Commissioner of Police v Ritson (“DVT”) (No 2)

[2023] NSWSC 854

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of Police v Ritson (“DVT”) (No 2) [2023] NSWSC 854

Hearing dates:

14 February 2023 and further written submissions dated 21 February 2023

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1)   Leave to appeal is granted; and

(2)   The appeal is dismissed.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – appeal from NCAT Appeal Panel – requirement of leave – meaning of “on a question of law” – procedural fairness – whether Commissioner of Police denied procedural fairness by Appeal Panel – where plaintiff sought to narrow the scope of Tribunal’s jurisdiction – where it was not open to plaintiff to assume argument would be accepted by the Tribunal – nature of relationship between parties considered – no denial of procedural fairness – whether Tribunal had an obligation to supervise plaintiff’s consideration of the request for information – not for the Tribunal to positively satisfy itself that plaintiff had considered legislation – where ample time had elapsed – plaintiff had obligation to be familiar with obligations under legislation – plaintiff experienced in litigation – adequate reasons in refusing to allow fresh evidence on appeal – whether the failure to admit evidence on appeal so unreasonable or plainly unjust – content of reasons – reasons given were adequate – appeal dismissed

STATUTORY INTERPRETATION – Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and Government Information (Public Access) Act 2009 (NSW) (GIPA Act) – whether 60(1)(a) of the GIPA Act is picked up by s 20(5) of the PPIP Act – whether s 60(1)(a) of the GIPA Act imposes a “condition or a limitation” – not picked up by the PPIP Act

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Police Act 1900 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Aboriginal Land Council (NSW) v Minister Administering Crown Lands Act (2007) 157 LGERA 18; [2007] NSWCA 281

AMZ v R [2013] NSWCCA 6

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

CEU v University of Technology Sydney [2018] NSWCATAD 13

Commissioner of Police v Brendan Ritson (Supreme Court (NSW), Yehia J, 6 December 2022, unrep)

Commissioner of Police (NSW Police Force)v DVT [2022] NSWCATAP 231

Commissioner of Police v Ritson (“DVT”) [2023] NSWSC 108

Concoran v Far [2019] NSWSC 1284

Department of Education and Training v GA(No 3) [2004] NSWADTAP 50

Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

DVT v Commissioner of Police (No 2) [2021] NSWCATAD 195

DVT v Commissioner of Police (No 3) [2021] NSWCATAD 290

DVT v Commissioner of Police [2021] NSWCATAD 108

Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38

Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

HT v The Queen [2019] HCA 40; (2019) 93 ALJR 1307

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Millar v Federal Commissioner of Taxation [2015] FCA 1104; (2015) 67 AAR 490

National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296; [1984] HCA 29

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220

Pollard v RRR Corporation Pty Limited [2009] NSWCA 110

R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 1999

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6

Re Refugee Review Tribunal; Ex ParteAala (2000) 204 CLR 82; [2000] HCA 57

Ros v Commissioner of Police [2020] NSWCATAP 70

Selvanayagam v University of West Indies [1983] 1 WLR 585

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24

Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Texts Cited:

Administrative and Equal Opportunity Division Guideline Occupational Division Guideline

Category:

Principal judgment

Parties:

Commissioner of Police, NSW Police (Plaintiff)
Brendan Ritson (“DVT”) (First Defendant)
Privacy Commissioner (Second Defendant)

Representation:

Counsel:
J Emmett SC with J E Curtin (Plaintiff)
B Lim with H Ryan (Second Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Self-represented (First Defendant)
R Wilkins, Information and Privacy Commission NSW (Second Defendant)

File Number(s):

2022/237160

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Civil and Administrative Tribunal New South Wales

Jurisdiction:

Appeal Panel

Citation:

[2022] NSWCATAP 231

Date of Decision:

15 July 2022

Before:

S Westgarth, Deputy President
R Dubler SC, Senior Member

File Number(s):

AP 2021/00316402

JUDGMENT

Introduction

Proceedings brought in this Court

1. The plaintiff in this matter seeks leave to appeal, pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), against the decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Appeal Panel) dismissing her appeal: Commissioner of Police (NSW Police Force) v DVT [2022] NSWCATAP 231 (the Appeal Panel Decision). The Appeal Panel hears appeals from decisions made by the New South Wales Civil and Administrative Tribunal (the Tribunal) and from some external bodies. The decision sought to be appealed in the present case was the determination of the Tribunal making orders in favour of the first defendant in relation to his application to the plaintiff seeking access to his personal information pursuant to the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act): DVT v Commissioner of Police [2021] NSWCATAD 108 (the Breach Decision) and DVT v Commissioner of Police (No 3) [2021] NSWCATAD 290 (the Remedies Decision). Section 83 of the CAT Act provides that a party to an external appeal or an internal appeal (as was the case here) may, with the leave of the Court, appeal on a question of law against the decision of the Tribunal.

The absence of the defendant

2. The first defendant did not appear on this application. The plaintiff was represented by Mr Emmett SC with Ms Curtin. An order was made in the proceedings joining the Privacy Commissioner as a party, making her the second defendant: see Commissioner of Police v Ritson (“DVT”) [2023] NSWSC 108. For ease of reference, in these reasons the first defendant will be referred to as the defendant and the second defendant will be referred to as the Privacy Commissioner. Mr Lim with Ms Ryan appeared for the Privacy Commissioner.

3. At the commencement of the proceedings, the plaintiff tended various emails to and from the defendant related to this appeal. On 6 October 2022, the defendant sent an email responding to an email from the chambers of Fagan J indicating that he had no objection to his Honour making orders in chambers granting an extension of time sought by the plaintiff. The defendant’s email was copied to the solicitor for the plaintiff. The matter was before the Court on 6 December 2022, on which date Yehia J made orders with respect to the amendment of the summons and the extant stay of the orders of the Tribunal: Commissioner of Police v Brendan Ritson (Supreme Court (NSW), Yehia J, 6 December 2022, unrep). Her Honour noted (at [3]) that the defendant had not appeared but was satisfied that he had been given notice of the matter by the plaintiff, and consequently, the matter was determined in his absence.

4. Subsequent to her Honour’s decision, emails were sent by the plaintiff to the defendant dated 6 and 9 December 2022 respectively, the first setting out the orders made by her Honour and the second providing a copy of her Honour’s reasons. On 8 February 2023, the plaintiff’s solicitor again wrote to the defendant by email, referring to the Privacy Commissioner’s motion seeking leave to intervene, which was listed for 14 February 2023 at 9:00 am. The email asked if the defendant would consent to the adjournment of that motion to 10:00 am in order for the motion to commence at the same time as the hearing of the summons seeking leave to appeal. There was no response from the defendant. Each of the emails were sent to the email address used by the defendant in his email to Fagan J’s chambers, which was the address that had been used by the defendant in the course of proceedings.

5. In the circumstances set out above, I was satisfied that the defendant had been provided with adequate notice of the proceedings.

The identification of the defendant

6. In the proceedings before the Tribunal and the Appeal Panel, the defendant was identified as DVT. This was in accordance with orders made pursuant to s 64(1)(a) and s 64(1)(c) of the CAT Act prohibiting the disclosure of the name of the defendant (the then applicant), the publication of evidence given in the proceedings, or documents lodged with the Tribunal which identified the defendant.

7. No similar order was sought in these proceedings. The proceedings were instituted using the defendant’s name. While he did not attend at the hearing of the appeal, he communicated with the Court prior to the hearing. He did not raise, at any stage, any issue with his having been named in the initiating process. The test for an order prohibiting the publication of the name of an applicant before the Tribunal, and of the evidence given in the proceedings, is the "desirability” of such orders being made: CAT Act, s 64(1). This is to be contrasted with the test of necessity under the Court Suppression and Non-Publication Orders Act 2010 (NSW). It might also be noted that the non-publication orders made by the Tribunal appear to be the result of the application of the Tribunal’s guidelines in relation to proceedings of the nature of those brought by the defendant rather than being based on any specific concerns: see Administrative and Equal Opportunity Division Guideline Occupational Division Guideline at [17(a)]. Even if this is not the case, no basis has been established for the making of a non-publication order with respect to the proceedings in this Court.

A short history

8. It is unnecessary for the purposes of this application to set out the history in full. The following is sufficient. The defendant was an employee of the New South Wales Police Force (NSWPF). At some point, the defendant was discharged from the NSWPF. In November 2011, a deed of release was executed by the defendant and the NSWPF with respect to various matters, including workers compensation claims, complaints under the Police Act 1900 (NSW), and requests under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) and the PPIP Act. Some years later, between May 2017 and June 2018, the defendant sent five emails (Emails 1 to 5) to the NSWPF seeking access to information pursuant to s 14 of the PPIP Act. The emails were in the following terms:

1. “all information held about [the defendant] on the SAP and RMS databases” held by the NSWPF on or before 11 May 2017 (Email 1);

2. “all documents constituting, evidencing, concerning or referring to the direction/s issued by or on behalf of the [NSWPF] pursuant to clause 9(b) of the Deed of Release executed by [the defendant] on 22 November 2011” held by the NSWPF on or before 21 May 2017 (Email 2);

3. “all documents arising out of or in any way connected with the assessment and/or determination of the Medal Assessment and Review Panel in relation to [the defendant’s] eligibility for the awarding of a National Police Service Medal on or about 16 May 2014” held by the NSWPF on or before 15 June 2017 (Email 3);

4. “the following documents concerning or referring to [the defendant]: (1) [e]mails sent to or from Bernadette Keating between April 2017 and April 2018; and (2) [f]ile notes created by Bernadette Keating between April 2017 and April 2018” held by the NSWPF on or before 28 April 2018 (Email 4); and

5. “documents containing information about [the defendant’s] entitlement to a refund of the advance deposit of $150.00 paid for application reference number 128401 on or about 16 March 2015 pursuant to section 71(2) of the [GIPA Act]” held by the NSWPF on or before 29 June 2018 (Email 5).

9. The defendant sent a further request for information by email in December 2018 (Email 6) in the following terms:

1. “copies of all emails, file notes and memorandums arising out of [the defendant’s] application for ex gratia legal assistance” held by the NSWPF on or before 20 December 2018 (Email 6).

10. Section 14 of the PPIP required the NSWPF to provide the defendant with his “personal information” held by the NSWPF “without excessive delay or expense”. As this protracted litigation would suggest, that apparent simplicity belies the complexities of the legislation.

