Barker v Gifford and Anor [2005] ACTSC 55

REASONS FOR DECISION 1 The appellant (the University) is a public sector agency bound by the requirements of the Privacy and Personal Information Protection Act 1998 (the Privacy Act) when dealing with personal information. The University is the respondent to an application brought under that Act by a former member of the academic staff, PC. The application is part heard before the General Division of the Tribunal. The University has appealed to the Appeal Panel against a ruling by the Tribunal on a preliminary question. 2 The University submitted to the Tribunal that the personal information affected by the conduct put in issue was not subject to the Act, because it fell within an exception to the Act's definition of 'personal information'. The Tribunal rejected the submission: see PC v University of NSW [2007] NSWADT 286 (10 December 2007). The notice of appeal was lodged on 12 December 2007. It is accompanied by an application to appeal from an interlocutory decision. The Appeal Panel stayed the proceedings before the Tribunal pending its decision (order made 17 December 2007). Preliminary Matters 3 Whether Interlocutory Decision: Section 113(2A) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides that '… an appeal does not lie to an Appeal Panel of the Tribunal against an interlocutory decision of the Tribunal except by leave of the Appeal Panel'. In addition the Act provides that the Appeal Panel for an appeal relating to the exercise of an 'interlocutory function' may be constituted by one presidential judicial member who is assigned by the President for the purpose of exercising the function: s 24(2)(a). An 'interlocutory function' is defined in s 24A(1) of the ADT Act to include the making of orders or decisions in relation to eight specified types of issues (items (a) to (h)), followed by a ninth residual category 'any other interlocutory issue before the Tribunal' (item (i)). 4 The adjective 'interlocutory', as used in the law, describes an order, decision or ruling 'a. incidental to the final judgment in an action; not finally decisive of a case. b. pertaining to a provisional decision' (Macquarie Dictionary, 1st ed. 1981). The standard Law Dictionaries give a similar meaning. For example 'interlocutory order' is explained in Osborn's Concise Law Dictionary (9th ed. 2001) as follows: 'While a final order determined the rights of the parties an interlocutory order left something to be done to determine those rights'. 'Interlocutory judgment' is explained in Mozley & Whiteley's Law Dictionary (10th ed. 1988) as: 'A judgment in an action at law, given on some defence, proceeding, or default, which is only intermediate and does not finally determine or complete the action.' All of the specific types of decisions listed in s 24A(1) fit these descriptions, with one exception - item (h) - 'summary dismissal of proceedings'. 5 In this case I am satisfied that the decision in issue falls into the ninth catch-all category. Accordingly, it is permissible for the Tribunal to be constituted by a single presidential member, in this instance the President. 6 Hearing on Papers: Both parties have agreed to the matter being dealt with on the papers as permitted by s 76 of the ADT Act. The University filed an affidavit sworn by Melinda Jane Toomey, Solicitor employed by the University, dated 11 February 2008. The University seeks to have the affidavit and its contents taken into account as part of the appeal. The respondent, who now lives and works overseas, filed submissions in reply on 7 March 2008. The Conduct under Notice 7 Proceedings under the Privacy Act take the form of an application to the Tribunal for it to review the 'conduct' of the agency, and can only be brought after the agency has been given the opportunity to undertake an internal review of the complaint: see ss 53 and 55. The Tribunal's review ordinarily takes the form of an examination of whether the agency has complied with the Information Protection Principles set out in the Act. 8 It is not, in my opinion, at all clear from the University's internal review report or from PC's application to the Tribunal what precisely was the alleged conduct of the University that was put in issue. I have reviewed the records of the proceedings including the transcript, exhibits and notes as to directions made by the Tribunal in the pre-hearing planning meeting process. 9 The planning meeting process appears to have resulted in the parties agreeing that, at the least, PC's complaint against the University related to the circulation through the mail of the text of a 1998 judgment of a Canadian court in proceedings to which PC was a party. The circulation occurred in September 2005. The document was contained in a University envelope. The judgment made some extremely negative statements about PC in the context of a dispute over the termination of her employment by Atomic Energy of Canada Ltd, her employer prior to being appointed to a position at the University. This was seen as the 'personal information' to which the proceedings related. 