The Applicant provided a statement dated 14 December 2021 in which he claimed that he was not aware that EML (through its representatives) attended the mediation on 22 November 2011, on the basis that he believed DLA Piper were attending on behalf of the Respondent, not EML. This belief was said to have come from an email sent to his solicitors:
7. On 21 November 2011, my (then) legal representatives received an email from the law firm Henry Davis York (HDY). The email, which is set out in part at paragraph 7.21 of the Internal Review, states:
"...In addition to the attendees at the mediation held on 27 September 2011, Jenne Tzavaras and Ivan Medak, partners at DLA Piper, will also be in attendance tomorrow on behalf of NSWPF..."
8. The said email from HDY made no mention of EML attending the mediation. I was misled about whom I was actually negotiating with at the mediation, and thereby induced by misrepresentation. As such, I did not knowingly or consensually participate in mediation with EML.
The Applicant also stated that he believed the Deed could not be disclosed because it identified him as a complainant pursuant to the Police Act 1990 and a party to proceedings in the Administrative Decisions Tribunal in which non-disclosure orders had been made. He further stated that he would have objected to the disclosure of the Deed to EML and would not have knowingly participated in mediation with EML:
11. I would have objected to the disclosure of the Deed to EML because EML had no involvement in my confidential requests and complaints, nor did EML have any involvement in the proceedings in the ADT. I would not have knowingly or consensually participated in mediation with EML because EML had no right to know that sensitive information.
The Applicant claimed that he did not know that EML had any obligations or responsibilities to make payments to him as a result of the Deed.
The Applicant was cross examined on 1 April 2021. Under cross examination, the Applicant accepted that at no point during the mediation in November 2011 or after he executed the Deed did he personally, or through his legal representatives, tell the Respondent that he objected to the Deed being disclosed to EML. He was represented at the meditation on 22 November 2011 by his solicitor, Simon Mitchell, and Ian Neill SC.
The Applicant maintained under cross examination that, to his knowledge, both HDY and DLA Piper were representing the NSW Police Force at the mediation. The only basis for this belief was the email of 21 November 2011. He stated that Mr Mitchell had forwarded him the email which referred to EML as representing the Respondent, and that this was done in the interval between when it was sent on 21 November 2011 and the mediation commenced on 22 November 2011, however he did not produce the forwarded email after it was called for by the Respondent during cross examination. The Applicant denied having been informed by Mr Mitchell that DLA Piper were representing EML, at any time. He could not recall any specific conversations with his solicitor Mr Mitchell between the two mediations, but accepted that he had conversations with Mr Mitchell about the upcoming mediation and had provided him with instructions. He accepted that his legal representatives had explained the Deed and its effects to him.
Under cross-examination the Applicant claimed that he did not know that EML would be paying the workers compensation component of his settlement, stating "I thought it came from Consolidated Revenue". However, he understood that EML had been managing his workers compensation claims on behalf of the Respondent. He disagreed that various clauses of the Deed imposed obligations on EML towards him, or imposed obligations on him towards EML, including clauses 3.4(c) and clause 4, which required him to provide documents to EML. He claimed that he thought if he didn't complete the documents "I don't get interest, that's it". He claimed to have no recollection of the Authority to Receive and when shown the document (Exhibit R3 page 6) agreed that it was in respect of DLA Piper and the Respondent, but did not agree that the Authority to Receive was addressed to EML as well, claiming that had been added later, after he had signed the document. He also claimed to not know that the payer of his settlement sum with respect to his workers compensation claims was EML, despite those details included in the Notice of Judgment or Settlement and being named in the Statutory declaration completed by him. In response to being shown those details in the Notice of Judgment or Settlement, he stated "it has nothing to do with this Deed". He claimed that his solicitor hadn't told him that EML was paying the settlement, and said that he had "no recollection I've ever been told that EML was a party", had no recollection that EML was to be involved, and no recollection that his solicitor told him that EML needed to be involved, referring to the email of 21 November 2011 that DLA Piper was attending the mediation on behalf of the Respondent. He conceded, however that it was "possible" that DLA Piper was attending the mediation on behalf of the Respondent and EML.
