This appeal concerns an application AIN made on 11 June 2013 to the Medical Council identifying 15 items set out in a schedule to that letter and requesting a copy of each of those documents pursuant to s 14 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). (A list of those items is attached to this decision as Attachment 1.) Some documents were provided relatively promptly, others took longer to provide and the remainder have not been provided at all because the Medical Council says they do not hold that information.
Section 14 provides that:
14 Access to personal information held by agencies
A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.
The Tribunal interpreted s 14 as meaning that any issue relating to the delay or expense in providing information would be dealt with at the 'remedy' stage.
The PPIP Act obliges public sector agencies to collect, store, use and disclose personal information in accordance with certain principles called information protection principles (IPPs): PPIP Act, Part 2, Div 1. Section 14 is one of those principles. A person may apply to a public sector agency for the review of any conduct said to be in breach an IPP: PPIP Act, s 21(2). If the person is not satisfied with the internal review decision, he or she may apply to the Tribunal for an external review of the conduct: PPIP Act, s 55 and Administrative Decision Review Act 1997 (NSW) (ADR Act), s 7 and s 9.
The Tribunal's role when conducting an administrative review "is to decide what the correct and preferable decision is having regard to the material then before it": ADR Act, s 63(1). That material includes "any relevant factual material" and "any applicable written or unwritten law": ADR Act, s 63(1). In the context of the PPIP Act, "decision" refers to the conduct in which the administrator is alleged to have engaged and which is the subject of a request for internal review: ADR Act, s 7.
After the Tribunal has reviewed the conduct of the agency, it may decide not to take any action on the matter, or it may make certain orders including damages and injunctive style relief: PPIP Act, s 55(2). We refer to the issue of whether the conduct is in breach of an Information Protection Principle as the liability issue. We refer to the issue as to whether the Tribunal should take any action and, if so, what that action should be, as the remedy issue.
AIN's internal review application claims that, contrary to the "transparency requirements" the Medical Council has not provided her "with enough details about what personal information they are storing". Despite these references, and the fact that both parties made submissions on the applicability of s 13, the Tribunal did not construe AIN's application as relying on a breach of s 13. That provision, which is headed "Information about personal information held by agencies" provides that:
A public sector agency that holds personal information must take such steps as are, in the circumstances, reasonable to enable any person to ascertain:
(a) whether the agency holds personal information, and
(b) whether the agency holds personal information relating to that person, and
(c) if the agency holds personal information relating to that person:
(i) the nature of that information, and
(ii) the main purposes for which the information is used, and
(iii) that person's entitlement to gain access to the information.
The Tribunal construed the application as relating only to items 1 and 2 (which were the same document - the decision of the Medical Tribunal dated 19 October 2010) and item 14. Although the Medical Council had previously given AIN a copy of the Medical Tribunal's decision, she sought the version as attached to two separate emails sent by employees of the Medical Council.
AIN submitted that each of the 15 items, apart from item 9, was in issue.
In relation to items 1 and 2, the Tribunal directed the Medical Council to undertake a further search of its records. If the search produced something, the matter was to be re-listed for appropriate orders.
The Medical Council did undertake a further search and reviewed the "Revisions Tab" (or "Revisions Folder") for the Medical Tribunal decision. The Medical Council has told the Appeal Panel that, in a letter to AIN dated 19 January 2016, their lawyers provided AIN with a screenshot of the Revisions Tab. That screenshot indicated that two revisions existed. Copies were provided to AIN. The issue as to whether AIN has been given access to items 1 and 2 in accordance with s 14 remains in issue. On that basis the Medical Council contends that this issue is not properly the subject of appeal.
In relation to item 14, the Tribunal found that the Medical Council had nothing further to provide and dismissed the application to the extent that it related to that item.
We have upheld the appeal on the following questions of law:
1. The Tribunal misconstrued s 14 of the PPIP Act to mean that any issue relating to delay or expense in providing information was not relevant to the question of whether there had been a breach of that provision;
2. the Tribunal failed to consider whether AIN's application for internal review alleged a breach of s 13 as well as alleging a breach of s 14; and
3. the Tribunal misconstrued AIN's application as relating only to items 1, 2 and 14 when, in fact, each item, apart from item 9, was in issue.
