BCR v Consumer, Trader & Tenancy Tribunal

[2014] NSWCATAD 79

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79
Hearing dates:	On the papers
Decision date:	17 June 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The application is dismissed for want of jurisdiction.
Catchwords:	judicial function - relating to - jurisdiction
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998 Consumer, Trader and Tenancy Tribunal Act 2001
Cases Cited:	LG v Attorney Generals Department of NSW [ 2009] NSWADT 141 McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 79 ALJR 1789; (2005) HCA 55 N (No. 2) v Director General, Attorney General's Department [2002] NSWADT 33 NZ v Attorney-General's Department [2005] NSWADT 103
Category:	Principal judgment
Parties:	BCR (Applicant) Consumer, Trader & Tenancy Tribunal (Respondent)
Representation:	BCR (Applicant in person) M Nicoletti (Respondent)
File Number(s):	133286

reasons for decision

1. This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).

1. In these reasons the name of the Applicant has been anonymised so as to preserve the privacy of his personal affairs. The Applicant is referred to as BCR. I have also limited my discussion of the evidence in order to avoid the possibility that the Applicant's identity might be revealed.

1. BCR is seeking review by the Tribunal under the provisions of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") in relation to alleged conduct by the Respondent. The conduct in issue is the release of BCR's bank statement and Centrelink income statement to his landlord. This conduct occurred on 28 June 2013.

1. The initial decision was made on 29 July 2013 by an officer of the Consumer Trader and Tenancy Tribunal ("the CTTT"). The Applicant requested an internal review of the agency's decision. The internal review was concluded on 23 September 2013.

1. The review decision stated:

In my opinion the accidental provision of your bank statement and Centrelink income statement to the landlord was on the face of it a failure to comply with IPP's 10 (where the secondary use of the material was disclosure to the landlord) and 11.

Section 6(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) provides:

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.

In my opinion, the direction by the Deputy Registrar to provide the landlord with your covering letter was consistent with providing procedural fairness to that party, and as such, part of the Tribunal's judicial function of determining a matter. The fact that human error occurred, that is that further documents were accidentally provided, does not remove the action from that categorisation.

The matter may be put in various ways - the error was in "relation to" or "in connection" with performing the judicial function - or that the manner in which the judicial function was exercised in this instance contained an error. What it amounts to is that this was an error within the scope of the function. Consequently, the conduct is exempt from the PPIP Act.

Section 25 of the PPIP Act provides:

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).

Section 73 of the Consumer, Trader and Tenancy Tribunal Act 2001 (CTTT Act) provides:

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

(c) for the purpose of any legal proceedings arising out of this Act or any report of such proceedings, or

(d) with other legal excuse.

Section 73 of the CTTT Act permits disclosure of information in connection with the execution or administration of the CTTT Act. Such a disclosure would not have to comply with, relevantly, sections 17 (IPP 10) and 18 (IPP 11) of the PPIP Act.

In my opinion, the disclosure complained of in this case was clearly "in connection with" the execution or administration of the CTTT Act.

I note that the landlord, as a party to the application before the Tribunal, has a right to inspect records of the proceedings pursuant to Clause 41 of the Consumer, Trader and Tenancy Tribunal Regulation 2009. That is, the landlord has a legislative right to view and obtain copies of the same documents, amongst others, that are the subject of your complaint.

Appropriate action:

On behalf of the Tribunal, I sincerely apologise for the lapse in file management and the obvious distress it has caused you.

As indicated by the Deputy Chairperson (Registry & Administration) in a previous response to you, the Registrar has reminded all her staff of the importance of clients' privacy and to pay better attention to such matters in the future.

1. BCR has applied to the Tribunal for external review of the determination.

Background

1. The background of the application is not in dispute. Mr Nicoletti, solicitor for the Respondent, has provided the following outline of that background:

• On 17 June 2013 the Applicant lodged an application with the CTTT regarding a residential tenancy dispute.

• On 24 June 2013 the Applicant sent a two page covering letter ("the covering letter") to the CTTT requesting it issue a summons for production of documents. Along with the covering letter, the Applicant attached a copy of his bank statement and Centrelink income statement to support his request for the waiver of the summons fee on the basis of financial hardship.

