MH v NSW Maritime

[2011] NSWADT 248

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

MH v NSW Maritime [2011] NSWADT 248

Hearing dates:

11 and 12 November 2010, 3 December 2010

Decision date:

01 November 2011

Before:

P Molony, Judicial Member

Decision:

1.The Tribunal orders that NSW Maritime refrain from any further conduct in breach of the IPP's in s 12(c), and s 18 of the Act.

2.The Tribunal orders NSW Maritime to apologise to MH for the conduct in breach of the IPPs.

3.The Applicant shall file and serve any submissions he wishes to make on the issue of costs - together with a detailed list of costs and expenses (with evidence of expenditure) within 28 days of the publication of these reasons.

4.NSW Maritime shall file and serve any submissions in reply within a further 28 days.

Catchwords:

Privacy and Person Information Protection Act - personal information - failure to secure - use - disclosure - attribution of conduct to agency

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Legal Profession Act 2004
Ports Corporatisation & Waterways Act 1995
Privacy and Personal Information Protection Act 1998

Cases Cited:

Department of Education & Training v GA (No. 3) [2004] NSWADTAP 50
Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44
Director General, Department of Education and Training v MT [2006] NSWCA 270
GR v Director-General, Department of Housing [2004] NSWADTAP 25
HP v Hunter New England Area Health Services [2009] NSWADT 186
JD v Medical Board (NSW) (No. 2) [2006] NSWADT 345
JS v Snowy River Shire Council [2010] NSWADT 247
NW v NSW Fire Brigades (No. 2) [2006] NSWADT 61
PN v Department of Education and Training (GD) [2010] NSWADTAP 59
WT v Auburn Council [2007] NSWADT 253
WT v Auburn Council [2008] NSWADTAP 16
ZR v Department of Education and Training [2009] NSWADT 84

Texts Cited:

Investigation into the misuse of resources by a NSW Maritime Legal Services Branch Officer, September 2010, ICAC

Category:

Principal judgment

Parties:

MH (Applicant)
NSW Maritime (Respondent)

Representation:

MH (Applicant in person)
Crown Solicitor (Respondent)
Privacy Commissioner, J McAteer

File Number(s):

103163

REasons for decision

Introduction

1. MH has applied to the Tribunal under s 55 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act) to review the conduct of NSW Maritime (the agency) that he alleges breached the information protection principles in s 12(c), s17 and s 18 of the PPIP Act. MH seeks a number of orders:

• an order for compensation in the amount of $40,000,
• an order requiring the agency to conduct an assessment into its procedures and processes regarding the storage of personal information,
• an order requiring the agency to develop a policy regarding employees with access to personal information who leave NSW Maritime employment,
• an order requiring the agency to discipline those persons responsible for the disclosure of MH's personal information, and
• an order requiring the agency's chief executive to prepare and deliver a personal apology to MH.

1. MH is a former employee legal officer of the agency. In March 2010, the Professional Standards Unit of the NSW Law Society informed MH that Mr Nicholai Dacombe, also a former employee of the agency, had lodged a complaint about MH dated 4 February 2010 with the Office of the Legal Services Commissioner ("OLSC"), alleging that MH had deposed and sworn a false affidavit.

1. The Law Society provided MH with a copy of the complaint letter signed by Nicholai Dacombe . Attached to the complaint letter was:

An affidavit of MH filed, but not tendered, in Supreme Court proceedings 30037/09, on 28 May 2009 (the Supreme Court Affidavit),

MH's curriculum vitae ("CV"),

MH's job application to the agency, and

A copy of an email dated 23 August 2008 sent from MH to Searle Loughman, an employee of the agency.

1. Mr Dacombe's complaint letter indicated that earlier complaints about MH had been made to the OLSC but withdrawn. He wrote -

Reports were made to [the OLSC] by NSW Maritime staff but the staff members making the reports to you were ordered by the Chief Executive to withdraw them.

As a result of the reference to earlier reports to the OLSC, MH learned for the first time that employees of the agency had made a complaint about him prior to 4 February 2010.

1. On 3 May 2010, MH applied in writing to the agency for an internal review pursuant to s 53 of the PPIP Act into -

... how Mr Dacombe came into possession of my personal information and how it came to be used to lodge the Complaint.

1. Section 52(6) of the Act provides with respect to internal reviews -

The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.

1. By 9 July 2010, more than 60 days after MH had sought internal review, the internal review had not been completed. As a consequence MH applied to the Tribunal to review the conduct in issue.

1. Both parties have made competing submissions as to why the internal review had not been completed. MH argued that I should draw an adverse inference with respect to the agency's motivations in not completing the review.

1. MH's complaint involved a consideration of the conduct of a number of officers of the agency, especially in its legal department, ranging from law clerks to the agency's Acting General Counsel/Manager, Legal Services, and extending to the senior ranks of the agency's executive. Difficulty in finding a suitable officer to conduct the internal review was said to be one of the reasons for the failure to complete the internal review. Another complication, was, at the time when MH sought the internal review and subsequently, that the Independent Commission Against Corruption (ICAC) was conducting an inquiry into allegations of corrupt conduct by the agency's Acting Legal Counsel\Manager of the Legal Services Branch - Ms Kelly - (Operation Vargas).

1. The Tribunal's function in conducting a review under the PPIP Act is to review the conduct falling within the scope of the complaint, fairly construed, in order to identify whether there has been a breach of an Information Protection Principle or of Privacy Code of Conduct: see s 52(1)(a) and (b) and Department of Education & Training v GA (No. 3) [2004] NSWADTAP 50 . It is not to review the internal review decision or the process whereby the internal review decision was or was not made. It is therefore, not necessary for me to address why the internal review was not completed.

1. In conducting reviews of conduct under the PPIP Act the Tribunal usually has the advantage of an internal review that sets out the relevant facts, as established after investigation by the internal review officer, and considers whether there has been a breach of any relevant IPP's or Privacy Codes of Conduct. While the Tribunal must make its own finding of fact, a decision made on internal review usually provides a convenient basis for the Tribunal's review and simplifies the fact-finding process.

1. As a consequence where, as here, the internal review has not been completed at the time the Tribunal receives an application for external review, the Tribunal usually remits the issue to the agency for reconsideration under s 65 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). In this case I considered following that usual course, but was persuaded not to do so given the seriousness of MH's allegations, the suspicion with which MH viewed the agency and its motivations, and the public controversy surrounding the operation of the agency's Legal Branch in the light of Operation Vargas. I thought it in the public interest. and in the interest of both MH and the agency, that the Tribunal proceed to conduct its own review of the conduct in issue without insisting that an internal review be completed. In the circumstances, I doubted that any hearing time would be saved were an internal review completed, and thought that the process of an internal review would only result in delaying the proceedings, without benefit.

1. Consequently this matter proceeded without a completed internal review. The hearing took place over three days in November and December 2010. MH was self-.represented (save for, by agreement, being represented by his son when cross-examining a number of his former colleagues out of respect for their wishes). The agency was represented by Ms Davidson. The Privacy Commissioner, represented by Mr McAteer, has exercised the Privacy Commissioners right to appear and be heard throughout the proceeding. I am grateful for the assistance he provided to the Tribunal and the parties.

1. Following the hearing the parties have made lengthy and detailed written submissions. Those submissions closed on 10 April 2011.

The agency's concession

1. Before the hearing the agency conceded that it had breached s 12(c) of the PPIP Act in relation to the documents that were attached to Nicholai Dacombe's February 2010 complaint: the Supreme Court Affidavit, the Applicant's CV and job application and the Searle Loughman email (the complaint documents).

1. Section 12(c) provides -

A public sector agency that holds personal information must ensure:

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse,

Jurisdiction

1. The Tribunals jurisdiction is found in s 55 of the PPIP Act. Relevantly, it provides -

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(1A) A person ( the applicant ) who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Tribunal for a review of the conduct.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 .

(4) The Tribunal may make an order under subsection (2) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(4A) ...

(5) If, in the course of a review under this section, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.

(6) The Privacy Commissioner is to be notified by the Tribunal of any application for a review under this section. The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section.

1. A review of conduct under the PPIP Act is not at large. It is confined in its scope by the initial request for internal review, reasonably construed: Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, and KO' & 'KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 and Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44. This is so as s 54 of the PPIP Act allows an applicant to seek review of ' the conduct that was the subject of the application (for internal review) under s 53,' not other conduct.

1. Section 53(1) relevantly provides -

A person ( the applicant ) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

1. In KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18, the Tribunal said:

'10 The Tribunal's jurisdiction is determined by a combination of sections 52, 53 and 55 of the Privacy Act. In Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, the Appeal Panel held that the conduct complained of must relate to a breach or alleged breach or contravention of an IPP or Code of Practice (s52) and held (at [7]):

11 In the present case, there was no subsequent correspondence or discussion between the parties clarifying the conduct complained of in the internal review application. The respondent's internal review investigation report makes this clear.

12 In Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, a number of other principles were determined in order to assist a Tribunal in determining the scope of an internal review application (at [13], [14] and [17]). In summary, the Appeal Panel held (as to contraventions of the IPPs only):

"a) the applicant does not need to identify the contravention ... on which he or she relies in the application for review;

b) if an applicant does identify one or more contraventions ...that information would assist the agency in identifying the underlying conduct about which the applicant is aggrieved. However, the fact that a particular provision is nominated does not mean that the conduct that is identified amounts to a contravention of that provision;

c) an agency is not confined to considering the contraventions referred to by the applicant. An agency must address any contravention ... that is reasonably open on a reading of the entire application for review."

13 In the present case, the internal review application plainly related to a particular disclosure by a particular, named, officer of the respondent on a particular occasion. Indeed, it is the only relevant conduct referred to in the relevant sense. Notwithstanding that a wide spectrum of contraventions of the IPPs is later alleged in the application (by a naming of the provisions only) the scope of the application is about the disclosure of certain personal information. I accept the submission of the respondent that these applications do not concern, for example, collection or storage of the alleged personal information.'

This passage was cited with approval by the Appeal Panel in Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 at [18].

1. In MH's case there is agreement that the scope of his initial request for internal review, reasonably construed, extends to disclosures of personal information allegedly made in breach of the use and disclosure IPPs (s 17 and 18) by the agency's Acting General Counsel/ Manager, Legal Branch, Tonette Kelly, in 2009. These disclosures to the Registrar of the Supreme Court, the Attorney General, and the OLSC were uncovered as a result of Nicholai Dacombe's reference to previous complaints about MH that had been withdrawn.

1. MH made submissions about what he considered to be a number of other breaches of the PPIP Act disclosed by the evidence before the Tribunal. These were:

• The agency's general history of compliance with the PPIP Act ,
• The agency's compliance with its Privacy Management Plan.
• Matters categorised by the Applicant as raising "the wider privacy issue".
• The provision of the Supreme Court Affidavit to Sue Ohanian (HR Manager) or Nick Gerrand (HR Consultant).

1. The agency objected that these did not fall within the scope of MH's internal review request, reasonably construed, and that the Tribunal did not have jurisdiction to consider them as a result.

1. As the Privacy Commissioner observed in his submissions, at [14] -

It is clear that the hearing of the matter has of necessity looked into the background of the environment within the Respondent Agency as it relates to privacy matters and the handling of personal information .

The evidence relating to those matters has led to both MH and the Privacy Commissioner making submissions addressing wider 'systemic issues' concerning the agency's compliance with IPPs, its Privacy Management Plan, and the knowledge, understanding and implementation of privacy principles, policies and practices within the agency. The Privacy Commissioner expressed the view that -

... the proceedings highlight a general lack of knowledge, understanding, or compliance with the statutory obligations of the Agency as identified under the PPIP Act .

1. In my opinion the wider systemic issues within the agency form part of the background or context in which the conduct that MH complains of occurred. They are not of themselves the conduct about which MH is aggrieved, but form part of the organizational environment in which the conduct occurred. They do not fall within the scope of his internal review, reasonably construed, because they do not directly relate to the conduct complained of. They do not relate to specific breaches of IPPs or of a Privacy Code of Conduct, but embrace wider issues concerning compliance with the Act and the agency's culture with respect to privacy issues. They are, nonetheless, relevant to the Tribunal's consideration of the conduct in issue, as they set, in part, the context in which the conduct occurred, and inform my decision making accordingly. Addressing systemic issues which contribute to a finding of conduct in breach of the IPP's may be a relevant factor for the Tribunal when considering what orders should be made under s 55(2).

