AT v Commissioner of Police

[2010] NSWCA 131

New South Wales

Court of Appeal

CITATION:	AT v COMMISSIONER OF POLICE, NSW [2010] NSWCA 131
HEARING DATE(S):	26 May 2010
JUDGMENT DATE:	4 June 2010
JUDGMENT OF:	Beazley JA at 1; Basten JA at 1; Macfarlan JA at 1
DECISION:	(1) To the extent necessary, grant leave to appeal. (2) Direct that the Commissioner of Police, New South Wales, be named as the respondent to the proceedings. (3) Direct that the appellant be identified in all published reports of the proceedings as “AT” and that no person have access to the Court file, other than officers of the Court in the exercise of their duties, without the leave of a judge of the Court. (4) Allow the appeal and set aside the order of the Appeal Panel affirming the decision under appeal. (5) In place of the order made by the Appeal Panel: (a) set aside the decision of the Tribunal made on 14 December 2007 (b) direct that the Tribunal further consider the application before it according to law; (c) order the respondent to pay the applicant’s costs of the proceedings before the Judicial Member on 14 December 2007, and (d) order the respondent to pay the appellant’s costs of the proceedings before the Appeal Panel. (6) Order the respondent to pay the appellant’s costs in this Court.
CATCHWORDS:	ADMINISTRATIVE LAW – judicial review – procedural fairness – legal test applied below rejected – failure to afford appellant the opportunity to address the Appeal Panel on the basis of the preferred test – whether Appeal Panel entitled to apply test itself - APPEAL – civil – error of law by Administrative Decisions Tribunal – appeal to Appeal Panel – erroneous decision below not set aside – Administrative Decisions Tribunal Act 1997 (NSW) ss 113, 114 - PROCEDURE – statutory appeal limited to question of law – Court’s power to order costs of proceedings before Tribunal – whether power extends to the making of costs order even if no order for costs were asked for or made by Tribunal – Administrative Decisions Tribunal Act 1997 (NSW) s 120 - PROCEDURE – costs – no costs regime – exceptions only if Tribunal "satisfied" an award of costs "fair" – whether exception engaged - WORDS AND PHRASES – "such orders as it thinks appropriate in light of its decision" – "nature and complexity of proceedings"
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 (NSW), ss 3, 55, 57, 73, 88, 114, 119, 120 Freedom of Information Act 1989 (NSW), s 54 Land and Environment Court Act 1979 (NSW), s 69 Privacy and Personal Information Protection Act 1998 (NSW), ss 53, 55
CATEGORY:	Principal judgment
CASES CITED:	Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 Li Shi Ping v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1275 Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150
PARTIES:	A T (Appellant) Commissioner of Police, New South Wales (Respondent)
FILE NUMBER(S):	CA 2009/00298244
COUNSEL:	A Anforth (Appellant) M Hutchings (Respondent)
SOLICITORS:	Capital Lawyers, Canberra (Appellant) Office of General Counsel, NSW Police Force (Respondent)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal of NSW Appeal Panel
LOWER COURT FILE NUMBER(S):	ADTAP 089024
LOWER COURT JUDICIAL OFFICER:	Judge KP O’Connor, President; S Montgomery, Judicial Member; A O’Neill, Non-judicial Member
LOWER COURT DATE OF DECISION:	16 January 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	AT v Commissioner of Police, New South Wales Police force (GD) [2009] NSWADTAP 1

CA 2009/00298244

BEAZLEY JA
BASTEN JA
MACFARLAN JA

4 June 2010

A T v COMMISSIONER OF POLICE, NEW SOUTH WALES

Headnote

The appellant complained that the Commissioner of Police had revealed protected information of the appellant to a third party in breach of statutory protections conferred by the Privacy and Personal Information Protection Act 1998 (NSW) ("the Privacy Act"). Following an internal review by the respondent completed on 6 June 2005, the appellant sought review in the Administrative Decisions Tribunal on 20 June 2007 in relation to the conduct of the respondent.

