1 Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 proceeding G837/2004 is summarily dismissed.

2 No order as to costs.

(given orally at the hearing and then subsequently revised)

1 The respondent has applied for the summary dismissal of this proceeding, which has been brought under the Information Privacy Act 2000 ("the Act"). The application involves important questions about some of the exemptions contained in the Act, including those in relation to tribunals and publicly available information.

2 The following facts are common ground between the parties.

3 The applicant is a medical practitioner. In 2003 the Medical Practitioners Board of Victoria ("the Board") commenced a formal hearing under section 46 of the Medical Practice Act 1994 into the conduct of the applicant. The Victorian Government Solicitor's Office ("the VGSO" or "the VGS") assisted the Board in the conduct of the hearing.

4 The formal hearing commenced on 22 September 2003. On the following day the hearing was adjourned without setting a date for the resumption of the hearing.

5 On 11 February 2004 the VGS sent a letter to the applicant by facsimile transmission marked "Private and Confidential" and in the following terms:

1

I refer to the above matter and advise that the Board is proposing to relist the hearing between 18 February and 16 April 2004.

2 If there are any dates during this period in respect of which you or your counsel are unable to attend, please provide me with details of those dates and of the reason(s) that they are unsuitable no later than Monday 16 February 2004.

6 The applicant was and is concerned that by sending this letter by facsimile transmission to his surgery the information in the letter was conveyed to his staff and to other persons having access to the facsimile machine in his surgery; and thereby his privacy was breached. The applicant says that there may have been other similar letters sent by facsimile transmission to his surgery, but there is no evidence that would enable such a finding to be made. A letter was sent by the VGSO to the applicant on 28 June 2004. However, it is now common ground that this letter was served by a process server and was not sent by facsimile transmission.

7 On 5 July 2004 the applicant lodged a complaint with the Privacy Commissioner pursuant to the Act. This complaint alleged that the VGSO was "assisting" the Board in an enquiry into the applicant's practice and that the VGSO had sent documents marked "Private and Confidential" to the fax machine at the applicant's workplace, and had done so without reason and without warning such that the effect was to disclose the applicant's private affairs to his staff without his consent. The applicant asked the Privacy Commissioner to resolve the complaint by requiring the VGSO to "admit, desist and apologise".

8 By letter dated 27 August 2004 to the VGSO and (I take it) the applicant, the Privacy Commissioner stated that he had decided to decline to entertain the complaint, pursuant to section 29(1)(a) of the Act, because he found that there was no interference with the applicant's privacy. The Commissioner gave detailed reasons for this decision, but it is unnecessary to elaborate on these conclusions in the present context.

9 Following the decision of the Privacy Commissioner to decline to entertain the complaint, the applicant exercised his right under the Act to require the complaint to be referred to the tribunal: see section 39 of the Act which sets out the jurisdiction of the tribunal.

10 The proceeding has been subject to a number of directions hearings which have been in part directed at requiring the applicant to provide particulars of the complaint. In response to directions, various particulars have been provided, which the respondent contends are unsatisfactory. In my view it would have been better to have proceeded straight to the hearing of the complaint rather than to have engaged in a series of interlocutory hearings; but that is now water under the bridge which, although relevant to other similar proceedings, is not determinative in the present case.

11 The application before the tribunal today is an application by the respondent, the VGSO, for an order that the tribunal summarily dismiss the proceeding pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998. That section permits the tribunal to make an order summarily dismissing a proceeding that in its opinion is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. Essentially the argument put by the VGSO was that the current proceeding is misconceived as it is doomed to fail. In exercising the power pursuant to section 75 the tribunal is to be guided by principles developed in cases such as State Electricity Commission v Rabel [1998] 1 VR 102; hence if there are any disputed facts then it is appropriate that those disputed facts be assumed in favour of the applicant.

12 The tribunal does not have before it any affidavit outlining the facts. Mr Perkins of counsel, who appeared for the applicant, submitted that this was a flaw which ought to result in the application to dismiss itself being dismissed. I think that it is generally desirable that applications of this nature be supported by an affidavit. However, it is not essential that an affidavit be provided. It may be, as I think is the case here, that the relevant facts upon which the application is made are common ground or are beyond dispute; in which case an affidavit will not be essential. The relevant facts here are, firstly, that a letter was sent by the VGSO to the applicant on 11 February 2004 in the form I have described by facsimile transmission and, secondly, that at the time that letter was sent, the VGSO was assisting the Board in relation to a hearing pursuant to the Medical Practice Act 1994 in respect of the conduct of the applicant. Both are common ground.