1. It follows, subject to those issues of relevance, that I accept that the matters outlined in the first three dot points of paragraph 22 above do not fall within the scope of MH's internal review.

1. I am unable to see how, reasonably construed, the internal disclosure of the Supreme Court Affidavit to Sue Ohanian (HR Manager) or Nick Gerrand (HR Consultant) fall within the scope of MH initial complaint. There is no evidence that this use had anything to do with the use and disclosures of which MH complained.

Evidence

Sources of Evidence

1. There was a body of evidence before the Tribunal. For MH this consisted of:

Affidavit of MH sworn 27 September 2010	Exhibit A1
Affidavit of MH sworn 8 April 2010	Exhibit A2
The "Rumours" email dated 8 September 2008	Exhibit A3
Email Stephen Dunn to NSW Maritime Staff dated 24 August 2009	Exhibit A4
NSW Maritime Harassment Policy	Exhibit A5
NSW Maritime Discipline Policy	Exhibit A6

1. The agency's evidence consisted of:

Letter written by MH and published in The Sydney Morning Herald on 3 September 2010	Exhibit R1
Email from MH to Mr Nash dated 15 July 2007	Exhibit R2
Letter written by Nicolai Daicombe to the Legal Services Commissioner dated 1 October 2010	Exhibit R3
Statement of Sue O'Hanian sworn 18 October 2010	Exhibit R4
Affidavit Melinda McCabe, General Manager Policy Risk and Governance NSW Maritime	Exhibit R5
Affidavit of Stephen Potter, Manager, Information Technology, NSW Maritimes sworn 18 October 2010	Exhibit R6
Statement of Stephen Dunn, Chief Executive Officer of NSW Maritime dated 9 November 2010	Exhibit R7
NSW Maritime Code of Conduct and Ethics	Exhibit R8
NSW Maritime Delegations Manual	Exhibit R9
Email from Stephen Dunn to the email executive group dated 18 August 2010	Exhibit R10
Statement of Louise Kirychenko if 5 November 2011	Exhibit R11
Statement of Bonita Daicombe 0f 5 November 2011	Exhibit R12
Copy letter of complaint to Supreme Court dated 24 August 2009 unsigned	Exhibit R13
Further Statement of Melinda McCabe sworn 26 November 2010	Exhibit R15
Letter from the Legal Services Commissioner to CSO dated 23 November 2010	Exhibit R15
Letter from Director	Exhibit R16
Statement of Searle Loughman dated 18 October 2010	Exhibit R17

1. Subsequent to the last day of the hearing the agency has, by consent, fi led a statement of Melinda McCabe dated 15 December 2010 and an additional statement of Melinda McCabe dated 11 January 2011, both addressing the email distribution list issue.

1. In the course of the hearing I heard sworn evidence from the following people -

MH	The Applicant - a former legal officer of the agency
Nicolai Daicombe	Who was employed a law clerk by the agency until November 2009
Sue O'Hanian	Manager, Human Resources
Melinda McCabe	General Manager Policy Risk and Governance
Stephen Potter	Manager, Information Technology
Stephen Dunn	Chief Executive of the agency since August 2007
Tonette Kelly	Acting General Counsel/Manager, Legal Branch
Louise Kirychenko	Deputy General Counsel and Principal Solicitor Property and Planning since April 2008.
Bonita (Bonnie) Daicombe	A Principal Solicitor, Property and Planning since 2008.

Factual Background

1. MH was employed as a legal officer by the agency in May 2008. When applying for that job he filled in an application form and provided the agency with a copy of his CV.

1. This employment did not prove a happy one for MH, or those to whom he reported. It is not my province to explore those issues. Whatever the rights and wrongs of the situation it is clear that MH made a series of complaints about the management of the legal branch, and the work given to him. He complained of favouritism within the branch and the he was bullied and harassed by management. At the same time those responsible for his supervision expressed concern about his work, and accused him of bullying and harassment.

1. Ultimately this led to MH being dismissed by the agency on 14 May 2009.

1. Following his dismissal MH, in late May 2009, commenced proceedings in the Supreme Court against the Chief Executive of the agency, and the agency itself, seeking relief on the basis that his dismissal was unfair and unjust. The Crown Solicitors Office (CSO) filed an appearance on behalf of the Chief Executive and the agency.

1. The evidence of the agency is that its Legal Services Branch had no part to play in the defence of MH's claim. The CSO was instructed to Act on behalf of the Chief Executive and the agency. Mr Dunn, the Chief Executive said that Ms Kelly was not given a copy of any of the documents relating to the proceedings. There is agreement that Mr Dunn and Ms Kelly did have discussions about the proceedings, but there is disagreement between Ms Kelly and Mr Dunn as to what was said. Mr Dunn said that the conversation was general only. He had told Ms Kelly that negotiations were taking place with a view to settlement. When she opposed that strategy, he had told her it was a matter for him.

1. Ms Kelly gave evidence on the last day of hearing. She did so under summons. She had not filed a statement. As a consequence, her evidence, where it contradicted that of witnesses from the agency, was not put to them.

1. Ms Kelly said that she became aware of the proceedings when Mr Dunn told her about them. She put this as being in May 2009. Ms Kelly said had received a copy of the Supreme Court affidavit. She could not recall whether someone had given her the affidavit or whether it was in her in tray. It contained reference to supplementary material that was not with the affidavit. She thought Ms O'Hanian may have sent the affidavit to her, but was not sure that was the case. She tried to get a copy of the supplementary material exhibited to the affidavit from HR branch, but they did not have it.

1. At that time Mr Dacombe was employed as a law clerk in the legal services branch. His evidence was that he had received a copy of the Supreme Court affidavit when it arrived in his in tray. When asked when this occurred he replied -

It would, I guess, have been July or August of last year. I don't know the particular, the exact date (11.11.10 - 48).

1. Receiving and distributing internal mail was not part of his usual duties: Mr Loughman did this. Mr Dacombe said that at times part of his function was to read documents and to decide which file they belonged to. Mr Dacombe could not recall whether the envelope containing the affidavit had his name on it. He said he assumed it came from Mr Loughman to be attached to a file, although did acknowledge that sometimes internal mail addressed directly to him would be delivered to his desk.

1. Mr Dacombe said that he gave the affidavit to Ms Kelly and later spoke with her about 'inaccuracies' in it. He wanted to make a complaint about those inaccuracies. He discussed this with Ms Kelly who did not want to make a complaint to the Police, but wanted the inaccuracies corrected.

1. Mr Dacombe conceded that it was possible that Ms Kelly had put the Supreme Court affidavit in his internal mail. He said that after he had discussed it with Ms Kelly-

To the best of my knowledge, she took it to Mr Dunn, the Chief Executive, and discussed it with him, the inaccuracies in the document, because she wanted to make a complaint as well.

1. He agreed that he had not been privy to any conversation between Mr Dunn and Ms Kelly. The basis of his knowledge was what she had told him.

1. Ms Kelly faxed an application for access to Supreme Court file to the Court on 5 June 2009. In the application she identified herself as "General Counsel - NSW Maritime" and said that she was making the request as, "The solicitor on record for NSW Maritime (Crown Sol acting)'. Her application also contained the relevant Supreme Court file number.

1. She said she was able to inspect the Court file and see the affidavit and additional information there. She did not copy it.

1. The agency contends that it is more likely and probable that Ms Kelly obtained the affidavit by obtaining copy access to it at the Supreme Court, rather than receiving it through the internal mail. Ms Kelly denies this. The agency says Ms Kelly accessed the Supreme Court file without authority to do so.

1. Ms Kelly said that, having read the supplementary material, she was very unhappy about words MH had attributed to a HR officer, and she went to speak with Mr Dunn about it. He told her that he had hoped she would not see the affidavit: he knew she would have an issue with what the officer had said. She told Mr Dunn that the Supreme Court affidavit contained matters that she believed where false and asked what he was going to do about it. He indicated he would raise the issues with the CSO.

1. Ms Kelly said that the CSO was working on the defence but that Mr Dunn "had started to get us thinking about particular things" She explained that CSO "obviously had to get their information from us because they wouldn't have known what was, you know, what to say."(3.12.10 - 30). She said had discussed the contents of his affidavit with Ms Kirychenko and Ms Dacombe.

1. Ms Kelly said that in June 2009 she lodged a complaint about MH making a false affidavit with the Attorney General. The letter had attached to it the complaint documents . There is no dispute that they contained MH's personal information.

1. On 2 July 2009 the Supreme Court proceedings were settled when the parties executed a Deed of Release. It is not necessary to recite the terms of the deed in any detail. It provided, inter alia , for the Supreme Court proceedings to be discontinued, for MH's employment with the agency to be brought to an end by his resignation, and for MH to release the Chief Executive and the State of NSW from all claims relating to existing proceedings brought by him.

1. It contained the following confidentiality and non-disparagement clause -

(a) The Parties agree to not publicise or cause to make public any comments or remarks, disparaging or otherwise about either Party or their office holders, officers, employees, agents or successors relating to this Deed, the matters contained in the Deed, the Employment or the Proceedings.

(b) This Deed and the matters referred to in it, are confidential and may not be disclosed to any other person under any circumstances whatsoever, without the prior written consent of the other Party to this Deed, save as required:

(i) by law;

(ii) to enforce this Deed; or

(iii) to seek expert legal or financial advice.

1. Mr Dunn says that after the Supreme Court proceedings were settled he advised Ms Kelly of that fact. He could not recall the date of the conversation. He told her that NSW Maritime had signed a Deed of Release and that it contained non-disclosure and non-disparagement clause. The agency was bound by it. He said that he directed Ms Kelly to inform relevant legal branch staff about the provisions of the Deed. He did not provide her with a copy, or tell her what the settlement amount was. He believed Ms Kelly had followed his instructions because Ms Kirychenko later expressed her annoyance to him about the settlement.

1. Mr Dunn also said that he had sent an email to members of the executive advising of the settlement. He believed Ms Kelly would have been a recipient. Other evidence before the Tribunal demonstrates that Ms Kelly was not a part of the executive email group and so would not have received that email.

1. In August Ms Kelly wrote a number of letters of complaint alleging that MH had perjured himself in the Supreme Court Affidavit. These were directed to the Registrar of the Supreme Court and the OLSC. They were written on NSW Maritime letter in the names of Tonette Kelly. Bonnie Daicombe and Louise Kirychenko.

1. Only the original sent to the Supreme Court has been located. It was unsigned. The same is true of the complaint to the OLSC according to advice received from that agency. Each of the complaint letters had attached to them the complaint documents.

1. On 26 August 2009 at 5:55PM Ms Kelly sent the flowing e-mail to Mr Dunn concerning MH -

As you know [MH] filed an Affidavit in the Supreme Court in May, 2009, when he lodged his Appeal against his Dismissal.

That Affidavit was false and misleading in a number of particulars and this can amount to a breach of Section 327 of the Crimes Act NSW. (ie. Perjury)

I rang the Supreme Court on 4 June, 2009 and was advised that to institute proceedings for Perjury the Judge before whom the perjury is alleged to have been committed should give Leave to take action or the Attorney General should run the Prosecution.

I later found that Section 338 applies.

I lodged a complaint with the Attorney General on 10 June, 2009, but have heard nothing. As a result I followed up the complaints this week with different bodies (ie. the Court and the Legal Services Commission).

I note that there are lesser offences such "False Statement On Oath" - Section 330 of the Crimes Act NSW and "Give False or Misleading Information" - Section 307E of the Crimes Act NSW. These can apparently be prosecuted by the Police.

I have put a copy of the original complaint to the Attorney General and a copy of the Complaint to the Supreme Court in your In-Tray.

