(1971) 125 CLR 296
Fox v Percy [2003] HCA 22(2003) 214 CLR 118
GR v Department of Housing [2003] NSWADT 268
House v R [1936] HCA 40(1936) 55 CLR 499
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457(1987) 14 ALD 291
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
Judgment (11 paragraphs)
[1]
A Starke, Senior Member
File Number(s): 2020/00015190
[2]
REASONS FOR DECISION
On 9 March 2022 the Tribunal determined proceedings brought by EEC (Appellant) against Federation Council (Respondent) pursuant to provisions of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). Relevantly for present purposes, the orders provided that, pursuant to s 55(2)(a) of the PPIP Act the Respondent pay the Appellant damages in the sum of $1,000, and provide unreserved apologies to him for its breaches of provisions of the PPIP Act.
By Amended Notice of Appeal filed 8 August 2022 the Appellant appealed against the orders of 9 March 2022, and sought an order that, pursuant to s 55(2)(b) of the PPIP Act, the Respondent pay damages to him in the sum of $40,000. The Amended Notice of Appeal articulated three grounds of appeal to which we will later refer, and also sought leave to appeal. If the Appellant fails to establish error on a question of law, it will be necessary to consider his application for leave to appeal.
The Appellant's Amended Notice of Appeal sought "that the Tribunal deal with the appeal by way of a new hearing". Although sought as "orders the NCAT Appeal Panel should make", we do not understand that the Appellant pressed that relief at the hearing of the proceedings. Even if the Appellant did so, the Appeal Panel would not proceed by way of new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). There are a number of reason for declining to do so. Proceeding by way of new hearing in the present circumstances would risk relieving the Appellant of the onus of establishing appealable error. If the Appellant establishes error on a question of law, or an entitlement to leave to appeal on other grounds, the need for a decision maker to evaluate the evidence and credibility of relevant witnesses renders it inevitable that the proceedings be remitted for re-hearing by a differently constituted Tribunal.
The Respondent filed an Amended Reply to the appeal on 2 September 2022. The Respondent opposed the appeal, opposed the granting of leave to appeal, and opposed the granting of leave to adduce further evidence in the appeal.
The Appeal Panel had before it a two volume Court Book produced by the Appellant which contains all of the material which was before the Tribunal at first instance.
On 5 August 2022, the Appellant provided the transcript of the proceedings before the Tribunal at first instance, and the audio recording of those proceedings. The Appellant sought leave to rely upon a report of Dr Annie Woodhouse dated 30 May 2022, a witness statement of EEC dated 10 June 2022, and a witness statement of EEC's wife dated 10 June 2022. The Appellant also filed the evidence which was before the Tribunal at first instance, together with the Appellant's outline of submissions in support of his original Notice of Appeal of 15 June 2022.
Both parties filed submissions with respect to the costs of the proceedings before the Appeal Panel on 8 July 2022. It was agreed, sensibly, that all questions of costs should abide the determination of the appeal, and the Appeal Panel's reasons for its decision with respect to the appeal. Our orders will provide a timetable for the filing of submissions with respect to the costs of the proceedings.
The Appellant continued to rely upon his submissions of 15 June 2022 in support of his Amended Notice of Appeal, and also on submissions filed on 20 September 2022.
In its Amended Notice of Reply to Appeal, the Respondent set out with some particularity the basis of its resistance to the Appellant's application for leave to appeal and application for leave to adduce further evidence in the appeal. The Respondent filed further written submissions on 20 September 2022.
Counsel for the parties spoke to their respective, and helpful, submissions on 27 September 2022.
[3]
The reasons for the decision of the Tribunal at first instance
The Tribunal recorded [1] that the proceedings before it arose from an application by the Appellant for administrative review of the conduct of the Respondent under s 55(1) of the PPIP Act. The Respondent represented himself before the Tribunal.
The Tribunal recorded [3] that the alleged conduct complained of in the Appellant's internal review application "was that the Council had "told someone I [wrote] 9 letters about Familys [sic] tip in town"". The Tribunal recorded [4] that the subject matter of the Appellant's "9 letters" was "not about a "family tip"" but rather "actually concerned heavy vehicle restrictions affecting traffic in a particular street in the local government area. The letter made no mention at all of an issue concerning what was described as a "family tip"".
The Tribunal found [5] that, "from the outset" the Respondent had "considered whether there had been a breach of Information Privacy Principle (IPP) 11 (involving disclosure of the Applicant's personal information without his consent) and in order to conduct an investigation, it sought to clarify the scope of the complaint".
The Tribunal found [6] that, following correspondence between the parties, the Respondent "determined that the complaint was limited to the heavy vehicles issue". The Respondent decided on 19 February 2020 (initial decision) that "it was unable to determine whether a council officer had breached the privacy requirements". A "detailed incident investigation report" of 3 April 2020 (first investigation report) was "unable to identify whether a council officer or councillor had disclosed to a member of the public that EEC had written "9 letters to council in relation to a particular matter"".
For reasons which do not assume present significance, the Respondent completed a further investigation report (second investigation report) on 5 November 2020 which "did not identify any breach of the Act" but, the Tribunal at first instance observed, "the scope of the complaint was again confined to the letter regarding heavy vehicle restrictions and did not consider the issue of the "family tip"". Again, for reasons which do not assume significance, following a further investigation of 15 October 2021 "on both heavy vehicle restrictions and the "family tip" (reconsidered decision)" the Respondent concluded that it had not breached the Appellant's privacy under the PPIP Act with respect to either complaint.
