KT v Sydney Local Health Network (formerly Sydney South West Area Health Service) (GD)

[2011] NSWADTAP 10

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

KT v Sydney Local Health Network (formerly Sydney South West Area Health Service) (GD) [2011] NSWADTAP 10

Hearing dates:

15 February 2011

Decision date:

18 March 2011

Before:

Appeal Panel

Decision:

1. Appeal dismissed.

2. Registrar to convene a telephone conference in relation to any directions that may be required in relation to the consideration of any costs applications.

Catchwords:

PRIVACY - Tribunal order that no further action required - appeal - interlocutory rulings (refusal to disqualify, refusal to permit summons, hearing on papers) - leave to appeal refused. Appeal as to final decision dismissed - disclosure of personal information in response to subpoena - cross-disclosure of personal information relating to one co-applicant to other co-applicant - when permissible - Privacy and Personal Information Protection Act 1998 - Health Records and Information Privacy Act 2002

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998

Cases Cited:

Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70
Director General, Department of Education and Training v MT [2006] NSWCA 270
GA v The University of Sydney (GD) [2010] NSWADTAP 31
House v R [1936] HCA 40; (1936) 55 CLR 499
KT v Sydney South West Area Health Service [2010] NSWADT 131
KT v Sydney South West Area Health Service [2010] NSWADT 227
LN v Sydney South West Area Health Service [2011] NSWADTAP 3

Category:

Principal judgment

Parties:

KT (Appellant)
Sydney Local Health Network (formerly Sydney South West Area Health Service) (Respondent)

Representation:

Counsel
A Britt (Respondent)
KT (Appellant in person)
B Woolley (Respondent)

File Number(s):

109053

 Decision under appeal 

Citation:

KT v Sydney South West Area Health Service [2010] NSWADT 227

Date of Decision:

2010-04-06 00:00:00

Before:

General Division

File Number(s):

093255

REASONS FOR DECISION

1. The appellant, KT, worked at the Royal Prince Alfred Hospital, Camperdown for a number of years as a cleaner. He was attached to the Environmental Services Department, his position title being 'Hospital Assistant'. The Hospital belongs, administratively, to a regional division of the NSW Department of Health, now known as the Sydney Local Health Network, but known at the times relevant to this case as the Sydney South West Area Health Service ('SSWAHS' or 'the agency').

1. On 12 January 2009 the Department dismissed him, with 7 days' notice, after finding him guilty of three breaches of the Department's code of conduct following a disciplinary investigation that had its origin in a complaint from a female colleague alleging threatening and bullying conduct on his part. (He took action in the NSW Industrial Relations Commission over his dismissal. The proceedings were settled in June 2010 on terms that included the provision by the agency of compensation and a statement of regret, without any admissions.)

1. On 14 July 2009 he made two applications to the agency for review of conduct. They both raised issues in relation to the agency's compliance with the Privacy and Personal Information Protection Act 1998 (PPIP Act) and the Health Records and Information Privacy Act 2002 (HRIP Act).

1. The first application referred to five items of conduct, all of which had, for him, some connection with the events that led to his dismissal.

1. The second application referred to a separate matter. It put in issue the release by the agency's compliance officer of a document that contained personal information about him to another person, his wife, LN.

1. The agency's review of these complaints found no contravention. On 25 September 2009 KT applied to the Tribunal for review. The Tribunal found no contravention, and entered an order that no further action be taken by the agency. See KT v Sydney South West Area Health Service [2010] NSWADT 227 (14 September 2010) ('decision no 2'). At an earlier point, the Tribunal dealt with a number of preliminary matters, giving oral reasons ex tempore on 20 April 2010 and publishing written reasons on 1 June 2010. See KT v Sydney South West Area Health Service [2010] NSWADT 131 ('decision no 1').

1. In its decision, the Tribunal sets out in detail the various provisions of the two Acts placed in issue. We will not repeat all that material here. In our view, it is sufficient for present purposes to give the following summary.

