WL v Randwick City Council (No 4) (GD)

[2010] NSWADTAP 58

Appeal Panel - Internal

CITATION:	WL v Randwick City Council (No 4) (GD) [2010] NSWADTAP 58 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT WL RESPONDENT Randwick City Council
FILE NUMBER:	109030
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	22 June 2010
DATE OF DECISION:	27 August 2010
BEFORE:	O'Connor K - DCJ (President); Isenberg N - Judicial Member; LeBreton J - Non-Judicial Member
CATCHWORDS:	PRIVACY – Enforcement action by Council – Collection, Use and Disclosure of Personal Information about Owner – Tribunal finds no contravention – Appeal – Fact Finding – Procedural Fairness, Adequacy of Reasons, Bias – Appeal Dismissed
DECISION UNDER APPEAL:	WL v Randwick City Council (No 2) [2010] NSWADT 84
FILE NUMBER UNDER APPEAL:	073294
DATE OF DECISION UNDER APPEAL:	04/06/2010
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Privacy and Personal Information Protection Act 1998
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Law Society of NSW v Doherty [2010] NSWCA 17 Nicholls v Director General, Department of Education and Training [2010] NSWADTAP 35 NX -v- Office of the Director General Public Prosecutions (2005) NSWADT 74 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sydney Business Institute Pty Ltd v NSW Vocational Education and Training Accreditation Board (GD) [2010] NSWADTAP 57 ZR v NSW Department of Education and Training [2009] NSWADTAP 69 WL v Randwick City Council (GD) [2007] NSWADTAP 58 WL v Randwick City Council (No 2) (GD) [2008] NSWADTAP 52 WL v Randwick City Council (No 2) [2010] NSWADT 84 WL v Randwick City Council [2007] NSWADT 12 WL v Randwick City Council [2008] NSWADT 87 WL v Randwick City Council [2009] NSWADTAP 10
REPRESENTATION:	APPELLANT ____ RESPONDENT A Seton, Marsdens Law Group
ORDERS:	Appeal dismissed

Background

1 The appellant, WL, was in June 2005 the owner of an investment flat in the municipality of Randwick. On 6 June 2005 the council received a complaint alleging that unauthorised work was taking place at the flat. On 7 June 2005 a compliance officer went to the property, entered it and took photographs. The officer formed the view that the complaint was justified and various enforcement steps were taken.

2 WL has pursued several courses of action in response to the actions of the council. One of them has been a complaint under s 53 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). He asserted that in entering the property without notice, in taking photographs and in the way in which information was later recorded, used and disclosed in the enforcement process, the rights he has under that Act were infringed.

3 The council examined the complaint and found no contraventions. WL was dissatisfied with the response. On 31 March 2006, he applied under s 55 to the Tribunal for review of the conduct. He sought a variety of orders including an order that the council pay $40,000 (the statutory cap) by way of damages. The Tribunal ruled that the complaint was outside jurisdiction as it did not concern any 'personal information' about WL, and therefore the Act was not engaged: WL v Randwick City Council [2007] NSWADT 12. The Appeal Panel disagreed with the Tribunal's interpretation of the meaning of 'personal information' under the Act, set aside its decision and remitted the matter to the Tribunal for further consideration: WL v Randwick City Council (GD) [2007] NSWADTAP 58. The Tribunal, constituted by the same member, resumed dealing with the matter. WL objected to the member's involvement on the ground of perceived bias. The Tribunal rejected the objection: WL v Randwick City Council [2008] NSWADT 87; appeal dismissed: WL v Randwick City Council (No 2) (GD) [2008] NSWADTAP 52. However, in the interest of moving the case forward, the Appeal Panel directed that the matter continue before the Tribunal, differently constituted. WL unsuccessfully appealed in relation to four interlocutory decisions of the new Tribunal: WL v Randwick City Council [2009] NSWADTAP 10.

4 The new Tribunal has now decided that there has been no contravention of the Act. It found that the council did not contravene the Act's provisions regulating the scope and manner of collection of personal information and regulating the disclosure of personal information. It directed that no further action be taken on the complaint. See WL v Randwick City Council (No 2) [2010] NSWADT 84. It rejected an application from the council for the costs of the appeal.

5 As the Tribunal below noted at [2], these have been 'very protracted proceedings'.

6 WL now appeals pursuant to s 56 of the Act, and the parties have agreed to have the matter dealt with without a hearing being conducted. The Appeal Panel is satisfied that the issues can be determined satisfactorily in this way. See Administrative Decisions Tribunal Act 1997 (ADT Act), s 76.

