FTD v NSW Ambulance - [2024] NSWCATAD 283

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FTD v NSW Ambulance [2024] NSWCATAD 283
Hearing dates: 16 August 2024 & 19 August 2024
Date of orders: 2 October 2024
Decision date: 02 October 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:
(1) The respondent’s reviewable decision of is affirmed pursuant to s 63(3)(a) of the Administrative Decisions Review Act 1997.
(2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal decides to take no further action.

Catchwords:
ADMINISTRATIVE LAW – PRIVACY – personal information – solicitation - collection – lawful purpose – disclosure – disclosure within an agency – confidential information – no disclosure

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Ambulance Services Act 1990 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Privacy Act 1988 (Cth)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
AFC v Sydney Children's Hospital Speciality Network [2012] NSWADT 189
AFP v Hunter New England Local Health District [2012] NSWADT 141
AFU v Sydney Local Health District [2012] NSWADT 197
AIN v Medical Council of New South Wales [2017] NSWCATAP 23
Ace v State of NSW (TAFE Commission and Det) (No 3) [2011] NSWADT 154
BFP v NSW Ambulance Service [2015] NSWCATAD 39
BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156
BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270
CWS v NSW Department of Education [2017] NSWCATAD 287
CYL v YZA [2017] NSWCATAP 105
Camilleri v Commissioner of Police (NSW) [2102] NSWADT 5
Carney v Commissioner of Police, NSW Police Force [2023] NSWCATAD 265
Collins v Department of Fair Trading [2019] NSWCATAP 199
Commissioner of Police v Ritson [2023] NSWCA 300
Coogee Bay Village v Profilio (RLD) [2011] NSWADTAP 67
DHZ v Children's Guardian [2019] NSWCATAD 13
DVT v Commissioner of Police [2021] NSWCATAD 108
Department of Education and Training v GA (No 3) [2004] NSWADTAP 50
EEH v Insurance and Care NSW [2022] NSWCATAD 82
EEH v NSW Self Insurance Corporation [2022] NSWCATAD 361
EJE v Commissioner for Fair Trading [2022] NSWCATAD 33
EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62
JD v Department of Health (No 2) [2004] NSWADT 227
KP v Narrandera Shire Council [2011] NSWADTAP 15
KT v Sydney South West Area Health Services [2010] NSWADT 94
LN v Sydney Local Health District (GD) [2012] NSWADTAP 9
LN v Sydney South West Area Health Service [2011] NSWADT 44
MJ v Department of Education and Communities [2014] NSWCATAD 12
MT v Director General, NSW Department of Education & Training [2004] NSWADT 194
NZ v Department of Housing [2005] NSWADT 58
Nasr v State of New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101
Norkin v University of New England [2023] NSWCA 194
OD v Department of Education and Training (GD) [2005] NSWADTAP 74
Robinson v Commissioner of Police [2014] NSWCATAP 73
Saggers v Environment Protection Authority [2013] NSWADT 109
Snow v Chief Commissioner of State Revenue (No 1) [2005] NSWADT 244
Walker v Roads and Maritime Services [2019] NSWCATAD 177
Webb v Secretary, Department of Communities and Justice [2023] NSWCATAD 168
Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:
Macquarie Dictionary
Oxford Dictionary

Category: Principal judgment
Parties: FTD (Applicant)
NSW Ambulance (Respondent)
Representation: FTD’s Father (Agent for the Applicant)
Crown Solicitor (Respondent)

File Number(s): 2023/00451201 & 2024/00019769
Publication restriction: Pursuant to sections 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 the publication of broadcast of the names of the Applicant and evidence in the proceedings which identifies the Applicant is prohibited.

REASONS FOR DECISION

In these reasons the Applicant's name has been anonymised as "FTD" so as to preserve the privacy of their personal affairs.
The applicant seeks administrative review of various conduct of the respondent under the Privacy and Personal Information Protection Act 1998 (the PPIPA).

Background

2023 Proceedings

On 12 December 2023, the applicant filed an Application for Administrative Review with the Tribunal, which sought review of a decision made by the respondent on 14 November 2023, on the following grounds:

I am not satisfied with some of the findings (and reasons that support those findings) and action taken by NSW Ambulance from an internal review completed on 14 November 2023 in relation to the conduct of the NSW Ambulance that was the subject of my application for internal review under section 53. Those findings and actions include: 1. A finding that the internal review request was out of time; 2. Finding that failed to address conduct relating to a general complaint about actions performed and methodologies adopted by relevant NSWA staff in the performance of responding to a request for access to personal information made on 15 March 2023; 3. Finding that searches conducted were reasonable; 4. A finding that a complaint about conduct was not established in relation to assertions that wrong inferences were relied on by NSWA staff to form mistaken judgments on personal factors; 5. A finding that there have been no breaches of s 14 of the PPIP Act; 6. Recommendations that did not provide for the full release of unredacted emails identified in searches conducted; 7. Recommendations made for additional searches that offer no details of the timing and notification of outcomes to the applicant; 8. Various other reasons relating to the assessment of conduct and findings relating to the conduct and formulation of decisions made by NSWA staff; 9. Outcomes of the internal review are not consistent with a justified and proper application of the recommendations set out in section 53(7) of the PPIP Act; and 10. Other relevant grounds for which there is no remaining space in this application form to allow to be included.

2024 proceedings

On 17 January 2024, the applicant lodged a further application for administrative review, which indicated the following grounds:

I am dissatisfied with findings (and reasons for findings) made by NSW Ambulance from an internal review completed on 22 December 2023 in relation to the conduct of NSW Ambulance that was the subject of my application for internal review under section 53 and request for amendment of personal information under 15 of the Privacy and Personal Information Protection Act 1998 (the Act) lodged on 24 October 2023. The request for amendment of personal information was subsequently withdrawn by me on 13 November 2023. I am now seeking review of the conduct of NSWA that was the subject of my application for internal review which also includes items of specific conduct that I allege breached the Information Protection Principles (IPP’s) contained in the Act. In line with the numbering format used in my application for internal review, the conduct I wish to pursue for resolution under administrative review includes: A1 – conduct related to unauthorised/unlawful collection of my personal information. A2 – conduct related to awareness duties for collection of my personal information; A4 (A3?) – Conduct relating to the use of the personal information not fit for purpose; and A7 – Conduct related to unlawful disclosure of personal information to a person/body. I contend that recommendations of NSW of “no further action” in its internal review are grossly deficient under s 53(7) of the Act. I advocate to seek orders from the tribunal that are consistent with a justified application of the remedies set out in section 55(2) of the Act including an order for damages to compensation me for both financial loss and psychological or physical harm, because of the conduct of NSW Ambulance.

Procedural matters – both applications

On 12 February 2024, Senior Member French adjourned a case conference in this matter be adjourned to 28 February 2024, and ordered that the 2023 application be considered together with the applicant’s later application – 2024/19769. He stated that the following issues would be considered at the case conference:

1(a) whether this application should be heard together with case no. 2024/19769 (the related review);
(b) Whether a non-publication order should be made assigning the applicant a pseudonym in this and the related review;
(c) whether the applicant should be granted leave to be represented in this and the related review by an agent, (her Father)…

The Senior Member directed the applicant to file and serve any submissions in relation to those issues by 19 February 2024, and he directed the respondent to file and serve its submissions regarding those matters by 26 February 2024.
On 28 February 2024, Senior Member McAteer conducted a case conference at which (FTD’s) Father appeared as agent for the applicant and Ms S Kirk (Crown Solicitor’s Office) appeared for the respondent. He made a non-publication order under s 64(1)(a) of the Civil and Administrative Tribunal Act (2013) (NSW) (the NCAT Act), which anonymised her name to “FTD”. He also ordered that these proceedings be heard with the 2024 proceedings and that the matters were “Not consolidated but to be managed by the Member hearing the matters as they see fit. Evidence in one proceeding may also be sought to be tendered to the extent as evidence in another).
The Senior Member ordered the applicant to file and serve the evidence and material that she relied upon by 4 April 2024 and he ordered the respondent to file and serve its evidence and material relied upon by 3 May 2024. Thereafter, the applicant was ordered to file and serve a reply, if any, by 15 May 2024, as well as notice to the respondent for any witnesses required for cross-examination at hearing, and any summons sought to be issued are to be applied for by that date.
The Senior Member listed the matter for haring on 20 June 2024 on the issue of liability and he granted the applicant leave to be represented by an Agent – (her Father) – until further order of the Tribunal.
On 2 April 2024, Senior Member Hobbs made orders extending the timetable issued by Senior Member McAteer and she confirmed the hearing date for liability issues. The Senior Member was satisfied that it was appropriate to determine the request for extension in the absence of the pursuant to s 50(2) of the NCAT Act.
On 31 May 2024, Principal Member Simon ordered the respondent to file and serve its evidence and submissions in both proceedings by 29 May 2024 and she ordered the applicant to notify the respondent of any witnesses required for cross-examination at the hearing, and to apply for the issue of any summons, by 12 June 2024. She ordered the applicant to file and serve any material in reply by 18 June 2024 and she confirmed the hearing date. She also noted:

Note: The applicant’s objections to the extension of time are noted, however an extension of time has also been granted to the applicant. No practical injustice results from the extension of time.
If the applicant seeks an adjournment, she must make such application clearly identifying the reasons for the adjournment and seek the views of the other side.

The respondent applied to set aside summonses to give evidence that were issued to Mr Shaun Kelly and Miss Ashley Thorn at the request of the applicant. On 3 July 2024, Senior Member Rogers conducted a preliminary hearing of that application. The applicant’s agent and Ms Kirk appeared. The Senior Member ordered the applicant to file and serve any material in response to the application by 5 July 2024. She extended the return date for the summonses to 12 July 2024 and listed the interlocutory matters for hearing on 9 July 2024. She also ordered the applicant to file and serve any material in reply to the substantive application by 16 July 2024.
Senior Member Rogers made similar orders in the 2024 proceedings.
On 9 July 2024, the interlocutory application was heard by Senior Member Little. The applicant’s agent and Ms Kirk appeared. The Senior Member amended order 4 dated 2 July 2024 to refer to “25 July 2024” and reserved her decision in the interlocutory application.
On 9 July 2024, Senior Member Little issued reasons for decision and refused to set aside the summonses to give evidence that were issued to Miss Thorn and Mr Kelly. She listed the matter for directions on 23 July 2024, with the intention of setting a hearing date.
On 23 July 2024, Senior Member Little conducted the directions hearing, at which the applicant’s agent and Ms Kirk appeared. She ordered the applicant to file and serve all evidence in reply by 1 August 2024. She ordered the respondent to file and serve any application, submissions and evidence in respect of any application for Miss Thorn to appear at the hearing by way of AVL and she ordered the applicant to file and serve any submissions in reply to such an application by 2 August 2024. That application would then be determined on the papers. She listed the matter for hearing on 16 August 2024, for one day. She concluded:

6. Notes:
The respondent’s further application to put on additional evidence is denied. The proceedings have been on foot for some time with various extensions. Allowing this late request will require a new timetable to be set to allow the applicant to consider and respond which will cause further delay. Similarly, the applicant has been given a short extension to put on her evidence in reply, on the basis that she has only received certain documents recently however, the tribunal will approach any further extensions for reply evidence with caution given the need to bring these matters to final hearing.

