course where the point in issue raises discrete factual questions, where all the relevant evidence is in and where the parties are able to clearly argue what facts ought to be found on the evidence and the legal consequences which follow. Essentially, it is a matter of convenience and quick, but fair, disposition of the matter. If the Tribunal is able to reach a determination, one way or the other, then the proceedings will either be dismissed (in whole or in part) or will proceed to a hearing with the determination that was made continuing in such a way that it will also feature in the final determination itself. However, if the Tribunal is not persuaded that a critical fact ought to be found, or that a critical conclusion ought not be drawn then, although the interlocutory application will fail, there will be no final determination of any issues that could limit the arguments that are open to the parties at the final hearing. This will be the case (a) where the Tribunal is not persuaded that it should reach the conclusion pressed or (b) where there is an issue to be properly tried. Thirdly, in relation to a summary disposal application in the strict sense, the party making the application is required to accept the other side’s case put at its highest, this being accepted by the respondent in this case.

6 It is common ground that the applicant was employed by the respondent during the course of which two significant events occurred: first, she had some time away from work by reason of a work related illness and secondly, she sought appointment to the position of a Project Engineer after recuperation. Both these events feature in the substantive applications she has brought to the Tribunal.

7 In relation to the complaints that it contests, the respondent has put its interlocutory application essentially on two different bases (there is a third basis which is discussed post). First, it argues that some of the complaints, or parts thereof, should be finally dismissed at this stage because they must necessarily fail. The several arguments advanced by the respondent in this category are not pure points of law: instead each of them involves factual determinations for which the respondent contends which, if established, have the legal consequence that the applicant’s case must fail, either in point of law or because the Tribunal is without jurisdiction to entertain it. A good example of this side of the application is the argument that, in relation to some of the complaints, the information about the applicant that was collected, disclosed or used, was in fact information about the applicant’s suitability for employment in the public sector and therefore section 4(3)(j) of the Privacy Act (or s.5(3)(m) of the heath records legislation) has application. Should this section apply, then the legislation itself has no application and consequently, the respondent argues, the Tribunal is without jurisdiction to entertain any application based on the use of such information. Whilst the conclusion is correct, the reasoning that the Tribunal is without jurisdiction where the information involved falls within s.4(3)(j) is suspect. Where s.4(3)(j) applies to the information in question the consequence is that a respondent, when dealing with the information, is not required to observe the privacy requirements of the legislation. As the Act has no application, then it follows that there can be no breach of the Act by collecting, disclosing or using such information. This is a substantive issue, rather than a question of jurisdiction. Should the Tribunal determine that the information in question falls within the section, this is a determination within jurisdiction. It is the type of determination that the Tribunal must make in all cases that come before it and it involves simply determining whether, on the facts as found by the Tribunal, a provision of the Act is, or is not, satisfied. In the example under consideration, a finding that the information used is not personal information as defined has the consequence that any user of that information cannot amount to a breach of the legislation. A jurisdictional issue, on the other hand, involves determining whether a condition precedent to entertaining the application has or has not been fulfilled. Determining such an issue does not determine whether or not the legislation has been breached, as it is procedural rather than substantial in nature. A good example of a jurisdictional point is the question whether or not there has been internal review before the Tribunal is approached. If this requirement is not satisfied then the Tribunal is in fact without jurisdiction, even if the respondent has acted in breach of the legislation: in such a case the Tribunal cannot entertain the application, save for determining the question whether it has jurisdiction. A determination that a proceeding involves information that is not personal information as defined means that the legislation does not apply to the information in question so that any user of the information cannot constitute a breach of the Act: such a determination does not have the consequence that the Tribunal has no jurisdiction with respect to the application before it.

8 It is of course open to a party to argue the s.4(3)(j) point as a distinct issue at some preliminary stage, as the determination, if in favour of a respondent, would determine the proceedings finally. Whether this issue may be taken as a preliminary point or would be better left to a substantive determination will depend upon the convenience attaching to the issue: in some cases where the evidence on the point is discrete it may well be appropriate to determine the question as a preliminary point, particularly when to do so will avoid significant time and expense in preparing for a substantive hearing.

9 Whether the question concerning the application of s.4(3)(j) is properly regarded as a jurisdictional issue or as a preliminary determination of a substantive issue is not of great moment here as the result will be the same in either case, should the respondent’s argument prevail. Both approaches involve the same question. Clearly, if s.4(3)(j) has application to all of the information about the applicant that is involved then that is an end of the matter, irrespective of whether this is a jurisdictional point or not. However, as the respondent has raised this particular issue as a jurisdictional point, it should be addressed early in the proceedings to some extent at least, given that the Tribunal must always be satisfied that it has jurisdiction. For this reason the Tribunal has entertained the respondent’s interlocutory application rather than defer the issues to a substantive hearing.

