ALZ v Lismore City Council

[2016] NSWCATAD 20

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	ALZ v Lismore City Council [2016] NSWCATAD 20
Hearing dates:	8 July 2015; 2 September 2015
Date of orders:	02 February 2016
Decision date:	02 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery - Senior Member
Decision:	1. The Tribunal has no jurisdiction to review those aspects of part (a) of the application to which the section 41 Direction applies. The Tribunal determines to take no further action in regard to the remainder of part (a) of the application. 2.   Part (b) of the application is dismissed for want of jurisdiction. 3.   Part (c) of the application is remitted for redetermination by the Council. The review is to be completed within 60 days from the date of this decision. The matter is listed for a further planning meeting on Tuesday 19 April 2016 at 9.30 am.
Catchwords:	Privacy – personal information - jurisdiction
Legislation Cited:	Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013
Cases Cited:	AET v Western NSW Local Health District AET v Rural and Remote Medical Services t/as Gulgong Medical Centre [ 2012] NSWADT 77: AQG v Crown Solicitor’s Office [2015] NSWCATAD 112 BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79 Coco v R [1994] HCA 15 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street [2008] HCA 36 NZ v Attorney General's Department [2005] NSWADT 103 ZR v Department of Education and Training [2010] NSWADTAP 75
Texts Cited:	Direction on Processing of Personal Information by Public Sector Agencies in relation to their Investigative Functions
Category:	Procedural and other rulings
Parties:	ALZ (Applicant) Lismore City Council (Respondent)
Representation:	Solicitors: ALZ (Applicant in person) Local Government NSW (Respondent)
File Number(s):	1410345

REASONS FOR DECISION

1. The Applicant has applied to the Tribunal for external review of alleged conduct of the Lismore City Council (“the Respondent” or “the Council”). The Application is made pursuant to the provisions of section 55 of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”).

2. The Applicant sought review by the Tribunal because she was dissatisfied with the Council’s failure to conduct a review of a privacy complaint that she had raised in an internal review application dated 31 March 2014.

3. Section 53 of the PPIP Act provides for a person who is aggrieved by the conduct of a public sector agency to seek review of that conduct. Subsection 53(3) provides:

(3) An application for such a review must:

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) comply with such other requirements as may be prescribed by the regulations.

4. There is no suggestion that the Applicant’s 31 March 2014 internal review application did not comply with subsection 53(3). Subsection 53(6) provides that if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application to the Tribunal under section 55 for an administrative review of the conduct concerned. Section 55(2) of the PPIP Act provides that:

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

5. In her internal review application she identified the following conduct as the subject of her concerns:

“(a)    The inclusion of the following unfavourable, misleading and irrelevant personal information in the internal review decision (which failed to review the conduct complained of) issued by Lismore City Council in September 2013:

• Statements from staff witnesses of an incident which occurred on 2 November 2011

• Interviews with Gingerbread House staff on 23 November 2011

• An incomplete formal warning letter dated 5 March 2012.

Causing the information to be disclosed to other people, including from the Administrative Decisions Tribunal, the Privacy Commissioner and Local Government NSW (“the internal review issue”).

(b)   In her 22 October 2013 statement to the Administrative Decisions Tribunal [“the ADT”], Christine Imeson:

• Used and disclosed irrelevant information about my workers compensation claim.

• Used and disclosed health information from a psychiatric report by Dr Prabal Kar which Ms Imeson had illegally collected from StateCover in December 2011, misrepresenting, discussing, paraphrasing, and quoting from the report against my interests to further her own (“the Imeson statement issue”).

(c)   On 19 September 2012, Ms Imeson emailed Jenny Lynch, StateCover, my email correspondence with Fran Summerfield relating to a privacy complaint internal review (“the Imeson email issue”).”

6. The Council did not conduct an internal review of the conduct that was the subject of the Applicant's internal review application and consequently there is no internal review decision before the Tribunal. The Tribunal's review jurisdiction is limited and constrained to those matters that were the subject of the internal review application to the Council. Accordingly, the conduct that is under consideration in these proceedings is:

1. the internal review issue;

2. the Imeson statement issue; and

3. the Imeson email issue.

The Council’s position

7. The Council contends that the Tribunal does not have the jurisdiction to deal with any of the matters raised by the application.