10 The Tribunal summarised the conduct under notice in this way: '8 … In mid September 2005 the applicant received mail at her address in Sydney. The envelope bore the respondent's coat of arms and contained 9 pages of printed material (exhibit A2 pp 49 to 58) concerning legal proceedings that the applicant had earlier commenced in a Canadian Court against a corporation by the name of Atomic Energy of Canada Limited. In form these pages appear as the reasons for decision that were delivered in those proceedings on appeal, possibly some time in 1998, with the hearing being in the early months of that year. The letter contained nothing else. Each of these 9 pages bore what appears to be a date at the bottom "11/09/2005 9:11". 9 On 22 September 2005 the applicant received a communication from a colleague, Professor Bowen, advising her that he, and others, had received information concerning her in the mail. Professor Bowen's email sets out particulars of the envelope and its contents: he says that the envelope bore the respondent's coat of arms and contained "court findings in the case of Atomic Energy of Canada limited v [name of PC]" together with an internet (or URL) address (see exhibit A2 page 59). It is the mailed communication to Professor Bowen (and others) which the applicant alleges is the disclosure of personal information contrary to the Act.' 11 PC's case is that the mail-out was undertaken by the University; that the information contained in the extracts was 'personal information' about her; that she had not given consent to the mail-out, and there was no other lawful justification; accordingly, the conduct constitutes an unlawful disclosure of personal information about her in contravention of s 18 of the Privacy Act. 12 The University denies that it is culpable. First, it has contended that it did not authorise or conduct any mail-out of the information that has caused offence to PC. Secondly, the University has contended that the contents of the document circulated fell within the scope of the 'publicly available publication' exception from the meaning of 'personal information' contained in the Privacy Act. 'Personal Information' 13 The relevant provisions are s 4(1) and s 4(3)(b), i.e.: '(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. (3) Personal information does not include any of the following: (b) information about an individual that is contained in a publicly available publication.' 14 The material circulated was, as is explained by the Tribunal in its reasons, the document found in Exhibit A2 at 50 to 58. The University's case before the Tribunal was that this information is to be found in a publicly available publication, and the publicly available publication on which it relies is not Ex A2:50-58, but Ex R9. 15 Exhibit R9 exactly repeats the contents of Ex A2:50-58. The document appears to have been drawn down from an internet site. At the top of the document there are the words 'Office of the Commissioner for Federal Judicial Affairs' with various search boxes. The document has a header of a type used by the Government of Canada - the word 'Canada' accompanied by a small impression of the national flag over the last letter 'a'. Elsewhere at the top of the document there is the marking: 'Source: http:/reports.fja.gc.ca/fc/src/shtml/1998/pub/v3/1998fc22091.shtml' followed by 'Reference: [1998] 3 F.C. 349'. 16 Beneath these headers is a report of a judgment of the Court of Appeal with the title 'Atomic Energy of Canada Limited (Appellant) v [full name of PC] (Respondent)'. At the foot of each of the pages is the imprint '11/09/2005 9:1', a marking of the kind customarily seen when documents are printed down from the internet. 17 The document is in the form of a one-sided photocopy and has eight A4 pages. The front page is headed 'Dominion Law Reports (Fourth Series)'. The front page includes various additional elements, including 'Vol. 157', a stamp with the words 'University of Sydney Law Library' appearing at the extremes of a circle and a date '31 August 1998' appearing across the middle. There is a reference to the publisher 'Canada Law Book Inc.' with an address. The seven pages which follow show specific pages in sequence starting with 688 to the left and 689 to the right, and continuing on to the final page at 701. The pages numbered 689 to 701 contain the report of a case entitled 'Atomic Energy of Canada Ltd v [the name of PC]' being a report of a Federal Court of Appeal judgment. 18 The Tribunal begins its consideration of the University's submission at [11]: '11 The case that the respondent is presently seeking to make out is that the information communicated to Professor Bowen (and others) about the applicant is information that "is contained in a publicly available publication". As noted earlier the respondent relies upon only exhibit R9 in this preliminary application. The first question then is whether volume 157 of the Dominion Law Reports, from which exhibit R9 was extracted by copying, is a publicly available publication within s.4(3)(b) of the Act. Exhibit R9 shows on its face that the Dominion Law Reports are published by an organisation in Canada and contain a weekly series of reports of cases from all the courts of Canada. It also bears on its face a stamp of the University of Sydney Law Library enclosing the date "31 AUG 1998". Clearly the evidence warrants a finding that the University of Sydney Law Library subscribes to the Dominion Law Reports and that the library in fact contains volume 157, included in which is the subject report of the decision in the case in which the applicant was involved. However, there is presently no other evidence before the Tribunal relevant to this particular question. 