GV v Office of the Director of Public Prosecutions

[2003] NSWADT 177

CITATION:	GV v Office of the Director of Public Prosecutions [2003] NSWADT 177
DIVISION:	General Division
PARTIES:	APPLICANT GV RESPONDENT Office of the Director of Public Prosecutions
FILE NUMBER:	023194
HEARING DATES:	07/03/2003
SUBMISSIONS CLOSED:	04/22/2003
DATE OF DECISION:	07/25/2003
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	Privacy - information protection principle - collection - from third party - Privacy - information protection principle - collection - unlawful
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes Act 1900 Director of Public Prosecutions Act 1986 Evidence Act 1995 Privacy & Personal Information Protection Act 1998
CASES CITED:	McDonald v Director General of Social Security (1984) 1 FCR 354 Briginshaw v Briginshaw (1938) 60 CLR 336 Plumb v Rayner (1995) 84 A Crim R 402
REPRESENTATION:	APPLICANT C Capper, solicitor RESPONDENT N Sharp, barrister
ORDERS:	1 Application dismissed

1 This is an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (NSW) ("the Privacy Act") for a review of the conduct of a public sector agency, the respondent, in its dealing with alleged personal information of the applicant. It is alleged by the applicant that the respondent contravened two information protection principles (sections 8(2) and 9(a) of the Privacy Act) and certain orders are sought including damages pursuant to section 55(2)(a) of the Act. The respondent’s case is that there was no breach of the Act established and, in any event, exemptions from compliance with sections 9 applied (namely, sections 23(2) and 25(a) of the Privacy Act).

2 The parties are agreed that the Tribunal has jurisdiction to hear the matter, and I am satisfied that is the correct position. Legal representatives for both parties appeared at the hearing before the Tribunal in Lismore on 7 March 2003 and the Privacy Commissioner also appeared pursuant to section 55(7) of the Privacy Act by way of making written submissions.

3 At the hearing, both parties asked the Tribunal to split the case into separate liability and damages/orders hearings. I agreed and will proceed to determine the matter on liability alone. After the hearing, further written submissions were received by the Tribunal from the parties.

4 Due to the particular subject matter and the nature of the personal information claimed in these proceedings, I have decided to make no reference to the identity of the applicant in this determination and I will make other necessary adjustments in recording these reasons so as to ensure as far as possible the identity of the applicant is not revealed by other means.

5 The essential facts in the matter are largely not contested. They relate to events that occurred in the District Court of New South Wales sitting at a place and on a day I will not identify in April 2002. The applicant read an affidavit sworn 3 March 2003 before this Tribunal. He was not cross-examined on it by the respondent. The applicant is a senior officer employed by NSW Police and he was the informant police officer in relation to a criminal matter in 2002. The criminal proceedings were taken over by the Director of Public Prosecutions ("DPP") under the Director of Public Prosecutions Act 1986 (NSW). The applicant says that in late January or early February 2002 he attended the office of the DPP and spoke to a woman who I will refer to as "the DPP clerk". The DPP clerk informed him that the criminal matter in which he was involved was coming up for call-over shortly and would soon be set down for a hearing. The applicant said that he was unavailable to attend Court from March to June 2002 and said that he was not prepared to provide any further information or reason to explain his unavailability then and that if the judge wanted any further information, he was willing to attend court and inform the judge personally of the reason.

6 As it happens, the applicant was booked into hospital at this time in order to undergo major abdominal surgery and he did not wish his employer or any other person to be advised as to the exact nature of the surgery or the medical reason for it. He then received a notice from the respondent advising him that the trial had been listed to commence on a particular day in April 2002. That day (“the first day of trial”) was to be within weeks of his release from hospital after a 10-day admission for surgery. He contacted the DPP clerk and advised her that the criminal trial had been listed for hearing during his absence from work and he would not be available. He spoke to Mr Smith, a senior DPP solicitor, and was told the only way the matter could be resolved was for the applicant to obtain a medical certificate setting out that he would not be fit for duty during that period and that a notice of motion could then be filed so as to seek to vacate the trial date. He then attended his local general practitioner on 20 February 2002 and obtained a medical certificate from him that (merely) stated that the applicant was booked for major surgery on 11 March 2002 and will be unfit for work from that date to 11 July 2002 inclusive.