10 The second basis upon which the respondent puts its interlocutory application is that some of the identified complaints should be summarily dismissed as they are frivolous, vexatious, misconceived or lacking in substance (s.73(5)(h) Administrative Decisions Tribunal Act 1997). In this regard the respondent focussed on the argument that the substantive application was without substance or misconceived (transcript 15.07.08, page 27.45). It would be within power for the Tribunal, after considering an application based on these grounds, to defer any determination until after the substantive hearing, or to hear it at the same time as the substantive hearing. This would depend upon convenience and the scope of the evidence that is required to be considered on the summary application: where, for example, it is argued that the principal application is without substance an applicant may wish to adduce all of his or her evidence in order to show that there is substance in what is alleged and, in such circumstances, it may be preferable to defer consideration to a final hearing. However, in the present matter, as the Tribunal should properly consider at an early stage the allegation that it does not have jurisdiction, it is convenient to consider the respondent’s summary dismissal application at the same time.

11 The parties adopt different positions in relation to the respondent’s interlocutory applications. For the respondent, the view is taken that they may all be taken to finality at this stage, all relevant evidence having been adduced, the consequence being that much of the content of the proceedings will be finally resolved here and now. The applicant, on the other hand argues that relevant evidence is still outstanding and there are a number of issues, apart from those raised by the respondent, which require determination and which should be left until after a substantive hearing so that all relevant evidence may be properly adduced. It should be noted that the applicant proposes to issue summonses for the attendance of witnesses from whom she wishes to take evidence. In light of these considerations, the Tribunal is of the view that the best course is for it to examine the respondent’s submissions to determine, if possible, whether it does not have jurisdiction in relation to any claim (or part thereof) and, if in the course of this process it is able to reach any final determinations on the first category of arguments that dispose of any part of the proceedings, then it should do so. If it cannot reach any final determinations, then the issues raised by the respondent in this category should be determined after a substantive hearing when the parties have had a chance to adduce all relevant evidence. Following this the Tribunal should then consider the summary dismissal arguments put by the respondent.

12 For completeness, it should be noted that the respondent also contends as a third ground, and in addition to its points of fact and law and summary dismissal application, that the Tribunal should take no action in the proceedings and should dismiss them simpliciter without making any determination as to breach of the legislation (following AW v Vice-Chancellor, University of Newcastle,[2008] NSWADT 86). This part of the respondent’s may be considered as well at this stage.

13 The 7 complaints identified by the respondent are considered hereunder, but not in numerical order. Rather, the Tribunal will follow the chronological order in the same way that the respondent developed its arguments. It will become apparent from the reasons that follow that the respondent’s main application is based on the provisions of s.4(3)(j) of the privacy legislation.

THE FIRST CATEGORY OF ARGUMENTS FOR THE RESPONDENT:
POINTS OF FACT AND LAW AND JURISDICTION

14 The submissions of the parties refer to this as the Referees Complaint. In March 2006 the applicant applied for an appointment as a Project Engineer. As part of that application the applicant provided the names of 4 persons described by the respondent as referees. Following interview by the respondent’s Assessment Panel, the convenor of the Panel contacted these four persons and obtained information from them about the applicant. The Panel also, as a necessity, provided information about the applicant to the four persons so as to obtain relevant comment. The respondent’s submissions state that the applicant was eventually unsuccessful in her application, which the applicant disputes. The applicant alleges that this disclosure, collection and/or user of information about her was in breach of privacy legislation. At least part of the relevant information that was collected and used by the respondent is contained in confidential notes that the applicant has not been provided with in these proceedings, although she believes that she has seen these notes in other matters. Any notes that she has seen of course may differ from the notes that the Tribunal has been provided with by the respondent.

