GA v Department of Education and Training and New South Wales Police (GD)

[2005] NSWADTAP 64

Appeal Panel - Internal

CITATION:	GA v Department of Education and Training and New South Wales Police (GD) [2005] NSWADTAP 64
PARTIES:	APPELLANT GA FIRST RESPONDENT Department of Education and Training SECOND RESPONDENT New South Wales Police
FILE NUMBER:	059007
HEARING DATES:	29/06/2005
SUBMISSIONS CLOSED:	06/29/2005
DATE OF DECISION:	06/29/2005
DECISION UNDER APPEAL:	GA v Department of Education and Training and New South Wales Police (No 2) [2005] NSWADT 10
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	costs - dismissal of appeal - lacking in substance
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023250 and 043159
DATE OF DECISION UNDER APPEAL:	01/20/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Police Service Act 1990 Privacy and Personal Information Protection Act 1998
CASES CITED:	GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2 GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18 Department of Education and Training v GA (No. 3) [2004] NSWADTAP 50 GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10 EG v Commissioner of New South Wales Police (No 2) [2004] NSWADT 226 Gizah Pty Ltd v AXA Trustees Ltd (2) [2001] NSWADT 164 Graham v Director General, Department of Community Services; ex tempore, unreported Graham v Director General, Department of Community Services [2001] NSWADTAP 4 Miriani v Commissioner of Fair Trading [2005] NSWADT 99
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT G Mahony, solicitor, Crown Solicitor's Office SECOND RESPONDENT P McLaughlin, solicitor, New South Wales Police
ORDERS:	1. Appeal dismissed as lacking in substance.; 2. Appellant pay the First Respondent’s costs of today fixed at the level of 2 and ½ hours professional time.

1 These reasons are given in response to a request made by the appellant under s 89 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

Background

2 The appellant, GA, has had before the Tribunal for some years two applications for review of the conduct of public sector agency lodged pursuant to the Privacy and Personal Information Protection Act 1998 (the Privacy Act). They are Application No 023250 lodged in 2002 naming the Department of Education and Training (the Department) as respondent; and Application No 033164 lodged in 2003 naming the NSW Police Service (the Police Service) as respondent.

3 This case has its origins in incidents that occurred in November 2000. GA is the father of three sons. As at November 2000, GA and his three sons (GB, GC and GD) lived at the family home, along with the girlfriend (GE) of one of the sons, who had been taken in at her request, as she had been involved in serious disputes with her mother. GA was concerned over certain conduct of the Police and the Department of Education that occurred in November 2000 and October 2001, and, in his view, particularly adversely affected the girlfriend.

4 The five persons mentioned filed a joint application against each agency.

5 The Tribunal held hearings in respect of the during 2003. The Tribunal delivered its decision in January 2004: GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2. The applicants were legally represented at these proceedings. The Tribunal described the conduct in issue, in summary, in these terms:

‘4 As the lengthy evidence transpired, the case primarily involved events on three particular dates. On 5 November 2000 the police attended the applicant family’s home (applicants GA, GB, GC and GD – (“the applicant family”)) to interview GE, the then girlfriend of applicant GC. GE had been in a serious domestic dispute with her mother and the police had already been called to her home. On 10 November 2000, the police attended the Sydney school of GE and GC and spoke with the Principal (who I will not name in these reasons) about GE and the applicant family. On 23 October 2001, the Principal wrote to the police in response to a letter from them relating to an internal review of police conduct (after complaints were made by the some applicants to the police, inter alia , about them failing or refusing to take out an apprehended violence order (“AVO”) to protect GE, then a young school-aged woman no longer living with her family). On each of these occasions, the applicants contend that personal information was collected, used and disclosed in breach of the Act.’

6 The three sets of circumstances described above came to be described by the Tribunal as Transaction 1 (the interviews by the police); Transaction 2 (conversations between the police and the school principal); and Transaction 3 (the letter from the principal to the police). The letter would appear to be the matter over which GA had the greatest concern, in terms of what he say as its unfair and inaccurate statements about his family, one of his sons and the girl herself.

7 The Tribunal dismissed the applications as they related to the Department of Education in respect of Transactions 1 and 3. They dismissed the applications as they related to the Police Service. The Tribunal did not deal with Transaction 2.