11. On 15 January 2019, having received no response, the defendant applied for an internal review to be conducted by the NSWPF, based on the asserted breach of s 14 of the PPIP Act, in relation to the requests in Emails 1 to 5. This is a procedure provided for by s 53 of the PPIP Act. On 28 March 2019, the NSWPF determined the internal review application and found there had been no breach of s 14 of the PPIP Act in relation to Emails 1 to 5. In April 2019, the defendant made a separate application for an internal review with respect to Email 6. On 26 June 2019, the plaintiff’s internal review found there had been no breach of s 14 of the PPIP Act with respect to Email 6.

12. On 24 April 2019, the defendant filed an application for administrative review in the Tribunal contending that the NSWPF had breached s 14 of the PPIP Act in respect of Emails 1 to 5, the subject of the first internal review application. On 23 July 2019, a further application was made in respect of the conduct the subject of the second internal review application; that is, in respect of Email 6. On 27 August 2019, the proceedings were consolidated. Subsequently, on 21 May 2020, with the consent of the parties, the Tribunal made orders for the separate determination of the questions of breach and of (any consequent) remedies.

13. The breach hearing took place before the Tribunal on 2 November 2020. On 30 April 2021, the Tribunal delivered its Breach Decision. The Tribunal found that the plaintiff breached s 14 of the PPIP Act in respect of Emails 1 to 5.

14. On 8 October 2021, the Tribunal delivered its Remedies Decision. Relevantly for present purposes, an order was made requiring the plaintiff to perform Information Protection Principle 7 (IPP 7) (the obligation contained in s 14 of the PPIP Act, explained in more detail below) by providing the defendant with all of his personal information requested in Emails 1 to 6.

15. On 5 November 2021, the plaintiff appealed to the Appeal Panel against the determination of the Tribunal. Before the Appeal Panel, the plaintiff advanced a number of grounds of appeal, including, in substance, the grounds now sought to be advanced. A hearing before the Appeal Panel took place on 18 March 2022, and the Appeal Panel’s judgment dismissing the appeal was delivered on 15 July 2022.

16. It will be necessary to return to the internal review and the proceedings before the Tribunal and the Appeal Panel in due course.

The evidence on the appeal

17. On the present appeal, the plaintiff relied upon the affidavits of Paul Bush of 11 August 2022 and 15 November 2022. Those affidavits post-date the decision of the Appeal Panel. Reliance on those affidavits was limited to the question of leave. Additionally, the plaintiff relied upon the affidavit of Andrew James of 14 January 2022 (the James Affidavit). The plaintiff had sought to tender that affidavit before the Appeal Panel as fresh evidence on the appeal from the decision of the Tribunal at first instance. Ground 3 of this appeal complains of error with respect to the Appeal Panel’s refusal to admit the James Affidavit. The James Affidavit was considered by the Appeal Panel in deciding to refuse its admission. It is consequently relevant to this appeal beyond the question of leave.

The application for leave to appeal

The nature of the application

18. As noted above, the plaintiff’s application is brought pursuant to s 83(1) of the CAT Act. Section 83, relevantly provides:

83      Appeals against appealable decisions

(1)     A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

(2)    ...

(3)     The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following—

(a)     an order affirming, varying or setting aside the decision of the Tribunal,

(b)     an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

19. The appeal to this Court is confined to the decision of the Appeal Panel rather than that of the Tribunal: CAT Act, ss 82 and 83; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10] per Basten JA, Gleeson and Leeming JJA agreeing at [37] and [61] respectively.

20. The first barrier to any such appeal is that the plaintiff requires leave. The principles to be applied in determining whether leave should be granted were set out in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Be Financial”) at [32]-[39] (per Basten JA, Tobias AJA agreeing at [44]). Those principles have been recognised as applying to applications of the present kind: Concoran v Far [2019] NSWSC 1284 at [24] (per McCallum J) and the cases there cited.

21. The plaintiff must demonstrate something more than that the decision of the Appeal Panel was arguably wrong. Here, the plaintiff contends that, apart from having at least an arguable case, the present matter raises issues of principle and questions of general public importance: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (per Campbell JA, Young and Meagher JJA agreeing) approved in Be Financial at [33]. The Privacy Commissioner supported the grant of leave. Both the plaintiff and the Privacy Commissioner urged the Court to consider and resolve a question as to whether the discretion granted by s 60(1)(a) of the GIPA Act to refuse to deal with an application in circumstances where “dealing with the application would require an unreasonable and substantial diversion of the agency’s resources”, is “picked up” by the PPIP Act so as to apply to applications for personal information under that Act. This was submitted to be an important question of principle.

22. The second barrier is that any appeal is limited to an appeal “on a question of law”. That the expression “on a question of law” is a common enough formulation is of less assistance than might be expected. A helpful analysis is to be found in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220. Bathurst CJ and Bell P (as the Chief Justice then was) observed (at [40]) that “the expression ‘question(s) of law’ and cognate expressions are not deployed uniformly in the statute books” and that “there is no universal meaning or understanding of what is a question of law.” Their Honours continued stating that the meaning to be given to the expression in a particular case is “ultimately to be derived from its statutory context and by reference to the purpose of the provision and statute in which it appears”.

23. The present formulation can be contrasted with expressions such as “a question of law alone”, which has been described as a question of law that can be stated and considered separately from the facts with which it is connected in the particular case and will thus exclude questions of mixed fact of law: Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 287; R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 1999 at [25]. By contrast, a “question of law” may include a question of mixed fact and law: Aboriginal Land Council (NSW) v Minister Administering Crown Lands Act (2007) 157 LGERA 18; [2007] NSWCA 281 at [8].

19. Notably, the present provision relates to an appeal against a decision made by the Appeal Panel, which, in turn, was hearing an appeal from the decision of the Tribunal reviewing a decision of the NSWPF (in its own internal review). For present purposes, the significance is that the provision is sought to be applied to a determination by the Appeal Panel that itself necessarily required the relevant facts to be found, to which law was applied, in order to arrive at its decision: see Orr v Cobar at [47]. This is to be contrasted with referrals of questions of law at an early stage where the facts may not have been found.

20. Consideration was given to the ambit of the expression “on a question of law” in the CAT Act in Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353. McDougall J (with whom Beazley P and Simpson JA agreed) observed (at [61]) that the statutory scheme created by the CAT Act evinces “a clear intention that questions of fact that require to be resolved, for the purpose of deciding disputes within the jurisdiction of the Tribunal, ought be dealt with by specialist members applying their expertise”. His Honour, in a case involving repudiation of a contract, found (at [65]) that if the primary facts found are capable of justifying the Appeal Panel’s ultimate finding, namely, in that case, that the owners repudiated the contract, there would be no error of law. Similarly, the converse would also be true. If the primary facts found are incapable of justifying the legal finding or are “necessarily outside” the legal construction, there would be an error of law. In other words, that question of mixed fact and law would be a question of law within the provision.

21. In the circumstances of the present case, it is necessary to consider the plaintiff’s grounds in order to determine whether a question of law is raised and the merits of those grounds to determine the grant of leave. That need for detailed consideration will not be the case in every application for leave, particularly given the practical effect of this course will be to subvert the requirement for leave to be granted.

The relief sought

27. The plaintiff seeks that order 2 made by the Appeal Panel be set aside and the proceedings be remitted to the Tribunal to be determined according to law, including with the hearing of further evidence. Order 2 made by the Appeal Panel gave effect to the order made by the Tribunal at first instance that:

“Within 30 days of the date of these reasons for decision the [plaintiff] will perform IPP 7 by providing the [defendant] with access to all of the [defendant’s] personal information requested in [E]mails 1 to 6 (as defined in the decision).”

28. The provision of 30 days to provide the material was modified by the Appeal Panel to refer to the date of the Appeal Panel’s decision. The reference to Emails 1 to 6 was a reference to the emails referred to above by which the defendant sought his personal information from the plaintiff. IPP 7 is a reference to s 14 of the PPIP Act. Part 2 of that Act is titled “Information Protection Principles”, and in Division 1 of that Part, ss 8 to 19 set out a number of principles (discussed in more detail below). The seventh of these principles (IPP 7), contained in s 14, as noted earlier, imposes an obligation on a public sector agency (as defined) to provide, upon request, a person access to their personal information “without excessive delay or expense”.

29. Thus, the relief sought by the plaintiff is to overturn the order requiring her to provide the defendant with his personal information sought in the six emails. The grounds on which that relief is sought are set out below.

Grounds of appeal

30. The plaintiff relied on the following grounds of appeal:

“1 The Appeal Panel erred in rejecting the argument that the Tribunal had failed to afford the plaintiff procedural fairness in determining the defendant's entitlement to the personal information he had requested when the plaintiff had not had a proper opportunity to adduce evidence going to the question of any lawful excuse or exemption from compliance with s. 14 of the PPIP Act that may apply.

2   ln addition or in the alternative to Ground 1 above, the Appeal Panel erred in upholding the Tribunal's order requiring the plaintiff to perform IPP 7 by providing the defendant with access to all of his personal information requested in Emails 1 - 6, in circumstances where the Tribunal could not have been satisfied that the plaintiff had considered and given effect to the conditions, limitations or exemptions that may apply to that provision by operation of ss. 20(5) or 27 of the PPIP Act.

3    The Appeal Panel erred in refusing to allow the plaintiff to admit fresh evidence on appeal, in that:

a.    the Appeal Panel gave no reasons, or inadequate reasons, for its decision; or

b.   its refusal to admit the James Affidavit was so unreasonably or plainly unjust as to amount to a failure to properly exercise its discretion.”

31. On 15 February 2023, pursuant to leave granted at the hearing of this matter, the plaintiff filed a draft further amended summons, which seeks to amend ground 2 to read as follows (with the proposed amendment underlined):

“ln addition or in the alternative to Ground 1 above, the Appeal Panel erred in upholding the Tribunal's order requiring the plaintiff to perform IPP 7 by providing the defendant with access to all of his personal information requested in Emails 1 - 6, in circumstances where the Tribunal could not have been satisfied that the plaintiff had considered and given effect to the conditions, limitations or exemptions that may apply to that provision by operation of [ss] 20(5) or 27 of the PPIP Act, in the absence of some other basis for ordering the provision of access despite that consideration not having taken place.”