The Applicant was also questioned on his conduct in failing to provide a copy of the second attachment to the email of 18 November 2019 from iCare to the Respondent. He claimed this was because he was "concerned with the confidentiality of the Deed, not the other docs", and he took a view that the other attached documents were not relevant to the privacy complaint. He had not included the other attached documents to the email in his application to the Tribunal in February 2020 and had not provided them to the Respondent when requested by them on at least three occasions because "I formed the view that it wasn't relevant". When shown the documents produced via summons to iCare on 2 March 2021 he agreed the Authority to Receive in those records was the same as the document contained in the second pdf attachment to the iCare email of 18 November 2019 titled "other related settlement documents". He did not agree that he knew in November 2019 that the Authority to Receive was relevant and would undermine his case, and did not agree that it provided for the disclosure of the Deed to EML.
[2]
The Respondent's evidence
The Respondent relied on the affidavit evidence of Martin Watts sworn 5 March 2021 and Greg Waddington affirmed 5 March 2021. Martin Watts was employed by HDY in 2011 and was the solicitor who had the day to day conduct of claims made against the NSW Police Force by the Applicant prior to 2011, under the supervision of a partner at HDY. He attended the mediation on 27 September 2011 and a meeting on 10 October 2011 between representatives for the NSW Police Force and EML, including EML's solicitors DLA Piper, to discuss the possibility of settling the Applicant's workers compensation claims alongside his other matter against the NSW Police Force. He had various communications with the Applicant's solicitor, Mr Mitchell, in relation to the settlement discussions and had specific conversations with him about the inclusion of EML and its legal representatives in those discussions, which were filenoted and annexed to his affidavit evidence. He also gave evidence that he specifically advised Mr Mitchell that HDY were not representing or advising EML.
Mr Watts explained an email he had sent on 21 November 2011 regarding arrangements for the further mediation with the Applicant, in which he had referred to Ms Tzavaras and Mr Medak of DLA Piper as attending "on behalf of NSWPF". He had not intended to convey that DLA Piper were instructed by the Respondent, but "those words were intended to indicate generally that Ms Tzavaras and Mr Medak would be representing NSWPF's interests in respect of the applicant's workers compensation claims and would be in the NSWPF's "camp" in respect of the mediation", which was consistent with the previous discussions he had with Mr Mitchell.
Mr Watts also gave evidence that it was the applicant's request in 2011 that his workers compensation claims be included in any holistic settlement, and that EML's reluctance to be involved had caused the delay between the first mediation on 27 September 2011 and the second mediation on 22 November 2011. Mr Watts had discussed this issue with Mr Mitchell on several occasions and "he conveyed to me that he had explained this to [BVV], but also explained that his client was not interested in the logistics, and was only interested in ensuring that the workers compensation claim was included in the settlement".
Mr Waddington is employed by EML and has been since 2010. He stated that EML was contacted on 27 September 2011 in relation to an ongoing mediation between the Applicant and Respondent, regarding a claim for whole person impairment which it was managing for the Respondent as its insurer. In November 2011 EML instructed DLA Piper to attend the mediation between the Applicant and Respondent with respect to the applicant's open workers compensation claims. On 24 November 2011 EML received an email from DLA Piper confirming resolution of the matter at mediation, attaching documents relevant to the resolution of the claim, including the Deed, an Authority to Receive addressed to "DLA Piper as solicitors for NSW Police Force and Employers Mutual Limited", and a Notice of Judgment or Settlement which had been completed and signed by the Applicant, in which EML is described as the compensation payer. Copies of those documents were annexed to his affidavit.
EML authorised payments of the settlement sums pursuant to the terms of the Deed and the Authority to Receive to the Applicant on 28 November 2011 and 14 December 2011. Mr Waddington explained that it was common for EML to obtain the Authority to Receive for the purpose of determining where settlement monies are to be paid and it was required to provide notice to Medicare of the settlement pursuant to s 23 of the Health and Other Services (Compensation) Act 1985 (Cth). Mr Waddington stated that EML could be described as representing the interests of the Respondent with respect to its employees' workers compensation claims. In relation to EML's possession of the Deed, Mr Waddington stated that "EML could not be comfortable closing settled claims, or making payments for settlement of any claims, without evidence of a complete and binding agreement to that effect", and that it may be required to possess and disclose settlement documents, including fully signed settlement documentation, pursuant to its obligations under the Social Security Act 1991 (Cth).
The Respondent's witnesses were not cross-examined by the Applicant at hearing.