8 The Tribunal found that the conduct of the principal (Transaction 3) was immune from scrutiny. The Privacy Act regulates the collection, storage, use and disclosure of ‘personal information’ by agencies. Therefore it is necessary always to establish that the information placed in issue fits the definition. The primary definition of ‘personal information’ is a broad one, and there was no contest in the case that the contents of the letter contained personal information about the GA family and the girlfriend for the purposes of the primary definition. However, the Department and the Police relied in this case on the exclusion from the definition found at s 4(3)(h) of the Act which provides:

‘(3) Personal information does not include any of the following:

(h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990’.

9 Part 8A deals with complaints about police officers that, relevantly to this case, fall within the categories of complaint set out in s 122 of the Police Act.

10 The Tribunal accepted that the principal’s letter (Transaction 3) was sent in response to a formal request by the officer in charge of an investigation being conducted pursuant to Part 8A in connection with a complaint by the GA family over police conduct. The Tribunal found that the information contained in the letter ‘arose out’ of the complaint.

11 As to Transaction 1, the Tribunal found that the police disclosures that the applications sought to place in issue were protected by an exception contained in s 23(5)(d)(ii):

‘(5) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 18 if the disclosure of the information concerned:

(d) is reasonably necessary: …

(ii) in order to investigate an offence where there are reasonable grounds to believe that an offence may have been committed.’

12 This exception was also considered to be relevant to Transaction 2.

13 There was another finding of importance. In its published reasons, the Tribunal confined the scope of the proceedings to the parameters of the internal review applications. It rejected an attempt by the applicants to have the application before the Tribunal expanded to take in collection issues. This ruling was contrary to an oral ruling it had given in the course of the proceedings.

14 The appellants appealed, complaining of a denial of procedural fairness in that they were not given an opportunity to address the Tribunal on its revised view. This appeal was upheld: GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18. The original ruling was treated as the ruling of the Tribunal. In the same decision, the Appeal Panel rejected the appellants’ challenges to the fact-finding processes of the Tribunal as they related to Transaction 1.

15 However in relation to Transaction 3, the Appeal Panel was not satisfied, on scrutiny of the contents of the principal’s letter, that the Tribunal had applied the exception correctly so as to immunise from scrutiny four points made in the letter (Points 1, 2, 4 and 5).

16 In a later decision the Appeal Panel dealt with an appeal against the oral ruling of the Tribunal that it had jurisdiction to examine collection issues, even though they were not raised by the application for internal review. The Appeal Panel set aside the Tribunal’s original ruling, deciding (as the Tribunal had itself decided ineffectively later itself) that the application for internal review basically set the parameters of the application to the Tribunal, and therefore the applications as they related to collection by the Department were dismissed: Department of Education and Training v GA (No. 3) [2004] NSWADTAP 50.

17 On 11 October 2004, in light of information received from GB, GC, GD and GE, the Tribunal held that GA no longer had any authority to represent GB, GC, GD and GE. This left GA as the only named applicant; with the applications by GB, GC, GD and GE being dismissed on 4 November 2004.

18 The Tribunal received submissions from the agencies as to the effect of this development on the scope of the proceedings. They submitted that GA should not be able to agitate his application for review in relation to personal information that concerned them only and not him. He should be confined to being only permitted to agitate personal information relating to him. The Tribunal upheld this submission. For that reason, and also for reasons connected with the way GA had framed his application during the course of directions hearings, the Tribunal found that it was now without jurisdiction to consider any aspect of Transaction 2, except for point 4: GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10.

19 The Tribunal subsequently held a hearing in relation to the contents of point 4 of the principal’s letter. The Tribunal found no contraventions by either agency. In the case of the Department (the principal’s communication), it found that s 23(5)(a) applied, i.e.

‘(5) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 18 if the disclosure of the information concerned:

(a) is made in connection with proceedings for an offence or for law enforcement purposes …’.

Notice of Appeal

20 The present Notice of Appeal was filed on 4 February 2005. It appealed against the decision delivered 20 January 2005 – GA (No 2). The appellant criticised a number of the Tribunal’s statements of fact, relating to the circumstances giving rise to his original applications. In particular he challenged the statement by the Tribunal that he has never been acting in the capacity of a person aggrieved by the conduct of the respondents. It had a two page typed attachment headed ‘grounds of appeal’.