12 It is no doubt true that there will be cases where simply knowing the "nature" of a publication will be sufficient to establish that it is a publicly available publication. Regular newspapers and periodicals are a classic example, but this is because we all know that the well known newspapers and journals are published for public consumption and are distributed through various outlets for public consumption. There is really no need for further evidence in such cases. One can readily accept that such publications are publicly available publications, not really because of their nature, but because of what we know about their distribution and availability. On the other hand, the nature of the document may suggest that, at least prima facie, it is not a publicly available publication. A log book of the daily activities on a government agency is but one example: Commissioner of Police NSW v EG [2004] NSWADTAP 10. 13 However, it is equally true that other publications may well require additional evidence relating to, for example, their compilation, publication or availability before it is possible to find that they are publicly available (following the analysis in NW v NSW Fire Brigades [2005] NSWADT 73).' 19 I do not understand the University to disagree with these general propositions. Its disagreement with the Tribunal relates to the following passages in its reasoning: '14 The respondent's submission commenced with the proposition that the only relevant fact was that the information under consideration is contained in a volume of the Dominion Law Reports and that this was sufficient to determine the preliminary question (transcript page 65.55). It was then argued that as every judgment of a superior court is publicly available then it must follow that the Dominion Law Reports are publicly available publications (transcript page 62.56). The respondent, by this submission, is in effect seeking to put these reports into the category where knowledge of what the publications are will suffice, no more evidence being required. 15 When a court, or a tribunal for that matter, publishes reasons for decision without restriction (as to the publishing of names or otherwise) it is no doubt true that the court intends that its judgment will be accessible by any member of the public who should wish to read it. However, the Act directs attention to the form in which the information (the reasons for decision) is in fact published. The court may place a copy of its judgment in its own library or on the Internet or it may have arrangements with a publisher who collects relevant decisions and publishes them in a series of authorised reports. Judgements are also published in unauthorised reports. All of these various forms in which a court's reasons for judgment may appear may be regarded as "publications" in the sense that they are legible records which are made available for others to read. This is the sense in which the word "publication" is used in s.4(3)(b) of the Act. Whilst another meaning of the word "publication" is "to be made available to the public" this meaning is not entirely apposite here because the same work is in fact done by the words "publicly available" where they appear in the sub-section. Whichever analysis is employed the end result is the same: to satisfy the element in s.4(3)(b) under consideration, the information must be contained in a document (or publication) that is publicly available. This is to give the words their ordinary meaning (EG v Commissioner of Police NSW [2003] NSWADT 150). Whether volume 157 of the Dominion Law Reports located in the Law Library of Sydney University is publicly available is a question of fact. 16 There is no evidence before the Tribunal upon which a finding can be made that members of the public have unrestricted access to this volume of the Dominion Law Reports. The fact that this volume contains reports of Canadian Courts of Law does not assist this factual enquiry one way or the other. Nor does reliance upon the principle of open justice. This is not the type of enquiry that the sub-section directs the Tribunal to make. 17 Consequently, the Tribunal does not find, on the evidence before it, that volume 157 of the Dominion Law Reports from which exhibit R9 was copied, is a publicly available publication within s.4(3)(b) of the Act. It follows that the respondent's preliminary application must fail because it has not been established that this particular volume in fact is a publicly available publication, this being an essential element of the sub-section. 