DTN v Commissioner of Police (No 2)

[2020] NSWCATAD 107

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DTN v Commissioner of Police (No 2) [2020] NSWCATAD 107
Hearing dates:	On the papers
Date of orders:	17 April 2020
Decision date:	17 April 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Easton, Senior Member
Decision:	The respondent must deal with DTN’s application under s 53 of the PIPP Act made by letter dated 28 September 2019.
Catchwords:	PROCEDURE - Time for lodgement of Application under Privacy and Personal Information Protection Act 1998 (NSW) – “the time the applicant first became aware” – imputed knowledge - agency – materials supplied to the applicant’s former solicitor but not to the applicant
Legislation Cited:	Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 Beach Petroleum NL v Johnson (1993) 43 FCR 1; [1993] FCA 283 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 225 FLR 1; [2008] WASC 239 Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44 Department of Education and Training v EM [2011] NSWADTAP 4 Harris v Commercial Minerals Ltd (1995-96) 186 CLR 1; [1996] HCA 49 NL Mercantile Group Pty Ltd [2018] NSWSC 1337 Waldron v Joondalup Hospital Pty Ltd (2018) 98 NSWLR 552; [2018] NSWCA 182
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DTN (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Sparke Helmore (Respondent)
File Number(s):	2019/00350181
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the Applicant is prohibited.

REASONS FOR DECISION

1. This decision concerns the time limit for making an application for review under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (“PIPP Act”). Section 53(3)(d) requires an application to be made “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”. The question for determination is whether, for the purposes of the time limit in s 53, the applicant is taken to have first become aware of the relevant conduct when the relevant materials were produced to his solicitor, even if the solicitor did not pass on the materials to him.

2. The applicant, referred to as “DTN” in these proceedings, is not legally represented. In 2018 DTN’s former solicitors, Carroll & O’Dea Lawyers (“Carroll & O’Dea”), obtained certain documents from the respondent. DTN did not receive any of these documents until 2019.

3. DTN alleges that one of the documents he received from Carroll & O’Dea in 2019 contains false information and he made an application under s 53 of the PIPP Act to the respondent less than six months after first receiving that document.

4. The respondent does not dispute that DTN did not know of this document until 2019, but says “at law” DTN had knowledge of the document from the time it was produced to Carroll & O’Dea the year before. The respondent says that DTN’s request was therefore out of time.

5. The parties are content for the matter to proceed on the papers and I am separately satisfied for the purposes of s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) that the issues in contest can be adequately determined in the absence of the parties.

6. For the reasons set out below I find that DTN made his application under s 53 within six months from the time he first became aware of the conduct the subject of the application.

Background

7. DTN was a police officer and was medically discharged in 2012.

8. In 2018 DTN engaged Carroll & O’Dea to investigate whether a workers compensation claim could be made against the respondent for what DTN considered to be a deterioration of his injury. The engagement letter from Carroll & O’Dea advised that “we note that you may be entitled to further lump-sum compensation for the deterioration of your injury pursuant to ss 66 and 67 of the Workers Compensation Act” and that “before any payment can be made, the assessment will need to be greater than your previous assessment, and related to the same injury caused by your employment in the NSW Police Force.”

9. In pursuing this workers compensation inquiry Carroll & O’Dea made an application to the respondent in 2018 under the PIPP Act on DTN’s behalf. DTN’s personnel file and other documents were produced to Carroll & O’Dea in July 2018, including a report by the Medical Discharge Unit of the NSW Police Force prepared in 2012 (the 2012 Report). Carroll & O’Dea did not give DTN any of these documents in 2018.

10. In April 2019 DTN wrote to Carroll & O’Dea and asked for a copy of the materials produced by the respondent in 2018. DTN received those materials in April 2019, including the 2012 Report. DTN made an application to the respondent under s 53 of the PIPP Act in September 2019.

The PIPP Act

11. Section 53 of the PIPP Act includes the following:

“(1)   A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

…

(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”.

12. The authorities in this tribunal are clear that the phrase “first became aware of the conduct the subject of the application” in s 53(3)(d) refers to awareness of both the conduct itself and also the legal significance of the conduct. As then President O’Connor said in Department of Education and Training v EM [2011] NSWADTAP 4 at [14]:

“So the relevant person …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.”