The PPIP Act, the GIPA Act, and the relationship between them

32. Before embarking on a review of the proceedings in the Tribunal (both at first instance and before the Appeal Panel), it is convenient to say something about the PPIP Act, the GIPA Act, and the relationship between them.

The PPIP Act

33. The following overview of the PPIP Act is not comprehensive but is, I hope, sufficient to provide an understanding of the proceedings before the Tribunal.

34. The PPIP Act is a legislative response to concerns which arise from the collection, retention, and dissemination of personal information by public sector agencies. The long title to the PPIP Act is:

“An Act to provide for the protection of personal information, and for the protection of the privacy of individuals generally; to provide for the appointment of a Privacy Commissioner; to repeal the Privacy Committee Act 1975; and for other purposes.”

35. Part 1 of the PPIP Act, titled “Preliminary”, provides, in s 3, various definitions of terms used in the Act. The terms “law enforcement agency” and “public sector agency” are both defined so as to include the NSWPF. “Personal information” is defined in s 4. Section 5, which is of present significance, provides as follows:

5 Government Information (Public Access) Act 2009 not affected

(1)    Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.

(2)    In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

36. Part 2 of the PPIP Act is titled “Information protection principles”. Division 1 of Part 2 is titled “Principles” and contains ss 8 to 19. It is understood these are commonly referred to as “Information Protection Principles” (or IPPs) 1 to 12. Sections 8 to 12 (IPPs 1 to 5) generally deal with the obligations of public sector agencies with respect to the collection and retention of information. Those principles are directed to ensuring that information is collected for a lawful purpose; collected directly from the relevant individual; that that individual is aware that the information is being collected, the purpose of collection, and the intended recipients of the information, together with the person’s rights with respect to the information; the maintenance of accuracy; proportionality with respect to the time for which information is kept, together with the protection and safe disposal of the information. Sections 16 to 19 (IPPs 9 to 12) provide a number of things a public sector agency must not do with respect to information, including conditions as to the use of information.

37. Sections 13 to 15 of the PPIP Act, by contrast, deal with things that a public sector agency must do to facilitate a person’s access to their personal information, including taking steps to allow any person to ascertain whether an agency holds personal information of the person and its nature and purpose, and to ensure that it is amended to ensure it is accurate, relevant, and up-to-date, having regard to the purpose for which it was collected. As already observed, of present relevance is s 14 (IPP 7), which is set out in full below:

14 Access to personal information held by agencies

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

38. Division 2, Part 2 of the PPIP Act is titled “General provisions relating to principles”. Section 20(1) provides that the IPPs apply to public sector agencies (although this would appear to be clear from the principles themselves). The remaining sub-sections of s 20 were not suggested to be presently relevant, with the exception of s 20(5), which has some importance in this application. It provides:

20    General application of information protection principles to public sector agencies

…

(5) Without limiting the generality of section 5, the provisions of the Government Information (Public Access) Act 2009 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

39. Division 2, Part 3 of the PPIP Act is titled “Specific exemptions from principles”. Within the Division, ss 23 to 26 and ss 27A to 28 provide for a number of exemptions to the IPPs, none of which are presently relevant. Section 24(1), which provides an exemption from compliance with various IPPs, including IPP 7, where compliance might detrimentally affect the agency’s complaint-handling functions, was raised before the Tribunal based on the submission with respect to maintaining the efficacy of the deed of release between the NSWPF and the defendant but this does not arise on the application before me. Of present importance is s 27, which provides:

27    Specific exemptions for certain law enforcement agencies

(1)    Despite any other provision of this Act, the following are not required to comply with the information privacy principles—

(a)    the Independent Commission Against Corruption,

(b)    the Inspector of the Independent Commission Against Corruption and the staff of the Inspector,

(c)    the Independent Gaming and Liquor Authority under the Gaming and Liquor Administration Act 2007,

(d)    the Law Enforcement Conduct Commission,

(e)    the Inspector of the Law Enforcement Conduct Commission and the staff of the Inspector,

(f)    the New South Wales Crime Commission,

(g)    the NSW Independent Casino Commission,

(h)    the NSW Police Force.

(2)    However, the information protection principles do apply to a public sector agency mentioned in subsection (1) in connection with the exercise of the agency’s administrative and educative functions.

40. Thus, with respect to the present matter, it can be observed that the plaintiff was not required to comply with s 14 (IPP 7) other than to the extent that the information sought was in connection with the exercise of the NSWPF’s “administrative and educative functions” (and subject to any other potential exclusions).

41. Part 3 of the PPIP Act is titled “Privacy codes of practice and management plans” and contains provisions with respect to those matters, the details of which are not presently relevant. Part 4 provides for the appointment and the role of a “Privacy Commissioner”.

42. Part 5 of the PPIP Act is titled “Review of certain conduct”. It applies, as is presently relevant, to conduct, including alleged conduct, by a public sector agency in contravention of an IPP that applies to the agency. It also applies to a contravention by a public sector agency of a privacy code of practice applicable to the agency and disclosure by a public sector agency of personal information kept in a public register.

43. Section 53 of the PPIP Act, contained within Part 5, entitles a person who is aggrieved by the conduct of a public sector agency to an internal review by that public sector agency. In the present case, the defendant sought a review under this section with respect to Emails 1 to 5 and separately sought a review with respect to Email 6. Section 55 allows a person who is not satisfied with the findings or action taken on an internal review under s 53, to apply to the Tribunal under the Administrative Decisions Review Act 1997 (NSW) for a review of “the conduct that was the subject of the application under section 53”. In the present case, the defendant applied to the Tribunal pursuant to s 55 for an administrative review of the NSWPF’s internal reviews under s 53.

44. The remaining parts of the PPIP Act, Parts 6, 7, 7A, and 8, are respectively titled “Public registers”, “Information and Privacy Advisory Committee”, “Reports by Privacy Commissioner”, and “Miscellaneous”. Other than s 66B, which sets out the circumstances in which a public sector agency may charge a fee and is discussed below, these provisions are not presently relevant.

The GIPA Act

45. The long title to the GIPA Act is:

“An act to facilitate public access to government information”.

46. The provision of access to information under the GIPA Act includes, but, unlike s 14 of the PPIP Act, is not limited to the personal information of the applicant. It is to be recalled that s 5 of the PPIP Act, set out above, specifically provides that nothing in that Act affects the operation of the GIPA Act. The defendant, like any other person, could have obtained at least some information from the NSWPF under the GIPA Act. It is convenient at this stage to provide a brief overview of the GIPA Act focusing on presently relevant provisions.

47. Part 1 of the GIPA Act, titled “Preliminary”, includes s 3, which provides the object of the Act in the following terms:

3    Object of Act

(1)    In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by—

(a)    authorising and encouraging the proactive public release of government information by agencies, and

(b)    giving members of the public an enforceable right to access government information, and

(c)    providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)    It is the intention of Parliament—

(a)    that this Act be interpreted and applied so as to further the object of this Act, and

(b)    that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

48. Section 4 of the GIPA Act provides various definitions. It defines “government information” as “information contained in a record held by an agency”. An “agency” is, in turn, defined in a manner which includes the NSWPF. An “access application” is defined as “an application for access to government information” under the GIPA Act that is “a valid access application” under the GIPA Act. The term “record” (as used in the definition of “government information”) is also defined, though in a manner not presently requiring consideration.

49. Part 2 of the GIPA Act is titled “Open government information – general principles”. Division 1 of Part 2 is titled “Ways of accessing information”. Within that Division, s 5 provides as follows:

5 Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

50. Sections 6 to 8 of the GIPA Act provide for, variously, the mandatory proactive release of certain government information, the authorised proactive release of government information, and the informal release of government information. In each case, the obligation or authorisation is qualified as not to apply where there is an “overriding public interest against disclosure”. Beyond the mandatory proactive release and voluntary release, either proactively or in response to an informal request for information, a key provision of the GIPA Act is s 9, which provides individuals with a right to government information in certain circumstances. Sections 9 and 10 provide:

9    Access applications

(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

(2)    An agency is not subject to the direction or control of any Minister in the exercise of the agency’s functions in dealing with a particular access application.

(3)    The function of making a reviewable decision in connection with an access application made to an agency may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.

10    Disclosure and access under other laws

(1)    This Act is not intended to prevent or discourage the publication or giving of access to government information as permitted or required by or under any other Act or law that enables a member of the public to obtain access to government information.

(2)    This Act does not affect the operation of any other Act or law that requires government information to be made available to the public or that enables a member of the public to obtain access to government information.

51. The concept of an “overriding public interest against disclosure” is contained in Division 2, Part 2 of the GIPA Act, titled “Public interest considerations” (ss 12 to 15). Section 12(1) provides that there is a general public interest in favour of the disclosure of government information, and s 12(2) provides that “[n]othing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.” The note to s 12 includes information that is personal information of the person to whom it is to be disclosed, as a public interest consideration in favour of disclosure.

52. Section 13 of the GIPA Act provides:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

53. Section 14(1) of the GIPA Act then provides for a conclusive presumption of an overriding public interest against disclosure of certain government information, being that government information described in Sch 1. With respect to other information, the balancing act provided in s 13 is to be performed on the basis of the public interest considerations against disclosure listed in the table to s 14. These (in contrast to s 12(2)), are the exclusive considerations against disclosure: s 14(2).

53. Part 3 of the GIPA Act deals with “open access information”, which is information required to be made publicly available. Those provisions are not presently relevant.

54. Part 4 of the GIPA Act is titled “Access applications”. In Division 1, provision is made for the making of “access applications”. There is a formality to the process, including the requirement that a fee be paid as set out in s 41. Section 43 provides that an access application cannot be made for excluded information of an agency. Excluded information of an agency is information related to a function of the agency as set out in Sch 2 of the GIPA Act (see the definition of “excluded information” in Sch 4). The NSWPF is not referred to in Sch 2 (and it was not suggested that the present application sought excluded information). Division 3 of Part 4 is titled “Process for dealing with access applications” and provides the formal obligations of an agency when dealing with an “access application”.

55. Of relevance here, s 53 concerns the obligations of an agency in dealing with a request and the nature of the search or searches required to be undertaken. Section 53(5) provides that “[a]n agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources”.