7 An appeal may be made on any question of law, and, with the leave of the Appeal Panel, may be extended to the merits: PPIP Act s 56; ADT Act, ss 112, 113. WL's appeal challenges the Tribunal's decision on 'question of law' grounds, and applies for the appeal to be extended to the merits (ADT Act, s 113). He has applied for leave to extend the appeal to the merits. The notice of appeal is itself 38 pages long.

8 The parties have filed written submissions. The council's notice of reply and submissions reply to WL's main grounds. WL has made, despite directions to the contrary as to the length, voluminous submissions, not all of which are relevant to the matter at hand.

9 We have confined our attention only to those matters that fall within the scope of the original complaint reasonably construed and are matters to which the requirements of the PPIP Act are, at least arguably, applicable.

Tribunal Reasons

10 As our introduction notes, this case has at its heart a dispute between an owner and the council over steps it took to enforce local planning laws as they affect works in a residential property. A fuller account is given in the Tribunal's decision at [6] to [10], and in the earlier Appeal Panel and Tribunal decisions.

11 The Tribunal set out the issues to be determined as being:

- did the photographs of the works at WL's unit taken by the compliance officer, Mr Kerr, constitute 'personal information' about WL?

- if so, did Mr Kerr's 'collection' of the photographs about WL contravene s 8 of the PPIP Act?

- in collecting 'personal information' about WL, was Mr Kerr's conduct exempt from complying with the information protection principles in the PPIP Act (see s 41 of the PPIP Act)? and

- if Mr Kerr was not exempt from complying with the information protection principles in the PPIP Act, did he through his conduct breach an information protection principle in regard to the 'personal information' he collected about WL (see ss 9, 10, 11, 12, 17 and 18 of the PPIP Act)?

12 Collection Issues: The PPIP Act regulates the collection, handling and dissemination of personal information by public sector agencies by a series of Information Protection Principles (IPPs) found at ss 8-19. The IPPs are subject to numerous exceptions, exclusions and modifications.

13 In this case WL contended that the activity of entering the property and taking photographs should not have occurred without notice to him, and an opportunity being given to respond to the complaint. More specifically, he has asserted that the council engaged in an unlawful means of collection of personal information (contravening s 8) and did not apply the usual principle that personal information should first be collected directly from the information subject (s 9).

14 Sections 8 and 9 provide:

8 Collection of personal information for lawful purposes

(1) A public sector agency must not collect personal information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b) the collection of the information is reasonably necessary for that purpose.

(2) A public sector agency must not collect personal information by any unlawful means.

9 Collection of personal information directly from individual

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless:

(a) the individual has authorised collection of the information from someone else, or

(b) in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.

15 The Tribunal found, having regard to surrounding circumstances, that the taking of the photographs involved a 'collection' of 'personal information' within the meaning of the Act. However the Tribunal found, referring to uncontested evidence, that at the relevant time Mr Kerr was a duly appointed planning and environment compliance officer of the Council and he was authorised to carry out the functions of such officers as prescribed under the Environmental Planning and Assessment Act 1979 ('the EPA Act'), and that these functions, in the circumstances, included undertaking investigation of a complaint of unauthorised building work. Further, the Tribunal found that ss 118A and 118B of the EPA Act authorised entry for that purpose.

16 The Tribunal discussed at length the relevant provisions of the EPA Act: whilst an authorised person may gain entry to a premises through the process prescribed by Division 1A of Chapter 6 of the EPA Act, there is no legal prohibition upon an officer of a local government authority attending a premises, without notice, and seeking permission of the occupier of that premises to enter the premises and to take photographs. The evidence before the Tribunal was that Mr Kerr did not force entry into the premises; he spoke to a person who identified himself as the builder and obtained the permission of that person to enter the unit and take photographs. He also gave evidence that whilst he was there he spoke to WL via mobile phone. So far as Mr Kerr recalled, he was not asked to leave the premises.

17 The Tribunal did not accept WL’s contention that Mr Kerr’s access was limited by s 118J because the premises were ‘being used’. We consider such a finding was open to the Tribunal.

18 WL now asserts for the first time – in the Appeal submissions – that there was a sleeping bag in the unit. This was not put to Mr Kerr in cross-examination and is not supported by any evidence. While the Tribunal did not specifically elaborate as to why s 118J was not applicable, it was clear, from the context of the Tribunal’s findings, that the Tribunal was reasonably satisfied that the premises were uninhabited. For example, Mr Kerr gave oral evidence that it did not appear to him that anyone was residing in the unit and that it was ‘more or less empty’ and did not appear to be furnished. Further, the Tribunal had in evidence the photographs about which WL had complained, and these showed the extensive nature of the work undertaken, with no indication whatsoever that the premises were being occupied. It was therefore reasonably open to the Tribunal to conclude that s 118J of the EPA Act had no application in the circumstances of this case.

