NV v Randwick City Council

[2005] NSWADT 45

CITATION:	NV v Randwick City Council [2005] NSWADT 45 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT NV RESPONDENT Randwick City Council
FILE NUMBER:	033361
HEARING DATES:	28-30/09/2004, 9/11/2004, 22/12/2004
SUBMISSIONS CLOSED:	12/22/2004
DATE OF DECISION:	03/04/2005
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Local Government Act 1993 Privacy & Personal Information Protection Act 1998
CASES CITED:	BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 MG v Director General, Department of Education and Training [2004] NSWADTAP 45
REPRESENTATION:	APPLICANT A Dawson, barrister RESPONDENT R Campbell, barrister
ORDERS:	1 The application is dismissed for want of jurisdiction ; 2 Any application for costs is to be made within 14 days of today by the exchange and lodgement of written submissions.

1 This is an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (NSW) ("the Act or the Privacy Act") for a review of the conduct of a local government council in relation to its dealing with alleged personal information of the applicant. It is primarily alleged by the applicant that the respondent contravened the information protection principles relating to disclosure of personal information (by providing a neighbour of the applicant access to letters written to the Council by the applicant which were arguably defamatory of the said neighbour) and significant monetary compensation is sought (as the neighbour successfully sued the applicant in defamation) along with other orders pursuant to section 55(2) of the Act.

2 The respondents’ case is that the Tribunal has no jurisdiction to deal with the matter at all by reason of section 53(3)(d) of the Act in that it is said that the applicant did not lodge the internal review application with the respondent within six months of the time the applicant first became aware of the conduct which is the subject of the application. In the alternative, it is said that the applicant has not established the necessary elements of the alleged privacy breach needed to be established under the Act and, if she did establish a breach, no monetary damages should be payable.

3 The matter was argued at length over a period of five days before the Tribunal. Affidavit and oral evidence was taken from members of the applicant's family, the neighbour's family and officers of the respondent Council. Detailed written submissions by the applicant dated 9 November 2004 and by the respondent dated 24 September 2004 and 9 November 2004 were relied upon. The background and context to the application is a long-running and often very bitter neighbourhood dispute which, as the applicant’s legal representative put it “clearly got completely out of hand”. The applicant and the relevant neighbours each lived in two story residential properties in Sydney and the immediate catalyst for the dispute was the erection of extensions at the neighbour’s property which were opposed by the applicant and her family and which impeded on her privacy by the unfortunate positioning of two windows. The neighbours were able to, and apparently frequently did, look into the applicant’s house. This very much upset the applicant and her adult daughters who lived upstairs in the house. Relations were so bad between them that community mediation was attempted and failed and the police were called in by each of the applicant and the neighbours from time to time to resolve their disputes.

4 The applicant's representative tendered a statement of agreed facts (exhibit C) which sets out much of the necessary background and relevant facts. I shall set it out in full. As is usual in Privacy Act matters, some identifying names have been removed. For convenience, I have added some of my own commentary by way of findings to that statement that are convenient to be made at this stage in square brackets in italics.

“1. At all material times [the applicant] and her family lived in [address listed] and the [neighbours] family lived next door at [street number – to the north of the applicant] [ Both residential properties had ocean views and both houses faced the ocean to the east ].

2. In early 1999, the neighbours lodged plans for renovation and extension work for approval with the Respondent, Randwick City Council.

3. On 23 April 1999 the applicant received notification from the Council of the Development Application and invited submissions.

4. On 4 May 1999 the applicant was visited at her home by Council Officer Ms McDonnell to discuss the applicant’s concerns regarding the proposed development at [the neighbour’s property].

5. On Friday 7 May 1999 the applicant delivered to Randwick Council written submissions on her and her husband’s behalf …, raising objections in relation to the proposed development at [the neighbour’s property].

6. Between 7 May 1999 and 22 June 1999 there were a number of communications between the applicant and Council in relation to her submissions.

