Budd v Director, Attorney Generals Department

[2006] NSWSC 1267

CITATION:	Budd v Director, Attorney Generals Department [2006] NSWSC 1267
HEARING DATE(S):	16/11/06
JUDGMENT OF:	Bell J at 1
EX TEMPORE JUDGMENT DATE:	11/17/2006
DECISION:	The appeal is dismissed. In addition to dismissing the summons filed on 21 February 2006, the summons filed on 11 May 2006 is dismissed, to the extent that it purports to be filed in these proceedings ; The Plaintiff is to pay the Defendant's costs of the proceedings.
CATCHWORDS:	Exclusion of conduct involving the holder of an office relating to a court exercising the court's judicial functions from the Privacy and Personal Information Protection Act 1998
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Local Court (Criminal and Applications Procedure) Rule 2003 Privacy and Personal Information Protection Act 1998 Uniform Civil Procedure Rules 2005
CASES CITED:	Housing Commission (New South Wales) v Tamar Pastoral Co (1983) 3 NSWLR 378 John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSW CA 101, 62 NSWLR 512 N(2) v Director General, Attorney General's Department [2002] NSW ADT 33 NZ Director General, Attorney General's Department (GD) [2005] NSW ADT AP 62 Our Town FM Pty Limited v Australian Broadcasting Tribunal (1987) 16 FCR 465 Soulemezis v Dudley Holdings (Pty Limited) (1987) 10 NSWLR 247 Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602
PARTIES:	Pamela Joan Budd (Appellant) Director, Attorney Generals Department (Respondent))
FILE NUMBER(S):	SC 30018/06
COUNSEL:	Self Represented (Appellant) A Mitchelmore (Respondent)
SOLICITORS:	Self Represented (Appellant) Crown Solicitors Office (Respondent)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	059031
LOWER COURT JUDICIAL OFFICER :	Hennessy N; Higgins S; Bolt M
LOWER COURT DATE OF DECISION:	10/5/05
LOWER COURT MEDIUM NEUTRAL CITATION:	NZ v Attorney General's Department [2005] NSWADTAP 62

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 17 November 2006

030018/06 - PAMELA JOAN BUDD v DIRECTOR ATTORNEY GENERAL'S DEPARTMENT

ADMINISTRATIVE LAW LIST

JUDGMENT

1 HER HONOUR: These proceedings were commenced by summons filed on 21 February 2006. The plaintiff is not legally represented. It has not been in issue on the hearing of the proceedings that she suffers from a condition known as agoraphobia and a related condition described as social phobia. These conditions make it difficult for the plaintiff to leave her home.

2 In a written application, the plaintiff sought to have the proceedings conducted by telephone. The defendant, whom I will refer to as the Director General, consented to that course. I made an order pursuant to r 31.3(1) of the Uniform Civil Procedure Rules 2005 (the UCPR), that the Plaintiff's submissions be received by telephone.

3 The summons appears to have been drawn by the Plaintiff without the benefit of legal assistance. It is stated to be an appeal pursuant to s 119 of the Administrative Decisions Tribunal Act 1997. That section confers a right of appeal on a party to proceedings before an Appeal Panel of the Administrative Decisions Tribunal to appeal to the Supreme Court on a question of law against any decision of the Appeal Panel in those proceedings. An appeal brought under s 119 must be made within such time and in such manner as is prescribed by the rules.

4 The rules governing the conduct of appeals under s 119 are those contained in Pt 50.4 of the UCPR:

50.4 Statement of ground

(1) A summons commencing an appeal must state:
(a) whether the appeal relates to the whole or part only, and what part, of the decision of the court below, and
(b) briefly, but specifically, the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below, and
(c) what decision the plaintiff seeks in place of the decision of the court below.