15 The first argument advanced by the respondent is that the provisions of s.4(3)(j) of the Privacy Act apply so that the information given, obtained and used by the Panel is excluded from the definition of personal information with the consequence that the Act has no application. In answer to this argument the applicant raises a number of points. One of these points is that, by reason of her then current classification, the process involved should be characterised as a priority assessment of a displaced employee and that this falls outside the routine personnel context referred to in Y v Director General, Department of Education and Training [2001] NSWADT 149. Therefore, the applicant argues, the subject information does not properly concern her suitability for employment within the meaning of the section. Whilst the process obviously involved the applicant’s employment with the respondent, the applicant is pressing for a qualitative distinction between the priority assessment of a displaced person (as she puts it) and conduct properly falling within the sub-section, a distinction which, according to the applicant, the decision in Y v Director General, Department of Education and Training dictates. It is common ground that at relevant times the applicant was in paid employment with the respondent, that she was a displaced officer, not working her normal duties, and would remain so until some appointment or accommodation for her could be arranged (see transcript 17.07.08 page 24.23 ff). Clearly there is an issue to be tried here, being one which depends upon the evidence adduced in relation to the appointment process itself, as the authorities well show, and the construction of s.4(3)(j). It should be noted as well that the applicant also asserts, inter alia, that the process itself was unlawful and therefore falls outside s.4(3)(j). Whilst the respondent’s argument in the long run may prevail, an issue as to which the Tribunal makes no determination here, the point cannot be decided in the respondent’s favour at this stage of the proceedings. To attempt to reach a final determination at this stage would involve relying upon the way in which the parties characterise this process in their submissions, rather than hearing evidence about what this process in fact involved. This would not be an appropriate course. Consequently, the Tribunal is not satisfied, at this stage, that it should make any final determination that s.4(3)(j) has application to the subject information as the respondent alleges.

16 The respondent then advanced three alternative arguments (exhibit R1 paragraph 23) in relation to this complaint. These arguments involve factual determinations as to the extent of the information involved, the knowledge of the recipients and whether the applicant gave her consent to certain disclosures. In light of the above reasons and the need to hear evidence, it is not apposite to determine these arguments at this stage. A substantive hearing would be necessary.

17 The parties have referred to this complaint as the fax machine incident. After the applicant’s application for the Project Engineer position was unsuccessful she lodged an appeal, or review, against this decision. The appeal papers were lodged by way of facsimile transmission to a number which the respondent had provided to the applicant. This number was not the correct one, the consequence of which was that the appeal documents were not transmitted confidentially to the particular employee of the respondent who was the intended recipient. The documents sat in a location for some time during which they were open to perusal by employees of the respondent who were not the intended recipient. The applicant contends that this constitutes a breach of the privacy legislation.

18 The respondent argues that there can be no relevant breach as the information inserted in the appeal documents, even though it concerns the applicant, is necessarily excluded from the definition of personal information by s.4(3)(j) of the Act. This, the respondent, argues follows naturally from the fate of complaint 2 as well as from the very nature of the appeal process itself.

19 There is obviously a nexus between complaints 2 and 1, the appeal having arisen out of the initial application for the position of Project Engineer. Consequently, for the reasons given in relation to complaint 2, a determination of complaint 1 must await a hearing on the merits so that the factual matrix may be fully examined.

COMPLAINT 3 (PART 1)

20 The parties have referred to this complaint as the request for access (part 1). Pursuant to s.14 of the privacy legislation the applicant sought access to certain documents maintained by the respondent which contained information about her. Access was refused on several grounds and the applicant consequently sought review by the Tribunal. The respondent has separated the information with which this complaint is concerned into 7 categories: the first category is under consideration here, with the remaining categories being the subject of the respondent’s summary dismissal application to be considered later in these reasons. Access to this category 1 information was refused on the basis that the information about the applicant contained in the relevant documents was not personal information as defined, as it fell within the s.4(3)(j) exclusion (exhibit R1, paragraphs 27 to 36). Strictly speaking, the entitlement provided by s.14 is one of access to information, rather than access to documents. The question raised then is whether the information sought by the applicant is information or an opinion about the applicant’s suitability for appointment or employment with the respondent. If it is, the respondent submits that the Tribunal is without jurisdiction as to the first part of complaint 3. However, for the reasons given earlier, if this determination is made this part of the complaint should be dismissed, even if it does not go to jurisdiction.

21 A number of points were developed by the applicant in response. One point in particular is that the applicant asserts that, during the period material to this question, the applicant was not involved in seeking advancement nor was she involved in any disciplinary process (exhibit AA1 paragraphs 57 ff), an assertion based on written advice she was given by a senior officer (exhibit AA1 paragraph 63(i)). The argument she is here making out is that the Tribunal should not look only to the nature of the information itself, but should also consider its factual context. As noted above, the authorities clearly show the importance of factual context to the question under consideration. At this stage this factual context has not been fully developed so that the Tribunal is not persuaded that the correct decision is to hold that the information contained in the category 1 documents comes within the s.4(3)(j) exclusion.