13 The submission advanced by the VGSO hinted that the complaint that was before the Commissioner was a complaint about the letter dated 28 June 2004 and that the tribunal did not have before it a complaint about the letter sent by facsimile transmission on 11 February 2004. If this was correct it was suggested the tribunal must dismiss the proceeding because the letter in question was not sent by facsimile but was served by a process server. It may be that the Privacy Commissioner was under the impression that the letter which had been sent by facsimile was the letter dated 28 June 2004. However, I think it is the complaint itself that must be addressed to identify what was the subject of the complaint rather than the response of the Commissioner. Adopting this approach, and using an element of common sense, I conclude that the tribunal has jurisdiction to deal with the matter on the basis that what has effectively been referred to it is a complaint that the letter dated 11 February 2004 was sent by facsimile transmission.

14 The application to summarily dismiss the proceeding was based upon a number of grounds. First, it was said that the relevant letter contained information that was exempt from the Act because it had been disclosed in relation to a quasi-judicial function of the Board by the VGSO when acting as an office of the Board (section 10(b) of the Act). Second, it was submitted that the exemption in section 11 (Publicly available information) applied. Third, it was said that the exemption in section 13 (Law enforcement) applied. Fourth, it was submitted that if the Act did apply, information privacy principles ("IPPS") had not been breached in the circumstances of the case. Fifth, it was said that the applicant had failed to particularise his claims despite having ample opportunity to do so. It is convenient to deal with these submissions in reverse order.

15 I should indicate at once that I would not summarily dismiss the claim on the basis that the applicant had failed to particularise the claims. Frankly, the quickest and best way to particularise straight forward claims of this sort is to orally ask the applicant, or the applicant's representative, what is the gist of the complaint. Matters of this type should be dealt with in an efficient, practical and summary way; they do not require undue legal process. Certainly I understand what the complaint is all about and I have only come to the case today. I would have thought that the gist of the complaint was plain and obvious.

16 The question of whether the information privacy principles of the Act have been breached cannot be determined on a summary basis. The principle that is relevant is 2.1(a), which is set out in Schedule 1 of the Act. This provides:

2.1 An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the purpose of collection unless -

(i) the secondary purpose is related to the primary purpose of collection and, if the personal information is sensitive information, directly related to the primary purpose of collection;

(ii) the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose.

Whether this principle has been breached in this case turns on whether the transmission of the February letter by facsimile was reasonable in all the circumstances. The answer to that question is likely to depend upon evidence as to what had transpired between the applicant and the VGSO as to preferred or appropriate methods of communication. It is not a matter that can be decided at this point.

17 Section 13 of the Act relevantly provides that it is not necessary for a "law enforcement agency" to comply with certain information privacy principles "if it believes on reasonable grounds" that non compliance is necessary for various purposes. It may be that the Board is a law enforcement agency by reason of paragraph (g)(i) of the definition of "law enforcement agency", which is set out in section 3 of the Act. It may also be that the VGSO ought be regarded as a law enforcement agency where it is acting as an agent of a law enforcement agency. However, even on these assumptions, it would be necessary for evidence to be before the tribunal as to the belief of the agency on reasonable grounds before section 13 became relevant. There is no such evidence before the tribunal at this stage, hence there can be no basis for summarily dismissing the proceeding on the basis of section 13.

(1)

Nothing in this Act or in any IPP applies to a document containing personal information, or to the personal information contained in a document, that is -

(a)

a generally available publication; or

(b)

kept in a library, art gallery or museum for the purposes of reference, study or exhibition; or

(c)

a public record under the control of the Keeper of Public Records that is available for public inspection in accordance with the Public Records Act 1973; or

(d)

archives within the meaning of the Copyright Act 1968 of the Commonwealth.

19 Mr. Smithers, who appeared for the VGSO, argued that the Act did not apply in this case because the information contained in the letter of 11 February 2004 was information which was publicly available. The essential information in the letter was that the Board was to hear a complaint by a person against the applicant. I will assume that that information was publicly available, for example by being available on the web site of the Board or as a result of the publication of the Law List in The Age newspaper. However, even if this is so, it does not seem to me that section 11 is applicable. Section 11 is concerned with documents that are generally available or publicly available. It is not concerned with information that is publicly available. In this respect the heading to section 11 is misleading. A more accurate heading would be: "Information in a document that is publicly available".