• The Deputy Registrar of the CTTT directed that pages 1 and 2 only be sent to the Landlord. On 28 June 2013 staff of the CTTT, in error, sent a copy of all of the Applicant's documents to the Landlord.

• On 5 September 2013 the CTTT provided the NSW Privacy Commissioner with a copy of its Preliminary Determination, pursuant to section 46(2) of the PPIP Act.

• On 17 September 2013 the Privacy Commissioner responded to the CTTT. The Privacy Commissioner's view was that principles 10 and 11 were the relevant principles applicable in this instance. These are section 17 (Limits on use of personal information) and 18 (Limits on disclosure of personal information) of the PPIP Act.

• On 23 September the CTTT sent its internal review to the Applicant. The public sector official who had conducted the internal review found that:

1. the alleged conduct had occurred;

2. the conduct did not comply with the Information Protection Principles ("the IPPs") but;

3. non-compliance was authorised by an exemption under the PPIP Act.

1. The matter was listed before me for a Planning Meeting on 5 November 2013. A preliminary issue of jurisdictional was raised on that occasion and I set a timetable for the filing of written submissions in relation to the issue with a view to the so that the preliminary issue could be dealt with on the papers.

Jurisdictional Issue

1. The issue to be determined is whether the Tribunal has jurisdiction to hear the application. The question arises as to whether the CTTT is exempt from compliance with the information protection principles ("IPPs") regarding the conduct by virtue of section 6(1) of the PPIP Act.

Applicable legislation

1. Section 3 of the PPI Act defines "public sector agency" as follows:

"public sector agency" means any of the following:

(a) a government department or the Teaching Service,

(a1) the office of a political office holder within the meaning of the Members of Parliament Staff Act 2013 , being the office comprising the persons employed by the political office holder under Part 2 of that Act,

(b) a statutory body representing the Crown,

(d) a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account:

(i) is part of the accounts prepared under the Public Finance and Audit Act 1983 , or

(ii) is required by or under any Act to be audited by the Auditor-General, or

(iii) is an account with respect to which the Auditor-General has powers under any law, or

(iv) is an account with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts if requested to do so by a Minister of the Crown,

(e) the NSW Police Force,

(e1) Service NSW Division of the Government Service,

(f) a local government authority,

(g) a person or body that:

(i) provides data services (being services relating to the collection, processing, disclosure or use of personal information or that provide for access to such information) for or on behalf of a body referred to in paragraph (a)-(f) of this definition, or that receives funding from any such body in connection with providing data services, and

(ii) is prescribed by the regulations for the purposes of this definition,

but does not include a State owned corporation.

Note : Section 4B enables the regulations to declare that a public sector agency is to be regarded as being part of another public sector agency for the purposes of this Act. It also enables the regulations to declare that a part of a public sector agency is to be regarded as being a separate public sector agency from the public sector agency of which it forms part for the purposes of this Act.

1. Section 6 of the PPIP Act relevantly states:

"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.

...

(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 ...

1. Section 19 of the CTTT Act states:

19 Registrar and staff

(1) A Registrar of the Tribunal, and such Deputy Registrars and other staff as may be necessary for the purposes of this Act, may be employed under Part 2 of the Public Sector Management Act 1988.

(2) The Chairperson may enter into arrangements with any government agency or other body or person (whether in the public or private sector) for the provision of assistance to the Tribunal in connection with the exercise of its functions.

1. Section 20 of the CTTT Act states:

20 Functions of Registrar and Deputy Registrars

(1) The Registrar has the following functions:

(a) to assist in managing the business and the affairs of the Tribunal,

(a1) any function of a member or the Tribunal under this Act that is prescribed by the regulations and that the Chairperson authorises the Registrar to exercise,

(b) such administrative or other functions as may be conferred or imposed on the Registrar by or under any Act.

(2) A Deputy Registrar may exercise the functions of the Registrar:

(a) as directed by the Registrar or the Chairperson, and

(b) during the absence of, or a vacancy in the office of, the Registrar.

(3) Anything done or omitted to be done by a Deputy Registrar in exercising a function of the Registrar has effect as if it had been done or omitted to be done by the Registrar.