8. In relation to the internal review issue the Council contends that:

(a) the information in question was information or an opinion about the Applicant's suitability for appointment or employment as a public sector official and accordingly fell within the exception provided by section 4(3)(j) of the PPIP Act and accordingly did not constitute personal information; and

(b) section 25 of the PPIP Act affords the Council with the right to not comply with most of the privacy principles if non-compliance is permitted or reasonably contemplated under an Act or any other law.

9. In relation to the Imeson statement issue the Council contends:

(a)   that the disclosure of that information was for the purpose of legal proceedings arising out of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”) and thereby exempt by operation of section 70(c) of the NCAT Act; and

(b) the information related to the suitability of the Applicant's employment and thereby pursuant to 4(3)(j) of the PPIP Act and section 5(3)(m) of the Health Records and Information Privacy Act 2002 did not constitute personal information or health information.

10. In relation to the Imeson email issue the Council contends that the Tribunal is precluded from reviewing the conduct as it pertains to a document that the Applicant received by way of a process of discovery in other proceedings and as such the Applicant cannot, without leave, use the document for any purpose other than that for which it was given.

Applicable Legislation

11. Section 4 of the PPIP Act provides:

4 Definition of “personal information”

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

...

(3) Personal information does not include any of the following:

…

(j) information or an opinion about an individual’s suitability for appointment or employment as a public sector official

…

12. Section 6 of the PPIP Act provides:

6 Courts, tribunals and Royal Commissions not affected

(1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.

(2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission’s functions.

(3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes:

(a) in relation to a Magistrate—such of the functions of the Magistrate as relate to the conduct of committal proceedings, and

(b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009.

13. Sections 8, 11, 12, 16 and 19 (2) – (5) of the PPIP Act provide:

8 Collection of personal information for lawful purposes

(1) A public sector agency must not collect personal information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b) the collection of the information is reasonably necessary for that purpose.

(2) A public sector agency must not collect personal information by any unlawful means.

11 Other requirements relating to collection of personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that:

(a) the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and

(b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

12 Retention and security of personal information

A public sector agency that holds personal information must ensure:

(a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

(b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information.

16 Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

19 Special restrictions on disclosure of personal information

...

(2) A public sector agency that holds personal information must not disclose the information to any person or body who is in a jurisdiction outside New South Wales or to a Commonwealth agency unless:

(a) a relevant privacy law that applies to the personal information concerned is in force in that jurisdiction or applies to that Commonwealth agency, or

(b) the disclosure is permitted under a privacy code of practice.

(3) For the purposes of subsection (2), a

"relevant privacy law" means a law that is determined by the Privacy Commissioner, by notice published in the Gazette, to be a privacy law for the jurisdiction concerned.

(4) The Privacy Commissioner is to prepare a code relating to the disclosure of personal information by public sector agencies to persons or bodies outside New South Wales and to Commonwealth agencies.

(5) Subsection (2) does not apply:

(a) until after the first anniversary of the commencement of this section, or

(b) until a code referred to in subsection (4) is made,

whichever is the later.

14. Section 25 of the PPIP Act provides:

25 Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

15. Section 41 of the PPIP Act provides:

41 Exempting agencies from complying with principles and codes

(1) The Privacy Commissioner, with the approval of the Minister, may make a written direction that:

(a) a public sector agency is not required to comply with an information protection principle or a privacy code of practice, or

(b) the application of a principle or a code to a public sector agency is to be modified as specified in the direction.

(2) Any such direction has effect despite any other provision of this Act.

(3) The Privacy Commissioner is not to make a direction under this section unless the Privacy Commissioner is satisfied that the public interest in requiring the public sector agency to comply with the principle or code is outweighed by the public interest in the Privacy Commissioner making the direction.

16. Section 70(c) of the NCAT Act provides:

70 Improper disclosure of information

A person must not disclose information obtained in exercising a function under this Act unless the disclosure is made:

(a) with the consent of the person to whom the information relates, or

(b) in connection with the execution or administration of this Act or the Administrative Decisions Review Act 1997 or other enabling legislation, or

(c) for the purpose of any legal proceedings arising out of this Act or the Administrative Decisions Review Act 1997 or other enabling legislation or any report of such proceedings, or

(d) with other legal excuse.

Maximum penalty:

(a) in the case of a corporation—100 penalty units, or

(b) in any other case—50 penalty units or imprisonment for 12 months, or both.

