Webb v iCare NSW

[2023] NSWCATAD 63

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webb v iCare NSW [2023] NSWCATAD 63

Hearing dates:

18 January 2023

Date of orders:

17 March 2023

Decision date:

17 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Christie, Senior Member

Decision:

(1)   The Respondent's Application for Miscellaneous Matters lodged on 12 January 2023 to set aside the two summonses issued by the Registrar of the Tribunal is refused.

(2) The Respondent's Application for Miscellaneous Matters lodged on 7 December 2022 (as amended on 17 January 2023) seeking four orders under ss61(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 is refused.

Catchwords:

CIVIL PROCEDURE – Interlocutory applications – seeking to set aside summonses – seeking orders prohibiting the disclosure and publication of the names of officers and employees of the agency

Legislation Cited:

Administrative Decisions Review Act 1997

Administrative Decisions Tribunal Act 1997 (repealed)

Civil and Administrative Tribunals Act 2013

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1998

Cases Cited:

ALL v Sydney Local Health District [2019] NSWCATAD 143

Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164

Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501

Casley-Smith v District Council of Stirling (1989) 51 SASR 447

Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31

CPJ v The University of Newcastle [2017] NSWCATAD 350

John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131

John Fairfiax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465

Lonsdale v University of Sydney [2015] NSWCATAP 277

National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372

O’Shane v Burwood Local Court

Portal Software v Bodsworth [2005] NSWSC 1115

Sharpe v Grobbel [2017] NSWSC 1065

State of New South Wales (Justice Health) and Anor v Defouli [2008] NSWADTAP 69

Walton v Momot, unreported, 17 April 1997 (BC9708241)

White v Carlton Tow Bars Pty Ltd [2014] NSWCATAP 36

Zonnevylle v Department of Justice [2018] NSWCATAD 96

Texts Cited:

B Cairn, Australian Civil Procedure, Thomson Reuters (10th ed)

Category:

Procedural rulings

Parties:

Telina Webb (Applicant)
iCare NSW (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00264601

Publication restriction:

Nil

REASONS FOR DECISION

1. The Applicant, Ms Telina Webb, applied to the Tribunal on 5 September 2022 (AR Application) under ss53 and 55 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) for the administrative review by the Tribunal of certain conduct of concern which was the subject of an internal review decision of the Respondent, iCare NSW, dated 17 August 2022 (IR Decision).

2. At the Applicant's request the Registrar of the Tribunal issued two summonses for officers of the Respondent to attend the hearing to give testimony (Summonses).

3. On 12 January 2023 the Respondent filed an Application for Miscellaneous Matters requesting that both of the Summonses be set aside (Summonses Application), preferably before the scheduled hearing date of 18 January 2023. The Respondent's request to have the Summonses dismissed prior to the 18 January 2023 hearing was not practical and, as per the Respondent's alternative request, the Summonses Application was heard at the hearing on 18 January 2023 (Hearing).

4. On 7 December 2022 the Respondent filed an Application for Miscellaneous Matters seeking two suppression orders under ss64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 (CAT Act). On 17 January 2023 the Respondent sought, by correspondence (email) received by the Registry of the Tribunal, to amend this application adding two additional suppression orders under ss64(1)(a) and (c) of CAT Act (together s64 CAT Act Applications). The s64 CAT Act Applications were also heard at the Hearing.

Background

5. By letter to the Respondent dated 16 June 2022 the Applicant made an internal review request under s53 PPIP Act (IR Request). The IR Request noted that it concerned the disclosure of Ms Webb’s personal information contained in a "Formal Access Application" made to the Respondent on behalf of "NSW Freedom of Information" (a trading name of DraftCom Pty Ltd) under the Government Information (Public Access) Act 2009 (GIPA Act). The specific conduct of concern for which the Applicant sought an internal review is stated in the IR Request to be (Conduct of Concern):

The conduct occurred when iCARE's Ms Lilli Tzinberg Right to Information Officer disclosed my personal information to a third-party private organisation identified as the NSW Right to Information & Privacy Practitioners Network (NIPPN) Ms Nikki Gibbs-Steele.