Having found these errors, which fundamentally affect the Tribunal's decision, the appropriate course is to set aside the decision and direct that the whole case be reconsidered: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 81(1)(c) and (e). Despite being urged to do so, we have decided not to determine the merits of this part of the application ourselves. The factual findings may depend, in part, on the view taken of the evidence of Ms Azad, the Medical Council's then Acting Legal Director, and the evidence of any other witnesses. We did not hear that evidence.
We understand from correspondence on the Tribunal file that the President has replaced the member who heard this matter at first instance because she has become unavailable: NCAT Act, s 52. In those circumstances all the evidence will have to be re-heard by a differently constituted Tribunal. Evidence additional to that already filed can be provided but the Tribunal will need to determine whether to accept that evidence: NCAT Act, s 81(1)(c) and (e). It follows that we refuse AIN leave to adduce any fresh evidence on the appeal.
Because we have set aside the decision on the issues relating to s 13 and s 14 of the PPIP Act, and those issues will be re-determined by a differently constituted Tribunal in accordance with these reasons, there is no need to address AIN's other grounds of appeal. Those grounds included challenges to factual findings about whether witnesses and lawyers for the Medical Council had acted in good faith, allegations of bias against Senior Member Isenberg and other breaches of procedural fairness.
AIN also submitted that lawyers, Ms Azad, Ms Mattes and Ms Baker had breached s 71 of NCAT Act (offence of making a false or misleading statement) and/or s 73 of the NCAT Act (contempt of the Tribunal). Section 71 creates an offence. Proceedings for an offence are to be dealt with summarily before the Local Court: NCAT Act, s 76. The Tribunal has no power to deal with offences.
We understand that the application under s 73 of the NCAT Act for contempt relates to an allegation of misleading the Tribunal in relation to the revisions tab and items 1 and 2. Currently the Tribunal is constituted as an internal Appeal Panel: NCAT Act, s 27(a). We are not constituted to hear proceedings for contempt: NCAT Act, s 27(b). If AIN wishes to apply to the Tribunal for an order under s 73, she needs to do so in a separate application.
[2]
Delay and expense - interpretation of s 14
The Tribunal misconstrued s 14 of the PPIP Act to mean that any issue relating to delay or expense in providing information was not relevant to the question of whether there had been a breach of that provision.
AIN confirmed at the hearing below that she had received some of the documents that the Medical Council had initially said it did not hold or did not have to provide. She submitted that as well as obliging agencies to provide individuals with access to their personal information, s 14 requires agencies to do so "without excessive delay or expense".
The Tribunal below accepted, erroneously in our view, that any issue as to delay or expense would go the remedy, if any, to which AIN may be entitled following a review of the conduct: PPIP Act, s 55(2). That view conformed with the submission made by Ms Baker representing the Medical Council, in relation to items 7, 8 and 11:
So that means that of three of the items there won't need to be any rulings on them, in terms of breach. [AIN] may make submissions in terms of costs or consequences at a later stage, but as the proceedings are only seeking documents and she now has them, those matters have hopefully gone away.
(Transcript of 10 September 2015, p 57, lines 3-8)
The Tribunal agreed with that approach. AIN then said that she had not specifically raised issues of costs (or expenses) after each item because she understood that she would have the opportunity to do so later. Ms Baker assured AIN that she would have that opportunity 'on a separate occasion'. AIN agreed that items 7, 8 and 11 had now been provided. However, she went on to make general submissions as to costs (or expenses) and delay in relation to items 5 and 12. Ms Baker said again that AIN should reserve submissions as to the time and effort, costs and expense she had to go through to obtain items 5 and 12 until a future occasion. AIN said she accepted that proposition.
Section 14 requires an agency, not only to provide personal information that it holds but to do so "without excessive delay or expense". The Tribunal should have addressed the question of whether the information was provided "without excessive delay or expense" at the liability stage. Even though the Medical Council had provided some of the documents by the time of the hearing, there was an outstanding issue as to whether it had provided that information "without excessive delay or expense". AIN was clearly submitting that there had been excessive delays and that she had been put to unnecessary expense.
If the Tribunal had found that access had been provided, but with excessive delay or expense, that would have constituted a breach of s 14. AIN would then have had an opportunity to make submissions as to any appropriate remedy or relief. Instead, the Tribunal made no finding either way as to whether there had been a breach of s 14 in relation to these items.
[3]
Terms of application for internal review and other evidence
The terms of AIN's application for internal review are significant because the conduct identified in the application is the subject matter of the internal review: NZ v Department of Housing [2006] NSWADTAP 29 at [8] and [28] - [30].