22 The respondent argued additionally that particular documents identified in its submissions (exhibit R1 paragraphs 37 ff and 45ff) are in fact exempt documents under the applicable legislation. However, it would be preferable to leave these questions to a substantive hearing when all the evidence is in.

23 The parties have referred to this complaint as the referral to HealthQuest. In June 2007 the respondent treated the applicant as being an excess officer and referred her to HealthQuest for a medical assessment, allegedly for the purpose of ascertaining her capacity for work. It is said by the respondent that the applicant did not attend for interview when requested, this being disputed by the applicant upon the basis that she was granted an extension of time. It is common ground that this referral to HealthQuest involved a disclosure of information about the applicant and that disciplinary proceedings were taken against the applicant by reason of her alleged failure to attend for interview. Again here the respondent relies upon s.4(3)(j) of the Act (and s.5(3)(m), being the equivalent provision in the health records legislation, the Health Records and Information Privacy Act 2002), arguing that the information was provided for the purpose of assessing the applicants suitability for (continued or resumed) employment with the respondent. This is put on the basis that, the respondent alleges, between May 2006 and June 2007 the applicant was absent from work and frequently on sick leave. There is a factual issue attending this in that the applicant asserts that during this period she was on a type of graded return to work, which was progressing satisfactorily. Of course, in the normal run of events, it is quite easy to see the logic in an argument that a medical assessment of a prospective employee could well come within the expression suitability for employment, this being the basis for the respondent’s submission. The applicant asserts though that the precise factual context makes a significant difference in her case.

24 The relationship between this complaint and the subject matter of complaints 1 and 2, if any, is not clear at this stage. If there is a relationship, and depending upon what it in fact is, the evidence and arguments touching on complaints 1 and 2 will have a bearing on the issue here. Apart from this aspect, the applicant wishes to argue that the referral to HealthQuest in fact had no relationship with the applicant’s suitability for employment with the respondent, the suggestion being that an extraneous purpose was involved. Here the applicant argues that the information provided to HealthQuest, or at least part of it, was in fact employed in the referral for a purpose different to that for which it was collected.

25 There are sufficient issues attending this aspect of the proceedings which, together with the strong likelihood that further evidence could be presented from the applicant’s side, tell against deciding the question on a preliminary basis. Whilst the respondent has adduced most, if not all, of its evidence it is unlikely that the applicant has. Consequently, the question should be left to a final hearing.

26 The respondent has set forth the complaints which are the subject of this application at paragraph 64 of its submissions (exhibit R1) and has developed its arguments at paragraph 66. The Tribunal is persuaded that it is preferable to leave the issues raised for determination after a substantive hearing. There are three reasons for this. First, many of the issues involve factual determinations that should not be made until all the evidence is in (see for example exhibit R1 paragraph 66(d)). Secondly, the applicant’s submissions set forth issues that would be better considered as substantive matters, rather than as summary dismissal applications. This is not intended to be a curt dismissal of the respondent’s arguments, but rather as a determination that there is a better time to consider them, namely after all the evidence is in. There is clearly some substance in the respondent’s submissions in relation to some of the complaints (see exhibit R1 paragraphs 66(b)(i), 66(b)(ii) and 66(c). Thirdly, the applicant’s written submissions do not always reveal clearly the points she wishes to make whereas in oral argument she is often able to precisely state what her position is. She should be given the opportunity to do so.

27 It is not apposite to follow this course in the circumstances of this case. There is a great deal of evidence outstanding and the applicant has raised sufficient concerns to demonstrate that the issues are of significant moment. The complaints ought to proceed to trial of the many issues that have already been addressed in these reasons.

28 The parties have referred to this complaint as the Union disclosure. Evidence was filed in relation to this matter by the respondent, but the arguments proposed by the respondent are not being pressed at this stage. Consequently, no consideration is required.

29 The applicant has clearly demonstrated that she is able to prepare and present her case cogently and that she is able to put her mind to the issues raised by the respondent against the case she is arguing for. The medical evidence adduced by the respondent does not persuade the Tribunal otherwise. It is true that her written submissions do not always develop her points clearly, but she is able to do this in oral submissions. It is also true that the applicant does not present her arguments as concisely as a legal representative would be able to, but this is common amongst litigants appearing without legal assistance. However, these aspects do not persuade the Tribunal that the applicant is incapable within the meaning of the section.