Ut v NSW Department of Corrective Services

[2009] NSWADT 88

CITATION:	UT v NSW Department of Corrective Services [2009] NSWADT 88
DIVISION:	General Division
PARTIES:	APPLICANT UT RESPONDENT NSW Department of Corrective Services
FILE NUMBER:	083215
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	23 September 2008
DATE OF DECISION:	27 April 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Preliminary determination as to jurisdiction and the application of the doctrine of issue estoppel
CASES CITED:	Kuligowski v Metrobus (2004) 220 CLR 363
REPRESENTATION:	APPLICANT In person RESPONDENT P J Grech
ORDERS:	1.The preliminary application that the Tribunal does not have jurisdiction is dismissed 2.The parties are directed to approach the Registrar within 21 days of receipt of these reasons for decision for the purpose of listing the matter for a further planning meeting.

1 The applicant commenced proceedings in this Tribunal by application filed on 11 July 2008 whereby he sought review of conduct by the respondent alleged to be in breach of the provisions of the Privacy and Personal Information Protection Act 1998 (exhibit A1). The respondent raised preliminary issues which it wished to have determined before the matter proceeded to a final determination on the merits: one was a jurisdictional issue and the other was based upon the doctrine of issue estoppel. The Tribunal acquiesced in this approach, with the consent of the applicant, and made directions for the filing of relevant materials and submissions, which duly followed.

2 The parties requested the Tribunal to determine these preliminary issues on the papers filed and did not seek a hearing to enable oral submissions to be made in relation to the preliminary issues that had been raised. The Tribunal relied upon the views of the parties in this regard and accepted their submissions that this course was apposite and that the materials and submissions filed would prove adequate for the purpose. However, the materials that have been filed are of limited scope.

3 The alleged conduct of the respondent that is in question concerns the release of personal information about the applicant, held by the respondent, to a media outlet, a particular journalist, in or about July 2005. It is common ground that this journalist did in fact obtain this information about the applicant, but whether it was obtained from the respondent is disputed. The applicant has filed some evidence that suggests that the journalist did in fact obtain it from the respondent. The respondent has filed no evidence in point, but relies upon the submission, for present purposes, that there were at least two other sources of the information, namely court records and the applicant himself. However, this is not the time to determine this particular factual dispute, there being no need to do so for present purposes.

4 Well prior to these current proceedings, the applicant had earlier sought internal review of the same alleged conduct by letter dated 16 September 2005. This internal review was conducted by the respondent and concluded on 10 November 2005. The letter notifying the applicant of the outcome of the review is in evidence (exhibit A2). It is common ground that the applicant was dissatisfied with this decision and sought review in the Tribunal (proceedings 053429). It is also common ground that the applicant, prior to hearing this matter on the merits, withdrew his application. Most likely this occurred sometime in the year 2006, but the parties were uncertain about the precise date. Nothing turns on establishing the date of withdrawal precisely, it being sufficient to note that these first proceedings were withdrawn by the applicant. The applicant asserted that he withdrew the proceedings because he formed the view that he did not have sufficient evidence at that stage. He also asserted that he was advised at the time, by a member of this Tribunal, that he would be able to bring the proceedings again when he had sufficient evidence. The respondent made no comment in relation to this assertion and does not address it in its written submissions. Apart from what is common ground, no evidence has been placed before the Tribunal concerning the dismissal of this first proceeding in the Tribunal. Whether any such advice was in fact given to the applicant is irrelevant to the present issues and therefore does not require investigation and determination. It has no bearing on the issues presently for consideration, although the applicant may well believe that it does.

5 Where an applicant withdraws proceedings the Tribunal has power to accept the withdrawal and dismiss the proceedings (s.73(5)(g) Administrative Decisions Tribunal Act 1997). It is common ground that this is in fact what occurred when these early proceedings were determined.