7 On 22 February 2002 the applicant attended the DPP's office and spoke to Mr Smith. He handed Mr Smith the certificate issued by the general practitioner and specifically raised his concerns about the nature of his illness and the detail of his surgery remaining private and confidential. He said he did not want his personal matters mentioned in an open court. He said that, if necessary, he was prepared to attend court and speak with the judge in chambers in the absence of all other persons as to the nature of his illness and the surgery. Mr Smith told him that such a meeting with the judge was not an option for the respondent.

8 After that meeting, the applicant heard nothing from the respondent until after the first day of trial in the District Court in April 2002. That was the day that the respondent collected a further and more detailed medical certificate from the general practitioner without the knowledge of or the permission of the applicant. On that day, the applicant had been several weeks out of surgery and was at home the entire day recuperating. He was available to be contacted by way of home telephone and mobile phone.

9 At about 1 p.m. on the first day of trial the applicant received a telephone call from a fellow police officer saying that the DPP clerk had contacted him and wanted the applicant to contact her. The applicant immediately telephoned the relevant DPP office and the DPP clerk was not available. He eventually spoke with her at about 1:30 p.m. and was told that the judge before whom the criminal matter was listed was not satisfied with the medical certificate provided earlier and that the judge had "ordered" a further report be made by the general practitioner urgently and that she had requested and obtained a further report setting out the applicant's medical condition and the nature of the surgery (the very things he did not want disclosed to anyone). The applicant then accused the DPP clerk of breaching his privacy and she passed him over to a solicitor who was instructing the Crown Prosecutor who was conducting the criminal matter that day ("the instructing solicitor"). The applicant made the same complaints to the instructing solicitor.

10 The applicant's evidence sets out a description of the nature of the information contained in the second medical certificate. It was not tendered by him to the Tribunal and it is not necessary that I see it. It is not disputed that it contains personal information within the meaning of the definition of that expression in section 4 of the Privacy Act. As events transpired at the hearing on the first day of trial and on the next day, the second medical certificate was never shown to the judge and it was returned to the applicant and he retained possession of it.

11 The applicant gave detailed evidence to the Tribunal relating to physiological and psychological symptoms that he says were brought on by or as a result of the events that transpired at the District Court on that day as they were relayed to him by others. For example, he was told that in addition to the judge "ordering" that a further medical report be provided, the judge was contemplating issuing a warrant for his arrest as the second medical report was not tendered by the respondent. These matters caused him some significant concern and I make no findings concerning those matters at this stage of the hearing.

12 The applicant also tendered the documents attached to his application filed in the Tribunal on 27 August 2002. Those documents relate to early correspondence the applicant had with the Privacy Commissioner and the respondent and include the transcript of the District Court hearings on that first and second day in April 2002. On 4 June 2002 the applicant made a request the Privacy Commissioner to investigate the matter. The Privacy Commissioner declined to investigate as the applicant had applied for and had received an "internal review" conducted by the respondent within the meaning of section 53 of the Privacy Act.

13 The internal review was conducted by the Solicitor for Public Prosecutions. It contained a summary of the facts and an assertion that exemptions applied to it under the Privacy Act. The said Solicitor determined that no further action would be taken in relation to the matter.

14 In its case before the Tribunal, the respondent read five affidavits from four deponents, none of whom were cross-examined by the applicant. The Crown prosecutor who conducted the vacation motion in the criminal matter swore affidavits on 17 January 2003 and 6 March 2003. The instructing solicitor swore an affidavit on 10 January 2003 and the DPP clerk swore an affidavit on 20 January 2003. The senior solicitor of the respondent, Mr Smith, also swore an affidavit on 20 January 2003. These affidavits also attach the District Court transcript and some other documents and correspondence.

