NZ v Director-General, Attorney-General's Department

[2005] NSWADTAP 62

Appeal Panel - Internal

CITATION:	NZ Director General, Attorney General's Department (GD) [2005] NSWADTAP 62
PARTIES:	APPELLANT NZ RESPONDENT Director General, Attorney General's Department
FILE NUMBER:	059031
HEARING DATES:	27/10/2005
SUBMISSIONS CLOSED:	27/10/2005
DATE OF DECISION:	18/11/2005
DECISION UNDER APPEAL:	NZ v Attorney General's Department [2005] NSWADT 103
BEFORE:	Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	evidence - exclusion of - relevant/irrelevant considerations - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043380
DATE OF DECISION UNDER APPEAL:	10/05/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	N (No 2) v Director General Attorney General’s Department [2002] NSWADT 33 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602
REPRESENTATION:	APPELLANT In person RESPONDENT S Free, solicitor
ORDERS:	Appeal from decision in File No 043380 is dismissed

REASONS FOR DECISION

Introduction

1 The appellant, NZ, has appealed from a decision of the Tribunal dismissing her application under the Privacy and Personal Information Protection Act 1998 (PPIP Act). The appellant applied to the Tribunal to review the conduct of Registry staff at Waverley Local Court in giving her relatives and another person three documents she had filed in support of her applications for apprehended violence orders against them. The Tribunal decided that the actions of the Registry staff were not covered by the PPIP Act because they were performed as part of the court’s judicial functions. (See s 6 of the PPIP Act.) The parties agreed that the preliminary issue should be dealt with “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). With the parties’ consent this appeal was also determined “on the papers”.

Exemption for judicial functions

2 So far as is relevant, s 6 of the PPIP Act states that:

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

...

(3) In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it. (Emphasis added.)

Tribunal’s reasoning

3 The Tribunal’s reasoning was that although the documents were given to the appellant’s relatives and another person by Registry staff, the conduct fell within the meaning of “judicial functions”. The fact that the documents were released prior to the hearing did not change the fact that they were filed and used in connection with the apprehended violence applications. The Tribunal gave the words “relate to” in s 6(3), a broad interpretation. The Tribunal’s conclusions were expressed at [18] and [19]:

... The applicant’s personal information is found in documents lodged with the Registry for use as evidence in support of her application for AVOs. The efficient performance of judicial functions depends greatly on there being a system for the receipt and organization of intended evidence in advance of the formal hearing of a matter. This system is commonly provided by a Registry under the direction of a Registrar. Decisions will frequently have to be taken by Registry officers as to the extent to which access is given to this material, ahead of hearing; or after the material has been dealt with at hearing, and has, possibly, become part of the evidence. The function of giving access to documents of that kind, and to the personal information they may contain, is one, I consider, that ‘relates to’ the exercise by the Court of its judicial functions.

Accordingly, I consider that the handling of the personal information the subject of the present application for review is, by virtue of s 6, not subject to the Privacy Act.

Appellant’s grounds of appeal

4 Having perused the appellant’s material in support of her appeal, we agree with the respondent that her appeal points can be summarised as follows:

a) failure to consider the appellant’s evidence;

b) applying the wrong definition to the words “relate to”

c) finding that the Registry is part of the Court;

d) finding that the actions of the Registry staff in providing access to Court files falls within the meaning of “judicial functions”; and

e) relying on an irrelevant consideration.

Failure to consider the appellant’s evidence

5 The appellant submitted that the Tribunal based its decisions on the agency’s internal review rather than on the complaint itself and new evidence filed after the internal review. For example, the appellant claimed that certain parties removed her “good” evidence, altered her documents and presented false material to the Local Court. She submitted that the Tribunal should have taken these circumstances into account.

6 The Tribunal’s decision was based on s 6 of the PPIP Act which provides an exemption from that Act for certain conduct of courts, tribunals and their officers. Because the Tribunal found that the conduct came within this exemption, it did not consider the evidence which related to what happened to the documents after they were released or what was said in Court. The Tribunal said at [20],“I have had regard to the copious submissions filed by the applicant, but there is nothing in them which causes me to doubt this conclusion.”

7 The appellant also made the point that Registry staff should have stamped the documents “privacy protection”. She said that Registry staff failed to stamp the documents with the Court’s seal to protect them and to identify them as being her property. We understand from this submission that the appellant considered that if the documents had been stamped, that would have prevented them from being released and from being altered. The only issue for the Tribunal was whether the court staff were exercising the court’s judicial functions when they gave other parties access to documents filed on behalf of the appellant. Whether or not those documents were stamped and whether or not they were subsequently altered were not matters relevant to that issue. There is nothing to suggest that the Tribunal made an error of law in relation to the consideration of the appellant’s evidence.

Applying the wrong definition to the words “relate to”

8 The appellant submitted that the Tribunal should not have interpreted the words “relate to” in s 6(3), broadly. The respondent relied on relevant authorities including Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 per Taylor J at 620, 266; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 per Wilcox J at 479-480 and N (No 2) v Director General, Attorney General’s Department [2002] NSWADT 33 per O’Connor J at [32]. The Tribunal’s conclusion on the meaning of the words ‘relate to’ is supported by these cases and there was nothing in the appellant’s submissions which indicated how the Tribunal had erred in interpreting or applying those words.

Finding that the Registry is part of the Court

9 The appellant disputed that the Registry is part of the Court. Whether or not the Registry is part of the Court is not the issue. Section 6(1) has the effect that nothing in the PPIP Act affects the manner in which the Registrar (or those acting on behalf of the Registrar) exercises the court’s judicial functions. The Tribunal found at [14] that a Registrar of a Local Court is the holder of an office of a court within the terms of s 6. The appellant agreed with that finding. No error of law is disclosed.

Finding that the actions of the Registry staff in providing access to Court files falls within the meaning of “judicial functions”

10 The appellant disputes that the release of the documents by registry staff prior to the hearing, without her express consent, falls within the meaning of the “judicial functions” of the court. From what we can glean from the appellant’s submissions, she asserts that, the documents would have to have been provided during the hearing or with her consent, to come within the meaning of judicial functions. As we have said, the Tribunal adopted a broad interpretation of the words “relate to” in s 6(3) and nothing the appellant has submitted persuades us that that interpretation, or the application of that interpretation to the facts of this case, was infected by an error of law.

Relying on an irrelevant consideration

11 At [17] of its decision, the Tribunal referred to a previous decision of the Tribunal, N (No 2) v Director General, Attorney General’s Department [2002] NSWADT 33. That decision dealt with a similar provision to s 6 of the PPIP Act, namely s 10 of the Freedom of Information Act 1989. The appellant submitted that the Tribunal should not have considered s 10 of the Freedom of Information Act 1989 or relied on a case which considered that provision. It is a fundamental part of the judicial reasoning process to refer to previous decisions dealing with comparable provisions. Such reasoning does not disclose any error on the Tribunal’s part.

Appellant’s application for a merits based review

12 The appellant applied for the appeal to be extended to the merits of the Tribunal’s decision. (See s 113(2)(b) of the ADT Act.) As the Tribunal’s decision was based on a preliminary question about the application of the PPIP Act to the respondent’s conduct, the Tribunal did not consider the question of whether that conduct was in breach of the substantive provisions of the PPIP Act. There can be no extension to the merits when the original decision did not consider the merits of the application.

Orders

1. Appeal from decision in File No 043380 is dismissed.