I do not believe that this has anything to do with the Settlement Deed as this relates to a breach of the law that occurred before the Deed in relation to which I had already lodged a complaint.

1. Mr Dunn said that Ms Kelly was not authorised to make those complaints. He could not recall having received a copy of the complaint letters.

1. On 27 August 2009 Mr Dunn sent Ms Kelly, Ms Kirychenko and Ms Dacombe letters directing them to immediately withdraw any complaints and to provide him with copies of the withdrawal letters. The text of this correspondence indicates that Mr Dunn was aware that the complaints letters were on NSW Maritime letterhead and purported to be written by Ms Kelly, Ms Kirychenko and Ms Dacombe.

1. Mr Dunn could not recall how he knew Ms Kirychenko's and Ms Dacombe's names were on the letters. In cross-examination, he agreed that he must have seen at least one of the letters to know this, and to know it was on NSW Maritime letterhead. I accept that this is the case. In the light of the evidence it is likely and probable to Ms Kelly did provide him with a copy as indicated in her email.

1. Mr Dunn said that he had received a response from Ms Dacombe disavowing any knowledge of a complaints being made in her name. In her evidence Ms Dacombe maintained that position. She agreed she had discussed the content of the Supreme Court affidavit with Ms Kelly. This had occurred in "around June 2009" at the agency's Kent St offices. Ms Kelly told her that she had gone to the Supreme Court and viewed the Court file. Ms Dacombe said Ms Kelly said words to the effect of -

I'm the solicitor on the record for NSW Maritime so I was able to read the file. I've read his affidavit and he's made a number of false allegation in it. I'm going to do something about it.

1. At the time of this conversation Ms Dacombe said that Ms Kelly had a copy of the affidavit in her hand.

1. Ms Dacombe was unaware of any reason why her brother, Nicholai Dacombe, would have received the Supreme Court affidavit by internal mail.

1. Mr Dunn received a similar reply from Ms Kirychenko. When giving evidence Ms Kirychenko maintained that view and said that, in June 2009, Ms Kelly told her that she had viewed the court file in the Supreme Court Proceedings. They had discussed inaccuracies in the Supreme Court Affidavit.

1. Ms Kirychenko was unaware of any reason why the Supreme Court affidavit would have been put in the internal mail in an envelope addressed to Nicholai Dacombe. At the hearing, she explained:

" Well, I never saw any mail. I mean, I wasn't a witness to it coming through the mail. He never told me at the time it came through the mail. I don't even think he was responsible for doing the mail. So I find the whole thing very unlikely."

1. Mr Dunn said that in subsequent conversations with Ms Kelly she told him she had received the Supreme Court affidavit in the internal email. She had initially thought it was sent to her so that she could provide a response for the purposes of the proceedings, but now considered it must have been sent anonymously.

1. Ms Kelly withdrew the complaints as instructed. In doing so she wrote -

...I am now advised that NSW Maritime is unable to pursue any complaint due to terms of settlement. As a result I hereby withdraw the complaint and will resubmit it as a private individual if legal advice indicates I may do so.

1. Around this time, it is unclear when or how, Mr Dacombe obtained a copy the complaint Ms Kelly had made to the OLSC and the Supreme Court. In his statement he said -

I kept a copy of the complaint, which included the Affidavit, [MH] 's job application and Resume, and emails between Searle Loughman and [MH] intending to attach it to my own complaint and kept the complaint in my locked filing cabinet. It has always been in a secure location. At the end of August 2009 the chief executive directed the General Counsel to withdraw the complaints as they were on NSW Maritime Letterhead and contravened a deed of settlement with [MH] that we did not know about. The General Counsel was told that she could make the complaint personally but could not suggest that it came from NSW Maritime.

1. Under cross-examination Mr Dacombe agreed that he had no personal knowledge of what Ms Kelly had been told or directed by the Chief Executive. His source of knowledge was Ms Kelly herself.

1. He said she had drafted his statement filed in these proceedings.

1. In October 2009 Ms Kelly was stood down from the agency as a result of complaints that she was conducting a private legal practice (principally conveyancing) at the agency's office and using the resources of NSW Maritime to do so. ICAC was conducting an investigation.

1. According to the ICAC Report Investigation into the misuse of resources by a NSW Maritime Legal Services Branch Officer , September 2010 ICAC had received complaints about this in early 2009. Some months after the investigation commenced ICAC also received a report from the Chief Executive 'concerning the payment Professional Indemnity Insurance premiums for Ms Kelly, and the use of online search services by Ms Kelly for private purposes.'

1. In November 2009 Mr Dacombe left the employment of the agency.

1. On 24 February 2010 Mr Dacombe sent a letter of complaint about MH's affidavit to the OLSC, he attached to it copies of the complaint documents.

He said that he made no other use of that material . He said that his complaint letter was drafted by Ms Kelly, and that he agreed with its contents. Ms Kelly agreed with this.

1. In early March 2010 MH was advised by the NSW Law Society that Mr Dacombe's complaint regarding his conduct had been referred to it by the OLSC. Having examined the complaint MH said that he concluded that Ms Kelly was involved in making Mr Dacombe's complaint because the cover sheet bore her handwriting. The contents of Mr Dacombe's complaint alerted him, for the first time, of the existence of the earlier complaints that had been withdrawn. MH responded by denying all the allegations contained in the complaint. He sought to have the complaint summarily dismissed under s 511 of the Legal Profession Act 2004 .

1. In April 2010 ICAC held public hearings.

1. In September 2010 ICAC reported on its investigation. It made findings with respect to Ms Kelly, Ms Kirychenko, Ms Dacombe and Mr Dacombe. With respect to Ms Kelly, ICAC found Ms Kelly had engaged in corrupt conduct -

• in relation to the extent of her secondary employment and the use of NSW Maritime resources, including the facsimile machine.
• by making false and misleading representations to NSW Maritime officers about the extent of her secondary employment.
• in relation to the personal use by Ms Kelly of an online search facility paid for by NSW Maritime, the authority she gave for the payment of invoices for the searches she made, and the preparation of two documents relating to that use.

1. ICAC found that Ms Kelly had acted corruptly -

• in arranging for NSW Maritime to pay Professional Indemnity Insurance on her behalf,
• in the preparation of a reference for Nicholai Dacombe.

1. With respect to Ms Dacombe, ICAC found that she had acted corruptly by engaging in secondary employment without approval.

1. No findings were made against Ms Kirychenko.

1. Mr Dacombe was found to have acted corruptly by providing false information to the Legal Profession Admission Board (LPAB) in his application for registration as a student-at-law.

1. ICAC made adverse comments as to the reliability of evidence given by Ms Kelly and Mr Dacombe.

1. In its report ICAC spent some time considering corruption prevention issues highlighted in its investigation and making recommendations to address them. It addressed a number of issues including -

• The need to avoid conflict of interests that can arise as a result of secondary employment. Thus, at page 39, ICAC said -

"The evidence shows that many NSW Maritime staff members, including senior managers, engaged Ms Kelly to

undertake private conveyancing and other legal work. The fact that this activity appears to have been commonplace, and was accepted as appropriate practice, demonstrates a failure on the part of senior staff within NSW Maritime to identify the potential risks and to recognise the complexity of managing such a situation."

• The lack of appropriate controls and systems around the private use of public resources. At page 40 ICAC wrote -

"This lack of monitoring controls on the use of her resources allowed Ms Kelly to exploit the secondary employment approval over many years by undertaking a large amount of private legal work during the business day, and using significant NSW Maritime time and resources to do so. It is likely that other staff members, particularly certain staff within the Legal Services Branch, had some knowledge of Ms Kelly's activities and accepted her significant use of NSW Maritime resources to support her private conveyancing work."

• The need to ensure impartial recruitment processes, and to avoid conflicts of interest in the selection of employees. These issues were highlighted by evidence concerning the selection of Ms Dacombe and Mr Dacombe to work in the Legal Services Branch. ICAC wrote, at 41 with respect to the employment of Mr Dacombe -

"In formal advice to the Commission dated 24 May 2010, NSW Maritime confirmed that the Legal Services Branch created its own category of temporary contractors, which was outside the usual recruitment processes undertaken by the Human Resources Branch. This situation has been reviewed and the practice has now ceased. NSW Maritime has advised the Commission that Legal Services Branch contractors are now recruited through the standard human resources process, and are employed under NSW Maritime standard employment conditions."

• The need to ensure that there are effective policies and systems in place to regulate and audit the use of an online legal search facility. The Commission wrote, at page 42 -

"The evidence shows that NSW Maritime failed to put in place appropriate controls to manage possible corruption risks. Over a period of many years, Ms Kelly was able to misuse NSW Maritime's online legal search facility. She was able to undertake and authorise payment for her own online title searches. NSW Maritime's internal financial controls failed to detect that she was self-approving invoices."

• The need for effective management oversight and performance management. ICAC found, at 43 -

"... it appears that the inconsistent application of the performance management system affected senior managers' oversight and management of Ms Kelly's activities. At the same time, the lack of a reliable system of review allowed Ms Kelly to effectively alienate those in a supervisory role, leading to a reduction in oversight and control. In relation to her secondary employment activities, recruitment practices and working hours, she was able to create a space in which she was free to operate without an accountability framework and outside the appropriate boundaries."

1. In September 2010 MH learned that the Law Society had referred Mr Dacombe's complaint back to the OLSC. On 3 November 2010 the complaint was dismissed.

1. The hearing before me proceeded on the basis that the agency accepted ICAC's findings.

1. MH relied on them, together with other evidence as demonstrating that Ms Kelly ran the Legal Services Branch, as her own fiefdom and was not accountable to the agency's management. This evidence was said to illustrate the wide and unrestrained powers she exercised as NSW Maritime's Acting General Counsel and Manager of its Legal Services Branch.

Issues in Dispute

1. Against that general background there are a series of matters, which are in dispute. It is necessary to resolve these in order to determine the precise conduct that is to be reviewed under the PPIP Act.

1. In my opinion it is necessary to resolve the following issues before the conduct can be effectively reviewed -

• When and how did Ms Kelly come into possession of the Supreme Court Affidavit?
• Did Ms Kelly send a complaint letter to the Attorney General in June 2009?
• What were the limits on Ms Kelly's authority as Acting General Counsel for NSW Maritime?
• Was Ms Kelly acting within the limits of her authority when she accessed the Supreme Court File?
• Should Ms Kelly's conduct in making the complaints be attributed to NSW Maritime?

When and how did Ms Kelly come into possession of the Supreme Court Affidavit?

1. In her evidence Ms Kelly said that she had seen the Supreme Court affidavit before she applied to access the Supreme Court file. She said that she became aware that MH had commenced the Supreme Court proceedings about three weeks after he was dismissed, when Mr Dunn told her of the proceedings. The affidavit came through internal mail. Ms Kelly thought the affidavit may have been sent to her by Ms O'Hanian, but was not sure that was the case.

1. When she read it, she saw it contained reference to supplementary material that was not with the affidavit. She tried to get a copy of the supplementary material from HR branch, but they did not have it, As a result, she faxed her application for access to the Supreme Court of 5 June 2009. She said she was able to inspect the Court file and see the information there. She did not copy it.

1. Ms Kelly said that having read that material she was very unhappy about words MH had attributed to a HR officer, and she went and spoke with Mr Dunn about it. He had told her that he had hoped she would not see the affidavit because he knew she would have an issue with what the officer had said. She told Mr Dunn that the Supreme Court affidavit contained matters that she believed where false and asked what he was going to do about it. He indicated he would raise them with the Crown Solicitors Office (CSO).

1. Ms Kelly said that CSO was working on the defence but that Mr Dunn "had started to get us thinking about particular things" She explained that CSO "obviously had to get their information from us because they wouldn't have known what was, you know, what to say."(3.12.10 - 30). She had discussed the contents of his affidavit with Ms Kirychenko and Ms Dacombe.

1. During cross-examination of Ms Kelly by Ms Davidson, the following interchange took place (3.12.10 - 33-35)

Ms Davidson: "Did you instruct the Crown Solicitor on behalf of Steven Dunn in the proceedings?"