56. Division 4 of Part 4 is titled “Deciding access applications”. Section 57 provides the period within which applications must be decided. Section 58 provides as follows:

58    How applications are decided

(1)    An agency decides an access application for government information by—

(a)    deciding to provide access to the information, or

(b)    deciding that the information is not held by the agency, or

(c)    deciding that the information is already available to the applicant (see section 59), or

(d)    deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e)    deciding to refuse to deal with the application (see section 60), or

(f)    deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note—

These decisions are reviewable under Part 5.

(2)    More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3)    If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

58. Section 60 of the GIPA Act provides for the circumstances in which an agency may refuse to deal with an application. Of particular relevance in this matter is s 60(1)(a), which allows an agency to refuse to deal with an access application if “dealing with the application would require an unreasonable and substantial diversion of the agency’s resources”.

59. The remaining parts of the GIPA Act, Parts 5 and 6 are respectively titled “Review of decisions” and “Protections and offences”. Other than s 68, which provides for the concept of an “advance deposit”, and s 80, which sets out the “reviewable decisions” for the purposes of the GIPA Act and which are discussed below, these provisions are not presently relevant.

A brief summary of the interaction between the PPIP Act and the GIPA Act in the context of the present case

60. The above discussion of the PPIP Act and the GIPA Act is sufficient to establish the following in respect of the present case:

1. The defendant was (subject to the below), on his request and without any formal application process, entitled to have the plaintiff provide him with his personal information “without excessive delay or expense”: PPIP Act, s 14.

2. The above entitlement was subject to:

1. the absence of any obligation on the plaintiff to provide information other than that held in connection with the exercise of the NSWPF’s “administrative and educative functions”: PPIP Act, s 27;

2. any conditions or limitations (however expressed) in the provisions of the GIPA Act pursuant to s 20(5) of the PPIP Act, they being:

1. the defendant had no right to government information with respect to which there was an overriding public interest against disclosure: GIPA Act, s 9(1); and

2. on the plaintiff’s case, resisted by the Privacy Commissioner, information that, to provide to the defendant, would require “an unreasonable and substantial diversion” of the plaintiff’s resources: GIPA Act, s 60(1)(a).

61. The contention referred to above with respect to the application of s 60(1)(a) of the GIPA Act to the PPIP Act was central to the application for leave and the subject of detailed submissions from the plaintiff and the Privacy Commissioner.

The proceedings leading to this appeal

62. As noted above, the process began when the defendant sought, through six separate emails, access to his personal information held by the plaintiff. His dissatisfaction led him to seek that a review be conducted by the plaintiff (the internal review pursuant to s 53 of the PPIP Act). His subsequent dissatisfaction with that process led him to seek review in the Tribunal pursuant to s 55 of the PPIP Act. The plaintiff, unhappy with the result of that review, appealed to the Appeal Panel of the Tribunal pursuant to s 80 of the CAT Act. Unhappy with that decision, the plaintiff seeks leave to appeal to this Court. Acknowledging the different nature of the various applications for leave, appeals, and reviews, I am, in effect, dealing with a review of a review of a review of a review.

63. To add to the malaise, the determination of this application does not turn on a simple analysis of the law applied to findings of fact contained in the decision of the Appeal Panel. Rather, in order to consider the question of any denial of procedural fairness (ground 1), it is necessary to understand, in some detail, what transpired before the Tribunal, which, given the nature of the function being exercised, brings into focus the application to the NSWPF for internal review. If there is anything to be thankful for, there has, at least, been a narrowing of the grounds between the appeal to the Appeal Panel and the application brought before me.

The proceedings before the Tribunal

64. Pursuant to an order by the Tribunal on 21 May 2020, the Tribunal proceedings were initially limited to the question of whether there had been a breach of s 14 of the PPIP Act (IPP 7). This resulted in separate breach and remedies decisions by the Tribunal.

The breach proceedings

65. The breach proceedings before the Tribunal were complicated by an issue as to whether the plaintiff could rely on the deed of release that had been executed by the parties on 22 November 2011. For reasons not necessary to canvass, the Tribunal held that the plaintiff could not rely on that deed. This aspect of the Tribunal’s decision is not in issue in this appeal.

66. It will be recalled that the plaintiff now complains of error on the part of the Appeal Panel in rejecting her complaint that she was denied procedural fairness by the Tribunal. The process undertaken before the Tribunal was described in the Breach Decision as follows (at [31]-[34]):

“31   The Hearing was held on 2 November 2020 by telephone.

32   The evidence submitted and relied on by the [defendant] is the Statement of DVT (and attached documents) filed on 11 September 2020 (DVTS).

33   The evidence submitted and relied on by the [plaintiff] is:

(1)   the Affidavit of Senior Sergeant Mr Mark Philip Twyman filed on 6 March 2020 (TA);

(2)   the Second Affidavit of Senior Sergeant Mr Mark Philip Twyman filed on 2 November 2020 (TA2); and

(3)   the open and confidential bundles of s58 documents filed on 19 July 2019 and additional s58 documents filed on 6 March 2020.

34   Both parties (i) filed written submissions on or prior to the Hearing ([plaintiff]: confidential Submissions of the [plaintiff] filed on 6 March 2020 (RS) and Submissions of the [plaintiff] in Reply filed on 2 November 2020 (RRS) and [defendant]: Submissions of the [defendant] filed on 17 September 2020 (AS)) and (ii) presented oral arguments and made further submissions during the Hearing.”

67. The plaintiff, before the Tribunal, accepted the following propositions, subsequently summarised in the Breach Decision (at [48]):

“(1)   Emails 1-6 constituted requests by the [defendant] for access to their personal information.

(2) Other than for Email 5 the [defendant] received no responses to their email requests (in Emails 1, 2, 3, 4 and 6) up to the date that the [defendant] requested internal reviews alleging contravention of s14 PPIP Act (i.e. the First IR Request and the Second IR Request).

(3)   Emails 1-5 were sent to email addresses of the [plaintiff]and were received by those addressees.

(4)   There is correspondence to indicate that two of the email access requests (Emails 1 and 2) were seen and handled to some degree by persons within the [plaintiff], without a response being provided to the [defendant].

(5)   The RMS database contains documents that include the [defendant’s] personal information and go to the [plaintiff’s] administrative and educative functions, in addition to documents connected with its official and public functions.”

68. I pause to note that, clearly, the plaintiff had the opportunity to put evidence before the Tribunal and make submissions. Her complaint that she was denied procedural fairness does not dispute this.

69. In her written submissions on breach, the plaintiff, by way of introduction, put her case as follows:

“Broadly, the [plaintiff] will make two submissions:

(a) first, the Tribunal should find that the scope of its jurisdiction in these proceedings is limited to the [plaintiff’s]conduct that was the subject of each internal review application; that is, whether the [plaintiff] has contravened s. 14 of the PPIP Act by failing to respond to each of the [defendant’s] requests for access to his personal information “without excessive delay”; and

(b) second, the Tribunal should find that there has been no contravention of s 14 of the PPIP Act in the conduct of the [plaintiff].”

70. In her written submissions on breach, under a separate heading, the plaintiff referred to the scope of the Tribunal’s jurisdiction and set out various statements of principle before submitting:

“14.   The [defendant’s] internal review applications identify the scope of the conduct in dispute in identical terms, as follows:

"NSWPF has failed to provide me with access to my personal information without excessive delay and has contravened section 14 of the [PPIP Act]."

15. The [plaintiff] therefore submits that the scope of the conduct to be examined by the Tribunal in these proceedings is whether the [plaintiff] failed to comply with s. 14 of the PPIP Act by failing to provide the [defendant] with access to his personal information without excessive delay.

16. By contrast, the conduct of the internal reviewer in proceeding to deal substantively with the requests in Emails 1-4 and 6, and the manner in which those requests were dealt with, falls outside the scope of the Tribunal's jurisdiction in this matter. This is because, as noted at [11]-[13] above, the scope of the Tribunal's jurisdiction is limited to the conduct complained of in the internal review application. The Tribunal is not able to make orders that address the substantive outcomes of each request. It would be necessary for the [defendant] to seek internal review under s. 53 of the PPIP Act in relation to that conduct before the Tribunal's jurisdiction would be enlivened.

17.   However, as will be seen below, the [plaintiff] considers that several issues raised by the internal reviewer in dealing substantively with the requests bear on the question of whether there has been excessive delay, particularly where they address NSWPF's ultimate obligation to comply with the requests. Those matters may also have relevance to the Tribunal’s consideration of whether and what orders might be made under s. 55(2) of the PPIP Act (and the utility of any such order). In addressing those matters as they relate to the issue under review, the [plaintiff] does not seek to extend the jurisdiction of the Tribunal in this review to the substantive decisions of the internal reviewer.” (footnotes omitted)

71. For clarity, the point sought to be made was that, despite the defendant having not received access to his personal information, his complaint with respect to which the internal review was sought was not a complaint that he had been denied access to his personal information, but rather, was confined to a complaint of excessive delay in providing access to that information.

72. The plaintiff’s submissions to the Tribunal immediately following the submissions extracted above addressed the question of excessive delay. The submissions relied on the plaintiff’s lack of awareness of the requests; an absence of any obligation to respond, at least in relation to some of the requests; and, in relation to Email 5, that a response had been provided. Elaborating on the second of these matters, under the heading “Second limb - no obligation to comply with requests”, the plaintiff submitted that “to the extent that the Tribunal considers that NSWPF should have been aware of the [defendant’s] requests in Emails 1, 2, and 3, NSWPF was [in] any case relieved of the obligation to respond to those requests arising under [s] 14 of the PPIP Act”. A number of bases were put forward in support of this submission, discussed further below in the context of ground 1 of the appeal.

73. The defendant (who was representing himself), in his submissions on breach, accepted that the scope of the Tribunal’s jurisdiction was set out in [11] to [16] of the plaintiff’s submissions on breach. To the extent that that involved acceptance that the Tribunal’s jurisdiction was defined by the terms of the defendant’s application for internal review, being that the plaintiff “failed to provide [him] with access to [his] personal information without excessive delay”, it was uncontroversial. Paragraph 16 of the plaintiff’s submissions did however, go further, asserting that the terms of the application for internal review were such that the internal reviewer, in dealing with the substantive complaint, went outside the terms of the review and that, by contrast, confined by the terms of the review, the Tribunal was “not able to make orders that address the substantive outcomes each request”. While appearing to accept this, the defendant, however, also noted, under the heading “Remedies”, that the submissions were limited to the question of breach, effectively leaving open the question of what remedies were available or appropriate. This will be discussed in more detail below.

