ECR v Public Guardian

[2021] NSWCATAD 141

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

ECR v Public Guardian [2021] NSWCATAD 141

Hearing dates:

On the papers

Date of orders:

28 May 2021

Decision date:

28 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The un-redacted and un-highlighted documents contained in the Confidential Bundle filed by the
respondent on 27 October 2020, with the exception of document 16, are not to be lodged with the
Tribunal pursuant to s59(2)(b) of the Administrative Decisions Review Act 1997.

Catchwords:

PRIVACY – confidential documents - s. 59(2) of the Administrative Decisions Review Act 1997 (NSW)

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Administrative Decisions Tribunal Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Court Suppression and Non-Publication Orders Act 2010

Government Information (Public Access) Act 2009

Guardianship Act 1997 (NSW)

Privacy and Personal Information Protection Act 1998

Cases Cited:

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Bellamy v Bellamy [2018] NSWSC 534

Misrachi v Public Guardian [2019] NSWCA 67, at [13]

Miss BCG (2015) NSWCATGD 61

SF v Shoalhaven City Council (2013) NSWADT 94

SL v University of Sydney [2011] NSWADT 65

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Tilly v Children’s Guardian [2017] NSWCA 174

Category:

Procedural rulings

Parties:

ECR (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00239762

Publication restriction:

An order pursuant to s64(1)(a) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the name of (ECR).

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. On 14 August 2020, the Applicant filed an application seeking a review of conduct of the Respondent. The Applicant alleges that the Respondent contravened several of the Information Protection Principles (IPPs) contained within Division.1 of Pt.2 of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”).

2. When such an application is made, the Administrator (in this case the NSW Trustee and Guardian) (“the NSW TG”) must lodge material documents with the Tribunal; Administrative Decisions Act 1997 (NSW), s58(1). The documents, generically referred to as s58 documents, include any statement of reasons for the decision and “a copy of every document or part of a document that is in the possession, or under control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal”; s58(1)(b).

3. The Respondent filed and served a bundle of documents as required by s58 of the ADR Act, but objected to lodging certain documents because they contained records of communication by email and telephone between the Respondent and various service providers and family members that express an opinion about the Applicant or the Respondent with that person’s knowledge or view about any event involving the Applicant.

4. These reasons for decision relate to an application filed by the Respondent on 28 October 2020, seeking an order pursuant to s59(2)(b) of the ADR Act, to exclude a bundle of confidential documents from being included in the s. 58 bundle.

5. In that regard the Respondent submits that, if an application were made, it would be appropriate for the Tribunal to make an order pursuant to s64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”) in respect of the confidential documents. As such, the Respondent submits that s59(2)(b) of the ADR Act is enlivened.

6. In support of this preliminary application the Respondent filed a statement of Ms Karola Csanyi on behalf of the Public Guardian dated 27 October 2020.

The Hearing

7. By consent, the Tribunal on 29 September 2020 ordered pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that this interlocutory matter be determined on the papers.

The documents in dispute

8. The Respondent has filed a confidential bundle of documents which include, an amended bundle relating to documents in categories 11.2 and 11.3 of the Applicants statement. It also includes correspondence passing between the Respondent and providers of domestic services in relation to Applicant’s mother and the full unredacted statement of Ms Csanyi (‘the Confidential Bundle’).

9. I have read and considered the statement of the Applicant concerning this interlocutory application filed on 25 November 2020. The Applicant partly consents to the interlocutory application. These reasons for decision deal with the documents which remain in dispute.

Relevant Statutory Provisions

10. I have set out below the relevant statutory provisions.

11. Section 59 provides that:

1. Objections to lodgement

2. An administrator may apply to the Tribunal for the expiry of the period referred to in section 58(1) for an order that the administrator not be required to lodge a copy of a document under section 58.

3. On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:

   (a) it is satisfied that section 67 (privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as to not require the disclosure of the document, or

   (b) it considers that, if an application were made under section 64 (the Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.”

   12. When considering whether to make an order under s59(2)(b), that the administrator not be required to lodge certain s58 documents, the Tribunal must ask itself the following question: if an application were made under s64 of the NCAT Act, would it ‘be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document’.

   13. Section 64 of the NCAT Act provides that:

4. Tribunal may restrict disclosures concerning proceedings

5. If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders -

   (a)   an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

   (b)   an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

   (c)   an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

   (d)   an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.”

   14. The Tribunal, therefore, before making an order under s59(2) of the ADR Act, must be satisfied that it is desirable to do so by reason of the confidential nature of the evidence of the document or for any other reason.

   15. Ordinarily, the Tribunal is bound by principles of procedural fairness or natural justice. It ‘may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice’ (the NCAT Act, s38(2)). An express exception to this is found at s64(1)(d) of the NCAT Act. The Tribunal is permitted pursuant to that section to make an order that evidence be withheld from a party if the Tribunal considers this to be ‘desirable’. The word ‘desirable’ should be interpreted with regard to the most basic common law precept of open justice (see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s64(1) of the NCAT Act, being s75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)).