On 29 July 2024, Principal Member Simon ordered that the matter be listed for hearing for an additional day on 19 August 2024.
On 5 August 2024, Senior Member Little refused the respondent’s application for Miss Thorn to appear by way of AVL, but noted that she would not be required to attend prior to 12 noon on 16 August 2024. She gave the following reasons:

Ms Thorn has been summoned to appear at the hearing of these matters. The Respondent has made application that Ms Thorn appear by AVL. As submitted by the Respondent, the application should be granted because (1) Ms Thorn lives in a regional area of NSW would need to drive 3.5 hours to attend the hearing at 10am meaning and that she would need to pay for accommodation (2) This would lead to an unfair situation as the Applicant is not compelled to pay Ms Thorn conduct money as Ms Thorn is a public servant and is expressly excluded from s 47 of the CAT Act that allows such payment; and (3) This would also affect the work roster of a paramedic station. In making these submissions the Respondent contends that Ms Thorn's evidence should take no longer than one hour. In this respect, it is inherent in the Respondent's submissions that the Respondent is of the view that Ms Thorn's evidence is limited and insignificant. The Respondent also contends examination is limited in ambit because of the alleged "restrictions" placed on it by paragraph [32] of the decision of 18 July 2024 (the Decision).
The Applicant resists the application for leave for Ms Thorn to appear by AVL and contends that Ms Thorn's evidence is a "key factor" who could be examined for "multiple hours”. The Applicant also contends that there are accommodation arrangements that could be made by Ms Thorn by which she would not incur any expenses. The Applicant also draws the Tribunal's attention to the voluminous documents that have been filed and served in proceedings and the likely difficulties that would arise if Ms Thorn was examined by trying to navigate those documents alone: Webb v Secretary, Department and Justice [2023] NSWCATAD 168 at [20] and [25].
I accept that the costs and adverse consequences that are experienced by a witness that has been summoned to appear are relevant to an application such as this. However, in weighing up the various considerations, I accept the submission made by the applicant that these proceedings require Ms Thorn to appear in person given the voluminous or documents and the inevitable difficulty of a witness trying to navigate that externally. However, in consideration the fact that Ms Thorn lives regionally and over 3 hours away, I give a marking such that she is not required prior to 12pm on the first day of hearing and her oral evidence will be given between 12pm and 4pm on that first day. That should be sufficient time to conduct r examination but if that is incorrect, the Tribunal has the power to allocate another day of hearing as it sees fit.
I reject the Respondent's contention that Ms Thorn's examination will take one hour. Even if Respondent was in a position to unilaterally determine the time for examination where it is not calling the witness, for the reasons in the Decision, Ms Thorn's evidence has obvious probative value for the reasons in the Decision and there is no reason to conclude that it will take an hour and only an hour. I also reject the Respondent's submission that the reasoning [32] or [33] of the Decision restricts the examination. The Decision does not place any novel or additional limitations on the examination of Ms Thorn other than what existed before the Decision and continues to exist after it. That is, evidence must be probative to be admissible and objections are determined by an application of principles of natural justice.

The hearing

The matter came before me for hearing commencing on 16 August 2024. The applicant’s agent appeared for and with her and Mr T Allchurch, of the Crown Solicitor’s office, appeared for the respondent.
At the outset I asked the parties to identify their evidence, and it became apparent that the applicant had not complied with the Tribunal’s orders. I spent an inordinate amount of time trying to ascertain what the applicant’s direct evidence was, but the applicant’s agent repeatedly advised to the Tribunal that the applicant had filed 10 bundles of documents, which were a “hybrid” of direct evidence and submissions.

Applicant’s evidence

Most of the morning session on 16 August 2024 was taken up with the Tribunal attempting to ascertain what the applicant’s case actually is and where her direct evidence in support of her case could be found in the extensive documents (estimated to be more than 1000 pages) that were filed in respect of each matter. This resulted in the following exchanges:

Tribunal: OK. Well, let's look at the evidence that's in the files. We'll deal with that and mark, anything that needs to be marked. And then I'll hear the openings. There has been a made for both matters to be heard together and for the evidence in one to be evidence in the other.
Allchurch: This might be where it is helpful to have referenced that Guide that I've prepared, to go through the documents and check that the Tribunal has them all.
Tribunal: OK, let's look at the applicant’s evidence first.
Allchurch: Yes, so, if we start with the first proceedings – 2023451201, there are 5 bundles marked A to E, each of which (the applicant’s agent) has indexed.
Tribunal: Does this contain the applicant’s evidence or is it just a bundle of documents?
Allchurch: Yes, it does seem to be of that nature and there is some duplication with the s 58 bundle, which I've noted.
Tribunal: OK, so where do I find the applicant’s evidence rather than bundles of documents?
Applicant’s agent: The applicant’s evidence is contained in 2 lots of bundles - A to E for the 2023 case and bundles A to E of the 2024 case.
Tribunal: Is there a Statement or an Affidavit from your client that sets out what her case is?
Applicant’s agent: That that was we, we coalesce things in the final submissions in the materials and replies. So we have 2 documents that are bound in red.
Tribunal: So what is it that your client is to cross-examined on if she hasn't provided any direct evidence.

Allchurch: I understand this the statements are in bundle E in each of the series. Is that correct?
Applicant’s agent: That's correct. Yes. Yeah, there are submissions in bundle B on both counts and what we've done is we've….
Tribunal: That submissions. That's not a statement of evidence.
Applicant’s agent: Well, then the statements in the evidence is in general we would say would be in bundles A to D.
Tribunal: OK, but the documents in support of your client’s allegations are presumably in those bundles of documents?
Applicant’s agent: She has statements. Yes.
Tribunal: Where do I find your client’s direct evidence regarding her case?
Applicant’s agent: Well, she's made submissions and bundle E for both cases.
Tribunal: A submission is not a statement, it's not a document that can generally be cross-examined on because it's not declared or affirmed.
Applicant’s agent: And we've provided in material and we've coalesced our submissions and our evidence into that.
Tribunal: I understand that they are the arguments and they are the arguments that refer to documentation. Where do I find a statutory declaration, a statement, or an affidavit from your client that tells me what her case is about, what her allegations are?
Applicant’s agent: They'd be in the bundles.
Tribunal: That would presumably have been the subject of a direction at a case conference, wouldn't it, about filing of evidence? Correct. So where is it?
Allchurch: I understand that the first document in bundle E is described in the index as statement by applicant in relation to request for access to personal information…
Tribunal: Is that the only evidence that she's going to be cross-examined on?
Allchurch: And well then the second one.
Tribunal: What I'm trying to find out the full extent of her evidence, so I can admit her evidence.
Allchurch: There is a second bundle E in the 2024 proceedings 2024/19769. How much of that is also a statement by the applicant? And then in reply to evidence filed by the respondent. The applicant has referred to other documents which are perhaps described as evidence in reply, but are also described as a submission. That is often the nature and proceedings of this kind, where an applicant is not legally represented, the documents are sometimes a mix of evidence and submissions.
Tribunal: I understand that, but just briefly looking at this “statement” in the 2023 matter., most of it appears to be submissions, not direct evidence, as it’s commenting on matters that have been raised, but it's not telling me what the case is.
Applicant’s agent: The case will be in our red submissions.
Tribunal: Those submissions are not evidence. Submissions are arguments based on evidence, but it's not evidence of the facts that are asserted.
Applicant’s agent: Well, what I can say to that is, the submissions are referenced into all our bundles A to E and our final submissions and materials in reply are referenced into bundles A to E.
Tribunal: I understand that you've filed bundles of documents. What I am trying to get my hands on is the direct evidence that the applicant relies on. And that was subject of an order that was made at the case conference by Senior Member McAteer in February. And was to be filed and served by 3rd April.
Applicant’s agent: And the applicant responded to that, there was an extension of that time from 3rd of Aril to 17th April, and applicant submitted their evidence in bundles A to E for each case.
Tribunal: OK, so in response to that order for your client to file the evidence that she relied on you have simply filed bundles of documents and submissions but no affidavit evidence and no statutory declaration… Nothing that sets out what she says her case is about.
Applicant’s agent: The best we could point you to would be to the statements in bundle E.
Tribunal: They are not declared as being true and correct and they comment on other documents.
Applicant’s agent: It's signed by the applicant.
Tribunal: Yes, it is signed by the applicant, but not as a statement. All it does is refer to documents in the bundle. It doesn't tell me what the alleged breaches are, or what the basis of the allegations of the alleged breaches are?
Applicant’s agent: You would find that in the documents that we filed with our material in reply. So when we responded to the…
Tribunal: I'm getting nowhere.
Applicant’s agent: When we responded to the…
Tribunal: I'm getting nowhere.
Allchurch: it's the applicant’ materials that they filed. I can't really assist.
Tribunal: I'm not asking you. I'm just asking where is the applicant’s primary evidence? And please don't say it's in 5 bundles of documents.
Applicant’s agent: The summaries of the applicant’s, evidence and all the references to her evidence are in the final submissions and materials in reply to the respondent’s submissions on liability, which were lodged with the Tribunal on 1st August.
Tribunal: These are submissions and not direct evidence of the facts alleged in them.
Applicant’s agent: But those documents that were lodged on 1st August are referenced directly into our bundles A to E.
Tribunal: If they refer to other documents, they are submissions, they are not primary evidence. So what is the primary evidence that your client wants this Tribunal to rely upon in determining her application? There is nothing from her directly that says this is what her case is, this is what they did, this is what I say they did wrong, this is how it impacted on me. There does not appear to be anything of that nature.
Applicant’s agent: It’s within those documents lodged on 1st August.
Tribunal: In submissions.
Applicant’s agent: Yes. Well, in in materials in reply and we were asked to provide materials in reply.
Tribunal: So you've made submissions and materials in reply, but there is no direct evidence.
Applicant’s agent: When you say direct evidence, we've tabled in our evidence.
Evidence of, for example, Mr. Kelly's notice of decision in respect of a s 14 request in respect of the second case, which is about the collection, use and disclosure, we've submitted file notes of documents that we believe should not have been used.
Tribunal: Where is the evidence in your client’s own words, that she signed and declared as being true and correct, that tells me as the Tribunal member what these two cases are actually about?
Applicant’s agent: The best I can do for that is that the submissions with the material in reply would provide that.
Tribunal: No, I'm sorry, that is that is not evidence. So, your client has not filed any evidence that she can lead in this Tribunal?
Applicant’s agent: Well, we've, we've…
Tribunal: This is this is not a venue where you can just go in a witness box and give oral evidence and expect the respondent to meet it.
Applicant’s agent: We've we've we've lodged our evidence in our bundles and we've...
Tribunal: But there is nothing from your client. No you're not understanding me, so I will try again to explain it to you. You have filed multiple bundles of documents. Their relevance does not become apparent unless there is primary evidence in the form of an Affidavit or a declared Statement that sets out what the applicant's case is.
Now all I can tell from reading the application is there are alleged breaches of the PPIPA, for want of a better word description. What primary evidence in a documentary form sets out in a nutshell what your client’s allegations are? And please don't say it's in the submissions, because submissions are not primary evidence.
Applicant’s agent: Well, you're asking me not to say that that's where we coalesce. Our arguments are referred into our evidence about why we believe the matters have been breached, so why s 14 has been breached, s 8, s 9.
Tribunal: So the applicant has made a conscious decision not to file any evidence on which she can be cross-examined.
Applicant’s agent: Well, we believe that we met that standard when we lodged our evidence on 17th April. That's what we're asking…
Tribunal: You've filed documents in support of an application…
Applicant’s agent: And we included in those documents within bundle A certain statements.
Tribunal: Well, can I take you to the first document in bundle A... I've only skip-read this today, but most of this documentation, most of these documents are merely an index to other documents in the bundle, and does not actually set out your client’s case. It does not tell me why she believes that there have been breaches of privacy.
Applicant’s agent: That document is in our…
Tribunal: I know what you're going to say.
Applicant’s agent: Yes, that that's where it is. That's all I can say is to say, our arguments in terms of what she believes were the breaches and the allegations are all summarised and contained…
Tribunal: In submissions.
Applicant’s agent: In in the documents that we lodged on 1st of August.
Tribunal: In submissions.
Applicant’s agent: In submissions. I guess it's a hybrid document. It's submissions and materials in reply. It's where we concede certain matters that the applicant has raised in her original claims and it's where she coalesces her allegations of the alleged breaches of ss 14, 8, 9, 10, 16 and 18 of the PPIPA. The first couple of pages of that document would summarize for you what our case is.
Tribunal: In the applicant’s final submissions and material.
Applicant’s agent: In a nutshell.
Tribunal: But it's not evidence from your client.
Applicant’s agent: But it references into the evidence.
Tribunal: There is no direct evidence from your client. You are just not listening to what I'm saying. Yes, you've filed a heap of documents. There is nothing here from your client that tells me in her own words why we're here, why we got to this point in time, what her case actually is. All it does is refer to documents.
Applicant’s agent: No, the applicant’s submission is signed by the applicant. It is her allegations of what the breaches are under the PPIPA and that document is signed by her and filed by me on behalf of her.
Tribunal: So you're telling me that this the applicant’s direct evidence is dated 1st August 2024?
Applicant’s agent: It references into her evidence.
Tribunal: I cannot admit submissions as evidence.