7. On 23 June 1999 the applicant received a letter from Council dated 22 June 1999 advising that the Development Application relating to [the neighbour’s property] had been approved by Council on 21 June 1999.

8. Construction work commenced at [the neighbour’s property] in May 2000.

9. On 11 December 2000 the applicant wrote a letter to the Mayor complaining about the installation of transparent windows [in the neighbour’s property] which she believed would impinge upon her privacy.

10. The Mayor replied by letter dated 4 January 2001 stating that Council would investigate and respond.

11. The applicant wrote a further letter to Mayor Sullivan dated 25 February 2001 [“the first letter”] in which the applicant raised privacy concerns and complained about the activities of the residents of [the neighbour’s property]. [In fact, the letter went considerably further than this, suggesting, inter alia, that the neighbours, particularly the neighbour husband, were peering into the applicant’s home day and night and he or they were “Peeping Toms” and “Voyeurs”.]

12. The applicant, after receiving no response to her letter dated 25 February 2001, wrote a further letter dated 6 March 2001 [“the second letter”] to Mayor Sullivan raising further issues including the privacy issues she had raised in her letter of 25 February 2001. [The second letter also raised planning issues and complaints and further stated that not only were the neighbours “Peeping Toms”, but anyone else who visited them also invaded their privacy by looking at them through the disputed windows.]

13. The Mayor wrote to the applicant on 7 March 2001 indicating that Council would investigate and respond.

14. Council wrote again to the applicant by letter dated 19 March 2001 acknowledging receipt of the applicant’s letter of 6 March 2001.

15. The above letters from the applicant and Council’s responses were placed on the Council file relating to [the neighbour’s property].[They were placed on the neighbour’s development application file.]

16. By letter dated 19 April 2001, Council advised the applicant of the outcome of her complaints, namely that no further action would be taken by Council.

17. On or about 31 July 2002, the neighbours applied, pursuant to section 12 of the Local Government Act 1993, to inspect the Council file relating to [the neighbour’s property]. [Section 12 relevantly provides that the council must provide free of charge inspection of a number of council documents and records including “development applications…and associated documents”. Subsection (6) provides: “The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.” Sections 12A, 12B and 13 also relate to access to council information.]

18. Council granted the [neighbour’s] section 12 request in early August 2002:

a. without considering whether, pursuant to section 12(6) of the Local Government Act , inspection of the document would, on balance, be contrary to the public interest; and

b. without regard to the Privacy and Personal Information Protection Act 1998.

19. In early August 2002, the neighbours inspected the Council’s file relating to [the neighbour’s property]. During the course of that inspection, the neighbours read the applicant’s letters addressed to the Mayor dated 25 February and 6 March 2001.

20. The applicant telephoned David Mulcahy (of the respondent Council) on 12 August 2002 and asked how the neighbours had been permitted to read her letters to the Mayor. Mr Mulcahy suggested that the applicant apply to inspect the Council’s file relating to [the neighbour’s property] which would record to whom access to the file had been given and when.

21. On 28 August 2002 the applicant applied pursuant to section 12 of the Local Government Act to inspect the file. That application was granted and she inspected the file on or about 2 September 2002. [The applicant’s evidence was that only the second letter was present on the file on this inspection. The Council disputed this evidence and asserted that both letters were placed on the file and remained there to this day.]

22. On 3 March 2003 the neighbours made a further application under section 12 of the Local Government Act to inspect the Council’s file relating to [the neighbour’s property].

23. On 17 March 2003 the applicant received a letter of demand from Baker and Mackenzie, who were solicitors retained by the neighbours, threatening proceedings for defamation if the [neighbour]’s demands were not met. In that letter, the neighbours demanded:

a. an unqualified and unreserved retraction and apology;

b. the publication of that apology to the Mayor and officers of Randwick Council;

c. payment of the [neighbour]’s legal costs of $6000.00;

d. payment of $150,000 in compensation.