Ms Kelly: "We didn't ever get to that. No, we didn't. Steve Dunn came and told me that the Crown Solicitor's Office was going to be handling the unfair dismissal proceedings and that there was some - and he asked me - and we were going to be choosing a barrister and I remember discussing with him what barrister would be - we were going to pick. But I just don't know what the end result was. We had discussions in relation to what counsel would be used and that was it."

Ms Davidson: "Did Steve Dunn give you any documents filed in the proceedings?"

"He indicated that he was going to give me the supplementary yes - no, he didn't, but he indicated that he was going to give me all the material when it came time for us to prepare the defence, because I went to him many times and I asked him how we could possibly prepare a defence,

42

how we would know what to do if we didn't have copies of the documents. So he indicated he was going to give me copies of the documents but we didn't ever get to that stage."

Ms Davidson: "And you knew at the time you made this application that you weren't acting for Steve Dunn in the Supreme Court proceedings?"

Ms Kelly: "Well not necessarily. I thought that the Legal Branch was going to be working in conjunction with the Crown Solicitor's Office because you have to remember, at this time it was very shortly after MH had filed these proceedings and I thought the Crown Solicitor's Office and the Legal Branch were going to be working together because how could the Crown Solicitor's Office - when you read the affidavit, how could the Crown Solicitor's Office prepare a defence without assistance?" They would know nothing about the content."

Ms Davidson: "You knew that the substantive allegations were something that had to do with the Legal Branch and that you might be asked for a comment in relation to the substantive allegations?"

Ms Kelly: "No. My understanding, based on my discussions with Steve Dunn, was that the Legal Branch, myself particularly, would be intimately involved in the whole matter, in preparing the whole matter."

1. The agency disputes that any one within the agency provided Ms Kelly with a copy of the Supreme Court affidavit. Ms O'Hanian denies doing so. The agency submits that it is much more probable that Ms Kelly accessed the Supreme Court Affidavit when she attended the Supreme Court on or around 5 June 2009, and then returned to the Respondent's premises with a copy of the Supreme Court Affidavit - and discussed it with Louise Kirychenko and Bonnie Dacombe - than that it was sent anonymously via internal mail, either to Ms Kelly or to Nicholai Dacombe, prior to that date.

1. In his evidence Mr Dacombe who at the relevant time was working as a law clerk/paralegal in the legal services branch of the agency gave evidence that he had received a copy of the Supreme Court affidavit when it arrived in his in tray. When asked when this occurred he replied -

It would, I guess, have been July or August of last year. I don't know the particular, the exact date (11.11.10 - 48).

1. Receiving and distributing internal mail was not part of his usual duties: this was done by Mr Loughman. Mr Dacombe could not recall whether the envelope containing the affidavit had his name on it. He said he assumed it came from Mr Loughman to be attached to a file, although did acknowledge that sometimes internal mail address directly to him would be delivered to his desk.

1. Mr Dacombe said he gave the affidavit to Ms Kelly and later spoke with her about 'inaccuracies' in it. He conceded that it was possible that Ms Kelly had put it in his internal mail. He said that after he had discussed it with Ms Kelly -

To the best of my knowledge, she took it to Mr Dunn, the Chief Executive, and discussed it with him, the inaccuracies in the document, because she wanted to make a complaint as well.

He agreed that he had not been privy to any conversation between Mr Dunn and Ms Kelly. The basis of his knowledge was what she told him.

1. In his evidence Mr Dunn said that he had received a copy of the Supreme Court affidavit from the CSO in 28 May 2009 by email. This was copied to Ms O'Hanian, Mr Dunn's executive officer, and Nick Gerrand, an external HR consultant whose services the agency had retained with respect to MH. Mr Dunn said that neither Ms Kelly, Ms Dacombe, nor Ms Kirychenko had any role in instructing the CSO. They were not provided with documents relevant to the proceedings by him. He explained that the Legal Services Branch did not, in his experience, handle industrial relations issues for the agency. He did recall a number of conversations with Ms Kelly when she asked what was happening with the proceedings. He did not discuss them 'in any detail' with her, but did tell her that settlement negotiations were underway. She opposed such a strategy, but he told her it was a matter for him.

1. The application for access to the Supreme Court file completed by Ms Kelly shows that she sought access only. There is no indication of her being given copy access.

1. When one considers the evidence concerning how Ms Kelly came to have a copy of the Supreme Court affidavit one is confronted with a conundrum. Ms Kelly's evidence, supported by that of Mr Dacombe, is that it arrived by internal mail, but they are unable to say who sent it. Although the timings given by each of them as to when they received the affidavit differ, these events occurred some time ago, and the discrepancies are not, in my opinion, determinative. The agency denies that Ms Kelly was provided with a copy. Mr Dunn denied giving her a copy, as did Ms O'Hanian. They say that CSO had been instructed to act in the matter and that Legal Services Branch effectively had no part to play.

1. NSW Maritime suggests that the more it is more likely and probable that Ms Kelly obtained a copy of the Supreme Court affidavit by copying it when she inspected it at the Court. This proposition is entirely speculative. Ms Kelly has denied it. The Supreme Court access application and file show no indication that Ms Kelly sought, or was given, access to copy the file. Her explanation that she accessed the file (irrespective of whether or not she was authorised to do so) in order to view the attachments to the affidavit is consistent with the evidence that the copies of the affidavit held within the agency did not include the attachments.

1. I accept the evidence of Ms Kelly and Mr Dacombe that the Supreme Court affidavit came into their possession via the internal mail system at NSW Maritime. In reaching that conclusion I am cognizant that the reliability of their evidence is an issue, given the ICAC findings, such that I am wary of accepting their uncorroborated evidence without more. In this case I consider the other matters to which I have referred to, as well as the fact that each gave broadly consistent evidence about this issue, of sufficient weight to justify reliance on their evidence.

1. For completeness I add that I am unable to conclude who sent the affidavit to the Legal Services Branch. It is, however, the obvious home to such a document. It is a document that the managers of the Branch would have had to consider and respond to, had the proceedings not been settled, as it related, in part, to their conduct.

Did Ms Kelly send a complaint letter to the Attorney General in June 2009?

1. The original or a copy of this letter is not in evidence before the Tribunal. Ms Kelly gave evidence that she sent it in June, after inspecting the Court file. Her email to Mr Dunn of 29 August 2009 advised that she had lodged a complaint with the Attorney General on 10 June 2009 but had heard nothing.

1. The Department of Justice & Attorney General on 17 November 2010, in response to a request by CSO as to whether such a complaint been received, advised that a search had 'been unable to locate any document that was sent by Ms Kelly to either the Attorney General or to this Department on or around either 10 June 2009 or 24 August 2009 in relation to [MH].'

1. In her email Ms Kelly advised Mr Dunn that she had put 'a copy of the original complaint to the Attorney-General and a copy of the Complaint to the Supreme Court in your in tray.' This email was written five days after the letters of complaint to the Supreme Court and the OLSC. The day after he received that email Mr Dunn instructed Ms Kelly, Ms Kirychenko and Ms Dacombe to withdraw the complaint.

1. I have already found that at that time Mr Dunn must have seen at least one of the letters of complaint. I am unable to say which. Given the proximity in dates, the obvious inference to be drawn is that he had seen either the compliant to the Supreme Court or that to the OLSC. Ms Kelly's email, however, indicated that she had provided him with copies of the complaints to the Attorney General and to the Supreme Court. The complaint letters, which Mr Dunn actually received, have not been produced.

1. The only evidence before the Tribunal concerning the existence of this letter of complaint is from Ms Kelly. It contents, who signed it, and whether it was NSW Maritime are all matters of conjecture. Given the findings of corrupt conduct made by ICAC Ms Kelly's evidence is evidence I am reluctant to accept without some form of corroboration. There is none with respect to this letter.

1. As a result I am not persuaded that the letter was sent. I would add that if the contrary were the case, there is no evidence before me as to its contents, or whether it had attachments containing MH's personal information.

What were the limits on Ms Kelly's authority as Acting General Counsel for NSW Maritime?

1. During the course of the hearing I heard a considerable body of evidence from the Chief Executive and other Senior Managers of the agency concerning the limits of Ms Kelly's role. Those limits are to be found in the agency's delegations and in the Code of Conduct.

1. The delegations are in an instrument of sub-delegation made under s 27(1) of the Ports Corporatisation & Waterways Act 1995 on 16 January 2006. Clause 3 identifies the positions to which the delegation applies: it includes Legal Manager and General Counsel. Clause 8 provides, inter alia, that the authority conferred by the delegation "is limited to the Sub-Delegates area of organisational responsibility." Clause 10 Instructs -

ALL SUB-DELEAGTES MUST REFRAIN FROM EXERCISING THEIR SUB-DELEGATED AUTHORITY AND REPORT TO THE GENERAL MANAGER AND IF APPROPRIATE THE CHIEF EXECUTIVE IN RELATION TO ANY ISSUE THAT MAY BE POTENTIALLY CONTROVERSIAL, THE SUBJECT OF MEDIA ATTENTION, OR MAY EXPOSE NSW MARITIME TO LIABILITY, CRITICISM OR ADVERSE COMMENT.

1. Among the specific Sub-Delegations applicable to Ms Kelly's role were those with respect to staff -

Investigate and make recommendations of disciplinary action to be taken

Manage conduct and performance

Issue a reprimand or first written warning (except a first and final warning)

Issue a first and final written warning, or second and third final written warning

Recommend dismissal

1. With respect to specifically legal matters it included -

Request legal advice from an external solicitor

Instruct barrister

1. Mr Dunn said that the Code of Conduct provided overarching or catch all advice to assist managers in the conduct of their roles. At paragraph 2.33 it instructs -

2.3.3.Where Managers make a decision or take action that are expected to ensure that:

2.3.3.1 the legislation under which they take the decision or action authorises them to do so;

2.3.3.2 they have authority or delegation to take that action or decision;

2.3.3.3 they have compiled with any procedures required by law

2.3.3.4 they have followed all relevant NSW Maritime policies and procedures;

2.3.3.5 they have properly documented the decision or action and the reasons.

1. At page 4 it offers the following advice to all staff -

"If you come across situations which are not covered by the procedures, or are unsure what you should do, you should seek the guidance of your supervisor or manager."

1. Mr Dunn said that the effect of the code of conduct was that, if a manager was in doubt about his or her authority, "The Code of Conduct requires them to seek the guidance of their supervisor or manager." He said that Ms Kelly reported to a general manager for managerial matters, while "some elements [of her role] had a relationship with the Chief Executive, mainly on legal issues."

1. Mr Dunn said that Ms Kelly did not have authority to access the Supreme Court file as the Supreme Court proceedings were being handled by CSO.

The delegation file would not specifically say that she could not undertake the function. So she would have been obliged to have sought advice for her manager about whether she could do that.

He said that she had authority to access a Court file in any matter in which the Legal Branch was acting. If not, the fallback position envisaged by the Code of Conduct would operate, and she would have to seek guidance before accessing a Court file.

1. Mr Dunn said that the Legal Services Branch did not act for the agency in industrial matters and was not involved in such matters: outside representation was obtained. When pressed on this by MH he agreed that staff from legal branch had been involved in a number of past industrial matters, "because they were actually there as part of the proceedings, not because they had legal expertise." When asked about three specific matters he confirmed that they were "outsourced." He explained-

...I know the barristers that were involved in all three of those matters. They were outsourced. That doesn't mean that our lawyers weren't called upon to take part in the proceedings.

1. In her evidence Ms McCabe generally agreed with Mr Dunn's evidence in relation to the authority of Ms Kelly, and the requirements of the Code of Conduct. When asked by MH as whether or not Ms Kelly would have authority to make complaints, the following interchange occurred (11/11/10 - 91-92) -

MH: ... Where would Ms Kelly go to find that she needed specific authority to make a complaint?--Well, again, I take you back to the Code of Conduct and Ethics, requiring managers to ensure they have authority before taking action or decisions.

So what you're saying is she should have been prudent and made sure?---Yes.