In answer to the question, "What is the specific conduct you are complaining about?", in the application for internal review form, AIN wrote;
On 11 June 2013 I made a written request under s 14 of the PPIP Act to the Medical Council of NSW (the Council) for personal information listed in the schedule attached to the letter (letter and schedule enclosed).
On 28 and 2 July 2013 the Council responded through the Office of the Crown Solicitor. The Council supplied some but not all of the information requested.
By letter of 3 July 2013 [enclosed] I provided the Council with a list of grievances in relation to their failure to provide the information requested. On 3 & 5 July the Council provided some further information but not all the information requested. They stated that the information requested had now been provided to the best of their ability.
The personal information requested was information known to have been held by the Council. The Council has failed to comply with the Information Protection Principles by failing to provide the information requested without excessive delay.
Relevant to the assessment of whether the delay is excessive is the purpose for which the information was requested. The information is, among other things, relevant to informing a decision by [AIN] on whether to apply to the Appeal Panel of the ADT for leave to appeal and to adduce fresh evidence in a GIPA proceeding.
Contrary to Transparency requirements, the Council has not provided [AIN] with enough details about what personal information they are storing. Contrary to Accessibility requirements - the Council has not allowed [AIN] to access her personal information that it has previously alleged existed. (Emphasis added.)
According to AIN, the reference to "transparency requirements" in the application is a reference to s 13 of the PPIP Act. That, she says, is how the Information Commissioner characterises that provision.
In reply to the question on the internal review application as to what she would like to see the Medical Council do about the conduct, AIN answered that they should "provide the personal information as requested".
In the letter of 20 December 2013 determining the internal review, the Medical Council responded to the final paragraph set out above (beginning "Contrary to Transparency requirements …") in the following terms:
Please note that in relation to the above paragraph, I have not specifically addressed the allegation that the Council has acted contrary to "Transparency requirements" because this does not appear to be a PPIP Act concept. I have assumed that the reference to "Accessibility requirements" in the above paragraph is a reference to IPP 14.
In her application for review to the Tribunal, AIN stated that, "[c]ontrary to transparency requirements the Medical Council of NSW has not provided [AIN] with enough details about what personal information they are storing."
In her submissions to the Tribunal below dated 31 May 2014, AIN alleges at [8], [16], [26], [58], [97] that the Medical Council has breached s 13 in relation to items 1, 2, 4, 5, 6 and 12. In their submissions dated 23 June 2014, the Medical Council refers to AIN's submissions as "essentially" relating to a request under s 14 for various documents but also as alleging a breach of s 13. The Medical Council submitted that the conduct "would not give rise to a breach of s 13 (or any other provision) of the PPIP Act".
At [1] of its decision, the Tribunal characterised AIN's application for review as alleging a breach of s 14 of the PPIP Act relating to access. The Tribunal did not mention s 13.
[4]
Parties' submissions and conclusion
AIN's submission was that, as well as alleging a breach of s 14, she was alleging that the Medical Council had engaged in conduct which breached s 13 of the PPIP Act and that the Tribunal failed to address that conduct.
The Medical Council submitted that at [5] - [7] of the Tribunal's decision, it construed AIN's internal review application as not raising any issue under s 13 of the PPIP Act:
5.In her application to the Tribunal the Applicant alleged various breaches of the PIPP Act by the Respondent.
6.However, the Applicant's application for internal review (on which this Tribunal's jurisdiction is founded) complained of the following alleged conduct, based on her application under s.14 PPIP Act for access to her personal information:
On 28 June and 2 July 2013, the Council responded to the Applicant's letter of 11 June 2013 (which made a written request under s. 14 PPIP Act for access to personal information listed in a schedule attached to the letter), by providing some but not all of the requested information.
On 3 and 5 July 2013, the Council provided some, but not all, of the requested information from the Applicant's letter of 3 July 2013 (which alleged a failure by the Council to provide the requested information), and stated that it had now provided the Applicant with the information provided to the best of its ability.
On 17 July 2013, the Council responded to the Applicant's letter of 10 July 2013 (challenging whether all requested personal information had been provided to the best of its ability) by confirming that it had now produced all material in response to the Applicant's request that it holds.
The [remaining] information requested by the Applicant was known to have been held by the Council [and was not provided].