The respondent’s submissions   

13. The respondent submits that DTN’s application for internal review was not made within the statutory time limit and that the respondent is therefore at liberty to decline to deal with the application.

14. The respondent submits that Carroll & O’Dea “were [his] solicitors for his Workers Compensation Commission proceedings and acting as his agent in respect to that matter”. The respondent also noted that DTN gave Carroll & O'Dea authority to obtain medical and other information on his behalf, that Carroll & O’Dea in turn made a request under the PIPP Act on DTN’s behalf and that Carroll & O'Dea then received documents on DTN’s behalf.

15. The respondent also submits that the applicant “ought to have known” that when his solicitors made a request under the PIPP Act that his Medical File and Injury Management File would be provided to his solicitors.

16. The respondent says that “at law the applicant was taken to have knowledge of the fact [of the contents of the 2012 Report]” when the documents were produced to his solicitors.

17. The respondent relied upon the decision of Robb J in Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 at [722] (“Almona”) where His Honour said:

Where, during a transaction in which an agent is acting for its principal, the agent acquires knowledge of any fact material to the transaction in circumstances where it is the agent's duty to communicate its knowledge to the principal, the agent's knowledge is imputed to the principal: see Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 70 ACSR 1 at [6186]-[6194]; Sargent v ASL Developments Ltd (1974) 131 CLR 634; [1974] HCA 40 at 658-659; Beach Petroleum NL v Johnson [1993] FCA 283; (1993) 43 FCR 1 at 24-26, 31-32; Brockway v Pando (2000) 22 WAR 405; [2000] WASCA 192 at [62]; and Smits v Roach (2004) 60 NSWLR 711; [2004] NSWCA 233 at [40]- [43].

18. The respondent’s written submissions also separately refer to Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 225 FLR 1; [2008] WASC 239 at [6186]-[6194] (“Bell Group”) and Beach Petroleum NL v Johnson [1993] FCA 283; (1993) 43 FCR 1 (“Beach”).

19. The respondent’s argument in these proceedings is that Carroll & O’Dea were DTN’s agent in requesting and obtaining documents in 2018, and therefore Carroll & O’Dea’s knowledge in 2018 is imputed to DTN.

20. The respondent did not squarely address precisely what it said was the scope of Carroll & O'Dea’s agency in 2018, nor precisely how Carroll & O’Dea owed a duty to communicate their knowledge to DTN. The respondent’s submission in this regard was as follows:

“The Respondent submits that this principle applies in relation to the solicitor–client relationship between the applicant and Carroll & O'Dea Lawyers. That is:

(a)   Carroll & O’Dea Lawyers were engaged as the applicant’s solicitors in the Workers Compensation Claim proceedings;

(b)   as part of their retainer Carroll & O'Dea Lawyers sought and obtained the applicant’s express authorisation to collect information about him;

(c) Carroll & O'Dea Lawyers made an express request under the PIPP Act for access to information held by the Respondent about the applicant;

(d) the respondent produced information to Carroll & O'Dea Lawyers in response to the PIPP Act request for access about [DTN]; and

(e)   the information produced to Carroll & O'Dea Lawyers was directly relevant to the applicant’s Workers Compensation Claim proceedings (being the applicant’s Medical File and Injury Management File).

Accordingly, the respondent submits that at law, the applicant is taken to have implied knowledge of the contents of the Medical File and Injury Management File from 19 July 2018.”

21. In submitting that DTN was aware in 2018 of the legal significance of the documents produced to DTN’s solicitors, the respondent argued that DTN was aware of his appeal rights under the PIPP Act at all relevant times and “would have had a general awareness of whether [the 2012 Report] would have contravened, or possibly contravened a privacy principle”.

22. In support of these propositions the respondent relied upon the fact that DTN made an application under the PIPP Act to the respondent in 2011, and also the fact that the request made by DTN’s solicitors in 2018 was made under the PIPP Act.

The Applicant’s Submissions

23. The applicant’s written submissions and the annexures to those submissions provide a thorough account of the sequence of events in 2018 and 2019. These materials make it abundantly clear that DTN did not have any subjective knowledge of the content of the 2012 Report until 8 April 2019.