24. On 20 March 2003 Council granted the [neighbour]’s section 12 request:
a. without considering whether, pursuant to section 12(6) of the Local Government Act , inspection of the document would, on balance, be contrary to the public interest; and

b. without regard to the Privacy and Personal Information Protection Act 1998.

25. The matter was not able to be resolved and the neighbours commenced proceedings [ against the applicant ] for defamation against the applicant on 25 August 2003 [ in the District Court of New South Wales. A copy of the first and second letters were attached to the Ordinary Statement of Claim ].

26. On 3 October 2003 the applicant wrote a letter to the Council’s Privacy Officer to request an internal review of the disclosure of the complainant’s letters dated 25 February and 6 March 2001 under the Privacy and Personal Information Protection Act. [Exhibit A, page 29 – It is significant to note that six months prior to that date was 3 April 2003. Under section 53(3)(d) of the Privacy Act, in order for the Tribunal to have jurisdiction, the applicant must have “first became aware of the conduct the subject of the internal review application” after 3 April 2003, unless the agency allowed the application to be filed later.]

27. On 7 October 2003 the applicant received a letter from Privacy Officer Peter Smith acknowledging receipt of her letter and advising that an internal review was to take place as soon as reasonably practicable. [The officer also asked for the applicant to provide him with further information so as to “facilitate the review process”. He asked her to "advise in writing and as a matter of urgency, when you first became aware that the two (2) subject letters had allegedly come into the possession of your neighbours, as this information is not detailed in your letter to Council”. Exhibit A, page 29]

28. On 30 October 2003 the applicant wrote to Privacy Officer Peter Smith providing additional information concerning her claim. [Exhibit A, page 31 - In her letter, in addition to setting out some of the history of the bad relationship she had had with the neighbours in the past year, she indicated that she first became aware the said letters had allegedly come into the possession of her neighbours when she received a copy of the Supreme Court defamation papers – the statement of claim on 1 September 2003. She had earlier spoken with the Officer on the telephone to similar effect.]

29. On 31 October 2003 the neighbour's solicitors wrote to the Council asking:

a. That the applicant’s letters of 25 February 2001 and 6 March 2001 be removed from the file relating to [the neighbour’s property]; and

b. For various information about the handling of those letters.

30. By letter dated 27 November 2003 Peter Smith advised the applicant that the Council’s legal advice was that it was not in breach of the Privacy and Personal Information Protection Act , and advised the applicant of her right of review to the Administrative Decisions Tribunal. (“ the internal review decision ” – Exhibit A page 33 – The Council's Officer found that based on the Council's legal advice, there was no breach of the Privacy Act as:
- the two letters were “unsolicited”;

- they did not contain “personal information” under the Act); and

- section 12 of the Local Government Act authorised release of the documents.

31. On 5 December 2003 the defamation proceedings brought by the neighbours against the applicant were listed for a trial before a jury pursuant to section 7A of the Defamation Act 1974 in the District Court on 23 and 24 February 2004.

32. On 12 December 2003 the Council wrote to [the neighbour’s] solicitors in response to their letter of 31 October 2003 and advised that:

a. The letters would be sealed on the file relating to [the neighbour’s property] and not accessed without prior reference to the Council’s Public Officer “who will then determine the public interest elements of any requested access, including those by Council staff”; and

b. Providing information in response to the requests made.

33. On 24 December 2003 the applicant lodged an application for review of conduct of a public sector agency under [ section55(1) of ] the Privacy and Personal Information Protection Act with the Administrative Decisions Tribunal.

34. On 30 December 2003 the applicant received notification of receipt of her application from the Administrative Decisions Tribunal.