7.The scope of the Tribunal's review, is limited to considering the conduct said to be in breach of the PPIP Act, as identified by the Applicant in her application for internal review under s.53 of the PPIP Act KO and KP v Commissioner of Police, New South Wales Police Force [2005] NSWADTAP 56.
It cannot be inferred from the reasons for decision that the Tribunal considered whether AIN's internal review application alleged a breach of s 13 of the PPIP Act. The Tribunal did not refer to any of the evidence or submissions on this issue or make an express determination.
The Court of Appeal recently summarised the applicable principles where a decision maker does not squarely address the case put forward by one of the parties: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [46] - [51]. Our understanding of these principles is that:
1. failing to consider the substance of an applicant's application may constitute a constructive failure to exercise jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81];
2. failing to respond to a substantial, clearly articulated argument relying upon established facts is a breach of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24];
3. there is no obligation on the decision maker to consider every piece of evidence presented: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [22]; and
4. the concern of the law in this area is to avoid practical injustice: Rodger v De Gelder [2015] NSWCA 211 at [93].
In this case, by failing to respond to a clearly articulated argument that AIN's application alleged a breach of s 13 of the PPIP Act, the Tribunal has failure to exercise its jurisdiction and breached procedural fairness.
It will facilitate the "just quick and cheap resolution of the real issues in the proceedings" if we re-determine the question of whether AIN's application includes an alleged breach of s 13: NCAT Act, s 36 and 80(3)(a). Because there are no factual issues in dispute, we are in a position to determine that question based on the evidence before the Tribunal below and the parties' submissions on appeal.
[5]
Reconsideration of scope of application
An applicant must identify the conduct complained of, but it is not necessary to identify the precise contravention on which he or she relies: GL v Director General, Department of Education and Training [2003] NSWADT 166 at [26]; JD v Director General, NSW Department of Health [2004] NSWADT 7 at [38]. In the application for internal review AIN referred to "transparency requirements" and identified the conduct as "not provided her with enough details about what personal information it was storing". She did not identify the precise contravention by reference to a provision of the PPIP Act, but she is not required to do so. It should have been apparent, both from the description of the conduct and the reference to 'transparency requirements' that AIN was alleging a breach of s 13.
Furthermore, in their submissions below, the Medical Council refers to AIN's submissions as "essentially" relating to a request under s 14 for various documents but also as alleging a breach of s 13.
We find that the application for internal review alleged conduct in breach of s 13 of the PPIP Act. We express no view as to the merits of any claim that the Medical Council's conduct breached that provision. That is a matter which should be determined by the re-constituted Tribunal on the basis of the evidence and submissions.
[6]
Construing application as being confined to items 1, 2 and 14
The Tribunal stated at [12], that of the original 15 items to which AIN had requested access, the parties agreed that only three items were in issue: items 1 and 2 (which it found to be the same document) and item 14. Although not referred to in the Notice of Appeal or AIN's written submissions, at the hearing she contended that she had never agreed that the proceedings were confined to a consideration of items 1 (and 2) and 14.
AIN contends that, at the time of the hearing, she alleged breaches of s 14 of the PPIP Act in relation to items 1, 2, 5, 6, 7, 8, 9, 11, 12, 13, 14 and 15. At the hearing below, after agreeing that items 5 and 12 had been provided, AIN made submissions in relation to item 14. When she had completed those submissions, Ms Baker, representing the Medical Council, said that she understood AIN's submissions came down to items 1, 2 and 14. While AIN did not contradict Ms Baker's statement, she says she did not do so because she was under a misapprehension that any submissions as to "excessive delay or expense" in s 14 would be addressed at a subsequent hearing on remedy.
Our reading of the transcript supports AIN's submission that she did not agree to confine her application to items 1, 2 and 14. That also resulted in a failure by the Tribunal to consider a significant part of AIN's case. That constitutes a breach of procedural fairness and a failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multi-Cultural Affairs [2003] HCA 26 at [24] and [94]; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [48] to [51].
The Tribunal below will need to re-consider the scope of AIN's application and determine which of the 15 items remains in issue.
[7]
Costs in each of the Tribunal proceedings
AIN applied to the Appeal Panel to make an order for costs in each of the proceedings below. The general rule is that each party is to pay their own costs: NCAT Act, 60. Costs may only be awarded where there are "special circumstances" warranting an award of costs.
