Department of Education and Training v EM

[2011] NSWADTAP 4

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Department of Education and Training v EM (GD) [2011] NSWADTAP 4

Hearing dates:

9 September 2010

Decision date:

22 February 2011

Before:

Judge K P O'Connor, President

Decision:

1. Grant leave to appeal.

2. Decision under appeal set aside. The review application is remitted to the Tribunal differently constituted.

Catchwords:

PRIVACY - Jurisdiction - Application for Review of Conduct - Time Bar - "First Became Aware" of Conduct - Interpretation - Subjective Test - Whether Applicant's evidence should have been considered, not only Agent's evidence - Appeal allowed - Remitted - Privacy and Personal Information Protection Act 1998, s 53(3)(d)

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998

Cases Cited:

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561
BQ v Commissioner of Police, NSW Police Service [2002] NSWADT 64
Commonwealth of Australia v Smith [2005] NSWCA 478
Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129
Galea v Bagtrans Pty Limited [2010] NSWCA 350
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
Harris v Commercial Minerals Ltd (1995-96) 186 CLR 1
Hill v Repatriation Commission [2005] FCAFC 23
Jones v Dunkel [1959] HCA 8; (1958-1959) 101 CLR 298
MG v Director General, Department of Education and Training [2004] NSWADTAP 45
Mifsud v Campbell (1991) 21 NSWLR 725
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Re Bessey and Australian Postal Corp (2000) 60 ALD 529
Re Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178; [2009] AATA 124
Re Perring and Australian Postal Corp (1993) 31 ALD 693
Re Rodgers and Secretary, Dept of Social Security (1991) 24 ALD 720
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Xu v Director of Housing [2008] VSC 82

Category:

Principal judgment

Parties:

Department of Education and Training (Appellant)
EM (Respondent)

Representation:

Counsel
K Edwards (Appellant)
Solicitors:
L Ragupathy (Legal Officer - Appellant)
N/A (Respondent)

File Number(s):

109042

 Decision under appeal 

Jurisdiction:

9108

Citation:

EM v Department of Education and Training (No. 2) [2010] NSWADT 141

Date of Decision:

2010-06-08 00:00:00

Before:

General Division

File Number(s):

083033

JUDGMENT

1. This is an appeal by the Department of Education and Training against an interlocutory ruling by the General Division of the Tribunal that it has jurisdiction to hear a review application brought under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) and Health Records and Information Privacy Act 2002 (HRIP Act).

1. The review applicant is a former student of a high school administered by the Department. His final school year was 2004. The review application was lodged on or about 4 July 2007 and put in issue the loss of records of counselling provided to the student in his time at the school and the question of compliance or otherwise with the security safeguards principle set out in each of the Acts mentioned in the same terms (as to security of 'personal information' see PPIP Act, s 12; as to security of personal 'health information' see HRIP Act, Sch 1, cl 5). The Department declined to deal with the application on the ground that it was out of time.

1. The Department's position is that the applicant, via his agent (his mother) who has handled all dealings with the Department on the matter, was aware or should reasonably have been aware of the loss of the records more than 6 months before the application was lodged. The rule governing the time within which applications may be made to an agency is the same for the two Acts and is found at s 53(3)(d) of the PPIP Act:

(3) An application for such a review must: ...

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, ...

1. The applicant's mother is described as the 'applicant's agent' in the reasons of the Tribunal, and I will follow that usage henceforth. She has held a written authority from her son at all stages of the process including in respect of an earlier Freedom of Information application which provides the context for the Department's assertion that the present application was out of time.

1. The applicant's agent disputed the Department's position, and proceeded to file an application for review before the Tribunal on 30 January 2008. The Department maintained its objection. It is a pre-condition to the making of a review application to the Tribunal that there has first been a competent application to the agency (PPIP Act, s 53(3); 55(1); and see BQ v Commissioner of Police, NSW Police Service [2002] NSWADT 64; MG v Director General, Department of Education and Training [2004] NSWADTAP 45). After attempts at settlement failed, the Tribunal proceeded to hear evidence on the issue on 26 and 27 February 2010, issuing its ruling on 10 June 2010.