18 The respondent's preliminary application is dismissed and the further hearing of the proceedings on 19 December 2007 is confirmed. As the proceedings are already listed for further hearing no further order is required at this stage of the proceedings.' 20 It will be seen that the Tribunal simply did not think it had sufficient evidence on the 'publicly available' component of the exception. 21 The notice of appeal recites six alleged errors of law, and also seeks leave to have the appeal extended to the merits. It is not a pre-condition to the grant of leave to extend to the merits that an error of law be shown, though the establishment of a material error of law will often be an important factor in deciding whether to allow an appeal to be extended to the merits. 22 The first ground of appeal is that the Tribunal erred in its construction of the exception in that it did not give the words 'publicly available publication' their ordinary and natural meaning. It asserts that the Tribunal, instead, ascribed a meaning other than the ordinary and natural meaning when it said at para [16]: 'There is no evidence before the Tribunal upon which a finding can be made that members of the public have unrestricted access to this volume of the Dominion Law Reports.' (emphasis added) 23 In my view the Tribunal was simply using the words 'unrestricted access' as another way of explaining what is meant by 'publicly available'. In my view there is no error demonstrated. A publication can not, I consider, be publicly available if there is a restriction on access to the publication (other than possibly the requirement for a reasonable payment). 24 The Tribunal's reference to the need to show that a document is available without restriction has resonance in this case. The document upon which the University relies appears to be one held in a University Law Library. It bears a library stamp. It is well known that restrictions often apply to the availability of material in libraries especially University libraries. For example, in a University situation it may well be that Library materials can only be made available to people who are students or members of staff. 25 The second ground of appeal submits, in the alternative, that the Tribunal erred at [12] to [14] in requiring further evidence before reaching the conclusion that the publication relied upon was a publicly available publication. 26 The affidavit that the University filed on 11 February 2008 seeks to overcome this perceived deficiency. I have decided not to admit the affidavit as, for the reasons which follow, the matter can be disposed of without having regard to it. 27 The Tribunal, it will be seen, accepted at para [12] that there will be types of publication where nothing more is required once the existence of the publication is proven to establish that it is a publicly available publication. The debate in this case is really about whether the Tribunal needed to hesitate on this occasion; and not accede to the University's submissions without further evidence. 28 The University's case before the Tribunal below was that the case involved an obvious instance of the offensive material being contained in a 'publicly available' publication that replicates exactly the information in the circulated document. 29 The Tribunal noted that it has been accepted in earlier decisions that situations may be presented where it is possible to rule that a publication is a 'publicly available' one without corroborating evidence being presented. Such an approach was taken in Commissioner of Police, New South Wales Police -v- EG; EG -v- Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 10; on appeal from EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150. 30 The agency in that case submitted that the exception applied because the information it had disclosed was replicated in a publicly available publication, the mass circulation daily newspaper, the Daily Telegraph. This submission was accepted by the Tribunal, and the Tribunal's decision was affirmed on this point by the Appeal Panel. 31 The Appeal Panel in that case noted, however, that a separate publication that replicates the information contained in the publicly available publication might lose the benefit of the exception if it is presented in a way that has the effect of altering the meaning of the communication. The Appeal Panel said: '59 … When … the same factual allegation appears in two very different forms of communication, the precise content of all the information conveyed may differ simply on account of the different contexts in which the allegation is made. … 60 Our view is that in such situations the context … may bear upon the precise content of the information, but will not necessarily do so. If it does, the exclusion set out in s 4(3)(b) will not apply because the information claimed by the relevant individual to be 'personal information' will not, in substance, be precisely the same information as is contained in the 'publicly available publication'. … 61 An example, mentioned above … illustrates this point well. We would agree with the [Privacy] Commissioner that a name and address in a telephone directory conveys different information to the same name and address held in the file of a child protection agency. On account of considerations similar to those governing legal innuendo in a defamation case, the latter communication conveys an additional item of information of material significance, namely, that the person concerned is, or is suspected of being, dangerous to young children. 