The District Court Vacation Application in April 2003

15 Due to a number of reasons set out in the affidavit of Mr Smith, notwithstanding that the respondent was aware of the applicant's unavailability around 4 February 2002 a notice of motion to vacate the hearing was not filed until 11 March 2002. It was made returnable on the first day of trial, namely, the date that the criminal trial was due to commence. The notice of motion sought orders that the trial date be vacated and it was supported by an affidavit of Mr Smith wherein he set out information about how the applicant was the informant in the case and how his evidence was crucial to the Crown case. It also provided details of (but not a copy of) the first medical certificate.

16 On the first day of the vacation motion in April 2002, a number of criminal trials were listed for hearing by the Court that day. The Court eventually called on the relevant criminal matter and was apparently familiar with the contents of the vacation motion as, after the appearances occurred, the following exchange took place:

“His Honour: … May I see the medical certificate in this matter please.

Crown Prosecutor: Yes your Honour.

His Honour: I refuse to accept this certificate.

Crown Prosecutor: Sorry your Honour.

His Honour: This certificate is worthless. I required to know, and the doctor should know, that the Court would require something over and above "is booked for major surgery." For what.

Crown Prosecutor: I can't go beyond the affidavit of Mr Smith or the certificate your Honour.

His Honour: Well I require the doctor to fax a complete report to this Court by 1 p.m. today.

Crown Prosecutor: Thank you your Honour.

Practitioner for the Accused: Stood down till two o'clock your Honour.

His Honour: Yes, and he should be informed that in future if he's called on to provide a certificate for the Court the very least he can do is to indicate for what condition the person concerned is being treated.

Crown Prosecutor: Thank you.”

17 The matter was stood down in the list for a time, called on briefly again, and came back before the court at 2 p.m. that day.

18 There is a great deal of evidence as to the matters that transpired in that short time. The Crown Prosecutor stated in his affidavit that when he heard the judge's remarks requesting a further medical report he understood it to be "an order" that he was obliged to fulfil in his capacity as a legal practitioner and an officer of the Court. He did not consider that he had any choice in the matter. There was significant legal argument before me in these proceedings as to whether or not the remarks of the Court constituted an order.

19 Also present in court when the above comments were made were the instructing solicitor and the DPP clerk. The instructing solicitor asked the DPP clerk to relay the details of the judge's "order" to Mr Smith, the senior DPP Solicitor, which she did. She informed Mr Smith that the judge had made an “order” in the following terms:

“Judge [named] has ordered that a further medical report about the condition of [the applicant] be obtained and tendered to the Court.”

20 Mr Smith then asked her to contact the doctor and obtain the requested report, which she did. In her discussions with the doctor, she conveyed that he had been ordered to provide a further medical report to the Court by 1pm that day. He protested that his client expressly did not want the details of his medical condition or the nature of the surgery revealed to anyone. The DPP clerk stated that the report would not be given to the applicant’s employer and it was for the Court only. She suggested that he send the report to the office of the DPP by facsimile transmission and she would make arrangements for her to deliver it only to the Crown prosecutor and onto the judge. She said she could arrange it so that the original report could be retrieved from the judge and returned or destroyed. The doctor said he would prepare the report and that he trusted the Court would keep it confidential. He sent the report to the DPP office by facsimile transmission around 1pm while the DPP clerk attempted to contact the applicant by telephone. The DPP clerk read it and took it to the courthouse. At about 1.30pm she gave it to the instructing solicitor and the Crown prosecutor who each read it. Shortly thereafter, the applicant was able to speak by telephone with the DPP clerk and the instructing solicitor. He was told of the events that had transpired and that the further medical report had been “ordered” by the Court and the report was read out to him over the telephone. He made it plain that he was not happy with it and it was not to be released to the Court upon resumption at 2pm.

21 On resumption at 2pm that day, the following was said:

“Crown Prosecutor: Your Honour [the criminal matter] and your Honour’s request that further and better particulars be provided in respect of the medical certificate which indicates that the informant is going to be unable to attend the trial due to major surgery. … The informant has instructed us that he does not want the reasons for his major surgery disclosed to anyone and so, your Honour, I'm in the position where I'm really unable to assist the Crown's application for the adjournment any further than the material that has already been placed before your Honour. I might add your Honour that the possible consequences of such a course of action has been explained to those who have given the Crown those instructions.”