But there is no specific written policy saying before getting a court file you must seek authority to do so?---No.

Thank you. Again, in paragraph 14, you say:

If the manager of NSW Maritime's Legal Branch wanted to make a complaint to an external body about a NSW Maritime employee on behalf of NSW Maritime, they would require authorisation.

Is that correct?---Yes.

...

MH: ... if the manager of NSW Maritime's Legal Branch wanted to make a complaint to an external body about the owner of a registered vessel, the captain of a registered vessel, the crew member, they would require authorisation from the general manager responsible for the Legal Branch?---In some case, yes.

In all cases?---I can't say in all cases, no.

So, in that situation, can you point to anything specific where, if NSW Maritime's Legal Branch Manager wanted to make a complaint about the behaviour of a crew member of a ferry or whatever, they would then have to seek the permission of their line manager to do that?---It would depend whether - I mean, it's a - it would depend where the complaint was going to.

In other words, there is some doubt about - there may be some doubt about whether or not permission would have to be sought.

1. Later (11/11/10 - 95) the following interchange occurred between Ms McCabe and myself -

MR MOLONY: ... If I stepped into the role of General Counsel for NSW Maritime today, where would I find, aside from the Code of Conduct, guidance as to whether or not I could make an application for access in circumstances such as those we're discussing here?---We have a delegations manual which - I couldn't say that includes exactly that, but it broadly covers what positions are delegated - have the delegated authority to undertake.

Where would I find something that would tell me that I could not make a complaint such as that made against [MH] to the Legal Services Commission?---I don't know that you would find that specifically in the delegations.

Well, given that he was a former employee of the organisation and I am general counsel, would it be reasonable for me to conclude that it falls within my bailiwick, so to speak?---Except for the section in the Code of Conduct that requires you to, I guess, discuss that with your - - -

Ensure that they have authority before taking action or decision?---So if it wasn't included in the delegations, then there's an onus on the manager to determine.

It's a reverse onus?---Right.

How do I know that?---Because the code is the highest level of delegation.

I'm sorry, I don't think that answers the question. How do I know? Where does it say that if it's not included in the delegations and it's something that would appear to be within the scope of my authority as General Counsel, how do I know this? How do I know that I have to go somewhere else to seek approval?---Maybe it's not as clear as it could be.

1. In her evidence Ms Kelly agreed that she made her decisions as Acting General Counsel under sub-delegations, complimented by the Code of Conduct. She agreed that all her powers are described in the sub-delegations.

1. When asked about the inter-relationship of agency's procedures and practice Ms Kelly said (3/12/10 -12) -

... you can have 10 policy documents and Maritime had hundreds of policy documents, but they didn't always comply with those policy documents. Practices would grow up over time that tended to override the policy document and those practices were accepted. So if they were accepted by the people who could make policy - for example, if you had a policy document and then a practice overrode the policy document and that practice was accepted by the executive and it was a common practice, well, you would just go by the practice because it would override the policy.

1. Ms Kelly said that she accessed the Supreme Court file as General Counsel for NSW Maritime. The following interchanges occurred between Ms Davidson and her (3/12/10 - 31-32) -

Are you familiar with the concept of the solicitor on the record in court proceedings?--I am now, but at the time I just was of the understanding that I was the solicitor on the record for NSW Maritime.

You were General Counsel of NSW Maritime or Acting General Counsel of NSW Maritime for some time?---Yes.

You understood that you weren't the solicitor on the record in multiple court actions brought by NSW Maritime?--- No. I just believed that I was the solicitor on the record in relation to - for NSW Maritime. That was my understanding and in this instance the Crown Solicitor's Office was acting and when I went to the court I specifically wrote that on the application.

You understood that the Crown Solicitor was the solicitor on the record in the proceedings brought by [MH]?--- No, I didn't understand that at the time.

So you thought that - - -?---I thought that at all times the General Counsel was the solicitor on the record for NSW Maritime and in various times different solicitors acted in different proceedings.

So you thought that those solicitors were not the solicitor on the record, even though they were the ones acting in the proceedings?---Correct.

Did you instruct the Crown Solicitor on behalf of NSW Maritime?---We didn't ever get to the stage of having to prepare a defence so, no. But in my discussions with Steve Dunn, he - I've got some emails as well where it was indicated that there would be a lot of liaison with the Crown Solicitor's Office because we had to give them the information. But we didn't get to that stage because the matter settled.

And that was in response to substantive allegations that had been made by [MH]?--Well, I don't know. That was in relation to whatever he was going to run as his application.

Would you agree that a defence is a response to substantive allegations made in court proceedings?---Yes, I would. Yes.

And that it was your understanding [MH] had raised substantive allegations concerning matters in the NSW Maritime Legal Branch?---Well, all I knew was what was in the affidavit because that was all that I knew about his application.

Later, at 34 -

Did you have any authority to access the Supreme Court file on behalf of NSW Maritime?---I believe I did, yes.

And what was the basis for your belief?---It was part of my job to do anything necessary to protect the interests of NSW Maritime. I had received an affidavit that contained false information. I wanted to make a complaint about - first of all I wanted to discuss it with the Chief Executive and then I wanted to make a complaint in relation to the false affidavit. So before I could do either of those things I needed to know what all the documents said. For all I knew, the supplementary material might have fixed the inaccuracies in the affidavit. So I believe that, yes, it was part of my job to do - to look at documents such as that.

I put it to you that you didn't have any authority to access the court file on 4 June 2009?---And I don't agree.

1. Ms Kelly said that she had made each of her complaints about MH in her capacity as General Counsel for the agency. When it was put to her that the Code of Conduct required that she seek approval before making such a complaints, she said (3/12/10 - 39) -

... I was familiar with that but I didn't think or I wouldn't have thought, and I still wouldn't think, that this type of situation would fall under that heading.

1. In her evidence Ms Kirychenko confirmed that it was her understanding that Ms Kelly had accessed the Supreme Court file as solicitor on the record for NSW Maritime, as opposed to solicitor on the record in the Supreme Court proceedings.

1. I asked Ms Kirychenko a series of question relating to her understanding of the authority of General Counsel (12/11/10 @ 47) -

MR MOLONY: I just have a couple of things I'd like to clarify with you. In your evidence you made the comment that Ms Kelly was the solicitor on record when she accessed [MH's] affidavit. Is that your understanding, that she was the solicitor on the record?---My understanding is she was the solicitor on the record for Maritime in the general matters, not necessarily, I don't know - obviously, she's not solicitor on the record for that matter but for the actual Maritime. That's my understanding

Okay. During your time there did you ever act as General-Counsel in her stead?--Yes.

As General-Counsel, where would you define the limits of your authority?---Sorry, I don't understand your question.

Well, for example, I guess there are budgetary limits as to what you're allowed to spend as General Counsel in your organisation and your branch. Where do you find them??---Well, General Counsels are still managed by people. We have a general manager and a CEO, so anything that you're unsure of, you direct to them. There were a number of matters that I spoke to the CEO and my general manager about, including staff issues.

I understand that. I'm just trying to get an understanding of how the organisation worked.?---Well, whenever there was an issue that I wasn't sure about I'd go to the CEO or the general manager to discuss.

MR MOLONY: As an example here, say I'm making complaints about solicitors who have been or were in the employ of NSW Maritime and subject to your supervision - did you have authority to make complaints about them, or was that something that required authority from above?---I think you have to be careful if you put it on Maritime letterhead, and I think that was the whole point of the direction that Steve Dunn, which I think was reasonable, that Tonette, I understand, had put that on Maritime letterhead.

Just in terms of --- ?---I'll just clarify something,

Yes?---It doesn't mean that Tonette had to get permission before she did anything, before she did it on Maritime letterhead, I might add. But given that it might have been a little bit more controversial, I guess she probably should have got permission about that. But my understanding is she could sign off, so she didn't need to get permission but she probably should have, given the sensitive nature of the topic.

I guess there are obviously sensitive issues like that, and that's really what I'm trying to get to, is when you were Acting General Counsel, was there anywhere you would go to look other than just from within your knowledge and commonsense, as to where those boundaries lie?---I sought advice from the HR department from time to time. As I said, if it was a decision I had to make - for example, when I was Acting General Counsel in January, there was complaints being made about the manual sign-in system. I questioned whether it was still required, so I went and discussed that with Steve Dunn. So it was fluid. It's not-

I can imagine, it would have to be fluid?---It's fluid. I mean, you don't know what's going to come up. You know, but HR as well, I spoke to about the issues with [MH] from time to time.

So in many ways it's a matter of judgement about the call and whether you think you need to go and get it ticked off on?---That's right, yes. No clear guidelines saying you talk about this issue with this person. I don't think many jobs would be like that, to be honest.

1. It can be seen from the above that the formal limits on Ms Kelly's authority as Manager Legal Branch and Acting General Counsel for NSW Maritime are to be found in the delegations, read with the Code of Conduct. Inherent in the nature of the instrument is that that it is wide in scope and lacks specificity. As befits such a senior public sector role as that held by Ms Kelly it provided Ms Kelly with broad powers and entrusted significant decision-making functions in her concerning the management of the legal affairs of NSW Maritime and the management of its legal staff. It is the in the nature of such positions that incumbents are to exercise restraint and discretion when exercising delegated authority. The proper exercise of that authority is reliant on careful, conscious and considered decision-making.

1. The proper and efficient functioning of public sector organisations such as NSW Maritime is highly reliant on the judgement of its delegates. They not only need to understand and adhere to the limits of their delegated powers, but to have the judgement and discretion to understand the unwritten limits of their responsibility, and to be attuned to matters which might arouse public attention or be regarded as sensitive. The high reliance placed on delegates such as Ms Kelly to know their own boundaries and be attuned to public sensibilities is illustrated by the warning in the sub-delegation about "potentially controversial" decisions.

1. In the case of Ms Kelly's role, both Mr Dunn and Ms McCabe acknowledged that the delegations and Code of Conduct did not specifically authorise Ms Kelly to do many of the things one would expect of her role: eg. inspecting Court files in which NSW Maritime was acting. This is so because those matters fell within what they considered to be the ordinary responsibilities of her role. Where matters arose which they considered were not directly covered by the delegations, and (perhaps) outside the ordinary responsibilities of her role, they relied on the Code of Conduct which entrenched the "fall back position" of seeking advice from one's superior. The difficulty with this device is that it is dependent on the judgement and discretion of each individual delegate and their understanding of the boundaries of their role. Well-informed and reasonable people may differ on such matters.

1. In the present case, added into this mix, is the fact that Ms Kelly had, as ICAC found, effectively alienated those in a supervisory role to her, leading to a reduction in oversight and control. MH led evidence concerning Ms Kelly's adoption of various unique employment practices with the Legal Services Branch, and of her intrusions on the privacy of other employees, in an effort to demonstrate that she was not effectively supervised at all, and was allowed to run the legal branch as she liked. I see little point in traversing that evidence. In my view Ms Kelly's attitude towards organisational supervision is encapsulated in her comments about the relationship between agency policy and established practices . I took from this that she considered that policy had its place, but could be overridden by practice implemented by those with authority, including her.

Was Ms Kelly acting within the limits of her authority when she accessed the Supreme Court File?

1. Ms Kelly was the Acting General Counsel of NSW Maritime and the Manager of its Legal Services Branch. There is nothing in the delegations that suggests that she did not have authority to access any Court file relating to the legal affairs of the agency.

1. The agency argues that because the Legal Services Branch was not acting in the in the Supreme Court proceedings, and CSO had been directly instructed by Mr Dunn, Ms Kelly and the Legal Services Branch had no part to play in the proceedings. They did not act in industrial matters. Her access of the Supreme Court file was therefore outside the boundaries of her authority.

1. Ms Kelly's view was that she had authority to access the file as Acting General Counsel for NSW Maritime. She wrote on her access application that she was General Counsel and that she was making the request as, "The solicitor on the record for NSW (Crown Sol acting)." Plainly Ms Kelly was not the solicitor on the record for NSW Maritime in those proceedings: CSO was.