74. A hearing took place, including cross-examination by the defendant of a witness for the plaintiff on the subject of the plaintiff’s email system. On this present application, the plaintiff did not point to anything in the course of submissions by which the Tribunal expressly misled or otherwise positively conducted itself in a manner that resulted in the plaintiff being denied procedural fairness at the breach hearing.

75. In the course of giving reasons in the Breach Decision, the Tribunal summarised the decision of the plaintiff’s internal reviewer as follows (at [10]):

“(1) Emails 1-3: There was no breach of s14 PPIP Act (i.e. excessive delay by the [plaintiff]) as the access requests were not directed and posted to the person/business unit and address specified in NSWPF’s Privacy Management Plan (PMP) but were emailed to the incorrect business unit within NSWPF;

(2) Email 4: The [plaintiff] has not failed to comply with s14 PPIP Act (i.e. there was no excessive delay by the [plaintiff]) because the [defendant’s] access request was not directed and posted to the person/business unit and address specified in the PMP but, instead, had been emailed directly to Ms Keating, then a Senior Lawyer in the Office of the General Counsel for NSWPF. At the time of this email, Ms Keating was on maternity leave and thus the [plaintiff] was not aware of this request and the [defendant] received an automated “out of office” response noting that Ms Keating was away until 30 June 2018, that emails to this address would not be actioned in her absence and provided the contact details of those persons to whom enquiries could be directed in the meantime; and

(3) Email 5: The [plaintiff] had not failed to comply with s14 PP[I]P Act (i.e. there was no excessive delay by the [plaintiff]) because the [defendant’s] request had not been directed and posted to the person/business unit and address specified in the PMP but instead had been emailed directly to the “InfoLink Command of the NSWPF” and InfoLink Command did not have responsibility under the PMP for any function related to the PPIP Act. However, and in any event, the request had been appropriately actioned “without excessive delay” as evidenced by a series of email exchanges between the [defendant] and the InfoLink Command between 4 and 13 July 2018 and because, ultimately, the amount in question was repaid to the [defendant] in July 2018.”

76. In relation to the internal review decision regarding Email 6, the Tribunal recounted in the Breach Decision (at [11]-[12]):

“11 In the Second [internal review] Decision the [plaintiff’s] internal reviewer found that the [plaintiff] had not failed to comply with s14 PPIP Act (i.e. there was no excessive delay by the [plaintiff]) as regards the personal information requested in Email 6 as this access request had not been directed and posted to the officer specified in the PMP but instead was directed to Ms Keating. Ms Keating remained on leave and, ultimately, resigned without returning to work and her email was not monitored and thus the [plaintiff] did not receive and/or was not aware of the [defendant’s] access request in Email 6 until receipt of the Second IR Request.

12   The internal reviewer in the Second [internal review] Decision also noted that, after receiving the Second [internal review] Request, searches had been conducted for information falling within the scope of the [defendant’s] access request in Email 6 which searches located a large amount of information and the internal reviewer concluded that further searches would be necessary to identify the [defendant’s] personal information and such would be an unreasonable and substantial diversion of the [plaintiff’s] resources.”

77. In the Breach Decision, the Tribunal (at [19]) acknowledged the limitation on the scope of its review, and in particular that it was limited to “reviewing the scope of the conduct of concern [that was] the subject of the original application(s) for the internal review”, referring to Department of Education and Training v GA(No 3) [2004] NSWADTAP 50 at [7]; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [17]; CEU v University of Technology Sydney [2018] NSWCATAD 13 at [76].

78. The Tribunal (at [55]) referred to the obligation on the plaintiff to have in place procedures in order to ensure that, when a personal information access request is made under IPP 7, the request will be dealt with “without excessive delay”. The Tribunal continued (at [60]-[63]):

“60   … it is not required under IPP7/s14 PPIP Act for, or incumbent upon, an individual who has applied to an agency under IPP 7 to follow up or chase that agency in relation to their access request (in the absence of a delivery failure notice, for example) if the agency has not responded to that request within any specified time. It is the agency's obligation to comply with IPP 7, irrespective of any lack of follow‑up or additional action taken by the individual.

61   Of course, in complying with an IPP 7 access request the [plaintiff] may apply any exemptions to access and thus limit the personal information to which the [defendant] is provided access. However, simply because a broad access request is made under IPP 7 that may otherwise include some exempt information or information for which non-compliance by the [plaintiff] (in this case) is excused, it is not sufficient grounds to deny access to all personal information the subject of the access request (i.e. to not provide the other personal information not exempted or excused from access). That is, the access request must be fulfilled by the [plaintiff] by withholding only that personal information exempted from access. It is not acceptable for the [plaintiff] to claim that the [defendant’s] access request (e.g. in Email 1) is too widely framed and therefore, because the [plaintiff] would need to consider how to apply this request across its holdings of the [defendant’s] relevant personal information, it is excused/exempt from disclosing any of the [defendant’s] personal information the subject of the access request under IPP 7 in Email 1.

62 In conclusion, while subject to possible excuses or exemptions in other sections of the PPIP Act, the wording of s14 PPIP Act/IPP 7 is clear and unconditional. In this case access to personal information of the [defendant] held by the [plaintiff] must, at the request of the [defendant] and without excessive delay or expense, be provided to the [defendant]. In summary, unless non‑compliance is excused or compliance is otherwise exempted by other provisions of the PPIP Act (or other legislation) then providing access without excessive delay is a legislative obligation imposed on the [plaintiff] which, apart from any such legislative exemptions or excuses, cannot be made subject to any qualifications imposed by the [plaintiff].

63   Where access is denied by an agency based on any lawful excuse or exemption then, in the spirit of IPP 7, that agency should notify the individual of this without excessive delay in order to enable that individual to pursue, if they wish, an internal review of that decision.”

79. The Tribunal, in the Breach Decision, made the following findings with respect to each of the emails (at [65]):

“(1)   Email 1: This access request was received by the [plaintiff] and the [plaintiff] held the personal information of the [defendant] which was the subject of this access request, some of which was not exempted from access and to which access should have been granted without excessive delay. The elapsing of some 615 days between the access request in Email 1 and the date of the First IR Request is, by reference to the period I have estimated in paragraph [64(1)] above, excessive delay in breach of IPP 7.

(2)   Email 2: This access request was received by the [plaintiff] and the [plaintiff] held the personal information of the [defendant] which was the subject of the access request, which was not exempted from access and to which access should have been granted without excessive delay. The elapsing of some 605 days between the receipt of Email 2 and the First IR Request is, by reference to the period I have calculated in paragraph [64(2)] above, excessive delay in breach of IPP 7.

(3)   Email 3: This access request of the [defendant] was received by the [plaintiff] and the [plaintiff] held the personal information of the [defendant] which was the subject to the access request, which was not exempted from access and to which access should have been granted without excessive delay. The elapsing of 580 days between receipt of Email 3 and the First IR Request, is by reference to the period I have calculated in paragraph [64(3)] above, excessive delay in breach of IPP 7.

(4)   Email 4: This access request of the [defendant] was received by the [plaintiff] and the [plaintiff] held the personal information of the [defendant] which was the subject of the access request, which was not exempted from access. The elapsing of over 200 days from 1 July 2018 to the date of the First IR Request is, by reference to the period I have calculated in paragraph [64(4)] above, excessive delay in breach of IPP 7.

(5)   Email 5: This access request of the [defendant] was received by the [plaintiff] and the [plaintiff] held the personal information of the [defendant] which was the subject of the access request, which was not exempted from access. The refund of the deposit referred to in the correspondence and personal information the subject of the [defendant’s] access request in Email 5, in the absence of any evidence confirming a waiver by the [defendant] of their access request, does not satisfy the [defendant’s] request to access their personal information in Email 5. While the [defendant’s] goal may or may not have been to obtain a refund, on its face it is clear that the [defendant’s] request to access personal information in Email 5 is seeking their personal information relating to their entitlement to a refund of an advance deposit made on or about 16 March 2015. The delay of some 201 days from the receipt of Email 5 until the First IR Request is, by reference to the period I have calculated in paragraph [64(5)] above, excessive delay in breach of IPP 7.

(6)   Email 6: The [plaintiff’s] submissions and the evidence of Senior Sergeant Twyman are compelling and I accept that the [plaintiff] did not receive the [defendant’s] access request contained in Email 6 (i.e. the [plaintiff] did not receive Email 6) until the date of the Second IR Request.”

80. Consistent with the above, the Tribunal ruled that the plaintiff had breached s 14 of the PPIP Act (IPP 7) with respect to the access requests made by the defendant in Emails 1 to 5. Orders were made with respect to the filing and service of submissions by the defendant with respect to remedies and submissions in reply by the plaintiff.

The remedies proceedings

81. The defendant, in compliance with the orders, provided submissions dated 17 May 2021. By way of remedy, the defendant sought that the plaintiff do various things, including the provision of a personal undertaking from the then NSWPF Commissioner that the “conduct of concern the subject of this proceeding will not occur again”, together with a “unreserved formal apology to the [defendant]” directed to various matters. In addition to this, the defendant sought that the plaintiff take various administrative measures and publish statements in various media, not identifying the defendant, with respect to what had occurred. Importantly for present purposes, the defendant sought an order that:

“Within 30 days of the date of the reasons for decision, the [plaintiff] is to perform IPP 7 by providing the [defendant] with access to his personal information the subject of the [defendant’s] requests in emails 1-5. Such personal information must include information held as at the date of the reasons for decision.”

82. The plaintiff, in her written submissions on remedies, acknowledged that she was responding to a finding that she had, with respect to Emails 1 to 5, “failed to provide [the defendant] with access to the personal information requested without excessive delay” (referring to the Breach Decision at [7]). The plaintiff again raised the issue of the scope of the Tribunal’s jurisdiction based on the limits of the application for internal review and the implications for the orders that it could make. The plaintiff submitted:

“4.    What was not within the scope of the [T]ribunal’s jurisdiction the question of the [defendant’s] entitlement to the personal information sought. At the time request for internal review was made, the [defendant’s] entitlement to the information had not been assessed. The [plaintiff’s] position on the scope of the [T]ribunal’s jurisdiction was made clear [11]-[17] of his primary submissions dated 6 March 2020. … It was expressly accepted by the [defendant] at [5] of his written submissions.