22 There was then some discussion about the Crown case and why the applicant's evidence was important. The legal representative for the accused, while not opposing the adjournment application, suggested that the court should take the matter up with the applicant. The court went on to discuss the matter for some considerable time thereafter. The judge indicated that he could not understand why the applicant was taking the position that he did and why his employer (NSW Police) was supporting him in this regard. The judge canvassed a number of possible options involving confidential tender of the document and was informed that the applicant would not consent to those options. He said that he would give the applicant one more chance the next day to have the medical certificate produced in court and added:

“Failing which I will then contemplate the issuing of a warrant for his arrest.”

23 On the next day, the court was informed that the respondent and the NSW Police were having high-level discussions concerning some "Privacy Act implications" involved in the disclosure of the information that the Court was seeking and that the issue had assumed "enormous proportions". The Court was told that NSW Police regarded the second medical report as improperly obtained by the respondent in breach of the provisions of the Privacy Act, that discussions were continuing, and the privacy of the applicant was "the dominant consideration". The judge expressed his displeasure about this situation and again contemplated the possible summoning of the applicant to the Court to explain the position. The matter was stood down to 2 pm. At that time another senior police officer was called by the Crown prosecutor to give oral evidence concerning the serious nature of the applicant's surgery and a letter was tendered regarding that officer's limited knowledge. The letter stated, inter alia, that the senior police officer was aware of the employment and position of the applicant and said:

“[the applicant] is unequivocally a police officer of the highest integrity and honesty. He is dedicated and committed to serving the public of New South Wales as a tenacious police officer and criminal investigator. I hold him in the highest regard as one of my most valued investigators in this Command.

I am aware that [the applicant] has recently, in early March 2002, had a major four-hour surgical operation performed by specialist in Brisbane. This was as a result of [the applicant] suffering an enduring, chronic, debilitating medical condition.

I am aware that a medical certificate has been issued by his doctor which states that as a result of the operation he is not in a fit and proper condition to be able to give evidence in the present matter [the criminal matter].

I am aware that [the applicant] is convalescing at his home for a period which is likely to be a lengthy one of at least three months. He is not expected to be able to return to light duties until June and if he is fit enough to return to light duties, it is expected he will not be fit to perform full duties for another three months to September 2002.

I respectfully submit from my knowledge of [the applicant's] condition that he is in absolutely no condition, to be physically or mentally capable of attending Court and giving evidence. His incapacity is genuine and serious and I seek the Court's empathy and understanding by accepting the medical certificate and this evidence. I ask that the [criminal matter] be vacated under the compelling circumstances.”

24 After oral examination of this senior officer, the judge then made a number of remarks indicating he believed that medical information was being wrongly kept from him. He said that on this occasion “I will not demand what, in my view, I am clearly entitled to” and said that he found the whole business "quite bizarre, extraordinary and surrounded with a certain degree of mystery" which was "quite impossible to discern". He then reluctantly vacated the trial and set it down for another date. He requested that a transcript of his remarks be taken out and forwarded to the personal attention of the Commissioner of Police and also to the Director of Public Prosecutions in person.

The Issues

25 The issues that I have to decide in these proceedings are:

(a) Was the personal information obtained by the officers of the respondent collected by any unlawful means in contravention of section 8(2) of the Privacy Act?

(b) Was the personal information collected from a person other than the applicant where the applicant had not authorised collection of the information from someone else in contravention of section 9(a) of the Privacy Act?

(c) If there was a contravention of section 9(a), do the exemptions contained in sections 23(2) and 25(a) of the Privacy Act apply?

26 The Privacy Act sets out the “information protection principles” in Part 2, Division 1 of the Act. Sections 8 and 9 provide:

“8 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.

9 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.”

27 Sections 20 and 21 provide generally that the information protection principles may be modified by a number of means (that do not apply in this particular case) and that a public sector agency must not contravene the information protection principles.

28 Division 3 of Part 2 of the Privacy Act (ss22-28) provides for a significant number of specified exemptions from the said principles. Relevantly, section 23 provides:

“23 Exemptions relating to law enforcement and related matters

(1) A law enforcement agency is not required to comply with section 9 if compliance by the agency would prejudice the agency's law enforcement functions.

