ALZ v Lismore City Council (No 2)

[2016] NSWCATAD 250

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	ALZ v Lismore City Council (No 2) [2016] NSWCATAD 250
Hearing dates:	30 September 2016, 4 October 2016, 12 October 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Perrignon, Senior Member
Decision:	Orders as follows: (1) Evidence filed by either party in proceedings 133039 is to be evidence in these proceedings. (2) Respondent to file and serve any further evidence and submissions on which it relies by 9 November 2016. (3) Grant leave to the applicant, if she wishes, to file evidence and submissions in reply by 22 November 2016. (4) Request the Registrar to list the matter for case conference at 9.30am on 22 November 2016, in order to monitor compliance with the above timetable and to set a hearing date. (5) Respondent is to notify the Information and Privacy Commissioner of these orders and invite the Commissioner to be represented at case conference on 22 November 2016.
Catchwords:	Practice and procedure – complaints that respondent Council breached privacy principles – decision of Tribunal at first instance that it lacked jurisdiction to determine complaints - decision overturned on appeal by consent, and remitted for decision according to law, with or without further evidence as the member hearing the matter may determine - respondent’s application to set timetable for further evidence opposed by applicant – whether timetable ought be set – application of guiding principle.
Legislation Cited:	Civil and Administrative Tribunal Act
Cases Cited:	AON Risk Services Australia Limited v Australian National University [2009] HCA 27
Category:	Procedural and other rulings
Parties:	ALZ (Applicant) Lismore City Council (Respondent)
Representation:	Solicitors: ALZ (Applicant in person) Lismore City Council (Respondent)
File Number(s):	1410345

Reasons for decision

1. The respondent applies for a timetable for the parties to file and serve their evidence in preparation for the hearing of the claim in this matter. The factual and procedural background was described succinctly by the Appeal Panel in ALZ v Lismore City Council [2016] NSWCATAP 19 [at paragraphs 3-12] as follows:

3. On 31 March 2014, the appellant, who has been given the pseudonym of ALZ, complained about the behaviour of her former employer, Lismore City Council (the Respondent). ALZ alleged the Act had been breached and that she was entitled to relief.

4. In particular, ALZ complained about the inclusion of allegedly unfavourable, misleading and irrelevant personal information in an internal review decision in September 2013, being certain staff statements, interviews, and a formal warning letter, and that the Council then caused that information to be disclosed to others, including the Administrative Decisions Tribunal (ADT), the Privacy Commissioner, and Local Government NSW.

5. Second, in a subsequent statement to the ADT, a particular person (the third person) allegedly:

1. Used and disclosed incorrect, misleading and unfavourable personal information about ALZ to imply she had been performance managed for dishonesty;

2. Used and disclosed irrelevant information about a worker’s compensation claim; and

3. Used and disclosed health information from a psychiatric report “misrepresenting, discussing, paraphrasing and quoting from the report against my interests to further her own”.

6. There was a further complaint about the third person’s use of email in September 2012.

7. For convenience, we describe the three issues as follows:

1. The internal review decision issue;

2. The third person’s statement issue; and

3. The third person’s email issue.

8. The alleged conduct occurred in September 2012, September 2013, and October 2013. ALZ had sought an internal review seeking relief under the Act including:

1. Deleting and destroying the doctor’s report;

2. Ensuring that the reviewer measured the conduct complained of against the privacy principles but did not access a copy of the doctor’s report as the content of the report containing ALZ’s psychiatric health information;

3. Retracting or correcting certain information in the third person’s statement;

4. Notifying the Office of the Privacy Commissioner, this Tribunal, and an officer of Local Government NSW of the retraction or correction;

5. Training for the Respondent’s staff; and

6. An apology.

9. One of the main issues concerning breach of the Act was whether the Council was exempt from compliance with various privacy and personal information protection principles because of the circumstances in which the collection, use or disclosure of personal information had occurred.

Reasons

10. The Respondent did not conduct the requested review. External review was then sought in this Tribunal: see s 55 of the Act.

11. The matter came before the Tribunal which made ‘jurisdictional’ determinations as follows:

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.

12. The appellant appealed to the Appeal Panel.

2. By consent of the parties, the Appeal Panel on 11 August 2016 set aside the decision below. It made the following specific consent orders:

1. The Appeal is allowed.

2. The decision below dated 2 February 2016 is set aside.

3. The matter is remitted in whole to a differently constituted Tribunal for reconsideration according to law either with or without further evidence as the member hearing the matter may determine.

3. The matter comes before me for hearing, and in the first instance to determine whether and, if so, what timetable ought be set for the filing and service of evidence preparatory to the hearing.

4. The Council has indicated a desire to file further evidence – that is, evidence in addition to the evidence and submissions it filed in the Tribunal in proceedings 1410345 at first instance – because it says that such evidence as it filed at first instance went only to the issue of jurisdiction. It now wishes to address the substantive complaints made by the applicant, which are the subject of review by the Tribunal.

5. The applicant objects to that course. She says the Council had ample opportunity to file evidence on the substantive issues, and chose not to do so. In fact, she says, on a number of occasions, it failed to comply with the Tribunal’s directions to file and serve evidence on the substantive issues. She points out also that it failed to comply with her request to review its own decision internally. She says it would delay the proceedings even further, and put to her even more expense, if a timetable for evidence were set, having regard to the fact that she has incurred costs of almost $6,000 already in bringing the proceedings and the appeal. She relies on the ‘guiding principle’ in section 36 of the Civil and Administrative Tribunal Act 2013, namely that the Tribunal should seek to give effect to the guiding principle when it exercises any power given to it by this Act or the procedural rules. The “guiding principle” is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: section 36(1).