[3]
Section 18(1)(a)
For the exception at s 18(1)(a) of the PPIP Act to apply, the Tribunal needs to find that the disclosure was "directly related" to the purpose for which the information was collected, and also find that the Respondent had no reason to believe that BVV would object to the disclosure.
The Applicant submitted that the disclosure of the Deed to EML was not "directly related" to the purposes for which the "non-workers compensation related information" contained in the Deed was collected. He identified the "non-workers compensation related information" as his confidential requests to the Respondent, confidential complaints including complaints made otherwise than under Part 8A of the Police Act 1990 to the Respondent, and his proceedings in the Administrative Decisions Tribunal against the Respondent.
This submission is confusing because by distinguishing the "non-workers compensation related information" from the "workers compensation related information" contained in the Deed, the Applicant implies that the disclosure of the Deed to EML would be directly related to the collection of the "workers compensation related information" by the Respondent, just not the collection of "non-workers compensation related information".
The evidence of EML's management of the Respondent's workers compensation claims made by the Applicant is undisputed, irrespective of the Applicant's knowledge. On the basis of the Respondent's evidence of the management of the Applicant's claims and complaints, I find that the Applicant's personal information contained in the Deed, both "workers compensation related information" and "non-workers compensation related" was collected by the Respondent for the purpose of managing those claims and complaints. This information was reproduced in the Deed to express the detailed terms and conditions upon which the holistic settlement of the Applicant's claims and complaints against the Respondent was to be achieved. Disclosure of the Deed to EML in order to facilitate the payment of settlement sums pursuant to the Deed is directly related to the collection by the Respondent of the information contained in the Deed.
The second part of the requirement of the exception to s 18(1)(a) is that the Respondent had no reason to believe that the applicant would object to the disclosure of the Deed to EML. The respondent relied on Mr Watts' evidence, who deposed to four separate conversations between himself and Mr Simon Mitchell, the solicitor retained by the applicant, in which he explained to Mr Mitchell or made reference to the recent involvement and role of the Respondent's workers compensation insurer in future settlement discussions. Specifically, it was explained to Mr Mitchell that EML had now been brought into the settlement discussions, as a direct result of the Applicant's request to include his workers compensation claims in any settlement reached with the respondent, and that EML had separate legal representation.
The Applicant submitted various reasons why the Respondent had reason to believe he would object to the disclosure to EML. These included the contents of the Deed, which are addressed below, and the following:
1. The email from HDY to the applicant's (then) legal representatives dated 21 November 2011 made no mention of EML attending the mediation on 22 November 2011;
2. The applicant did not knowingly or consensually participate in mediation with EML on 22 November 2011;
3. Statutory prohibitions against disclosure, including Regulation 75 of the Police Regulation 2008, s 169A of the Police Act 1990, non-disclosure orders made under section 75(2)(b) of the ADT Act; and
4. EML's lack of involvement in the non-workers compensation related claims, complaints and proceedings in the ADT.
The Respondent submitted, and I accept, that consideration of the Applicant's assertions that the Respondent contravened prohibitions against disclosure contained in legislation outside the PPIP Act is outside the scope of the Tribunal's jurisdiction in these proceedings.
The Applicant submitted that he was unaware that the Respondent would disclose the Deed to EML, on the basis of the reasons above at 44 and the fact that he was unaware that DLA Piper was in attendance at the mediation on behalf of EML, not on behalf of the Respondent. The Applicant placed some reliance on the contents of the Deed itself to support his submission that the Respondent would have reason to believe he would object to the Deed's disclosure. EML is not named as a party to the Deed and the confidentiality provision at Clause 15 of the Deed does not make allowance for disclosure to the parties' insurers specifically, rather referring to "their legal and financial advisers on receiving an undertaking from that person to keep the terms of the document confidential, for the purpose of enforcement of the document or as may be required by law". The Applicant submitted that "the parties contemplated a very limited form of communication with EML in the form of the letter in Schedule 8 to the Deed" and relied on Schedule 4 to the Deed, which contained a letter to the applicant to the effect that "NSWPF has taken all practical steps to ensure the applicant's files are never again improperly disclosed to, or accessed by, third parties".
