DVT v Commissioner of Police

NCAT Appeal Panel|2021-10-29

Background

This appeal arises out of a decision published by the Tribunal on 14 December 2020 in proceedings commenced by the Appellant against the Respondent and lodged on 12 May 2020. The proceedings concerned an administrative review application consequent upon the Appellant seeking an internal review pursuant to s 53 of the Privacy & Personal Information Protection Act 1998 (the PPIP Act).
The order under appeal was an order by which the Appellant's Application for miscellaneous matters dated 31 August 2020" was dismissed. The background to that dismissal is recorded in the decision under appeal (the Decision).
An order has been made in these appeal proceedings for the appeal to be determined on the papers. Neither party has objected to that course and we are satisfied that the issues for determination may be determined in the absence of the parties by considering their written submissions and other material lodged with the tribunal. We will make an order affirming the order dispensing with a hearing.

The Decision

The Decision may be summarised as follows: 1. The Appellant had made a complaint under the PPIP Act. The complaint concerned an affidavit filed by a solicitor acting for the Respondent in proceedings between the parties in the Federal Circuit Court. The complaint asserted that the affidavit (filed in support of an application for substituted service) contained the residential address of the Appellant. The Appellant complained that the Respondent had collected that address contrary to s 8(2) of the PPIP Act. 2. The Respondent undertook a review of the conduct pursuant to s 53 of the PPIP Act in response to the Appellant's complaint and determined that there had been no contravention of the PPIP Act. 3. The Appellant wrote to the Respondent and pursuant to s 49(1) of the Administrative Decisions Review Act 1997 (the ADR Act) requested a written statement of reasons which sets out the matters referred to in s 49(3) of the ADR Act. The Respondent replied that its internal review complied with s 49 of the ADR Act. 4. The Appellant sought administrative review by filing an administrative review application in the Tribunal. 5. The Respondent lodged material pursuant to s 58(1)(a) of the ADR Act and also lodged an application under s 59(2) of the ADR Act to the effect that a confidential bundle of material not be lodged as the documents were subject to client legal privilege. The Respondent's application for confidentiality (which the Decision refers to as the "Confidentiality Application) was determined on 22 September 2020 in the Respondent's favour with the consequence that publication of the material the subject of that application was prohibited. 6. On 31 August 2020, the Appellant filed the Application for miscellaneous matters (which the Decision calls the "Reasons Application") by which the Appellant sought orders to the following effect: 1. The Respondent is directed to provide a written statement of reasons that complies with s 49(3) of the ADR Act. 2. Direction no 6 made on 30 June 2020 is vacated. 1. On 25 September 2020 the Respondent filed an application to the effect that the Reasons Application be dismissed. The Decision called this application the Dismissal Application. We have been provided with a copy and it states that the dismissal order is sought pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 ( the NCAT Act). 2. The Decision records the Respondent's submissions in support of an order for dismissal of the Reasons Application. These are to the following effect: the application is misconceived, lacks utility and substance, adequate reasons have already been provided, any inadequacy as a result of the confidentiality order should not have the consequence that the Respondent is required to provide a further statement of reasons and, in the circumstances, the application is an abuse of process. 3. The Decision records that the Appellant's submissions were to this effect: the statement of reasons is inadequate as it fails to comply with s 49(3) and s 52(3) of the ADR Act. The failures and inadequacies involve failing to identify the name of the person from whom the Respondent collected the personal information and other details of that personal information. 4. The direction made on 30 June 2020 which the Appellant sought to be vacated was a direction that the Appellant file and serve evidence and material in respect of the substantive privacy review on or before 28 August 2020. 5. The Decision then set out ss 49 to 52 and ss 58 and 59 of the ADR Act. The Decision also set out ss 53 and 55 of the PPIP Act. 6. The Respondent submitted that its obligation to give an adequate statement of reasons under s 49 of the ADR Act as sought by the Application has been superseded by its obligation under s 58(1)(a) "now that the administratively reviewable decision is the subject of an application for review in the Tribunal"[21]. 7. The Tribunal dealt with the separate functions which Parts 2 and 3 of the ADR Act address. Section 49 (within Part 2) deals with the entitlement to a statement of reasons after a decision has been made by the administrator. Section 52 (also in Part 2) provides that the tribunal may order that a statement of reasons be provided( if requested but not provided) or if an inadequate statement has been provided that an adequate one be provided. Section 58 (contained in Part 3) deals with the requirement for the Respondent in administrative review proceedings before the Tribunal to provide a copy of any statement of reasons given under s 49 or, if no such statement has been given, a statement of reasons. Section 58(2) provides that if the applicant has not been given a statement of reasons under s 49, the Tribunal may direct that a copy of the statement lodged with the Tribunal be given to the Applicant. 8. The Tribunal cites the judgment in AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391 in which his Honour Davies J at [64] to [66] said that the obligation under s 49 is superseded where there arises in its place an obligation under s 58 (1)(a) to provide a statement of reasons. 9. The Decision records the Appellant's submission that even though there may be no utility in the Tribunal making an order under s 49 the Tribunal nevertheless retains the power to make such an order. The Appellant relied upon the decision in AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWADT 223 in which the Tribunal (per Hennessy DP) said that even though there is no utility in the Tribunal making a direction to provide a written statement of reasons under either ss 52(2) or 58(2) the Tribunal nevertheless has power to make a direction that the Respondent provide a written statement of reasons that complies with s 49(3) if it forms the view that it has not done so. It is apparent from ss 49, 52 and 58 that an applicant is entitled to have a written statement of reasons that complies with s 49 before the Tribunal reviews the decision. Section 58 does not expressly empower the Tribunal to do so but the Tribunal has such power because it is able to determine its own procedures and give directions as to the steps to be taken in proceedings. The now repealed s 73, of the then named Administrative Decisions Tribunal Act 1997 (NSW) (ADT) and cl19 of the now repealed Administrative Decisions Tribunal Rules 1998 (NSW) ( the ADT Rules) were cited as authorising such power. 10. The Tribunal rejected the Appellant's submission on two bases. The first is that the decision of the Tribunal in AVS (referred to above) would appear to be in conflict with the decision in AVS of Davies J in the Supreme Court judgment . Secondly, the power referred to by the Tribunal was contained in the ADT Act 1977, which has now been repealed. While a power might be found in s38 of the NCAT Act having regard to s36 such an order would have no utility in this case having regard to the real issue in dispute. 11. At [29] the Tribunal stated that the real issue in the proceedings is whether the Respondent had contravened s 8(2) of the PPIP Act and, having regard to s 36 of the NCAT Act whether making an order which lacks utility would not facilitate the just, quick and cheap resolution of the real issues between the parties. At [30] the Tribunal found, citing Davies J, that there is a fresh obligation to provide reasons under s 58 and that an application seeking reasons under s 49, once an application for administrative review has been made in the Tribunal, will be redundant and futile. 12. Section 52 contains a provision which empowers the Tribunal to order the administrator to provide an adequate statement of reasons if the statement of reasons under s 49 is inadequate. There is no such power in respect of a statement of reasons given under s 58(1). Here a statement of reasons was given, which the Appellant claimed was inadequate and the adequacy of the statement of reasons " is not a matter which gives rise to any issue now in these proceedings" [32]. 13. The Decision stated that the Respondent contended that the Appellant was effectively attempting to relitigate the Confidentiality Application. The Tribunal found that the evidence was insufficient to support a finding that the Appellant's collateral purpose was to subvert client legal privilege. 14. In conclusion, the Tribunal found that the Reasons Application should be dismissed on the basis that it was futile and cannot succeed.