5 The summons does not set out whether the appeal relates to the whole or part only of the decision of the Appeal Panel, nor does it set out the grounds on which the appeal is brought, nor the decision which the Plaintiff seeks in place of the decision of the Court below. The relief claimed in the summons is stated as follows:

“Orders to pay me compensation and costs for serious privacy breach and cause me psychological and physical suffering and three false AVO conspiracy to me abuse.”

6 Reference is made in the body of the summons, in that part which makes provision for the statement of the grounds of appeal, to an attached letter setting out the grounds. On 11 May 2006, there was filed in the registry, a document described as an amended summons naming as the first defendant the Director, Attorney General's Department, and as the second defendant the New South Wales Police Commissioner. Relief was claimed in the amended summons including:

“Monetary compensation for causing me to be a victim of crimes, conspiracy cease and three false AVO and for psychiatric mental suffering, pain, hardship, and breach of my privacy rights.”

7 The amended summons was filed in proceedings 30017/06, proceedings brought by the Plaintiff against the Commissioner of Police. In so far as the amended summons claims relief against the Commissioner of Police, I dismissed it in the course of proceedings yesterday. It is not clear that the amended summons was filed in the present proceedings and I proceed by reference to the summons filed on 21 February 2006.

8 The summons does not, in terms, identify the proceedings that are the subject of the appeal under s 119 of the ADT Act. It is common ground that the proceedings that are the subject of appeal are those that were before the Appeal Panel of the Administrative Decisions Tribunal and were determined in the Appeal Panel's judgment NZ Director General, Attorney General's Department (GD) [2005] NSW ADT AP 62. By that determination, the Appeal Panel dismissed an appeal brought by the Plaintiff from the determination of O'Connor DCJ, President of the Tribunal who determined an application brought by the Plaintiff under the Privacy and Personal Information Protection Act 1998, (the PPIP Act), holding that the Tribunal was without jurisdiction. The decision of the Tribunal was made on the papers, as was the determination of the Appeal Panel.

9 Before turning to the grounds upon which the Plaintiff challenges the decision of the Appeal Panel, it is convenient to turn to certain background which is uncontroversial. In 2004, there were proceedings pending in the Local Court at Waverley by which the Plaintiff applied for apprehended violence orders against various persons and by which a number of those persons applied for apprehended violence orders against the Plaintiff. Officers of the registry of the Local Court at Waverley released certain documents that had been filed in the proceedings by the plaintiff to persons who were persons involved in the various AVO proceedings. There is no issue that the material released was material containing personal information within the meaning of the PPIP Act. There is no issue that staff of the registry of the Local Court at Waverley are employed within the Department of the Attorney General and that the Department is a public sector agency for the purposes of the PPIP Act.

10 As a public sector agency, the Department is subject to the obligations imposed by the PPIP Act, including the obligation pursuant to s 21(1) not to do anything or engage in any practice that contravenes an information protection principle applying to the agency. Part 5 of the PPIP Act provides for the review of certain conduct. It applies to conduct including the contravention by a public sector agency of an information protection principle that applies to the agency. Provision is made under s 53 for the internal review by public sector agencies of complaints made by persons aggrieved by the conduct of an agency. Jurisdiction is conferred on the Tribunal to review the conduct that was the subject of an application for internal review by a public sector agency under s 55.

11 The Plaintiff applied pursuant to the provisions of s 55 of the PPIP Act for the Tribunal review to the conduct of the staff of the registry in releasing the material. The Tribunal determined the application, holding that it was without jurisdiction under the PPIP Act. In coming to this conclusion, the Tribunal considered the operation of s 6 of the PPIP Act:

(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 a 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.

12 The Appeal Panel set out the Tribunal’s reasons for holding that the exclusion contained in s 6 of the PPIP Act applied as follows (at [3]):

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 organisation of intended evidence in advance of the formal hearing of the 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 a hearing, or after the material has been dealt with at hearing and has possibly become part of the evidence. The function of giving access of 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. 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 PPIP Act.