Consideration

24. The limitation in s 53(3)(d) of the PIPP Act applies from the time the relevant person “first became aware”.

25. As referred to in paragraph 12 above, President O’Connor found in In Department of Education and Training v EM [2011] NSWADTAP 4 (“DEC v EM”) that the words “first became aware” refer to “the actual understanding of the relevant person” (at [14]). In that case the relevant person was the applicant’s mother who was regarded by the Tribunal as the applicant’s agent because she “held a written authority from her son at all stages of the process including in respect of an earlier Freedom of Information application” (at [4]). DEC v EM was an appeal from an earlier decision, EM v Department of Education and Training (No 2) [2010] NSWADT 141, where the following was noted:

“[2]   The applicant accepts that his dealings with the respondent have been conducted through an agent, who in fact is his mother, with the consequence that the relevant question is when his agent, rather than himself personally, first became aware of the conduct the subject of the privacy application. The applicant therefore has accepted that his agent’s knowledge, or awareness, is his, for the purpose of these proceedings. Equally, the applicant has accepted, for the purpose of this litigation, that whatever circumstances his agent ought to have been aware of are circumstances of which he ought to have been aware of as well.”

26. On appeal in DEC v EM President O’Connor relied upon the High Court’s reasoning in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44 (“Deming”) and Harris v Commercial Minerals Ltd (1995-96) 186 CLR 1; [1996] HCA 49; (“Harris”).

27. In Deming a purchaser sought to avoid a contract because of certain deficiencies in a statement the vendor was required under statute to provide to the purchaser during the construction phase. When the statement was provided by the vendor, the purchaser made notations and returned it to the vendor. Ten months later the purchaser decided it wanted to avoid the contract and its solicitors, at the purchaser’s instructions, found a technical failure in the original statement. The purchaser then elected to avoid the contract because of the failure in the statement. Under the relevant statute the purchaser could only make such an election within 21 days of first becoming aware of the failure. The High Court was called upon to determine whether the purchaser “first became aware” of the failure when it initially received the statement from the vendor, or at the later date when the purchaser went searching for and found a failure.

28. The majority in the High Court found that a purchaser doesn’t become aware of a failure “until he [first] becomes aware both of the obligation to give such a statement and of the fact it has not been given” (at 151). That is, the majority found that the purchaser was not aware of the failure until the purchaser was subjectively aware of both the obligation and the deficiency in meeting the obligation.

29. Similarly in Harris the High Court said of the phrases “did not know” and “was unaware” that “to look to anything other than the applicant's actual awareness of the matters … would be to read into s 60I(1)(a) a doctrine of constructive notice that is not justified by the language of the provision” (at 9-10).

30. In applying these principles in DEC v EM, President O’Connor directed his inquiries to the actual understanding of the agent rather than the applicant.

31. The three cases referred to in the respondent’s submissions affirm the general principle that knowledge of an agent can be imputed to the principal.

32. In Almona[1] Robb J found that even though receivers appointed to a corporation were agents of the corporation, the receivers were not solely the agents of the corporation, nor were they the agents of the corporation for all purposes (at [726]). His Honour found that the receivers did not perform any duties in respect of which they obtained knowledge of the terms of the relevant contract and, to the extent that they received knowledge of the terms of the relevant contract, they did so for their information only (at [729]).

    1. Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868

33. In Bell Group [2] Justice Owen considered at length the agency relationship between an agent who is granted actual or ostensible authority by another to accept information on its behalf (at [6169]-[6176]) and also between solicitors and their clients (at [6177]-[6185]), before considering the specific issue of attributing knowledge of agents to principals. His Honour affirmed the general principle that an agent's knowledge can be imputed to the principal, but noted that “a principal will only be fixed with knowledge held by the agent if the agent acquires knowledge of something material to the transaction for which he is responsible whilst acting in the course of, and within the scope of, his authority. Further, the circumstances must be such that there is a duty on the agent to communicate that information to the principal” (at [6187]). His Honour said a court must relevantly determine three things: “First, the precise parameters or scope of the agent's authority, both substantively and temporally. Secondly, whether the knowledge in issue was obtained in the course of that authority. Thirdly, whether the knowledge is relevant to the authority” (at [6188]).