Notice of Appeal

The Appellant's Notice of Appeal was lodged on or about 10 January 2021 and the grounds of appeal may be summarised as follows: 1. The Tribunal erred by misconstruing the application for miscellaneous matters dated 31 August 2020 to be an application seeking reasons under s 49 of the ADR Act. 2. The Tribunal erred by finding that there is only a power to direct a statement of reasons be given if no statement of reasons was given under s 49. 3. The Tribunal denied the Appellant procedural fairness by refusing to make an order directing the Respondent to provide a statement of reasons that complies with s 49(3).

The Respondent's Reply to Appeal may be summarised as follows: 1. The Respondent reiterates submissions made to the effect that the reasons given by the Respondent were adequate and that any inadequacy was the result of the confidentiality of the underlying documents which have been protected by an order made under s 59 of the ADR Act. 2. The Appellant's Reasons Application was an abuse of process because it duplicated an application made by the Appellant in separate proceedings between the parties (Application 2020/178009) which was withdrawn by the Appellant while the matter was before the Tribunal for determination on the papers. 3. An internal appeal may be made against an interlocutory decision of the Tribunal at first instance only with the leave of the Appeal Panel: s 80(2)(a) of the NCAT Act. An interlocutory decision includes the summary dismissal of proceedings by the Tribunal: s 4. There is no basis for the grant of leave. 4. The appeal should be dismissed. The Respondent noted that it that he reserved the right to seek costs.