1. The agency is bound by the requirements of the PPIP Act in relation to its handling and management of records of 'personal information', a broadly defined concept (see s 4). There is a separate regime binding it when it deals with personal information that satisfies the definition of 'health information'. The handling and management of 'health information' is regulated by the HRIP Act. 'Health information' is excluded from the scope of the PPIP Act by s 4A, and the term 'health information' is defined at s 6 of the HRIP Act. This agency, given the nature of its functions, will frequently have to examine its compliance with both of these Acts when dealing with complaints made about its handling and management of personal information.

1. This is such a case. KT put in issue the way the agency dealt with species of information that fall within the definition of 'personal information' and species of information that fall within the definition of 'health information'.

1. For the most part the principles that the agency is required to observe are expressed in the same terms in each Act, thus minimising the possibility of inconsistent outcomes in respect of the two categories. However that is not always the case. The Tribunal in its reasons recites, in our view, accurately the provisions relevant to each of the complaints made by KT and makes appropriate distinctions between what information said to have been mishandled was merely 'personal information' and which information was 'health information'.

1. In its decision, the Tribunal refers to and considers, as appropriate, the application of the following provisions:

PPIP Act, s 4 (definition of personal information), s 17 (limits on use of personal information), s 18 (limits on disclosure of personal information), s 25 (exemptions where non-compliance is lawfully authorised or required), s 23(5)(d)(ii) (disclosures in connection with the investigation of offences)

HRIP Act, s 5 (definition of health information), Health Privacy Principles 10 and 11 (limitations on disclosure of health information for secondary purposes), Health Privacy Principles 3 and 4 (requirements governing the collection of health information).

The Appeal

1. KT now appeals. The notice of appeal was filed on 7 October 2009. The appeal is governed by ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). An appeal may be made on any question of law, and, with the leave of the Appeal Panel an appeal may be extended to the merits. There are special provisions to which further reference is made below covering appeals in relation to interlocutory decisions.

1. The notice of appeal asserts that various questions of law arise in relation to the preliminary rulings and the final decision; and seeks leave for the appeal to be extended to the merits.

Grounds

1. In his appeal grounds KT challenges the Tribunal's decisions on a variety of bases using these headings: 'ignoring relevant material', 'relying on irrelevant material', 'making erroneous finding', 'identifying the wrong issue', 'finding of fact is not supported by any evidence and involving manifest illogically [sic] in arriving at the decision', 'excessive jurisdiction power', 'the Tribunal mistakenly assumed that particularly [sic] evidence had not been given at earlier hearings', 'demonstrable inconsistencies with other decisions', 'Tribunal did not give effect to government policies', 'rule of evidence', 'the Tribunal has no power to correct administrative injustice or decision', 'grounds of judicial review' and 'fraud'.

Appeal as it relates to the Decision No 1

1. The ADT Act s 112 describes an 'appealable decision', relevantly, as 'a decision ... made in proceedings for ... a review of a reviewable decision'. A 'reviewable decision' has an extended meaning, and includes reviewable conduct of the kind with which this case is concerned: ADT Act, s 8. It will be seen that the expression 'a decision ... made in proceedings' is a wide one. Accordingly an appeal may be made in relation to decisions taken under the statutory powers given to the Tribunal to assist it in managing its proceedings. That this is so is supported by the non-exhaustive list of decisions given in s 112(2) that are appealable: decisions as to standing, joinder and representation by agent.

1. In his notice of appeal KT challenges the following decisions of the Tribunal made prior to it proceeding to make its final decision:

(a) The Tribunal's decision at a planning meeting on 22 February 2009 to proceed to determine the application in the absence of the parties, in exercise of the power given by s 76 of the ADT Act;

(b) The Tribunal's refusal to issue a summons sought by KT addressed to the Burwood Court, seeking production of documents held by the Court, in exercise of the power given by s 84 of the ADT Act;

(c) The presiding member's refusal to entertain a motion from KT that he withdraw from the case, relying on the right of objection given to parties to preliminary conferences by s 74 of the ADT Act;

(d) The Tribunal member's decision not to grant KT's application that he disqualify himself on the ground of actual or apprehended bias.