The Tribunal rejected the appellant's application on the ground that it was almost two years out of time with only part of the delay having been adequately explained. The Tribunal based its decision on s 55 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the Tribunal Act") which required the appellant to file her application within 28 days from the date she was notified of the respondent's report of the internal review. The appellant appealed to the Appeal Panel of the Tribunal on a question of law – that the Tribunal had failed to follow precedents which indicated s 55 did not apply to applications for review of conduct under the Privacy Act. The Appeal Panel upheld the appeal and concluded that the appellant's application need only be filed within a 'reasonable time', but declined to set aside the order of the Tribunal and dismissed the application. The appellant appealed to this Court from the Appeal Panel's decision.

The issues for determination on appeal were:

(i) whether the Appeal Panel erred in law in failing to make orders setting aside the decision of the Tribunal and remitting the matter to a single member for further hearing;

(ii) whether the Appeal Panel failed to accord the appellant procedural fairness in deciding the matter without according the appellant an opportunity to address the appropriate outcome on the basis of the preferred test;

(iii) whether, if the appellant was successful in this Court, the appellant should be awarded costs in respect of the original decision of the Tribunal, the appeal to the Appeal Panel and the proceedings in this Court.

The Court held, allowing the appeal:

In relation to (i)

1. The approach adopted by the Appeal Panel in disposing of the matter before it was legally erroneous. The Appeal Panel treated s 114 of the Tribunal Act as conferring a broad discretionary power on the Appeal Panel to determine the matter by application of the correct legal test, in circumstances where the test had not been identified or applied by the member making the original decision: [11] – [12].

2. There are cases where, on the facts as found by the original decision-maker, the only conclusion open was that reached at first instance, though on a legally erroneous basis. This was not such a case. Reliance by the Appeal Panel on the Tribunal's reasons (the appellant bearing the onus of explaining delay when seeking an extension of time) was not necessarily apposite when determining what is a reasonable time. Nor did the Appeal Panel attempt to identify factors which might be relevant to consideration of a reasonable time and without this exercise, it was not possible to form a view as to what decision the single member would have reached: [13] – [16].

Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [42]; Li Shi Ping v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1275 at [109]-[110]; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145 referred to.

In relation to (ii)

3. The Appeal Panel should have given the appellant the opportunity of making submissions as to what factors might be relevant in the assessment proposed by the Appeal Panel, what evidence might be available in relation to those factors and how the evidence should be assessed. The appellant was not afforded a reasonable opportunity to address those matters and was denied procedural fairness: [17].

In relation to (iii)

4. Neither the Tribunal nor the Appeal Panel made an order for costs and there was no appeal to this Court from the failure of the Appeal Panel to make such an order. The power of this Court under s 120(1) of the Tribunal Act to make "such orders as it thinks appropriate in light of its decision" extends to making an appropriate costs order under s 88, even if no order for costs were asked for or made by the Appeal Panel: [24] - [25].

5. There is no purpose in returning the matter for further hearing before the Appeal Panel. The expeditious and cheap administration of justice favours this Court making orders disposing of the costs which have been incurred to date: [27] - [32].

Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150 applied.

6. In considering the criterion of "fairness" in s 88(1A), the appellant's success at both levels of appeal can be taken into account under s 88(1A)(e). In a dispute as to the construction of complex and unclear provisions in a State Act, a State agency should act as a model litigant and may have to bear the costs of its unsuccessful resistance to an application. The appellant should have her costs of both stages of the proceedings before the Tribunal and of this Court paid by the respondent: [33] – [36].

Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273 followed.