   16. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s64(1)(d):

“Section 64(1)(d) is a provision which applies generally to the proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.”

17. The Court of Appeal has noted the ‘sharp contrast’ between s64, which permits an order preserving confidentiality of documents to be made where the Tribunal considers it to be ‘desirable’, and the ‘relatively onerous’ regime for suppression orders established by the Court Suppression and Non-Publication Orders Act 2010. See, Misrachi v Public Guardian [2019] NSWCA 67, at [13]; DRJ v Commissioner of Victims Rights [2020] NSWCA 136 (“DRJ”), at [23]. In particular, as observed by Leeming JA in DRJ at [24]:

“[i]t is to be firmly borne in mind that an application for merits review in a State Tribunal is quite different from commencing civil proceedings in the Supreme Court. When the applicants commence proceedings in the Supreme Court, the principle of open justice was engaged, as was noted in Tilly v Children’s Guardian [2017] NSWCA 174 at [46]. Open hearings are a hallmark of curial determination of proceedings.”

His Honour went on to say at [27]:

“The important role of public and professional scrutiny of curial proceedings explains the significance between the powers in section 64 of the Civil and Administrative Act 2013 and the Court Suppression and Non-Publication Orders Act.”

18. In Dezfouli at [81], the Appeal Panel set out the following considerations of relevance in a case determining whether an order pursuant to the equivalent of s64 should be made as follows:

“(a)   the presumption if favour of open justice;

(b)   the need for an applicant for a suppression order to establish good grounds for making the order;

(c)   the comparative breadth of the criterion of ‘desirability’;

(d)   the important differences between the types of suppression order that may be made - between (for instance) an order as in this case prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party;

(e)   the undoubted breadth of the range of purposes that may be served (‘any other reason’);

(f)   the possibility that the purposes to be served may be a mixture of private and public interest; and

(g)   the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.”

19. Considerations (f) and (g) in this application are not relevant. The nature of the order sought (consideration (d)), is relevant and weighs in favour of strong reasons for making an order being required (consideration (b)). However, consideration (e) clearly demonstrates that s64 confers a discretion on the Tribunal to make a non-disclosure order for a broad range of reasons.

20. In our view the most relevant considerations, as mentioned in Dezfouli, are (a), the open justice principle, and consideration (b), the need to establish good grounds, or good reason, for making the order.

The Principle of Open Justice

21. The High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 98 - 100, confirmed the proposition that by putting the substance, rather than precise details, of allegations to a person is a procedurally fair manner in which to approach information provided on a confidential basis where there is a public interest in preserving a flow of information to an agency.

22. I have reviewed the Confidential Bundle which contains the documents on which the Respondent seeks an order pursuant to s59 of the ADR Act (and if an application was made under s64 of the NCAT Act). I am satisfied that the Applicant, and open justice, is adequately safeguarded by the fact that he has been informed of the substance of the information held by the Respondent in respect of him. I find that by the Respondent not lodging the Confidential Bundle will not deprive the Applicant of the opportunity to put his case before the Tribunal. I find that pages 7 to 8, 12, 16, 47 and 50 of the s58 bundle demonstrate that the Respondent has informed the Applicant of the substance of the information contained in the Confidential Bundle.

23. I am also not satisfied that the Tribunal will ultimately be unable to assess adequately the conduct of the Respondent without the Confidential Bundle being produced in the form of s58 documents. The Respondent will still be required to address any issues concerning alleged conduct vis-à-vis evidence and submissions referring to such conduct without disclosing the contents of the Confidential Bundle.

24. I am satisfied that the presumption in favour of open justice can be maintained by excluding those documents contained in the Confidential Bundle for these reasons.

Grounds for Making the Order

25. First, whilst the Tribunal in determining an administrative review application pursuant to the PPIP Act, is not exercising the functions under the Guardianship Act 1997 (NSW) (“the Guardianship Act”), in my view a similar approach should be taken. The Tribunal should be guided by the guiding s4 principles in the Guardianship Act.

26. Section 4 of the Guardianship Act sets out the guiding principles to be considered by a guardian when exercising the functions under that Act. In Miss BCG (2015) NSWCATGD 61, at [24], when exercising a power under s64(1)(d) to keep certain documents withheld from the person subject to the guardianship orders, ‘the Tribunal saw itself as to be guided by the principles in s.4 of the Guardianship Act 1987, including Miss BCG’s interests being given paramount consideration’.