1. The applicant's agent's evidence was that she only first became aware of the loss of the applicant's records when she was told in a letter from the Department to her dated 16 May 2007 that the applicant's counselling records had been lost as a result of an unauthorised entry to the office where they were held that occurred in Term 1, 2005.

1. The principal steps in the Tribunal's reasoning were:

(1) the agent's mind is the relevant mind in this case for determining when the applicant first became aware of the conduct the subject of the application;

(2) this is because the agent has taken all steps in prosecuting her son's concerns, he having no active involvement apart from giving the written authorisation at the agency and Tribunal stages;

(3) the question of the date the relevant person, here the agent not the applicant, 'first became aware' of the conduct is one of fact to be determined by reference to the 'subjective' state of mind of the person;

(4) there is no scope for an argument that the relevant date is when the person 'ought reasonably to have become aware', as that possibility is not provided for by the legislation;

(5) on the evidence, the Tribunal was satisfied that the relevant person, here the agent, first became aware of the loss of EM's files when she received a letter to that effect from an officer of the Department on 16 May 2007;

(6) Accordingly, EM filed the application for internal review in time.

1. An appeal may be made on a question of law, and, by leave of the Appeal Panel, extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. This is an interlocutory appeal (s 24A), and requires leave to proceed (s 113(2A)). The leave application may be heard by a presidential member sitting alone and, if leave is granted, the same member may proceed to consider the questions of law raised, and may extend the appeal to the merits and finally dispose of it (s 113(2B)). The Appeal Panel is constituted by a single presidential member on this occasion.

Orders Sought

1. The Department's notice of appeal lists several alleged questions of law, and applies for leave to extend to the merits. The Department seeks a grant of leave to appeal the interlocutory decision, findings that the Tribunal erred in law, and applies for orders setting aside the Tribunal's decision, extension of the appeal to the merits and an order dismissing the application for review for want of jurisdiction. Both parties have filed submissions, with the applicant's agent appearing at the hearing of the appeal.

Type of 'Awareness' Required by s 53(3)(d)

1. The Department renewed its submission on appeal that the words 'first became aware' extend to 'objective' or 'constructive' awareness, i.e. the person concerned is fixed with the awareness that a reasonable person in the circumstances would have had.

1. The leading authority on the interpretation to be given to a time bar depending on when a plaintiff or applicant 'first became aware' of the relevant matter is Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129. In that case the Queensland law allowed a purchaser to avoid a contract for the sale of lots in the form of building units or belonging to group titles if certain pre-contract written disclosure obligations were not fulfilled by the vendor. The rule was that a purchaser was entitled within 30 days of when he or she 'first becomes aware' of such an omission to seek an order declaring the contract void, provided it was a material omission. (The right could be exercised at any time even after settlement and transfer of title.)

1. In my view there is nothing in Deming that supports the argument that the words 'first becomes aware' or 'first became aware' are to be interpreted other than as referring to the actual understanding of the relevant person. The court was divided over the issue of the extent of the requisite understanding - did time begin to run when the purchaser knew that the notice contained an omission; or did time only begin to run when the purchaser knew both that there was such an omission and its legal significance.

1. The majority favoured the wider view. See, for example, per Mason, Deane and Dawson JJ at 151:

[A] person would not ordinarily be said to become aware of a "failure" to give a statement in compliance with s. 49 until he becomes aware both of the obligation to give such a statement and of the fact it has not been given. Similarly, a person who knew that a statement which he had received did not state the address of the vendor or set out the proposed by-laws which would apply to the "lot" which he was purchasing would be "aware" that the statement which he had been given did not contain that information but he would not ordinarily be said to be "aware" of a "failure" by the statement to comply "in every respect with sub-sections (1), (2) and (3)" of s. 49 unless he had some information as to the requirements of those sub-sections or as to whether the statement which he had been given satisfied them.

....We would be inventing a new doctrine of constructive notice if we were to hold that a purchaser is "aware" of a failure to comply with particular statutory provisions when he knows the facts, even though he is ignorant of those provisions and of the obligations which they impose. Indeed the very words 'becomes aware' strongly indicate that the statute is looking to the purchaser's actual knowledge of the failure which, by description, is a failure to comply with the statutory provision.