The Appeal Panel has power to make a costs order in the proceedings below because costs is defined as including "the costs of, or incidental to, the proceedings giving rise to the application or appeal … ": NCAT Act, s 60(5)(b). But we decline to determine the application for costs because the merits of AIN's application have not been finally determined. AIN relied on "the relative strengths of the claims made by each party" as one of the factors warranting an award of costs.
The re-constituted Tribunal will be in a position to make an assessment of the strengths of the claims when it has determined the matter. At that stage, the Tribunal will also be able to take into account any other factors relating to both the proceedings before Senior Member Isenberg and the proceedings before the re-constituted Tribunal. The Appeal Panel remits the question of costs to a differently constituted Tribunal below.
[8]
Costs of the Appeal Panel proceedings
Neither party applied for costs in this appeal and we make no order in respect of such costs.
[9]
Orders
The appeal is allowed.
The order of the Tribunal that, "With respect to item 14 the application is dismissed" is set aside.
The whole of the case is to be reconsidered by a differently constituted Tribunal with further evidence, if allowed, in accordance with these reasons.
Any application in respect of the costs of the proceedings 1410022 below are to be determined by a differently constituted Tribunal at first instance.
[10]
Attachment 1
SCHEDULE
A copy of each of the following documents:
1. The document entitled "AIN - MT Decision dated 19 October 2010.trS" a copy of which was attached to the email sent by Ann Kerley on 17 January 2011 at 11.14 am and any metadata concerning that document in readable paper and native electronic format.
2. The document attached to the email from Claudette Ichayagouri to Ann Kerley entitled "Dr AIN - MT Decision dated 19 October 2010 (scan for website)" sent at 10.45 am on 17 January 2010 and metadata concerning that document in readable paper and native electronic format.
3. Sealed copy of "Exhibit X" referred to in the note for file by Ms St Hill dated 27 May 2011 and entitled "Dr AIN (MP0151244)".
4. The document entitled "Re practitioner.PDF" attached to the email of Mina Aresh to Nadi Grats-Feliks sent at 2.58 pm on 27 May 2011 and entitled "Re: FW: Dr AIN costs judgment" - in readable paper and native electronic format.
5. The pro forma Schedule 1 Enquiry decision created for the schedule 1 enquiry with respect to Dr AIN on 3 December 2009.
6. Any email, and attachment to it, sent by Anne Harvey to Jennifer Houen from any time on 3 December 2009 until 5.54 pm on 21 December 2009 concerning Dr AIN.
7. Any document attached to the email sent by Anne Harvey to Hooi Toh, David Adier and Jennifer Houen at 2.23 pm on 24 December 2009 and entitled "Dr AIN-Schedl".
8. The document entitled "MP0151244 Dr AIN draft Sch 1 decision to Jenny Houen with comments on 7 January 2010.doc" and all metadata concerning that document attached to an email from Anne Harvey to Jennifer Houen at 5.06 pm on 7 January 2010 - in readable paper and native electronic format.
9. The document entitled "MP0151244 Final Schedule 1 Decision.tr5" which was attached to the email from Helen Durick to Anne Harvey at 10.53 am on 8 January 2010 entitled "Dr AIN - Final Decision Attached.eom." and any metadata concerning that document in readable paper and native electronic format.
10. The metadata associated with the document entitled "MP0151244 Final Schedule 1 Decision.doc" attached to an email from Anne Harvey to Jennifer Houen, David Adier and Hooi Toh at 1.15 pm on 8 January 2010.
11. Any email sent by David Adier to Anne Harvey concerning Dr AIN between 2.23 pm on 24 December 2009 and 1.15 pm on 8 January 2010.
12. The document/s referred to as "AIN Summary" in the email from Paul Ardino to Anne Harvey sent at 1.40 pm on 11 January 2010 and as "Summary" in the email from Anne Harvey to Paul Ardino and Beth Bauer at 2.30 pm on 11 January 2010.
13. The email as received by each recipient sent by Anne Harvey to "Friends" at 2.16 pm on 22 September 2010 concerning a Summons in the matter of Dr AIN.
14. Each response to the email/s referred to in paragraph 13.
15. Each version of the letter to Dr AIN and marked as signed "for Registrar" dated 4 November 2008 and identified by reference number "MP0151244:08/2767" together with all metadata concerning creation, editing, printing and saving of that document at any time between October 2008 and November 2011.
[11]
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
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 January 2017