1. The time specified for the bringing of appeals to the Appeal Panel is 28 days from the date of the giving of oral reasons or written reasons whichever is the later, or such further time as the Appeal Panel allows: ADT Act, s 113(3). In this instance therefore time began to run on 1 June 2010. The notice of appeal was lodged after the handing down of decision no 2. The appeal is out of time as it concerns the decisions the subject of decision no 1.

1. The agency has objected to any grant of extension of time in relation to those decisions. Further, if that objection is disallowed, it notes that the decisions put in issue are 'interlocutory' in character (as to which see s 24A), and, even if the appeal is treated as in time, a further grant of leave to proceed is required from the Appeal Panel (s 113(2A)). It also objects to any grant of leave pursuant to s 113(2A).

1. KT is representing himself. But he is experienced in the procedures of the Tribunal having brought a number of applications to the Tribunal and appeals to the Appeal Panel. In the public copies of decisions, he bears the pseudonym 'TA' or 'KT'. He should therefore have a level of familiarity with the Tribunal's rules going beyond that which might be possessed by a one-time unrepresented litigant.

1. The provisions of ss 112 and 113, when read with s 24A, establish a scheme which places Tribunal decisions made in the exercise of interlocutory functions under a separate regime from other decisions. An appeal must be brought forward in relation to a decision made in the exercise of an interlocutory function in a timely way, and in addition the appeal must receive leave to proceed.

1. If the appeal is made in a timely way and before any final decision is made at first instance, the Appeal Panel has the opportunity to consider whether to deal immediately with the interlocutory rulings placed in issue, whether to defer them to later consideration (say after any final decision is made and any further appeal is lodged), or to refuse leave and not allow the matters to be re-agitated.

1. In this case, interlocutory rulings have been brought forward after the making of the final decision and out of time. It may be that KT did not appreciate the distinction to which we have referred, as between ordinary appeals and appeals in relation to interlocutory decisions. Even if an allowance is made for him being late on that account, in our view leave to proceed with the appeal should not be granted.

1. It is undesirable to have these matters re-opened at this stage. The case, as the reasons given in decision no 2 demonstrate, involved the consideration of a large body of evidence. The agency filed affidavits from seven people, many with annexures (22 in total). KT filed detailed submissions, affidavits and numerous documents (35 annexures).

1. Three of the interlocutory decisions depended on the making of discretionary judgements by the Tribunal. Discretionary judgements can only be disturbed if they miscarry in a serious way, in violation of the principles set out in the line of cases starting with House v R [1936] HCA 40; (1936) 55 CLR 499. In our view, there is no arguable case in relation to the Tribunal's exercise of its discretion on the three matters.

1. We refer first to the decision to proceed in the absence of the parties to determine the matter in the exercise of the power given by s 76 of the ADT Act. Section 76 provides:

76 Circumstances in which hearing may be dispensed with

The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.

1. The use of s 76 in the Tribunal; and the differences between this provision and those in some other tribunal statutes, is discussed in GA v The University of Sydney (GD) [2010] NSWADTAP 31 at [32]. See also Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 at [25]-[27]; LN v Sydney South West Area Health Service [2011] NSWADTAP 3 at [22]-[32]. The decision was originally made on 22 February 2010, and the reasons are set out in decision no 1. After making that decision at the 22 February planning meeting, the member gave directions for exchange of evidence and submissions, ending 6 April 2010.

1. In relation to the s 76 issue, the member heard the parties' submissions before making the decision, and, in our opinion, decided the matter by reference to relevant considerations as set out in the reasons. The conduct of the agency was readily able to be described in affidavit form. The key task of the Tribunal was to apply the law to the facts.

1. On 3 March 2010 KT applied to the member constituting the Tribunal (Molony JM) to disqualify himself. The agency objected to the application and noted that the matter had been assigned to the present member after the member originally allocated to the matter (Higgins JM) had acceded to a motion to disqualify herself. The member declined to grant the application.

1. On 13 April 2010 KT applied to the Registrar for a summons addressed to the Burwood Court for production of documents held by it. The summons was referred to the member for consideration. Section 84 provides:

84 Issue of summons

(1) A summons for the purposes of this Act may be issued by the Registrar:

(a) if the Registrar considers it appropriate to do so in the circumstances, on the application of a party to proceedings before the Tribunal, or

(b) at the direction of the Tribunal.

