Ut v NSW Department of Corrective Services

[2010] NSWADT 221

CITATION:	UT v NSW Department of Corrective Services [2010] NSWADT 221
DIVISION:	General Division
PARTIES:	APPLICANT UT RESPONDENT Department of Corrective Services
FILE NUMBER:	083215
HEARING DATES:	18 September 2009 and 27 April 2010
SUBMISSIONS CLOSED:	1 June 2010
DATE OF DECISION:	9 September 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Evidence - whether evidence sufficient to establish breach of privacy legislation
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998
REPRESENTATION:	APPLICANT In person RESPONDENT Ms Brus, barrister
ORDERS:	1. The applicant is granted leave to re-open his case and adduce further evidence and submissions 2. In relation to the substantive proceedings the decision under review is affirmed.

REASONS FOR DECISION

1 The applicant has brought these proceedings in the Tribunal pursuant to the provisions of the Privacy and Personal Information Protection Act 1998 following an unsuccessful application for internal review.

2 Following an initial hearing on 18.09.09 the applicant sought leave to re-open his case in order to adduce additional evidence and to make further arguments in support of his case. This application had in fact been foreshadowed by the applicant at an earlier stage. The parties addressed this application at hearing on 27.04.10 and, at the same time, addressed the substantive issues arising should such leave be given. Further time was then allowed for the parties to file additional submissions should they be so advised. Consequently, both the interlocutory application to re-open and the substantive review were reserved as at 01.06.10.

3 First, the balance of convenience dictates that leave should be given to the applicant to re-open his case. The essential reason for this is that the further evidence which the applicant sought to adduce is minimal, consisting only of exhibits A11 (formerly MFI A) and A12 (formerly MFI B) and no prejudice would thereby accrue to the respondent. By adopting this course the matter may now be dealt with expediently without further hearing and argument. Therefore MFI’s A and B will become the exhibits just indicated.

4 There is some degree of common ground, which is well supported by the evidence and the concessions that have been made by the parties. The applicant had been released on parole following a period of imprisonment. After his release the applicant had a conversation with a journalist concerning the applicant’s involvement in a matter which the journalist was investigating. The full contents of this conversation are not disclosed by the evidence. After this conversation the journalist pursued his enquiries about the applicant by contacting one of the respondent’s officers and speaking with that officer about a person who had the same name as an alias the applicant was using or had earlier used. The parties agree though that this conversation between the journalist and the respondent’s officer in fact concerned the affairs of the applicant. The content of this particular conversation is also not disclosed in detail by the evidence. Following this, the journalist then published a newspaper article which disclosed a number of factual matters pertaining to the applicant. The publication of this article is not alleged to be the gravamen of the breach under consideration here. Rather, the applicant alleges that in the course of the conversation between the journalist and the respondent’s officer, that officer disclosed to the journalist personal information about the applicant. There is a need in this matter to be specific about the information that the applicant alleges was in fact so disclosed because the applicant concedes that he also disclosed certain personal information to the journalist during the course of the earlier conversation that he had with the journalist.

5 The applicant’s specific case is that the respondent’s officer disclosed to the journalist the fact that the applicant had served a period of imprisonment and had been released on parole. Whilst the applicant accepts that he had given the journalist other information about himself he alleges that he did not inform the journalist about his period of imprisonment nor about his parole in October 2004. It is clear that the journalist had obtained such information from some source at the time that the article (exhibit A10) was published. Therefore the specific issue is whether there is evidence upon which to base a finding that the applicant’s imprisonment and parole was information provided to the journalist, or more correctly, disclosed to the journalist, by the respondent’s officer.

6 The applicant’s evidence on this is that he only disclosed to the journalist in the early conversation that he had with him the fact that he, the applicant, was a self confessed criminal. The applicant asserted that this was the case at hearing on 18.09.09 and, in that regard, he referred to the article in exhibit A8 and the highlighted section setting forth that information. At this hearing the applicant also asserted that he had told the journalist that he had a criminal record. He denied telling the journalist that he had been in prison and that he had been paroled in October. There is some uncertainty about this by reason of the assertion in exhibit A13 that the applicant did inform the journalist that he had been in prison (paragraph 3). This however, may be a lack of clarity in expressing the point being made.