1. The issue of whether or not Ms Kelly had authority to access the Supreme Court file is an issue that requires a consideration of the unwritten boundaries of her role. On the one hand NSW Maritime says that because CSO was acting, and because the Legal Services Branch did not handle industrial matters, the Supreme Court proceedings brought by MH were outside Ms Kelly's bailiwick. On the other hand, as Acting General Counsel and Manager Legal Services Branch, Ms Kelly had responsibility for the oversight of NSW Maritime's legal affairs, including authority to brief counsel and instruct external solicitors. One would presume that authority carried with it the capacity to oversee and monitor litigation to which NSW Maritime was a party, including the performance of representatives external to the organisation.

1. Ms Kelly had received a copy of the Supreme Court affidavit via the internal email system and believed that it contained incorrect factual material: material which she, as Manager of the Legal Services Branch, considered the agency might be able to refute. To determine whether or not this was the case she says she needed to view the attachments to the affidavit. She sought to access them internally through HR, but they did not have them. She therefore sought to access them via the Court file, disclosing that CSO was acting when she did so. Whether she should have been able to access the documents in those circumstances is a separate matter, which it is not necessary for me to consider. Given her role and responsibilities within NSW Maritime this fell within the scope of her function.

1. The concerning factor was that the litigation in issue related, in part, to the treatment of MH as an employee of the Legal Services Branch. The agency relies on this fact to support a proposition that Ms Kelly knew, or ought to have known, that she should have nothing tho do with the conduct of the litigation and, as a result, should not access the documents. The evidence, however, point to Mr Dunn and Ms Kelly having discussed the litigation, with Mr Dunn insisting that he would pursue negotiation, despite Ms Kelly's advice to the contrary.

1. It is obvious, however, that, had the matter not settled, Ms Kelly and staff of the Legal Services Branch would have had to be involved in the preparation of evidence as they had personal knowledge of some of the matters in issue. This was the point Ms Kelly sought to make when she insisted that Legal Services Branch would be involved in the defence of the proceedings.

1. Against that background NSW Maritime relies on the "catch all provision" of Code of Conduct to argue that as this was a situation not covered by the procedures, Ms Kelly should have sought guidance before access the Supreme Court file. As a result of her not doing so they submit she was acting outside the scope of her authority.

1. On balance I do not accept this. It is apparent that Ms Kelly had wide authority with respect to NSW Maritime's legal matters. The boundaries of that authority were not specified, and are matters of judgement. In my view inspecting a Court file in a NSW Maritime matter, in which external solicitors had been instructed, falls within what one would reasonably expect to be the boundaries of that authority. The fact that the Supreme Court proceedings related to the operations of the Legal Services Branch might have sounded a warning to an Acting General Counsel whose activities were more closely supervised and monitored, and caused him or her to seek guidance, does not mean that Ms Kelly acted outside the scope of her authority. Ms Kelly was not unsure as to what she should doing the circumstances. She thought that the Court file might assist in proving that MH had lied in his affidavit, and as Acting General Counsel for NSW Maritime inspected the file to see if it did.

1. I find that Ms Kelly acted within her delegated authority when she inspected the Court file.

Should Ms Kelly's conduct in making the complaints be attributed to NSW Maritime?

1. In Director General, Department of Education and Training v MT [2006] NSWCA 270 a teacher employed by the Department was also the coach of a soccer team. There was no connection between the team and the school at which he taught. He was aware from a number of other players that one of his players, MT, who had been unavailable for a number of games, had a medical condition. MT was also a student at the school at which the coach taught.

1. When MT indicated an availability to play in the grand final, the coach accessed her school file. The health information concerning her that he found there led, together with her lack of match fitness, to her not playing in the grand final. The coach's access to her personal information was for purposes extraneous to those of the Department, and was not authorised by the Department. He was not acting in his capacity as a teacher when he disclosed the personal information to the club.

1. Spigelman CJ considered whether, on the facts, the Department used and disclosed the information. He said, at [16-24] that -

"16 The law of agency is not an adequate or complete basis for institutional law. When determining whether conduct or knowledge or mental state of an individual employee or agent should be attributed to a corporation, an organic approach has been developed, which approach goes beyond the individualistic inclinations of the law of agency. (See e.g. Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475 at 482-483; Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 159-160, 201-202; Ross Grantham "Attributing Responsibility to Corporate Entities: A Doctrinal Approach" (2001) 19 C&SJJ 168.) In many cases, the conduct of persons in actual control of particular operations of the company will constitute the company for particular statutory purposes. (See e.g. The Lady Gwendolen [1965] P 294 at 343-344; AAPT Ltd v Cable and Wireless Optus Ltd (1999) 32 ACSR 63 at [91]-[92].)

1. Ms Kelly's use of the affidavit within NSW Maritime - as opposed to her external disclosures - consisted of using it as a basis for discussion with Ms Kirychenko, Ms Dacombe and Mr Dacombe. Those discussions concerned the assertions made in the affidavit and whether or not they were true, and how they could be rebutted. All concerned would clearly have contemplated such a use, including MH when the affidavit was served on the agency. It was a use related to the purpose for which the affidavit was held by the agency, being the defence of MH's proceedings.

1. The evidence discloses that Mr Nicholai Dacombe obtained a copy of the affidavit and the complaint documents during the course of his employment. Aside from discussions with Ms Kelly concerning the accuracy of the affidavit, there is no evidence of any use of the personal information contained in that material by Mr Nicholai Dacombe during his employment with the agency. His discussions with Ms Kelly concerned the agency's response to the affidavit, and were clearly related to the purpose for which the affidavit was held by the agency. There is evidence that Mr Nicholai Dacombe copied the affidavit for his own purposes during the course of his employment. The use to which he put that material occurred after his employment with the agency had ceased, when he disclosed it to the OLSC. That disclosure is considered below.

Use of the complaint documents

1. The evidence establishes that the following persons had access to the MH job application and CV -

• Ms O'Hanian
• Ms Kirychenko
• Ms Kelly

1. The evidence relating to that use is that all three used and exchanged the information during the course of MH's employment within the agency for the purposes of managing his employment issues.

1. MH challenges this with respect to Ms Kirychenko and Ms Kelly, saying that at the time they dealt with the documents he was no longer directly supervised within Legal Services Branch, but had been directed to report to a different manager. Therefore, he argues, that Ms Kirychenko and Ms Kelly exercised no supervisory responsibility in relation to him.

1. I do not accept this argument. While MH was reporting elsewhere, the reality was that his employment issues were an ongoing concern for the management of the Legal Services Branch. As managers of that Branch Ms Kirychenko and Ms Kelly use was for purposes related to his employment: the very purpose for which the personal information was collected by the agency.

1. I again express my concern that this information was mailed to Ms Kelly's Yahoo account.

Has there been a breach of the IPP in s 18?

1. Section 18 provides -

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

1. The evidence establishes that MH's personal information, contained in the affidavit and the complaint documents, were disclosed -

• By Ms Kelly to the OLSC and the Supreme Court on 24 August 2009; and
• By Mr Dacombe to the OLSC in February 2010.

1. I will consider their disclosures separately.

The disclosures by Ms Kelly

1. I have already found that Ms Kelly made the disclosures of MH's personal information to the OLSC and the Supreme Court in her capacity as Acting General Counsel for NSW Maritime and as the Manager of its Legal Services Branch. She made the disclosures in the context of complaints to relevant authorities that MH's affidavit was false. I am satisfied that she had authority to make those complaints on NSW Maritime's behalf. The issues that then arise for consideration concern whether those disclosures breached s 18.

1. In this regard NSW Maritime does not argue that any of the exceptions in s 18 apply. Rather, it argues that by a combination of s 25(1)(b) of Privacy and Personal Information Protection Act 1998 and s 505 of the Legal Profession Act 2004, NSW Maritime was exempted, when making a complaint to the OLSC, from compliance with s 18 in the circumstances.

1. Section 504 of the Legal Profession Act 2004 provides -

(1) A complaint about an Australian legal practitioner may be made by:

(a) a client of the practitioner, or

(b) a Council, or

(c) the Commissioner, or

(d) any other person.

(2) A complaint must be in writing.

(3) A complaint must:

(a) identify the complainant, and

(b) identify the Australian legal practitioner about whom the complaint is made or, if it is not possible to do so, identify the law practice concerned, and

(c) describe the alleged conduct the subject of the complaint.

(4) This section does not affect any other right of a person to complain about the conduct of an Australian legal practitioner.

(5) The Commissioner, or the Council to which a complaint is referred, is to ensure that the complainant is notified in writing of receipt of a complaint (other than an official complaint).

1. When a complaint is received by the OLSC the Commissioner is required to investigate it (s 525) unless it has been withdrawn, mediated or dismissed following a preliminary assessment (see s 510). The Commissioner has wide investigatory powers that are set out on Chapter 6 of the Legal Profession Act 2004. These include compelling the production of documents by Australian Lawyers (s 660) and powers of search and entry (s 661 to 664).

1. Section 25(1)(b) of the PPIP Act provides that -

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).

1. In PN v Department of Education and Training (GD) [2010] NSWADTAP 59 an Appeal Panel considered whether the disclosure of PN's personal information to the employers workers compensation insurer was 'lawfully authorised' (s 25(a)), or at least 'reasonably contemplated' (s 25(b)) by the workers compensation legislation. The Appeal Panel said -

54..., we do not think that the task required of the Tribunal in deciding whether or not s 25 is applicable requires it to go so far as to make a microscopic comparison of an alternative law to which an agency refers in justification. Section 25 is expressed in broad language. It is enough that 'non-compliance is reasonably contemplated' by the other law.

55 The Tribunal is called upon, as we see it, to consider the subject matter of the alternative law and ask itself, first, is this the kind of subject matter with which a relevant IPP is concerned in the circumstances of the case before it.

56 Necessarily, the workers compensation regime involves the management of personal information. Moreover, the workers compensation regime has detailed provisions allowing movements of information between a number of parties who have a business role in the management of workers' injuries and the determination of claims.

57 In our view, it is enough for s 25(b) to apply that the transactions in issue (here, one instance of indirect collection and otherwise disclosures) are of a type that is contemplated by the regime; and that they are genuinely undertaken for the purpose of the scheme. Whether something is 'reasonably contemplated' is a factual determination for the trial tribunal to make, only vulnerable to appeal as an error of law on narrow grounds, such as no evidentiary basis for the finding or because the finding is one no rational tribunal could make. This is clearly not a case of that kind.

58 If the Department has breached the guidelines or the statutory provisions in the way it carried out its obligations under the workers compensation regime, as PN's submissions suggest, those are matters to be dealt with through the complaints mechanisms that the workers compensation regime has. The breaches are not open to be litigated within the framework of the privacy legislation.

59 The Tribunal's task is simply to make a broad judgement as to whether s 25 applies. The protection given to an agency by s 25 is not lost simply because the agency has failed to comply, in some aspect of the detail, with a requirement of the other law.

60 If the strict view pressed by PN were to be adopted, privacy cases raising s 25 would give rise to a detailed collateral inquiry into whether the agency had strictly complied with the alternative regime. We do not think that the words of s 25 support such a conclusion, and engagement by the Tribunal in a collateral inquiry would defeat the evident purpose of s 25.

1. In ZR v Department of Education and Training [2009] NSWADT 84 Judicial Member Pearson said, at [47] -

"... The PPIP Act is beneficial legislation, and should be interpreted liberally in order to achieve its beneficial purpose: Director General, Department of Education and Training v MH [2006] NSWCA 270. Any exclusions or exceptions should receive a correspondingly narrow interpretation. ...

1. NSW Maritime argues that Ms Kelly's disclosure to the OLSC of MH's personal information was reasonably contemplated by s 504(3)(c) which requires a complainant to describe the information complained of. To describe means "to give an account of, or to set out": see the definition in the Macquarie Dictionary on Line .

