Skiba v Department of Communities and Justice

[2020] NSWCATAD 191

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Skiba v Department of Communities and Justice [2020] NSWCATAD 191

Hearing dates:

On the papers

Date of orders:

27 July 2020

Decision date:

27 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1) Pursuant to s 50(2) the Tribunal dispenses with a hearing in this matter.

(2)   The application is dismissed for want of jurisdiction.

Catchwords:

ADMINISTRATIVE LAW - privacy and personal information - review of conduct - jurisdiction -whether conduct under review relates to the exercise of a judicial function

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Privacy and Personal Information Protection Act 1998

Cases Cited:

BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

DXD v NSW Department of Justice [2019] NSWCATAD 214

LG v Attorney Generals Department of NSW [2009] NSWADT 141

Texts Cited:

None cited

Category:

Procedural and other rulings

Parties:

Zofia Skiba (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Legal, Department of Communities and Justice (Respondent)

File Number(s):

2020/00079707

Publication restriction:

Nil

Reasons for Decision

Introduction

1. Ms Zofia Skiba (“the Applicant”) has applied to the Tribunal pursuant to Part 5 of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”) for external review of the refusal by the Department of Communities and Justice (“the Respondent”) to conduct an internal review of her complaint. The Respondent found that the complaint relates to a judicial function of a Tribunal and therefore it did not have jurisdiction to conduct an internal review pursuant to section 53 of the PPIP Act.

Background

2. In December 2019, the Applicant requested that the Respondent undertake an internal review pursuant to section 53 of the PPIP Act. She indicated that she sought review of a decision by the registry of the NSW Civil and Administrative Tribunal (“the Tribunal”) to amend the name of a party in proceedings before the Tribunal. The Applicant was a party to those proceedings.

3. In January 2020, the Respondent wrote to the Applicant and advised her that no further action would be taken on the matter. It stated that the conduct had been addressed previously and that it had been dealt with appropriately. It considered that the matter had been also determined in the Tribunal: see DXD v NSW Department of Justice [2019] NSWCATAD 214.

4. The matter came before me for a case conference in April 2020. At the case conference the Applicant contended that the issue to be determined in this application differs from the issue in her previous matter. She argued that her previous application looked to the conduct of the Tribunal Member making the order to amend the name of the party, and that this application relates to the conduct of the Tribunal Registry declining to make the administrative change.

5. The Respondent seeks that these proceedings be dismissed for want of jurisdiction or otherwise pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”).

6. Each of the parties has filed written submissions in relation to the dismissal application.

Jurisdictional Issue

7. The issue to be determined is whether the Tribunal has jurisdiction to hear the application.

Should the application be determined without a hearing?

8. Section 50 of the NCAT Act provides:

…

1. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

2. The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

   (a)   afforded the parties an opportunity to make submissions about the proposed order, and

   (b)   taken any such submissions into account.

3. The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

   9. In this case both parties have indicated their agreement to the application being determined on the papers. Having reviewed all the materials I am satisfied that this is matter than can be adequately determined in the absence of the parties, by considering the materials lodged by them. I therefore dispense with a hearing.

   10. Section 63 of the Administrative Decisions Review Act 1997 (“the ADR Act”) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The Judicial Functions issue

11. The question arises as to whether, by virtue of section 6(1) of the PPIP Act, the Respondent is exempt from compliance with the PPIP Act’s information protection principles ("IPPs") regarding the conduct.

12. Section 6 of the PPIP Act relevantly states:

"6 Courts, tribunals and Royal Commissions not affected

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.

...

1. 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 ...

13. Section 3 of the PPIP Act provides that in the PPIP Act the expression “function” includes a power, authority or duty.

14. Section 53(1) of the PPIP Act provides that a person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. Section 52 relevantly provides:

1. This Part applies to the following conduct:

   (a)   the contravention by a public sector agency of an information protection principle that applies to the agency,

   (b)   the contravention by a public sector agency of a privacy code of practice that applies to the agency,

   (c)   the disclosure by a public sector agency of personal information kept in a public register.

2. A reference in this Part to conduct includes a reference to alleged conduct.

   15. The conduct in issue in this matter is decision by the Tribunal’s registry declining to amend the name of a party in proceedings before the Tribunal.

   16. Division 4 of the NCAT Act provides for the appointment of registry staff to enable the Tribunal to exercise its functions. Sections 22 and 23 of the NCAT Act provide:

22 Appointment of registrars and other staff

1. Persons (including the principal registrar and any other registrars) may be employed in the Public Service to enable the Tribunal to exercise its functions. Those employees may be referred to as the employees or staff of the Tribunal.

2. The President may enter into arrangements with any government agency or other body or person (whether in the public or private sector) for the provision of assistance to the Tribunal in connection with the exercise of its functions.

3. A reference in this Act to the appointment of a registrar or other member of staff of the Tribunal is to be read as a reference to the employment of a person as such in the Public Service.

23 Functions of registrars

1. A registrar has such functions as may be conferred or imposed on the registrar by or under this Act or any other legislation or law.

2. The principal registrar has the following additional functions—

   (a)   to assist the President in managing the business and the affairs of the Tribunal,

   (b)   such administrative and other functions as may be conferred or imposed on the principal registrar by or under this Act or any other legislation or law.

3. A registrar may exercise such functions of the principal registrar as may be directed by the President or principal registrar.

4. Without limiting subsections (1) and (3)—

   (a)   the President may, from time to time, designate a registrar to be a registrar for one or more Divisions of the Tribunal, and

   (b)   the designated registrar may (subject to any direction of the President or principal registrar) exercise the functions of the principal registrar in connection with proceedings and legislation allocated to the Division or Divisions concerned.