Note . The Registrar may refuse to issue a summons on the application of a party if the Registrar considers that it is not appropriate for a summons to be issued.

1. The summons decision was open in the circumstances. A large amount of evidence had already been filed, and the closing date for evidence had been reached. KT cannot point to any significant prejudice to his case in not having the summons allowed. The relevance of the Burwood Court is explained later in these reasons.

1. KT renewed his disqualification application on 20 April 2010 citing as an additional ground the refusal to issue the summons. It was again refused, for the reasons set out in decision no 1. In those reasons, the member refers to the relevant law governing the consideration of applications to disqualify for actual or apprehended bias. In our view, there is nothing problematic about his application of the principles.

1. The other matter is the Tribunal's refusal to entertain an objection to continuing to sit, relying on the right of objection given by s 74 in relation to preliminary conferences. We agree, for the reasons given by the Tribunal and by the agency in its submissions, that this was not a case where a s 74 preliminary conference had been convened or was on foot.

1. Leave to appeal the interlocutory decisions is not granted.

Appeal as it relates to the Decision no 2

1. We will now deal with the remainder of the appeal. This part of the appeal is in time, and leave is not required for it to proceed in respect of the alleged questions of law.

1. The Tribunal divided its decision into two parts corresponding to the two internal review applications. It referred to the matters the subject of the first review application as Complaint 1, sub-divided into items (a), (b), (c), (d) and (e). It referred to the matter the subject of the second review application as Complaint 2.

1. In our view, the Tribunal's account of the circumstances and the conduct of the agency were all based on the evidence before it. The fact-finding process of a court or tribunal is largely immune from challenge on error of law grounds. Only in an extreme circumstance can an error of law arise, such as where there is simply no evidence to support a finding or where critical evidence that stands against the finding made has not been addressed. Here the agency supplied affidavits providing the details of its administrative conduct. The Tribunal considered what evidence KT had that might place that account in doubt (for example, the faxes the subject of complaint 1(a)).

1. We will now deal briefly with the way the Tribunal addressed the evidence in relation to each of the complaints, and its ruling as to the relevant law.

Appeal concerning Complaint 1

Background

1. The background is set out in some detail in the Tribunal's reasons at paras [15] to [27]. The following is a summary.

1. KT worked in the same department of the hospital as Ms Y (the Environmental Services Department). She was an administrative officer working in the manager's office, handling such matters as pay records and attendance sheets. She had regular contact with KT in that role.

1. On 27 March 2008 as she was driving home from work, incidents occurred on the road involving another driver which frightened her. The other driver was KT. The next day there was an incident at work again which frightened her involving KT. She made an official complaint, and an internal investigation was commenced. KT was placed on leave shortly afterwards. He had a history of stress and back-related workers compensation claims, some of which had been contested. As the Tribunal notes in its reasons it is not clear from the material in this case what the reason was for KT being placed on leave. Acting on the advice of her manager, Y made a statement to the Newtown police on 1 April in relation to the 'road rage' incident. The police decided not to deal with the matter, but leave it to the internal investigation processes of the hospital. This was also her wish.

1. In late July KT was due to return to work. KT and Y received notices that they were not to have any contact with each other. Y complained to management about the short notice of his impending return and her fears about that. On KT's first day back Y was having lunch with a friend in the hospital grounds when KT sat down nearby and behaved in what Y regarded as an intimidating manner. She complained again to management and told her partner, Mr Z, who worked in another part of the hospital. The next day KT and Z encountered each other in the hospital grounds. A fight broke out. KT suffered a fractured nose, bleeding and bruising and had to have stitches inserted. Z voluntarily attended the Newtown police station the next day, made a statement and was charged with assault occasioning actual bodily harm.

1. On 16 August 2008 Y took out an interim apprehended violence order against KT. The police served the order on KT at his home address. On 12 January 2009 following the completion of the internal investigation report covering the original bullying complaints made by Y and the fight with Z, the Department dismissed KT.

