Sq v Department of Attorney General and Justice (GD)

[2011] NSWADTAP 55

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	SQ v Department of Attorney General and Justice (GD) [2011] NSWADTAP 55
Hearing dates:	13 September 2011
Decision date:	05 December 2011
Jurisdiction:	Appeal Panel - Internal
Before:	Judge K P O'Connor, President S Montgomery, Judicial Member J Schwager, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	PRIVACY - Oral disclosure by agency officer - Tribunal ruled agency not bound - Appeal - No error - Information not "held" by agency - Appeal dismissed
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Powers of Attorney Act 2003 Privacy and Personal Information Protection Act 1998
Cases Cited:	Vice-Chancellor, Macquarie University v FM (FM) [2005] NSWCA 192 White Constructions (ACT) P/L v White & ors at [2005] NSWCA 173
Category:	Principal judgment
Parties:	SQ (Appellant) Department of Attorney General and Justice (Respondent) Privacy Commissioner (Statutory Intervener)
Representation:	COUNSEL T Howard (Appellant) Mallik Rees Lawyers (Appellant) J Lucy, Crown Solicitor's Office (Respondent) J McAteer, Office of the Privacy Commissioner NSW
File Number(s):	119027
Decision under appeal	Jurisdiction: 9108 Citation: SQ v Department of Justice and Attorney General [2011] NSWADT 266 Date of Decision: 2011-05-24 00:00:00 Before: General Division File Number(s): 103004

REASONS FOR DECISION

1. The appellant has applied under s 55 of the Privacy and Personal Information Protection Act 1998 (the Act) to the Tribunal for review of conduct said to have been engaged in by the respondent agency. The appellant was not satisfied with the findings of an internal review undertaken by the agency.

1. The appellant put in issue the conduct of an officer of the agency in disclosing personal information about her in the course of giving evidence in a Supreme Court case to which her father was a party. The appellant asserted that the agency had, via the officer, contravened s 18 of the Act (which only allows disclosure of personal information about third parties in certain circumstances) and clauses 9 and 15 of the agency's Code of Practice approved under s 41 of the Act.

1. There is no dispute that the information was personal information within the meaning of the Act, but the agency has declined any legal responsibility for the conduct on the basis that it is information of a kind that was never 'held' by it within the meaning of the Act, and therefore did not enliven the provisions said to have been breached. The Tribunal below upheld the submission. It held that no further action was required in relation to the complaint.

1. The appellant has appealed under s 56 of the Act. Appeals are governed by the provisions of ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 . The appeal raises questions of law, and applies for leave to extend the appeal to the merits.

1. We will not repeat the detail given in relation to this case by the Tribunal in the decision under appeal.

1. The officer worked as a clerk of courts. In that capacity, he regularly witnessed documents. In June 2000 the appellant, accompanied by her mother, attended the court house where the officer worked. She wished to have the officer witness an enduring power of attorney, and to provide the required certificate of advice (see s 163F(2) of the Conveyancing Act 1919 ).

1. Some years later her father launched defamation proceedings against a local newspaper in relation to the contents of a letter to the editor. The newspaper called the officer to give evidence in the defamation trial. In the course of the evidence he was cross-examined by counsel for the father over any animosity he might bear towards the father and his family. He sought to rebut that suggestion by referring to the fact that some years before he had witnessed the power of attorney for his daughter.

1. In the department's opinion, and that of the Tribunal on review, in making these statements the officer relied on his memory and did not draw that information from any official record under the control of the department. The Court of Appeal in Vice-Chancellor, Macquarie University v FM ( FM ) [2005] NSWCA 192 ruled that information merely held in the minds of employees is not information regulated by the Act. At [28] Spigelman CJ said: '[I]t is almost impossible to conceive how almost all of those other sections could operate in practice if they were intended to apply to information in the minds of employees acquired by direct visual or aural experience and never recorded in any manner'.

1. In the appeal, the appellant seeks to distinguish FM from the circumstances here. In our opinion, there is no relevant distinction. This case and FM both involve situations where the maker of the communication in issue was a public servant passing on information orally to an external party, and who relied on memory to recall the information which in turn involved observations of the subject made in a workplace setting.

1. The appellant has also contended that there must have been a record created. If the appellant can show the existence of a record, then that may be enough to establish a relevant connection with the Act, and ground a finding of unlawful disclosure.