5. Anything done or omitted to be done by a registrar in exercising a function of the principal registrar has effect as if it had been done or omitted to be done by the principal registrar.

6. The procedural rules may make provision for or with respect to the functions of the principal registrar and other registrars, including authorising registrars to make ancillary or interlocutory decisions of the Tribunal on behalf of the Tribunal.

7. In addition, a registrar (including the principal registrar) appointed before the establishment day has and may exercise such functions with respect to the establishment of the Tribunal as may be assigned to the registrar under section 20(3).

What is encompassed within the concept of a court or tribunal’s ‘judicial functions’?

17. The scope of the Tribunal’s judicial functions has been considered in a number of matters. The judicial functions of the former Administrative Decisions Tribunal were considered by Judicial Member Molony in LG v Attorney Generals Department of NSW [2009] NSWADT 141. He considered a number of earlier decisions that had dealt with conduct of registry staff and he stated at paragraphs [24] – [27]:

1. What is encompassed within the concept of a court or tribunal’s ‘judicial functions’ has been the subject of a number of earlier decisions in relation to the PIPP Act and the Freedom of Information Act 1989. In NZ v Attorney-General's Department [2005] NSWADT 103, the President considered the term in the context of s 6 of the PIPP Act. There the conduct in issue was the release by the Registrar of a Local Court of documents filed by an applicant for an AVO to other parties. He said, at [14 -18]

   "14 Section 6(1), to reiterate, provides that: `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.' The Department referred in its submissions to the structure of courts, and in particular s 10 of the Local Courts Act which provides for the office of registrar of a local court. The Tribunal is satisfied that a Registrar of a Local Court is the holder of an office of a court.

   15 The conduct did not occur in Court, but involved access to files given at the counter by Registry staff. Does activity of this kind fall within the meaning of the ‘judicial functions’ of the Court? Section 6(3), to reiterate, provides relevantly that: ‘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...’.

   16   The Tribunal agrees with the Department’s submission that the words ‘relate to’ have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings ...

   17   See also N (No 2) v Director General, Attorney General’s Department [2002] NSWADT 33 at [32]- [33] where I dealt with a similar question, there involving a similarly-expressed immunity from review contained in s 10 of the Freedom of Information Act 1989. In that case there was an issue as to whether communications with the Registry from professional representatives were immune from the operation of the FOI Act on the basis that they were documents held by the Registry in the exercise of functions that ‘relate to’ the hearing and determination of claims. In that instance I ruled that professional communications of this kind ‘are necessary to the efficient conduct of a claim, and fall within the scope ... of those functions that ‘relate to’ the hearing and determination of claims’ (at [31]) (appeal dismissed, [2002] NSWADTAP 41).

   18   This is a stronger case. 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.

2. On appeal from that decision the Appeal Panel in NZ v Director-General, Attorney-General's Department [2005] NSWADTAP 62 at [9] said:

   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 [Privacy 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.

3. On further appeal to the Supreme Court in Budd v Director, Attorney Generals Department [2006] NSWSC 1267 Bell J said, at [20]:

   … The Plaintiff's complaint concerned the release of information containing personal details. There is no question of the PPIP Act applying to a court or the holder of an office relating to a court exercising the court's judicial functions. Once the actions of the registry staff were found to relate to the judicial functions of the court within the meaning of the PPIP Act, that was an end to the matter. There could be no question of the Tribunal exercising jurisdiction under that Act. For these reasons, the grounds that I have identified as paragraph [14] (a) and (b) do not establish error of law in the way the Appeal Panel determined the issue.

4. At [27] Bell J commented on the role of the Registrar of the Local Court:

   27 The Registrar of a Local Court is, to my mind, plainly the holder of an office relating to the Local Court. The duties of the Registrar include the custody and control of documents filed in proceedings. Thus, provision is made in Pt 31.11 of the UCPR for the Registrar to produce to the Court any documents in the Registrar's custody that by notice in writing, any party to proceedings requests the Registrar to produce to the Court for the purposes of the proceedings.

   18. A similar approach is to be taken in relation to the Tribunal’s registry. As I noted in BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79, a case that involved the release of the applicant’s personal information, in error, by registry staff of the Consumer, Trader & Tenancy Tribunal:

5. … what is relevant is whether there were proceedings before the CTTT that required "hearing" or "determination"; and whether the function that was being exercised is related to those proceedings.

…

1. In my view, the provision of information relevant to the matter to be determined by the CTTT, to a party to the proceedings, is exercising a function relating to the judicial functions of the CTTT.

   19. In the present case, the conduct under review is that of the Tribunal’s Registrar or those acting on behalf of the Registrar. There were proceedings before the Tribunal that required "hearing" or "determination". The naming of parties bound by a determination is a central and important feature of any adjudicated decision. In my view, a decision in relation to the naming of parties is clearly related to those proceedings. Similarly, a refusal to amend the name of a party in proceedings before the Tribunal is related to those proceedings.

   20. Pursuant to section 6, the PPIPA Act has no application in respect the conduct complained of by the Applicant because that conduct was undertaken in the exercise of a judicial function of the Tribunal.

   21. The Tribunal therefore has no jurisdiction to review that conduct under the PPIPA Act.

Orders

1. Pursuant to s 50(2) the Tribunal dispenses with a hearing in this matter.

2. The application is dismissed for want of jurisdiction.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 July 2020