The Tribunal noted that the applicant was ordered to file and serve her evidence by the end of April 2024 and that the applicant had not done so. The following exchanges then occurred:

Applicant’s agent: We thought we were doing that when we lodged our bundles on 17th April and we had the respondent’s reply to those on 30th May.
Tribunal: It's not the respondent’s obligation to require the applicant to comply with directions of the Tribunal. It's their obligation to respond to the information and documents that have been filed by the applicant and to then present their case.
Applicant’s agent: We’re here today to hear the case.
Tribunal: Based on what? There is no direct evidence from your client that I can admit into evidence in her case. This is a documentary system. This is not a case where we come along and take oral evidence that is not already in statements…
The applicant has a practical onus and she has not filed any evidence on which she can rely in discharging that. How is this matter ready to proceed?
Applicant’s agent: Well, we've got to the end of this matter. We believe we've lodged all our evidence on 7th April.
Tribunal: So you're happy to proceed based on what you've filed?
Applicant’s agent: On all the documents we filed. Yes, we believe we're ready to do that today.
Tribunal: I don't see how you're ready to do that because there is a proposal to cross-examine the applicant on Monday… based on what? She hasn’t given any evidence.
Allchurch: No, she hasn't given any evidence. I wanted to go through the applicant’s evidence about what actually happened in this matter.
Tribunal: If the applicant wants to proceed based on what they filed, then we will do that, but I am telling you right now that as there is no direct evidence from your client upon which this Tribunal can rely, you do so at your own risk.
Applicant’s agent: I’m sorry, I need something explained. The applicant has filed statements…
Tribunal: She has not affirmed the submissions as being true and correct. They are not signed or declared before a JP or a solicitor or any other authorised person.
Applicant’s agent: The information given to us on the INCAT website gave us a choice to either lodge affidavits or lodge statements, and the applicant chose to lodge statements. And we were told, we were advised on the NCAT website that to be a valid statement it needed to be signed by the applicant and not affirmed or taken under oath. She could do that if she wanted to lodge an affidavit, but she chose not to and to lodge statements instead. That was signed by her as a true and correct record.
Tribunal: So are you telling me that this document that you filed on 1st August is the applicant's only statement and that it does not contain submissions?
Applicant’s agent: The document contains her arguments and is in reference into the documents.
Tribunal: OK. Do you understand that a document setting our arguments are submissions and not direct evidence of the facts alleged in those arguments? I think the answer to that is ‘no’, because you've chosen to go down this path. Well, you know, if you want to proceed we will try to get through it, but I don't know how the respondent can possibly cross-examine your client when they've asked her to attend for cross-examination. There is just nothing here that tells me in a nutshell, or in any direct terms, what the case is about; What documents or parts of documents are relied upon? What the alleged breaches are?; How those alleged breaches have impacted on your client?; and/or What she's seeking by way of recompense.
Applicant’s agent: Those matters are summarised in in the documents.
Tribunal: And we're going around in circles because you keep giving me the same answer.
Allchurch: I should clarify, this is a hearing purely on liability, so that you raised questions about relief or recompense…
Tribunal: The orders required evidence to be filed and served in April and this has been done 1st August, and not in a form that contains evidence.
Applicant’s agent: These submissions on 1st August are referenced into all our evidence.
Tribunal: And you keep saying submissions. Submissions are not evidence.
Applicant’s agent: Well, I'm sorry. It is a hybrid. It's the applicant’s submissions and materials combined.
Tribunal: Well it can't be a hybrid. So, that means if we're going to proceed based on this, before I can admit this document, we are going to have to go through it paragraph by paragraph and work out what is evidence and what is submissions. Because I cannot submit admit submissions into evidence.
Tribunal: Did the applicant obtain any legal advice on running on preparing this matter?
Applicant’s agent: She tried to obtain legal advice from legal aid and from other sources, but she was knocked back. She went through applications, went through appeals with the legal aid, but she couldn't obtain legal advice through those avenues. She did approach the Law Society approach for Pro-Bono assistance and her application was rejected. She approached private firms and they couldn't assist and when we went to Marrickville Legal Centre, they couldn't assist and referred us to the Privacy Commissioner. And the Privacy Commissioner couldn't assist us in any legal situation that we were faced with, and so that's why I stepped in.
Tribunal: All right, it looks like in the 2023 matter we are going through 73 pages of a hybrid document to work out what's evidence and what isn't.
Allchurch: I’m not sure that that is consistent with the guiding principle, but I appreciate the difficulties…
Tribunal: I think what I should do is vacate this hearing and order the applicant to file direct evidence as to her case because I don't know how any Member of this Tribunal is going to figure this out.
Allchurch: If you were minded to do that Senior Member, I would note that Miss Thorn is driving down from Tuncurry and that is a 3.5 hour drive. We did apply for her to appear by AVL, but Senior Member Little refused that… So, if you do vacate the hearing then I would be minded to apply again for our witnesses to appear by AVL instead of having to come down from Tuncurry, because that's a significant imposition and having to do it twice…
Applicant’s agent: And we've gone through a stage now where we've had to resist the respondent’s setting aside both of those summons to appear, which were successful, and then we resisted submissions by the respondent to have them appear by AVL, but in both instances Senior Member Little decided in favour of the applicant to not set aside the summonses and that for them to appear and give evidence based on her published decision. And likewise with the AVL situation we resisted that.
Tribunal: What was the problem with Miss Thorn appearing by AVL? This Tribunal conducts hearings on by way of AVL every day of the week. What was the particular issue? I mean, I'm looking at the order.
Allchurch: Yes, I think part of it was that there's such a significant volume of material that to take the witness to the documents would be difficult. In my situation, that's a difficulty that could be readily overcome if the applicant indicates which documents Miss Thorn needs to be taken to ahead of time and I can then give her electronic copies.
Tribunal I suspect that that hasn't been worked out yet, so that that can't happen. We can't get any direct evidence after 4 months.
Has the respondent had an opportunity to go through the documents in the 2023 case that was filed on 1st August and decide what is a submission and what is evidence?
Allchurch: No Senior Member. I haven't done that. The respondent didn't want to take an overly formal approach to that, in recognition of the applicant being self-represented and you know the guiding principle of doing this in the just quick and cheap way. So we are ready to proceed if you think it's possible for the Tribunal to proceed.
And you know we have put on our evidence that I would say is appropriate with our submissions about the matter. I accept the difficulty that you face.
Tribunal: Well, it's a very real practical difficulty for the applicant. But if the applicant chooses to proceed on it, she does so at her own risk.
Allchurch: The respondent is ready to proceed.
Applicant’s agent: And the applicant is ready to proceed.