CA 2009/00298244

BEAZLEY JA
BASTEN JA
MACFARLAN JA

4 June 2010

A T v COMMISSIONER OF POLICE, NEW SOUTH WALES

Judgment

1 JUDGMENT of the COURT delivered by BASTEN JA: On 20 June 2007 the appellant sought review in the Administrative Decisions Tribunal in relation to conduct of the Commissioner of Police, relating to a breach of the Privacy and Personal Information Protection Act 1998 (NSW) (“the Privacy Act”). Her application to the Tribunal followed a report of an internal review which had been issued on 6 June 2005. The Tribunal (constituted by Judicial Member Higgins) rejected her application on the ground that it was almost two years out of time and only part of the delay had been adequately explained. An Appeal Panel (constituted by the President, O’Connor DCJ, Montgomery JM and O’Neill M) found that the Tribunal had erred in identifying a statutory limitation period, but declined to set aside the order dismissing the application.

Background

2 The issue raised before the Tribunal, which underlies this appeal, was whether a statutory limitation period applied, so that the application to the Tribunal was out of time and, if so, whether an extension of time should be granted. The Tribunal, exercising its review jurisdiction, held that s 55 of the Administrative Decisions Tribunal Act 1997 (NSW) (“the Tribunal Act”) applied, so that the appellant was required to file her application within 28 days from the date on which she was notified of the Commissioner’s determination of an internal review, pursuant to s 55(2)(a). Clearly she had failed to comply with that time limit. The Tribunal also considered whether time should be extended, pursuant to a power conferred on it by s 57 of the Tribunal Act, but declined to do so. The decision in that respect was based on the fact that, although there was an explanation for the failure to file an application between April 2005 and February 2006, during which time the material before the Tribunal suggested that the appellant was suffering from serious mental health issues, there was held to be no explanation of her failure to act thereafter. The Tribunal dismissed the application.

3 From that decision, the appellant appealed to the Appeal Panel on a question of law, which she identified as failing to follow precedents in the Tribunal which held that s 55(1) of the Tribunal Act did not apply to an application for review of conduct under the Privacy Act. The Appeal Panel upheld that appeal and concluded that no statutory time period operated with respect to the conduct the subject of her application: AT v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 1.

4 The Appeal Panel held that the review brought under s 55 of the Privacy Act was not subject to the limitation periods in the Tribunal Act, nor was it subject to any express limitation period imposed by the Privacy Act. It nevertheless concluded (at [33]) that there was “a clear necessity” to have time limits apply to the commencement of proceedings in the Tribunal and that it was therefore appropriate to read the right of review in the Privacy Act as subject to an implied condition that it be exercised within “a reasonable time”: at [35]. The Appeal Panel rejected the suggestion that the Tribunal could control stale applications by exercising its powers under s 73 of the Tribunal Act to dismiss proceedings which it considers are “frivolous or vexatious or otherwise misconceived or lacking in substance”: Tribunal Act, s 73(5)(g)(ii).

5 No challenge was brought to the conclusions of the Appeal Panel identified so far. The present appeal concerns the steps which followed.

6 The Appeal Panel noted that its conclusion with respect to the limitation period “opens up another issue – what is a ‘reasonable time’”: at [36]. That, the Panel said, will depend upon “the circumstances of the case.” The Panel noted that s 53(8) of the Privacy Act “speaks of a notice being given of the right to apply to the Tribunal for review in respect of the findings and the ‘proposed’ action”, language which the Panel concluded “would suggest that time should run from the time the applicant did, or should reasonably have, become aware of the notice”: at [36]. The Appeal Panel then concluded that the Freedom of Information Act 1989 (NSW), which required that review applications be made within 60 days after notice of the determination had been given (s 54), should be used as a “guide” and “should be regarded as the ordinary outer limit of a reasonable time”: at [37]. The Tribunal noted that there “may be extenuating circumstances which justify a longer time being allowed”.