6. The IR Decision found, in summary and most relevantly, that:

1. despite the Conduct of Concern as stated in the IR Request, the issue for its internal review is "whether there has been a disclosure of your personal information contained in your Formal Access Application [under the GIPA Act] to iCare"; and

2. after citing various provisions of the PPIP Act and exemptions in respect of the "disclosure" of the Applicant's personal information within the Respondent, the Tribunal and Appeal Panel "has determined that the provisions of the PPIP Act are not concerned with the internal movements of personal information within agencies", "under s.5 of the PPIP Act, nothing in the PPIP Act affects the way the GIPA Act operates" and "accordingly, I have determined that a breach of IPP 11 cannot be substantiated on the basis that your personal information was alleged to have been disclosed to the Privacy Officer [of the Respondent]."

7. The AR Application was made by the Applicant on 5 September 2022 and attaches relevant supporting documentation, being an email chain purportedly evidencing the disclosure.

8. In this matter to date the Respondent and Applicant have made written submissions and reply submissions, as relevant, the Privacy Commissioner of New South Wales has also made written submissions and the Respondent has lodged the s58 Administrative Decisions Review Act 1997 (ADR Act) documents and both the Applicant and Respondent made oral submissions at the Hearing.

9. The subject of the Hearing and these Reasons for Decision are limited to the Respondent's Summonses Application and s64 CAT Act Applications (collectively Miscellaneous Applications).

Relevant Principles

10. In an application under s55 of the PPIP Act for administrative review (the AR Application in this case) the Tribunal only has jurisdiction to review conduct of the Respondent (in this case) where, and only to the extent that, the Applicant (in this case) has earlier applied for internal review of that conduct of concern. It is uncontroversial that the scope of the IR Request (in this case) is a matter of fact to be determined objectively by construing that application reasonably. The Tribunal is required to determine the scope of the administrative review by reference to the conduct of concern which is the subject of the IR Request (the Conduct of Concern in this case). The Conduct of Concern is the subject of the external review by the Tribunal under a s55 PPIP Act in these proceedings. The role of the Tribunal is to determine, in order to make the correct and preferable decision, whether the Conduct of Concern amounts to a contravention by the Respondent of an Information Privacy Principle (IPP) of the PPIP Act. It is with respect to (and as against) this scope of the Tribunal’s administrative review in these proceedings that the Tribunal must assess the Miscellaneous Applications.

Setting aside the Summonses

11. Section 48(1) of the CAT Act provides that a summons may be issued by the Registrar on the application of a party to the proceedings or at the direction of the Tribunal: Zonnevylle v Department of Justice [2018] NSWCATAD 96 (Zonnevylle) at [8]. In this case Summonses were issued by the Registrar of the Tribunal, as requested by the Applicant, and the Summonses Application now seeks to set aside the Summonses.

12. The overriding principle in relation to issuing a summons is that the evidence sought to be obtained (be it documentary or testimonial) must have apparent, as distinct from actual, relevance to the case. In other words, the information or testimony sought needs to be able to “throw light on the issues in the case”: Sharpe v Grobbel [2017] NSWSC 1065 at [35]. That is, a summons must only be issued for a legitimate forensic purpose: Zonnevylle at [9].

13. The Appeal Panel summarised the relevant principles for the grant of leave to issue a summons in Lonsdale v University of Sydney [2015] NSWCATAP 277 as follows:

25.   In White v Carlton Tow Bars Pty Ltd [2014] NSWCATAP 36, the Appeal Panel listed these considerations as relevant to the grant of leave to issue summonses:

(a)   legitimate forensic purpose;

(b)   identification of the respondent to an attendance summons ‘with clarity and precision’; and similarly,

(c)   identification of the documents in a documents summons with clarity and precision, rather than setting out a series of questions.

26.   We agree with the respondent’s submissions that to these should be added:

(d)   the respondent must be both competent and compellable (though this will sometimes be a difficult matter for a registrar to address at that stage of consideration); and

(e)   a summons should not be over-broad and/or oppressive.

14. In addition, the principles to be applied when considering an application to set aside a summons, as cited by the Tribunal in ALL v Sydney Local Health District [2019] NSWCATAD 143 at [26], were summarised by Deputy President Hennessy in CPJ v The University of Newcastle [2017] NSWCATAD 350 as:

8.   The Tribunal's guiding principle when exercising any power under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), is to "facilitate the just, quick and cheap resolution of the 'real issues' in proceedings": s 36(1). …

9.   …The Tribunal may draw on common law principles when determining whether to set aside a summons. At common law, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27].

