This is an application concerning the scope of the hearing of the administrative review in respect of the conduct of the respondent agency under the Privacy and Personal Information Protection Act 1998 (The PPIP Act).
[2]
Background
The applicant made an internal review request under Part 5 of the PPIP Act. The respondent did not deal with that matter as an Internal Review under Part 5 until such time as the applicant had applied for Administrative Review under section 53 (6) of the PPIP Act. Section 53 (6) operates in conjunction with section 55 which provides for administrative review by the Tribunal. The sections relevantly provide:
53 Internal review by public sector agencies
(1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.
…
(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned.
55 Administrative review of conduct by Tribunal
(1) If a person who has made an application for internal review under section 53 is not satisfied with:
(a) the findings of the review, or
(b) the action taken by the public sector agency in relation to the application,
the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.
As the Internal Review was not completed at the time that the applicant lodged her administrative review application, the application was received under the provisions of section 53 (6) of the PPIP Act (as set out above). At the first Case Conference on 2 May 2017 the Tribunal ordered that the respondent file and serve 'the finalised or draft Internal Review on or before 12 noon 5 June 2017.'
That Internal Review concerned an e-mail which disclosed information concerning a physical injury which was connected with a hurt on duty claim with the applicant's employer (the respondent). The review concerned alleged breaches of both the PPIP Act and the Health Records and Information Privacy Act 2002. The review was eventually filed with the Tribunal on 2 June 2017 in conformity with the order of 2 May 2017.
The annexures to the Internal Review contained information which the applicant identifies as a further privacy complaint grievance to be addressed. It is uncontroversial between the parties that the respondent prepared a draft Internal Review of this second matter in August 2017 and after receiving submissions from the Privacy Commissioner in mid September 2017, completed the review.
The second review concerns both similar conduct and in part allegations of conduct arising from the circumstances of the first review. It is appropriate that such matters be considered as related, however it is premature to adjudge that they are suitable for consolidation.
The applicant wishes for administrative review of the second Internal Review, and initially proposed (post mediation) that both 'reviews' could be heard together by the Tribunal. The respondent has put on submissions opposing the consideration of the second matter by the Tribunal. The existing matter is fixed for hearing before the Tribunal in Sydney on 18 December 2017.
[3]
Applicant's submissions
The applicant in written submissions filed 10 November 2017 seeks that the second suite of allegations of breaches 'be heard in conjunction with the matter of …… 2017/00073505'. The applicant further submitted that 'The complaint has the same context of the prior application (2017/00073505) and stems from Attachment B to the previous report.'
Detailed submissions concerning the interplay of the allegations and evidence of conduct between the two matters were set out by the applicant. In addition if the second matter could not be incorporated into 2017/00073505 the applicant submitted that any fresh application for administrative review by the Tribunal would now be well out of time, and if that course was adopted leave was sought.
The applicant also referred to an e-mail communication from the acting Director of the Trusts (respondents) on this subject dated 17 October 2017, which she included with her submissions.
[4]
Respondent's submissions
In formal written submissions dated 16 November 2017 the respondent submitted that the two complaints needed to be heard separately. The respondent submitted that the factual circumstances in which the breaches occurred are factually distinct. In addition they submitted that there were different outcomes for each in that the first review was an 'inconclusive' finding, whereas the second review found that there was no breach.
The respondent submitted that it accepts that it has previously agreed for the two claims to be heard together. However, since reviewing the separate complaints it has become apparent that the nature of the alleged breaches need to be dealt with separately. The respondent made final submissions that if the matters were to be heard together 'than there is only one decision to be reviewed.'
[5]
Consideration
The preconditions for an administrative review in the privacy jurisdiction are set out above at paragraph 2 of these reasons and in Part 5 of the PPIP Act. The precondition of conduct and a person being aggrieved by that conduct are temporal. An individual becomes aware of conduct at a particular time. The conduct must pre-date that awareness in some way but can continue or be continuing at the time of that awareness. Often a person becomes aggrieved due to an awareness of particular conduct either directly or in some instances indirectly (as a result or a consequence or an impact).