The Applicant was questioned in detail under cross examination in relation to his knowledge of EML's involvement in settlement discussions in 2011, and his knowledge of the Deed's disclosure to EML, or the likelihood of the Deed being disclosed to EML in the course of finalising the settlement then achieved. He was taken to the relevant provisions of the Deed and was questioned as to his understanding of their implications. Specifically, he was taken to the following parts of the Deed:
1. The Condition precedent at cl 1.4 (at p47) which stated: "It is a condition precedent to the operation of this document that [BVV] execute a letter to Employers Mutual Limited and NSW Police Force formally requesting that claim number … be finalised and closed";
2. Clauses 2 and 3 (at p48, 49) which provide for two separate settlement payments, with the workers compensation settlement sum being separate to the other settlement sums;
3. Clause 3.4 (at p50), which required that "as a condition of this settlement and in consideration for the sums of money paid by NSWPF in clause 3.1 undertakes to…(c) execute a letter to EML And NSWPF…";
4. Clause 3.5 (at p50), which provided that "Each party shall take all steps, execute all documents and do everything reasonably required by the other party to give effect to the transaction contemplated by this document…";
5. Clause 4 (at p50) which provided for no interest to accumulate on settlement monies unpaid by EML until it received certain documents;
6. Schedule 9, which referred to admissions made by the Applicant and contained the following statement: "The Employee acknowledges that the employer and its workers compensation insurer consents to the Deed of Release herein by way of compromise and in reliance upon the admissions the Employee has made."
The version of Schedule 9 which the Applicant was taken to at hearing did not contain his signature. The signed version, which was annexed to the counterpart of the Deed of Release between the parties executed by the applicant on 22 November 2011, was provided to the Tribunal and the Applicant by email shortly after the conclusion of the hearing on 23 April 2021, as requested by the Tribunal.
The Applicant was also shown the "Authority to Receive" and the "Notice of Judgment or Settlement" which were documents signed by him to give effect to the settlement, as required by the Deed. The Applicant claimed that the "Authority to Receive" he signed had been tampered with, to the extent that "and Employers Mutual Limited" had been added at a later time. In support of this evidence he referred to the email his solicitors received on 21 November 2011 which referred to the DLA Piper solicitors "attending on behalf of NSWPF", and claimed that the records he ostensibly held in storage would demonstrate the alteration. As discussed above at [31], no such records were produced.
On their face, the "Authority to Receive" and "Notice of Judgment or Settlement" each identify EML, either impliedly or expressly, as an entity responsible for paying the applicant's settlement sum. The "Authority to Receive" also identifies DLA Piper as the solicitors representing EML. Those documents were attached to the email containing the Deed which the Applicant received from iCare on 18 November 2019 (referred to at paragraph 8 above) which initiated the Applicant's PPIP Act complaint, in a second pdf described as "other related settlement documents". As discussed above at [33], the Applicant repeatedly declined and ignored the Respondent's requests to provide a copy of that second pdf attachment and under cross examination stated that this was because he didn't consider them relevant. The Respondent ultimately obtained a copy via summons issued to iCare, which was also objected to by the Applicant.
The Applicant's evidence was unreliable and when asked to produce the records he relied on, none were forthcoming. Under cross-examination the Applicant was repeatedly evasive and deflective in his responses to questions. He avoided answering questions which did not suit his interests and refused to make concessions when shown the documents and Deed clauses contradicting his evidence, making up alternatives to suit his narrative. In my view it is clear from his evidence that he deliberately did not provide the related settlement documents to the Respondent when they were repeatedly requested because they undermined his complaint in these proceedings, and when the documents were obtained via summons he made artificial complaints of procedural unfairness and sought to adjourn or stay the proceedings to prevent their inclusion in the evidence before the Tribunal, for the same reasons.
The Respondent's evidence, which I accept, demonstrates that HDY spoke at length with the Applicant's solicitor, Mr Mitchell, in relation to the scope of the settlement, the attendees at the mediation on 22 November 2011, and the obligations set out in the Deed, and that he was specifically aware of EML's role in the settlement negotiations, finalisation of the Deed and its related documents, and payment of the settlement monies to the Applicant. As far as the Respondent was aware, the Applicant was kept apprised of the steps the Respondent had taken to involve EML in the proposed future settlement discussions with the Applicant, by Mr Mitchell. The Applicant did not provide any evidence or submissions which would dispute his solicitor's role as his representative in the settlement negotiations or their culmination in the Deed and payment of settlement monies. In those circumstances and considering the references to EML contained in the Deed as outlined above at [48] I find it difficult to understand how the Respondent could possibly have had reason to believe that the Applicant would object to the disclosure of the Deed to EML.