(Cited with approval in Harris v Commercial Minerals Ltd (1995-96) 186 CLR 1 at [10]; and Commonwealth of Australia v Smith [2005] NSWCA 478 at [116].)

1. In my view, the same is true in construing and applying s 53(3)(d) of the PPIP Act. So the relevant person (ordinarily the applicant, but here, as explained, the applicant's agent) must know of the loss of records and then, two, attach to it a legal complexion, in this case the possible connection of the loss to the agency's security and retention obligations under privacy laws.

1. There are, in my view, good policy reasons for adopting a construction that construes the provision as requiring 'actual' awareness rather than one that allows for constructive awareness. The legislation under notice in this case, as in the Deming case, is in the nature of a consumer protection law. It would be unfair for the protection to be forfeited before they knew of the conduct and of the rights that conduct allowed them to exercise. The approach preferred in Deming advances the beneficial objects of laws such as the PPIP and HRIP Acts.

1. In my view, the Tribunal member did not err in his interpretation of the words 'first became aware' by enquiring only into the subjective state of mind of the applicant's agent.

Credit Finding

1. In the alternative, the Department submitted that the Tribunal ought not to have accepted the agent's evidence as to when she first became aware that the school was no longer in possession of the applicant's counselling files. In its submission there is a litany of evidence that tells against the possibility that she could have only first become aware of the situation as late as May 2007.

1. The evidence included the following:

(a) The agent had developed concerns as to lax security practices at the school around student files and counselling records in the period 2002-2003 based on her own observations and what she had been told by others. (The agent was actively involved in the school community in a number of ways.)

(b) She had a specific concern about the security of her two sons' records which she expressed to a Department officer in September 2005. He said he advised her that:

"the only way to ensure they [the files] were safe was to request a copy of his files under the FOI Act and see if they were supplied": see [14] and attachment 4 of the agent's statement.

She filed a joint FOI application for access to both sons' records, lodged 7 October 2005. She has stated that prior to making the application she knew that there had been episodes of unauthorised access. The application sought files in respect of both sons, and referred in particular to 'school files', 'counsellor records', 'all correspondence sent to the school by Dr Hutchins', 'sick bay records' and 'records kept by the Head Teacher, Teaching and Learning'.

(c) The determinations issued on 2 November 2005 by providing copies of all documents held by the Department without deletion.

(d) The agent supplied her son, the applicant, with the documents released with the November 2005 determination.

(e) In February 2006 she wrote to the Department expressing concern over the number of documents missing from those supplied in relation to her older son, XW. She subsequently applied for a review of this conduct under the PPIP Act within time, and that application was dealt with.

(f) The Department's letter of March 2006 replying to her letter of February 2006 attached an internal memo generated during the processing of the FOI application dated 11 October 2005 from Mr Rowe, Manager, Student Counselling. Responding to the FOI officer's search enquiry it said (emphasis added):

Your request for a copy of school counselling records held for XW and EM [the present applicant] was received on 7 October 2005.

No registered school counselling file in the name of EM (DOB 19/9/1986) exists.

A registered school counselling file, MS517859, in the name of XW (DOB 20/3/1985) and marked out to [the school] is recorded on our TRIM data-base. The School counsellor at [the school] is unable to locate this file.

(g) In a letter (dated 24 April 2007) to Ms Butler of the Department, the applicant's agent referred to her understandings when she was making the FOI applications in 2005: "when I requested a copy of [EM's] files from DET in 2005, I was only sent a copy of the school files and not the counselling files."

(h) more general matters, such as the degree of her involvement in prosecuting concerns over records management and other issues in relation to the school, and the unlikelihood therefore of the letter from the Department sent in May 2007 formally advising that the applicant's records were lost as being the first time she understood that to be the case.

1. The Department submits that the Tribunal erred in law in failing to give adequate reasons in support of its credit finding.