Despite these exchanges, the applicant’s agent repeatedly stated that that the applicant’s evidence was “referenced in the bundles of documents”, which she filed, and that these were “hybrid” documents. The following exchanges then occurred:

Tribunal: I can only give the applicant a warning. I just need to be clear on this before we proceed because I don't want this coming back as an appeal point, that the Tribunal didn't give you adequate warning of the potential consequences of not filing direct evidence.
Applicant’s agent: Well, we believe we did.
Allchurch: Senior Member I think you've been abundantly clear on that.
Tribunal: I don't think I can take the matter any clearer.
Allchurch: If you want to adjourn for 5 minutes so that (the applicant’s agent) can then really consider that point carefully, that may also be suitable path. The respondent doesn't want that to be an appeal point.
Tribunal: I think made it very clear. I would think that there's no sort of denial of procedural fairness and that’s what concerns me. Because the applicant is not legally represented, I should give her an opportunity to consider her options before she proceeds potentially at risk. I don't think I can make that any clearer.
Applicant’s agent: What would that risk be?
Tribunal: OK. I need to weigh the evidence, including the evidence of your client, and at this point in time there is no direct evidence from your client, even though you say she signed this hybrid document as a statement. There is direct evidence from the respondent’s witnesses. Now when I come to determining the issues of liability, I need to weigh the evidence so at this point in time, we have evidence from the respondent and its witnesses and we have essentially submissions that may or may not be a statement from the applicant. There is nothing to balance. There is nothing to weigh up because submissions are not evidence. Submissions are arguments that are supposedly based on the evidence, but it's not evidence of the allegations in the submissions. And we've got evidence from the respondent. Now I can't make it any clearer than that.

Applicant’s agent: All I can say in response to that is the applicant has put statements in her bundle.
Tribunal: But you've already told me that they are hybrid documents.
Applicant’s agent: They aren't hybrid documents in the bundles. The hybrid documents are the documents we lodged 1st August.
Tribunal: They are submissions.
Applicant’s agent: So there are there are the documents on 1st August, one for each proceeding is our final submissions and materials in reply…
Tribunal: An outline of observations, criticisms and you say it has been signed as a statement?
Applicant’s agent: Yes.
Tribunal: Where?
Applicant’s agent: Well, as far as the applicant was concerned, she was signing it as a statement when she signed that document on page 15.
Tribunal: Did this document come into existence after the document on page 15?
Applicant’s agent: No, it came into existence on the day she signed it. And apart from that document, there's another document that she signed which says her rebuttals to the respondent’s internal review of her requests for access to information under s 14.
Tribunal: Do you see on page 17 of her rebuttals… it says “end of submissions”.
Applicant’s agent: So what? Yes, on page 32, that's her rebuttals to the internal review.
Tribunal: Yes, and that is stated as being submissions.
Applicant’s agent: Well, maybe the heading shouldn't be taken as characterizing the document.
Allchurch: Whether it's called a statement or submissions, the critical point of this is whether it is a statement of fact or is it an argument about a legal issue? I would say that this document is arguments about legal issues.
Tribunal: Yes.
Allchurch: It is taking issue with the internal review and of the conclusions that we reached, not because of any questions of fact, but because of different views.
Tribunal: Yes. And then on page 47, there is a document headed “outline of issues in contention”.
Applicant’s agent: Correct, and that's signed.
Tribunal: How is that direct evidence from your client? That is her outlining the issues that she wants to raise.
Applicant’s agent: My client was not represented by a lawyer.
Tribunal: I understand that and I'm I am trying to give you the opportunity to get this sorted before the case starts. Now I can't make you take that advice, and I cannot give you legal advice, but I can give you a warning that you're proceeding at significant risk if you proceed based on what you've done so far.
Allchurch: Senior Member, can I suggest again that it might be germain for (the applicant’s agent) and I to have a discussion.
Tribunal: I think that might be a good idea. Maybe, as you are a legal representative of the Crown Solicitor for the respondent, who is a model litigant, to try to explain more to (the applicant’s agent) what I'm trying to communicate, because he is not listening to me or taking in what I'm trying to warn him about.
Allchurch: I appreciate the difficulty I will try.
Tribunal: Is 15 minutes sufficient? Ok, I will come back at 11:15. Thank you.

The Tribunal adjourned briefly to enable Mr Allchurch to have a discussion with the applicant’s agent. Upon resumption of the hearing, the following exchanges occurred:

Allchurch: Well, that was that time was helpful I think, Member. I've had some discussions with (the applicant’s agent) and I understand he's had the opportunity to talk to (FTD). I will leave it to (the applicant’s agent) to say what he thinks you should know.
Applicant’s agent: So you know, you made it abundantly clear to us that we need to put on a statement of facts. So, that’s what we'll do. In in lieu of that, we are we are wondering in terms of the Court processes, whether it's prudent to at least continue with the witnesses today, if they're here, or whether we adjourn everything today. We were just wondering from a from a Court point of view and the process of the of the Tribunal, whether it's prudent to continue with those examinations or to adjourn those examinations, we're not sure and we will put that to you.
Tribunal: Mr Allchurch what is your thinking on this?
Allchurch: Subject to that response, we are ready to proceed with the whole thing. Although I understand what you've said and you've been abundantly fair about the value of there being statements of fact from the applicant. It would be, I think, irregular to go in that fashion to cross-examine the respondent’s witnesses.
Tribunal: Before the applicant's case is apparent?
Allchurch: Before the applicant put on a written statement. I should say I have gleaned from the large volume materials an understanding of the factual circumstances of the matter.
Tribunal: Right.
Allchurch: And I was planning at the start of the day to outline those to you in my opening statement, which I can still do today if that would assist. But then that will perhaps that gives rise to complexities with (FTD) preparing a statement.
Tribunal: OK.
Allchurch: So on the other hand, the respondent’s witnesses are here and we don't want them to come back a second time. In particular, we don't want to have Miss Thorn have to drive down from Tuncurry again. It's a long drive, but given what's subsequently transpired, I think asking to come back a second time would be asking a lot.
Tribunal: Yes.
Allchurch: And I would be re-applying for AVL if we did go down that path.
Tribunal: I'm just trying to think of the best way forward from here if we are going to proceed with this.
Applicant’s agent: And in turn, you know the applicant would again go through the same process of resisting the application go AVL, I mean it’s our position that people be here in person.
Tribunal: I don't entirely understand the reason for that given the extent of AVL hearings that are conducted in this jurisdiction every day of the week. Senior Member Little’s decision does not bind me. If I feel that it's prudent to allow witnesses to proceed by AVL, I will make an order…
There is no hard and fast rule about it. It comes down to what is considered the most appropriate manner of progressing the matter in order to achieve the Tribunal’s stated objectives, and that will vary from case to case.
Now it may be that it is not necessary for the applicant to cross-examine this particular witness on every single document in every single bundle. It could be a relatively simple matter, where the witness has the documents before her and she can be cross-examined. But I think at the moment we are putting the cart before the horse.
Let me exit the room and I will grab a diary and I'll try to work out a way forward from. Here. Just give me a couple of minutes.

When the hearing resumed, the Tribunal made the following ruling:

OK, I've had a bit of a think about the best way to proceed with this matter.
I'm cognizant of the fact that if I now set a timetable for the applicant to file and serve a statement, it potentially prejudices the respondent and I'm not going to do that.
I think what we will do is this. I will give (the applicant’s agent) 30 minutes to clearly outline what the allegations are in this matter and what evidence in the bundles various bundles of documents are relied upon by the applicant to support her allegations of fact.
I will then hear from the respondent, and we will deal with the respondent’s case.
And then by Monday, I would like (the applicant’s agent) to be prepared to file and serve a schedule of each of the documents in these bundles that the applicant relies upon as being particularly relevant and we can then hear from the applicant.
There being no primary evidence from her, it will be a matter of cross examination by the respondent and potentially, re-examination by (the applicant’s agent) and any questions that this Tribunal feels are appropriate to ask the applicant under its inquisitorial powers.
And then most likely at the end of that, if we finish on Monday, there will be a reserved decision on liability.

However, the applicant’s agent sought to cavil with that ruling and the following exchanges occurred:

Applicant’s agent: Can I respond to that?
Tribunal: You can, but you've had four months now to comply with the orders that were made by Senior Member McAteer by way of filing evidence and you have chosen to go down a particular path and now we're here.
Applicant’s agent: We haven't chosen we… really haven't chosen it, but we've come to that crossroads.
Tribunal: Well you have chosen the path that you chose to follow.
Applicant’s agent: Well the applicant doesn't have legal representation.
Tribunal: I'm aware of that. I have attempted to afford her procedural fairness. I brought this to your attention at 10:00 this morning. It's now 11:45 and you are still arguing over it. I am affording your client procedural fairness, but she doesn't have to take it.
Applicant’s agent: I made a mistake. We would like to take procedural fairness, but the way we would like to take that is to adjourn the matter today and with you and for the applicant to obtain legal advice on these issues.
Tribunal: No, sorry. The matter has been going since the case conference in February. This is the hearing date and two days have been set aside by the Tribunal.
Applicant’s agent: That is our submission to the Tribunal, that we've been put in a situation where we don't we've made a mistake in terms of articulating the facts of the case. That's because the client is self-represented…
Tribunal: Well, she's not, with all due respect, self-represented. You are appearing as her agent.
Applicant’s agent: I am, but I'm not a lawyer.
Tribunal: She is not here on her own. You are here as her agent representing her. So I will give you 30 minutes to tell me orally what the allegations are, and which of the documents in the various bundles support those allegations?
Applicant’s agent: There are 10 bundles of documents in these proceedings and to do that in 30 minutes is not going to be easy.
Tribunal: I am not asking you to do a list in 30 minutes. I am giving you 30 minutes to tell me what the allegations are in the case and over the weekend, you will prepare a schedule and you will hand that to the Tribunal and the Crown Solicitor on Monday, so that we know what documents are relevant to the issues in dispute.
And this matter will proceed. I'm not going to throw away 2 days of the Tribunal’s hearing time and put the respondent to this significant cost of bringing back several witnesses from various locations to give evidence when their case is ready to proceed.
Applicant’s agent: The only way we would respond to that Senior Member is you made it abundantly aware to us earlier in the hearing of the risks we were taking by proceeding…
Tribunal: Or your client can give oral evidence on Monday, but there is no direct documentary evidence from her.
Applicant’s agent: We would like the opportunity to do that. We made a mistake in not being able to present those documents to the Tribunal.
Tribunal: No… we're here 6 months down the track after the case conference. The documents are in. The parties are here. This is the hearing date.
Applicant’s agent: But given your articulation of the risk Senior Member, we've taken that on board and we would like to. Have time to mitigate that risk by going away...
Tribunal: I may be persuaded on Monday to give you leave, to call oral evidence from your daughter, but I see absolutely no utility in throwing away a 2-day hearing that has been arranged at significant cost for the Tribunal and the parties.
That is my ruling, …do you wish to proceed or not?
Applicant’s agent: What we'd like to do is, I guess, do our best to provide what the allegations are today, and the opportunity to put on a statement of facts, is that not possible?
Tribunal: No. You were ordered to do that by the end of April. You decided not to do that by mistake or otherwise.
Applicant’s agent: We didn't decide not to do it. We've made a mistake.
Tribunal: And the decision was made by mistake because you didn't understand what you were doing. But that is still a decision that was made by you.
Applicant’s agent: And we'd like to rectify that mistake. Can I?
Tribunal: No.