1. Y's apprehended violence order application returned to court in March 2009, and was dismissed. On 26 March 2009 the hospital responded to a subpoena from Z's lawyer by providing a copy of records relating to the internal investigation to the Burwood Court. The charge was the subject of a two day hearing, and was dismissed at the conclusion of the hearing on 3 April 2009, the magistrate finding that Z had acted in reasonable self defence.

1. Four of the five items making up Complaint 1 have as their context the above circumstances i.e. (a), (c), (d) and (e).

1. In Complaint (a) KT alleged that the agency had disclosed investigation file documents containing personal information about him to the lawyer for Z before any subpoena was issued. Further he alleged that the agency when it did formally respond to the subpoena disclosed documents in excess of the scope of the subpoena.

1. The Tribunal examined the 17 documents that KT asserted had been improperly disclosed prior to any subpoena. A number of them, 13, bore a hospital fax imprint with a date earlier than the subpoena. The Tribunal accepted Ms Y's evidence that she had faxed them, using the work fax, of her own volition. The documents were all ones of which she was either the author or the addressee. She had sent them to the lawyer in connection with her AVO proceedings (finalised in March) and to assist with her husband's defence of the assault charge. The Tribunal was satisfied that the conduct was that of Ms Y and not conduct of the agency.

1. As to the remaining four documents, the Tribunal found that two of them were most likely supplied personally by Ms Y; and as to the final two there was nothing to implicate the agency in their transmission. Accordingly there was no conduct of the agency that fell subject to the principles limiting disclosure in either of the two Acts.

1. In our view, the Tribunal dealt thoroughly with the issues raised by KT, and its findings are unassailable. The records were those of Ms Y even though many of them were copies of records also officially held by the agency. It is not unusual for work facilities to be used on occasions for personal purposes by staff. In this instance that occurred. The use by a staff member of a telephone for a personal message (or in this instance a fax) does not by that fact alone turn the conduct into conduct of the agency subject to privacy laws. The Tribunal's decision properly applied the relevant principles, and appropriately referred to leading cases such as Director General, Department of Education and Training v MT [2006] NSWCA 270.

1. As to the second issue, the Tribunal referred to the evidence of the Director of Human Resources at the Hospital, Ms Mills, and that of the solicitor for the agency, Ms Woolley. The Tribunal accepted Ms Woolley's evidence that she forwarded to the Burwood Court in response to the subpoena, documents as follows:

- a photocopy of all statements, including witness statements

- a photocopy of all notes

- a photocopy of all records of interview

- a photocopy of all findings

- a photocopy of all decisions and outcomes.

1. The Tribunal referred to the terms of the summons. The above documents clearly fell within the scope of the summons.

1. One of KT's assertions is that the agency withheld material from the Court that might have put his conduct in a better light such as his statements to the internal investigation. If that did occur, it does not raise a matter that can be dealt with by reference to the PPIP and HRIP Acts. These Acts do not regulate non-disclosure.

1. Similarly, he expressed anger at hearing over what he saw as the unfairness of the hospital supplying all the investigation records to the Court and thereby to the lawyer for Z, but not telling him about that. As we understood his submissions at hearing, he was called to give evidence at the hearing of the charge, and some of the material was used to cross-examine him in a way he felt was abusive (the day 1 transcript was not in evidence, only the day 2 transcript covering the defence case and the court's findings).

1. These matters do not raise any issue of possible breach of PPIP or HRIP Act obligations as those obligations are presently cast. On the other hand, we acknowledge that agency responses to subpoenas may produce a situation where the privacy of individuals the subject of documents supplied under a subpoena may be infringed; and those individuals may receive no notice that such a disclosure has taken place, and feel 'ambushed' at hearing. The matter has been discussed in law reform commentaries. See, for example, the casenote at [1990] PrivCmrA 4 (1 July 1990); Puplick, (2002) 40 Law Soc Jnl 52, 'How Far Should the Courts be Exempted from Privacy Regulation'; and further, Australian Law Reform Commission, Discussion Paper 72, Review of Privacy Laws (2007), [32.8].

1. KT also submitted that the conduct of the agency in supplying the documents under subpoena constituted a 'fraud' on him. There is no basis for this allegation. The agency had a legal duty to respond to the subpoena.