1. The appellant and her mother gave evidence that they recalled that the officer at the time excused himself to go to a back part of the registry to make a copy of the power of attorney to keep as a record. The officer's evidence was that he had only a general recollection of what occurred on the day. However, he stated that his business practice at that time was not to make records of documents that he was asked to witness or for which he gave certificates. He was supported in that evidence by another courts officer, who said it was not usual practice at the time for courts officers to keep records of these transactions. The practice changed in 2004, following commencement of the Powers of Attorney Act 2003 . The department also undertook searches at the relevant court house, and found no records. The Tribunal accepted that there was no record in existence.

1. The Tribunal's conclusions are challenged on various grounds. The primary one is that the Tribunal should have preferred the appellant's direct testimony and that of her mother as to what occurred on the day rather than the officer's testimony as to usual practice, especially in circumstances where he did not have a detailed immediate recollection of what occurred on the day.

1. It is extremely difficult to demonstrate that a finding of fact by a tribunal or court should be disturbed because it amounts to an error of law. Here clearly there was material that enabled the Tribunal to make the finding it did. It is not a case of no evidence.

1. It will often be the case that an individual will have a more immediate recollection of a set of events than a government officer for whom the events were ones of a routine kind. The trier of fact will have to reach a view as to whether to prefer the specific recollection over evidence based, as seen here, on the likely usual practice of the officer. In this instance the tribunal regarded the officer's evidence as to usual practice as plausible, it had corroboration and the department had gone to some lengths to see if a record had in fact been created and retained.

1. In our view, it was a finding reasonably open to the Tribunal to make. In any case the legal standard does not set the threshold as high as 'reasonably open'. Appeal courts have acknowledged that findings of fact can only be disturbed in extreme circumstances such as where they are 'glaringly improbable': see, for example, the discussion by Ipp JA in White Constructions (ACT) P/L v White & ors at [2005] NSWCA 173 at [37] ff. This finding is not nearly that extreme.

1. The appeal challenged the Tribunal's account of the appellant's mother's evidence, especially at para [48]. The Tribunal was engaged at this point in giving a basic summary of its understanding of the evidence. It is neither practical nor required that a decision deal in detail with the evidence. The Tribunal showed a basic understanding of the evidence, and expressed reservations about the quality of the evidence. It declined to make any finding in support of the evidence from the appellant and the mother that the officer excused himself briefly to go into the registry to make a copy, and in those circumstances it necessarily did not proceed to draw an inference that that occurred, as sought by the appellant's case. These were events that were the subject of evidence nearly ten years after they occurred. Tribunals will naturally be cautious in making findings in those circumstances. The balance of the evidence pointed towards the likelihood of a practice of non-copying at the time, and the absence of any records was consistent with that possibility.

1. In light of this conclusion, it is unnecessary to consider the appellant's further objection to the refusal of the Tribunal to permit amendment of the review application. (By the amendment, the appellant sought to respond to the agency's alternative argument that, if it were found to have 'held' the information, nonetheless it was not responsible for the officer's conduct as he had engaged in a frolic of his own.)

1. Finally the appellant raises as an alleged error of law the Tribunal's procedure allowing the officer to give evidence by telephone rather than in person at the hearing room in the presence of the opposite party in the usual way. The Tribunal has wide powers to manage its own procedures. While in final hearings it is unusual for witnesses to give evidence by remote connection, the practice is acknowledged as permissible by the Tribunal's practice note.

1. In this instance, for reasons set out in the Tribunal's decision, the officer applied to be given the liberty of giving evidence by phone. The Tribunal granted the application. The appellant argues that this hampered her ability to have his credit tested. She challenges the Tribunal's explanation for its decision which included at [39] that 'his evidence was factual in nature in relation to a discrete point and did not give rise to issues of credit'.

1. In our view the Tribunal was well placed to make this assessment. The discretion is a broad one. The officer's basic evidence was that he only had a weak recollection of the events of the day, and he relied on his usual business practice at that time to reject the suggestion that he had made a copy of the witnessed document. In our view, the Tribunal had two versions of what might have occurred on that day. It obtained detailed evidence from the officer by telephone. We agree with the Tribunal's assessment that this was not a significant credit case. The officer had given a consistent account of his recollection to both the agency's internal review and the Tribunal's review. He was dealing with a matter of business practice.

1. In our view no errors of law are demonstrated.

1. There is an application for leave to extend to the merits. That there are no errors of law is a significant factor weighing against the grant of leave. Further, the Appeal Panel plays an oversight role in relation to the first instance business of the Tribunal. It is not a forum for use by disappointed parties as an opportunity for a second hearing. In our view, this decision should not be reopened.

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Decision last updated: 05 December 2011