The PPIP Act provides fairly strict time-fames for various things to occur, and the manner in which they must occur. (For example the individual must apply for internal review and that information must be in writing). As timeframes abound, what an applicant requests is of necessity limited by their knowledge up to the particular time of the application. For this reason what can meet the requirements of section 52 and as 'aggrieved' (often due to the realisation of particular knowledge), is of necessity limited by the knowledge at that time.
52 Application of Part
(1) This Part applies to the following conduct:
(a) the contravention by a public sector agency of an information protection principle that applies to the agency,
(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,
(c) the disclosure by a public sector agency of personal information kept in a public register.
(2) A reference in this Part to conduct includes a reference to alleged conduct.
(3) This Part does not apply to any conduct that occurred before the commencement of this Part.
(4) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to or in respect of conduct to which this Part applies.
Section 53 (1) appears in paragraph 2 (above).
The Administrative Decisions Tribunal (ADT) has previously looked at the issue of whether fresh allegations can be 'added' to a matter before the Tribunal.
In the case of KO and KP v Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 56 at paragraphs 12 and 13 the ADT examined the parameters of the review of conduct by the Tribunal.
12 In Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, a number of other principles were determined in order to assist a Tribunal in determining the scope of an internal review application (at [13], [14] and [17]). In summary, the Appeal Panel held (as to contraventions of the IPPs only):
"a) the applicant does not need to identify the contravention ... on which he or she relies in the application for review;
b) if an applicant does identify one or more contraventions ...that information would assist the agency in identifying the underlying conduct about which the applicant is aggrieved. However, the fact that a particular provision is nominated does not mean that the conduct that is identified amounts to a contravention of that provision;
c) an agency is not confined to considering the contraventions referred to by the applicant. An agency must address any contravention ... that is reasonably open on a reading of the entire application for review."
13 In the present case, the internal review application plainly related to a particular disclosure by a particular, named, officer of the respondent on a particular occasion. Indeed, it is the only relevant conduct referred to in the relevant sense. Notwithstanding that a wide spectrum of contraventions of the IPPs is later alleged in the application (by a naming of the provisions only) the scope of the application is about the disclosure of certain personal information. I accept the submission of the respondent that these applications do not concern, for example, collection or storage of the alleged personal information.
In the case of OA v Department of Housing [2005] NSWADT 233 the ADT set out the preconditions to an Internal Review. These pre-conditions set the parameters of the Tribunal's inquiry. At paragraph 5 of OA the ADT observed:
5 The making of an application for internal review to the agency is a pre-condition to bringing an application for review to the Tribunal: s 55(1). The agency is given 60 days within which to deal with the application for internal review. If it does not make a decision on the application within that time, the applicant can apply to the Tribunal: s 53(6). The applicant can raise (s 55(1)):
'(a) the findings of the review, or
(b) the action taken by the public sector agency in relation to the application'.
It follows, therefore, that the parameters of the application for internal review, reasonably construed, set the parameters for the Tribunal's inquiry.
A range of more recent cases before NCAT have rearticulated these principles: CCM v Western Sydney University [2016] NSWCATAD 234 at [15]; and BXK v Western Sydney University [2016] NSWCATAD 235.
The Tribunal has also indicated that the approach is limited by the pre-conditions, even when there is no dispute between the parties to add or include further related issues to the review. In AQK v Commissioner of Police, NSW Police Force [2014] NSWCATAD 55 at paragraph 12 the following was stated:
12. ….While the Tribunal welcomes the Respondent's practicality, and assumes all matters could have been ventilated at mediation, a party is not able to confer jurisdiction on the Tribunal in the interests of expediency, no matter how logical that course may seem to the parties, and indeed to the Tribunal.
In the current matters whilst it is clear that the allegations are related, the second suite are different from the initial allegations. In addition the applicant could not have been aggrieved by that (second complaint) conduct at the time of her first review as she was unaware of that conduct. Finally, as one aspect arose from the response to the initial allegations (evidence / information generated as part of the review), it must also fall outside of the grounds of the preconditions for the review currently before the Tribunal.
For these reasons as set out above, the second Internal Review cannot form part of this set of proceedings and I so find.