I therefore find that the information disclosed to EML falls within the exceptions as found in s 18(1)(a) of the PPIP Act.
[4]
Conclusion
Having found that the Respondent did not contravene s 18(1) of the PPIP Act by disclosing the Deed to EML, it follows that there was thereby no unauthorised access, use, modification, disclosure or any other misuse of the Applicant's personal information pursuant to s 12(c) of the PPIP Act.
The Respondent also relied on the exception to IPP 11 at s 18(1)(b) of the PPIP Act, and relied on s 25 of the PPIP Act as providing an alternative basis for submitting that its non-compliance with s 18(1) was permitted, or necessarily implied or reasonably contemplated by the workers compensation and/or self-insurance statutory regime. Having found that s 18(1)(a) of the PPIP Act applies to the disclosure of the Deed by the Respondent to EML, there is no need for the Tribunal to consider the alternative grounds relied on in the Respondent's internal review decision further.
Having found that the Respondent did not contravene ss 12(c) or 18(1) of the PPIP Act, the correct and preferable decision is for the Tribunal to determine pursuant to s 55(2) of the PPIP Act that no action should be taken in this matter.
[5]
Orders
1. Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken in this matter.
[6]
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: 20 August 2021
Parties
Applicant/Plaintiff:
BVV
Respondent/Defendant:
Commissioner of Police
Legislation Cited (7)
Police Regulation 2008(NSW)
Administrative Decisions Tribunal Act 1997(NSW)
Health and Other Services (Compensation) Act 1985(Cth)
The Applicant in these proceedings is referred to as BVV. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) ('CAT Act') information which may tend to identify the Applicant has been withheld in these reasons for decision.
The Applicant was an employee of the Respondent from 21 December 2001 until 10 March 2011 when he was medically discharged. In or around mid-2011 the Respondent instructed the law firm of Henry Davis York ('HDY') to engage the Applicant in holistic settlement discussions regarding a number of ongoing proceedings, complaints and requests that had been brought or made by the Applicant against the Respondent.
A mediation took place on 27 September 2011, attended by the Applicant and representatives of the Respondent, and their legal representatives. The Respondent was represented at that mediation by HDY.
As explained by the Respondent, and undisputed by the Applicant, the Applicant's workers compensation claims against the Respondent were being managed by Employers Mutual Limited ('EML') on behalf of the Respondent in the following manner:
EML provides claims management services as a Claims Manager on behalf of icare and the NSW Self Insurance Corporation ("SICorp") for claims covered by the Treasury Managed Fund ("TMF"). The TMF is managed by SICorp (to which icare provides services) and includes coverage for workers compensation claims against member agencies, of which the respondent is one.
The TMF is a self-insurance scheme created by the NSW government in respect of NSW government agency risk. The coverage provided by TMF extends to workers compensation claims against member agencies (including the respondent). Pursuant to the TMF arrangements, it is EML (on behalf of SICorp) that is required to pay any workers compensation claim made against an agency, as agreed between the claimant and EML or as otherwise determined. EML provided claims management services under the TMF on behalf of SICorp in relation to multiple workers compensation claims made by the applicant against the respondent, including claim numbers [xxx] ("the relevant claims"). In April 2011, EML received a claim for whole person impairment for the applicant, relating to claim number [xxx] ("the permanent impairment claim").
On 27 September 2011, following the initial mediation, the Respondent contacted EML regarding the permanent impairment claim with a view to including that claim (and accordingly EML) in the ongoing settlement discussions with the applicant. EML instructed DLA Piper to act on its behalf. Discussions then ensued as between the Respondent and HDY on the one hand, and EML and DLA Piper on the other.
On 22 November 2011 a second mediation was conducted. The mediation was convened in an effort to resolve all of the Applicant's complaints and claims against the Respondent in a holistic manner, including the applicant's workers compensation claims regarding which EML administered coverage (including the relevant claims and the permanent impairment claim), as well as other matters arising between the applicant and respondent, regarding which HDY was attending on behalf of the respondent. This mediation was attended by the applicant and his legal representatives, the Respondent and his legal representatives, including his solicitors, HDY, and EML and its solicitors, DLA Piper. The second mediation resulted in a settlement being reached in respect of all matters, including the applicant's workers compensation claims. A Deed of Release was entered into by the Applicant and Respondent on 22 November 2011 ('the Deed'), which was the end result of the second mediation, and the mechanism by which each of the ongoing proceedings, claims, complaints and workers compensation claims that the Applicant had brought or made against the Respondent were settled.
