EMQ v Cumberland Council

[2022] NSWCATAD 51

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EMQ v Cumberland Council [2022] NSWCATAD 51

Hearing dates:

On the papers after 27 January 2022

Date of orders:

16 February 2022

Decision date:

16 February 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

The agency’s General Application dated 29 October 2021 is to be set down for hearing.

Catchwords:

PROCEDURE – summons to produce documents – objections to production of particular documents

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1998

Cases Cited:

Decision Restricted [2021] NSWCATAP 288

EMQ v Cumberland City Council [2021] NSWCATAD 162

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

EMQ, applicant
Cumberland Council, respondent

Representation:

EMQ, self-represented
Colin McFadzean, General Counsel, for respondent

File Number(s):

2020/00355032

Publication restriction:

The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. The applicant is to be known by the pseudonym “EMQ”.

REASONS FOR DECISION

1. The substantive application before the Tribunal is an application by EMQ (the applicant) under section 55 of the Administrative Decisions Review Act 1997 for an administrative review under section 55(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) of alleged conduct by Cumberland Council (the agency) that was in contravention of information protection principles contained in Part 2, Division 1 of the PPIP Act following an internal review of that conduct by the agency. This application was made to the Tribunal on 9 December 2020.

2. The matter currently before the Tribunal concerns a Summons to produce documents the Tribunal issued on the agency on the application of the applicant on 25 March 2021. The Summons was subject to a number of objections by the agency, which were determined by the Tribunal, differently constituted, on 8 June 2021 following hearings conducted on 19 April 2021 and 3 May 2021. Some paragraphs of the schedule to the Summons were struck out: EMQ v Cumberland City Council [2021] NSWCATAD 162.

3. That first instance decision was the subject of an appeal to the Appeal Panel of the Tribunal: Decision Restricted [2021] NSWCATAP 288. The Appeal Panel allowed the appeal in a decision handed down on 15 October 2021, making the following orders:

1. The appeal be upheld so that the respondent comply with paragraphs 4, 4b, 5a, 6a, 6b, 6c and 6d of the Summons issued by the appellant addressed to the Respondent.

2. The documents referred to within the paragraphs set out in Order (1) be produced to the Registry within 14 days of the date of these orders, unless any application is made by the respondent within that period that such documents, or some of them, may be exempt from production.

   4. On 29 October 2021 the agency made a General Application which applies for orders that it is exempt from producing 10 documents within the scope of Order 1 of the Orders of the Appeal Panel. It is this application that is before the Tribunal for determination (agency’s General Application).

   5. The agency’s General Application was listed before the Tribunal, differently constituted, for directions on 21 December 2021. Orders were made for the filing and exchange of submissions by the parties up to 27 January 2022. The Tribunal also directed by direction 6:

3. The parties’ submissions are to include any submission as to whether a hearing is required. Noting the parties’ agreement stated today, and subject to consideration of any such submissions received, the Tribunal proposes to dispense with a hearing and determine the Council’s application on the basis of the documents before the Tribunal as at 27 January 2022.

   6. Direction 6 of the Orders made by the Tribunal on 21 December 2021 invokes the discretion conferred on the Tribunal by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), which must be read together with the other elements of that s 50 which relevantly provides:

4. When hearings are required

5. A hearing is required for proceedings in the Tribunal except –

   …

   (c)    if the Tribunal makes an order under this section dispensing with a hearing, …

6. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

7. The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first –

   (a)   afforded the parties an opportunity to make submissions about the proposed order, and

   (b)   taken any such submissions into account.

8. The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

9. This section does not prevent the Tribunal from holding a hearing even if it is not required.

   7. The discretion conferred by s 50(2) must be exercised having regard to the ‘guiding principle’ to be applied in all aspects of the Tribunal’s practice and procedure, which is the facilitation of the ‘just, quick and cheap’ resolution of the real issues in a proceeding: s 36(1) of the NCAT Act. Its’ exercise must also have regard to the procedure of the Tribunal generally, prescribed by s 38 of the NCAT Act, and specifically to the Tribunal’s obligation to take such measures as are reasonably practicable to ensure that parties have a reasonable opportunity to be heard in the proceedings or have their submissions considered: s 38(5)(c) of the Civil and Administrative Tribunal Act 2013.

   8. It will be observed from the structure of s 50 that hearings of applications made to the Tribunal are generally required, unless the application falls into one of the categories of exception to this general principle. The ss 50(1)(a)/ 50(2) exception requires the Tribunal to be satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

   9. That state of satisfaction (or dissatisfaction) (the satisfaction test) cannot be reached without first affording the parties the opportunity to make submissions on the question of whether a hearing can be dispensed with, and after considering those directions: s 50(3). However, it is to be noted that s 50(3) is directed towards ensuring that any decision to dispense with a hearing is made in a way that is procedurally fair to the parties. It does not operate so as to give a party a vote or veto on the exercise of the discretion. The ultimate test is the ‘satisfaction test’ contained in s 50(2).

   10. In its submissions, the agency has contended that its General Application can now be determined on the papers without a hearing. However, the applicant has contended otherwise, submitting that there ought to be a hearing of the application. It is clear that he wishes to challenge some of the evidence upon which the agency relies for its objections, presumably by way of questions directed to the agency’s representative.

   11. The applicant’s objection to the matter being dealt with on the papers is not decisive of the issue as I have explained above. There must satisfactory grounds underlying such an objection. However, his wish to ask the agency’s representative questions is a compelling ground. Of course, it may be that any questions asked by the applicant at a hearing are objectionable, but it is not possible for that to be known now.

   12. Quite apart from the positions taken by the parties it is apparent to me from a close review of the relevant documents, which include the Summons, the Appeal Panel decision, the agency’s General Application, and the submissions of the parties that there is a degree of complexity in the matter which means that it cannot adequately be dealt with without a hearing. This complexity relates to the grounds that the agency now relies upon to resist the production of some documents called for by the Summons, and the implications, if any, of related proceedings between the parties under the Government Information (Public Access) Act 2009 which have been determined since the agency’s General Application was made.

Order

13. For the foregoing reasons I cannot be satisfied that the agency’s General Application can be determined without a hearing:

1. The agency’s General Application dated 29 October 2021 is to be set down for hearing

**********

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

Decision last updated: 16 February 2022