10.   It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. It is also impermissible for a party to use a summons for "fishing". The author Bernard Cairns describes "fishing" as "where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge": Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 585.

11.   The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25]. The test is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447.

12.   In a recent Supreme Court case, Brereton J summarised the principle as being "… that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they "appear relevant in the sense they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35] (footnotes deleted.)

s64 CAT Act orders

15. The power of the Tribunal to restrict publication of material concerning proceedings is set out in s64 CAT Act which is, most relevantly, in the following terms:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65. … [emphasis added]

16. However, s64 CAT Act must be read in the context of the overall requirement that the proceedings of this Tribunal be conducted in public. Section 49 CAT Act provides:

49 Hearings to be open to public

(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

17. While the decisions of the Tribunal may, unfortunately, reveal circumstances pertaining to parties and others (e.g. witnesses) of a personal nature, some of which deal with a whole range of difficult circumstances, in New South Wales we have a system of open justice.

18. While there are many privacy cases where the Tribunal has made non-publication orders under s64 CAT Act, these are principally directed to ensure confidentiality, often of the applicant, so as not to exacerbate or compound any privacy breaches or concerns further. In this case Ms Webb, as the applicant, has declined the anonymisation of her name and has not applied for any orders under s64 CAT Act.

19. In Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 Boland ADCJ reviewed the relevant authorities concerning the principle of open justice and conveniently summarised them as follows:

26 The principle of open justice is a widely recognised principle of the common law. The rationale for the principle and the limited circumstances recognised at common law for departure from the principle is well explained by McHugh JA in John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 as follows (at 476–477):

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is ‘necessary to enable it to act effectively within’ its jurisdiction.

27 Also relevant are the comments of Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131. There his Honour explained:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. …

32 A legislative provision in similar terms to s 64 was found in s 75 of the Administrative Decisions Tribunal Act 1997 (NSW) (repealed). The earlier provision was considered by the now repealed Administrative Decisions Tribunal (ADT) in State of New South Wales (Justice Health) and Anor v Defouli [2008] NSWADTAP 69. The Appeal Panel explained:

50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any ... reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.

33 Having reviewed various common law authorities the Appeal Panel went on to consider the factors the Tribunal could take into account in the exercise of its discretion. The Appeal Panel explained that it was important not to overlook or minimise the open justice principle at [57] – [59]:

57 It does not follow, however, that the broad principle of open justice that decisions such as John Fairfax v Police Tribunal and O’Shane v Burwood Local Court strongly affirm has no relevance to our decision. Two aspects of the relevant provisions of the ADT Act (which for reasons given above at [49] must be our ‘primary point of reference’) indicate this clearly.

58 The first of these is that subsection (2) of section 75 begins with the word ‘however’ and is expressed as an exception to a statutory formulation, in subsection (1), of the principle of open justice. This principle may not receive explicit emphasis in the way that it does in the concluding paragraph of section 35(3) of the ADT Act. (In Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 at [40], North and Downes JJ said that that paragraph ‘imposes an overriding obligation on the Tribunal to "take as the basis of its consideration the principle" that hearings should be in public’.) But it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2).

59 Secondly, section 126 of the ADT Act [s65 CAT Act] (to which section 75(2A) refers) prohibits the publication of material disclosing the names or other identifying features of a person involved in certain specified classes of Tribunal proceedings, unless the Tribunal consents. This impliedly reinforces the principle that, in proceedings outside these specified classes, the publication of such material is prima facie permissible.

34 The Appeal Panel set out some of the criteria to be taken into consideration when making an order under s 75 (and now s64) explaining:

81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

82 In view of Ms Johnson’s submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be ‘special’ or ‘out of the ordinary’ (though a requirement that they be ‘exceptional’ may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition.