13 The Appeal Panel held that the Tribunal had been right to so hold.

14 I return to the grounds of the present appeal. In written submissions, counsel for the Director General distilled the five grounds of appeal that the Plaintiff set out in the document filed with her summons of 21 February 2006, as follows:

a) Having construed judicial functions in s 6 broadly so as to apply to the registry staff as well as court staff. The Tribunal should also have concluded that the registry's exercise of its judicial functions was the cause of the Plaintiff's alleged breach of privacy.
b) The Tribunal erred in failing to give the word "conduct" a broad meaning.
c) The Tribunal should have taken into account the original exhibits from the AVO proceedings which were filed with it.
d) The Tribunal failed to give good reasons why s 6 of the PPIP Act exempted the conduct of the courts, tribunals and their officers, and
e) The Freedom of Information Act 1989 has no relevance to the construction of the PPIP Act.

15 In addition to these grounds, in a letter dated 31 March 2006, which dealt with her appeal against determinations made in the Tribunal with respect to a complaint against the New South Wales Commissioner of Police and the present appeal, the Plaintiff set out fourteen grounds of appeal. A number of these grounds overlap with those that I have set out above.

16 Before the Appeal Panel, the Plaintiff relied upon five grounds which were as follows:

a) failure to consider the Plaintiff's evidence.
b) applying the wrong definition to the words "relate to".
c) finding that the registry is part of the Court.
d) finding that the actions of the registry staff in providing access to court files falls within the meaning of judicial functions, and
e) relying on an irrelevant consideration.

17 The last mentioned ground is the fifth ground of challenge in the document filed on 21 February 2006, namely, the reference in the Tribunal's reasons to the Freedom of Information Act. It will be noted that on this appeal the plaintiff has relied on grounds that raise matters in addition to those relied on by her before the Appeal Panel. In the way the matter has been argued, no issue has been taken arising out of that circumstance.

18 The Appeal Panel dealt with the five appeal grounds that I have set out in paragraph [16] above in this way:

(a) Failure to consider the appellant's evidence.

The Appeal Panel noted that the Plaintiff alleged that other parties had altered her documents by removing her "good evidence" from the Court, and that the staff of the registry had failed to stamp her documents "privacy protection". The Appeal Panel, after noting these concerns, found that the Tribunal had not been called upon to consider such matters by reason of its determination of the jurisdictional question. The Appeal Panel considered there was nothing to suggest that the Tribunal had made an error of law with respect to the consideration of the Plaintiff's evidence.

(b) Applying the wrong definition to the words "relate to".

In her submissions before the Appeal Panel, the Plaintiff contended that the Tribunal wrongly interpreted the words "relate to" in s 6(3) of the PPIP Act. The Appeal Panel referred to the decision of the High Court in Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 per Taylor J at 620; Our Town FM Pty Limited v Australian Broadcasting Tribunal (1987) 16 FCR 465 per Wilcox J at 479 - 480, and N(2) v Director General, Attorney General's Department [2002] NSW ADT 33 per O'Connor J at [3]. The Appeal Panel considered that the Tribunal had not erred in its application of the principles stated in these authorities or in its determination that the words were to be construed broadly.

(c) Finding that the registry is part of the Court.

The Appeal Panel considered that whether or not the registry was part of the Court was not the issue as, s 6(1) had the effect that nothing in the PPIP Act affected the manner in which the Registrar (or those acting on behalf of the Registrar) exercised the Court's judicial functions. The Appeal Panel noted that the Tribunal had found that a Registrar of a Local Court is the holder of an office of a court within the meaning of s 6(1) of the PPIP Act.

(d) Finding that the actions of the registry staff in providing access to court files fell within the meaning of judicial functions.