21 The following directions were given by letter dated 5 April 2005:

1. Appellant to file and serve the following documents within 42 days (18 May 2005):

· submissions

· list of authorities

2. Respondents to file and serve the following documents within a further 21 days (8 June 2005):

· submissions in reply

· list of authorities.

22 GA did not file and serve any additional material in compliance with Direction 1. The Crown Solicitor’s Office (Mr Free) filed written submissions in reply to the appeal (filed 9 June 2005). The Commissioner filed written submissions in reply to the appeal (filed 15 June 2005).

23 The appeal hearing was fixed for 29 June 2005.

24 On 17 June 2005 GA wrote to the Registrar of the Tribunal (material parts) (copied to the Crown Solicitor’s Office and the Police legal section):

‘Due to unforeseen circumstances, I will be unable to attend the Tribunal for the above matters.

I request that both these matters be dealt with either ‘on the papers’ or alternatively ‘in my absence’. I would like these matters finalised on the above scheduled hearing dates, one way or another. I do not want the matters adjourned, and, if necessary, would prefer to withdraw than adjourn.

In the event the above appeal succeeds, I would prefer that the Appeal Panel also rule on the substantive issues. I do not want the matter remitted back to the Tribunal, and, if necessary, would prefer to withdraw than remit.’

25 This was followed by a letter to the Registrar (and copied to the other parties) dated 21 June 2005 from Mr Free of the Crown Solicitor’s Office It submitted that it would not be appropriate to have the matter dealt with on the papers, and submitted further that the content of the letter supported the Tribunal concluding that the proceedings had been effectively withdrawn.

26 On behalf of the Department, he submitted that the Tribunal should order the dismissal of the proceedings, acting pursuant to either s 73(5)(g) or s 73(5) (h) of the Tribunal Act, save as to costs. Section 73(5)(g) and (h) provide that the Tribunal:

‘(g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and

(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.’

27 The Appeal Panel proceeded to hold a hearing on 29 June 2005. Ms Mahony, of the Crown Solicitor’s Office, appeared for the Department. Mr McLaughlin, legal officer, Police Service, appeared for the Police Service. The appellant, GA, did not appear.

Reasons for Decision

28 The Appeal Panel gave oral reasons at the conclusion of the hearing. The following text of the reasons has been revised for publication.

(1) Dismissal Applications

29 Section 73(5)(g) dismissal application. We note that [GA] has written to the Registry in the terms already discussed. We regard the letter as equivocal and not sufficient to treat as a clear withdrawal.

30 Section 73(5)(h) dismissal application. We also do not think that the appeal was as such frivolous or vexatious. We do think that it lacks substance and the reason for reaching that conclusion is essentially that all we have are the points of appeal. The points of appeal on their face would appear not to be arguable for the reasons really that Mr Free gave in his submissions in reply.

31 [The submissions dealt with the following matters: the general background to the matter; the nature of the Appeal Panel’s appeal jurisdiction (as of right in relation to questions of law, by leave in relation to the merits (questions of fact); the Appeal Panel’s general approach to dealing with applications for leave to extend to the merits; the distinction between questions of law and questions of fact; the nine grounds set out in the notice of appeal; various reasons as to why they were acceptable findings; and the narrow circumstances in which appellate courts will intervene to upset findings of fact made by the trial body.]

32 In those circumstances we have really got no further material from [GA] that he might have furnished had he complied with the directions to suggest to us that there is something of substance in the appeal points that we might have missed. The position is one where the appeal lacks what I will call forensic substance. It may have substance in the mind of [GA] but we are here to form a view as to whether it does or does not lack substance and as matters stand at the moment it appears to us that it lacks substance for the purpose of s 73(5)(h).

(2) First Respondent’s Application for Costs

33 Application for Costs. Ms Mahony for the Department (the first respondent) applied for costs. Mr McLaughlin indicated that the Police did not make an application for costs.

34 Section 88 of the ADT Act relevantly provides:

‘(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.’