1. Section 3(1) of the Judicial Officers Act 1986 defines the term "judicial officer" to mean (except in Part 7A - Appointment Of Judicial Officers To Other Positions):

"Judicial Officer"

(a) a Judge or associate judge of the Supreme Court,

(b) a member (including a judicial member) of the Industrial Relations Commission,

(c) a Judge of the Land and Environment Court,

(d) a Judge of the District Court,

(e) the President of the Children's Court,

(f) a Magistrate, or

(g) the President of the Administrative Decisions Tribunal, or

(h) the President of the Civil and Administrative Tribunal. In addition,

Section 3(2) of the Judicial Officers Act 1986 states:

(2) In this Act:

(a) a reference to a function includes a reference to a power, authority and duty, and

(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

The Applicant's Submissions

1. The Applicant submits that the Tribunal has jurisdiction to hear the application because section 6 of the PPIP Act does not apply to the circumstances of this matter.

1. He submits that it is clear from sections 19 and 20 of the CTTT Act that a Registrar and Deputy Registrar of the CTTT are Public Servants employed under the Public Sector Management Act 1988. They are not judicial officers within the meaning of the Judicial Officers Act. In their capacity as Registrar and Deputy Registrar, their duties and functions are confined to administrative functions and duties. They cannot assume the office of a judicial officer and exercise any judicial functions.

1. He further submits that the provision for complaints against Judicial Officers to the Judicial Commission of NSW pursuant to section 15 of the Judicial Officers Act does not permit complaints regarding arbitrators, registrars, chamber magistrates, assessors, members of tribunal's or legal practitioners.

1. Therefore, he argues, section 6 of the PPIP Act cannot possibly relate to the duties and functions of a Registrar or Deputy Registrar of the CTTT because firstly, the powers and functions of the Registrar and Deputy Registrar are restricted to administrative functions; and secondly, both the Registrar and Deputy Registrar are public servants. He contends that as public servants they cannot exercise any judicial functions because their actions are not covered by or subject to a complaint pursuant to section 15 of the Judicial Officers Act.

1. The Applicant submits that the term 'judicial function' solely relates to such duties and functions of a court or tribunal during the course of a hearing or the determination of proceedings before a judicial officer as defined in section 3(1) of the Judicial Officers Act.

1. He submits that an application for waiver or reduction of fees in a Summons application or for any application that incurs a fee is an administrative process undertaken by a Registrar. An administrative inquiry is undertaken in order to determine whether or not the Applicant satisfies the relevant criterion for a waiver or fee reduction.

1. He further submits that it is unclear how the views of the other party to a CTTT matter could be relevant in relation to an application to the CTTT for a fee reduction or waiver. He contends that the application or the decision of a Registrar in a fee reduction or fee waiver application does not relate to any evidence which will be required during the hearing or determination of proceedings before a Member of the CTTT. It is an entirely different and separate application altogether.

1. The Applicant disputes the need to forward the fee waiver and or fee reduction application to the other party so that the other party could provide their input as to whether or not the Applicant is entitled or should obtain a fee waiver or fee reduction for his/her other separate application.

1. He submitted that in essence the CTTT is asserting that the Registrar requires help and assistance from the other party in order to determine whether or not there is merit in the request for a fee waiver or fee reduction.

The Respondent's Submissions

1. Section 20 of the PPIP Act provides that the IPPs contained within the Act apply to public sector agencies. Section 53 of the PPIP Act provides that a person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. The review is to be undertaken by the public sector agency concerned. Section 55 of the PPIP Act provides that if a person who made an application for internal review under section 53 is not satisfied with the outcome of the review they may apply to the Tribunal for review of the conduct that was the subject of the application under section 53.

1. Mr Nicoletti submitted that the CTTT is not a "public sector agency" under the PPIP Act. He points to the definition of "public sector agency" in section 3 of the PPIP Act and submits that the CTTT is not:

• a government department within paragraph (a);

• a declared authority within paragraph (c);
• an entity referred to in paragraphs (e) to (g); nor

• a "statutory body representing the Crown" referred to in paragraph (b).

1. In regard to paragraph (b) of the definition he referred to section 13A(4) of the Interpretation Act 1987, which provides:

13A NSW Government agencies and statutory bodies representing the Crown

...