1. A court or tribunal is not expected slavishly to itemise all matters of evidence. The reasons will ordinarily include distillations and summaries, and a focus on what is seen as the key evidence material to the real issues. On the other hand, 'to have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant': Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 per Gray J (with whom Fullagar and Tadgell JJ agreed). To similar effect, see Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728. There remains a duty to explain why a witness is believed, as distinct from simply saying 'I prefer' X to Y:

"[B]ald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge's common law duty to provide the parties, and the appellate court, with the basis of his decision": Palmer v Clarke (1989) 19 NSWLR 158 (at 170) per Kirby P (Samuels JA agreeing).

1. As to whether a finding as to credit or credibility can be set aside on error of law grounds the position is a narrow one. In Hill v Repatriation Commission [2005] FCAFC 23, Wilcox, French and Weinberg JJ observed:

93 A court should not disturb a finding of fact by a tribunal based upon its assessment of the credit or credibility of a witness unless it is satisfied that the tribunal did not take advantage of its opportunity to see and hear the witness, or that the conclusions that it reached were inconsistent with an overwhelming body of evidence, or were glaringly improbable: Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528 at 532.

1. A summary of the principles relevant to the requirement for adequacy of reasons was given by McColl JA (Ipp JA, Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58] - [66] (15 May 2009) when allowing an appeal from an ex tempore judgment of the District Court. Of particular relevance to this case are the following two principles:

- The test for the extent to which reasons should deal with the evidence is one of adequacy and the test is relative. Failure to refer to some of the evidence does not necessarily indicate that the judge has failed to discharge the duty.

- A judge should refer to evidence which is important or critical to the proper determination of the matter. Where such evidence is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

1. More recently, Ipp JA said in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186:

28 It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates.

29 Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable to having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent".

1. Provisions such s 53(3)(d) necessarily cast the position strongly in favour of the individual applying for review of conduct. As the date when time commences depends on the state of mind of the relevant person, the primary evidence and often the only evidence will be that given by the relevant person.

1. The Department in its submissions below and on appeal referred to two considerations that ought to have led the Tribunal to a more sceptical view of the agent's evidence.

1. One, this was a case where the fact in issue ('awareness') was 'peculiarly within the knowledge' of only one of the parties. It referred to the dicta of Hunt J, going to such a situation, in Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561, where his Honour noted the need for complete proofs referring at [48] to 'the more general maxim, not restricted to cases where the facts are peculiarly within the knowledge of one party, that all evidence is to be weighed according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted.'

1. Two, the Department contended that the agent had not produced all relevant evidence, namely the applicant's evidence as to what he discovered and understood when he examined the documents given to him as a result of the FOI determination. The Department referred to the rule in Jones v Dunkel [1959] HCA 8; (1958-1959) 101 CLR 298 (for a recent examination, see Galea v Bagtrans Pty Limited [2010] NSWCA 350) allowing an adverse inference to be drawn that the evidence would not have assisted his case. The Department submitted that it had never treated the case as one entirely to be determined by reference to the agent's evidence.

The Reasons

1. The Tribunal began with a narrative of the agent's dealings with the Department, including the circumstances of the two FOI applications in 2005. In the course of that narrative, it referred to one of the matters that I have highlighted above:

13 ... The applicant's agent then spoke with an officer of the respondent, one Mr. Harrison, who advised her to seek copies of relevant documents from the respondent if she was concerned that files may have gone missing. Consequently, on or about 07.10.05 the respondent received applications, prepared by the applicant's agent, pursuant to the Freedom of Information Act 1989 in relation to the school records of both the applicant and his brother. The application in relation to the applicant's own files was made as an afterthought (exhibit A1 paragraph 8), the initial stimulus for the application being the concern that she, the agent, had in relation to the applicant's brother's files.