35 Ms Mahony submitted that the appellant’s conduct permitted such an award if special circumstances could be demonstrated. She referred to EG v Commissioner of New South Wales Police (No 2) [2004] NSWADT 226, a decision of the General Division of the Tribunal, at [7]:

‘7 Special circumstances are circumstances which are out of the ordinary; not necessarily circumstances which are extraordinary or exceptional ( Gizah Pty Ltd v AXA Trustees Ltd (2) [2001] NSWADT 164.) In a case in the Equal Opportunity Division, the Tribunal awarded costs to a respondent when the applicant withdrew her application on the Friday before the Monday when it was listed to be heard. ( Graham v Director General, Department of Community Services ; ex tempore, unreported) Although the Appeal Panel did not have to deal with this question on appeal, it made the following relevant comment:
We are satisfied viewing the history of the costs rulings in this matter that the Tribunal was proceeding on the basis that the ordinary rule should not be disturbed unless there was egregious conduct on the part of either of the parties justifying an exceptional order. We have no doubt that late withdrawal on a Friday when the case is due to commence on the Monday could be such a circumstance. ( Graham v Director General, Department of Community Services [2001] NSWADTAP 4 at [32]).’

36 The Department submitted that this case fell within the circumstances where the Tribunal has in the past made a costs order against a party. The submission was that the appeal was completely devoid of merit based on the reasons that led to its dismissal. The Department also noted that the applicant knew that he was not going to be in attendance at this hearing and he was prepared to withdraw his application rather than attend the hearing.

37 The Department referred to his failure to file submissions pursuant to Direction 1. It also noted the recent decision of the General Division of the Tribunal in Miriani v Commissioner of Fair Trading [2005] NSWADT 99 [since set aside on other grounds by the Appeal Panel, and remitted]. This decision referred to a range of factors that might be considered in making an award as to costs. Ms Mahony referred to the emphasis given in the decision to the Practice Note on Costs issued by the Tribunal where one of the factors is prolonging unreasonably the time taken to complete the proceedings and the relative strengths of the claims made by each of the parties, including whether a party has made a claim that it has no tenable basis in fact or law. In Miriani the Tribunal found that in the circumstances of that case there should be an order for costs.

38 Ms Mahony referred in closing to her primary submission that there was no merit in the appeal, and that by failing to appear at the hearing and making no arrangements either to have someone appear on his behalf, allowed the proceedings to be prolonged unnecessarily and caused the parties to incur unnecessary costs.

39 As to the quantum of the order, Ms Mahony stated that she was seeking an order that costs from the date the appellant failed to file his submissions with the Tribunal (18 May 2005); or in the alternative, the costs of making submissions and costs of attendance today.

Decision on Costs Application

40 As to the application for costs as from 18 May 2005, the President on behalf of the Appeal Panel ruled:

I think the application as it relates to the longer time frame is maybe not as strong because whilst the appellant did not comply with the directions you (the first respondent) proceeded to do so; even though you probably could have sought relief [from compliance] or got a directions hearing on at that stage. These comments are not intended to be critical.

41 As to the costs of the day, the President on behalf of the Appeal Panel ruled (the text has been revised for publication):

The Tribunal and the Appeal Panel has made the observation on a number of occasions in various decisions and in various Divisional contexts that the principle in s 88 ought operate a little differently, and more actively, at Appeal Panel level as against the first instance level.

It is clear I think that the objective of the Act is to promote access and that means that one ought not readily, if ever, accede to costs applications from respondent agencies in merits review matters at first instance level though it has occurred occasionally. The appeal is a different situation.

It is the case of the disappointed party putting the successful party to further effort in basically retaining the benefit of the decision that has fallen in its favour. In those circumstances if appeals are not seriously prosecuted then it is reasonable I think to be more well disposed to costs applications despite the general principle [reflected in s 88]. The matters you [the respondent] have mentioned today are significant – the ruling of the Tribunal as to the apparent lack of merit of the appeal and the failures to comply with directions.

As to the failure to attend, it seems to me that the appellant did notify that. He did offer you, the respondents, an option in relation to his failure to attend which was to have the matter disposed of the matter on the papers.

In my view the order of the Tribunal should be simply an order that today’s costs of attendance at the Tribunal be paid by the appellant to the first respondent and that there be a limit on those costs of some reasonable amount.

We will make an order for essentially for two and half hours professional attendance and leave it at that.

Orders

42 The Appeal Panel made the following orders at the conclusion of the hearing:

1. Appeal dismissed as lacking in substance.

2. Appellant pay the First Respondent’s costs of today fixed at the level of 2 and ½ hours professional time.