35. On 23 January 2004 the applicant received a letter from Mr Peter Smith Privacy Officer providing additional information to the complainant regarding her claim and further outlining why the Council maintained that it was not in breach of its obligations under the Privacy and Personal Information Protection Act. [Exhibit A, page 50 – as to the section 12 of the Local Government Act ground, the respondent also claimed that the internal review application did not disclose a breach of the Act as:

“Council's view was that it would not have been contrary to public interest to allow access to the documents and therefore access was allowed. Had Council refused access to the documents it would have been required to provide its reasons for doing so to the Applicants (the neighbours).

Council did not consider that any valid reasons for refusing access existed and therefore pursuant to section 12(6) of the LGA Council was bound to allow inspection of the subject documents.”]

36. On 23 February 2004, following lengthy settlement discussions between the neighbours and the applicant’s legal representatives in the week commencing 16 February 2004, the defamation proceedings settled. Part of that settlement was the payment by the applicant of $25,000 to the neighbours [ the husband and the wife only ] and the installation of opaque glass at the applicant’s cost in the two windows on the southern wall of [the neighbour’s property] which were the subject of the letters upon which the neighbours sued. [ Exhibit A, page57 – In addition to the $25,000 settlement, the applicant was liable for her own legal costs in the action which on the evidence was in excess of $15,000 to take the amount claimed in monetary compensation to the statutory maximum of $40,000 in section 55(2)(a)of the Act – Exhibit D ]”

5 I consider that the above chronology, in addition to the affidavit and oral evidence to which I shall refer, sufficiently sets out the evidentiary foundation for the Tribunal to deal with the primary submission of the respondent, namely the argument based on jurisdiction.

The Jurisdiction Argument

6 At the commencement of the hearing, the respondent's legal representative submitted that the Tribunal did not have jurisdiction to hear the matter as the internal review application was said to have been made out of time. The issue before the Tribunal is whether or not the applicant first became aware of the conduct the subject of the internal review application within six months of the date of her application to the agency. The agency did not knowingly permit the applicant to lodge the internal review application at a date later than this six-month period.

7 As this was a factual issue, and might involve findings of credit, the parties agreed that the issue needed to be determined only after evidence had been adduced from the applicant herself and from the agency. Accordingly, it was agreed between the parties that it was better that the entire evidence of both parties be adduced and the jurisdictional question be determined at the end of the evidence.

8 The statutory basis for the Tribunal's jurisdiction is derived from s 38 of the Administrative Decisions Tribunal Act 1997 (“ADT Act”). Pursuant to that provision the Tribunal does not have jurisdiction to review a decision unless another Act provides that applications may be made to it for a review of that decision or a class of decisions (see - MG v Director General, Department of Education and Training [2004] NSWADTAP 45 at [6]). The Tribunal's jurisdiction in the present case must be derived from the Privacy Act. Section 55(1) of the Privacy Act provides:

“55 Review of Conduct by Tribunal

(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.” (my emphasis)

9 Section 53 of the Privacy Act relevantly provides:

“53 Internal review by public sector agencies

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

(2) The review is to be undertaken by the public sector agency concerned.

(3) An application for such a review must:

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) comply with such other requirements as may be prescribed by the regulations.” (my emphasis)

10 It has been established by decisions of the Tribunal that in order for an internal review application under section 53 of the Privacy Act to be considered a valid or competent application, it must first satisfy the requirements affecting lodgement. In particular, the six month time requirement must be met. The issue was determined in this fashion by the President of the Tribunal in Y v Director General, Department of Education & Training [2001] NSWADT 149 at [69] – [74]. At [73] the President stated:

“Where it is found, or there is no dispute, that the application for internal review is out of time, the agency has, I consider, a discretion to refuse to accept the application which is not amenable to reconsideration by the Tribunal.”

11 The notion of the Tribunal not having jurisdiction in cases where the internal review application was not lodged within time, and no extension of time had been granted by the agency, has also been determined in other cases. In BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 at [22] and [25] to [27], the Tribunal determined that an internal review application is simply not competent if it is not lodged within time and no extension has been granted by the agency. It is a mandatory requirement (see also: MG v Director General, Department of Education and Training [2004] NSWADTAP 45). The applicant did not seek to argue that any of these Tribunal decisions were wrongly decided or that they should not be followed.