    2. Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 225 FLR 1; [2008] WASC 239.

34. Owen J said further at [6189]:

“Where an agent has actual or apparent authority to receive formal notification from a third party, notification to the agent within the scope of that actual or apparent authority will effectively bind the principal regardless of whether the principal actually receives the information: Bowstead & Reynolds on Agency, [8-204]; El Ajou (703) (Hoffman LJ). The situation is different where the third party knows that the information will not be passed on to the principal.”

35. His Honour then considered exceptions to this general rule of imputation and found at [6193]-[6194]:

“The banks contend that the plaintiffs are seeking to impute not only facts held by the banks' agents but conclusions, beliefs and suspicions arising in the minds of the agents from those facts. They say that generally only raw facts can be imputed…..

….  Agents are often engaged for their particular abilities and experience to act for the principal in matters in which the principal has a lesser ability. In such a situation, it may well be within the scope of the agent's authority to form and communicate any opinions, beliefs or suspicions arising from facts which may come into the agent's possession. This would depend on the nature of the agency arrangement. But it seems to me that where the principal is expressly or impliedly reliant on the judgment and skill of the agent, the principal can be fixed with the expert comprehension of the agent regardless of whether the agent actually expressed those views. For example, if a solicitor, acting in the course of his retainer, forms a view that a certain act is unlawful or has a particular legal consequence, that knowledge, opinion or belief could be imputed to the client because it is the precise material that the solicitor is duty-bound to communicate to the client.”

36. In Beach[3] Von Doussa J similarly found that “if a company is to be imputed with the conduct and knowledge of a director, the director must be acting within the scope of his or her authority, that is, within the scope of his or her actual or apparent authority”.

    3. Beach Petroleum NL v Johnson (1993) 43 FCR 1; [1993] FCA 283 at [22.34].

37. Justice Gleeson provides a helpful analysis of actual knowledge, imputed notice and constructive notice in In the matter of NL Mercantile Group Pty Ltd [2018] NSWSC 1337 at [77]-[81], viz:

As to actual knowledge, the existence of knowledge is a question of fact, the proof of which, in the absence of an admission by a party, is always a matter of inference …

Knowledge is to be distinguished from “notice” and has a positive connotation of awareness. In inferring knowledge, it is necessary to consider first, the opportunities for knowledge and lack of obstacles to the particular person acquiring the relevant knowledge and second, the credibility of any denial by the person of such knowledge ….

Imputed notice is notice which an agent either received or should have received had he made proper enquiries, which is imputed to the principal whether the notice is communicated by the agent to his principal or not…

Under the doctrine of constructive notice a person is deemed to have constructive notice of all matters of which the person would have received notice if the person had made the investigations usually made in similar transactions and of which the person would have received notice had the person investigated a relevant fact which had come to that person’s notice and into which a reasonable person ought to have enquired.

[citations omitted].

38. In Waldron v Joondalup Hospital Pty Ltd (2018) 98 NSWLR 552; [2018] NSWCA 182 (“Waldron”) the Court of Appeal considered the phrase “if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues ... was not aware of the physical cause of the death or injury”. In that matter Ms Waldron engaged solicitors in relation to a possible negligence claim. The solicitors in turn commissioned an expert medical report. The solicitors advised Ms Waldron that the expert’s report indicated that more information/advice was required before a claim could be made. Ms Waldron later engaged new solicitors who reviewed the same expert’s report and advised that a claim could commence without further investigation and so proceedings were launched soon thereafter. Joondalup Hospital argued that the first solicitors’ knowledge of the content of the expert report could be imputed to Ms Waldron. That is, the hospital argued that the knowledge that the first solicitor/agent had or should have had, should be imputed to Ms Waldron (at [78]). The Court of Appeal applied the subjective construction from Deming and Harris (at [85]) to conclude that the phrase “was not aware” is directed to actual awareness of Ms Waldron and rejected the proposition that Ms Waldron’s first solicitor’s awareness could be imputed to her (at [77]-[91]).

38. On one view of the Court of Appeal’s decision in Waldron there is no scope at all for the respondent to rely upon, or more precisely for the Tribunal to consider, the awareness of an applicant’s agent for the purposes of s 53 of the PIPP Act. If this is right then the approach in DEC v EM, of assessing the awareness of the agent rather than the applicant, can no longer stand.