1. In the case of Complaint (c) , KT's complaint is that an investigator's confidential minute of the investigation was transmitted by the investigation unit to the department in which he worked. In his opinion, that constituted a breach of the principles regulating use and disclosure. The minute was not in evidence. The Tribunal found, reasonably, that there was no evidence of any such transaction, and rejected the complaint. Its reasons appear at [80] to [83].

1. Complaint (d) raises the issue of the contact that occurred between Mr Leahy, Acting Director, Corporate Services and officer Hall at the Newtown Police station on 1 April 2008 after Y made her statement there. KT had obtained under FOI the police record of the discussion.

1. KT alleged that Mr Leahy had initiated the contact, and had unlawfully disclosed information to the police. The Tribunal accepted that officer Hall had initiated the contact with Mr Leahy after Ms Y had called at the station and made her statement. The evidence was that he was seeking background information in relation to the matters Ms Y had complained about. Mr Leahy gave evidence as to what he said.

1. In our view, it was appropriate for Mr Leahy to provide the police in response to their enquiries with the information he did about the work relationship between Y and KT and the advice he had given Y as to how the matter would be addressed internally. While the incident that triggered Y's contact with the police occurred on a public road outside the workplace, it was obviously a matter of concern to management given that the two worked in the same unit and had regular contact with each other, and there was a possibility that the incident on the road had as its background workplace issues. The Tribunal properly held that the disclosures that Mr Leahy made fell within a relevant exception to the prohibition on disclosure, found in s 23(5)(d)(ii), PPIP Act. Mr Leahy's conduct was also in accord with the Department's Privacy Manual.

1. In Complaint (e) KT raised the issue of how the police got his home address in August 2008 for service of the (interim) apprehended violence order. The order itself gave as his address 'care of' the Environmental Services Department. At that point the police did not have his home address. It is KT's assertion that the agency disclosed his home address to the police; and he nominated Ms Mills, the Human Resources Director, as responsible. The Tribunal concluded that there was no evidence that Ms Mills was the source of the address. Accordingly there could be no ground of complaint that the agency had breached KT's privacy by providing his home address using its files. In our view, the finding is unassailable.

1. Complaint 1(b) goes to KT's workers compensation claims relationship with the agency. He referred to communications in April 2009 and June 2009, after he had ceased to be employed, from the insurer to the agency. He contested them on that basis that they constituted unlawful collections of information by the agency. As the Tribunal explained in its reasons, there were operative consents from KT permitting relevant and necessary exchanges of information about him. They had been given by him in writing when he lodged his claims. Not all claims had been resolved when he ceased employment. The Tribunal was satisfied that the communications in issue related to unresolved claims. The fact that he had ceased employment was immaterial. The Tribunal accepted the evidence of Ms McAllister of the agency as to these matters.

Appeal concerning Complaint 2

1. KT's complaint concerns the way Ms Roberts, the agency compliance officer, handled a review application made to the agency by his wife, LN. She had been a patient at the hospital. She made the application on 20 April 2009. In the course of responding to the application Ms Roberts decided to provide LN with a copy of a report that related to a previous application. The previous application was lodged in September 2008 by KT and LN jointly.

1. Ms Roberts formed the preliminary view that the matters raised by LN in the April 2009 application overlapped with matters the subject of the September 2008 application. She decided to send a copy of the final report on the previous application in an attempt to clarify what matters remain to be addressed. It would seem that the correspondence was received on 13 July 2009 and opened by KT (see text of his complaint, Tribunal reasons para [7]). The report referred to matters personal to KT. In KT's view the disclosure of this information to his wife involved a breach of his privacy. The agency's submission is that the conduct was reasonable, and that, in any case, LN was entitled to see the final report on the earlier application as she was a co-applicant in respect of that application. It may be inferred from the Tribunal's reasons and KT's reaction that he had withheld the earlier report from her. The next day, 14 July 2009, KT lodged with the agency the internal review application underlying Complaint 2 (and also the application underlying Complaint 1).

1. In his notice of appeal KT challenged on similar grounds to those made in relation to Complaint 1 the adequacy of the fact-finding process of the Tribunal and its application of the law. The Tribunal dealt we consider correctly with the issues that arose.