62 The identity and nature of a specific communicator of information do not always, however, add to or transform the information conveyed by a factual allegation in such an obvious manner. It is a matter of judgment in each case to determine whether this effect is present.' 32 In NW v New South Wales Fire Brigades [2005] NSWADT 73, sitting at first instance, there dealing with a similar claim in respect of an administrative diary kept by a local fire brigade unit, I noted: '32 In a case where an agency is contending that a document which on first impression appears to be an internal administrative document is in fact a publicly available publication, there needs, in my view, to be more convincing evidence than that supplied in this case by the NSWFB. A finding that personal information is information 'contained in a publicly available publication' means that the individual named can not access the important human rights protections conferred by the Privacy Act.' 33 The Tribunal in this case took the kind of cautionary approach that I saw as appropriate when making the above comment. Assessment 34 What is occurring when no evidence is required to establish a matter of fact is that the Tribunal is, in effect, taking judicial notice of the fact. 35 The University, though it has not expressed itself precisely in these terms in the second ground of appeal, is, in essence, contending that it is a matter of common knowledge, at least to judges and members of the legal profession, that the authorised reports of the major court systems of the common law world are freely available to anyone who pays the required subscription fee. They are also now as a practical matter often available on searchable public web sites, and can be down-loaded without charge. This knowledge may not be held by ordinary members of the public. 36 PC in her submissions supports the Tribunal decision, and presses the point that the question whether the publication is a 'publicly available' one should be determined on the basis of evidence. But she criticises any incorporation of Ms Toomey's affidavit into the proceedings as she is not in a position to cross-examine her. As already noted, I think the matter can be resolved without having regard to the contents of that affidavit. 37 Odgers, Uniform Evidence Law (7th ed. 2006), at [1.4.600] contains a useful account, for present purposes, of the circumstances in which judicial notice of matters of fact can be taken, comparing the common law approach with the, arguably, somewhat stricter approach reflected in s 144 of the Evidence Act 1995 (the Evidence Act) (Matters of common knowledge). Section 144 provides: ' 144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.' 38 This Tribunal is not bound strictly by the rules of evidence (the ADT Act, s 73). But it should always adopt a practical and persuasive approach if it proceeds to find a fact without supporting evidence. 39 The practices that surround the publication of law reports do not, I think, form part of the common knowledge of ordinary members of the community. This knowledge is, however, widely held by members of the legal profession and people in related disciplines such as academic law teaching and study. 40 Odgers refers to a case where the ACT Supreme Court, which is bound by the equivalent ACT version of the Evidence Act, took judicial notice of a matter known to members of the legal profession. He is critical of the approach as it appears not to apply the 'community awareness' test required by the Act. (The case is Barker v Gifford [2005] ACTSC 55.) Odgers also notes that the NSW Court of Appeal has recognised that in specialist tribunals judicial notice may be taken by specialised tribunals of general knowledge acquired in that capacity in certain circumstances - see ICI Australia Operations Pty Ltd v WorkCover Authority (NSW) (2004) 60 NSWLR 18 at [219]-[232]. While I do not see the present matter as a case of the latter kind, the observations of the Court of Appeal point, I think, to some flexibility of view on its part as to what is required to satisfy the standard set down by s 144. 41 PC was represented by counsel at the proceedings before the Tribunal. It is clear that her counsel was aware of the contention mounted by the University, and given the opportunity to respond. I mention this point because it is important that a person confronted with an assertion as to fact that relies on common knowledge is given an opportunity to question that assertion or put on alternative evidence before the Tribunal makes such a finding; and especially where it is common knowledge only among a sub-set of the community. This view accords with the principle reflected in s 144(4) of the Evidence Act, quoted above. 