The Respondent’s submissions

The Summonses Application

20. Attached to the Summonses Application are the Respondent's "Reasons for Respondent's Application to Set Aside Summons" which, most relevantly and in summary, submit that:

1. the Tribunal's orders of 10 October 2022 note that "the conduct the subject of review is the disclosure of the name of the applicant in the email of 19 April 2022 sent by GIPA, iCare to the Privacy-Access Network [NIPPN] (a copy is attached to the applicant's access application)";

2. on 9 January 2022 the Respondent's legal representative wrote to the Applicant requesting that she not press the summonses because the summonses lack a legitimate forensic purpose and are not compatible with the guiding principle of just, quick and cheap resolution of the real issues in the proceedings. The Applicant pressed the Summonses in her response on 10 January 2023;

3. the Summonses lack a legitimate forensic purpose. The conduct under review in the proceedings is an email chain and the Respondent does not dispute the documentary record that is contained in the s58 ADR Act documents filed with the Tribunal on 17 October 2022. The Applicant has not identified any specific evidence that is sought from either of the prospective witness;

4. the "direct and personal knowledge" which the Applicant states to support her request for the issue of the Summonses of the two iCare officers is irrelevant to the issue in dispute and that the dispute may be resolved on the basis of the documentary record. "Neither officer has given evidence in these proceedings." The only evidence required to resolve the "threshold issue" of whether any "personal information" was disclosed is contained in the affidavit of Ms Maltabarow dated 28 November 2022 to which the knowledge of the two iCare officers is irrelevant. The two alternative issues to be resolved in the proceedings are questions of law, to which the knowledge of the two iCare officers is also irrelevant;

5. the Summonses are not compatible with the just, quick and cheap resolution of the real issues in the proceedings as the proceedings may be resolved on the basis of the documentary evidence alone; and

6. the Summonses are an abuse of process in that they may be seen to be seeking to intimidate iCare officers.

21. In addition to the submissions noted above I note the following, in summary and most relevantly, from the submissions of the Respondent lodged with the Tribunal on 28 November 2022:

1. citing the IR Decision:

The Privacy Officer (Ms Gibbs-Steele) has been the Chair of the [Network] since approx. 2017. The Privacy Officer conducts business related to the [Network] using a dedicated icare email account ([email protected]). I understand the Privacy Officer also holds some information related to the [Network] on the iCare drives.

…

Any information held by the Privacy Officer contained in a record that pertains to the NIPPN is in her possession, or under her control, in her capacity as Chair of the NIPPN and is not shared with other iCare officers.

2. the issue in dispute is whether or not the Applicant's ticking of the box that she did not consent to her name and/or organisation's name being provided to third parties was overridden by other provisions of the form, when read as a whole; and

3. "[t]here is a question as to whether the second email, sent on behalf of the Network iCare email address to external members of the Network, constitutes correspondence by "a public sector agency" and is therefore capable of constituting a breach of s18 PPIP Act, noting that activities of the Network's Chair are independent to the functions of iCare".

The s64 CAT Act Applications

22. The Respondent notes, in summary and most relevantly, the reasons for seeking the s64 CAT Act orders are:

1. the Respondent is concerned with the personal nature of the Applicant's 'attacks' and her 'apparent preoccupation' with the Respondent's Privacy Officer in previous proceedings. This preoccupation also extends to other iCare officers involved in the proceedings. For example, the Applicant's submissions put in to issue the integrity of those officers, without any basis for doing so;

2. the Applicant has a propensity to publish material on her website that is highly critical of individual officers of government with whom she has had dealings. Copies of such material, not specifically related to iCare or the relevant iCare officers or employees, was attached to the Respondent's s64 CAT Act Applications;

3. no iCare officers or employees have given any evidence in these proceedings. The actions of iCare officers and employees disclosed in the s58 ADR Act documents are unremarkable actions of officers carrying out functions as required under the GIPA Act; and

4. in a recent decision of the Tribunal in relation to other proceedings between the parties another Senior Member made "similar non-publication orders" to those requested in the s64 CAT Act Applications. If this Tribunal in these proceedings does not make similar non-publication orders then there is a risk that the non-publication orders made in the other proceedings could be circumvented.

23. On 17 January 2023, by correspondence to the Tribunal, the Respondent seeks to add two additional orders under s64 CAT Act. These additional orders, also under ss64(1)(a) and (c) CAT Act, are "directed to the Applicant" in almost identical terms to the earlier requested orders "directed to any person" but adding "including any position held by [the Respondent's officers and employees]" and specifically referring to the file number of these proceedings. It appears that the only effective difference is that the two new orders sought are directed only to the Applicant. However, there was no indication from the Respondent as to why the original requested orders directed to "any person" would not include the Applicant.