39. I will nonetheless proceed on the basis that there is at least a theoretical possibility that an agency arrangement with specific characteristics could result in the subjective awareness of the agent being treated as the subjective awareness of the principal. As will become apparent, adopting this more cautious approach does not affect the outcome of the proceedings.

40. For present purposes the relevant principles from the above authorities are:

1. the phrase “first became aware of the conduct the subject of the application” in s 53(3)(d) of the PIPP Act refers to the actual awareness of the relevant person (per DEC v EM);

2. applying the “subjective construction” of Deming, Harris and Waldron, the tribunal is to look at actual awareness rather than imputed or constructive awareness;

3. an agent’s knowledge or awareness can be attributed to a principal but (1) only knowledge that is material to the transaction or purpose for which the agent is acting, and (2) only in relation to knowledge obtained within the scope of the agent’s authority, and (3) only where there is a duty on the agent to communicate that information to the principal (per Bell Group and Almona);

4. where such an agency might exist the Tribunal must relevantly determine (1) the precise parameters or scope of the agent's authority, both substantively and temporally; (2) whether the knowledge in issue was obtained in the course of that authority; and (3) whether the knowledge is relevant to the authority (per Bell Group);

5. the awareness of the relevant person, for the purposes of s 53 of the PIPP Act, could include the awareness of an agent if the agent was properly authorised to act for the applicant at the relevant stages of the process (per DEC v EM);

6. where an agent has actual or apparent authority to receive formal notification from a third party, notification to the agent within the scope of that actual or apparent authority will effectively bind the principal regardless of whether the principal actually receives the information (per Bell Group); and

7. where the principal is expressly or impliedly reliant on the judgment and skill of the agent, the principal can be fixed with the expert comprehension of the agent even if the agent did not express those views to the client (per Bell Group).

42. The materials provided by the parties indicate that in 2018 DTN engaged Carroll & O’Dea solely for the purpose of advising upon and acting for DTN in relation to a possible workers compensation claim. The engagement letter referred to in paragraph 8 above indicates Carroll & O’Dea compared DTN’s later assessment of injury to his previous assessment, which logically required Carroll & O’Dea to obtain information about DTN’s earlier assessment.

43. In March 2018 DTN signed an authorisation in the following terms:

“AUTHORITY TO RELEASE MEDICAL INFORMATION

I, [DTN], … hereby authorise and direct you to provide my solicitors … with any medical or other information they may require.

44. In July 2018 Carroll & O’Dea made a request under the PIPP Act for “a copy of our client’s personnel/personal file, service register and SAPP records”. The respondent produced DTN’s Medical File and Injury Management File, which included the 2012 Report.

45. DTN’s Medical File and Injury Management File have not been provided to the Tribunal however I accept that those files are at least superficially responsive to the request made. More importantly, an excerpt of the 2012 Report was provided to the Tribunal and I accept that the 2012 Report was relevant to the evaluation of DTN’s previous workers compensation assessment referred to in the solicitor engagement letter.

46. In determining the questions posed in Bell Group concerning the scope of the solicitor’s agency, I find that Carroll & O’Dea was not DTN’s agent for all purposes, but only DTN’s agent in 2018 in relation to a potential workers compensation claim. I find that knowledge of the 2012 Report, or at least knowledge of the existence of the 2012 Report, was obtained by Carroll & O’Dea in 2018 within the scope of their authority and I find that this knowledge was prima facie relevant to Carroll & O’Dea’s authority.

47. It is not reasonably open to find, however, any basis upon which Carroll & O’Dea owed a specific duty to communicate the contents of the 2012 Report to DTN in 2018. I accept that DTN engaged Carroll & O’Dea for the firm’s particular abilities and legal experience. I cannot find, however that their abilities and experience relevantly extend to possible contraventions of privacy principles under the PIPP Act. I do not know if Carroll & O'Dea has expertise in privacy matters but even if they do, they were not engaged by DTN for those particular abilities and expertise.