Issues at the hearing
The hearing was conducted via telephone over two days, on 1 April 2021 and 23 April 2021. At the commencement of the hearing on 1 April 2021 the Applicant complained that he had been denied procedural fairness in relation to a number of issues that arose during the case management process of this matter, and requested an adjournment of the hearing. He claimed that he had not been provided with access to material produced under summons on 2 March 2021, and that he had not been called by the Tribunal's Registrar when the summons was being considered. He claimed that he needed to review the summonsed records and obtain legal advice to be able to respond to the Respondent's evidence and submissions at hearing.
The Respondent noted that the summonsed records were otherwise in the Applicant's possession, as they were the records upon which the Applicant alleged the Respondent had contravened ss 12(c) and 18 of the PPIP Act. The Respondent also noted that the orders granted by the Tribunal's Registrar on 2 March 2021 were orders for general access, that the procedural guidelines had been provided to the Applicant on 26 February 2021, and that there was no basis upon which the Applicant would have properly expected the Registrar to telephone him for the Return of Summons in circumstances where there was no application or objection made by the Applicant at the time.
Although not clearly articulated, the Applicant's concerns regarding the summonsed material and the basis for his desire to obtain an adjournment at the commencement of the hearing on 1 April 2021 were expressed by him as an allegation that the documents the Respondent was relying on which had been obtained via the summons had been altered from the originals which he retained in personal storage, but which he had not obtained or reviewed prior to the hearing. He therefore wished to obtain his records in personal storage and compare them to the material produced under summons issued to iCare, to confirm whether or not the documents the Respondent was relying on had been altered. He also wished to obtain legal advice, although he did not provide any adequate explanation as to why such advice had not been obtained earlier in the proceedings prior to the substantive hearing date, in circumstances where there had been a long procedural history.
I declined to adjourn the hearing at the commencement of the proceedings for the following reasons, bearing in mind the Tribunal's guiding principles in relation to practice and procedure pursuant to s 36 of the Civil and Administrative Tribunal Act 2013 ('CAT Act'). First, the summons issued to iCare by the Respondent sought the very records upon which the Applicant had made his PPIP Act complaint, so the Applicant had those records since 18 November 2019 at the latest. Second, the Applicant could have accessed the summonsed records through the Tribunal Registry from 2 March 2021 and could continue to do so. Third, the Applicant had ample opportunity to obtain legal advice on issues which had not materially changed since the commencement of proceedings by him in February 2020. Fourth, the allegation that the documents produced under summons to a third party had been altered from the original was improbable in all the circumstances. Fifth, if the Applicant retained documents in physical storage which were relevant to his claim in these proceedings, he had provided no reasonable explanation why these had not been accessed and obtained in the period between February 2020 when he commenced the proceedings, and the hearing date, or why he had not obtained the documents via other means, such as through the solicitors who represented him in 2011.
The Respondent provided a copy of the Deed to EML, through EML's lawyers DLA Piper, on two occasions. The first was on 23 November 2011, when a copy of the applicant's counterpart of the Deed was emailed by HDY to DLA Piper. The second occasion was on 25 November 2011, when a hardcopy of both the applicant's counterpart and respondent's counterpart of the Deed was sent by HDY to DLA Piper. EML paid the settlement monies owing by way of compensation and damages in respect of the workers compensation claims, pursuant to clause 3.1 of the Deed, on 28 November 2011 and 14 December 2011.
On 18 November 2019, the applicant received an email from Insurance and Care NSW ('iCare') which attached two pdf files. The first pdf was a copy of the Deed. The second pdf was described as "other related settlement documents". The Applicant claims that this was the first indication he had that the Deed was provided to anyone other than himself, the Respondent, and each of their legal representatives.