5.   The [plaintiff] has conducted his case on that basis. No evidence was adduced going to the question of entitlement, as it would have been had entitlement been in issue. This evidence would have included, but not been limited to, the applicable public interest considerations against disclosure imported from the Government Information (Public Access) Act 2009 into the PPIP Act by way of [s] 20(5) (including matters of client legal privilege), and the diversion of resources required to answer the requests. Similarly, no submissions were made going to the issue of entitlement.

6.   The Tribunal's finding as to the [plaintiff’s] offending conduct was that he had failed to provide the [defendant] with access to his personal information without excessive delay (Decision, at (66)). No finding was made that the [defendant] was entitled to the information sought, or that the [plaintiff] was in breach of [s] 14 of the PPIP Act for failing to provide that information to which the [defendant] was entitled. Any remedies ordered by the Tribunal must therefore be constrained to the four corners of the Decision. The Tribunal would not be within its powers to order that the [plaintiff] provide the [defendant] with access to his personal information the subject of his requests in Emails 1 - 5 (as is suggested at (10(b)] of the [defendant’s] written submissions dated 17 May 2021 ("the ASR")). It is acknowledged that the question of the [defendant’s] entitlement to the information was determined by the [plaintiff’s] internal reviewer (see Primary Submissions, at [6]). However, the Tribunal could not now make orders overriding that determination by ordering the [plaintiff] to provide access to the material as the decision of the internal reviewer as to entitlement was not before the Tribunal for review.” (emphasis omitted)

83. As submitted by the plaintiff (at [4] of her submissions, extracted above), the defendant had, in his breach submissions, accepted that the scope of the Tribunal’s jurisdiction was set out in [11] to [16] of the plaintiff’s breach submissions. Those submissions, that is, the plaintiff’s breach submissions, included (at [16] of the submissions) a submission that the Tribunal did not have jurisdiction to “make orders that address the substantive outcomes of each request”. While, as I have discussed above, the defendant indicated an acceptance of this paragraph of the plaintiff’s submissions, little can be made of this. The defendant was self-represented. Importantly, the defendant, later in his breach submissions, under the heading “Remedies”, noted that the submissions were limited to the question of breach. Subsequently, in his submissions on remedies, the defendant sought an order that the plaintiff perform IPP 7. The plaintiff, in her submissions in reply on breach, had also reserved her position on appropriate remedies in the event that a breach was found.

84. In her submissions in reply on remedies, the plaintiff, beyond asserting the defendant had accepted the plaintiff’s position, did (at [5]-[6] of her submissions, set out above at [82]) stress that her case had been conducted on the basis that the Tribunal’s jurisdiction was limited to the question of excessive delay. The plaintiff, in her remedies submissions, also sought to be heard “as to any orders under consideration by the Tribunal in addition to those sought by the [defendant]”. The plaintiff had, of course, been heard on the orders sought by the defendant. Among the orders explicitly sought by the defendant was the order at the centre of these proceedings – the order for performance of IPP7.

85. After the filing of the above submissions, on 10 June 2021, a directions hearing was held by telephone, in the course of which the parties were heard as to whether an oral hearing with respect to remedies could be dispensed with: see CAT Act, s 50. While the plaintiff sought an oral hearing, the Tribunal, on 15 June 2021, ordered that an oral hearing with respect to remedies be dispensed with and that the determination would be made “on the papers”. In reasons given later, the Tribunal referred to the “guiding principle” of facilitating the “just, quick and cheap resolution of the real issues in the proceedings”: DVT v Commissioner of Police (No 2) [2021] NSWCATAD 195 at [9]. Orders were made for further written submissions.

86. In the further submissions on remedies, the plaintiff, under the heading “Performance of IPP 7”, reiterated her position. The defendant submitted that the question of his entitlement to the information was before the Tribunal and had been determined against the plaintiff.

87. To this point, the Tribunal had given no indication to the plaintiff that her submission as to the limits of the Tribunal’s jurisdiction might not be accepted. Neither, however, had the Tribunal given any indication to either party that the order sought by the defendant that the plaintiff be required to perform IPP 7 was not on the table.

The Remedies Decision

88. On 8 October 2021, the Tribunal gave its Remedies Decision. The Tribunal noted that the plaintiff was found to have breached IPP 7 in relation to Emails 1 to 5 and that, while there had been no breach in relation to Email 6, the plaintiff had since received notice of the request with the defendant’s application for internal review on 26 April 2019. The Tribunal noted that the defendant had not received any of his personal information as requested in the six emails. The Tribunal (at [7]) identified the conduct of concern as:

“…The First IR Request referred to (and attached) five email messages sent by the [defendant] requesting access to their personal information under s14 PPIP Act (IPP 7) and requested an internal review by the [plaintiff] on the basis that the [plaintiff] had “failed to provide [the defendant] with access to my personal information [as requested in those five emails] without excessive delay” (Conduct of Concern 1). The [defendant] alleged that the Conduct of Concern 1 was in breach of s14 PPIP Act. …

… In the Second IR Request the [defendant] referred to (and attached) an email dated 20 December 2018 addressed and sent to Ms Keating at [email protected] (Email 6) requesting access to “copies of all emails, file notes and memorandums arising out of my application for ex-gratia legal assistance”. The [defendant] requested an internal review by the [plaintiff] in relation to Email 6 on the basis that the [plaintiff] failed to provide the [defendant] with access to their personal information (as requested in Email 6) without excessive delay (Conduct of Concern 2) in breach of s14 PPIP Act/IPP 7.”

89. The Tribunal noted the plaintiff’s argument that the Tribunal’s jurisdiction was limited on the basis that the defendant’s entitlement to the information was not in issue and that, consequently, no evidence was adduced by the plaintiff as to the question of that entitlement. The Tribunal rejected this argument. It found, in the Remedies Decision (at [17]), that the defendant’s review applications were not limited to “excessive delay” but included the failure to provide the information.

90. This finding is, to my mind, entirely unsurprising. The defendant’s application for internal review complained that the “NSWPF has failed to provide [him] with access to [his] personal information without excessive delay and has contravened section 14 of the [PPIP Act]”. That complaint, quite obviously, takes its language from s 14 of the PPIP Act. The section imposed two obligations on the plaintiff. The first was to provide the defendant with access to his personal information, and the second was to do so “without excessive delay or expense”. The defendant’s primary objective was to obtain his information. He had an interest in achieving that primary objective without excessive delay. To construe his complaint as being limited to the delay is to take an unrealistic and somewhat idiosyncratic approach to the words used. A complaint that there had been undue delay might be made if the documents had already been provided. In circumstances where no documents had been provided, it would be surprising to make a complaint limited to the delay. The complaint is more naturally read as a compendious complaint of a failure to provide the requested information without delay. To the extent that there was a complaint about the delay, it was a complaint which was necessarily encompassed within the complaint as to not having been provided with the information he had requested at all.

91. The Tribunal found in the Remedies Decision (at [16(2)]):

“As regards the submissions referred to in paragraphs [12(2)] and [13(2)], [13(3)] and [14(1)] above, assuming the information requested is [a defendant’s] personal information and, in the absence of the agency establishing a lawful basis for non-performance (ie refusing access), an IPP 7 access request does not require the [defendant] to prove their entitlement to access their requested personal information. Access to their personal information held by the agency is their right under IPP 7, unless and until the agency can establish an applicable lawful excuse or exemption as the basis for its refusal to provide access to that information (in whole or in part).”

92. And later (at [18]-[19]):

“18   The Tribunal must, based on the submissions and evidence before it, decide the real issue(s) in dispute in these remedy proceedings in line with the guiding principle and plain words of IPP 7. In this case, the real issue in dispute is the remedies to be awarded based on the findings as to liability in the Decision, including the enforcement of the [defendant’s] right to access their personal information under IPP 7. If the [plaintiff] wished to claim that it is exempt or excused from performance of IPP 7, in whole or in part, it is incumbent on the [plaintiff] to raise and, ultimately, establish such before the Tribunal and it has not done so in the case.

19   Given the comments and findings in paragraphs [15] to [18] above and considering the guiding principle, I am satisfied that an order under s 55(2)(c) PPIP Act requiring the performance of IPP 7 is appropriate in these circumstances.”

93. The Tribunal made the following orders:

“(1)   From the date of these Reasons for Decision the [plaintiff] is to refrain from repeating any of the conduct of concern (as detailed in the Decision) and conduct similar to it in contravention of IPP 7 in relation to any IPP 7 access requests made by the [defendant].

(2)   Within 30 days of the date of these Reasons for Decision the [plaintiff] will perform IPP 7 by providing the [defendant] with access to all of the [defendant’s] personal information requested in Emails 1-6 (as defined in the Decision).”

The appeal to the Appeal Panel

94. The plaintiff appealed to the Appeal Panel of the Tribunal against the decision of the Tribunal. The Appeal Panel noted that there was no information before it as to whether the defendant had obtained access to the personal information identified in the orders of 3 December 2021. Various grounds were relied on before the Appeal Panel, the majority of which are not presently relevant. Included amongst the grounds was a complaint that the Tribunal had mistaken its jurisdiction as that jurisdiction was limited to the question of excessive delay. That argument was rejected by the Appeal Panel for reasons essentially the same as those I have expressed above in the context of the same argument.

95. The appeal grounds were divided into grounds directed to the Breach Decision and grounds directed to the Remedies Decision. Ground 10 of the appeal against the Breach Decision was summarised by the Appeal Panel in the Appeal Panel Decision as follows (at [34(10)]):

“… the Tribunal erred by denying the [plaintiff] procedural fairness, in that it purported to determine the issue of the [defendant’s] entitlement to personal information he had requested without first giving the [plaintiff] the opportunity to adduce evidence going to the question of any lawful excuse for exemption from compliance with s 14 that may apply to the information that was sought.”

164. The principles relevant to the question of whether or not to admit further evidence in an appeal from the Tribunal at first instance to the Appeal Panel were set out in Ros v Commissioner of Police [2020] NSWCATAP 70 at [31]-[35]:

“32 … having regard to the guiding principles under s 36 of the NCAT Act, the appeal in this case (which is not by way of a new hearing) is one akin to a rehearing, with the ability to receive further evidence if appropriate.

33   … Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal’s decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal’s discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25].

34   In an appeal which determines whether error has occurred, it is the decision at first instance that the Appeal Panel must examine. The role of the Tribunal at first instance in an administrative review proceeding is to decide what is the correct and preferable decision, as at the date of the Tribunal’s decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. It is not relevant to an examination of that decision whether the circumstances have changed since that time – affirmed in Mielczarek.