1. At [18]-[20] the Tribunal summed up as follows:

18 The evidence by the applicant's agent was that she did not form any belief that the applicant's counselling files had gone missing on 02.11.05, or shortly thereafter, by reason of the documents she had got from the respondent concerning the applicant's records and those of his brother. On receipt of these documents, which came in one bundle separated by coloured paper, she perused them. She noted that the applicant's documents in fact contained some medical documents authored by a particular practitioner, Dr. Hutchins, and then passed the documents to the applicant to read. At this point her evidence is that she did not believe that any records were missing. However, in relation to the applicant's brother's documents she did observe that documents she expected to be there were in fact missing, namely records apposite to counselling files. She spoke with Mr. Harrison about this, as noted above, on 01.02.06 (exhibit A1 paragraph 12) and was advised that the applicant's brother's counselling files could not be found. However, her subjective belief upon receiving this information was that if she pressed the matter the files would in fact be located, whereupon she proposed to request that they be stored safely (exhibit A1 paragraph 21). This plan was put in motion by the lodging of a privacy complaint on behalf of the applicant's brother on 21.03.06. No steps had been taken by the agent at this stage in relation to the applicant's own counselling files.

19 It is certainly true that upon receipt of the documents concerning the applicant's brother the applicant's agent could have developed concerns that it was possible that counselling files in relation to the applicant may have been missing as well. Of course it is equally possible that she could have thought that they simply could not be located, as was her belief in relation to the applicant's brother. The respondent, quite correctly, argues that the Tribunal should not accept the agent's evidence on this point by reason of the evidence and the obvious inferences that may be drawn.

20 However, the applicant's agent was a credible witness and, without more, the Tribunal has no concerns with accepting her veracity on this point. The agent has been quite diligent in protecting the interests of both her sons and it is most persuasive that she took no steps in relation to the applicant's files at this stage, whereas she did in relation to the applicant's brother. The Tribunal cannot accept that she would not have acted in relation to the applicant if she in fact had formed the view that his counselling files had, or may possibly have, gone missing as well, or could not be located. When determining a person's state of mind at any particular time it is often critical to see what acts they did, or did not do, after forming an alleged state of mind. It is also critical if such acts, or omissions, can be found in evidence that is recorded and incontrovertible, as may be found in a letter written shortly after the event. Here there is such evidence. The agent's letter of 10.02.06 (exhibit A1 tab 4) concerns the applicant's brother only. Thus the Tribunal is well persuaded that the applicant's agent's evidence, that she did not believe the applicant's files to be missing, is truthful evidence and therefore should be accepted on this point.

Consideration

1. As can be seen, the Tribunal's credit finding was not a bald one. It engaged with the matter at the heart of the dispute, whether the applicant's agent, given her active pursuit of the question of the state of her two sons' school records, was to be believed in her assertion that so far as the applicant's circumstances were concerned she only became aware in May 2007 of a loss with a privacy compliance dimension.

1. There are two matters which concern me.

1. In my view, it is clearly strongly arguable that the internal memo provided to her in March 2006 which included the statement - No registered school counselling file in the name of EM (DOB 19/9/1986) exists - constituted in effect a notice that the records were missing. The Tribunal should, I think, have addressed this evidence.

1. My main concern is the non-consideration of any evidence that the applicant might have been able to give. The only reference in the Tribunal's reasons to the applicant's contact with the records released under the FOI request is at para [18]: 'She noted that the applicant's documents in fact contained some medical documents authored by a particular practitioner, Dr. Hutchins, and then passed the documents to the applicant to read.'

1. The Department raised the issue of what awareness the applicant might have, and pressed it as a relevant matter to be considered: see, for example, its submissions filed September 2009.

1. The applicant had, it seems to me, some relevant evidence to give. He was given the documents provided in response to his FOI application. We do not know whether he noticed that no counselling records were among them; or what passed between he and his agent on the issue.

1. The Tribunal did refer at [20] to the Department's submission that an adverse inference be drawn. The Tribunal declined to draw such an inference for the reasons set out at [20].

1. Whether an adverse inference as to credit is drawn against a party who fails to adduce relevant evidence available to them is a matter for the judgement of the trier of fact. The judgement forms part of the ordinary process of reasoning in courts and quasi-judicial bodies such as tribunals. See, for example, cases in the Commonwealth Administrative Appeals Tribunal such as Re Perring and Australian Postal Corp (1993) 31 ALD 693; Re Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178; [2009] AATA 124 at [110]-[115] (where a failure by an applicant to take a DNA test resulted in an adverse conclusion being drawn against her).