42 The present case is different from NW. In the present case the document was on first impression a document of a kind that was well known, at least to members of the legal profession, to be publicly available subject to payment of a subscription fee for the regular service, and today on a per case without fee basis if downloaded from the internet. 43 I accept that the Tribunal in this case adopted a cautionary approach of the kind I advocated in NW. Nonetheless, I have concluded in this case that the Tribunal should have acceded to the University's submission, to the extent, at least, of holding that Ex R9 was a publicly available publication replicating exactly the contents of the material circulated. 44 It is not necessary to deal in detail with the remaining grounds of appeal. I will refer to them briefly. 45 The third ground of appeal refers to the 'library' exception to the meaning of personal information. Section 4(3)(k) of the Privacy Act provides: '(3) Personal information does not include any of the following: … (k) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection.' 46 Clause 4 of the Privacy and Personal Information Protection Regulation 2005 provides: ' 4 Meaning of personal information For the purposes of section 4 (3) (k) of the Act, the following information is not personal information: (a) information about an individual that is contained in a document kept in a library, art gallery or museum for the purposes of reference, study or exhibition.' 47 The ground refers to the raising of this point in the written submissions made to the Tribunal, and the failure of the Tribunal to address it in its reasons for decision. The Tribunal, I accept, should have responded to this submission. However, in my view, it is likely that it would have taken the same view as to this exception - that evidence should be led. PC has made extensive submissions on this point. It is not necessary to deal with them. The question of the scope of operation of the above exception is best left to a case where it is a live question. 48 The fourth ground refers to the Tribunal's failure to refer to specific aspects of the written submissions of the University. The University, it appears, put an even broader submission on the status of court decisions, arguing that the principles of 'open justice' demanded that court decisions be treated as publicly available publications. In my view, the Tribunal alluded to this line of argument adequately at para [16] of its reasons. There is no requirement that a court or tribunal slavishly refer to all arguments put forward in submissions. In my view, it must as a matter of law expose its basic lines of reasoning on the critical issues, but the degree of detail it engages in beyond that point is a matter of judgment, and may be influenced by the hearing circumstances under which it operates and the level at which it sits in the judicial system: see generally the line of authority commencing with Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. 49 The fifth ground refers to the fact that PC was represented in the proceedings at first instance, and refers to a concession said to have been made by counsel on her part (transcript, p 40: lines 48-53) recognising that a report in the Dominion Law Reports brings the information without too much doubt within the exception to the meaning of 'personal information'. 50 The Tribunal is not bound in review proceedings to adopt concessions emanating from the Bar Table. The duty of the Tribunal is to reach the 'correct and preferable' decision in the circumstances (ADT Act, s 63) by a process of inquiry. When undertaking the review of administrative conduct, as here, the Tribunal is not engaged in the resolution of an adversarial contest of the kind typical of civil litigation. It may well be that in the latter class of case, concessions must be adopted if they are given on an informed basis, and especially if competent counsel give them. 51 This ground of appeal reflects in my view a misunderstanding of the nature of the Tribunal's role in review proceedings. On the other hand, it is desirable that the Tribunal explain why it has not acceded to an apparent concession of the kind said to have occurred in this case. 52 The grounds given for extending the appeal to the merits are that the decision is so unreasonable that no reasonable decision maker could come to it (this is another, familiar error of law ground), and that if the matter is resolved in favour of the University that will prevent the need for a full hearing, and save both parties costs. 53 The University seeks an order that the decision of the Tribunal be set aside. It seeks the following further orders: (a) the Court Decision is not 'personal information' within the meaning of s 4 of the Privacy Act and accordingly, the Respondent's application for merits review is dismissed for want of jurisdiction; (b) further, if it is found that the Respondent's merits review application raises matters in addition to the Court Decision (which the Appellant denies), the Respondent had not sought internal review of those other matters with the result that those other matters are not within the Tribunal's jurisdiction and the application for merits review is dismissed for want of jurisdiction; (c) and the Respondent pay the costs of the Appellant both at first instance and on appeal as agreed or assessed. 