35 Even though the Appeal Panel has power to receive further evidence, its powers in an appeal that is not a new hearing would ordinarily be construed on the basis they are to be exercised for the correction of error. As noted by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [13] – [14]:

‘If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance’.

See also Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 326.”

Ground 3(a) - The complaint in relation to reasons

165. In dealing with this ground, it is convenient to recount the submissions made orally before the Appeal Panel with respect to the admission of the James Affidavit and the responses of the Appeal Panel to those submissions.

166. The plaintiff, before the Appeal Panel, pointed to the existence of a discretion to admit further evidence in order to “facilitate the avoidance of errors which cannot otherwise be remedied by the application of the conventional appellate procedures”. It was submitted that the James Affidavit demonstrated “a number of errors of law and a smaller number of errors of fact” made by the Tribunal. It was further submitted that the James Affidavit established, by giving some examples, that there was information within the scope of the Email 1 request that was subject to an exemption from IPP 7 and that the Tribunal erred in law by deciding the matter when there was “no evidence before the Tribunal of whether any exemptions applied”. The Deputy President’s immediate response to this submission was (unsurprisingly), “[b]ut, that’s because you chose not to put that evidence on”. The Deputy President’s response highlights the obvious difficulty for the plaintiff in seeking to rely upon the James Affidavit before the Appeal Panel in order to establish an error of law by the Tribunal at first instance.

167. Counsel’s response to the above exchange was to explain that the reason the plaintiff had not put on evidence was because she understood the scope of the proceedings was limited to the question of excessive delay in responding to the requests. It was submitted, in that context, that the Tribunal ought, as a matter of procedural fairness, to have allowed the plaintiff to put on evidence directed to the question of the defendant’s entitlement to the information sought. That complaint has been dealt with above and is not the subject of the present ground. In relation to this present ground, it was pointed out by the Deputy President that, to the extent that the plaintiff wished to argue that the Tribunal's finding that some information was not exempt was a finding made in the absence of evidence, the plaintiff did not need the James Affidavit to establish this.

168. Before the Appeal Panel, the plaintiff submitted that the James Affidavit established that the Tribunal ordered the disclosure of information which was subject to an overriding public interest against disclosure and thus, an error of law was established on this basis. Similarly, it was submitted that the Tribunal erred in finding that the plaintiff had not established a lawful basis for non-performance, whereas the James Affidavit established that there had been no consideration of whether there was a lawful basis for non-performance at that time. Both submissions suffered the same flaw. The Tribunal cannot have erred in law on the basis of evidence not before it.

169. It was additionally submitted by the plaintiff that there were errors of fact to which the James Affidavit was relevant. The plaintiff was, at least as a general proposition, on stronger ground in this regard (although it could not be suggested the Tribunal itself had mistaken the facts). The capacity of the evidence to demonstrate, with the benefit of hindsight, that, had the evidence been provided at first instance, the outcome may have been different, or that, in the absence of the evidence, serious injustice would result, was at least relevant to the exercise of the Appeal Panel’s discretion to admit the James Affidavit.

170. The plaintiff submitted, before the Appeal Panel, that the Tribunal erred in finding (in the passage set out above at [78]) that the fact that an access request is broad and may consequently catch some exempt information is not “sufficient grounds to deny access to all personal information the subject of the access request”. It was submitted that this was an error of fact because there had “not been any denial of the access requests that were made”. The question of whether there had been a denial of an access request was determinable on the basis of the request and the response or, as was the case here, the lack of response. It might additionally be noted that the internal reviews did deny both excessive delay and the defendant’s entitlement to access the information. It is, nonetheless, convenient to set out the full exchange which followed that submission (noting the references to the “access application” appear to be references to the internal review applications):

“SENIOR MEMBER: You say there is a[n] error of fact there, but doesn't it come down to interpreting the access application? So, if the access application is interpreted as seeking documents as such and complaining about the refusal to provide the documents, how does that affect your argument?

MS CURTIN: I'm sorry, Senior Member, could you repeat that?

SENIOR MEMBER: Yes. Doesn't it come down to the scope argument, what is the scope of the access application? So, if the scope of the application is seeking the documents and the complaint about refusal to provide all documents sought, doesn't that deal with your point about lack of evidence?

DEPUTY PRESIDENT: I may be asking the same question, Ms Curtin, and if I am then I apologise, but it does seem to me that a finding that there was a denial of access is not necessarily limited to an [overt] denial, but rather to the fact that access hasn't been provided.

MS CURTIN: Yes. I can see that interpretation is open.

SENIOR MEMBER: Which is a better way of saying exactly what I was trying to say.

MS CURTIN: I apologise for that, Senior Member. Yes. I can see that interpretation is open, the reason why I say it's not the preferable interpretation is because the Tribunal Member does allude to the possibility that there may be some exempt information and that in fact the [plaintiff [2] ] had found that information would be exempt from the provision of access. So, implied there is acknowledgement that some kind of assessment had been undertaken and the [plaintiff] considered that on the basis of that assessment, it was exempt - I should say she was exempt from providing the information sought.

That's all I'd like to say at this stage about whether or not the [plaintiff] ought to be permitted leave to rely on the James Affidavit. I had planned in my submissions to take the appeal panel to certain parts of the Affidavit which elucidate the proposition that errors of law were made by the Tribunal by ordering access to the information sought by email request one to six.

DEPUTY PRESIDENT: Well, I think it might be helpful if we were able to make a decision on the leave question before we go further.

MS CURTIN: Yes.

DEPUTY PRESIDENT: Speaking for myself, I am inclined to refuse leave, reasons can be given in the subsequent written decision. But, I think that an appeal generally does not involve the introduction of late evidence that wasn't considered at first instance. I understand there were reasons that this evidence wasn't brought forward at first instance because of a view about the scope of the first instance proceedings. But, nevertheless, I don't think that the injustice that has allegedly been suffered by the [plaintiff] cannot be addressed by other types of submissions. And, I think that the fundamental question is whether the denial of access includes the fact that no access was provided and that seems to be common ground that no access was in fact provided.

And, I therefore am not inclined to accept the argument that there was an understandable misunderstanding about the scope of the Tribunal's function at first instance. These reasons could be elaborated upon in written form, but speaking for myself, that's my view that leave should be refused. Senior Member Dubler?

SENIOR MEMBER: Yes. I agree, having heard the argument I'd be inclined not to grant leave as well and reasons will follow in due course.

DEPUTY PRESIDENT: So, that's the position with that, Ms Curtin. Please go onto your next submission.”

2. The transcript here in fact refers to the “Respondent”, that is, the defendant in these proceedings. However, it is assumed this was in error and the plaintiff’s counsel before the Appeal Panel was, in fact, referring to the “Appellant”, that is, the plaintiff in these proceedings.

171. In the Appeal Panel’s written reasons, grounds 6 to 10 before the Appeal Panel were grouped together on the basis they were concerned with the scope of the Tribunal’s jurisdiction. In effect, those grounds were sourced in the asserted failure of the Tribunal to properly consider the nature of the internal review application, the related contention that the internal review was a complaint with respect to excessive delay, and the consequent impact of this on the Tribunal’s jurisdiction. Included in these complaints was an asserted denial of procedural fairness as a result of the Tribunal determining the defendant’s entitlement to the requested information without giving the plaintiff the opportunity to adduce evidence addressing the question of any lawful excuse or exemption from compliance with s 14 of the PPIP Act. With respect to this last issue, the Appeal Panel said (at [60]-[61]):

“60 … the [plaintiff] submits (by ground 10) that before determining the issues of the [defendant’s] entitlement to the personal information he had requested, the Tribunal ought to have first given the [plaintiff] the opportunity to adduce evidence going to the question of any lawful excuse or exemption from compliance with s 14 that may apply to the information sought. [In the plaintiff’s submission the] Tribunal’s failure to do so amounted to a denial of procedural fairness, given that this opportunity could realistically have resulted in a different outcome.

61 With respect to the question of lawful excuse or exemption from compliance, the [plaintiff] seeks the Appeal Panel’s leave to adduce additional evidence in the form of an affidavit by Acting Inspector Andrew James dated 14 January 2022. That affidavit explains Mr James’ position and that he had dealt with the [defendant’s] internal review applications. His affidavit gives evidence of the searches he conducted after the [plaintiff] received the applications for internal review and the searches conducted during and after the conclusion of the proceedings at first instance. Arising from the “preliminary review” Mr James has identified documents which, in his view, the [defendant] is barred from requesting by operation of clause 7 of the Deed. In respect of email 1, searches conducted revealed documents responsive to the request that fell within the scope of the release contained in clause 7(c) of the Deed. With respect to email 2, searches conducted revealed documents that fell within the scope of the bar in clause 7 of the Deed. With respect to email 6, searches conducted revealed in excess of 8,000 pages and further searches may need to be performed. Mr James’ preliminary view of initial results indicated that some of the personal information would fall within the scope of the release contained in clause 7(c) of the Deed. Mr James’ affidavit deposes as to the resources already expended in responding to the [defendant’s] request for information. The [plaintiff] would rely on this evidence, leave permitting, in support of the argument that the [plaintiff] was lawfully permitted to refuse access to some of the personal information requested on the basis that dealing with certain of the requests would require an unreasonable and substantial diversion of the agency’s resources within the meaning of s 60(1)(a) of the Government Information Provision Act (the GIPA Act).”

172. Complaints based on the existence of the deed have fallen away, based on the Tribunal’s rejection of the plaintiff’s reliance on the deed. Complaints in relation to the diversion of the plaintiff’s resources, based on the view expressed above in relation to the non-applicability of s 60(1)(a) of the GIPA Act to the defendant’s requests for information, have also fallen away.

173. Subsequently, in the context of a ground complaining the Tribunal erred in making the order requiring performance of IPP 7, the Appeal Panel said (at [70]-[72]):

“70   The evidence of Mr James on which the [plaintiff] now seeks to rely establishes that at least a subset of the information that the Tribunal has ordered the [plaintiff] to provide to the [defendant] is the subject of an overriding public interest against disclosure. Further, a subset of that information is, on Mr James’ evidence, subject to an exemption from disclosure by reason of ss 24 and/or 25 and the effect of the Deed or pursuant to s 27 because the information sought is not in connection with the [plaintiff’s] educative and administrative functions. [The plaintiff submits] Tribunal was in error to order the [plaintiff] to provide access to the information sought without first giving the [plaintiff] an opportunity to determine whether any of the abovementioned conditions on or exemptions from, disclosure applied.