Mr Allchurch suggested a possible compromise, namely:

Allchurch: If, by Monday, the applicant wants to prepare a statement of facts and you know that can be tendered on that occasion and she can be cross-examined on that statement of facts and that can be, you know, supplemented by what she might say orally by evidence in chief…
I’m just trying to see a way forward. Well, I think it would be helpful to get to do opening statements, which I think is essentially what you're saying.
Tribunal: I see no utility in now re-opening the evidence.
Allchurch: I think a lot of the facts are not actually in dispute. But I will in our opening statement, outline what we understand the facts to be.
Tribunal: I don't know.
Allchurch: that may assist you to understand the scope of the matter, the allegations. Sorry, I'm just trying to assist and to try to find a way forward.
Tribunal: Yes, as am I.
Allchurch: Yes, of course.

The Tribunal then made the following ruling:

Having heard what the parties have said, and particularly the representative of the Crown Solicitor’s Office, I intend for this matter to proceed as currently listed as follows:
1. The applicant’s agent will be given 30 minutes to tell me orally and as succinctly as possible, what his clients allegations of fact are.
2. I will give the applicant an opportunity to prepare a succinct statement of facts, which will be handed to the Crown Solicitor’s representative on Monday morning, and if there is no dispute as to its contents, it can be handed to the Tribunal and considered as evidence in the matter.
3. I will also require the applicant’s agent by Monday morning to have prepared a Schedule of each of the documents in the multiple bundles that have been lodged that are relevant to the facts in dispute. It will not simply be a case of all the documents having been filed being admitted into evidence. There is a question of relevance and weight to be given to each of the documents that are tendered into evidence, and those relevant documents and their relevancies need to be clearly identified.
4. After the conclusion of the applicant’s opening statement, I will hear an opening statement from the respondent. So far as possible, we will then admit the respondent’s evidence and deal with any objections to that evidence. And as far as possible, we will conclude evidence from the respondent’s witnesses today, so that they are not put to additional expense of attending on another occasion.
5. If we are unable to reach and conclude evidence from the respondent’s remotely located witnesses by close of proceedings today, I will grant such witnesses leave to attend on Monday by way of AVL in order to complete her evidence in the most-timely fashion and in order to give effect to the objects of the Tribunal.
6. The applicant can then be called and/or cross-examined.
7. Any remaining witnesses from the respondent can then be called and cross-examined.
8. We will then proceed to submissions.
Now, is that clear enough for everyone? Thank you.

Applicant’s opening statement

The applicant’s agent stated to the effect that on 15 March 2023, the applicant lodged a request for access to her personal information under s 14 of the PPIPA, in relation to documents that were created or produced in respect of a Student Clinical Placement that she attended with the respondent in the period from 26 December 2022 to 22 January 2023.
That request was the subject of a decision by Mr Shaun Kelly in a Notice of Decision dated 24 April 2023. As part of that decision, Mr Kelly searched and found a number of documents such as file notes, emails, Excel spreadsheets and alternative evaluation documentation. He decided to invoke the public interest test under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) legislation and rely on various items in the table to s 14 (2) of that Act, and that on balance, that redaction of some of the information was necessary before it was released to the applicant.
The applicant asserted that the searches undertaken on behalf of Mr. Kelly were not responsible, as he asked other people to do the searches. She also believed that his application of the public interest considerations to restrict access to her information, involved a number of contraventions of the public interest test. The applicant’s agent stated that this was central to the applicant’s case, and that “in a nutshell, what we term a Student Placement Agreement contravention occurred”. Therefore, in effect, the applicant believes that Mr Kelly erred in applying the public interest test in a situation where she was asking for information that should have been provided to her under the Student Placement Agreement executed between the respondent and the University of Tasmania.
The Tribunal attempted to clarify this allegation, and the applicant’s agent stated:

We're saying that under that document, Ambulance’s performance of their obligations under that document meant that they had to provide the documents to the applicant at the conclusion of their clinical placement and they failed to do that. And that was the motive for the request – for access to her documentation subsequent to the conclusion of the clinical placement.
So we believe that by non-performance of Ambulance’s obligations under the Student Placement Agreement, when the applicant lodged asked for access to the information under s 14 of the PPIPA, the respondent was estopped from using the public interest considerations because they had failed to perform their obligations under a legal agreement executed between the University and it that required them to provide that documentation to the student at the conclusion of her clinical placement.

The Tribunal asked the applicant’s agent what type of estoppel he is alleging, as there is no Court determination, so it's not res judicata. He then stated that the applicant was “not using the word estoppel in a legal sense that we're not familiar with, sorry.” The Tribunal observed that from what he has said so far, it is hard to see how there is any kind of legal estoppel. He then stated that the Student Placement Agreement requires the respondent to perform certain matters. The following exchange occurred:

Tribunal: So you are basically telling me that your case is that you believe that upon completion, under the terms of the Agreement between the Ambulance Service and the University regarding the clinical placement, the Ambulance Service was supposed to provide your client with relevant records relating to the clinical placement, and it did not do so?
Applicant’s agent: The evaluation documentation and feedback. Correct.
Tribunal: And therefore you say that it cannot then validly apply the public interest test in response to the s 14 request.
Applicant’s agent: Correct, because it had an obligation to provide them anyway under a legal agreement.
Tribunal: But that is a legal right that arises under contract… That is not a breach of the privacy legislation… Because I'm not here to determine a contract dispute and I'm here to find out what the alleged breaches of the privacy legislation are.
Applicant’s agent: No, we're not saying that… We're saying that because there is non-performance of the obligation, which meant that the applicant didn't get her documentation and then the only way she thought she would be able to obtain that documentation was to lodge a s 14 request with the respondent to ask for the documents under the PPIPA. The Agreement is that the student receives the documents before she leaves the placement, not from the University. In fact, they were provided to the University and not to the applicant. That is the issue as well, but not an issue for these proceedings.
Tribunal: So how is then is that a breach of the privacy legislation?
Applicant’s agent: We're saying that that if you've got a legal responsibility to provide the documents to a person and you don't do it, and they've got to then go under s 14 to get those documents, there could not be any public interest in terms of not those documents because they have already signed an agreement to say you'll give the documents to the student. That’s what we're alleging.

Tribunal: The Clinical Placement Agreement was not between your client and the respondent.
Applicant’s agent: No, but the agreement includes provisions that ensure that students, and for that matter, the respondent’s employees are aware of the agreement and that they should comply with it. The first thing she did is went to the University and said “can I see my assessments?” The University said “no, you can't. We're not going to provide them to you.” So she was in a situation where she was being assessed on a clinical placement as the last component of her degree, and she couldn't get access to an assessment on which she was being assessed by the University as to whether she would pass or fail that subject.
Tribunal: What reason did the University give her?
Applicant’s agent: The University said “we can't give it to you because ambulance hasn't provided consent for us to give it to you.” Even though it was her assessment documentation, and to this day, the University hasn't provided that to her.
Tribunal: Well, I don't know what the Tasmanian legislation is for government information, but one would think that they would have to be some sort of third-party consultation before the documents could be released.
Applicant’s agent: But it's an assessment document for the student. She didn't get access to the document that the respondent produced.
Tribunal: I understand that. I'm just trying to understand how that is a breach of the Privacy legislation. It's potentially a breach of contract.
Applicant’s agent: It is.
Tribunal: But we're not here to deal with the breach of contract.
Applicant’s agent: No. We're saying to you that because there was a breach of contract, they can't deny our assertion is there was a breach and that because of that breach, when she goes to the respondent and said “I want my documentation that you should have provided me under the Student Placement agreement, and now I'm coming to you under the Privacy Act,” there should be no reliance on the public interest test given they have a legal obligation to provide that documentation to her in the first place. That's one of the contraventions we allege.