17. The Privacy Commissioner has made a direction under section 41. The conduct about which the Applicant has complained is said to have occurred in September 2013, October 2013 and September 2012. The Privacy Commissioner’s “Direction on Processing of Personal Information by Public Sector Agencies in relation to their Investigative Functions” (“the section 41 Direction”) issued in December 2011 and renewed annually thereafter provides that:

6. A relevant agency need not comply with sections 9, 10, 13, 14, 15, 17, 18, or 19(1) of the PPIP Act if non-compliance is reasonably necessary for the proper exercise of any of the agency's investigative functions or its conduct of any lawful investigations.

6A. A relevant agency need not comply with sections 18 or 19(1) of the PPIP Act if non-compliance is reasonably necessary to assist another relevant agency exercising investigative functions or conducting a lawful investigation.

6AA. A relevant agency need not comply with sections 9, 10, 13, 14, 15, 17, 18, or 19 (1) of the PPIP Act if non-compliance is reasonably necessary for the relevant agency to conduct an investigation for a public sector agency (the client agency) and:

(i) the investigating agency or the client agency has specific legislative authority to carry out the investigation; or

(ii) the power of the investigating agency or the client agency to conduct the

investigation is necessarily implied or reasonably contemplated under an

Act or other law; and

the investigation may lead to the client agency taking or instituting formal action in relation to the behaviour under investigation.

18. The Council is a public sector agency within the meaning of section 3 of the PIPP Act and therefore is a relevant agency that is covered by the section 41 Direction.

The internal review issue

19. The Council submits that the effect of the section 41 Direction is that the Council was not required to comply with sections 9, 10, 13, 14, 15, 17, 18, or 19(1) of the PPIP Act as the information contained in the internal review of 9 September 2013 was information that arose during the course of an internal review pursuant to section 53 of the PPIP Act.

20. The Applicant stated that she expected the Council to use her personal information in the internal review report. For example she expected her name, contact information, the details of her complaint, and other relevant information would be included. However, she did not expect that the internal review report would contain disciplinary documents which she considers had nothing to do with the conduct that was the subject of her internal review application.

21. The Applicant accepts that the Council is an agency for the purposes of the section 41 Direction. However, she submits that even if the section 41 Direction applies, it does not permit non-compliance with sections 8, 11, 12, 16 and 19 (2) – (5) of the PPIP Act.

22. She further submits that an internal review conducted by an agency under section 53 of the PPIP Act is not a "lawful investigation" under the section 41 Direction.

23. In the section 41 Direction ""lawful investigation" means:

“an investigation carried out by an agency under specific legislative authority or where the power to conduct the investigation is necessarily implied or reasonably contemplated under an Act or other law. It covers only those investigations which may lead to the agency taking or instituting formal action in relation to the behaviour under investigation. Such formal action may include, but is not limited to, prosecution, warning, cautioning, the administration of a penalty or the removal of a benefit or approval”.

24. The Applicant submits that the Section 53 of the PPIP Act gave the Council "specific legislative authority" to conduct an internal review of the conduct that was the subject of her application, and the discretion to take one or more of the actions that are listed in section 53 (7). She further submits that an internal review does not lead to the formal actions described in the section 41 Direction and, therefore, a section 53 internal review is not a lawful investigation under the section 41 Direction.

25. I do not agree with the Applicant’s submission in this regard. For the purposes of the section 41 Direction an 'investigation' is defined as a matter that includes any examination or any preliminary examination into a matter. A 'lawful investigation' to mean an investigation carried out by a public sector agency where the power to conduct the investigation is necessarily implied or reasonably contemplated under an Act or other law. Section 53(2) specifically requires a public sector agency to undertake a review when an application is made pursuant to section 53(1) of the PPIP Act. Further, it is clear that the formal actions described in the section 41 Direction are not limited. They could include those actions provided for by section 53 (7) of the PPIP Act. In my view, the section 41 Direction provides an agency the opportunity to conduct its review of the alleged conduct without the need to comply with the stated provisions of the PPIP Act.

24. However, I agree with the Applicant that the section 41 Direction does not permit non-compliance with sections 8, 11, 12, 16 and 19 (2) – (5) of the PPIP Act.

25. In the alternative, the Applicant submits that the section 41 Direction did not permit non-compliance with sections 17 and 18 of the PPIP Act because the Council did not properly exercise their investigative functions when conducting the internal review.