6 The respondent asserts in its submissions that the applicant by letter dated 01 July 2008 sought, for the second time, a further internal review of the same infringing conduct, namely the disclosure of personal information about the respondent to the particular journalist in July 2005 (exhibit A3). The applicant does not dispute these assertions as matters of fact. Both parties have argued the present application upon the basis that exhibit A3 is an application for internal review under the Act. Subsequently, the applicant again commenced proceedings in this Tribunal on 11 July 2008 seeking to review the same alleged infringing conduct by the respondent. These are the current proceedings now before the Tribunal, the application and supporting documents being marked as exhibit A1. The preliminary question for decision is whether the Tribunal has jurisdiction to entertain this application in the circumstances.

7 The respondent has formulated the jurisdictional issue it wishes to argue based upon the fact that the second application for internal review was lodged outside the 6 months time limitation provided in s.53(3)(d) of the Act. Clearly, as a matter of fact, the second internal review was sought outside this time limit. However, this fact alone cannot determine the Tribunal’s jurisdiction, given that the respondent was empowered by the Act to accept such an application outside this time, if it had thought fit to do so. There is no evidence, one way or the other, before the Tribunal on this point. The evidence is silent as to what response, if any, the respondent made as to the applicant’s second request for an internal review. Consequently, on the evidence before the Tribunal it cannot hold, on the basis submitted, that it does not have jurisdiction, which it must be able to do before the proceedings may be properly dismissed. If the respondent in fact allowed “a later date” within the section, then it is possible that the applicant could invoke the Tribunal’s jurisdiction in relation to the way in which the respondent dealt with his second application for internal review. On the evidence, this possibility cannot be excluded at this stage of the proceedings.

8 For completeness, the Tribunal notes that as the proceedings before it were commenced on 11 July 2008, that is, 11 days after the second application for internal review, the applicant is unable to rely upon the 60 day provision in s.53(6) of the Act, at least in these current proceedings. However, it may well have application in a fresh application, given that the 60 day period has now passed.

9 The respondent also submits, as an additional ground for dismissal, that issue estoppel applies so as to bar the bringing of the present proceedings. This submission is based on the earlier proceedings in the Tribunal, concerning a review of the same conduct that is now before the Tribunal again, and the fact that the proceedings were dismissed. The respondent has not argued this point fully in its written submissions, but has simply relied upon a passage from Kuligowski v Metrobus (2004) 220 CLR 363 at [21], [22] and [40] to support the application of the doctrine in the present matter. However, the High Court in that decision simply accepted the proposition as being common ground: it was not argued (see [22]).

10 In point of law, issue estoppel does not bar the bringing of proceedings. It has an evidentiary consequence in that a party may well be prevented from adducing evidence of a fact in issue if an estoppel applies. Whilst it may well be that, if the doctrine applies, it could be argued that the proceedings are futile, and therefore should be dismissed, but the respondent did not take this point in its submissions. In addition, the earlier Tribunal proceedings did not finally determine any factual issue on the merits. Consequently, for these two reasons the applicant is not prevented by any issue estoppel from bringing the proceedings before the Tribunal.

11 There are additional reasons for so holding on this point. The first is that issue estoppel involves discretionary considerations which were not canvassed by the parties in their submissions and there was no evidence in point, save for the applicant alleging that he now had additional evidence to present. Therefore, discretionary considerations may well be involved should the issue be given proper attention by the parties. Secondly, the application of the doctrine in administrative proceedings is the subject of a great deal of learning in the authorities and it is not apposite to consider dismissing the current proceedings in the absence of detailed submissions as to whether this doctrine has any application in the present circumstances. The authority relied upon by the respondent to establish this point does no more than note that the proposition was common ground in those proceedings.

12 The Tribunal notes that it may be open to the respondent to advance an argument based on res judicata, rather than issue estoppel. However, the application of this doctrine has not been argued.

13 Given the Tribunal’s decision on these issues, the parties are directed to approach the Registry within 21 days of receipt of these reasons for the purpose of listing the matter for a further planning meeting.