7 No issue was directly raised in the proceedings before this Court as to the correctness or otherwise of the approach adopted by the Appeal Panel in these paragraphs, although the failure to identify relevant factors to be taken into account was one basis on which it was said that the Panel was in error in taking the next step. Following those comments, which might have been considered as inessential to the outcome of the case, the Appeal Panel then turned to the appropriate orders for disposal of the appeal before it. After noting that the appeal was confined to a question of law and that legal error had been identified, the Panel stated that it did not follow that the ultimate decision of the Tribunal (to dismiss the application because of delay) should be reversed or varied: at [38].

8 The Tribunal referred to its powers under s 114 of the Tribunal Act, to which it will be necessary to return and, without further comment concluded at [40]:

“In our view had the Tribunal approached the question before it on the basis that we prefer – whether the application had been filed within a ‘reasonable time’ – it would have reached the same conclusion.”

9 The only issue raised in this Court is whether the Appeal Panel erred in law in failing to make orders setting aside the decision of the Tribunal and remitting the matter to a single member for further hearing. An alternative basis of challenge is that the Appeal Panel failed to accord the appellant procedural fairness in deciding the matter without according the appellant an opportunity to address the appropriate outcome on the basis of the preferred test.

10 The approach adopted by the Appeal Panel in disposing of the matter before it was legally erroneous. In order to explain why that is so it is necessary to start with the statutory power which the Panel sought to exercise. That power was found in the following provision in the Tribunal Act:

“ 114 Appeals on questions of law
(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the whole or any part of the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.”

11 Although the Appeal Panel set out the terms of this provision, it did not consider how they should operate, but rather appears to have treated them as conferring a broad discretionary power on the Appeal Panel to determine the matter by application of the correct legal test, in circumstances where that test had not been identified or applied by the member making the original decision. Although the Appeal Panel did not expressly identify the task it was undertaking, that task involved forming an evaluative judgment on the basis of material (or the absence of material) before the Tribunal, being a judgment to which the Tribunal had not addressed its attention.

12 There are cases where, on the facts as found by the original decision-maker, the only conclusion open was that reached at first instance, though on a legally erroneous basis. In that case, the Appeal Panel could properly decline to reverse the decision of the Tribunal: Tribunal Act, s 114(2)(c); cf Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [42]; Li Shi Ping v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1275 at [109]-[110] (Drummond J), see also Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145. There are several reasons why that course was not open in the present case.

13 First, in reaching the conclusion that the Tribunal “would have” arrived at the same conclusion as it had on the legally erroneous basis, the Appeal Panel set out the reasons given by the Tribunal, at [41]. Those reasons, however, concerned a decision as to whether time should be extended in circumstances where a statutory limitation period had expired. It was clear from the Tribunal’s reasons that it treated the appellant as bearing the onus of explaining the delay. That approach, no doubt correct where an indulgence is being sought, is not necessarily apposite in relation to the determination of what is a reasonable time.

14 Secondly, the Appeal Panel did not attempt to identify the factors which might be relevant to consideration of a reasonable time. Without undertaking that exercise, it was not possible to form a view as to what decision the single member would have reached, let alone whether that decision was the only one open in the circumstances. Counsel for the appellant invited the Appeal Panel to determine the “criteria” and referred to the need to take evidence with respect to those criteria: Tcpt, 20/08/08, p 24. As noted above, the Appeal Panel said that what is a reasonable time will depend on “the circumstances of the case”: at [36]. Those circumstances may include:

(a) the period from the date of notification of the decision to the date of the application;
(b) any prejudice, actual or presumptive, to the respondent resulting from delay;
(c) what the applicant knew or ought to have known, as to the possibility of a better outcome than that provided by the internal review;
(d) what the applicant knew, or ought to have known, to be the period within which an application should be made, and
(e) whether notification of her right of review, or any reasons given with respect to the internal review, drew her attention to any factors referred to above.

Whether these factors are indeed permissible, or even mandatory considerations, need not be decided on this appeal. Nor is it necessary to consider whether there are other permissible, or even mandatory, considerations.