1. In tribunals dealing with unrepresented parties, some care needs to be shown before forming such an inference, and especially in treating it as a determining consideration: see, for example, Re Rodgers and Secretary, Dept of Social Security (1991) 24 ALD 720. Moreover, the ADT has special procedural obligations towards parties under s 73 of the ADT Act, which militate against too-ready drawing of such an inference. For example, in Xu v Director of Housing [2008] VSC 82 at [9], the Victorian Supreme Court upheld an appeal from the Victorian Civil and Administrative Tribunal where an adverse inference had been drawn against an unrepresented applicant for failing to call a witness where no warning had been given to the applicant of that possibility. It has also been suggested that a Tribunal should itself consider whether to call the witness: Re Bessey and Australian Postal Corp (2000) 60 ALD 529 at 537.

1. Nonetheless in this case I consider that the agent should have produced the applicant to give evidence. The Tribunal would then have had fuller evidence as to when the loss was likely to have been first known to the applicant and the applicant's agent.

Conclusion

1. In my view, the Department has made out its case for the setting aside of the decision.

1. The best course is to remit the matter to a tribunal differently constituted to be re-heard, despite the further delay in resolution that that will entail. There is ample material already on file, and I would expect that the re-hearing could be confined to a short compass. Ideally the applicant should present to give evidence. The Tribunal has a power to issue a summons but that power has rarely been used.

Further Observations

1. Agent Representation. Allowing a party to have an agent as their representative in proceedings can, and often does, promote the objective of access to justice and assist in the resolution of disputes.

1. When agents actively prosecute applications on the basis of an authority given by an absent party who is an adult and for whom there is no claim of any relevant incapacity or disability, there must be some concern that the real plaintiff is the agent not the absent party. This concern is compounded in cases where the agent has a close emotional relationship to the absent party as in a parent and child.

1. This application was lodged at a time when the representation provisions in the ADT Act, see s 71 (as it stood in January 2008) were expressed in a way that might be said to give a party an unfettered right to nominate any other person as their agent. That is no longer the case. As a result of amendments that took effect on 1 January 2009, a party must obtain leave to be represented by an agent who is not a qualified legal practitioner.

1. I do not see it as helpful to the effective and practical resolution of disputes for the person initiating an application, whether to the agency or to the Tribunal, to withdraw thereafter from an active relationship to the application, especially where the appointed agent is a family member such as a parent.

1. This problem is compounded where the agent turns out to be a material witness as to an issue of fact. It is difficult to see how an agent whose evidence is vital to the validity of the application they have agreed to press can be regarded as an arms-length representative of the kind a legal practitioner is required to be. Ordinarily a practitioner appearing on behalf of a party will relinquish their retainer if they become a witness of fact in the proceedings.

1. As I see it, a party who is an adult of ordinary capacity should be responsible for the presentation of their case in the tribunal or deal with the tribunal through an experienced, independent advocate (whether formally admitted as a legal practitioner or not), and one not connected to any controversy of fact likely to arise in the proceedings.

1. Resolution of this Dispute. These proceedings have been prolonged around a preliminary point. I accept that the point - timely pursuit of privacy breach complaints - is a significant one for agencies, especially those with major personal information management responsibilities, as here.

1. Nonetheless this case draws attention to a serious occurrence - the loss of confidential counselling records and whether security practices were adequate at the time of the 'unauthorised entry' said to be the cause of the loss of the records. The Department, on its case, knew as far back as October 2005 that there were no registered counselling files held in relation to the applicant. It is not clear what it or the school did to ascertain why that was so, given the extent of the applicant's involvement in counselling and similar services.

1. I would encourage the parties to see if there is some way this dispute can be brought to an end. I note that there has been a previous attempt. The application reached the agency over two years after the applicant had left the school, and it is now six years since he left the school.

1. As a way of bringing this dispute to an end, I would encourage the Department to consider, at the least, providing the applicant and the agent with a statement as to security safeguard practices that now apply to the management of counselling records in schools so as to minimise the possibility of loss, and more particularly, what steps are now taken to prevent unauthorised entry to record storages holding counselling and similar confidential records.

ORDER

1. Grant leave to appeal.

2. Decision under appeal set aside. The review application is remitted to the Tribunal differently constituted.

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Decision last updated: 03 March 2011