26. She submits that the section 41 Direction only permitted non-compliance "if non-compliance is reasonably necessary for the proper exercise of any of the agency's investigative functions or its conduct of any lawful investigations." ""Investigative functions" of an agency refer to those functions that are directly related to a lawful investigation and that are necessary for the conduct of that lawful investigation".

27. She submits that the Council did not properly exercise its internal review functions under section 53 because the reviewer was unsure and unclear about what conduct was being reviewed. She says that the reviewer misidentified the conduct that was the subject of the internal review application and reviewed the wrong conduct. Consequently the conduct that was the subject of the internal review application was not reviewed. She further alleged that as well as misidentifying the conduct, the Council wrongly denied that the privacy principles applied.

28. I do not agree with the Applicant that the section 41 Direction cannot apply in circumstances where an internal review process has inadvertently wrongly identifying the conduct to be reviewed. In my view, in the absence of mala fides, an agency is entitled to rely on the provisions of the section 41 Direction in carrying out any of its investigative functions or any lawful investigations.

29. I am satisfied that the circumstances of the internal review process were such that non-compliance was reasonably necessary for the conduct of the investigation. In the circumstances, it is my view that the Council did not need to comply with sections 9, 10, 13, 14, 15, 17, 18, or 19(1) of the PPIP Act. Specifically, the Council did not need to comply with sections 17 and 18 of the PPIP Act in the manner that the Applicant has alleged.

30. I note and agree with the observations of the Appeal Panel in ZR v Department of Education and Training [2010] NSWADTAP 75 at paragraph [72] – [74] of the decision:

72 … Once a person enters an official complaints stream, they can not reasonably expect that an investigation will be undertaken at no risk to the revelation of their identity or the transmission of the contents of the complaint. ...

74 The IPPs do not include any principle that allows the individual to set his or her own terms as to the way the agency is to handle the information conveyed to it. In particular, the IPPs contemplate that an agency may choose to use information for the purpose for which it was collected. To enforce a guarantee stricter than those given by the IPPs, the complainant must look to other branches of the law not the responsibility of this Tribunal such as the law relating to the protection of confidences.

33. Further, as Judicial member Isenberg observed at paragraph [49] of her decision in AET v Western NSW Local Health District AET v Rural and Remote Medical Services t/as Gulgong Medical Centre [ 2012] NSWADT 77:

49.Further, there is clear authority that once a person enters an official complaints stream, they cannot reasonably expect that an investigation will be undertaken in a vacuum: WH v Internal Audit Bureau of NSW [2011] NSWADT 237. A person complaining of a breach of privacy cannot dictate how the agency is to handle the information conveyed in the complaint …

34. It is not necessary that I consider the Council’s contention that the information in question is not personal information because it falls within the exceptions provided by subsection 4(3)(j) of the PPIP Act. However, I note that I agree with the Applicant’s submission that her suitability for employment was not an issue for consideration at the time of the internal review determination and therefore it is unlikely that section 4(3)(j) of the PPIP Act would be applicable to that information.

35. As noted above, the conduct that is the subject of the internal review issue is:

“(a)    The inclusion of the following unfavourable, misleading and irrelevant personal information in the internal review decision (which failed to review the conduct complained of) issued by Lismore City Council in September 2013:

•   Statements from staff witnesses of an incident which occurred on 2 November 2011

•   Interviews with Gingerbread House staff on 23 November 2011

•   An incomplete formal warning letter dated 5 March 2012.

Causing the information to be disclosed to other people, including from the Administrative Decisions Tribunal, the Privacy Commissioner and Local Government NSW

36. The Applicant concedes that section 8 is not applicable in this matter. However, she submits that the Council failed to comply with sections 12 and 16 of the PPIP Act.

37. I accept that a reasonable reading of the application for internal review indicates that the Applicant was alleging that the information included in the internal review decision was irrelevant and misleading. However, it is not clear to me that any breach of section 12 of the PPIP Act was alleged.

38. The Applicant alleged that inclusion of the information in the internal review decision caused the information to be disclosed to the ADT, the Privacy Commissioner and Local Government NSW. In my view, the disclosure to the ADT was inevitable once the proceedings were commenced in that tribunal. Disclosure to the Privacy Commissioner is pursuant to section 54 of the PPIP Act. Section 54(1) provides:

54 Role of Privacy Commissioner in internal review process

(1) A public sector agency that receives an application under section 53 must:

(a) as soon as practicable after receiving the application notify the Privacy Commissioner of the application, and

(b) keep the Privacy Commissioner informed of the progress of the internal review, and

(c) inform the Privacy Commissioner of the findings of the review and of the action proposed to be taken by the agency in relation to the matter.