(4) In any Act or instrument:

(a) a reference to a NSW Government agency includes a reference to a body that is declared to be a statutory body representing the Crown, or

(b) a reference to a statutory body representing the Crown includes a reference to a body that is declared to be a NSW Government agency.

1. Mr Nicoletti submitted that in its establishing Act, the CTTT is not declared to be either a "statutory body representing the Crown" or a "NSW Government agency". Thus, it is a question of construction as to whether the CTTT is a "statutory body representing the Crown" within the meaning of the definition in section 3 of the PPIP Act": McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 79 ALJR 1789; (2005) HCA 55.

1. McNamara concerned the position of the Roads and Traffic Authority of New South Wales. The RTA was constituted as a corporation by a statute which also stated that it was "a statutory body representing the Crown". The RTA was the landlord of premises to which the tenant contended there applied the protective provisions of the Landlord and Tenant (Amendment) Act 1948; that statute stated that it did not bind "the Crown" in right of New South Wales. The High Court held that the mere statement that the RTA was a statutory body representing the Crown did not have the effect of attracting rights and privileges otherwise conferred upon the executive branch of government identified as "the Crown". With respect to the notion of "representation" of the Crown, the Court emphasised that close attention to the functions of the body in question and the degree of control exercisable over it by the executive government was required. Further, a statutory body might be given the privileges and immunity of the Crown for one purpose and not another.

1. The Respondent submits that in so far as it concerns the exercise of its judicial functions, the CTTT is not a "statutory body representing the Crown" because it is not subject to the control of the executive regarding the exercise of its judicial power.

1. The Respondent further submits that, under paragraph (d) of the definition, the CTTT can only be considered a "public sector agency" if separate accounts are kept regarding the administration of the CTTT rather than accounts which are included within the accounts of NSW Fair Trading or the Department of Finance & Services. This is because paragraph (d) of the definition states that a "public sector agency" includes a body in relation to whom an account of administration or working expenses is kept and in regard to which the Auditor-General has powers under any law. The Respondent submits that as separate accounts are not kept regarding the administration of the CTTT, then the CTTT is not a "public sector agency" for the purpose of the PPIP Act.

1. With respect to the question of whether the Registrar of the CTTT, or those acting on behalf of the Registrar, are exempt from compliance with the relevant IPPs by virtue of section 6(1) of the PPIP Act, Mr Nicoletti referred to the decision in LG v Attorney General's Department of NSW (2009) NSWADT 141 where Judicial Member Molony considered the term "judicial functions". The matter concerned employees in the Registry of the District Court who gave the solicitor for LG access to documents produced under subpoena by her doctor. The documents were the subject of objections and no order had been made for access or inspection.

1. The jurisdictional issue arose as to whether the conduct of the Registrar and the Registry's employees, when releasing the documents, "...concerned the manner in which the District Court, or its office holders, exercised their judicial functions....".

1. Judicial Member Molony considered a number of other decisions that had dealt with the concept of a court or tribunal's "judicial functions" and stated at paragraph [24] and following:

24 What is encompassed within the concept of a court or tribunal's 'judicial functions' has been the subject of a number of earlier decisions in relation to the PIPP Act and the Freedom of Information Act 1989. In NZ v Attorney-General's Department [2005] NSWADT 103, the President considered the term in the context of s 6 of the PIPP Act. There the conduct in issue was the release by the Registrar of a Local Court of documents filed by an applicant for an AVO to other parties. He said, at [14 -18]

"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.

25 On appeal from that decision the Appeal Panel in NZ v Director-General, Attorney-General's Department [2005] NSWADTAP 62 at [9] said:

9 The appellant disputed that the Registry is part of the Court. Whether or not the Registry is part of the Court is not the issue. Section 6(1) has the effect that nothing in the [Privacy Act] affects the manner in which the Registrar (or those acting on behalf of the Registrar) exercises the court's judicial functions. The Tribunal found at [14] that a Registrar of a Local Court is the holder of an office of a court within the terms of s 6. The appellant agreed with that finding. No error of law is disclosed.