12 In the present case, as the above chronology sets out, the internal review application was lodged, the agency's officer requested that the applicant advise him urgently as to the time when the applicant first became aware that the two letters had come into the possession of the neighbours and the applicant then advised him that the relevant time was a date only a month or so before the date of the internal review application. To the Council officer, this response made the internal review application apparently competent and an internal review was conducted and a report was generated under the belief that the application was within time. The Council officer’s evidence was that had he known that the applicant had first become relevantly aware of the conduct outside the six-month period, he would not have undertaken the assessment and he might have taken legal advice on the matter. It was argued by the respondent that if the applicant misled the respondent or was mistaken in her formal nomination of 1 September 2003 as the relevant time, and given that no extension to lodge had been granted by the applicant, the Tribunal does not have jurisdiction to deal the matter at all.

13 The applicant's legal representative accepted that if the Tribunal found that the applicant was first aware of the respondent's conduct before 3 April 2003, the Tribunal does not have jurisdiction (applicant's submissions at [9]). It was submitted that the expression “first aware” in section 53(3)(d) of the Privacy Act should be construed to mean the actual knowledge of the applicant, and, presumably, not imputed knowledge (ibid at [20]). I accept this approach as correct.

When Did the Applicant First Become Aware of the Relevant Conduct?

14 The applicant's evidence was that although she had suspicions that her neighbours had been given access to the two letters by the respondent sometime prior to the service on her of the defamation statement of claim in September 2003, she was not certain that the respondent had disclosed the two letters to her neighbours until she saw the statement of claim and the two letters attached to it bearing the stamp of the respondent.

15 The terms of the internal review request dated 3 October 2003 (omitting formalities) were as follows:

“I am writing to request an internal review of the council's disclosure of my information under the Privacy and Personal Information Protection Act.

This disclosure concerns 2 letters I wrote to the Mayor - Councillor Dominic Sullivan - on 25th February 2001 and 6th March 2001.

They would be located on File No: [given] [the neighbour’s Development Application File] and listed as Document No [given].

I await your response.”

16 It is significant to observe that the internal review application did not specifically assert that the conduct the subject of the application involved the physical disclosure of the two letters to the applicant's neighbours. It was more general than that. It specified disclosure of “information” that “concerned” two letters written by the applicant to the council. It did not specify a complaint that the two letters or a copy of them had been physically given to the neighbours by the council, only that they had been shown to them or the contents of the letters were somehow made available to them. Even in the letter sent by the applicant to the Privacy Officer of the council dated 30 October 2003 purporting to clarify when she first became aware that the two letters had allegedly come into the possession of her neighbours, the applicant stated she was concerned about the “disclosure” of the two letters to the neighbours and not necessarily the fact that a copy of the two letters had been physically given to them.

17 I find that the conduct that was the subject of the internal review application was the act of the respondent providing or making available the two subject letters to the neighbours for inspection by them. The applicant accepts that this is the real question in the proceedings (applicant’s submissions at [23]). The significance of this is that if it is found by the Tribunal as a matter of fact that the applicant was aware that the neighbours (the husband or the wife) were aware of the content of the said letters (as opposed to them possessing a copy of them) prior to 3 April 2003, the Tribunal does not have jurisdiction to deal with the matter.