Appellant's Submissions

The submissions of the Appellant are summarised in the following paragraphs.
Ground 1: the Tribunal treated the Appellant's application as having been made under s 49 of the ADR Act. This was to misconstrue the Appellant's application. This misunderstanding can be attributed to the Respondent because the Respondent's dismissal application dated 25 September 2020 sought an order for dismissal of the Appellant's miscellaneous application dated 31 August 2020 "requesting an order be made under s 52(2) of the ADR Act". In addition, the Respondent's submissions dated 25 September 2020 stated that the Appellant had filed an application "pursuant to s 52 (2) of the ADR Act". Contrary to the statements made by the Respondent, the Appellant's application dated 31 August 2020 was not filed pursuant to s 52(2) of the ADR Act. Rather, the Appellant's application sought an order that the Respondent be directed to provide a written statement of reasons that complies with s 49(3) of the ADR Act. The error resulted in the Tribunal wrongly finding that the Appellant's application is futile.
Ground 2: the Appellant submits that the Tribunal erred by finding that there is only a power to direct a statement of reasons be given if no statement of reasons was given under s 49. In AVS Group Australia Pty Ltd v Commissioner of Police (No 2) [2014] in NSWCATAP 53 the Appeal Panel said at [170] that in the judgment of Davies J in AVS, his Honour held that the Commissioner was under a duty, enforceable by an order in the nature mandamus, to lodge with the Tribunal under s 58(1)(a) of the ADR Act, a statement of reasons that was compliant with the requirements of s 49(3) of that Act. The Tribunal has power to make a direction that the Respondent lodge with the Tribunal, a statement of reasons that complies with s 49(3) of the ADR Act (if it forms a view that the Respondent has not done so) pursuant to ss 38(1), (2) and (6)(a) of the NCAT Act. The exercise of the power in s 38 is necessary to enforce the duty of the Respondent to lodge with the Tribunal a statement of reasons that complies with s 49(3) in accordance with s 58(1)(a) of the ADR Act and to afford the Appellant natural justice.
The appellant submits that there is a power to direct a statement of reasons be given under s49 (if no statement has been given) and also a power to direct that a statement be given if the statement does not comply with s 49(3).
Ground 3: The Appellant submits that he was denied procedural fairness by the Tribunal's refusal to make an order directing the Respondent to provide a statement of reasons that complies with s49(3). The Respondent's findings of internal review (ie. the statement of reasons) does not comply with s 49(3) because it fails to identify the name of the person or body from whom the Respondent collected the personal information, whether the receipt of the personal information was solicited, the date on which the personal information was collected and the means by which the personal information was collected. The failure to set out the findings on these material questions of fact leads to the conclusion that the Respondent has failed to set out the reasoning process that led to the conclusion that the Respondent did not collect the personal information by unlawful means.
The Respondent has therefore failed to comply with the duty to lodge with the Tribunal a statement of seasons that complies with s 49(3) in accordance with s 58(1)(a). The Tribunal failed to direct that an adequate statement of reasons be given and is thus unable to determine all of the relevant facts in issue in the proceedings at first instance. The Tribunal denied the Appellant procedural fairness by refusing to make an order directing the Respondent to provide a statement of reasons that complies with s 49(3) of the ADR Act.
The Decision is an ancillary decision (see s 4 of the NCAT Act) and each of the Appellant's grounds are errors of law that give rise to an appeal as of right. Order 1 ought to be set aside and an order made that the Respondent be directed to provide a statement of reasons that complies with s 49(3) of the ADR Act.