26 On further appeal to the Supreme Court in Budd v Director, Attorney Generals Department [2006] NSWSC 1267 Bell J said, at [20]:

... The Plaintiff's complaint concerned the release of information containing personal details. There is no question of the PPIP Act applying to a court or the holder of an office relating to a court exercising the court's judicial functions. Once the actions of the registry staff were found to relate to the judicial functions of the court within the meaning of the PPIP Act, that was an end to the matter. There could be no question of the Tribunal exercising jurisdiction under that Act. For these reasons, the grounds that I have identified as paragraph [14] (a) and (b) do not establish error of law in the way the Appeal Panel determined the issue.

27 At [27] Bell J commented on the role of the Registrar of the Local Court:

27 The Registrar of a Local Court is, to my mind, plainly the holder of an office relating to the Local Court. The duties of the Registrar include the custody and control of documents filed in proceedings. Thus, provision is made in Pt 31.11 of the UCPR for the Registrar to produce to the Court any documents in the Registrar's custody that by notice in writing, any party to proceedings requests the Registrar to produce to the Court for the purposes of the proceedings.

28 More recently in HO v Attorney-General's Department [2008] NSWADT 224, the applicant sought external review of a decision, made under the Freedom of Information Act 1989 ("the FOI Act"), to refuse to amend a Certificate of Trial and Acquittal that had been issued by the Assistant Registrar of the District Court. The decision to refuse to amend the Certificate rested upon s. 10 of the FOI Act. That section relevantly provides:

(1) For the purposes of this Act:

(a) neither a court nor a person who is the holder of an office pertaining to a court shall, in relation to the court's judicial functions, be taken to be, or to be included in, an agency, and

(b) neither a registry or other office of a court nor the members of staff of such a registry or other office shall, in relation to those matters that relate to the court's judicial functions, be taken to be, or to be included in, an agency.

29 Deputy President Handley said, at [19] and [28]:

19 Pursuant to s 10(1)(a) of the FOI Act, the Assistant Registrar of the District Court, being a person who holds an office pertaining to a court, is not an `agency' for the purpose of the FOI Act in relation to the District Court's `judicial functions', as defined in s 6(1), nor is the Assistant Registrar an `agency' in relation to those matters that relate to the Court's judicial functions (s 10(1)(b)).

...

28 The District Court Act 1973 provides for the appointment of registrars and assistant registrars, whose functions are prescribed in the Act (see, for example, ss 18H, I, and J). Relevantly, in terms of the section 10(1) of the FOl Act, an assistant registrar is, in my view, clearly 'the holder of an office pertaining to a court'.

1. Mr Nicoletti also noted the following comments by Judicial Member Molony in LG v Attorney-General's Department:]

48 In NZ the President pointed out, at [20], that his decision was 'not in any way to deny the importance of care being shown in Registry practices so as to ensure that undue violations of privacy are avoided in giving access to Court files.'

49 The same note of caution need to be drawn with regard to the receipt, managements, security of, and access to documents produced under subpoena, especially documents containing health information. It is an unfortunate fact that compulsory processes often catch highly sensitive and personal health information, which is not relevant to the issues for determination. The potential for significant, unnecessary harm and upset to be caused to the individuals concerned, should that information be disclosed, points to the need for great care to be taken in the management of that judicial process.

1. Insofar as the Applicant's submissions are focused on the judicial function exercised by the Registrar or Deputy Registrar as arising from the basis of the employment relationship, the Respondent submits that the Applicant's submissions are misconceived. Mr Nicoletti submitted that those functions are governed by section 20 of the CTTT Act.

1. Section 20(1)(a) of the CTTT Act sets out one of the functions of the Registrar as being to assist in managing the business and affairs of the Tribunal. The Respondent submits that the terms "business and affairs of the Tribunal" includes the making of decisions in relation to proceedings before it where evidence is tendered and considered. That evidence may be evidence tendered following the issue of a summons by a Registrar or Deputy Registrar.

1. Mr Nicoletti submitted that what is therefore relevant to whether a Registrar of Deputy Registrar is exercising the judicial functions of the CTTT, including functions "as relate to the hearing or determination of proceedings before it" is whether there are proceedings before the Tribunal; that require "hearing" or "determination"; and whether the function exercised is related in some way to those proceedings.

1. In this matter the Applicant applied for a summons to be issued in proceedings before the CTTT. In the process of issuing the summons the Registry released a number of documents to the other party to the proceedings. The Respondent submits that the release of such documents was in relation to proceedings before the Tribunal that required hearing or determination by the Tribunal, and accordingly the release of those documents was related to the exercise by the CTTT of its judicial functions.