48. No materials provided to the Tribunal suggest that Carroll & O’Dea were engaged to consider any claims or matters under the PIPP Act and the respondent does not make any submission that they were so engaged. The respondent does submit that since 2011 DTN has been aware of his appeal rights under the PIPP Act, but there is no indication that, even if DTN was still aware of his appeal rights in 2018, that he engaged Carroll & O’Dea in 2018 in relation to any such rights.

49. Section 53 of the PIPP Act permits a person to make an application in relation to “conduct”. Conduct is defined in s 52. The time limit in s 53(3) refers to awareness of the conduct the subject of the application.

50. Carroll & O'Dea was not DTN’s agent in 2018 in relation to the conduct that was the subject of DTN’s application in 2019.

51. For these reasons I find, for the purposes of s 53 of the PIPP Act, that DTN first became aware of the conduct the subject of the application in April 2019, notwithstanding that the materials in question were provided to his solicitors in 2018.

52. Even if I am wrong about this, the respondent’s proposition fails at the second hurdle in s 53(3)(d).

53. Apart from being aware of the conduct, the relevant person must be aware of the legal significance of the conduct (per Deming, Harris and DEC v EM). If DTN’s solicitor/agent, rather than DTN, was the relevant person in 2018, there is no basis to find that the agent was aware of the legal significance of the 2012 Report under the PIPP Act.

54. It is one thing for Carroll & O’Dea to have received the report, it is another for them to have been aware of its legal significance under the PIPP Act.

55. DTN’s application under s 53 is founded upon the 2012 Report containing information that DTN claims is false. The legal significance of the 2012 Report is its possible connection to the respondent’s obligations under privacy laws.

56. As noted above, Carroll & O’Dea do not appear to have been asked by DTN to consider any alleged breaches of privacy laws, nor do they appear to have been armed with enough information to separately recognise the legal significance of the allegedly false information within the 2012 Report.

57. The respondent does not submit that in 2018, or at all, Carroll & O’Dea were aware of the legal significance of the 2012 Report. The respondent instead submits that DTN “would have had a general awareness of whether the Conduct would have contravened, or possibly contravened, a privacy principle”.

58. The weakness of this submission is readily apparent.

59. On the respondent’s case neither the agent nor the principal had any awareness of the legal significance of the 2012 Report in 2018. The respondent instead relies upon the combined effect of the solicitor’s awareness of the existence of the 2012 Report, the solicitor’s knowledge being imputed to DTN by way of the solicitor’s agency, and the presumption that DTN would have appreciated the legal significance of the 2012 Report if he had been aware of it in 2018.

60. Taken at its highest the respondent’s argument is akin to the argument put by Joondalup Hospital but rejected by the Court of Appeal in Waldron. The hospital argued that Ms Waldron’s first solicitors had enough information from the expert’s report to conclude that there was a basis to commence proceedings. The hospital argued that even though the first solicitors did not realise such a basis existed and did not advise Ms Waldron that such a basis existed, Ms Waldron should nonetheless be imputed to have been relevantly “aware” of the cause of action. The Court of Appeal rejected the proposition that it was sufficient for an agent to be aware of some or all the primary facts without also having an awareness of the legal consequences of those primary facts (at [82] and [112]).

61. Even if Carroll & O’Dea were DTN’s properly authorised agents for the purposes of the PIPP Act in 2018, they were not aware of the relevant legal significance of the 2012 Report within the meaning of s 53 of the PIPP Act.

62. In determining the threshold issue allocated to me on the papers, I find that DTN first became aware of the alleged privacy breach in April 2019. As such, DTN’s application for internal review was made within the time limit in s 53(3)(d) of the PIPP Act.

63. The respondent’s alternate submission is “if the Tribunal finds the internal review application is validly made, the respondent submits the Tribunal should make ancillary orders under s 55(2)(g) of the PIPP Act that the respondent agency make an internal review decision under section 53 of the PIPP Act”.

64. The applicant’s final request in his Submission in Reply was “I ask the Tribunal to find my application for Internal Review validly made out and in need of respondent actioning”.

65. It seems from these submissions that the parties agree about what is to happen next.

66. According I make the following order:

1. The respondent must deal with DTN’s application under s 53 of the PIPP Act made by letter dated 28 September 2019.

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Endnotes

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

08 October 2021 - Case name disambiguation

Decision last updated: 08 October 2021