15 Prejudice to the respondent (or absence thereof) might well be a permissible consideration. It is presently sufficient to note that prejudice had been an issue before the Tribunal and was referred to in submissions to the Panel. It had been put to one side by the Tribunal as irrelevant in considering an extension of time, once satisfied that the appellant’s explanation of the delay was inadequate. The Appeal Panel, in simply adopting the reasoning of the Tribunal, assumed that it would not be relevant in determining whether the application had been lodged within a reasonable time.

16 Thirdly, the appellant was correct in submitting that the Appeal Panel should at least have given her the opportunity of making submissions with respect to what factors might be relevant in the assessment proposed by the Appeal Panel, what evidence might be available in relation to those factors and how the evidence should be assessed. Given the restricted nature of the appeal which she had lodged, there was no reason for her to suppose that it would be necessary to address those matters before the Appeal Panel. Accordingly, she did not have a reasonable opportunity to address those matters and was thus denied procedural fairness.

17 The decision of the Appeal Panel must be set aside. Because there remain issues of fact and judgment to be determined, there is no purpose in a further hearing before the Appeal Panel. Accordingly, the appropriate order is to set aside the original decision of the Tribunal, and direct that it reconsider the application before it, according to law.

Costs

18 The appellant seeks her costs in respect of the original decision of the Tribunal, the appeal to the Appeal Panel and in this Court. These issues must be dealt with separately.

19 In relation to the costs before the Tribunal, s 88(1) of the Tribunal Act relevantly provides:

88 Costs
(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
…
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
…
(4) In this section, costs includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

20 The appellant contended that, if successful in this Court, it was “fair” that she should have her costs at both levels in the Tribunal, the Appeal Panel having determined that there was an error of law on the part of the Tribunal and this Court having determined that the Appeal Panel erred in law, in not setting aside the original Tribunal decision. The complexity was revealed, she submitted, by the fact that the respondent, the Privacy Commissioner and the appellant had each argued for a different construction of the relevant legislative provisions. Thus, two agencies of the State took differing views, but the Appeal Panel rejected both, one being that preferred by the agency having responsibility for the legislation, namely the Privacy Commissioner.

21 Whether these submissions should be accepted must depend first upon the power of this Court to make an order for costs of proceedings in the Tribunal. In its terms, s 88(1A) requires that the Tribunal (which includes for this purpose the Appeal Panel) be “satisfied” that the proposed award is “fair”. That exercise involves, potentially, both findings of primary fact and the exercise of an evaluative judgment. Although the parties did not raise it, there is a live issue as to whether this Court could exercise that power itself; if not, the question of costs must be remitted for further consideration by the Tribunal or the Appeal Panel.

22 To the extent that the jurisdiction of the Court is raised, these questions must be addressed. The powers of this Court are set out in s 120 of the Tribunal Act, which reads as follows:

“ 120 Orders on appeal to the Supreme Court
(1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Supreme Court on appeal include (but are not limited to):
(a) an order affirming or setting aside the decision of the Appeal Panel, and
(b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.”

23 The first issue arises from the fact that neither the Tribunal nor the Appeal Panel made an order for costs, nor was either requested to do so. It followed that there was no appeal to this Court from the failure of the Appeal Panel to make such an order. An order for costs will, in many cases, be consequential upon the outcome of the appeal. The power of this Court to make “such orders as it thinks appropriate in light of its decision” would permit the Court, where it reverses an Appeal Panel on a question of law, to set aside any costs order which followed from the decision. Arguably that power would extend to making an appropriate costs order in place of the costs order made by the Appeal Panel. Subject to the second matter raised below, the power of this Court should not be different merely because the Appeal Panel did not, in the course of its erroneous decision, make an order for costs.

24 Nor should the powers of this Court (as opposed to their exercise) depend upon whether the Appeal Panel was asked to make an order for costs. Had a request been made by the appellant, it might well have been refused because of the failure of the appellant to disturb the order of the Tribunal below. The fact that no order had been sought or made might be of critical importance where the question of law was said to arise in respect of the costs, but that is not this case.