6. The applicant also relies on the decision of the High Court in AON Risk Services Australia Limited v Australian National University [2009] HCA 27 (“Aon Risk”). She says, in summary, that the High Court there endorsed the principle that proceedings should be conducted in such a way as to be just, quick and cheap. She points out that in exercising its discretion, the Tribunal should have regard to the stage the proceedings are at, and the prejudice she would suffer if a timetable were set, including the further costs she would incur, and the further delay she would suffer as a result.

7. The Council responds, in summary, that it did not fail to comply with the directions of the Tribunal at first instance, except on rare occasions. It says that it was decided at an early stage that the jurisdictional issue would be decided as a preliminary issue, and it thereupon confined the material it filed to that issue. It does admit that it was late in complying with directions to file material on at least one occasion. It has filed a complete chronology of the interlocutory steps. Ms ALZ, for her part, has indicated in handwritten terms her response to the chronology filed by the Council. For the most part, there is no dispute as to the chronology, and I note the extra material which Ms ALZ has provided to the Tribunal quite helpfully in her handwritten notes.

8. I am satisfied, having regard to this material and to the Tribunal’s own records, that at case conference on 9 December 2013 it was decided to treat the issue of jurisdiction as a separate preliminary issue, and that the Council did fail to comply with directions to file and serve its evidence on the substantive complaints on at least one occasion prior to that date, and possibly more. I am also satisfied that it was late in complying with the Tribunal’s directions on occasion. I take these failures into account.

9. Section 36 applies to these proceedings. In particular it should inform the exercise of my discretion in deciding whether and, if so, what timetable for evidence ought be made. In Aon Risk, the High Court was dealing with an application by the plaintiff University to adjourn the proceedings in order to amend the pleadings to raise issues not previously raised, on the fourth day of a trial which had been set down for four weeks. That would have necessitated, even after the amendment was made, a further timetable for evidence and considerable delay, and the fixing of a further date for trial. Unlike this case, the matter had not been determined at first instance and overturned on appeal, and had not been remitted for decision according to law. The High Court found that case management principles were relevant to the exercise of the trial judge’s discretion to grant the application.

10. In this case, the matter was first determined following a hearing, it has been overturned on appeal by consent of the parties, and has been remitted, in whole, for determination according to law, with or without further evidence as the member hearing the matter may determine. It is a matter for the Tribunal’s discretion as to what, if any, further evidence ought be permitted. Though the facts in Aon Risk were different, the principle that the exercise of discretion in procedural applications ought be informed by case management principles is consistent with the guiding principle, and applies in this case. In exercising its discretion the Tribunal must take into account the guiding principle above, and have regard to the principles in Aon Risk so far as they are applicable to the circumstances of this case.

11. If the case were to be heard and determined by me, without the benefit of further evidence filed by the Council, the Tribunal would proceed to determine the complaints, or at least to review the decision made in respect of them, without the benefit of any evidence on the substantive complaints from the Council. I take into account that the Council has had the opportunity, at first instance, to file its material and did not do so. Such a course, in my view, would be contrary to the principles of natural justice, because it would mean that the Council’s factual case would not be heard. It would make an appeal almost inevitable, thereby increasing costs further and the time associated with the litigation. The guiding principle, that the proceedings be just quick and cheap, would be defeated.

12. Were I to allow further evidence, on the other hand, there would be some delay while the timetable was completed. Further expenditure on the part of the applicant might occur, though as she is self-represented, the amount and nature of that expenditure is not currently clear. It is not clear that she would necessarily need to file and further evidence herself, as she has filed evidence already on the substantive issues. However, she would be given ample opportunity, if she wished, to file further reply evidence. Doubtless that would involve some expenditure and further time.

13. In the end, there are disadvantages in both courses. The main disadvantage in permitting the Council to file further evidence is to prolong the proceedings somewhat, and possibly to expose the applicant to a risk that she might incur further costs. On the other hand, to shut out the Council from its case, in effect, in respect of the substantive complaints, would lead to a suggestion that the requirements of natural justice have been denied and in my view, necessarily, to a further appeal in the proceedings, with attendant waste of time and costs.

14. In the end, I have to choose a course which best fits the guiding principle - that is, that proceedings be conducted in a way that is just, quick and cheap. In my view, the best way to observe and accommodate the guiding principle is to set a timetable, but to make that timetable abbreviated, so that costs, expense and delay are minimised. For those reasons I propose to indicate to the parties, that the matter will be set down for case conference on Tuesday 22 November 2016 at 9.30am. The purpose of that case conference will be twofold: first, to monitor compliance with any timetable I have set, and secondly to set a hearing date at the earliest possible opportunity.

15. In the interim it is my intention to order that the Council file and serve all evidence and submissions on which it relies within 4 weeks - that is, by 9 November 2016 - and for the applicant to file and serve her evidence in reply within the following two weeks, that is by 22 November 2016. I will not require the applicant to file any evidence at all, unless she wishes to do so, so the order will take the form that she is granted leave to file it if she wishes by 22 November 2016. In this way she can regulate what, if any, costs she incurs in complying with the timetable. As I have said, at 9.30am on that date, 22 November 2016, the matter will be before the Tribunal for case conference, any further directions necessary can be made, and the matter set down for hearing. In the absence of any objection, it is appropriate that evidence in the proceedings at first instance (NCAT proceedings no 1410345) be evidence in these proceedings.

16. The respondent is to notify the Information and Privacy Commissioner of these directions and invite the Commissioner to be represented at the case conference.

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: 14 November 2016