The Tribunal then asked The applicant’s agent to outline any further alleged contraventions of the PIPPA and the following exchanges occurred:

Applicant’s agent: The second contravention is that we believe in applying the public interest test, the Ambulance made errors of fact and judgment in in applying each of the s14 items in the Tables to find that there was an overriding interest against disclosure of that information, both in terms of personal factors relied on and which items were picked from the table in s 14 of the GIPA Act.
Tribunal: So does that mean you're saying that none of the s 14(2) table items apply?
Applicant’s agent: Our assertion going through each one (and there are 5 them relied on)…
Tribunal: Perhaps you could just let me finish what I'm saying, and then you can respond to it.
So is it a case where you're saying that no s14(2) items properly applied, or that the respondent identified the wrong s14 (2) items, or that they erred in applying the public interest test under s 13 of the GIPA Act. What is the exact nature of the complaint here?
Applicant’s agent: This particular complaint is that they erred in relying on particular items that weren't available to be relied on, and the reasons given in relying on them don’t reflect the factual situation of the circumstances. For each of the five items relied on from the section 14 tables. In terms of the personal factors relied on. The particular one being motive. We say that the Ambulance was incapable of inferring the motives that they did to the applicant based on the information that they had in the request for information.
Tribunal: The personal factors of an application is a discretionary matter. They're not mandatory under s 14(2).
Applicant’s agent: In in our case, they, well, they may be discretionary. I'm not sure.
Tribunal: They arise under a separate provision.
Applicant’s agent: Yeah. Yeah, they do. Section 55, I think it is.
Tribunal: Yes. They're not part of s 14(2).
Applicant’s agent: Yeah. Yeah. So under s 55, Ambulance then went to s 55 and said we believe there are personal factors that we also need to take into account in terms of the public interest tests and we…
Tribunal: Yes. Did the actual paperwork that was lodged indicate any personal factors?
Applicant’s agent: No, we didn't mention any motive as to why we were applying for our information.
Tribunal: No, it's just like in a standard GIPA form, one of the questions that is asked is whether or not there are personal factors of the application. I'm just asking if there's any similar provision that you're relying on.
Applicant’s agent: No, we used the form that was published by NSW Health in terms of providing a s 14 request, we used their form and in that form there was no reference to GIPA provisions at all, so that that's why I was surprised to us when they were applied because we weren't aware of the provisions at that time. We were relying on s 14 to get access to the information.
Tribunal: OK. There is a crossover when it comes to personal information.
Applicant’s agent: So in terms of the personal factors, we didn't state any motive in the request as to why we were seeking the documents, but as part of the process of applying the public interest test, the respondent felt that they should apply personal factors, in particular the motive of the applicant in applying for their information. And we believe they made wrong inferences…

The applicant’s agent then outlined a further alleged contravention and the following exchanges occurred:

Applicant’s agent: The next one is we believe that the applicant had in its documents that the applicant had actually made a previous request for a previous placement in similar terms to this one. In that matter, it went to internal review and the Ambulance engaged the Crown Solicitor’s Office. John McDonald, the Assistant Crown Solicitor did the internal review of that first matter and came to a determination on a very similar set of facts for a previous placement that Ambulance had erred in applying elements of the public interest test or that the weight given to them wasn't as Ambulance had suggested in their previous notice of decision. The decision of Mr McDonald was handed down on the 11 July 2023, about 2 1/2 months after the notice of decision in this matter was made by Shaun Kelly.
And our view is that once that decision was lodged in which Mr McDonald found that the public interest tests hadn't been properly applied and in fact found a partial breach of s 14, that it should have been reasonably foreseeable to Ambulance that the decision they've made two months previously when Shaun Kelly made his decision was in fact not in compliance with the privacy legislation in terms of s 14. And the way they had applied the public interest test in that situation, because that decision also relied on the same public interest considerations in s 14 and also relied on the same personal factors as the Shaun Kelly decision, so they were so sufficiently identical that we believe that once that internal review by the Assistant Crown Solicitor had been determined, and the way it had been determined that there was a breach of s 14, there was an obligation on the respondent to go back to the decision they'd made two months earlier to say, well, that decision must not be in compliance with s 14.
Tribunal: Mr McDonald’s decision was made after Mr Kelly's decision wasn't it?
Applicant’s agent: Correct, correct. But we believe that there is…
Tribunal: And what section of the Act do you say then obliges the respondent to reconsider its position.
Applicant’s agent: We believe there's always an obligation on the respondent to be in compliance with the provisions of the PPIPA, so when it becomes reasonably foreseeable to the respondent that a decision has been made under another internal review which is sufficiently identical to this review and is in favour of the applicant, that they have an obligation, irrespective of any internal review that the applicant request in the future, to be in compliance with s 14 and the way that they've applied the public interest test.
It's not a situation where you make a decision and you leave that decision, you always need to re-evaluate particular circumstances where the facts are so identical as to say to you that it's reasonably foreseeable that that our decision made by Shaun Kelly is not in compliance with the Act. We don’t believe that once you make a decision, the Act stops applying to you. You've always got to be cognizant that you need to be in compliance with the information protection principles in the Act notwithstanding that an applicant may not have exercised their rights at that time to lodge an internal review. It doesn't go away. It's perennial.
Tribunal: Was Mr Kelly's decision an internal review decision or original decision?
Applicant’s agent: It was an original decision.
Tribunal: OK, So what happened on internal review?
Applicant’s agent Of Mr. Kelly's decision?
Tribunal: Yes.
Applicant’s agent: Well, at that time the Ambulance had the benefit of seeing the Crown Solicitor’s internal review of the earlier notice decision.
Tribunal: Yeah, but what was the date of the application for internal review?
Applicant’s agent: That was 13th September 2023, I believe.
Tribunal: So is that the decision that's being reviewed in these proceedings? 13th September 2023?
Applicant’s agent: And so by that time, given that the Assistant Crown Solicitor’s internal review had been decided on 11th July 2023, some months before, the respondent obviously had the benefit of looking at that internal review by the Assistant Crown Solicitor.
Tribunal: OK, so the internal review decision was made on 13th September. When was the application for internal review?
Applicant’s agent: Please. I'm sorry. No. So the application for internal review was made on 30th September. The decision of the outcome of the internal review was made on the 14th November 2023, within the 60 day period that's normally applicable.
Tribunal: 14th November 2023 is the decision under review. OK.
Applicant’s agent: Yes. And that was made by Mr Jack Henderson, the Director of Legal Services.
Tribunal: OK, where do I find that document?
Applicant’s agent: Yeah, that document in in Bundle A of the first proceeding and I believe it's on pages 72 to 75.
Allchurch: Senior Member for assist you it’s also in bundle 1 of the s 58 documents…
Applicant’s agent: Yes, it's in Bundle A of the 2023 proceedings at page 72.
Tribunal: OK. Let's have a look at that document. OK so which parts of this decision do you say are subject to attack?
Applicant’s agent: Well, that's part of the lengthy document of rebuttals that we provide in that decision and that document is in Bundle E of our first proceeding.
Tribunal: OK, so on page 72, the second last paragraph says “to avoid confusion the applicant’s internal review request refers to a separate application for personal information made in August 2022, which was subject to Internal review by the Crown Solicitor.”
Applicant’s agent: Yes, which was decided by him 11th July 2023, after having to go through the Privacy Commissioner. We were rejected initially on this internal review being on the internal review of the original decision in August 2022 being done. We were told by Ambulance that it was out of time, so we had to go to the Privacy Commissioner and then to the Legal Department of the Ministry of Health. And through that process, Ambulance re-assessed its original decision that the matter was out of time and decided to do an internal review, which is when they engaged the Crown Solicitor, Mr John McDonald, to undertake that review.
Tribunal: Yes. But Mr McDonald’s review decision is not before me as part of these proceedings.
Applicant’s agent: Correct, correct. But we're saying it has some relevance.
Tribunal: So what I want you to do is to tell me as succinctly as possible what you say is in breach in the reviewable decision.
Applicant’s agent: Well, that's part of a 10-page document that we submitted.
Tribunal: And you can rely upon that in due course when it comes to presenting your submissions. I'm just asking you to draw my attention to what you say about how this document breached the legislation.
Applicant’s agent: Well, in fact, what we are saying is that we provide rebuttals to this document, but the conduct, the principal conduct that we referred to, is always back to the original conduct of the actual decision on our internal review of the decision of Mr Kelly. So that that has always been the conduct to which we have responded.
Mr Henderson reviewed our application and in fact decided that the public interest was in favour of releasing the documents to (FTD), but because we didn't get those documents those documents upon release of Mr Jack Henderson's decision until 14th November, when the applicant finally received her assessment documents that she had thought she was entitled to at the end of her placement.
On 14th November, Jack Henderson made his decision that upon application of the public interest test, there was an overriding public interest to provide the information to her. So the applicant is fundamentally saying that s 14 was breached because there was an excessive delay to for her obtaining her documentation. And in fact, all the information wasn't released with Jack Henderson's decision – they still withheld emails that weren't provided to the applicant until 9th February 2024, when this matter first came before the Tribunal in a conference hearing.
Just immediately prior to that conference taking place, Ambulance said here’s the final documents that we can provide to you that we probably should have provided to you on the 4th November, but that we're providing to you now.
Tribunal: So what's the period of breach you're relying on?
Applicant’s agent: Well, there are the different contraventions that we allege for s 14, the student…
Tribunal: Well, we're still talking about contravention 2, aren't we?
Applicant’s agent: In terms of contravention to the application of the public interest test, we would say that we should have got those documents when Shaun Kelly made his decision on 24^th April. However, because of his application of the public interest test, we didn't get until them until internal review on 14th November in terms of file notes, and in terms of emails we didn't get them until the 9th February – a few days before the first case conference in this process.
Tribunal: What reason was given for that? Was it necessary to obtain consent to release?
Applicant’s agent: No, no, no. Mr Henderson has submitted to say that he inadvertently missed the fact that the applicant had specifically asked for those emails in her internal review application.
Tribunal: Alright, OK.
Applicant’s agent: Although we suspect that it was just his emails, let's close down the case, that was our view. Oh yeah and there is an additional matter too.
When the Crown Solicitor issued those emails on 9th February, she didn't talk about Jack Henderson inadvertently forgetting to provide them to you. She talked about now under the public interest test, there's no longer a public interest against you receiving it, so we didn't quite understand that when Jack Henderson had already come to that conclusion in November 2023. We thought, well, why didn't you give them to us? What's changed in the public interest between Jack Henderson making his decision on the 14th and you releasing them to us on 9th February. We don't believe there was a change.

