Nickolopoulos and Military Rehabilitation and Compensation Commission

[2024] AATA 200

Nickolopoulos and Military Rehabilitation and Compensation Commission [2024] AATA 200 (25 January 2024)

Division:GENERAL DIVISION

File Number(s):      2021/5358

2022/9882

Re:Konstantinos Nickolopoulos

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:25 January 2024

Place:Adelaide

The Tribunal refuses the Applicant’s request for an order under section 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of the Applicant’s submissions received on 6 December 2022 and 23 October 2023:

a)if the Applicant seeks to rely on these documents in his application for review, the Applicant is to provide the Respondent with the 6 December 2022 and 23 October 2023 emails and their attachments by 1 February 2024.

..................[Sgnd] .......................

Senior Member George

Catchwords

PRACTICE AND PROCEDURE – application for confidentiality – procedural fairness – public interest – no substantive grounds for confidentiality – application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Privacy Act 1988 (Cth)

Privacy and Data Protection Act of 2014 (VIC)

REASONS FOR DECISION

Senior Member George

9 February 2024

1. It is established law, under s 35(5)(c) of the Administrative Appeals Tribunal Act 1975 (“the Act”), that the Tribunal is to take as a basis of its consideration that the contents of documents lodged with the Tribunal should be made available to all the parties if making orders for non-disclosure under s 35(4) of the Act. This section is codification of long-standing principles of procedural fairness and is balanced against public interest.

2. These are reasons for an interlocutory decision made on 25 January 2024 to refuse an application for confidentiality over documents, following a request for reasons by Mr Nickolopoulos on 8 February 2024.

3. On 30 October 2023, Mr Nickolopoulos requested “that the records and documents forwarded to this Tribunal on 6 December 2022 and on 23 October 2023, be safeguarded and treated as confidential in accordance with the Privacy Act 1988 (Cth) and the Privacy and Data Protection Act of 2014 (VIC).” The substance of Mr Nickolopoulos’ reasoning is contained in the following paragraphs:

   “The documents contained in the aforementioned emails comprise highly personal, sensitive, and private information. These documents include names, dates, numerical data, signatures, and even images featuring faces, including my own and those of fellow soldiers. The contents of these documents could easily reveal my identity as well as indirectly expose individuals associated with my claims before this tribunal. This situation could jeopardize both my personal privacy and safety, along with that of others involved as I was not authorized by my colleagues to give and use their PM keys, numbers, and other materials to be used by other persons.

   I am concerned that, if the confidentiality of the previously submitted documents is not upheld, they may be exploited by the opposing party to my detriment. I have observed that they have, disturbingly, obtained information about me, utilizing it to create false narratives and misleading allegations.”

4. An interlocutory hearing by telephone was held on 20 November 2023, where the Tribunal directed that:

   (a)On or before 4 December 2023, the Respondent must file with the Tribunal and serve on the Applicant any submissions in relation to the Applicant’s confidentiality request dated 30 October 2023.

   (b)On or before 11 December 2023, the Applicant must file with the Tribunal and serve on the Respondent any submissions in reply.

5. An index of documents Mr Nickolopoulos was seeking confidentiality over was provided to the Respondent’s lawyer. Some of these documents are relevant to Mr Nickolopoulos’ case.

6. The substance of the Respondent’s submissions of 4 December 2023 was that, “in the absence of some other public interest, the requirements of procedural fairness and the principle that it is desirable for documents to be made available to all parties should take primacy and are served by refusing the confidentiality application.” The Respondent’s other submissions are peripheral to the central issue of procedural fairness. It is noteworthy that the Respondent already had some of the relevant documents in its possession.

7. Mr Nickolopoulos did not file and serve any submissions in reply by 11 December 2023.

8. It is clear to the Tribunal that the Respondent would be denied procedural fairness were a confidentiality order made as sought by Mr Nickolopoulos. The Respondent would not fully know the case that they were meeting if the confidentiality order was granted. Indeed, evidence could not be tested at hearing and the weight then to be attributed to it would be difficult to ascertain.

9. It is common for the Tribunal to deal with highly personal, sensitive, and otherwise private information. Overwhelmingly, it does so in public hearings and with published decisions. In this way, the Tribunal promotes public trust and confidence in its decision-making. Transparency is central to an open justice system.

10. Having regard to the application and the material over which confidentiality is sought, there is no substantive public interest raised by Mr Nickolopoulos that requires the non-provision of this material to the Respondent. There is no objective reason for the Tribunal to suspect that the Respondent would “create false narratives and misleading allegations” about Mr Nickolopoulos. These serious allegations have no basis on the material before the Tribunal. Indeed, they are scandalous. Despite his assertions to the contrary, the Tribunal is not satisfied that anyone’s personal privacy and safety would be jeopardised by the Respondent being provided with the documents.

11. Furthermore, the material is not evidence in proceedings and therefore is not in the public domain. Any application for a confidentiality order to attach to any single document can be more properly made at the point it is sought that document is exhibited if, of course, the application is made on a sound basis and the document is relevant.

12. The Tribunal does not regard the provisions of the Privacy Act 1988 (Cth) and the Privacy and Data Protection Act of 2014 (VIC) to be relevant to this application.

13. Mr Nickolopoulos has not satisfied the Tribunal that the balance of public interest outweighs the consideration of s 35(5)(c) of the Act and principles of procedural fairness. Therefore, the application is refused, and the Tribunal makes the form of orders sought by the Respondent.

    DECISION

14. The Tribunal refuses the Applicant’s request for an order under section 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of the Applicant’s submissions received on 6 December 2022 and 23 October 2023:

    (a)if the Applicant seeks to rely on these documents in his application for review, the Applicant is to provide the Respondent with the 6 December 2022 and 23 October 2023 emails and their attachments by 1 February 2024.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

.............................[Sgnd]..............................

Associate

Date of Decision:	9 February 2024
Date of Interlocutory Hearing:	20 November 2023
Solicitor for the Applicant:	Self-represented
Solicitor for the Respondent:	Madelaine King Australian Government Solicitor