19 Following from its finding that Mr Kerr was undertaking an investigation of a complaint of unauthorised building work, the Tribunal also found the Council was not bound by the collection principles contained in ss 9 and 10 of the PPIP Act and that it was also not bound by s 11 of the PPIP Act as varied by the Direction issued by the Privacy Commissioner under s 41 of the PPIP Act. All of these IPPs deal with direct collection from individuals.

20 Use and Disclosure Issues: Section 18 prohibits the disclosure of personal information about individuals subject to exceptions. The principal exception is found in paragraph (a) of s 18:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure.

21 There is no difficulty with the first part of paragraph (a) in this case. The difficulty arises in relation to the second part of paragraph (a). In this regard the council relied on the broader exception allowed by a code approved under s 41 by the Privacy Commissioner, entitled ‘Public Sector Agencies in relation to their Investigative Functions’. The Tribunal referred to cl 4 of the code, which provides relevantly that:

4. A relevant agency need not comply with [s 18] of the PPIP Act if non-compliance is reasonably necessary for the proper exercise of any of the agency’s investigative functions or its conduct of any lawful investigations.

22 The Tribunal also found lawful the disclosure of the photographs, together with a Notice, under the EPA Act, of an Intention to give an Order to restore the premises to the Managing Agents also directly related to the investigation.

Objections

(1) Whether all material considered

23 WL contends that the Tribunal in reaching these conclusions did not refer in its decision to all submissions or documents that had been tendered into evidence.

24 There is no requirement that a court or tribunal refer to all the material tendered into evidence. WL criticises the Tribunal for being selective. For obvious reasons of efficiency and clarity of communication, it is incumbent on decision-makers of all kinds, not just judges or tribunals, to step back from the mass of material that may be placed before them, and be selective in what they include in their formal reasons for decision.

25 Selectivity is at the heart of the judicial process. See further, Nicholls v Director General, Department of Education and Training [2010] NSWADTAP 35. The Tribunal methodically, in our view, went through the evidence and made a decision on the basis of that evidence. The Tribunal specifically referred to WL having tendered many documents which were either not relevant to the matters in issue or were in the form of submissions (at [17]). WL's submissions do not raise any grievous failure of the kind that would give rise to an error of law in the approach adopted by the Tribunal.

(2) Basis for Findings

26 In the case of courts or tribunals, for any possible error of law to arise, there must be a serious failure in the reasoning process such as the absence of any evidence for a finding, a failure to deal appropriately with critical evidence or, in cases where a discretionary judgement is required, a failure to have regard to relevant considerations or a taking into account of irrelevant considerations. Not even a 'perverse' finding of fact gives rise to an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. As the Appeal Panel recently noted in ZR v NSW Department of Education and Training [2009] NSWADTAP 69 at [37]:

The law simply requires that there be some probative evidence. See generally, Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 at 155-156 and 157 per Glass JA; Bruce v Cole (1998) 45 NSWLR 163 at 188.2-189.5; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450-451; Trust Company of Australia Limited v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77 at [52]-[53] per Spigelman CJ.

27 WL criticises various findings made by the Tribunal in the course of its reasons. This was, in our view, a case where the primary steps taken by the council in the course of the enforcement action were not in dispute. Many of WL's criticisms go to statements in the narrative given by the Tribunal which are not critical to the outcome.

28 WL particularly referred to the statutory declaration from the builder (with name deleted) who, according to the evidence of Mr Kerr, had let him into the premises. The builder, however, did not appear for cross-examination at the hearing, despite the Tribunal having informed WL on at least two occasions prior to the hearing that he was required for cross-examination at the hearing. Unsurprisingly, the Tribunal gave the statutory declaration ‘very little weight’.

29 Against this, the Tribunal had both the affidavit and oral evidence of Mr Kerr. At the hearing Mrs WL was permitted to cross-examine Mr Kerr, who was also questioned by the Tribunal. There is no evidence whatsoever to support WL’s assertion that the affidavit was not Mr Kerr's and was the invention of someone else. With the benefit of observing Mr Kerr, the Tribunal found him to be a credible witness.

30 We do not accept WL’s assertion in submissions to the effect that the investigation of Mr Kerr was concluded upon issue of the Notice of Intention to Give an Order. No order or penalty notice had been actually given at the time that a copy of the Notice and the photographs were provided by Mr Kerr to the Managing Agents. All the Notice did was inform WL of a ‘proposed’ order and invite WL to make representations within 10 days as to why legal proceedings should not be instituted for carrying out work without development consent and why the respondent should not serve an order under s 121B of the EPA Act directing WL to do certain things.