Submissions of Respondent

The following paragraphs summarise the Respondent's submissions.
Ground 1: the Respondent disputes that the Tribunal misconstrued the Reasons Application as an application seeking orders under s 49. It is clear from [28]-[29] of the Decision that the Tribunal did not misconceive the Appellant's application. In those paragraphs the Tribunal noted that the ADT Act had been repealed and that if a power to determine procedures and give directions is to found in the NCAT Act it is to found in s 36. The Tribunal found at [29] that it would not facilitate the just, quick and cheap resolution of the real issue (which the Tribunal identified as whether the Respondent had contravened s8(2) of the PPIP Act) to make an order which lacks utility.
Ground 2: there is no error in the Tribunal's statement at [31] of the Decision that there is only a power to direct a statement of reasons be given if no statement of reasons was given under s 49. The Appellant has taken this passage of the Decision out of context. At [30] the Tribunal referred to the availability of other powers to order a statement of reasons be given under the ADR Act. This ground should be rejected.
Ground 3: this ground is in essence a submission that the outcome of the Decision is incorrect on the merits. The arguments put forward have no bearing on the Appellant being denied procedural fairness. The Appellant contends that he has been denied an entitlement to reasons that comply with s 49(3), by reference to the statement of Deputy President Hennessey in the AVS decision. It is apparent from that decision that the Deputy President is not describing a concrete entitlement to reasons but rather a discretionary power of the Tribunal to require a written statement of reasons be provided in appropriate circumstances pursuant to its general power to determine its own procedure (now located in s 38(1) of the NCAT Act). That case concerned a Decision to revoke a security licence under the Security Industry Act, 1997. In the proceedings under appeal, the Tribunal is conducting an administrative review of the conduct of the Respondent under the PPIP Act. The adequacy or correctness of the reasons initially given for the Respondent's conduct are not relevant to the Tribunal's review of the underlying conduct.
The Appellant submits that the Tribunal failed to ensure that all relevant material was disclosed to it and that the Appellant has been denied procedural fairness because he will be unable to adduce evidence and make submissions in respect of material questions of fact. These submissions do not relate to the adequacy of the Respondent's reasons for its Decision, but rather to the adequacy of the material the Respondent has put before the Tribunal in accordance with the Respondent's obligation under s 58(1)(b). The Respondent has put all material before the Tribunal which he considers relevant in the determination of these proceedings other than material subject to client legal privilege.

The Initiating Application

As stated earlier, the Appellant filed an administrative review application form on 12 May 2020. The decision for review was the decision dated 5 May 2020, a copy of which was attached to the application. The grounds for the application were that the Respondent contravened s 8(2) of the PPIP Act. That decision referred to s 53 of the PPIP Act which allows a person who is aggrieved by the conduct of a public sector agency to have that conduct reviewed. The purpose of the review was stated to be whether there has been a breach of the Appellant's privacy with respect to the information protection principles set out in the PPIP Act. The decision also records that the reviewing officer determined that the Police Force did not collect the Appellant's address by unlawful means and that there has been no contravention of the information protection principles. The author stated that he had been provided with information by the office of general counsel of the Respondent and that that information is confidential communications between lawyer and client prepared for the dominant purpose of providing legal services in relation to the Federal Court proceedings. The author wrote that he has been unable to separate the maintenance of the privileged information from the requirement to provide the Appellant with evidence which supports his findings. He went on to say that he was of the view that the Respondent's collection of the address was not unlawful as it was not in connection with a positive legal prohibition.