27. I find that the release of the Confidential Bundle have the very likely potential to affect the Respondent’s ability to observe those principles in carrying out its function as the guardian for the applicant’s mother. Two of the s4 principles, being s4(a), the applicant’s mother’s interests are to be given paramount consideration, and s4(e), being ‘the importance of preserving the family relationships’, are apposite to this application. There is a high degree of conflict within the Applicant’s family as is evidenced in the s58 bundle of documents, the Confidential Bundle and the statement of Ms Csanyi. I am satisfied that the release of the Confidential Bundle to the Applicant would not be in his mother’s best interests and it would be further detrimental to the preservation of, already damaged, family relationships. All of which will affect the ongoing ability for the Public Guardian to carry out its role as the guardian.

28. Second, I find that it would be desirable to make an order under s64(1)(d) such that the Confidential Bundle, absent such an order, is information which if disclosed would likely be subject to an overriding public interest against disclosure if an application were made pursuant to the Government Information (Public Access) Act 2009 (“the GIPA Act”). In this regard the operation of s20(5) of the PPIP Act is relevant and provides:

“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.”

29. The application of s20(5) of the PPIP Act is such that the agency is not required to disclose government information which is subject to an ‘overriding public interest against disclosure’ within the meaning of those words in the GIPA Act. (See SL v University of Sydney [2011] NSWADT 65; SF v Shoalhaven City Council (2013) NSWADT 94, where Judicial Member Montgomery held, at [174], that ‘[a]n application made under the PPIPA should not yield a different outcome to an application made under the GIPA Act where the facts and circumstances are not materially different’.)

30. Generally, s5 of the GIPA Act provides a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure for the purposes of the GIPA 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.

31. I am satisfied that the purpose and operation of s20(5) of the PPIP Act, in retaining the relevance of an overriding public interest against disclosure for the purposes of that Act, would be frustrated if a person could obtain access to the same information simply by making a privacy complaint to the Tribunal.

32. The table to s14 of the GIPA Act lists public interest considerations against disclosure that are permitted to be weighed against the public interest in favour of disclosure of government information.

33. For similar reasons as above, I am satisfied that clause 1(f) of the table to s14 of the GIPA Act is apposite. Disclosure of the information contained in the Confidential Bundle could reasonably be expected to prejudice the effective exercise by the Respondent of the Respondent’s functions pursuant to the Guardianship Act, namely, s4(a) and s4(e).

34. The statement of Ms Csanyi discloses that there is an Apprehended Domestic Violence Order (‘ADVO’) in place to protect the Applicant’s mother against actions of the Applicant himself. Whilst the ADVO is marked provisional, there is no evidence before me that it was not made on a final basis for 2 years from 8 October 2020, being the first listing date. In my view clause 2(d) of the table to s14 of the GIPA Act is also relevant. Disclosure of information contained in the Confidential Bundle may be expected to endanger, or prejudice the protection, life, health and safety of the Applicant’s mother and those associated with her care. I accept the evidence of Ms Csanyi that family members of the Applicant are in fear of him. I reject the evidence of the Applicant: ‘I assert the reasons given by the Respondent raising concerns that if such information was disclosed would further sever our family relationships or leave my mother open to risk of harm is totally misconceived and lacking in substance as it is evident in the course of events and correspondence between myself and the Respondent throughout 2019-2020.’ Without determining fault of any party, this evidence is totally contradictory to amongst other things, the ADVO, and the evidence of Ms Csanyi in terms of the Public Guardian being able to carry out her functions as the guardian.

35. Similarly, clauses 3(a) and (b) to the table of s14 of the GIPA Act are apposite. In that regard the Confidential Bundle of information could reasonably be expected to reveal individuals’ personal information and contravene a principle under the PPIP Act because a number of the documents in that bundle record opinions held or things known by various persons. For similar reasons in terms of clause 1(f) to clause 3(f) is also relevant.

29. When weighing the public interest considerations against disclosure with the public interest in favour of disclosure, I find that the balance weighs in favour of non-disclosure of the information. The information contained in the Confidential Bundle outweighs the public interest considerations in favour of disclosure.

30. I therefore find that if an application were made, it would be appropriate for the Tribunal to make an order pursuant to s64(1)(d) of the NCAT Act in respect of the Confidential Bundle.

31. It therefore follows that I am satisfied that an order should be made pursuant to s59(2)(b) of the ADR Act such that the Respondent not be required to lodge the Confidential Bundle with the Tribunal under s58 of that Act.

Orders

39. The un-redacted and un-highlighted documents contained in the Confidential Bundle filed by the
    respondent on 27 October 2020, with the exception of document 16, are not to be lodged with the
    Tribunal pursuant to s59(2)(b) of the Administrative Decisions Review Act 1997.

**********

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

16 June 2021 - Amended Respondent Name from Public Guardian to NSW Trustee and Guardian

Amended Orders on cover page and end of the decision.

Decision last updated: 16 June 2021