In this respect, the Appeal Panel observed that from its examination of the Plaintiff's submissions, it appeared to be her assertion that documents would have to be provided during the hearing or with her consent to come within the meaning of "judicial functions" for the purposes of s 6(3) of the PPIP Act. In the approach adopted by the Appeal Panel, the Tribunal was right to adopt a broad interpretation of the words "relate to" in subsection (3), and no matter raised under this ground persuaded the Appeal Panel that the Tribunal had erred in law in concluding that the release of the documents prior to hearing came within the judicial functions of the Court.

(e) Relying on an irrelevant consideration.

The Tribunal referred in the course of its reasons to the decision in N(2) . That decision concerned the provisions of s 10 of the Freedom of Information Act 1989 , which is in terms similar to s 6 of the PPIP Act. The Plaintiff submitted to the Appeal Panel that the Tribunal had erred in taking into account a case relating to the construction of the FOI Act. The Appeal Panel rejected that contention, noting that it had been open to the Tribunal in accordance with conventional legal reasoning to refer to a previous decision dealing with a comparable provision.

19 The Plaintiff's first ground of appeal in these proceedings does not appear to take issue with the broad interpretation of the words "relate to" as they appear in s 6(3). Rather, as counsel for the Director General submits, the Plaintiff seems to be contending that the PPIP Act should be read as extending to the conduct of registry staff in the exercise of judicial functions. Thus, in the additional grounds filed in the letter of 31 March 2006, the Plaintiff asserts:

"The Tribunal erred having found functions of access to documents, personal information, "relate to", exercise by court of its judicial functions. The Tribunal fails to take into account that under the "judicial functions" there is a Privacy Act which covers the personal handling of personal privacy.”

20 It appears that the Plaintiff may be under a misapprehension as to the effect of s 6. So much seems to flow from the concluding sentence above which, as I read it, contends that the Tribunal erred in failing to take into account that the handling of privacy information, including in the exercise of judicial functions, is subject to the PPIP Act. 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.

21 The third ground complains that the Tribunal should have taken into account the original exhibits from the AVO proceedings, which were filed with it. The Appeal Panel noted that the Tribunal had determined that it was without jurisdiction to review the conduct of the officers of the registry and that evidence concerning the conduct was irrelevant. In my view, the Appeal Panel was correct to approach the matter in this way and nothing in the Plaintiff's submissions, which deal extensively with the complaint concerning the Tribunal's failure to take into account the original exhibits from the AVO proceedings, raises an error of law entitling her to relief on the hearing of this appeal.

22 The next ground relates to the Tribunal's alleged failure to give good reasons why s 6 of the PPIP Act exempted the conduct of the Court's tribunals and their officers. The obligations upon a court or tribunal to give reasons for arriving at its decision are as discussed in Soulemezis v Dudley Holdings (Pty Limited) (1987) 10 NSWLR 247 at 269 per Mahoney J and at 260 per Kirby P. The obligation upon a court or tribunal to give reasons for arriving at the decision does not extend to "every matter of fact or law which was or might have been raised in the proceedings": Housing Commission (New South Wales) v Tamar Pastoral Co (1983) 3 NSWLR 378 per Mahoney J at 386. In my view, there is no basis for complaint that the Appeal Panel failed to adequately state reasons for its determination. Nor is there any basis for complaint that the Tribunal failed to adequately state the reasons for its determination.

23 The ground that asserts that the Tribunal erred by taking into account the decision in N(2) is misconceived. It was an appropriate exercise in legal reasoning for the Tribunal to take into account a previous decision relating to the construction of a like statutory provision.

24 In her further grounds of appeal and in her submissions, the Plaintiff places emphasis on the circumstance that the documents filed in the proceedings related to an apprehended violence order. As I understand the gravamen of her complaint, it is that staff of the registry, in deciding to release documents in proceedings of such a nature, were under an obligation to apply appropriate handling protocols. This is said to be so whether the staff were exercising the judicial functions of a court or not, having regard to the sensitive material likely to be filed in proceedings of this character. The contention, which is variously stated in the letter of 31 March and in the further material to which I have had regard being letters addressed to the Crown Solicitor's office of 17 August and 19 August 2006, does not establish relevant error of law. As I have already stated, once the Appeal Panel determined that the Tribunal had been correct in its finding that the staff of the registry were exercising the Court's judicial functions that was the end of the matter.

