In DVT v Commissioner of Police [2021] NSWCATAD 108 (DVT1) I decided the issue of liability (i.e. whether there was a failure of the Respondent to comply with certain Information Privacy Principles (IPPs)). By prior consent orders the parties agreed that remedies would be dealt with as a separate matter after the question of liability was determined.
In DVT1, having found that the Respondent had failed to comply with certain IPPs, I issued orders for the parties to file and serve written submissions, not exceeding five (5) pages, as to remedies. In accordance with those orders on 25 May 2021 the Applicant filed its written submissions as to remedies which are dated 17 May 2020 (i.e. 25 May 2021 was the date that the Applicant's original submissions were received by the Tribunal) and on 1 June 2021 the Respondent filed its written submissions as to remedies which are dated 1 June 2021 (collectively Remedy Submissions).
On 10 June 2021 the parties attended (by phone) a directions hearing before me as to the progressing of the proceedings as to remedies (Hearing). During the Hearing the parties made oral submissions as to whether or not the Tribunal should dispense with a hearing as to remedies and decide such "on the papers" (i.e. without a hearing).
On 15 June 2021, after considering the Remedy Submissions and the oral submissions made during the Hearing by both parties on whether or not a hearing could be dispensed with, I issued in Chambers orders (15 June Orders), in summary and most relevantly, providing that:
1. a hearing in respect of the remedies to be granted, following my decision in DVT1, is dispensed with and my determination as to remedies will be made on the papers (i.e. without a hearing); and
2. the parties were permitted to submit further written submissions as to remedies of up to four (4) pages, the Respondent in respect of any further submissions regarding remedies or further explanation as to its prior Remedy Submissions it submitted and the Applicant in response to such further written submissions made by the Respondent (collectively Further Remedy Submissions).
On 18 June 2021 the legal representative of the Respondent wrote to the Registrar of the Tribunal requesting, in summary and most relevantly (Respondent's Requests), that:
1. under s 62(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act), reasons be given for my decision resulting in Order 1 of 15 June Orders;
2. it be clarified if the Remedy Submissions filed by the Applicant referred to in Order 3 of the 15 June Orders, noted as having been filed on 25 May 2021, were in fact the Applicant's Remedy Submissions dated 17 May 2021; and
3. it be clarified if Order 3 of the 15 June Orders was intended to allow the Applicant to submit any Further Remedy Submissions, other than in response to the Respondent's Further Remedy Submissions, and to be amended if relevant. That is whether, under Order 3 of the 15 June Orders, the Applicant is able to make additional or further submissions as to remedies unrelated to the Respondent's Further Remedy Submissions, without the right of reply from the Respondent.
As a consequence of the time spent addressing these requests and clarifications (as noted in [5] above) and in preparing these Reasons for Decision, I also need to vary the due dates by which each of the parties may submit any Further Remedy Submissions.
[2]
The issue
The main issue for determination arising from the Hearing was whether the consideration as to the applicable remedies flowing from decision in DVT1 could be adequately determined in the absence of the Applicant and the Respondent by considering the material that is before the Tribunal (and any additional submissions that the parties were permitted to lodge with the Tribunal). That is, can the real issues as to remedies flowing from the decision in DVT1 be adequately determined on the papers (i.e. without a hearing).
[3]
Relevant legislation
Section 50 CAT Act sets out the circumstances in which a hearing is required for proceedings before the Tribunal and the circumstances in which it may be determined by the Tribunal not to be required:
"50 When hearings are required
(1) A hearing is required for proceedings in the Tribunal except:
(a) in proceedings for the granting of leave for an external or internal appeal, or
(b) in connection with the use of any resolution processes in proceedings, or
(c) if the Tribunal makes an order under this section dispensing with a hearing, or
(d) in such other circumstances as may be prescribed by the procedural rules.
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. …"
In applying s 50 CAT Act to the current circumstances, I am also mindful of and must apply the 'guiding principle' of the Tribunal (and for the parties) as set out in s 36 CAT Act:
"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.
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal -
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) ..."
[4]
Can the issues be adequately determined on the papers?