(2) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 9 if the information concerned is collected in connection with proceedings (whether or not actually commenced) before any court or tribunal.”

29 Section 25 provides:

“25 Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).”

30 I should also mention s 6 of the Act, even though it is not relied on by the respondent. It provides:

“6 Courts, tribunals and Royal Commissions not affected

(1) Nothing is this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions.

(2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission's functions.

(3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes:

(a) in relation to a justice—such of the functions of the justice as relate to the conduct of committal proceedings, and

(b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 1980.”

31 The Tribunal’s powers to review the conduct that was the subject of the applicant's privacy application to the respondent is contained primarily in section 55 of the Privacy Act. The “conduct” that is reviewable is defined in section 52(1) & (2) of that Act and, in this case, the reviewable conduct relates to the alleged contravention of 2 specified information protection principles by the respondent agency.

The Burden of Proof

32 Before dealing with the primary issues in the matter, I asked the parties for submissions going to a number of preliminary issues concerning the nature and function of the Tribunal in dealing with Privacy Act matters and going to the onus of proof, if any. Both parties responded and the applicant filed submissions on this issue on 15 April 2003 and the respondent filed submissions on 22 April 2003.

33 The applicant's legal representative submitted that in exercising the Tribunal's functions of the "review of the conduct" that was the subject of the applicant's original privacy application to the public sector agency within the meaning of section 55 of the Privacy Act, no party bore an onus of proof in the ordinary legal sense of that expression. There is no provision in the Privacy Act going to the issue at all. The applicant relied on a decision of the Federal Court of Australia in dealing with an appeal from a decision of the Administrative Appeals Tribunal (“AAT”) in McDonald v Director General of Social Security (1984) 1 FCR 354 in support of this proposition.

34 The applicant submitted that instead of an onus of proof, the applicant faced an initial or evidential burden of proof in circumstances where the applicant was seeking formal orders of the Tribunal including orders for damages under the Privacy Act. The applicant contended he bore this burden so as to raise a prima facie case that the relevant information protection principles were contravened and conceded he must place sufficient material of probative value before the Tribunal in order to get his case off the ground, as it were.

35 The respondent’s representative contended that the applicant bore an onus of proof in cases of this kind and that this was compatible with the Tribunal’s function in deciding privacy matters. It was said that the Tribunal was acting more like a quasi-judicial tribunal than an executive-only appeal body such as the Commonwealth’s AAT as the Tribunal had the power to make binding and coercive orders (which were said to be a hallmark of judicial power). It was further submitted that the standard of proof that the Tribunal had to apply was the common law civil standard of proof (Briginshaw v Briginshaw (1938) 60 CLR 336) that is, the Tribunal had to be satisfied of any breach or contravention on the balance of probabilities.

36 I do not need to resolve these matters in the present case. I consider that concepts relating to the onus and standard of proof, in the absence of any legislative assistance, are not applicable in the Tribunal’s Privacy Act reviews. The primary reason for this is that even if a “contravention” of the information protection principles is found to have occurred, the Tribunal’s powers to make orders, including damages orders, is entirely discretionary under section 55(2) of the Privacy Act.

37 Further, I consider that in Privacy Act matters, the applicant would ordinarily bear an initial or evidentiary burden so as to satisfy the Tribunal that it should make the orders or the kinds of orders sought by the applicant in the proceedings. However, in certain cases, perhaps where a clear contravention has occurred or admittedly occurred, the respondent might bear an initial burden of putting its case first to the Tribunal. There must be some necessary flexibility in the hearing of such cases.

38 I have found it unnecessary to decide the applicable standard of proof in the present case as I have come to a level of satisfaction that also meets the civil balance of probabilities test. It might be necessary to resolve the issue in another case.

The Section 8 Issue

39 The next issue is whether the personal information obtained by the officers of the respondent was collected by an “unlawful means” in contravention of section 8(2) of the Privacy Act. The word “collected” is not defined. However, for information to be relevantly “collected” by the agency, it must not be “unsolicited” information (section 4(5) of the Privacy Act).

40 The Tribunal had the benefit of the respondent’s written submissions filed 22 January 2003 and the applicant’s written submissions filed 28 February 2003. In addition, the Privacy Commissioner filed submissions dated 5 March 2003. The parties also made oral submissions at the hearing.