The Tribunal asked the applicant’s agent whether there were any further alleged contraventions and the following exchanges occurred:

Applicant’s agent: OK. Our other contention is apart from the information being released late with excessive delay we believe that there haven't been reasonable searches completed in relation to the applicant’s original s 14 request for her personal information.
Tribunal: OK. And what's the basis of that?
Applicant’s agent: The basis of that is that Mr. Shaun Kelly asked other people to undertake those searches on his behalf, particularly in relation to searching their e-mail inboxes outboxes for information relating to the applicant. And we believe that one of those persons, Miss Thorn, who is here to give evidence today, restricted the information that she gave back to Mr Kelly and didn't provide everything in her possession that she knew about that was personal information of the applicant. That is one of our contentions in relation to reasonable searches. We have two others.
Tribunal: So, do you say that there cannot have been reasonable searches in compliance with the Act unless the person who's making the decision does the searches themselves?
Applicant’s agent: No, we're not saying that at all. We're saying that, it was probably prudent in that situation for Ambulance not only to us those persons who may have the documentation in their emails, but to reasonably undertake a central search of their IT systems. Given that they use Microsoft Exchange for their e-mail system, to just run a query on emails coming in to those persons’ E-mail inboxes and search on the term “(FTD)” to make sure or verify that all information that is in those inboxes was actually being released. Because we believe that Miss Thorn purposely didn't provide certain information in her inbox, and that extra verification would have picked up that fact.
Tribunal: OK. And where do I find the evidence in support of that? There has to be evidence to establish a reasonable basis for that belief. So where do I find that evidence?
Applicant’s agent: Yeah, the evidence…
Tribunal: And please don't say they're in the bundles.
Applicant’s agent: In June, we lodged summonses. Well, actually, even before that, Mr Jack Henderson from the respondent put on evidence to say that he had telephone conversations to say that there was emails, I think in her emails. But in any respect, we issued summonses in June on Miss Thorn and also the respondent to produce documents of this nature and we gave descriptions of documents, photographs of evaluation forms and emails that we knew to exist that would flow from the iPhone on which the photographs were taken and the transfer of those photographs into NSW Ambulance’s systems.
So, we knew those emails existed because the Ambulance Service had had later relied on those images coming into its systems, so they had to come from somewhere, but we haven't been provided with the emails that had transferred the documents from the iPhone on which the information was collected into the Ambulance Systems. So, we lodged the summonses and as a result of the summonses, Miss Thorn produced emails dated 1st February 2023, when she had taken photographs of the applicant’s evaluation forms on 22nd January 2023 on her personal iPhone. Jack Henderson provided evidence to say that she was approved to use that for work purposes, and she transferred those photographs to her official NSW Ambulance e-mail account on 1st February 2023…
She took the photos on 22nd January 2023, when she was sitting down with the applicant. The applicant was called away and then at that stage she took the photos and collected the personal information and we allege collected the personal information of the applicant at that time by taking photographs of those documents without the knowledge of the applicant. And then held those documents in her iPhone until 1st February, when she transferred a sub-set of those documents (about 7 photos), and 5 of them were transferred by personal e-mail from a personal e-mail account to an Ambulance e-mail account on 1st February 2023. And that e-mail was provided under summons in July 2024, as were the original photographs she had taken on her iPhone on 22nd January 2023, which we say also is personal information of the applicant’s on her iPhone, because she was given approval by the Respondent to use her iPhone for work purposes. So they became held by the Ambulance at the time she took the photos on her iPhone, notwithstanding that it was a personal iPhone. And all she was doing in in the subsequent situation was transferring those photographs to the Ambulance’s IT storage systems…

(1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister’s personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct.
(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders—
(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,
(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,
(c) an order requiring the performance of an information protection principle or a privacy code of practice,
(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,
(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,
(f) an order requiring the public sector agency not to disclose personal information contained in a public register.

A public sector agency's "conduct" for the purposes of ss 52 and 55 of the PPIPA includes any accrual or alleged contravention of the IPPs that apply to the agency: see s 52(1)-(2). The IPPs are set out in ss 8 to 19 of the PPPA and apply to a public sector agency: see s 20(1).
A "public sector agency" includes a "statutory body representing the crown": see s 3(1). The respondent is a statutory body representing the Crown, which is established under the Ambulance Services Act 1990 (NSW): see s 4 of that Act. Therefore, for the purposes of the PPIPA, the IPPs apply to the respondent.
Section 4 of the PPIPA defines ''personal information'' as follows:

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
…

The applicant alleges that the respondent breached the IPPs found in ss 8 to 11 of the PPIP Act. These IPPs impose a number of obligations on public sector agencies in relation to “collection” of personal information.
Section 8 provides:

Collection of personal information for lawful purposes
(1) A public sector agency must not collect personal information unless—
(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and
(b) the collection of the information is reasonably necessary for that purpose.

(2) A public sector agency must not collect personal information by any unlawful means.

Section 9 provides:

Collection of personal information directly from individual
A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless—
(a) the individual has authorised collection of the information from someone else, or
(b) in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.

Section 10 sets out what the applicant has described as an agency’s “awareness obligations” when collecting personal information from an individual. It provides:

Requirements when collecting personal information
If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following—
(a) the fact that the information is being collected,
(b) the purposes for which the information is being collected,
(c) the intended recipients of the information,
(d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,
(e) the existence of any right of access to, and correction of, the information,
(f) the name and address of the agency that is collecting the information and the agency that is to hold the information.

Section 14 of the PPIPA provides:

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

Section 16 of the PPIPA provides:

Agency must check accuracy of personal information before use
A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

Section 18 of the PPIPA provides:

Limits on disclosure of personal information
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

Consideration

In my view, the respondent’s written submissions accurately recite the legal principles and caselaw that applies to the complaints raised by the applicant in this matter.
I have applied the caselaw to the facts as follows.
The Tribunal’s jurisdiction in these proceedings is limited to review of conduct that was the subject of the internal review application, such that “the Tribunal cannot review any conduct that was not the subject of the application to the agency”: Department of Education and Training v GA (No. 3) [2004] NSWADTAP 50 at [7]; see also CWA v NSW Department of Education [2017] NSWCATAD 287 at [14] and the cases cited therein.
It is “a fundamental premise of the Act that the agency first be given an opportunity to review the conduct”: OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13]. This was confirmed and reiterated to the Applicant in the Tribunal’s decision of EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62.
In this matter, the applicant alleged that the respondent had not complied with s 14 of the PPIPA because:

It continues to hold personal information that it has not provided to her in response to her access request, because it has not conducted reasonable searches for that information; and

To the extent that that it had provided her with personal information that was sought in her access request, It did not with excessive delay, caused by the misapplication of “the public interest test” in its initial decision on 24 April 2023, and its failure to release unredacted versions of the emails that she sought with its internal review decision on 14 November 2023.

The respondent argued that the Tribunal should not find that the respondent breached s 14 of the PPIPA on these grounds.
I am satisfied that the evidence before me overwhelmingly supports a finding that the respondent did not breach s 14 of the PIPPA.
The evidence before me supports a finding that all of the personal information requested that the applicant requested in her access request has been provided to her.
There is no evidence before me that supports the applicant’s allegation that the respondent continues to hold personal information that was not provided to her in response to her access request.
I am satisfied that respondent conducted reasonable searches in order to locate the personal information that was provided to her.
In relation to the allegation of excessive delay, I am satisfied that the applicant’s contention that s 14 of the PPIPA confers a perpetual obligation upon an agency to review previous decisions, is misconceived.
In this matter, the applicant contended that Mr Kelly should have been aware that Mr McDonald had made a determination in relation to a different access application that she made, to the effect that the public interest test under s 14(2) of the GIPA Act did not apply to access requests under s 14 of the PPIPA.
In my view, that contention is contrary to the legislative framework, which assumes a scheme of internal review, followed by possible external review, in which the review process is driven by an applicant requesting a review. I am satisfied that the applicant’s contention is contrary to the legislation and would be unworkable in practice.
I accept the respondent’s submission, based on the chronology in this matter, that the longest delay was that between the issue of Mr Kelly’s decision in April 2023 and the applicant lodging her request for internal review in late 2023. I am satisfied that there was no excessive delay in the respondent’s determinations of the access request and the request for internal review.
In relation to the "collection" of personal information, I accept the respondent’s submissions that it is well established that ss 8 to 11 of the PPIPA do not apply to the internal movement of personal information about an individual within an agency, or to the process of creating records of internal meetings or discussions which contain personal information about an individual.
Similarly, when an agency employee reduces to writing an opinion that they hold mentally (including an opinion about another person that amounts to "personal information" of that person, there is no collection of personal information: AFP. Once internal records have been created, the IPPs in the PPIPA relating to use and disclosure will apply to their contents.
However, the Tribunal has said that it is "artificial" to treat such internal recording processes as being a collection of personal information to which the IPPs on collection apply: CBL.
In this matter, Miss Thorn created the file note dated 2 February 2023 and it recorded her observations of the applicant's conduct during her clinical placement for the purposes of relaying those observations to the UTAS. The file note dated 8 February 2023 was created by Inspector Dwyer and it recorded a further discussion with Miss Thorn about her concerns about the applicant's conduct. Both documents record the respondent's observations of the applicant's conduct and the contents of internal discussions about the applicant. I am satisfied that it would be artificial to treat the creation of these records as a collection of the two file notes.
I am also satisfied that the respondent did not collect the information in the evaluation form that was provided by Miss Thorn. She recorded handwritten comments about the applicant's performance on the evaluation form and retained a copy of those comments by photographing them. This did not constitute a collection of the applicant's personal information.
I am satisfied that it would be artificial to characterise the process of Miss Thorn reducing her own opinions to writing as a collection of the applicant's personal information. The fact that Miss Thorn kept an electronic record of her opinions by taking photographs of the form she had just completed does not change this.
The respondent argued that the evaluation form was collected for a "lawful purpose" directly related to a function or activity of the respondent: s 8(1).
In Norkin, the Court of Appeal considered the operation of s 8(1) of the PPIPA. The Court determined that there is a contrast between the purpose for which the information is collected, and the function or activity of the agency. The purpose is the end, or the objective or the goal in the furtherance of which the information is collected. There may be more than one purpose. The function or activity is something that the agency does.
I accept that in order to be a lawful purpose, it is not necessary that the purpose of collecting the information is positively authorised by law. It is sufficient that the purpose of collection is not forbidden by law.
In this matter, the purpose of relating comments, including concerns, about the applicant's performance during the clinical placement to the applicant's university, is a lawful purpose as it is not forbidden by law. Further, it was closely related to the respondent’s function of administering student clinical placements.
I accept the respondent’s argument that the evaluation form was not collected by unlawful means and it did not breach s 8(2) of the PPIPA. In EEH, the Tribunal held that "unlawful means" in the context of s 8(2) "requires that the actual means or method of the collection of the applicant's personal information in question is unlawful," beyond simply being a breach of the collection principles in the PPIPA.
While the applicant alleged that the respondent undertook a premeditated plan to secretly and unlawfully collect her personal information by taking unauthorised photographs of a hard copy of her evaluation form, she has not referred to any legal prohibitions that would render it unlawful for her preceptor to take copies of the evaluation form by that means.
I also accept the respondent’s argument that the evaluation form was collected directly from the applicant and that it took reasonable steps to make the applicant aware of the matters in s 10 of the PPIPA. In this matter, the applicant was aware that her personal information contained in the evaluation form was being collected by the respondent because she gave her preceptor the document to complete.
In Ex B, Mr Henderson annexed a copy of the UTAS Placement Handbook, which clearly states that the evaluation form needs to be completed by both the student and the preceptor and signed by the preceptor. This is also set out in Mr Richer's statement (Ex C) and the applicant did not challenge his evidence.
I am therefore satisfied that the respondent complied with s 10(a) to (f) and that there is no breach of s 10 of the PPIPA.
In relation to the alleged breach of s 16 of the PPIPA, it is necessary to consider:

Whether the respondent relevantly used the applicant’s personal information; and

Whether it failed to take reasonable steps to ensure that the information was relevant, accurate, up to date, complete and not misleading before doing so.