39. In my view, no criticism can be levelled at the Council for disclosure to the ADT or the Privacy Commissioner.

40. It is my understanding that the Council engaged Local Government NSW to assist it in the matter before the ADT. In my view it was entitled to do so and therefore no criticism can be levelled at the Council for disclosure of the internal review decision to Local Government NSW.

41. It follows, in my view, that no further action should be taken in regard to that aspect of the application.

The Imeson statement issue

42. This issue concerns the inclusion of information in a statement made by the Council’s Injury Management Co-ordinator, Ms Christine Imeson, which was filed in proceedings before the ADT on 22 October 2013. Ms Imeson's evidence related to the Applicant's workers compensation claim and the subsequent receipt and distribution of a medical report. Ms Imeson's statement was filed as evidence in proceedings that were on foot.

43. The Applicant submits that the Tribunal has jurisdiction to review conduct that occurred when the Council prepared, presented and pressed Ms Imeson's statement because Parliament made express provisions for the use of personal information in courts and tribunals and provided an exemption from one IPP only.

44. The Council submits that the information contained in Ms Imeson's statement can be characterised as

(a) Information that is necessarily implied or reasonably contemplated to be required in NCAT's review of the Respondent Council's conduct pursuant to section 55 of the PIPP Act, and

(b) Information that is disclosed pursuant to section 70(c) of the NCAT Act, for the purpose of legal proceedings

45. Further, the Council submits that the information contained in Ms Imeson's statement must be exempt from further review by operation of section 25 of the PIPP Act and section 70(c) of the NCAT Act.

46. At the hearing on 8 July 2015, I raised the issue of whether or not section 6 of the PPIP Act is relevant to this issue. Section 6 of the PPIP Act provides that nothing in the Acts affects the manner in which a court or tribunal exercises its judicial functions.

47. The Council made no observations or submissions in relation to the operation or application of section 6. It maintains that the relevant legislative provisions when considering information that is filed as evidence in proceedings are section 70(c) of the NCAT Act and section 25 of the PPIP Act.

48. The Applicant submits that parties to proceedings who are before the Tribunal are not exercising a judicial function when they prepare and present evidence to the Tribunal and therefore the section does not apply to them.

49. In AQG v Crown Solicitor’s Office [2015] NSWCATAD 112 Senior Member Molony dealt with the issue of information that was included in a statement and submissions presented in earlier proceedings before the ADT. The information presented in those earlier proceedings highlighted factors personal to AQG which, it was argued, should prevent AQG representing a party to those proceedings. In AQG v Crown Solicitor’s Office AQG, the applicant in that matter, alleged that information presented to the ADT in the earlier proceedings was false, misleading and incomplete.

50. Senior Member Molony considered whether or not the alleged conduct was subject to the PIPPA Act, in accordance with section 6(1), because it affects the manner in which a court or tribunal exercises its judicial functions. The Senior Member discussed a number of decisions that had dealt with the application of section 6 from paragraphs [28] to [35] of the decision.

51. At paragraph [33] he referred to the discussion of the meaning of judicial function in my decision in BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79. In finding that release of information took place in the exercise of a judicial function I commented:

“42. ... what is relevant is whether there were proceedings before the CTTT that required "hearing" or "determination"; and whether the function that was being exercised is related to those proceedings.

...

45. In my view, the provision of information relevant to the matter to be determined by the CTTT, to a party to the proceedings, is exercising a function relating to the judicial functions of the CTTT.

52. In AQG v Crown Solicitor’s Office Senior Member Molony ultimately found, on the facts of the case, that he was not satisfied that the conduct involved any exercise by the ADT or its registry staff of the Tribunal’s judicial functions with respect to AQG’s personal information. Rather, the relevant determination by the ADT concerned the issue of whether AQG could act as a Mackenzie’s friend in an application for review under the GIPA Act. Nevertheless, Senior Member Molony found that the Tribunal did not have jurisdiction to review the conduct in issue because of the operation of section 25 of the PPIP Act.