41 The parties did not dispute that the information was collected for a “lawful purpose” that was “directly related to a function or activity of the agency” and “necessary for that purpose” within the meaning of section 8(1) of the Privacy Act. However, the applicant says that the manner in which the information was collected was not lawful and was not authorised and therefore in breach of section 8(2) in that the request of the District Court judge for the further medical certificate was not an “order”, but merely a “request”. It was argued that unless the particular collection here was authorised, it was collected by an “unlawful means”. Alternatively, the applicant argued that if it was an order, it was not an order that authorised, in terms, the collection by the DPP officers direct from the doctor. The “order” was for the doctor to provide the certificate direct to the Court by a certain time by a specified method (facsimile transmission).

42 Neither party addressed the Tribunal on what the expression “by any unlawful means” meant in s 8(2). On one view, it would plainly not be unlawful for an officer of the respondent to merely ask a general practitioner for a further medical certificate concerning a patient. The practitioner could refuse, citing doctor-patient confidentiality. On another view, it might arguably be unlawful for a person to wrongly represent that an “order” for production of a medical certificate had been made in circumstances where there was no such order and a patient’s confidentiality was breached as a consequence.

43 Both parties tied this issue to the question of whether or not there was an order made by the District Court. I shall resolve that issue first.

44 The request by the judge for the applicant’s general practitioner to provide to the Court a further medical certificate was nothing more than that – it was a request. I come to this conclusion for the following reasons:

(a) The judge did not issue formal orders to the doctor, who was not a party to the criminal proceedings. He did not commit the direction to writing or provide the doctor an opportunity to be served with the form of the orders. The judge was not provided with information by which he could have been aware whether the doctor was in his surgery that day or whether he was contactable;

(b) The form of the request suggests that it was exactly that; it was not couched in the language of a formal order;

(c) The request, if it was an order, was not obviously authorised by any provision of the District Court Act 1973 (NSW) or the District Court Rules 1973 or the Evidence Act 1994 (NSW) (and none of these Acts was referred to me by the respondent in this regard). Those Acts make provision for powers and rules relating to, inter alia, the issuance of subpoenas to produce documents and for persons to attend and appear as witnesses. None of those rules or powers was invoked here;

(d) The Court itself did not regard the request as constituting an order in that, upon being informed that the further medical certificate had been obtained (by the respondent) and that it would not be tendered by the respondent’s Crown prosecutor, the Court did not insist on compliance or on penalties for non-compliance. Further, on the next day, the Court stated that on this occasion, the Court would not “demand” a further explanation for the applicant’s unavailability.

45 The Court’s remarks should have been interpreted as merely stating to the respondent that if it wanted to succeed on its vacation notice of motion, it had better quickly obtain further medical evidence in support of it. That was all.

46 The respondent submitted (in supplementary written submissions) that the question of whether there was an order or not is not material and the real question is whether the respondent’s officers reasonably believed there was an order (as they each plainly did). I reject that contention. It is not supported by section 8(2) of the Privacy Act. If there was any doubt as to whether there was a proper order, it should have been raised with the Court at the first opportunity. The officers’ “belief” as to whether the judge had issued an order or not is beside the point.

47 Accordingly, the DPP clerk plainly collected personal information after a request of a District Court judge directed, in terms, to the doctor. The issue is whether that constituted collection by an “unlawful means”. I do not consider that a telephone call from the DPP clerk to the doctor requesting the further medical certificate constituted an “unlawful means” within the meaning of that expression in section 8(2). It was plainly lawful for her to pick up a telephone and make a request. It is arguable that it might have been “improper” for the respondent’s officer to have asserted that the doctor was under an “order” of the Court and he was “required” to draw the certificate within the meaning of section 138 of the Evidence Act 1995 (where the District Court has a discretion to exclude evidence improperly or illegally obtained). Evidence of a doctor-patient relationship might also be excluded by a court as being a “protected confidence” by section 126B of the Evidence Act 1995. It might also be that the collection was not “authorised” in the sense that there was no formal order supporting it. However, none of these matters go so far as to establish that the collection of the relevant information was by “unlawful means”.