25 The second matter which arises concerns the power of this Court to form the relevant satisfaction for the purposes of s 88(1A). The language used in s 88 is unusual in two respects, but the question is whether such variations, when compared with a more usual provision, lead to any different conclusion in relation to the powers of this Court. One point of contrast is with a power to order costs “in the discretion of the court” and to determine “by whom and to what extent costs are to be paid”. A provision in that form was to be found in s 69(2) of the Land and Environment Court Act 1979 (NSW) (“the LEC Act), considered in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150. The other point of contrast lies in the identification of the criterion of fairness (in the Tribunal Act) and the open discretion in the LEC Act (as then in force).

26 It is not self-evident that either of these points of distinction is material. The condition of engagement of the power to order costs, in one case stated expressly, but in the other implicitly, must be the satisfaction of the Court exercising the power that the circumstances for an order have arisen. Nor is the criterion of fairness qualitatively different from the exercise of an unfettered discretion. Accordingly, and subject to one further consideration, this Court should follow and apply the approach adopted in Thaina Town in relation to the LEC Act. In that case this Court made orders as to costs at both levels in the Land and Environment Court, being hearings before a Commissioner and then before the Chief Judge.

27 The further qualification arises from the fact that the appeal in Thaina Town was itself directed to an error of law in the exercise of the discretionary power with respect to costs. As already noted, the present case involved no challenge to an order with respect to costs. Whether that is a relevant point of distinction depends upon the reasoning in Thaina Town. If it is not, it would be open to this Court to exercise the relevant power contained in s 88 of the Tribunal Act, following the approach taken in Thaina Town.

28 The reasoning in Thaina Town proceeded in two stages, relevantly for present purposes. These involved drawing a distinction between findings of fact and the exercise of evaluative judgment. As Spigelman CJ (with whom Mason P, Beazley, Giles and Ipp JJA agreed) stated at [89]:

“In the present case no question of making any findings of fact arises. What is involved is the formulation of a judgment on the basis of agreed facts.”

29 His Honour then noted that there were different kinds of evaluative judgment. Having dealt with an evaluative (or normative) judgment going to substantive issues, the Chief Justice stated at [109]:

“The position with respect to orders as to costs is quite different. This is a matter upon which this Court is usually in as good a position as a first instance judge, even in a specialist tribunal, to make the relevant judgment, where there is no gap in the factual findings. It is also an area in which, in the experience of this Court, a disproportionate amount of time, effort, energy and, therefore, costs, is often expended. It will often be desirable, in the interests of the administration of justice, for this Court to exercise the costs discretion and avoid the parties incurring further costs.”

30 There will, as the Chief Justice recognised by use of the qualifier “usually”, be cases in which it may be appropriate for this Court to defer to the specialist court or tribunal, on the basis that it will have a better understanding of the possible consequences, within its own jurisdiction, of the exercise of the power to award costs. However, no factor which could fall within that area of discourse has been raised by the parties in the present case. Further, there is no issue of primary fact, relevant to the costs of the proceedings so far, requiring resolution.

31 For reasons explained above, unless there be some outstanding issue as to costs, there is no purpose in returning the matter for further hearing before the Appeal Panel. Accordingly, as in Thaina Town, the expeditious and cheap administration of justice favours this Court making orders disposing of the costs which have been incurred to date in what are already long drawn out proceedings (having regard to their subject matter and purpose), the ultimate resolution of which remains doubtful.