53. At paragraphs [29] – [30] the Senior Member quoted submissions made by the Crown Solicitor’s Office:

29. In submissions the CSO argued that while the case law in relation to the operation of s 6(1) “largely focussed on conduct by judicial officers”, the judicial function of members of tribunals “extend to determining the manner in which proceedings” are conducted. The submissions continued –

“8. The conduct about which the applicant complains is the use of information in filing and serving documents in proceedings before the Tribunal. It is not a novel proposition that persons who are called to be witnesses in legal proceedings might have differing recollections of certain events, and it is appropriate that those versions be the subject of evidence in the primary proceedings, and that the presiding member be permitted the opportunity of determining which is the preferable version of events. In the context of this case, the respondent's opportunity to challenge the evidence given by Ms Sato was in the primary proceedings in which her evidence (which gave an account of her recollections) and submissions (which incorporated that evidence) were filed. To mount a challenge to the evidence and submissions by way of the PPIP Act would, if successful, have the result that, in future cases, the Tribunal would be unable to receive any evidence or submissions from government litigants which gave an account of events disputed by the opposing patty. Given that the very essence of the adversarial system is dispute, such an outcome would be an impermissible fetter upon the judicial functions of the Tribunal.

9. In the related proceedings 133330 (which have now concluded), the respondent, NSW Treasury, filed and served submissions dated 25 July 2014, a copy of which is attached hereto. Those submissions also dealt with s. 6 of the PPIP Act at [32]-[36]. The respondent refers to and respectfully adopts those paragraphs.”

30. The submissions in proceedings 133330 argued that:

35. Applying this analysis, the Respondent submits that evidence and submissions filed in the Tribunal in current proceedings "relate to the hearing and determination of proceedings before the Tribunal for the purposes of s. 6 of the PPIP Act. Such documents constitute professional communications with the Registry in the relation to the conduct of a current claim. As pointed out in NZ [NZ v Attorney General's Department [2005] NSWADT 103] the efficient performance of the Tribunal's functions requires there to be a system for receipt of evidence (and submissions) concerning the issues to be determined by the Tribunal, in written form, in advance of a hearing.

36. The issue of whether the Applicant should be granted leave to appear as agent or McKenzie friend in proceedings no. 133306 was an issue for determination by the ADT, pursuant to the leave requirement under s. 71 and/or the general power in s. 73 of the ADT Act. If, by operation of the prohibition on disclosure in s. 18 of the PPIP Act, a party was prohibited from including personal submissions or supporting evidence filed in ongoing Tribunal proceedings on the question of whether a person should be given leave to appear as an agent or McKenzie friend, this would affect the manner of exercise of the Tribunal's judicial functions. It would limit the information which could be provided to the Tribunal on a disputed issue, in circumstances where personal information is clearly relevant to the determination of that issue, for the reasons set out above at (30]. By operation of s. 6, the Respondent submits that s. 18 cannot have that effect

54. The passage from NZ v Attorney General's Department to which the submissions in proceedings 133330 referred is a discussion of the scope of section 6 of the PPIP Act by the ADT’s President:

13 The case raises the question of whether the Registry’s conduct falls within the immunity given by s 6.

14 Section 6(1), to reiterate, provides that: ‘Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.’ The Department referred in its submissions to the structure of courts, and in particular s 10 of the Local Courts Act which provides for the office of registrar of a local court. The Tribunal is satisfied that a Registrar of a Local Court is the holder of an office of a court.

15 The conduct did not occur in Court, but involved access to files given at the counter by Registry staff. Does activity of this kind fall within the meaning of the ‘judicial functions’ of the Court? Section 6(3), to reiterate, provides relevantly that: ‘In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it...’.

16 The Tribunal agrees with the Department’s submission that the words ‘relate to’ have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings: Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 per Taylor J at 620, 622; Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 479-480 per Wilcox J.

17 See also N (No 2) v Director General, Attorney General’s Department [2002] NSWADT 33 at [32]- [33] where I dealt with a similar question, there involving a similarly-expressed immunity from review contained in s 10 of the Freedom of Information Act 1989. In that case there was an issue as to whether communications with the Registry from professional representatives were immune from the operation of the FOI Act on the basis that they were documents held by the Registry in the exercise of functions that ‘relate to’ the hearing and determination of claims. In that instance I ruled that professional communications of this kind ‘are necessary to the efficient conduct of a claim, and fall within the scope ... of those functions that ‘relate to’ the hearing and determination of claims’ (at [31]) (appeal dismissed, [2002] NSWADTAP 41).