71   The [plaintiff] contends that orders 1 and 2 of the Tribunal should be set aside and in substitution of the Breach and Remedies Decisions, orders made pursuant to s 65 of the ADR Act remitting the [plaintiff’s] Decisions made on 28 March 2019 and 26 June 2019 to the [plaintiff] for reconsideration.

72   We interpose here to refer to the submissions above concerning the request for leave to introduce the new evidence. We record that during the hearing we decided to refuse such leave and, accordingly, Mr James’ affidavit is rejected. Reasons were given orally.”

174. As can be seen, despite the indication given at the hearing (at least by one member of the Appeal Panel) that “reasons will follow in due course”, the discussion of the James Affidavit in the Appeal Panel’s decision indicated that reasons were given orally. It does not, however, follow from this that adequate reasons were not provided. While the plaintiff understandably pointed to the inconsistency, she did not submit that this of itself established inadequacy of reasons.

175. The existence and content of any obligation to give reasons will be informed by the context of the case: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58]. As noted by the High Court in Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38 (at [42]), “what is considered sufficient in each case does not depend on any rigid formula and will be informed by all the circumstances of the case”. While where reasons are required, it is essential to expose the reasoning for a point of critical contest between the parties (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme at [40]), the extent and content of those reasons will depend on the matters in issue as well as the court or tribunal exercising jurisdiction: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56]; NSW Land and Housing Corporation v Orr at [65]-[77]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270, 272-273.

176. Here, the reasons for the decision are apparent from the discussion at the hearing and the reasons then given orally by the Deputy President (whose views appear to have been adopted by the Senior Member). The Appeal Panel refused to admit the new evidence firstly on the basis that “an appeal generally does not involve the introduction of late evidence that [was not] considered at first instance”. It is plain that the Deputy President understood that the reason the evidence had not been adduced at first instance was based on the plaintiff’s contention as to the scope of the proceedings before the Tribunal. In this regard, the Deputy President observed that the issue could still be addressed by other submissions. Absent the James Affidavit, it remained open to the plaintiff to make submissions as to the proper scope of the question before the Tribunal. It similarly remained open to the plaintiff to submit that no evidence had been put before the Tribunal as to how the requests might have been properly responded to had they been considered. Finally, it remained open to make submissions to the Appeal Panel based on the form of the requests in the emails and to make submissions raising at least the possibility (rather than the fact) that the requests captured information which the plaintiff was not obliged to provide.

174. In giving reasons orally, the Deputy President expressed the view that the “fundamental question” was “whether the denial of access includes the fact that no access was provided”. This observation was made in a context where there was no suggestion the plaintiff was entitled to exercise a blanket denial of access to the information sought. The Appeal Panel ultimately accepted that the answer to this question was, as had been found by the Tribunal, that the denial was not just a denial to provide the information without excessive delay, but that the defendant had sought access to his information and it had not been provided at all. The point made by the Deputy President at the hearing was that evidence directed to the plaintiff’s failure to deal with the request did not assist with respect to this question.

175. It is also relevant to observe that the Appeal Panel understood the general nature of the evidence contained in the James Affidavit. In refusing to admit the affidavit, the Appeal Panel appreciated the affidavit had the potential to establish the existence of an overriding public interest against disclosure or some other basis for exemption with respect to the requested access to information. The reasons made clear the essential basis on which the Appeal Panel declined to admit the evidence. The Appeal Panel’s understanding of the substance of the James Affidavit necessarily informed an understanding of its potential impact before the Tribunal (and the consequent possibility of practical injustice having been occasioned by the Tribunal). It was not necessary, in the circumstances, to go further, as the plaintiff contends, to expressly address any question of whether the James Affidavit would have produced a different result before the Tribunal or whether it would demonstrate that serious injustice would result from the Tribunal’s decision: AMZ v R [2013] NSWCCA 6 at [25]; see also Selvanayagam v University of West Indies [1983] 1 WLR 585 at 587-8.

176. The plaintiff additionally submitted before me that the Appeal Panel’s rejection of the plaintiff’s contention that there was an “understandable misunderstanding about the scope of the Tribunal’s function at first instance” was not explained by the Appeal Panel. It was the plaintiff’s argument that the existence of an “understandable misunderstanding” at first instance supported the admission of the James Affidavit to remedy the consequent injustice. Clearly, the Appeal Panel did not accept that there had been an “understandable misunderstanding” before the Tribunal. In my view, it is also clear that the Appeal Panel regarded the plaintiff’s approach as one which attempted to limit the issue before the Tribunal, and to then adopt an alternative strategy before the Appeal Panel, the initial strategy having failed. I have, earlier in these reasons, expressed my view as to the merits of the plaintiff’s attempt to limit the scope of the hearing before the Tribunal. The attempt was, as noted by the Tribunal, in the context of the very substantial passage of time between the first email request in April 2017 and the Tribunal proceedings on breach in November 2020. I share the Appeal Panel’s view that, in essence, it was for the plaintiff to determine how she wished to best conduct her case before the Tribunal. The quality of the plaintiff’s argument in this regard additionally informs of the nature of the reasons required.

177. The Appeal Panel’s reasons for not admitting the James Affidavit, given at the hearing, were, in my view, adequate. That there may have been an intention to elaborate upon these reasons which did not materialise, does not establish the contrary.

Ground 3(b) – The complaint that the refusal to admit the affidavit was unreasonable

181. Insofar as the plaintiff complains that the decision not to admit the James Affidavit was “unreasonable or plainly unjust”, she points to the content of the affidavit and its capacity to establish the consequences of the order requiring performance of IPP 7. As noted above, the Appeal Panel was aware of the matters to which the affidavit was directed.

182. I would accept, as the plaintiff submits, that the affidavit was capable of establishing serious consequences for the plaintiff in the event that the Appeal Panel upheld the Tribunal’s decisions. Without seeking to diminish those consequences, equally, they should not be overstated.

183. The James Affidavit was capable of establishing that some information responsive to the requests was caught by s 27 of the PPIP Act. The purpose behind s 27 of the PPIP Act is obvious. Clearly, there is an interest in the information held by law enforcement agencies, such as the NSWPF, relating to their investigative functions being protected. Release of such information has the potential to prejudice investigations and endanger the safety of the community and individuals, hence the general exemption in the PPIP Act with the carve-out for information held in the agency’s “administrative or educative functions”: PPIP Act, s 27. In the present case, while the James Affidavit was capable of establishing that some information responsive to the requests was caught by s 27 of the PPIP Act, it did not suggest that the information, if released, would prejudice any ongoing investigation or endanger the safety of any individual or the community.

184. Possibly, the most significant substantive concern raised by the James Affidavit was the prejudice to the NSWPF’s complaint handling and management functions. The James Affidavit notes that information sought by the requests covered information relating to complaints under Part 8A of the Police Act, which the affidavit notes are “particularly sensitive and must be treated confidentially”. The affidavit sets out the reasons why it “is essential to withhold information and evidence obtained and created in connection with a complaint”. The short answer to this concern is that s 4 of the PPIP Act, in defining “personal information”, excludes, by s 4(3)(h), “information about an individual arising out of a complaint made under Part 8A of the Police Act”. Such information was thus not within the order of the Tribunal requiring the plaintiff to provide the defendant access to his “personal information” pursuant to the PPIP Act. Accordingly, this part of the James Affidavit was irrelevant.

185. Other parts of the affidavit were capable of establishing that some documents caught by the requests contain information subject to legal professional privilege, which the NSWPF did not consider appropriate to waive. Information that would be subject to legal professional privilege (client legal privilege) in legal proceedings is listed in Sch 1, cl 5 of the GIPA Act and is conclusively presumed to be subject to an overriding public interest against disclosure: GIPA, s 14. Without seeking to diminish the general significance of legal professional privilege, in the present matter, nothing beyond the existence of that privilege was raised in the James Affidavit. There was no evidence that proceedings between the parties were ongoing or that any settlement would be prejudiced.

186. Other bases on which information was said to be exempt was on the basis of cl 1(e) of the table to s 14 of the GIPA Act, namely that disclosure of the information “could reasonably be expected to … reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency”. This is a public interest consideration to be weighed against the public interest in favour of disclosure: GIPA Act, s 13. This consideration was said to apply to information relating to the decision not to award the defendant the National Police Service medal and to the defendant’s application to the Attorney-General for an ex gratia payment in relation to certain legal costs he had incurred. Again, the concerns of the plaintiff are genuine but do not rise above the general concern in relation to such information.

187. Beyond the above, the concerns raised in the James Affidavit relate to information within the requests covered by the deed of release and the resources required to deal with the requests. As noted above, both issues have fallen away.

188. Whilst acknowledging the plaintiff’s concerns, they were not the only considerations before the Appeal Panel. Other obvious considerations included the opportunity the plaintiff had had at first instance, together with the period of time which had elapsed since the defendant made his first request in 2017 (and which, despite the position of the plaintiff, the Tribunal found the plaintiff had received at that time). In any event, quite apart from the point at which the first request was made, the plaintiff had been aware of the defendant’s request for information from at least the time of the review applications. To allow the plaintiff to litigate the matter on a different basis would have further added to the delay. In these circumstances, even if a different view may have been available, it cannot be said that the Tribunal’s rejection of the James Affidavit was unreasonably or plainly unjust so as to amount to legal error.

Conclusion with respect to Ground 3

189. For the reasons given above, I reject ground 3 of the appeal.

Conclusion

190. Having regard to the nature of the issues raised, including issues of general importance, I would grant the plaintiff leave to appeal. However, for the reasons given above, each of the plaintiff’s grounds must fail, and the appeal must be dismissed. Given the non-appearance of the defendant and the absence of any suggestion that he has incurred any costs, it is not appropriate to make a costs order in his favour. While the Privacy Commissioner intervened and was successful in her opposition to the plaintiff’s construction in relation to the applicability of s 60(1)(a) of the GIPA Act to a request under the PPIP Act, no order for costs was sought.

orders

191. I make the following orders:

1. Leave to appeal is granted; and

2. The appeal is dismissed.

**********

Endnotes

Decision last updated: 21 July 2023