31 It was reasonably open to the Tribunal to conclude that the investigation was continuing and find that Mr Kerr's conduct was also directly related to his investigation of the alleged unauthorised building work and that by sending the photographs and the Notice, was reasonably necessary for the purposes of the investigation.

32 In our view, there is no basis for finding that the Tribunal was unaware of or did not take relevant evidence into account.

(3) Adequacy of Reasons

33 As the Appeal Panel has noted in Sydney Business Institute Pty Ltd v NSW Vocational Education and Training Accreditation Board (GD) [2010] NSWADTAP 57 at [27]: 'It is plain that the Tribunal has a duty at common law to give adequate reasons, reinforced by the provisions of the ADT Act going to the matter (principally s 89).'

34 The following statement of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 has often been cited with approval:

If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons … But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.

35 As noted in Sydney Business Institute, recent summaries of the principles found in the adequacy of reasons have been given by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]-[66]; and in Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 by Tamberlin, Sundberg and Besanko JJ at [40]-[41].

36 The Tribunal considered at length the relevant law and evidence in making the finding that the information in the photographs taken by Mr Kerr was not collected by ‘unlawful means’. In that regard reference was made to paragraphs 45 to 47 of the (earlier) Appeal Panel decision which included reference to the decision in NX -v- Office of the Director General Public Prosecutions (2005) NSWADT 74.

37 WL contended that the Tribunal failed to apply properly the earlier decision of the Appeal Panel in WL v Randwick City Council (GD) [2007] NSWADTAP 58. In that case the Appeal Panel had been critical of the evidence which had been available when the matter was first considered. The Appeal Panel had considered that on the available evidence, by the time Mr Kerr began communicating with the Managing Agents, he was communicating ‘personal information’ held in a recorded form. The question therefore arose whether the disclosure was lawful. The Appeal Panel was not satisfied on the available evidence that the terms of the protection given in respect of disclosure of personal information by the s 41 Direction had been satisfied.

38 Further evidence was provided for the re-hearing before the Tribunal. For example, Mr Kerr, in his affidavit, wrote of enquiring of the Managing Agent whether the building works had been authorised and advising that he would send the photographs and that he would be issuing a Notice. (As discussed above, no order or penalty notice had been actually given at that time.) The Tribunal therefore, had available to it additional evidence, and that evidence supported a finding of fact by the Tribunal.

(4) Partiality

39 The notice of appeal and WL's written submissions are replete with derogatory references to the way the hearing member conducted the hearing. Passages from transcript are set out. We have reviewed the examples given. None, in our view, show any problematic behaviour on the part of the member in conducting the hearing. As best we understand the submissions, it is suggested that her decision was affected by bias, if not actual bias, then at least apprehended bias.

40 A decision-maker must of course be, and be seen to be, impartial and independent. While assertions of bias were made in the appellant's submissions and that the Tribunal was acting under dictation, they are not supported by any evidence.

41 WL submitted, in effect, that by virtue of the Tribunal having made various findings of fact and credibility, these gave rise to an apprehension of bias. Other than the fact that the Tribunal made those findings, WL’s submissions do not point to any conduct of the Tribunal that 'a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide': Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. See also Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13]. See recently, Law Society of NSW v Doherty [2010] NSWCA 17 at [17] ff per Tobias JA.

42 The fair-minded lay observer with a broad understanding of the role of a tribunal would not in our view form any such apprehension about the member in this case.

Application for Leave to Extend to the Merits

43 As the Appeal Panel noted in the Sydney Business Institute case at [64]: 'The discretion to extend leave to the merits is to be exercised with care, mindful of the importance of finality in decision-making.' To similar effect, see Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17 where the Appeal Panel observed that the discretion to grant leave should be exercised with caution and in the interests of justice. The Appeal Panel emphasised that it is not enough that the appellant disagrees with the decision and noted that the Appeal Panel is not designed to be a second trial level of the Tribunal.

44 In this case it is plain that WL remains aggrieved by the conduct of the council and the impact it may have had on his reputation. These proceedings have as a principal object an attempt to demonstrate that the compliance officer's entry into his unoccupied flat undergoing some works was unwarranted and unlawful.

45 The way in which the Tribunal dealt with this case was orthodox. WL does not agree with the result. Both parties were given a reasonable opportunity to present their evidence. WL made extensive submissions. It is clear, even on the face of the decision, that the Tribunal considered the evidence and submissions made by WL. That the Tribunal did not accept WL’s submissions does not give rise to unfairness or injustice which would justify the issues being re-visited.

46 The application is refused.

Orders

47 The appeal is dismissed.

17/09/2010 - Typographical error paragraph 1, amended 5 June to 6 June and 6 June to 7 June - Paragraph(s) 1