1. NSW Maritime submitted that -

There is nothing in Ms Kelly's evidence to suggest otherwise than that she wished to pursue the inaccuracies she perceived in the Applicant's Supreme Court Affidavit. Complaining to the OLSC meant that she had raised her concerns via the regulatory authorities empowered to handle complaints about Australian legal practitioners and investigate and discipline legal practitioners in relation to their conduct. Thus both of the PN criteria for the application of s. 25(b) of the PPIP Act are satisfied, and non-compliance with s. 18 in relation to the August 2009 complaint to the OLSC should be found to be reasonably contemplated under the Legal Profession Act.

1. Ms Kelly, however, did more than describe the conduct she was complaining of when she wrote to the OLSC: she sought to document it by providing the OLSC with documents said to evidence the conduct complained of. This included not only the information said to justify the complaint, but other personal information of MH's included in the complaint documents.

1. When one considers the statutory scheme for the making complaints against Legal Practitioner contained in the Legal Profession Act 2004 it is my view that the provision of personal information of the kind attached to Ms Kelly is reasonably contemplated by it. The provision of documentary evidence said to substantiate a complaint is reasonably contemplated by that Act, when it requires complainants to describe the conduct complained of.

1. In his submissions in reply MH argued that -

... the execution of the Deed neuters any right for the Respondent (or Ms Kelly) to make complaint under the cover of the LPA (to do otherwise would violate the whole concept of a binding settlement).

1. I do not accept this proposition. On my reading the Deed does not prohibit either party from making a complaint under the Legal Profession Act 2004 against the other. Any attempt to do so by deed would raise questions of illegality. Ms Kelly was making a complaint to the OLSC, not publicising or making public comments about MH or the proceedings. As a result I am satisfied that NSW Maritime was exempt from for the provision of s 18 the PPIP Act when Ms Kelly made the complaint to the OLSC.

1. The exemption under s 25 is not available to NSW Maritime with respect to Ms Kelly's disclosure to the Supreme Court.

1. It follows that I am satisfied that NSW Maritime breached the IPP in s 18 when Ms Ms Kelly disclosed MH's personal information to the Supreme Court.

The disclosure by Mr Dacombe

1. When Mr Dacombe made his complaint to the OLSC he was no longer an employee of NSW Maritime. Mr Dacombe evidence was the he believed "as a law student" that the affidavit required investigation. He clearly stated in evidence that he wished to make the complaint himself, and that Ms Kirychenko had not asked him to do so. He agreed he had no personal knowledge of some of the matters raised in the complaint letter.

1. It is clear that his complaint was drafted by Ms Kelly, who at that time had been stood down from her positions as Acting General Counsel of NSW Maritime and Manager of its Legal Services Branch, while ICAC conducted its investigations. Ms Kelly was well aware (as was Mr Dacombe) that Mr Dunn had previously instructed her to withdraw the complaints she had made to the OLSC and the Supreme Court about MH on behalf of NSW Maritime. As a consequence of that direction from the Chief Executive both Ms Kelly and Mr Dacombe were aware that Ms Kelly did not have authority to make such a complaint or to use personal information she had about past or present employees of NSW maritime for such purposes.

1. In those circumstances I do not accept MH's submission that, when he made the complaint, Mr Dacombe was acting as agent for or with the authority of Ms Kelly in her role as Acting General Counsel and Manager of the Legal Services Branch. Even if that were not the case, and Mr Dacombe was acting at Ms Kelly's instigation, they both knew that Ms Kelly did not have authority to make a complaint on behalf of NSW Maritime or to use MH's personal information.

1. As a result I am satisfied that Mr Dacombe's complaint was made in his personal capacity and that his actions cannot be attributed to NSW Maritime. There is no breach of the IPP in s 18 demonstrated by his disclosure.

What is the appropriate remedy?

1. The Tribunal's powers on review are set out in s 55(2) of the PPIP Act.

Compensation

1. Among other things, MH seeks compensation to the maximum amount which the Tribunal can award ($40,000). The Tribunal may only make such an order where it is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency: s 55(4)(b).

1. In his affidavit of 8 November 2010 MH sought to deal with the issue of damage and the detriment he suffered under six separate headings. They were -

• The Complaint Investigation (paragraphs 18 to 26) - this he says was a tardy and convoluted process which added to his frustration and anxiety.
• The Complaints (paragraphs 27 to 29) - MH says that because of the complaints he can no longer tell prospective clients or employers that he has complaint free history. He asserts that despite the complaints being withdrawn or dismissed "some residue ... will survive." The complaints alleged "heinous professional misconduct." MH says that the withdrawal of the complaints by Ms Kelly was not a withdrawal at all "but a belated scurry back" within the requirement of the deed. He says the complaints were intended to harm his professional reputation.
• Loss of Bargain (paragraphs 40 to 44) - MH says that as a result of the disclosure of his personal information in the complaints "many people came to know" that he had been dismissed from NSW Maritime, meaning that "I could no longer hide behind the bargain of my resignation letter." NSW Maritime failure to advise him of the first two complaints deprived him of the opportunity to immediately take action regarding that loss. The bargain he secured by the settlement has been lost to him, resulting in a heavy emotional blow and causing him to suffer a period of depression.
• Defamatory Allegations (paragraphs 45 to 50) - This relates to defamatory allegations made in Mr Dacombe's complaint letter.
• Inability to move on (paragraphs 51 to 53) - MH says that NSW Maritime's failure to deal with his Privacy Complaint expeditiously and its failure to address his legitimate complaints has deprived him of the ability to move on. It has meant he lost time he had planned to spend with his family.
• Health and Wellbeing (paragraphs 54 to 57) - As a result of Mr Dacombe's complaint, the subsequent complaint handling processes, and the pressures associated with this hearing MH says he has experienced emotional damage. "I feel continually disillusioned and cheated of personal respect and value." His sleep is disrupted: he experiences periods of torpor, has difficulty concentrating, and is more susceptible to illness.

1. In submissions MH asserted that NSW Maritime's breaches of the PPIP Act have caused him " psychological and physical damage." While he concedes that he did not seek medical or psychiatric treatment, he submitted -

... that the Tribunal should recognise the cumulative effect upon the Applicant arising out of his dismissal (which he considers not only unjust but in all the circumstances corrupt), his unemployment for 9 months, his loss of his self esteem and sense of worth and periods of deep personal distress. The Tribunal should know that whilst the Applicant did not seek professional counselling during 2010, he did pay for 15 sessions of such counselling during the latter part of 2008 and early 2009 as a result of the distress caused to him in relation to his bullying and harassment complaint and the knowledge that the Respondent would not conduct the investigation fairly.

In any event, the Applicant was just beginning to overcome the situation he endured in 2008-2009 when he was confronted with a serious complaint to his professional association. Again, whilst he was dealing with this, Ms Kelly and her sister commenced a systematic programme of harassment of him in his new obtained employment. The Applicant was investigated by his employer and was then forced to make submissions to both the Respondent, the ICAC and the Office of the Legal Services Commissioner requesting that each/or any of those agencies act to ensure that Ms Kelly and her sister desist from their harassment. The Applicant submits that the cumulative effect of all these issues be taken into account when assessing damages.

MH also referred to " a systematic programme of harassment of him in his newly obtained employment" by Ms Kelly in his new employment, surrounding the complaint to the OLSC.

1. MH said that the complaints against him incorporated "offensive and defamatory allegations about me as a person" which caused him distress especially in the context to an investigation by his professional organisation. His sleep was affected: the compliant dominated his life. NSW Maritime's failure to acknowledge its breaches of the PPIP Act had prevented him moving on. The proceedings had prevented him spending planned time with his family.

1. He says that his hypertension has worsened during the proceedings and that he has suffered emotional damage as a result of the breaches of his privacy. He sees his sleep disturbance, and being more vulnerable to infections as a result. In summary, he argues that -

But for the Respondent's breaches of the Applicant's privacy and personal information there would have been no 10 month inquiry into his affairs by the Office of the Legal Services Commissioner and the NSW Law Society. But for the same breaches (some which the Respondent has conceded) there would have been no lengthy Tribunal proceedings (made more difficult by the Respondent's refusal to conduct the Review). Common sense informs the Tribunal that these issues took a toll on the Applicant's physical and psychological wellbeing.

1. In response NSW Maritime submits it that ' it is for the applicant to put material before the Tribunal in support of such an order': GR v Director-General, Department of Housing [2004] NSWADTAP 25 at [38]. Psychological harm, it submits, is "intended to encompass a situation where an individual suffers some impairment of their mental states and processes" and includes depression and anxiety: JD v Medical Board (NSW) (No. 2) [2006] NSWADT 345 at [53]; JS v Snowy River Shire Council [2010] NSWADT 247 at [27]. Aside from his own assertions. NSW Maritime submits that MH has not placed before the Tribunal any evidence that he has suffered any physical or psychological harm. It submits that the Tribunal should be cautious before acting on that evidence alone.

1. NSW Maritime submits that MH has not established a causal link between the breaches of privacy he alleges and the damage he claims to have suffered.

1. In HP v Hunter New England Area Health Services [2009] NSWADT 186, the Tribunal set out the principles that have developed with respect to damages awards in privacy cases:

41 The Tribunal has considered the question of compensation under the PPIP Act on a number of occasions: see WT v Auburn Council [2008] NSWADTAP 16, FM and FN v Department of Community Services [2008] NSWADT 288, JD v NSW Medical Board (No.2) [2006] NSWADT 345; NW v NSW Fire Brigade (No.2) [2006] NSWADT 61, NZ v Director General Department of Housing [2006] NSWADT 173; GR v Department of Housing (No.2) [2005] NSWADT 301 and RD v Department of Education and Training [2005] NSWADT 195. Cited with approval in some of these decisions is the decision of the Commonwealth Administrative Appeals Tribunal in Re Rummery & The Federal Privacy Commissioner & Anor [2004] AATA 1221.

42 The principles set out in the abovementioned decisions and which are relevant to this applicant are:

(a) that damages are compensatory in that the applicant should be awarded such sums of money so as that he/she may be restored to the position that he/she would have been in but for the breach: see GR (supra) at [26] and Rummery (supra) at [32]. However, this must also be viewed in the context of the $40,000 limit as provided for in the PPIP Act;

(b) in measuring compensation the principles of damages as apply in tort law are a guidance but the ultimate guide is the wording of the PPIP Act and its objectives: see NW (supra) at [22];

(c) compensation should be assessed having regard to the complainant's reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances: see Rummery (supra) at [46] as adopted in NZ (supra) at [35];

(d) 'psychological harm' in s.55(4) of the PPIP Act is intended to encompass situations where an individual suffered some impairment of the mental states and processes. These being conditions such as depression and anxiety: see JD v NSW Medical Board (No. 2) at [53]; and

(e) even where an applicant is able to substantiate loss or damage as a result of conduct that contravenes an 'information principle' under the PPIP Act, an award of damages under that Act remains a discretionary one: see NW (supra) at [23] and [24] and cf. Re Rummery (supra) at [32].

43 However, compensation for alleged financial loss and alleged psychological and physical harm can only be considered where the Tribunal finds that the alleged loss and harm was 'because of' or 'caused by' the contravening conduct of the Respondent : see paragraph 55(4)(b) above.

1. In WT v Auburn Council [2007] NSWADT 253 (upheld by the Appeal Panel in WT v Auburn Council [2008] NSWADTAP 16), the Tribunal said:

37 As mentioned above, the general principles in regard to the quantum of damages, is that they are compensatory in that the applicant be awarded such sums of money so that he may be restored to the position that he would have been in, but for the Respondent's contravention. However, in the case of damages under the PPIP Act regard is to be had to the upper limit that may be awarded.

38 The applicant's in GR v Department of Housing (No.2) (supra) and JD v NSW Medical Board (No 2) (supra) each made a claim for psychological damage as a result of a breach of the respective Respondent public sector agencies. In GR, and in JD the tribunal awarded an amount of $7,500 in damages. In a recent decision of Acting Deputy President R Handley in JD v NSW Department of Health [2007] NSWADT 219 the tribunal made an order for damages for the sum of $4,500 in respect to psychological harm suffered by JD as a result of a contravention of s.18 of the PPIP Act by the Respondent Department.

39 While each application must be considered in light of its own facts, in my opinion the abovementioned decisions provide some guidance.