1. Further, the Respondent submits that the Applicant's application for review of the conduct be dismissed for lack of jurisdiction.

Discussion and Findings

1. It is not in dispute that an officer in the registry of the CTTT released the Applicant's documents in error. Nor is it in dispute that the released documents contained the Applicant's personal information. As noted above, the preliminary issue has arisen with respect to whether the CTTT is exempt from compliance with the relevant IPPs in regard to the conduct by virtue of section 6(1) of the PPIP Act.

1. The parties disagree as to whether or not the CTTT registry officer was exercising functions relating to the judicial functions of the CTTT when they released the Applicant's documents to the landlord.

1. I agree with the Respondent that the Applicant's submissions are misconceived insofar as they are focused on the basis of the Registrar's, Deputy Registrar's or registry officer's employment relationship. I also agree that 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.

1. The internal review reasons for decision explained the circumstances in which the documents were released as follows:

In relation to proceedings ..., on 24 June 2013 the Tribunal received correspondence from you. The correspondence consisted of a two page covering letter, a request to issue a summons for production of documents and a bank statement and an income statement from Centrelink.

The covering letter requested that the summons fee be waived due to financial hardship. The bank and Centrelink statements were sent to support the request for fee waiver. The covering letter also raised issues relevant to your application against the landlord. The Deputy Registrar directed that pages 1 and 2 (the covering letter) of the correspondence be sent to the landlord. In the event however, as you state, it appears that on 28 June 2013 a copy of all of the correspondence was sent to the landlord.

...

In my opinion, the direction by the Deputy Registrar to provide the landlord with your covering letter was consistent with providing procedural fairness to that party, and as such, part of the Tribunal's judicial function of determining a matter.

1. The Applicant has not disputed the assertion that the covering letter raised issues relevant to the Applicant's application against the landlord. I therefore accept that to have been the case. In the circumstances, procedural fairness required that the landlord be given a copy of any information that was relevant to the matter to be determined.

1. 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.

1. I have set out above passages from a number of decisions that have deal with the concept of a court or tribunal's "judicial functions". It is clear from those decisions that the words 'relate to' in section 6 of the PPIP Act 'have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings'.

1. In N (No 2) v Director General, Attorney General's Department the President held that communications from professional representatives are necessary to the efficient conduct of a claim, and the function of giving access to those communications falls within the scope of those functions that 'relate to the hearing and determination of claims'.

1. In NZ v Attorney-General's Department the President held that where the applicant's personal information was found in documents lodged with the registry, the function of giving access to the documents, and to the personal information they may contain, is a function that 'relates to' the exercise by the Court of its judicial functions.

1. In my view, the circumstances of this matter are comparable to those matters in that the Applicant's personal information was found in documents lodged with the CTTT along with the covering letter. The provision of the covering letter to the landlord was necessary to the efficient conduct of the claim that was to be determined by the CTTT. The function of giving access to the covering letter is a function that 'relates to' the exercise by the CTTT of its judicial functions. The Applicant's personal information was released as part of that function. The conduct of releasing the documents occurred as part of the activities of preparing the matter for determination in the CTTT.

1. It follows, in my view, that the registry officer was exercising a function relating to the judicial functions of the CTTT when they released the Applicant's documents to the landlord. The fact that the Applicant's personal information was released in error does not alter this situation.

1. In my view, the Tribunal does not have jurisdiction to hear BCR's review application. Accordingly, the application should be dismissed.

1. While it is not necessary that I determine the issue of whether the CTTT is a "public sector agency" under the PPIP Act, I note that my preliminary view is that for some purposes, such as the exercise of purely administrative functions, it will be a public sector agency. This is because the CTTT is subject to the control of the executive regarding the exercise of those administrative functions.

1. For completeness, I repeat that note of caution offered by the President in NZ v Attorney-General's Department and by Judicial Member Molony in LG v Attorney-General's Department in regard to the importance of care being shown in Registry practices so as to ensure that undue violations of privacy are avoided in giving access to information held by the registry.

Order

The application is dismissed for want of jurisdiction.

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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: 17 June 2014