18 This is a stronger case. The applicant’s personal information is found in documents lodged with the Registry for use as evidence in support of her application for AVOs. The efficient performance of judicial functions depends greatly on there being a system for the receipt and organization of intended evidence in advance of the formal hearing of a matter. This system is commonly provided by a Registry under the direction of a Registrar. Decisions will frequently have to be taken by Registry officers as to the extent to which access is given to this material, ahead of hearing; or after the material has been dealt with at hearing, and has, possibly, become part of the evidence. The function of giving access to documents of that kind, and to the personal information they may contain, is one, I consider, that ‘relates to’ the exercise by the Court of its judicial functions.

19 Accordingly, I consider that the handling of the personal information the subject of the present application for review is, by virtue of s 6, not subject to the Privacy Act. “

55. In the circumstances of this matter, I maintain the view that I expressed in my decision in BCR v Consumer, Trader & Tenancy Tribunal. The relevant issue to be decided is whether there were proceedings before the ADT that required "hearing" or "determination"; and whether the function that was being exercised was related to those proceedings.

56. Ms Imeson's evidence related to proceedings that were before the ADT and relevant to the matter to be determined.

57. I consider that the argument presented by the Crown Solicitor’s Office in AQG v Crown Solicitor’s Office and quoted at paragraphs 29] – [30] of Senior Member Molony’s reasons are apposite. It is my view that if the PPIP Act prohibited a party from including personal information in evidence filed in the Tribunal, where the evidence was relevant to a matter to be determined, it would affect the manner of exercise of the Tribunal's judicial functions. It would limit the information which could be provided to the Tribunal on a disputed issue, in circumstances where personal information is clearly relevant to the determination of that issue.

58. In my view, Ms Imeson's evidence related to the hearing and determination of proceedings before the Tribunal for the purposes of section 6 of the PPIP Act.

59. It follows that I agree with the Council that the information contained in Ms Imeson's statement must be exempt from further review by the Tribunal.

60. I do not need to consider the other arguments presented by the Council in regard to this issue. However, I note that in AQG v Crown Solicitor’s Office Senior Member Molony found that the Tribunal did not have jurisdiction to review the conduct in issue because of the operation of section 25 of the PPIP Act. It is probable that the same argument would apply in the circumstances of this matter.

The Imeson email issue

61. This issue concerns an email from Ms Imeson to Jenny Lynch of StateCover which included the Applicant’s correspondence regarding a privacy complaint internal review.

62. The Applicant provided the following background summary in relation to the Imeson email issue:

In July 2012 I applied to the Respondent for an internal review of the disclosure of Dr Kar's report to WorkCover Inspector Michael Dall, Council provided me with their internal review decision on 3 August 2012.

I then engaged in an email conversation with Fran Summerfield, a human resources officer, about matters arising out of the internal review decision. Ms Summerfield began the conversation when she emailed me to correct an omission in the internal review decision letter. I emailed her to check my understanding, and she replied.

I then emailed Ms Summerfield requesting a copy of a letter I had presumed the existence of because the internal review decision relied on the powers of a WorkCover inspector under section 62 of the OHS Act.

Ms Summerfield drafted a reply to my request in the above mentioned email conversation and forwarded it to Isabel Perdriau, Human Resources Manager, and copied it to Ms Imeson.

Ms Imeson forwarded the entire email conversation to Jenny Lynch, Senior Case Manager, StateCover, and Ms Lynch forwarded the entire email conversation to Christine Laing, Ministerial Liaison Officer, Executive & Ministerial Services Unit, Strategy & Performance Division, WorkCover, NSW.

Sixteen minutes after Ms Summerfield copied the emails to Ms Imeson they were with WorkCover, via StateCover.

When I became aware of this conduct I was aggrieved, which was a prerequisite for applying for an internal review.

63. The Council contends that the Applicant was made aware of the email as a result of a process of discovery and as a result of summonses served in proceedings that were before the Industrial Relations Commission. It further contends that there is an implied undertaking at law that documents obtained by compulsory means during legal proceeding cannot be used for a purpose other than the conduct of the legal proceedings in question.

64. In regard to the implied undertaking the Council relies on the decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280 which was confirmed in the High Court decision of Hearne v Street [2008] HCA 36. Hayne, Heydon, and Crennan JJ held at paragraph [96] that:

96.   Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena ….

65. The Council contends that as a result of the implied undertaking this Tribunal does not have jurisdiction to review the conduct related to the Imeson email issue.