7 Given that the journalist clearly had this information when writing the article, the respondent’s position on this factual point, was that the information had been acquired by the journalist either from the applicant himself or from a third party, a female person who, it is common ground, was associated with the scenario in question and who had been discussed by the applicant and the journalist in their first conversation.

8 To resolve this factual question the specific evidence must be considered in detail. The applicant of course relies upon the article to show that the journalist had obtained information about the applicant’s imprisonment and parole. This is not disputed. He also relies upon his own evidence that he did not give this information to the journalist.

9 The only additional evidence is contained in the transcript of evidence which is a part of exhibit A1. This is transcript of evidence given by the journalist in other proceedings, although it only covers parts of the witness’ cross-examination by the applicant in those proceedings. The applicant has made certain notations on this transcript which should here be ignored. The earlier parts of the transcript contain a record of evidence which is somewhat disjointed by reason of interruption and argument, and consequently do not advance understanding what circumstances in fact occurred. However, at pages 55 and 56, the presiding Judge asked certain questions which gave rise to lucid and comprehensible answers. The witness gave evidence that he obtained information about the applicant’s parole from the applicant himself (page 55 lines 50 to 57, and page 56 lines 1 to 5); that he telephoned the respondent’s office to get information about the applicant’s parole and custodial record (page 56 lines 9 to 12); and that he obtained some limited information (from the respondent) about such matters (page 56 lines 14 to 19); that he did not obtain any dates (for parole) from the respondent and that such information was given to him by the applicant, upon his recollection (page 56 lines 23 to 27). The extent of the information that the applicant did in fact obtain during this telephone conversation was not developed further at the hearing which this transcript records.

10 By reason of this evidence the question whether a third party provided the information to the journalist falls by the way as the real contest is between the applicant’s evidence and that of the journalist given in the other proceedings. In this regard the Tribunal notes that the applicant endeavoured to obtain the journalist’s attendance in these privacy proceedings but was unable to do so. The applicant made no request for further time to achieve this end and was content to run his case on the evidence available. In any event, the journalist’s evidence is clearly that he obtained the information from the applicant himself.

11 Clearly the journalist did obtain some information about the applicant from the respondent’s officer, but it is impossible to discern what this information in fact was. The information about the applicant’s imprisonment and parole could certainly have been obtained from this officer. However, the journalist says that he obtained this from the applicant. This is equally plausible given that the applicant clearly gave the journalist a great deal of information about himself, as the articles show, about which the applicant dos not complain. Thus the Tribunal cannot accept the applicant’s submission that he only told the journalist that he was a self confessed criminal. Clearly much more information was given by the applicant to the journalist and, particularly as the applicant was in the course of endeavouring to obtain a financial gain by reason of information he possessed, the Tribunal is unable to confidently rely upon the evidence put forward by the applicant.

12 This being the state of the evidence the Tribunal is unable to come to the conclusion that, as a matter of fact, the respondent’s officer first informed the journalist about the applicant’s imprisonment and parole. There is no evidence suggesting that the applicant’s evidence should be accepted over that of the journalist in this regard. Consequently, a factual finding necessary for the applicant to succeed in these proceedings cannot be made and the proceedings therefore should be dismissed with an affirmation of the decision under review.

13 Whilst the applicant’s most clearly asserted ground concerned the alleged divulging of information concerning his imprisonment and parole, he also asserted that information concerning his name and alias as well as his place of conviction and reason for conviction were also disclosed. However, the evidence concerning these arguments is quite nebulous and the Tribunal, on the evidence presented, is unable to reach any determination, with any degree of confidence, that any such information was disclosed by the respondent to the journalist under discussion. This aspect of the applicant’s case is not dealt with in the materials before the Tribunal and was put forward arguendo rather than by way of clear evidence.

14 The Tribunal notes the additional arguments presented by the respondent as to the applicant’s bankruptcy and the fact that the applicant’s personal information is, in any event, contained in a record which is publicly available, namely the record of proceedings whereby the applicant was imprisoned, but in view of the above findings there is no need to determine these alternative arguments.