I accept the respondent’s argument that it did not use the applicant's personal information, in so far as it concern disclosing the information to UTAS. It appears that the applicant's real complaint is about the respondent's disclosure of her personal information to UTAS, by tabling feedback that she alleges was inconsistent with her experiences on her placement.
I do not accept the applicant’s contention regarding use of the information with respect to UTAS. While I note that the applicant also asserted that the respondent used her personal information in deciding not to offer her employment, I am satisfied that this Tribunal lacks jurisdiction to consider an employment dispute between the applicant and the respondent.
The Tribunal has determined that “use” in the context of the PPIPA refers to "the handling of personal information within the collecting agency.” In AFC, the Tribunal held that giving information to an outside agency is not a use of personal information, but is to be considered under the disclosure principles in s 18 of the PPIPA.
The Appeal Panel approved this reasoning in AIN, in relation to a matter where the respondent published on its website a That case related to the respondent's publication on its website of a judgment by the Medical Tribunal concerning the applicant. Although the parties in that matter agreed that this constituted a breach of s 18 of the PPIPA concerning “disclosure”, the Appeal Panel rejected arguments that the creation and publication of the document constituted an internal use of personal information.
In AIN, the Appeal Panel referred to the decision in VK, which accepted that there might be both a use for the purposes of s 16 and a disclosure for the purposes of s 18 in the one sequence of events, but only where there were separate identifiable internal use and identifiable external disclosure transactions or actions.
I accept the respondent’s argument that the circumstances in AFC and AIN are analogous to this matter. There is no evidence that the respondent made any use of the information contained in the evaluation form or the file note dated 2 February 2023, other than disclosing those documents to UTAS, which is not a use in the relevant sense.
I also accept that there is no evidence that the respondent made any use of the information contained in the file note dated 8 February 2023, which was not disclosed to UTAS but was created for the respondent's internal records. Use refers to an agency taking some administrative action on the basis of information it holds about an individual,
The applicant complains that the use of her personal information contributed to her receiving a "fail" grade in her assessment by UTAS, and involved the creation of impugning records causing severe detriment to the likelihood of her future employment with the respondent. However, I accept that the respondent reasonable steps to ensure that the applicant's personal information was accurate.
Section 16 of the PPIPA does not create an obligation that the agency must, in every circumstance, ask a person to corroborate the accuracy of information that it holds about the person before the information it used. What constitutes reasonable steps in particular circumstances must be determined not only in the context of the purpose for which the information was to be used, but also in the context of those matters the applicant alleges was not relevant, inaccurate, out of date , incomplete or misleading.
The Tribunal has held that the applicant has the initial onus of demonstrating that there was a use of information which involved irrelevant, inaccurate, out of date, incomplete or misleading information, and that the onus then shifts to the respondent to show that it took reasonable steps to check the information : DQF; MT v Director General, NSW Department of Education and Training; and BPF v NSW Ambulance Service.
The applicant's materials contain extensive rebuttals of the information contained in the file notes, but she has not contended that any of the information in the evaluation form is inaccurate. The file notes contain a mix of factual observations about the applicant by Miss Thorn and opinions expressed about her conduct.
I accept the respondent’s submissions that the following matters are relevant to determining whether any reasonable steps are required to ensure the accuracy of the information and, if so, the nature of those steps:

the potential impact on the privacy and reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s 16;

how recently the information was collected; (3) the significance of the information in the context;

the experience and competence of the author; and

whether it was necessary or practical to check back the information with the providers of the information, or with the subject.

The I am satisfied that Miss Thorn’s opinion was genuinely formed and held at the time it was recorded, as an opinion is always subjective. There is no evidence before me that her opinions recorded in the file notes dated 2 February 2023 and 8 February 2023 were not genuinely formed and held. She acknowledged her limitations and qualified her opinions, where appropriate. For this reason, I am satisfied that she provided an honest account of her opinions and matters she observed during the placement. The comments were also recorded in the context of correcting comments that she previously made about the applicant's performance in completing the evaluation form. The applicant was given the opportunity to provide her own account of her performance on the placement by completing that evaluation form.
In any event, the file notes were recorded after the applicant completed the clinical placement, returned to UTAS and no longer had day-to-day contact with Miss Thorn or any other staff of the respondent. I accept that it was reasonable for the respondent not to contact the applicant to ask her to corroborate Miss Thorn's comments when they were recorded in the file note or when it was relayed to UTAS. There is also insufficient evidence for the Tribunal to find that the information in the file notes is inaccurate.
As to “disclosure” of personal information, the respondent argued that the Tribunal should reject the applicant's submission that the photographs of her evaluation form were relevantly “” to UTAS. The essence of disclosure under s 18 is making known to a person information that the person to whom the disclosure is made did not previously know: Nasr. Based on the applicant’s submissions, it is clear that her real complaint is that the respondent disclosed information to UTAS which "impugned" the information in her evaluation form, namely the information contained in the file note dated 2 February 2023.
Section 18(1)(b) provides an exception to the prohibition on an agency disclosing an individual's personal information if the individual is individual is reasonably likely to have been aware that information of that kind is usually disclosed to that other person or body. The respondent denies that the disclosure to UTAS was done in contravention of s 18, because s 18(1)(b) applied.
In CEU, the Tribunal held that students were aware that the University will share information with clinical placement providers based on a series of documents and interactions to which students are routinely party. Although in this matter, the applicant did not sign an express permission to disclose form, the other policy documents and guidelines were made available to the applicant should be considered to have the same effect.
I otherwise confirm the rulings that I made during the course of hearing to the effect that the Tribunal lacked jurisdiction to determine the other contentions that the applicant raised in her application.

Conclusion

I am satisfied that the correct and preferable decision is for the Tribunal to affirm the finding of both internal reviews, that the respondent did not breach any of the IPPs in the PIPPA and that it should not take any further action in the matter.

Orders

I make the following orders:

The decisions under review are affirmed pursuant to s 63(3)(a) of the ADR Act.

Pursuant to s 55(2) of the PPIPA, the Tribunal decides to take no further action.

**********

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: 02 October 2024

Medium Neutral Citation:	FTD v NSW Ambulance [2024] NSWCATAD 283
Hearing dates:	16 August 2024 & 19 August 2024
Date of orders:	2 October 2024
Decision date:	02 October 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1) The respondent’s reviewable decision of is affirmed pursuant to s 63(3)(a) of the Administrative Decisions Review Act 1997. (2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal decides to take no further action.
Catchwords:	ADMINISTRATIVE LAW – PRIVACY – personal information – solicitation - collection – lawful purpose – disclosure – disclosure within an agency – confidential information – no disclosure
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Ambulance Services Act 1990 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Privacy Act 1988 (Cth) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	AFC v Sydney Children's Hospital Speciality Network [2012] NSWADT 189 AFP v Hunter New England Local Health District [2012] NSWADT 141 AFU v Sydney Local Health District [2012] NSWADT 197 AIN v Medical Council of New South Wales [2017] NSWCATAP 23 Ace v State of NSW (TAFE Commission and Det) (No 3) [2011] NSWADT 154 BFP v NSW Ambulance Service [2015] NSWCATAD 39 BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270 CWS v NSW Department of Education [2017] NSWCATAD 287 CYL v YZA [2017] NSWCATAP 105 Camilleri v Commissioner of Police (NSW) [2102] NSWADT 5 Carney v Commissioner of Police, NSW Police Force [2023] NSWCATAD 265 Collins v Department of Fair Trading [2019] NSWCATAP 199 Commissioner of Police v Ritson [2023] NSWCA 300 Coogee Bay Village v Profilio (RLD) [2011] NSWADTAP 67 DHZ v Children's Guardian [2019] NSWCATAD 13 DVT v Commissioner of Police [2021] NSWCATAD 108 Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 EEH v Insurance and Care NSW [2022] NSWCATAD 82 EEH v NSW Self Insurance Corporation [2022] NSWCATAD 361 EJE v Commissioner for Fair Trading [2022] NSWCATAD 33 EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62 JD v Department of Health (No 2) [2004] NSWADT 227 KP v Narrandera Shire Council [2011] NSWADTAP 15 KT v Sydney South West Area Health Services [2010] NSWADT 94 LN v Sydney Local Health District (GD) [2012] NSWADTAP 9 LN v Sydney South West Area Health Service [2011] NSWADT 44 MJ v Department of Education and Communities [2014] NSWCATAD 12 MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 NZ v Department of Housing [2005] NSWADT 58 Nasr v State of New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101 Norkin v University of New England [2023] NSWCA 194 OD v Department of Education and Training (GD) [2005] NSWADTAP 74 Robinson v Commissioner of Police [2014] NSWCATAP 73 Saggers v Environment Protection Authority [2013] NSWADT 109 Snow v Chief Commissioner of State Revenue (No 1) [2005] NSWADT 244 Walker v Roads and Maritime Services [2019] NSWCATAD 177 Webb v Secretary, Department of Communities and Justice [2023] NSWCATAD 168 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173
Texts Cited:	Macquarie Dictionary Oxford Dictionary
Category:	Principal judgment
Parties:	FTD (Applicant) NSW Ambulance (Respondent)
Representation:	FTD’s Father (Agent for the Applicant) Crown Solicitor (Respondent)
File Number(s):	2023/00451201 & 2024/00019769
Publication restriction:	Pursuant to sections 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 the publication of broadcast of the names of the Applicant and evidence in the proceedings which identifies the Applicant is prohibited.