Consideration

The Appellant's Reasons Application sought an order that the Respondent provide a statement of reasons that complies with s 49(3) ADJR Act. The requirements of s 49(3) are as follows: 49 Duty of administrator to give reasons on request … (3) The statement of reasons is to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the administrator's understanding of the applicable law, (c) the reasoning processes that led the administrator to the conclusions the administrator made. …
The Appellant's request for a statement of reasons that "complies with s 49(3)" is, in our view, a request for the statement of reasons to set out those matters described in subparagraphs (a), (b) and (c) (which we have set out above) as opposed to a request under s 49(1). That being the case, paragraph 65 of the judgment of his Honour Davies J in the AVS case is not relevant to the point in issue in this appeal. In that paragraph, his Honour held that where an application for review is made either a copy of a statement of reasons given under s 49 must be lodged with the tribunal, or if there is no such statement, a statement of reasons, setting out the matters referred to in s 49(3). This is required by s 58(1)(a). His Honour held that the obligation under s 49 is superseded by the obligation under 58(1)(a). Here the Appellant's application was based upon the Appellant's perceived obligations imposed upon the Respondent under s 58(1)(a) and the Appellant was, in our view, not seeking to invoke a requirement under s49 which had been superseded.
In AVS, his Honour Davis J went on to decide that the respondent (who is also the Respondent in this appeal) was under a duty susceptible to an order in the nature of mandamus pursuant to s 58(1)(a) to lodge a statement of reasons setting out the matters referred to in s 49(3) [80]. His Honour went on to consider whether an order in the nature of mandamus should be made and, in doing so considered s 29(3) of the Security Industry Act 1997 (NSW). That section precludes disclosure of the content of criminal intelligence reports. At [92] the court concluded that mandamus would have no utility because AVS could never obtain access to the criminal intelligence that formed the basis for the respondent's decision.
In the proceedings under appeal, the Tribunal considered the submission of the Appellant that in the AVS proceedings before the tribunal, Deputy President Hennessy had held that even though there is no utility in the tribunal making a direction to provide a statement of reasons under either s 52(2) or s 58(2) the tribunal nevertheless has power to make a direction that the respondent provide a statement of reasons that complies with s 49(3) if it forms the view that it has not done so. The tribunal stated that while s 58 does not expressly empower the tribunal to do so, the tribunal has such a power because it is able to determine its own procedure and give directions as to the steps to be taken in the proceedings (referring to provisions of the Administrative Decisions Tribunal Act 1997 (NSW) and Rules).
In the proceedings under appeal, the Tribunal held that the submissions of the Appellant relying upon the above statements of Deputy President Hennessy appear to be in conflict with the judgment of Davies J. In our view, all Deputy President Hennessey decided was that there was a power based upon the then ADT Act and rules, and not based upon s 58, to direct that a further statement of reasons be given in appropriate circumstances
In the proceedings under appeal, the Tribunal said at [32] that the Appellant's claim was not that a statement of reasons had not been given, but rather that the statement given was inadequate. The power to require a further statement of reasons to be given following the issue of a statement of reasons that the Tribunal finds inadequate is found in s 52(2). However, that provision does not apply once the obligation under s 49 has been superseded by the lodgement of an application for administrative review to which s58 applies. This is to same effect as the decision of DP Hennessy as approved by Davies J in AVS at [64 and 65]
The question remains whether the Tribunal has power to order an adequate statement of reasons pursuant to its general powers under ss 36 and 38 of the Civil & Administrative Tribunal Act 2013 (NSW). The Tribunal referred to those sections and held ,in part , that it would not facilitate the just, quick and cheap resolution of the real issue between the parties to make an order which lacks utility [29].
We referred earlier to the fact that there has been a decision between the parties in these proceedings which has had the effect that material has been found to be protected from disclosure on the basis of client legal privilege. There is no material before us which would suggest that the Respondent could provide more detailed reasons in a statement of reasons by including material presently withheld but which would not be in conflict with the order precluding disclosure of documents protected by client legal privilege. Indeed, the Respondent submits that it cannot provide a more adequate statement of reasons without impinging upon client legal privilege.
Accordingly, we see no basis to overturn the order of the Tribunal which was to dismiss the Reasons Application as it had the practical effect of not requiring the Respondent to provide information otherwise protected by client legal privilege.
It is necessary to now turn to the specific grounds of appeal, which we do in the following paragraphs: 1. Ground 1: we are in agreement with the Appellant that the Tribunal may have misconstrued the Reasons Application as being made under s 49. However we are in agreement with the Respondent that there was no error in the order dismissing the Reasons Application. 2. Ground 2: this ground is misconceived in that the Tribunal did not find that there was no power under the Civil & Administrative Tribunal Act to direct that a statement of reasons be given. Rather the Tribunal declined to make a clear finding of the existence of such a power on the basis that the order proposed would not facilitate the just, quick and cheap resolution of the real issue between the parties. There is no error in the Tribunal's reasoning. 3. Ground 3: in our view there is no procedural unfairness in that the Tribunal dealt comprehensively with each of the submissions of the Appellant. To the extent that we consider that the Tribunal has power to order an adequate statement of reasons be given (analogous to the reasoning of Deputy President Hennessy) we would not have made such an order. This is because having regard to the right of the Respondent to maintain client legal privilege there was no evidence or indeed a submission to the effect that further reasons could have been given without impinging upon client legal privilege. The result, in our opinion, is that the orders made were correct, and accordingly that the appeal should be dismissed. 4. In his submissions the Respondent indicated that he reserved its position with respect to claiming costs of the appeal. Accordingly, we will make directions for costs to be the subject of written submissions between the parties.

Orders

The Appeal Panel makes the following orders: 1. The order dispensing with a hearing of this appeal is affirmed. 2. Appeal dismissed. 3. The Respondent must file and serve within 14 days any submissions it wishes to make in support of an order for costs of the appeal. 4. The Appellant has 14 days thereafter to file and serve any submissions in opposition to the Respondent's submissions on costs of the appeal. 5. The parties' submissions on costs of the appeal should include whether Appeal Panel may decide costs of the appeal "on the papers" and thus dispense with a hearing on costs of the appeal.

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: 29 October 2021

Administrative Decisions Tribunal Act 1997(NSW)

Administrative Tribunal Act 2013(NSW)

Administrative Decisions Tribunal Rules 1998(NSW)

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