1. The PPIP Act, s 53(8) imposes a duty on the agency to notify the applicant(s) of the findings of any review and the reasons for those findings, among other matters. It must follow that any applicant is entitled to a full copy of the report. If people make a joint application, they run the risk of cross-disclosure of personal information that may not have previously been known by one of them.

1. The Tribunal dealt with the matter on another basis - whether the consent exception to the prohibition on disclosure found in the relevant principles in the two Acts was applicable. It held, accepting submissions from the agency, that the making of a joint application necessarily involves the co-applicants in furnishing an implied consent to the release to each other of personal information that might not otherwise have been known to them where that information is relevant to the purpose of the report. We accept that analysis. See further [132] of the Tribunal's reasons.

1. We also regard it as a necessary consequence of the scheme of the PPIP Act (the operative Act in relation to matters of procedure for both the PPIP Act and the HRIP Act) that an agency officer has a discretion (to be exercised reasonably and lawfully) to consider whether matters raised by the present application are superfluous and do not require action, on the basis that they have already been dealt with. Ms Roberts' evidence that she looked at the previous file for that purpose was accepted by the Tribunal. We agree with the Tribunal's observations at [128]. We also agree with its observations as to those submissions of the agency which it saw as too wide. In our opinion, the Tribunal applied the relevant principles correctly to the facts.

1. We note that KT made a submission to the Tribunal that appeared to involve an admission on his part of dishonesty or at the least, serious misconduct. He said to the Tribunal that he lodged the September 2008 application without LN's consent despite it being presented as a joint application; therefore, on this argument, no consent could be implied so as to authorise Ms Roberts' subsequent action. The Tribunal properly rejected the submission. An agency is entitled to treat a joint application from adults, which is apparently consensual on its face, as one made by equals who are to be treated equally in relation to the rights given by the Acts.

1. In his appeal, KT submitted that the Tribunal had failed to take into account an affidavit from LN sworn 15 March 2010, and filed 18 March 2010. The affidavit is seen as relevant to Complaint 2, in that LN gives evidence that she did not previously know the personal matters about KT recited in the internal review report sent to her by Ms Roberts. It also includes a denial by LN that she was the source of the personal information about KT that was known to Dr Nossar, Mr Leahy and Mr Harding, some of which is repeated in the report. KT says that he attended the Registry after the decision was delivered, and the affidavit could not be found on the file. The Registry records refer to it being placed on the correctly numbered file. The file formed part of the material before the Appeal Panel and included the original of the affidavit duly stamped (and located in a different section to the usual one).

1. In our view, no issue arises. There is no duty requiring a judge or tribunal to refer in the reasons for decision to every statement placed in evidence. The Tribunal did not make any error in not referring to it. In our view, LN's affidavit was of no significance to the resolution of this complaint. What mattered in this case was that the original application was joint, and the parties each had a right to see the report (for the reasons explained above), and it was inevitable that there would be information personal to both parties in the final report. LN's state of mind or her level of prior awareness of the matters revealed about KT was immaterial.

Merits

1. We are not disposed to grant leave to extend the appeal to a reconsideration of the merits. This case received close and careful consideration by the Tribunal below. It made detailed findings on the evidence placed before it, and had regard to the applicable law. There are no errors of law in its analysis. There needs to be an end brought to this dispute.

Costs

1. The agency stated at hearing that it wished to reserve its position, pending publication of these reasons, as to whether it would apply for costs. KT on the other hand made an application for his expenses incurred in preparation of his case. He also referred to the alleged non-attendance of the agency at a planning meeting before the Tribunal below scheduled for 20 October 2009, and noted that the Tribunal had reserved his application for the costs of that day, and not subsequently dealt with it.

1. The costs issue will be dealt with by the President sitting alone as permitted by s 113(2E) of the ADT Act. The Registrar is directed to convene a telephone conference of the parties within 14 days if possible to make any directions that may be required in relation to the consideration of any costs applications.

ORDER

1. Appeal dismissed.

2. Registrar to convene a telephone conference in relation to any directions that may be required in relation to the consideration of any costs applications.

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Decision last updated: 29 March 2011