The guiding principle of the Civil and Administrative Tribunal Act 2013 requires that the Tribunal have facilitate the just quick and cheap resolution of the real issues in proceedings. Sections 36 (1) and (2) provide:
36 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it:
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
Whilst the decision to not include the second review in the proceedings might seem contrary to the guiding principle, I propose to adopt the approach that best maintains the parties rights, conformity with the law, and adherence to the extent possible to the guiding principle.
I propose to give the applicant leave to lodge a second application for administrative review with the Tribunal and appropriately extend the time for her to do so. The extension of time is necessary because the matter is out of time, and there were a number of competing factors concerning the second review, which should not be used to prejudice either party.
The matter was subject to a mediation process before the Tribunal, and some information was discovered in the late initial Internal Review, and during the administrative course of these proceedings. In fact the respondent initially consented in writing on 26 September 2017 to having the second matter included in these proceedings. The e-mail of that date concerning the second review states:
'Please note the internal review will be sent to you tomorrow and we will not object to both issues being heard at the same time by the Tribunal.'
Section 41 of the CAT Act provides for an extension of time to lodge matters before the Tribunal, notwithstanding any matters referred to in enabling legislation. The section provides:
41 Extensions of time
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.
The Administrative Decisions Review Act 1997 requires under section 55 (2) that proceedings for administrative review be commenced within the period provided for by the procedural rules. The relevant procedural rules are reproduced below:
Civil and Administrative Tribunal Rules 2014
Part 6 Rule 24
24 Administrative review applications
(1) An administrative review application must be:
(a) in or to the effect of the approved form, and
(b) duly completed, and
(c) lodged at the Registry, and
(d) accompanied by the applicable fee (if any) for the application.
(2) …
(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made:
(a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or
(b) in any other case - by the end of the default application period.
(4) The default application period for the purposes of subrule (3) (b) is:
(a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997 - the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9) of that Act, or
(a1) in the case of an administrative review application under section 55 of the Privacy and Personal Information Protection Act 1998 - the period of 28 days after:
(i) if an internal review under section 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned - the day on which the applicant was notified of the result of the internal review, or
(ii) if an internal review under section 53 of that Act is not completed within that 60-day period - the day on which the 60-day period expires or the day on which the applicant was notified of the result of the internal review (whichever is the later), or
(b) in any other case - the period of 28 days after:
(i) if the applicant has requested reasons under section 49 of the Administrative Decisions Review Act 1997 for the administratively reviewable decision - the day on which the applicant was either provided with a statement of reasons under section 49 of that Act or notified under section 50 of that Act of a refusal to provide reasons, or
(ii) if the applicant has not requested reasons under section 49 of that Act - the day on which the applicant was notified of the making of the administratively reviewable decision.
For all of these reasons I extend the time referred to in Clause 24 (4) (a1) (i) and (ii) of the Rules for the applicant to lodge a fresh application before the Tribunal pursuant to section 44 of the CAT Act.
I have determined that little prejudice will attach to either party for the detailed reasons and background set out above. In any event having regard to the guiding principle I believe that the most appropriate course is for the matters to be heard on the same day, either consecutively or in some other manner to be decided at hearing.
I have made detailed orders on 22 November 2017 which have been communicated to the parties on 23 November 2017 prior to the finalisation of written reasons.
I note that some submissions and evidence in the second matter have already been prepared in contemplation of this procedural decision.
[6]
Conclusion
For the reasons set out above I make the following orders:
1. The applicant is given leave to file a fresh application for administrative review in respect of the Internal Review of 16 August 2017.
2. The time for lodging the application for administrative review is extended pursuant to section 44 (1) of the Civil and Administrative Tribunal Act 2013 to 4:30pm 27 November 2017.
3. The fresh application is to be heard on 18 December 2017 in Sydney immediately following the hearing of proceedings 2017/00073505 - consecutive to that hearing (or in the manner agreed between the parties and the Tribunal on the day of hearing).
4. The applicant is to file and serve any further evidence and material relied upon at hearing on or before 5 December 2017.
5. The respondent is to file and serve any further evidence and material relied upon at hearing on or before 15 December 2017.
6. The applicant is to serve a reply (if any) at 10:00am on the date of hearing.
[7]
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
[8]
Amendments
29 November 2017 - Category corrected
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Decision last updated: 29 November 2017