25 The Plaintiff in her further grounds of 31 March 2006, complains of the failure of the Tribunal to take into account evidence including her assertion that certain documents had been forged. Again, and for reasons earlier given, this does not establish relevant error of law.

26 In the further grounds of 31 March 2006, the Plaintiff says at page 5(9):

“The Tribunal erred applying the wrong logic and Act and s 6(3) applies. I do not agree that the Registrar is exempt. The Tribunal erred agrees the Registrar exercising functions but fails to take that into account.”

This ground challenges the correctness of the Appeal Panel's decision that the Tribunal had been right to hold that an officer of the registry of a Local Court making a determination concerning the release of material to parties, being material on the Court file, prior to the hearing of proceedings is exercising the Court's judicial functions.

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. The Local Court (Criminal and Applications Procedure) Rule 2003 makes provision both for parties and non parties to apply to have access to a copy of the Court record or a transcript of evidence and that such application may be made with the leave of a Registrar.

28 The right of access to material filed in proceedings including by non parties, seems to me to be a matter involving the exercise of judicial functions. In this court, it is dealt with pursuant to practice note SC Gen 2, which provides, inter alia, that access will normally be granted to non parties in respect of identified documents unless the judge or Registrar dealing with the application considers that the material or portions of it should be kept confidential. I see no reason to consider that the Registrar, or a member of the Registrar's staff at a Local Court, is to be viewed as exercising a different function to that exercised by a Registrar, or a person acting at the direction of the Registrar, in this Court in making a determination with respect to the access to documents filed in proceedings.

29 In John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSW CA 101, 62 NSWLR 512 consideration was given by the Court of Appeal to the question of access by non parties to documents contained in the file in the registry of the Ryde Local Court relating to apprehended violence order proceedings. The Court noted that such proceedings, being proceedings brought under Pt 15A of the Crimes Act 1900, are excluded from the operation of cl 62 of the Local Court (Criminal and Applications Procedure) Rule 2003 and are the subject of the legislative scheme in Pt 15A. In that case, the publisher of a newspaper unsuccessfully sought access to court documents filed in proceedings relating to an ADVO. In the Court of Appeal the publisher sought to challenge the refusal on grounds that included infringement of the principle of open justice. The Court rejected the contention of a common law right to access to a document filed in court proceedings. In the course of his reasons, Spigelman CJ observed that the Magistrate had been entitled to take into account the adverse consequences for a party in refusing access to the newspaper (at 527[74]) The decision to my mind, serves to underline that determinations relating to access to documents filed in court proceedings are properly characterised as falling within the judicial functions of the Court. I am not persuaded that the Appeal Panel erred in upholding the decision of the Tribunal that staff of the registry at the Waverley Local Court were exempt from the provisions of the PPIP Act with respect to their conduct in granting access to documents held on the Court file.

30 In coming to this conclusion, I have taken into account the matters that the Plaintiff advanced orally in the course of the hearing yesterday together with her written submissions to which I have already referred. As I have noted, in the written submissions, the Plaintiff canvasses factual matters at some length. These are not relevant to the determination of her appeal. Her lengthy submissions are repetitive and I have not referred to all of them. However, as I understand the basis upon which she challenges the correctness of the Appeal Panel's determination, I have dealt with the substance of her complaints. I do not consider that any of the matters that she has raised disclose a basis for concluding that the Appeal Panel erred in law in the determination of the proceedings.

31 For these reasons the appeal is dismissed. In addition to dismissing the summons filed on 21 February 2006, I dismiss the summons filed on 11 May 2006, to the extent that it purports to be filed in these proceedings

The Plaintiff is to pay the Defendant's costs of the proceedings.

oOo