18 There was a significant amount of evidence led by both parties as to the time of the applicant’s first relevant awareness in about August/September 2002. The applicant’s evidence was, at the end of the day, that the neighbour wife never expressly raised the contents of the two letters with the applicant in person. This is in spite of the fact that plain references to the content of the letters were disclosed by her in her in an argument she had with the applicant in August 2002, when relations between the two families became drastically worse. The neighbour wife in her oral evidence stated in questioning from the Tribunal that she never disclosed the contents of the two letters to the applicant at all. In August 2002 she said she did mention to the applicant that the applicant had been speaking to the other neighbours and had been alleging to them that the neighbour husband was a "perve" and had been “ogling” the applicant's daughters and that she said to the applicant that she did not appreciate this. In that conversation, she said she was not referring to the applicant’s letters to the council (which, the documents reveal, she had had access to on 8 August 2002) (Transcript, 30 September 2004, pages 100-101). However, I do not need to make findings about the applicant’s knowledge during this period, given my findings below as to the applicant's awareness in March 2003.

19 In March 2003, the applicant was sent a letter of demand dated 17 March 2003 from the solicitors for the neighbours. The letter stated in part:

“We act for [your neighbours].

Our clients have handed us copies of letters you published to the Mayor and officers of the [respondent] on or about 25 February 2001 and 6 March 2001.

We have obtained the advice of Queen's Counsel specialising in defamation law, who informs us that your letters are highly defamatory of our clients, and particularly [the neighbour husband], who you allege is guilty of sexual misconduct, in that he is a Peeping Tom who derives sexual gratification from pruriently and secretly spying on the intimate behaviour of yourself and your family.”

20 The letter of demand referred to other matters, some of which apparently arose from the text of the two subject letters and from the ongoing dispute between the two neighbours. The neighbours' solicitors made a number of demands including a retraction of and an apology for the alleged defamatory statements and payment of $150,000 in lieu of damages.

21 The applicant’s evidence on this letter was that as copies of the letters were not attached, she was not “certain” as to “how” the neighbours had actually obtained copies of the two letters from the council or whether they had even seen the contents of the said letters (Transcript, 28 September 2004, page 44 line 22). Further, she stated that she distrusted or was suspicious of the author of the letter, who she later found out to be a relative of the neighbours (Transcript, 28 September 2004, page 45 line 29). She also gave evidence that when she inspected the Council’s files on 2 September 2002, the first letter was not on the file (although the second letter was). All of this was said to cause her not to be certain that the neighbours had been given access to the letters by the Council as at March 2003.

22 At the hearing, the respondent’s legal representative cross examined the applicant extensively and challenged her credit in numerous areas, particularly as to the question when she first became aware that the neighbours had had access to, or obtained a copy of the two letters. In submissions, he described her evidence as “incredible” on this issue and submitted that it should not be accepted by the Tribunal.

23 My assessment of the applicant on this issue (as to when she first became aware) is that she appeared to me to be evasive and not entirely convincing. For example, in cross-examination, when asked questions about the letter of demand dated 17 March 2003, it was put to her that the letter of demand effectively summarised the contents of the two subject letters she had sent to the Mayor. She said (Transcript, 29 September 2004, page 26, line 24):

“Yes, but they didn’t attach the letters I mean you know they could have read them up at the council”

24 In addition, for example, when cross examined about her belief at the time she examined the Council files in September 2002, the following exchange took place:

“Q. And you then say because you became aware from your inspection that they’d seen both letters you say because of that you were shocked and upset?

A. I was shocked and upset because I couldn’t believe that a letter that I had written to the mayor or two letters that I had written to the mayor had got into the hands perhaps of my neighbours.

Q. Well you knew that they had seen them didn’t you?

A. Well--

Q. Yes or no?

A. Yes but not certain.”

25 I do not accept the evidence of the applicant that upon receipt of the letter of demand she merely had “suspicions” or she was “not certain” about what might have happened at the Council. I also consider that evidence to be inherently improbable in the situation she was in at the time and considering the plain terms of the letter, which specified the fact of and the date of each of the two subject letters sent to the Mayor and, in part, summarised their contents. I find that at the moment she received and read the letter of demand, she was plainly aware that the neighbours had been given access to, or a copy of, the two letters that she had written to the Mayor.