48 No suggested breach of statute was referred to me by the applicant (other than the alleged contraventions of the Privacy Act). I have separately considered whether the collection complained of here might constitute action by unlawful means in the sense that it may have given rise to a breach of duty under the law of tort. I have considered the possible application of the law relating to, for example, interference with contractual relations (see for example: John G Fleming, The Law of Torts, 9th edn, page 756); interference with trade or business (by unlawful means) (ibid, page 765) and conspiracy (ibid, page 771). In some cases a tortious breach may occur without any motive or malice. In other cases, such as in intimidation, the tort can be committed by the implementation of lawful means. This area of torts is still being developed by Australian courts.

49 I have found no assistance from my consideration of section 138 of the Evidence Act 1995 (insofar at it relates to evidence “illegally” obtained and not to evidence “improperly” obtained) or the application of any possible criminal law (for example, section 545(B)(1)(a) of the Crimes Act 1900 (NSW) and Plumb v Rayner (1995) 84 A Crim R 402). In the absence of any party referring me to any applicable principles, I cannot discern any “unlawful means” in the present case for the purpose of the application of any legal principles under either the law of tort or the criminal law.

50 In any event, it may well be that the expression “by any unlawful means” refers only to the criminal law and not civil law. In not having found any clear breach on any basis in civil or criminal law in the present case, I do not need to finally resolve that issue in this determination. No contravention of section 8(2) of the Privacy Act is established.

The Section 9(a) Issue

51 As to whether the personal information was collected from a person other than the applicant and where the applicant had not authorised collection of that information from that person is a breach of section 9(a) of the Privacy Act, I consider the position is clear. If no exemption applied, there is plainly a contravention established here.

52 The respondent faintly suggested that the release of the further medical report was arguably consented to by the applicant as he had already authorised a medical certificate to be delivered to the Court. However, the submission is contrary to clear evidence from the applicant and the doctor (as relayed in the evidence of the DPP clerk) that the provision of a further medical report that told of the nature of the illness or the nature of the surgery was expressly not authorised by the applicant.

53 Accordingly, the question is whether the respondent was exempt from compliance with section 9(a) of the Privacy Act.

Exemptions from the Information Protection Principles

54 Section 23(2) of the Privacy Act provides that the agency is not required to comply with section 9 of the Act if the information is collected “in connection with” court or tribunal proceedings. The applicant submitted that read literally, the provision created an exemption to section 9 that was too wide and asked the Tribunal to construe it narrowly. It was said that the expression “in connection with” as opposed to “in relation to” suggested a more direct connection must be established between the information and the legal proceedings than would otherwise apply. It was suggested that the expression related only to the parties directly affected in the matter and not to third parties or witnesses in the said legal proceedings.

55 The respondent relied on the ordinary meaning of the provision and said that it applied. I agree. On a proper reading of section 23(2) of the Privacy Act, there is no basis for construing the section as narrowly as the applicant suggests. The section does not apply to exempting the whole of the information privacy principles. It only targets and exempts specific collections that would otherwise be in breach of section 9. There is no compelling reason for the Tribunal to accord such a narrow construction having regard to the specific, considered and clear nature of the provision. I do not consider there is any ambiguity in the provision. Whether or not the doctor was the subject of an order or merely a judge’s request, he was plainly being asked to provide evidence as a witness in an interlocutory application that arose directly in connection with court proceedings. If he refused, he could have been made the subject of a subpoena. Had that occurred, section 6 of the Privacy Act (judicial functions) might well have applied.

56 The Tribunal determines that the exemption is made out and the conduct of the agency that would otherwise have contravened section 9 is exempt by the operation of section 23(2) of the Privacy Act.

57 I do not need to decide on the other exemption relied on by the respondent, namely section 25(a) of the Privacy Act. Of course, given my views as to the application of section 23(2), the respondent might now arguably be said to have been “lawfully authorised not to comply with the principle [section 9]”. To the extent that the respondent’s arguments on this provision relied on the status of the District Court request as being an order, the exemption in section 25(a) would not apply.

58 Accordingly, I dismiss the application.