54 It follows from my reasons that the Tribunal's order is set aside. Instead the following ruling is made: that the material circulated is not 'personal information' within the meaning of the Privacy and Personal Information Protection Act 1998 . 55 In my view the matter should be remitted to the Tribunal to make orders as appropriate. Item (b) of the proposed orders traversed by the University suggests to me that there may be some wider aspects to the submissions as to relevant conduct in this case. I mentioned at the outset of these reasons the difficulty of ascertaining from the underlying material precisely what conduct was put in issue by PC. It would be better, I think, if the Tribunal, which is fully seized of the matter formed a view as to whether the consequence of this decision is that the application be dismissed. 56 As to the application for costs of the appeal, it is far fetched in my view. This appeal is made over a Tribunal ruling on a difficult question. This is not in my view a case raising the kind of 'special circumstance' that might attract a costs order against the respondent to an appeal under s 88 of the Act. I know of no precedent in the exercise of the costs discretion at the Appeal Panel level of the Tribunal for making an award against a respondent to an appeal. This application reflects the philosophy of costs-follow-the-event. The University is an experienced party in this Tribunal, and would, I consider, be well aware that a 'special circumstances' ground or grounds must be advanced. 57 The position may be different, I accept, in respect of the question of whether there are special circumstances justifying an award of costs in respect of the primary proceedings. This, again, is a matter best dealt with by the Tribunal at first instance. 58 Accordingly I make the following orders. Orders 1. Leave to appeal against an interlocutory decision granted 2. Interlocutory decision under appeal set aside 3. The following decision is substituted: the material circulated is not 'personal information' within the meaning of the Privacy and Personal Information Protection Act 1998 4. The application is remitted to the primary Tribunal for determination, and, in due course, for determination of the application for costs of the proceedings before it 5. The appellant's application for the costs of this appeal is dismissed.

24. I had occasion to consider the circumstances in which the Court will permit a party to withdraw an admission in Reinicke v Neilson [2004] ACTSC 5 (27 February 2004, unreported) and also in Wyer v Hunt [2005] ACTSC 15 (11 March 2005, unreported). In the former case the defendant's insurer (coincidentally also NRMA) had admitted breach of duty of care but asserted contributory negligence of 50%, prior to the institution of proceedings. Subsequently, a defence was filed denying negligence and denying the assertions of fact in the Statement of Claim upon which the allegations of negligence by the defendant were based. I ordered that the offending paragraph of the defence be struck out. This permitted the defendant to maintain her allegation of contributory negligence by the plaintiff. I referred in my reasons to the decision of the Federal Court of Australia in Celestino v Celestino (Spender, Miles and von Doussa JJ, 16 August 1990, unreported) on appeal from this Court. Liability in that case had been admitted some five years before trial, and the admission was sought to be withdrawn on the sixth day of the hearing. The trial judge refused leave and the Court dismissed an appeal by the defendant. Their Honours noted that where leave is sought to withdraw an admission, a court will require an explanation for the making of the admission, which must be a sensible one based on evidence of a solid and substantial character, as well as an explanation for the later decision to seek to withdraw it. Their Honours also said that such an admission may be withdrawn only where no injustice will be occasioned to the other party. If the other party has relied on the admission in good faith to his or her detriment, the Court will not permit it to be withdrawn. In the case in question, the plaintiff's solicitors had relied on the admission and not pursued answers to interrogatories, or taken any steps to marshal evidence to prove the plaintiff's case on liability. The Court was entitled to assume that the plaintiff would suffer prejudice in the proof of his case if after an extended period an admission of liability were permitted to be withdrawn. It could be expected that memories of witnesses and the parties would have faded, and lines of inquiry would have become cold. Although prejudice in particular respects might not be apparent on the information before the Court, the probability of prejudice due to delay, although unidentified, could be assumed.

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