Both parties were given an opportunity to make submissions at the Hearing as to whether a hearing on remedies was necessary or should be dispensed with and whether the determination as to remedies in respect of the findings in DVT1 can be determined without a further hearing (i.e. on the papers). Also both parties made submissions on whether, if my decision was that remedies were to be determined on the papers, they would like an opportunity to provide additional written submissions as to remedies.
In the Hearing the Applicant made oral submissions that they wanted the determination as to remedies to be made without a further hearing. That is 'on the papers'.
The Respondent made oral submissions during the Hearing that further explanation of and submissions in relation to the Respondent's Remedy Submissions were required due to the complex and nuanced nature of those Remedy Submissions. The Respondent submitted that further submissions on/explanation of their Remedy Submissions would be better presented at a short further hearing on remedies. The Respondent also submitted that, if a further hearing as to remedies was not ordered by the Tribunal, the Respondent requested the opportunity to provide additional written explanation of/submissions on its Remedy Submissions (i.e. Further Remedy Submissions) and that four (4) pages would be sufficient.
I have also considered s 38(6) CAT Act and I am satisfied the parties have been given a reasonable opportunity to make submissions and provide all relevant materials on the real issues as to the remedies to be granted following the decision in DVT1.
[5]
Conclusion/decision
As regards the clarification referred to in [5(2)] above, as noted in [2], the Applicant's Remedy Submissions filed with the Tribunal on 25 May 2021 (i.e. the date the original was received by the Tribunal) are those dated 17 May 2021.
As regards [5(3)] above, I confirm that the intention of Order 3 of the 15 June Orders was not to permit the Applicant to make additional or further submissions as to remedies unrelated to the Respondent's Further Submissions.
Based on ss 50 (2), (3) and (4) CAT Act and taking into account the 'guiding principle' set out in ss 36(1), (2) and (4) CAT Act, having heard the parties' submissions on this matter and considered the Remedy Submissions already filed and noting the option for the parties to file the Further Remedy Submissions, I am satisfied that nothing could be gained by having a hearing.
That is, I am satisfied that the real issues for determination in relation to applicable remedies arising from the decision in DVT1 can be adequately dealt with in a way proportionate to those issues in the absence of the Applicant and the Respondent by considering the material that is currently before the Tribunal (i.e. the Remedy Submissions) together with any Further Remedy Submissions that the Respondent wishes to file and any written submissions of the Applicant in response to the Respondent's Further Remedy Submissions.
Therefore, on 15 June 2021, I ordered the dispensing with a hearing as to remedies under s 50 of the CAT Act and ordered that the Respondent could submit further written submissions as to remedies if it wished and that the Applicant could file written submissions in response to any such further written submissions of the Respondent.
However, the Respondent felt that the 15 June Orders were unclear and subject to an alternative interpretation as to what I had intended by them. I have therefore taken this opportunity to correct them to avoid any ambiguity and, as a consequence of the time delay resulting from addressing the Respondent's requests and making the clarifications sought, I have also revised the time for compliance with the Orders (as amended).
[6]
Orders
1. Order 2 of the Orders made on 15 June 2021 is replaced by the following:
The Respondent may submit further written submissions of up to 4 pages in respect of the remedies sought by the Applicant within seven days from the date of these Reasons for Decision.
1. Order 3 of the Orders made on 15 June 2021 is replaced by the following:
Within seven days from the date of filing with the Tribunal of the Respondent's further submissions referred to in Order 2 above, the Applicant may submit further written submissions up to 4 pages in response to the Respondent's further written submissions filed pursuant to Order 2 above.
1. Order 4 of the Orders made on 15 June 2021 is replaced by the following:
After 29 July 2021, whether or not any further submissions have been received from the parties, the Tribunal will proceed to determine the remedies to be granted on the papers.
1. If the Respondent does not file further submissions in accordance with Order 2 of the 15 June Orders (as amended by Order (1) above) then the Applicant may not file any further written submissions in accordance with Order 3 of the 15 June 2021 Orders (as amended by Order (2) above).
[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
13 July 2021 - Order 3 - Date on coversheet corrected.
01 November 2021 - No changes
01 November 2021 - Citation delimiter included
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: 01 November 2021