40 In this application, having regard to the impact the disclosure has had on the applicant, the fact that the applicant has had to pay additional amounts for his medication and the upper limit of damages that the tribunal is able to award, I consider an amount of $5,000 is the appropriate amount of damages in the circumstances.

1. In JD v NSW Department of Health [2007] NSWADT 219, the Tribunal said:

59 Turning to what would constitute an appropriate award in JD's case, I am satisfied that JD did suffer psychological harm as a result of the disclosure, although there is a lack of evidence as the exact nature of that harm, and the extent of the additional harm over and above that for which JD was compensated in JD (No 2). However, I accept that JD felt "psychologically demonised, stigmatised and vilified" by the disclosure of the information to the Medical Board. Taking into account the considerations identified in Rummery and NZ, discussed above, and noting the lack of any detailed evidence as to the psychological harm suffered by JD as a result of the disclosure, in my view an appropriate award of compensation is $4,500. This encompasses the breaches under both the PPIP Act and the HRIP Act, since all the breaches relate to the same act - the disclosure of personal information to the NSW Medical Board.

60 There is no evidence before me to suggest that the disclosure was malicious as JD contends. I note that at the commencement of these proceedings, the Department conceded the breach of s 18 of the PPIP Act and offered JD an apology and compensation of $500. While such an amount of compensation is in my view inadequate, nevertheless, the Department's conduct in these proceedings has been conciliatory and I can see no justification for an award of aggravated damages.

1. The applicant bears the burden of establishing the causal link between a breach of an IPP and damage suffered: GR v Director-General, Department of Housing [2004] NSWADTAP 25 at [38], In considering that causal link the President said President in NW v NSW Fire Brigades (No. 2) [2006] NSWADT 61 at [21]-[24]:

"21 The 'but for' test to which the applicant has referred, as the way of judging whether a causal link is established was mentioned in FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 (16 April 2003) (set aside in part by the Appeal Panel, and wholly by the Court of Appeal in Vice-Chancellor Macquarie University v FM [2005] NSWCA 192; but not affected in relation to this point). The Tribunal said:

'103 The requirement that any loss or damage be "because of the conduct reflects the common law requirement that the damage must be caused by the conduct in question. The "but for" test is generally applied to torts and is relevant to these proceedings. Pursuant to the "but for" test, the conduct caused the damage if that damage would not have occurred without (but for) it. (March v Stramare (1991) 171 CLR 506.) In other words, did the conduct in question make any difference to the outcome?'

22 Some care should be taken, as I see it, in drawing strict analogies with the common law principles as they have developed in the law of torts and the law of contract.

23 In my view the award of statutory damages in Privacy Act matters remains a discretionary one even where a causal link sufficient to satisfy a 55(4). That the position under this statute is less automatic is reflected, I consider, in the language of the opening words of s 55(2):

'On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders' (Emphasis added).

24 These words do not preclude the possibility that the Tribunal might find a contravention, might find a causal link between the contravention and harm suffered and make no order. The matter of what to do after reviewing the conduct is left entirely to the Tribunal. Then if it is minded to make an order involving payment of damages the rule in s 55(4)(b) comes into play. It does not follow that if a causal link to satisfy s 55(4)(b) is found that the Tribunal must award damages. It still remains a discretionary matter. As I see it, there is no 'right' to compensation in the way that might be the case under common law principles in tort and contract."

1. In this case MH does not claim any direct financial loss. The losses he does claim do not, in my view, result from the breaches of the IPP he has established. These are the breach of s 12(c), and the breach of s18 in relation to the complaint by Ms Kelly to the Supreme Court.

1. When one considers the six headings under which MH sought to outline his damage and detriment the lack of a causal link with breaches found becomes apparent.

1. MH's first heading concerned the complaint to the OLSC made by Mr Dacombe, and the difficulties, worries and anxiety the protracted complaints handling process exposed him to. Because I have found that Mr Dacombe's complaint was not a breach of the disclosure IPP by NSW Maritime I do not accept that these problems are causally related to a breach of s 18.

1. MH's third heading concerned his loss of the bargain in the deed of settlement with NSW Maritime. As I was at pains to point out to MH during the course of the hearing these are not proceedings to enforce the deed. Any action to recover damages suffered as a result of alleged breaches of that deed should be brought elsewhere and cannot be recovered in this proceeding.

1. Similar logic applies to MH's fourth heading, "Defamatory allegations." A review of conduct under the PPIP Act is not a forum for the recovery of damages for defamation. Additionally, the allegations he complains of were (in part) contained in Mr Dacombe's complaint letter, which I have found should not be attributed to NSW Maritime.

1. With respect to MH's other headings, "Inability to move on," and "Health and Wellbeing" MH's complaints relate to the allegations made against him. These are statements of opinion about MH (which fall within the definition of personal information in s 4) that the other personal information was intended to support. There can be no doubt that the allegations Ms Kelly made were very serious, with the potential to have significant ramifications on MH's professional standing and career. Mr Dacombe's complaint had similar consequences, but was exacerbated by a number of additional allegations about MH. I accept that the allegations were the cause of significant anxiety and stress to MH.

1. It is important to recognise that MH first became aware that Ms Kelly had written the complaints letters about him was when he was notified of Mr Dacombe's complaint. That notification also alerted him to the fact that Ms Kelly's complaints had been withdrawn. Indeed, it was not until the hearing that MH actually saw a copy of one of Ms Kelly's complaints.

1. In those circumstances, it is difficult to see how the MH's claims in relation to the complaints themselves, his inability to move on, and his health and wellbeing, relate to the complaint Ms Kelly made to the Supreme Court and the OLSC. There is no evidence of any action being taken with respect to those complaints. The evidence all relates to Mr Dacombe's complaint and the difficulties the consideration of that complaint caused MH. Mr Dacombe's complaint and his release of MH's personal information, however, are not attributable to NSW Maritime.

1. As a consequence I am not persuaded that that MH has demonstrated that he has suffered financial loss, or psychological or physical harm, because of the conduct of NSW Maritime.

1. I add that MH has made a number of claims about the physical and psychological harm he has suffered. MH is a qualified lawyer with some experience of the privacy legislation. As such he is aware that probative expert evidence is required to found allegations of this type, and to prove physical and psychological harm. He has not produced any such evidence.

Apology

1. MD has sought an order 'requiring the Chief Executive to prepare and deliver a personal apology.' The Tribunal does not have a specific power under s 55(2) to order an agency to apologise for conduct found to be in breach of the IPPs. The Tribunal has used its ancillary orders power (s 55(2)(g)) to make such orders, but those 'apology orders' are directed to the agency, and do not require individuals within the agency to make personal apologies. In my view, s 55(2) does not extend to ordering an employee of an agency to make a personal apology.

1. That said, I am of the view that the agency should apologise to MH for each of the breaches of the IPPs I have found.

Discipline

1. MH sought an order that order requiring the agency to discipline those persons responsible for the disclosure of his personal information.

1. I do not accept that the Tribunal's powers under s 55(2) extend to the making of such an order. I would add that, if they did, both Ms Kelly and Mr Dacombe are no longer employees of the agency and are outside its disciplinary reach.

Other actions

1. MH has sought a number of other specific remedies, They are:

• an order requiring the agency to conduct an assessment into its procedures and processes regarding the storage of personal information,
• an order requiring the agency to develop a policy regarding employees with access to personal information who leave NSW Maritime employment, and

1. In the course of the hearing I heard evidence from Mr Dunn and Ms McCabe to the effect that the agency's Privacy Management Plan is being reviewed and that specific attention would be paid to these matters. As a result I see little utility in making such an order.

1. I do note however that the evidence before me raised worrying concerns in relation to the storage and security of MH's personal information, and pointed to the lack of procedures concerning recovering, securing and/or disposing of personal information relating to former employees of the agency. Any revised Privacy Management Plan should pay close attention to those matters.

1. In accordance with s 55(2) of the PPIP Act I think it appropriate that I make orders requiring the agency to refrain from any further conduct in breach of the IPP's in s 12(c), and s 18 of the Act.

1. Another matter that was of significant concern to me, and was the subject of submissions made by the Privacy Commissioner, was the evidence concerning the poor training in, understanding of, and compliance with the Privacy Management Plan by staff of the agency. The Privacy Commissioner submitted -

29 Whilst it would appear that many of the provisions of section 33 of the PPIP Act were complied with by the Respondent Agency, it would appear that there was insufficient rigour in implementing the provisions of section 33 (2) (b ) of the PPIP Act, or that if the Agency believed that the provisions were implemented, then in practice (from the evidence given in the proceedings) from an operational perspective this did not occur.

30 One relevant witness had no knowledge of the existence of such a Plan. That witness being Mr Dacombe.

Ms O'Hanian had knowledge of the plan and received 1 hour's training 'a long time ago'.

31 Ms McCabe was 'broadly' aware of the contents of the Plan and had received recent training arising from developments that she was now responsible for responding to.

32 Mr Potter who is the 'Manager of Information Technology' at NSW Maritime had no knowledge of a Privacy Management Plan.

33 Mr Dunn the CEO of the Respondent had fluctuating levels of knowledge when contrasting privacy understanding, the existence of the Plan, and knowledge of the Plan.

34 Ms Kirychenko had knowledge of the PPIP Act but was unable to recall whether she had received any training in her three years employed at the Agency.

35 Ms Dacombe being the person credited on the Exhibit with authoring the Privacy Management Plan, confirmed this in her evidence. Her evidence was however less clear in respect of what her operational and general knowledge of the contents of the Plan and the PPIP Act were in her subsequent 12 years at NSW Maritime.

36 Ms Kelly's evidence on this issue is that she claims to have also been the author of the Plan. She said that she probably had training in the Plan but did not refer to it regularly (presumably as the need arose) as she was busy and had other things to do.

38. During the proceedings evidence has arisen of e-mail practices within the Respondent Organisation. Those practices relate to the 'forwarding on' of work e-mails (received by employees) from their work inbox to a private email account / address. When such e-mails contain personal information of clients or employees, I would submit that it is inappropriate having regard to the PPIP Act for e-mails containing such information to travel from a secure NSW Public Sector server to an 'unsecured' account such as a web based `yahoo', ' hotmail' or similar account. Such practices may be contrary to public sector agencies Policies and Procedures and especially Information Technology polices and in some instances the Agency's Code of Conduct.

1. I agree with each of those submissions. The lack of training given to key agency staff and the gaps that have been exposed in the operation and implementation of the agency's Privacy Management Plan are a matter of real concern. They are of such concern that they require close attention by the agency's management.

1. I did contemplate making orders concerning those issues, but have reached the view that they are not readily amenable to an 'ordered' solution. They require careful consideration and management (and the allocation of some resources) by senior management of the agency. As the matter is of obvious concern to the Privacy Commissioner ,it may be an issue more appropriately followed up by the use of the Commissioner's powers.

Summary

1. In summary I am satisfied that the agency by its conduct has breached -

• S 12(c) of the PPIP Act as evidenced by Mr Dacombe's disclosure of the affidavit and the complaint documents to the OLSC.
• S 18 of the PPIP Act with respect to Ms Kelly's disclosure of the affidavit and the complaint documents to the Supreme Court.

1. The Tribunal orders -

• The agency to refrain from any further conduct in breach of the IPP's in s 12(c), and s 18 of the Act.
• The agency to apologise to MH for the conduct in breach of the IPPs.

Costs

1. It appears from MH's submissions that he will be seeking costs. If so he is to file and serve any submissions he wishes to make on the issue of costs - together with a detailed list of costs and expenses (with evidence of expenditure) within 28 days.

1. The agency will then have a further 28 days to file and serve submissions in response.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Amendments

25 November 2011 - Remove reference to s17

Amended paragraphs: Coversheet, paragraph 228 and 233

25 November 2011 - Anonymisation

Amended paragraphs: Paragraph 92

25 November 2011 - Reference to Ms Kirychenko to be Ms Kelly

Amended paragraphs: Paragraph 190 and 194

Decision last updated: 25 November 2011