32 The appellant’s submissions, identified at [20] above should be accepted: they strongly favour the individual appellant obtaining reimbursement for part at least of her legal expenses so far. The fact that the appellant has been successful at both levels of appeal is a matter which can be taken into account under sub-s (1A)(e). A further factor to be taken into account is that the respondent, being a State agency, was also required to act as a model litigant: Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273 (Basten JA, Giles and Bell JJA agreeing). That is not to say that the Commissioner was not entitled to insist that statutory procedures be complied with. However, where the statutory scheme was entirely unclear, and the Commissioner’s construction was not accepted, it is a factor which militates in favour of the Commissioner bearing the costs of the member of the public seeking to avail herself of a statutory right of review.

33 That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made “only if” the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of “fairness” will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.

34 This Court having power to make orders which the Tribunal could have made under s 88, the appellant’s submissions should be accepted and she should have her costs of both stages of the proceedings before the Tribunal, to be paid by the Commissioner.

35 So far as the costs in this Court are concerned, costs should follow the event. The appellant has been successful and should obtain an order for costs from the Commissioner, who appeared to resist the appeal.

Other matters

36 Three other procedural matters should be noted. First, the appellant sought an order that she be known in the proceedings by the initials “AT”, as the proceedings were entitled in the Tribunal. The Commissioner did not oppose such an order. Nevertheless, it is necessary for the Court to be satisfied that such an order is appropriate in the circumstances of the case. The justification, which should be accepted as sufficient, is that the underlying purpose of the proceedings involved a complaint that the respondent had revealed protected information concerning the personal circumstances of the appellant to a third party in breach of statutory protections conferred by the Privacy Act. Clearly the individual right to enforce such an obligation would be rendered nugatory, if it could only be achieved at the expense of public dissemination of such information, or at least parts thereof. The order sought is, to that extent, appropriate.

37 Part of the order sought required that steps be taken to remove the name of the appellant “from all documentation”, being presumably material held on the Court file. That course is not practical. The practical alternative is to direct that no person have access to the file, other than officers of the Court in the exercise of their duties, without leave of a judge of the Court.

38 The second issue concerns the need for leave to appeal. An appeal to this Court may only be brought with leave in respect of an interlocutory decision made by the Appeal Panel: Tribunal Act, s 119(1A). In relation to court proceedings, there is authority for the proposition that an order refusing an application to extend time under a Limitation Act is an interlocutory order, as is an order for summary dismissal. If these principles were applied to decisions of the Tribunal, the original decision would have been interlocutory. There would then be a further question as to whether a decision of an Appeal Panel, dismissing an appeal from such a decision, was interlocutory or final. It is not necessary to resolve these questions for present purposes. The fact that the orders made in the Tribunal, although legally erroneous, would have had the effect of terminating the proceedings in the Tribunal, together with the significance of the legal issues raised, would warrant a grant of leave, if leave were required. Finally, although the Commissioner originally opposed leave, counsel withdrew that opposition in the course of the hearing: Tcpt, 26/05/10, p 15(45). Accordingly, to the extent necessary, there should be a grant of leave.

39 The third issue concerns the identification of the respondent. The notice of appeal identified the respondent as “NSW Police Service”. The parties agree that the appropriate respondent should be the Commissioner of Police, New South Wales, and, by consent, the proceedings should be renamed accordingly.

40 The Court should make the following orders:

(1) To the extent necessary, grant leave to appeal.

(2) Direct that the Commissioner of Police, New South Wales, be named as the respondent to the proceedings.

(3) Direct that the appellant be identified in all published reports of the proceedings as “AT” and that no person have access to the Court file, other than officers of the Court in the exercise of their duties, without the leave of a judge of the Court.

(4) Allow the appeal and set aside the order of the Appeal Panel affirming the decision under appeal.

(5) In place of the order made by the Appeal Panel:

(a) set aside the decision of the Tribunal made on 14 December 2007;
(b) direct that the Tribunal further consider the application before it according to law;
(c) order the respondent to pay the applicant’s costs of the proceedings before the Judicial Member on 14 December 2007, and
(d) order the respondent to pay the appellant’s costs of the proceedings before the Appeal Panel.

(6) Order the respondent to pay the appellant’s costs in this Court.

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