The Applicant made a complaint pursuant to the Privacy and Personal Information Protection Act 1998 (NSW) ('PPIP Act') that the Respondent contravened sections 12(c) and 18(1) of the PPIP Act in connection with the disclosure by the Respondent of the Deed to EML. On 10 January 2020, the Applicant sought internal review of his complaint in the following terms:
This is a privacy complaint pursuant to the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).
Background
On 18 November 2019, Insurance & Care NSW sent an email to me which attached a document entitled "Deed of Release" signed by me on [XXX] (Deed).
The contents of the Deed is strictly confidential and is not to be disclosed by me or NSW Police Force (NSWPF), other than to our legal and financial advisers on receiving an undertaking from that person to keep the terms of the Deed confidential or as may be required by law.
Security of personal information
NSWPF failed to ensure that the Deed is protected, by taking such security safeguards as are reasonable in the circumstances, against unauthorised access, use of disclosure, and against all other misuse.
NSWPF contravened section 12(c) of the PPIP Act.
Disclosure of personal information
NSWPF disclosed the Deed to another person or body, without my authority, and in contravention of the following:
(a) Clause 15 of the Deed in respect to the confidentiality of the contents of the Deed;
(b) Regulation 75 of the Police Regulation 2008 (NSW) in respect to my confidential requests and complaints made otherwise than under Part 8A of the Police Act 1990 (NSW);
(c) Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 (NSW) in respect to my identity as the applicant in proceeding numbers [XXX] and [XXX].
The disclosure of the Deed was in contravention of section 18 of the PPIP Act.
Request for internal review
Please conduct an internal review in accordance with section 53 of the PPIP Act.
On 14 January 2020 the Respondent declined the Applicant's request for internal review. The Applicant then commenced these proceedings for review by the Tribunal pursuant to s 55 of the PPIP Act. On 17 July 2020 the Tribunal remitted the matter to the Respondent to conduct an internal review: BVV v Commissioner of Police [2020] NSWCATAD 182. On 15 September 2020 the Respondent issued its internal review decision, finding that there had been no contravention of the PPIP Act on the basis of ss 18(1)(a), 18(1)(b) and 25 of the PPIP Act.
The Respondent does not dispute that it disclosed the Deed, but denies that this disclosure constituted a contravention of either of sections 12(c) or 18(1) of the PPIP Act. This is the complaint subject to review in these proceedings.
The Applicant declined the opportunity to address the Tribunal with oral opening submissions and made a further application for adjournment after the Respondent made its opening submissions, repeating the basis for his previous adjournment application and adding that he did not wish to be cross-examined, and that he had made a complaint which he wanted resolved first. I declined his application for adjournment for the same reasons expressed above at 23, because there was no reason provided why a complaint the Applicant had ostensibly made (of which I had not been provided) should affect the continuation of the proceedings, because the Respondent was entitled to cross-examine the Applicant on the evidence he had provided the Tribunal, and the Applicant had not given a reasonable basis for why that cross-examination should not occur at that time.
At the conclusion of the Respondent's cross examination of the Applicant it was apparent that a further day of hearing was required to conclude the matter. The Tribunal listed the matter for 23 April 2021, taking into account the Applicant's availability and allowing him sufficient time to access the records he claimed to hold in storage in the interim.
On 23 April 2021 the hearing resumed with an application by the Applicant for my recusal, which is addressed in BVV v Commissioner of Police, NSW Police Force [2021] NSWCATAD 244. Once I had informed the parties of my decision to not recuse myself and to continue to hear the matter, the Applicant requested that the matter be adjourned and declared that "the matter should not proceed". He then hung up the telephone. I adjourned the proceedings for a short period to allow the Respondent to obtain instructions and the Tribunal Registry wrote to the parties to inform them that the hearing would be resuming at 11.20am. At the resumption of the hearing at 11.20am the Applicant did not appear. The Tribunal telephoned him from the hearing room but there was no answer. Bearing in mind the comments of the Court of Appeal in similar circumstances in Collier v Attorney General for New South Wales [2021] NSWCA 16 at [18] and [19], I also considered the facts that the Applicant had repeatedly expressed his intention not to participate in the hearing, had expressed his desire to have the proceedings adjourned or stayed, and was aware that the resumption of the hearing on 23 April 2021 was to allow him to test the Respondent's evidence and make oral submissions, which he had declined to do on 1 April 2021. Having sought to re-establish contact with the Applicant and being unsuccessful in doing so, I continued the hearing on an ex-parte basis.