20 I was referred to the explanatory memorandum to the Act. This states in respect of section 11(1) of the Act:

Section 11 grants an exemption in respect of specified types of information that are regarded as publicly available information including public registers. With limited exceptions the Act seeks only to regulate personal information that is not publicly available.

Whilst this might be an explanation that generally explains the meaning and content of section 11 it is imprecise. In any event, it is the words of the statute that must be interpreted and applied. There can be no doubt that the section is referring to documents that are publicly available rather than information that is publicly available. Further, it is difficult to see how the section could operate in a practical sense if it turned on whether information was publicly available, as this would involve an exercise that would always be controversial and difficult.

21 Section 10 of the Act was strongly relied upon by Mr. Smithers. It provides:

Nothing in this Act or in any IPP applies in respect of the collection, holding, management, use, disclosure or transfer of personal information-

(a)

in relation to its or his or her judicial or quasi-judicial functions, by-

(i)

a court or tribunal; or

(ii)

the holder of a judicial or quasi-judicial office or other office pertaining to a court or tribunal in his or her capacity as the holder of that office; or

(b)

in relation to those matters which relate to the judicial or quasi-judicial functions of the court or tribunal, by-

(i)

a registry or other office of a court or tribunal; or

(ii)

the staff of such a registry or other office in their capacity as members of that staff.

Mr Smithers relied upon both paragraphs b(i) and (ii).

22 The submission turns on two questions. The first question is whether the letter dated 11 February 2004 disclosed personal information in relation to matters "which relate to" the quasi-judicial functions of the Board. The second question is whether the VGSO is to be regarded as "a registry or other office" of the Board.

23 It is plain that a hearing conducted by the Board under section 46 of the Medical Practice Act 1994 is a quasi-judicial function. If authority is needed for that proposition, which I doubt, it is provided by the decision of the Court of Appeal in Medical Practitioners Board of Victoria v Mann [2000] VSCA 89 at [28]. The real question is whether the letter disclosed personal information which related to a medical board hearing. The expression "which relate to" requires a connection; but it is an expression which is satisfied if the connection is not remote or tenuous. It is plain that the purpose of the letter of 11 February 2004 was to organise a further hearing by the Board into the complaint made against the applicant. The personal information which was disclosed in that letter amounted to the fact that there was to be a hearing of a complaint by a specified person against the applicant. I find that, not only does that letter relate to the quasi-judicial functions of the Board, but also that any contention to the contrary is not tenable. I also find that the Board is a tribunal for the purpose of section 10 of the Act. In this respect I note that the word "tribunal' is used with a small "t"; this is to be contrast with the use in the Act of the word "Tribunal" with a capital "T", where the expression is a reference to the Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998. Where the word "tribunal" is used with a small "t" it is a common noun; and would plainly and obviously embrace a quasi-judicial body such as the Board.

24 The second question is whether the VGSO was "a registry or other office" of the Board. In my opinion the words "other office" are to be interpreted in the context of the reference to "a registry". What is intended to be embraced by the reference to "other office" is a body which fulfils a similar responsibility to a registry, whether permanently or temporarily, whether ad hoc or not. In this respect the interpretation of the word "officer", where used in the Freedom of Information Act 1980, may provide some guidance, not withstanding the differences that arise by reason of the particular definition used in that Act. In that context it has been held that the word officer extends to consultants and legal advisors: see for example Re Thwaites v Department of Human Services (1998) 14 VAR 347. In any event, completely disregarding any reliance on the Freedom of Information Act cases, I find that the VGSO is embraced by the expression "other office" in section 10(b) of the Act, when it is performing the role of assisting the Board in the conduct of a hearing. Such a role will usually involve, and did involve in this case, organising the date and place of the hearing, liaising with persons who were required to be given notice of the hearing, as well as tasks such as instructing counsel to appear to assist the Board in the conduct of the hearing. I find that the letter dated 11 February 2004 was sent by the VGSO when acting as an office of the tribunal. I cannot see how it could be suggested to the contrary. That being so I am satisfied that the proceeding is doomed to failure. The order I propose to make is an order summarily dismissing the proceeding.

[1] The name of the complainant was stated in the letter, but has been anonomysed for the purposes of this decision.