26 I do not need to find that the applicant was “first aware” at this point in time. It is sufficient that she was plainly aware outside the six month period. The respondent's legal representative strongly put that the Tribunal should make a finding that the applicant was first aware approximately seven months earlier than that time, namely, in August 2002 and that this was the reason why the applicant attended the council to inspect the neighbours' Development Application file. There is considerable force in these submissions. Indeed, such a finding might also be open based on the agreed facts alone. In paragraph 20 of those facts as set out above in these reasons, the applicant admitted she telephoned an officer of the Council on 12 August 2002 and asked how her neighbours had been permitted to read her letters to the Mayor. However, due to the above finding, the Tribunal is not required to determine that factual question. I should mention that notwithstanding the applicant's evidence that when she inspected the Council file on 2 September 2002, the first letter was not present on the file. I do not consider that significant for the reason that the second letter contained sufficient adverse information regarding the subject matter of the defamation complaint (in repeating the “Peeping Tom” allegation and expanding it to the neighbours’ visitors) so as to have caused the neighbours to seek legal advice. Further, the original copy of first letter somehow appeared on the file at some point in time before the Tribunal hearing. The Council contends the letter was never missing from the file. However, I do not need to determine these matters in light of my earlier finding about the applicant’s actual awareness in March 2003.

27 The applicant’s legal representative made an alternative submission to the effect that the Council’s Privacy Officer asked the applicant the wrong question in his letter to her of 7 October 2003. He asked her to advise him as to when she first became aware of when the neighbours came into “possession” of the two letters (as opposed to the “real question” – when did the applicant first become aware that the Council has disclosed the contents of the letters to the neighbours). This, the officer conceded in cross-examination, was not strictly the correct question. It was then submitted that, putting it shortly, in failing to ask the correct question at the time, the Council somehow waived its right to make a separate decision on accepting the internal review application out of time and must be taken to have accepted the application.

28 The problem with this alternative argument is that I do not accept the question put was necessarily the wrong question. Perhaps it could have been better expressed. However, in the circumstances of the case, it was far more likely that any knowledge of the letters by the neighbours was going to have to have been so obtained by the Council providing access to the letters to the neighbours by physically handing them over (usually as attached to a Council file). That is in fact what occurred in the present case – the Council’s development application files were requested by the neighbours and they were provided in full to them and inspection occurred in a viewing area of the Council. On one view, that might be considered to have been (temporary) possession of the said letters in order to inspect them. In any event, the alternative submission does not alter the fact as found above, namely, the applicant was plainly relevantly aware outside the six month period and no extension has been allowed by the Council under the Act.

29 Accordingly, the Tribunal is without jurisdiction in the matter.

30 The parties raised a significant number of other factual and legal submissions which are unnecessary for me to deal with, given the finding on jurisdiction. I will not deal with all of them, for they were many. However, I should indicate the view I would have taken as to some significant issues pressed in submissions, were I held wrong on the finding above.

The Relevant Disclosure

31 The applicant asserts that the relevant disclosure in these proceedings was the disclosure of the respondent to the neighbours (or the neighbour wife) in August 2002, when Council records plainly show that she accessed her development application file. However, the neighbour wife’s plain evidence (given at the hearing for the first time and after she had more carefully examined her own records) was that she accessed her Council file in May 2001 and she saw and had copied the two subject letters then. The Council itself has no record of her accessing the file then and there might good reason for doubting that this was the case. However, the neighbour wife was adamant that she did and brought along to the Tribunal hearing a draft advice from her then barrister, being a draft letter of demand addressed to the applicant. The facsimile transmission containing the draft letter of demand was dated 13 June 2001 (exhibit 6) and expressly referred to the two subject letters and some of their contents. I accept the evidence of the neighbour wife in this regard. The documentary evidence (a receipt from council for photocopying and the barrister’s advice sent by facsimile transmission) plainly supports the neighbour wife and there are many reasons why the Council might not have formally recorded the fact that she accessed her file at Council in that year.

