Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel)

[2024] ARTA 42

Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42 (17 December 2024)

Applicant/s:  Bunnings Group Limited

Respondent:  Privacy Commissioner

Tribunal Number:                2024/9823 

GAP Reference Number:     2024-001-042

Tribunal:Justice Kyrou, President   

Place:Melbourne

Date of decision:                 17 December 2024

Date of reasons:                  19 December 2024

Decision:The Tribunal refuses the parties’ request for an adjournment of the directions hearing scheduled for 20 December 2024.

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Justice Kyrou, President

Catchwords

PRACTICE AND PROCEDURE – joint request for adjournment – relevant considerations – request refused

Legislation

Administrative Review Tribunal Act 2024

Secondary materials

Administrative Appeals Tribunal (Guidance and Appeals Panel) Practice Direction 2024

Statement of Reasons

1. On 25 November 2024, the applicant filed an application for review in respect of the respondent’s decision dated 29 October 2024 that the applicant had interfered with the privacy of individuals entering the applicant’s retail stores, through the use of facial recognition technology.

2. On 16 December 2024, consistent with a joint submission of the parties, I referred the proceeding to the Guidance and Appeals Panel (GAP) pursuant to section 122(1) of the Administrative Review Tribunal Act 2024 (‘ART Act’) on the basis that the proceeding raises an issue of significance to administrative decision-making. I described that issue in the following terms: ‘the use of facial recognition technology by organisations interfacing with the public … which affects many members of the community and which is a feature of some other administrative decisions falling within the Tribunal’s jurisdiction.’

3. Also on 16 December 2024, I convened a directions hearing for 10am on 20 December 2024 and requested the parties to provide to the Tribunal by 12 noon on Thursday 19 December 2024 agreed proposed directions for the steps to be taken by the parties to have the proceeding ready for hearing, including:

   ·the filing of documents by the respondent under s 23 of the ART Act;

   ·the filing of statements of facts, issues and contentions;

   ·the filing of affidavits;

   ·the filing of outline of submissions for the hearing;

   ·an estimate of the duration of the hearing; and

   ·the preferred mode and place of the hearing.

4. On 17 December 2024, the parties made a joint request that the Tribunal make directions for the respondent to have an extension of time for the filing of documents pursuant to s 23 of the ART Act, and that the directions hearing be adjourned until 10, 11 or 12 February 2025. On the same day, I refused the request for adjournment. I did not then provide reasons for the refusal. These are my reasons for the refusal, which I am providing for the benefit of the parties as well as other Tribunal users who may seek an adjournment in the future.

5. Section 9 of the ART Act sets out the Tribunal’s objective in the following terms:

   The Tribunal must pursue the objective of providing an independent mechanism of review that:

   (a)is fair and just; and

   (b)ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and

   (c)is accessible and responsive to the diverse needs of parties to proceedings; and

   (d)improves the transparency and quality of government decision‑making; and

   (e)promotes public trust and confidence in the Tribunal.

6. Under s 56 of the ART Act, the parties and their representatives must use their best endeavours to assist the Tribunal to achieve the objective in s 9. Moreover, the decision-maker and their representative have an additional obligation to use their best endeavours to assist the Tribunal to make the correct or preferable decision in relation to the proceeding.

7. Consistent with s 9 of the ART Act, the Tribunal has a responsibility to manage its cases, from lodgement until final resolution, expeditiously. It must retain control of the progress of its cases rather than allowing the parties to determine the pace at which a case proceeds. Consequently, requests for an adjournment of any case event, including a directions hearing or a substantive hearing, will not be granted unless there is good reason to do so. The fact that both parties agree to an adjournment on its own does not constitute a good reason. Neither does the convenience of the parties or their representatives. Once the parties are given fair notice of a case event, ordinarily, they should assume that it will go ahead as scheduled and that they will have to participate.[1]

   [1] Similar considerations are set out in paras 5.12–5.15 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024.