The Applicant’s submissions

24. The Applicant made submissions on the Summonses Application and s64 CAT Act Applications during the Hearing, in addition to the ‘reasons for the request’ set out in the Applicant’s two 'Applications for Summons to be issued' dated 5 December 2022

The Summonses Applications

25. Referring to the Applicant’s "Applicant Reply to Respondent’s Summary of Argument” filed on 7 November 2022 and “Applicant Reply, Monday 5 December 2022” filed on 5 December 2022, the Applicant submitted that both of the persons summonsed (one an officer of the Respondent and the other in her role as Chair of NIPPN/the NIPPN representative to whom the Applicant's personal information was disclosed) are relevant to the issue in dispute as the sender and recipient of the Applicant’s personal information.

The s64 CAT Act Application

26. The Applicant submitted, in addition to noting the principle of open justice, that (a) the Respondent had produced no evidence of the alleged activity it was complaining about in respect of these proceedings or the relevant iCare officers or other employees, (b) the Respondent otherwise presented no compelling arguments or evidence for the s64 CAT Act orders, (c) as a journalist and commentator she is, within the rules established by the law or this Tribunal, entitled to comment on Tribunal proceedings for NSW Freedom of Information and (d) to restrict comment on officers and employees of a government agency generally who are involved in Tribunal proceedings or otherwise is to deny both freedom of speech and her constitutional rights.

Considerations and findings

The Summons Application

27. The Tribunal’s initial task is to identify the issues in dispute so it can then determine, in the light of those issues, whether the summonses issued (in this case the Summonses) are for a legitimate forensic purpose.

28. There appears to be significant confusion in the submissions of the Respondent as to whether the Applicant's alleged personal information was 'disclosed' to Ms Gibbs-Steele as the Privacy Officer of the Respondent or as the Chair (or a representative) of NIPPN;

29. After considering and applying the principles referred to above, I find that the scope of the Tribunal’s administrative review in this case is whether or not the Conduct of Concern results in the Respondent contravening IPP 11. Based on the material before me, if the Respondent's 'threshold issues' (which are yet to be heard) do not succeed, I am satisfied that an issue in dispute is whether any of the Applicant’s relevant personal information was ‘disclosed’ by Ms Tzinberg of the Respondent to the specified third‑party (i.e. NIPPN) via disclosure to its representative, Ms Gibbs-Steele.

30. Based on my finding in [29] above, I am satisfied that the testimony of each of Ms Tzinberg of the Respondent and Ms Gibbs‑Steele of NIPPN has apparent relevance to an issue in dispute in these proceedings and will “throw light on” the issue of whether or not the Applicant's relevant personal information was ‘disclosed’ to and received by Ms Gibbs-Steele as a representative of NIPPN, a third-party, or to her in her role as the Privacy Office of the Respondent. Therefore, I am satisfied that each of the Summonses have a legitimate forensic purpose.

31. As a result of my conclusion in paragraph [30] above, I dismiss the Summonses Application.

The s64 CAT Act Applications

32. In determining the s64 CAT Act Applications made by the Respondent I have had regard to the nature of these proceedings, which are different in many respects to the other proceedings the Respondent referred me to as regards the s64 CAT Act orders made by the Senior Member in those proceedings. Each application for s64 CAT Act suppression orders must be assessed on its merits, in relation to the specific circumstances of each proceedings and the persuasiveness of the submissions and evidence put before the Tribunal at that time. The submissions and the evidence must establish that the circumstances are "special" or "out of the ordinary" to warrant the requested suppression orders. Simply because suppression orders have been made on an interlocutory basis in other proceedings between the same parties does not automatically lead to them being made in these proceedings.

33. I did not find the Respondent's submissions or evidence (almost exclusively of the Applicant's alleged transgressions in relation to proceedings not involving the Respondent) compelling or satisfying any of the principles cited from the various authorities referred to in [19] above. In other words, on the material before me, the Respondent was not able to overcome the presumption in favour of open justice in the circumstances in this case.

34. As a result of my conclusion in [33] above, I dismiss the s64 CAT Act Applications for the suppression orders sought by the Respondent.

Orders

1. The Respondent's Application for Miscellaneous Matters lodged on 12 January 2023 to set aside the two summonses issued by the Registrar of the Tribunal is refused.

2. The Respondent's Application for Miscellaneous Matters lodged on 7 December 2022 (as amended on 17 January 2023) seeking four orders under ss61(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 is refused.

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: 17 March 2023