32 Accordingly, the relevant disclosure to the neighbours was in May 2001. Having said that, I would also find that there was a further disclosure to the neighbours in 2002. The finding is significant, as the respondent conducted its internal review application on the basis of the 2002 disclosure alone and the statement of agreed facts was based on a 2002 disclosure. In any event, if I were required to make a finding as to whether the Council considered the public interest requirement contained in section 12 of the Local Government Act, I would hold that it did not (for the same reasons it admitted it did not in 2002 and based on the evidence of the Council’s officers at the hearing, Mr Smith and Mr Barnes).

Personal Information

33 The respondent denies the information contained in the two subject letters was “personal information” as defined in section 4 of the Privacy Act. It was argued that the information contained in the letters (perhaps with the exception of the applicant’s name and address) was merely the personal information of the neighbours alone and not the applicant. Therefore, it was said, the two letters did not constitute personal information under the Act and the Tribunal had no jurisdiction to deal with the matter.

34 The applicant argued that, in a sense, the letters contained the personal information relating both the applicant and her neighbours and that the applicant’s personal information is to take “priority” under the scheme of the Act. In lengthy submissions (applicant’s submissions, at [48] to [63]), the applicant argued it is first necessary to identify the personal information that is to be protected under the Act. In this case, it was said to be the applicant’s personal information. While the issue as put in these terms is capable of producing some fine distinctions and difficult questions, on balance, I am minded to accept the submissions of the applicants for the reasons so argued in the submissions.

Breach of Disclosure?

35 The applicant argued that the respondent plainly breached its duty not to disclose personal information pursuant to section 18 of the Act. Neither party attempted to argue that the disclosure was authorised by sub paragraphs s 18(1)(a), (b) or (c) of the Act. The respondent argued that section 18 was not breached, primarily as the respondent has a duty under section 14 of the Privacy Act and for the reasons that section 12 of the Local Government Act 1993 required that the neighbours be given access to their files.

36 In these proceedings, I do not need to finally resolve the asserted tensions between section 14 and section 18 of the Privacy Act and section 18 of the Act and section 12 of the Local Government Act 1993. In regard to the section 12 question, I am comfortably satisfied, given the evidence of the Council’s officer Mr Barnes concerning the Council’s practice and procedure regarding how the public interest test was applied to section 12 requests (it was applied usually only to obvious legal advice) and the statement of agreed facts, that the Council did not in fact consider the public interest question at all in connection with dealing with the neighbour’s access application. Accordingly, the Council cannot call section 12 in aid in these proceedings as it was not formally applied.

37 As to the tension between section 14 & section 18, I prefer and adopt the submissions of the applicant on this issue. In any event, in seeking access to their file, the neighbours never even made an application for release of personal information under the Privacy Act.

38 Accordingly, the respondent should not have disclosed the letters at all to the neighbours by reason of section 18 of the Privacy Act. Had the internal review application been filed within time, I would have found that the said disclosure was a breach of the Act.

The Relief Claimed

39 The applicant claimed the full jurisdictional limit of monetary compensation under the Act. Had there been no bar to the Tribunal’s jurisdiction, I would have considered that the applicant had made good her claim. The applicant suffered the cost of a defamation action ultimately “because of” (s 55(4)(b) of the Act) the conduct of the respondent agency. The applicant further sought orders from the Tribunal relating to the construction of “privacy screening” between the two subject properties. I would not have been minded to have made the order in the form in which it was drafted and presented to the Tribunal as it was too uncertain and would not easily have been able to have been enforced by the Tribunal.

40 The parties indicated at the hearing that they might like the opportunity of making an application for costs. The Tribunal makes the following determination:

1 The application is dismissed for want of jurisdiction;

2 Any application for costs is to be made within 14 days of today by the exchange and lodgement of written submissions.

21/03/2005 - To anonymise name - Paragraph(s) four