66. The Applicant does not appear to dispute that she obtained the email in the manner alleged. Nor does she dispute that an implied undertaking may have existed in regard to that process. However, she submits that there is no provision in section 55 of the PPIP Act that abrogates an applicant's entitlement to an administrative review because of the manner in which they became aware of the conduct that aggrieved them. She further submits that Coco v R [1994] HCA 15 is an authority for the principle that if the legislature intended to curtail rights "such an intention must be clearly manifested by unmistakable and unambiguous language".

67. The Applicant also referred to comments at paragraph [110] of the High Court Decision in Hearne v Street as support for her submission that "the implied obligation must yield to inconsistent statutory provisions".

68. She referred to section 69 of the ADT Act and section 70 of the NCAT Act and argued that if the implied undertaking had applied, it yielded to those statutory provisions. She submits that section 69 of the ADT Act and section 70 of the NCAT Act permit the disclosure of information that a person has obtained in exercising a function under the Act, in certain circumstances. She submitted that if she is able to satisfy any one of those circumstances she would be permitted to disclose the emails.

69. I do not agree with that submission. In my view those provisions would not be relevant to emails obtained as a result of a process of discovery or as a result of summonses served in proceedings that were before the Industrial Relations Commission. They would only apply to proceedings before the ADT or this Tribunal.

70. If there were an implied undertaking to the Industrial Relations Commission, the Applicant would need to establish that it yielded to statutory provisions relating to the Industrial Relations Commission. Alternatively, any consent to the use of the emails would need to be obtained from the Industrial Relations Commission.

71. In the absence of evidence to the contrary I accept that the Applicant probably became aware that Ms Imeson had forwarded her emails to StateCover as a result of a process of discovery or as a result of summonses served in proceedings that were before the Industrial Relations Commission. I agree with the Council that in those circumstances there would have been an implied undertaking to the Industrial Relations Commission that, without the consent of the Industrial Relations Commission, the emails obtained would not be used for a purpose other than the conduct of the legal proceedings that were before the Industrial Relations Commission.

72. Nevertheless, in the circumstances of this matter, the Applicant has not used the emails that she obtained in the Industrial Relations Commission. She has acted on the knowledge that Ms Imeson had forwarded her emails to StateCover and asked for an internal review of that conduct. She could do so without using the emails. In my view, any implied undertaking that the emails obtained would not be used for a purpose other than the conduct of the legal proceedings that were before the Industrial Relations Commission would not prevent the Applicant from exercising her rights to seek an internal review.

73. That being the case, it is my view that the Tribunal has jurisdiction to review this issue.

74. In the circumstances it is my view that the matter should be remitted to the Council and that the Council should review that conduct. The review is to be completed within 60 days from the date of this decision and a written decision is to be provided to both the Applicant and this Tribunal.

75. Pursuant to section 65(4) of the Administrative Decisions Review Act 1997 the may then either proceed with the application for review of the new decision, or withdraw the application.

76. The matter will be listed for a further planning meeting on Tuesday 19 April 2016 at 9.30 am. If the application is not withdrawn prior to the planning meeting, the future conduct of the proceedings will be determined at that time.

Summary of Findings

77. In my view, the Tribunal has no jurisdiction to review those aspects of part (a) of the application i.e. the internal review issue, to which the section 41 Direction applies. Accordingly, that part of the application should be dismissed for want of jurisdiction.

78. No further action should be taken in regard to the remainder of part (a) of the application.

79. In my view, the Tribunal has no jurisdiction to review part (b) of the application i.e. the Imeson statement issue. Accordingly, that part of the application should be dismissed for want of jurisdiction.

80. In my view, the Tribunal has jurisdiction to review that part (c) of the application i.e. the Imeson email issue. That part of the application should be remitted for redetermination by the Council. The review is to be completed within 60 days from the date of this decision and the matter will be listed for a further planning meeting on Tuesday 19 April 2016 at 9.30 am.

Order

1. The Tribunal has no jurisdiction to review those aspects of part (a) of the application to which the section 41 Direction applies. The Tribunal determines to take no further action in regard to the remainder of part (a) of the application.

2. Part (b) of the application is dismissed for want of jurisdiction.

3. Part (c) of the application is remitted for redetermination by the Council. The review is to be completed within 60 days from the date of this decision. The matter is listed for a further planning meeting on Tuesday 19 April 2016 at 9.30 am.

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

Registrar

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

Registrar

Decision last updated: 02 February 2016