8. The assiduous manner in which the Tribunal will manage proceedings before it and retain control over their progress was emphasised in a note that was sent by the Tribunal to legal and other representatives on 24 October 2024. That note emphasised that:

   ·representatives will be expected to comply with Tribunal directions in the same way that they are expected to comply with court directions;

   ·requests for additional time in which to provide material will not be necessarily granted, even if all parties agree;

   ·requests for extensions of time or adjournments will only be granted if there is good reason for doing so, and they will not necessarily be granted even if all parties agree; and

   ·cases will be scheduled for hearing as soon as possible.

9. Consistent with s 56 of the ART Act, parties and their representatives must conduct proceedings before the Tribunal responsibly and in a manner that supports the Tribunal to achieve its objective in s 9. This includes complying with the Tribunal’s practice directions, orders, and directions. It also includes refraining from seeking extensions of time and adjournments for which there is no proper basis.

   10.In the present case, there is no suggestion that the parties’ request for an adjournment of the directions hearing had no proper basis. The parties identified the following reasons for seeking the adjournment:

   (a)Due to the breadth and complexity of the issues in the proceeding, the parties felt that it was too early at present to reliably forecast the time required for many of the steps necessary to prepare the matter for hearing, and that any agreed proposed directions would inevitably build ‘contingency’ into the timetable which may result in a lengthier timeframe to the hearing than may be necessary.

   (b)Additional time is required for the respondent to comply with the requirement in s 23 of the ART Act to provide documents to the Tribunal, including consultation with the applicant regarding whether any confidentiality orders should be sought in relation to some of the documents. The imminence of the Christmas/New Year holiday period was noted in this regard.

   11.I refused the request for adjournment for the following reasons:

   (a)Paragraphs 7.2 and 7.3 of the Administrative Review Tribunal (Guidance and Appeals Panel) Practice Direction 2024 (‘PD’) provide as follows:

   7.2 In general, within two weeks of the President deciding to refer a matter to the GAP, the Tribunal will convene a directions hearing to discuss the conduct of the GAP hearing and make orders. Directions hearings will be held before a member or a registrar and, unless ordered otherwise, are not confidential.

   7.3 Where a party is represented, the representative must attend the directions hearing and must be prepared to address the issues raised including:

   (a)the filing of any evidence and documents that are supplementary to the evidence and documents already filed with the Tribunal;

   (b)the filing of any written submissions, supplementary to the written submissions already filed with the Tribunal as part of the application or request that the proceeding be referred to the GAP;

   (c)the parties’ estimate of the length of the hearing before the GAP;

   (d)the filing of hearing certificates, if required; and

   (e)the filing of an agreed statement of facts.

   (b)Both parties are sophisticated organisations and are represented by large and experienced law firms. It is evident from the submissions they have filed that they were aware of the PD. Accordingly, they should have anticipated that a directions hearing would be held and prepared for it.

   (c)Although the directions hearing will take place at an early stage of the proceeding when the full nature and extent of the issues that will be the subject of the substantive hearing may not be known with precision, nevertheless the directions hearing will enable the Tribunal to better understand the proceeding and how it should be managed. The directions hearing will provide a better opportunity for a detailed discussion than an exchange of emails about the number of documents falling within s 23 of the ART Act and the resources and timeframes needed to enable the respondent to examine those documents, to engage with the applicant about the necessity for confidentiality orders, and to comply with the section.

   (d)It is appropriate, and consistent with ss 9 and 56 of the ART Act, for the Tribunal to explore with the parties whether it is possible to agree to a timetable for the completion of all pre-hearing steps and to a substantive hearing being held by a particular date in 2025.

   (e)At the directions hearing, the parties will have a fair opportunity to make submissions on the directions to be made by the Tribunal and the future progress of the proceeding towards its hearing and determination.

   I certify that the preceding 11 paragraphs are a true copy of the written reasons for the decision of Justice Kyrou, President

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   Associate:
   Dated: 19 December 2024