The Tribunal [12] found that the Respondent "concluded that it was more likely than not that a third party (referred to as "XX" in these proceedings) had received information about the Applicant's complaints to Council from another person (who had overheard the Applicant discussing his complaint and did not want their identity disclosed) rather than from a Councillor or a Council officer". The Appellant sought administrative review of the reconsidered decision.
The Tribunal summarised the relief sought by the Appellant [14] as being for "compensation for financial loss and psychological harm that he asserts he has suffered because of the conduct of the Council. In its reconsidered decision, the Respondent did not address the Applicant's claim for damages".
The Tribunal referred [15] to prohibition on disclosure of the Appellant's name or of material which identifies him or is likely to lead to his identification. There has been no suggestion that such order ought not be continued. The Appellant will continue to be referred to in these reasons and the Appeal Panel's decision as "EEC".
The member of the public who the Tribunal found had "approached EEC about the matters that are the subject of this application (but does not hold office with Federation Council)" was referred to by the Tribunal as "XX". There has been no application to vary or discharge that order. Disclosure of the identity of XX will thus continue to be prohibited.
The Tribunal recorded, [21]-[24], a number of difficulties arising from the fact that the Appellant was self-represented before it. The Tribunal recorded [24], correctly in our view, that it was not obliged to "sift through volumes of material in order to identify relevant submissions or evidence" or [25] to "consider every piece of evidence presented" as some material may be "irrelevant and misconceived. Through the involvement of competent and experienced Counsel, and the nature of the proceedings before it, the Appeal Panel has not encountered the kinds of difficulties with which the Tribunal at first instance had to contend.
The Tribunal observed [28] that both parties were self-represented, and that [29] the evidence before it was "incomplete, inconsistent, imprecise and uncertain".
Under the heading "The task for the Tribunal" the task and applicable statutory provisions were identified. No part of the present proceedings involves any assertion that the Tribunal misconceived either its task or the legislative provisions governing how it undertook that task.
The Tribunal considered its jurisdiction to hear and determine the proceedings [36]-[39]. There is no suggestion that the Tribunal lacked the jurisdiction to determine the proceedings before it, or that it erred in recording [39] that "when determining an application for review, the Tribunal is not constrained to have regard only to the material that was before an agency's internal reviewer but may have regard to any relevant material before it at the time of the Tribunal's review", but that "in considering other material, the scope of the review is still constrained by the original scope of conduct complained of in the internal review". Again, we do not understand any part of the present proceedings to involve asserted error in either of those respects.
The Tribunal referred [40] to the definition of "personal information" in s 4(1) of the PPIP Act. The Respondent was held to be a "public sector agency" as defined in s 3 of the PPIP Act. The Tribunal also recorded [42] the Information Protection Principles defined in s 3 of the PPIP Act.
The Tribunal identified [43] the 12 Information Protection Principles (IPPs) applicable to the conduct of public sector agencies when handling an individual's personal information, which could "broadly be described as falling within 5 categories". The Tribunal summarised, by reference to the decision in CEU v University of Technology Sydney [2018] NSWCATAD 13 at [68] the five categories of Information Protection Principles. Again, we do not understand any part of the present proceedings involves any challenge to the accuracy of the Tribunal's identification or summarisation of the relevant IPPs.
The Tribunal referred [44] to IPP 11, with respect to the limits on the disclosure of personal information, as set out in s 18 of the PPIP Act. The Tribunal recorded the terms of the section, which provide:
"18 Limits on disclosure of personal information
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless -
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with s10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen the serious and imminent threat to the life or health of the individual concerned or another person."
The definition of "personal information", which the Tribunal had earlier set out, provides (s 4 PPIP Act) that personal information "means information or an opinion (including information or an opinion forming part of a data base and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion".
The Tribunal then considered the meaning of "conduct" pursuant to Part 5 of the PPIP Act, which is concerned with conduct which is alleged to contravene an IPP, contravention of a privacy code of practice that applies to an agency, or the disclosure by a public sector agency of personal information kept in a public register. Section 52 of the PPIP Act which the Tribunal set out [46], is consistent with that summary. The Tribunal identified [47] the application before it as concerning "conduct" pursuant to s 52(1)(a) of the PPIP Act, being "the alleged contravention by the Council of a number of IPPs that apply to it".
Under the heading "Tribunal decisions on what is meant by the "conduct" of any agency" the Tribunal reviewed a number of authorities [49]-[53]. We do not understand the Tribunal's review of the authorities to be controversial for present purposes. The Tribunal recorded, by reference to CEU [50] that the Tribunal undertakes a review of the conduct in issue but is not engaged in a review of the internal review outcome.
The Tribunal further recorded [51], by reference to the authorities there identified, that "conduct" is a "description of what the agency did or did not do with the personal information", which [52] can include "inaction". The Tribunal referred [53] to the statement in BVV v Commissioner of Police [2020] NSWCATAD 182 at [31] "that the expression (conduct) used in this area of the law to describe action by the agency or circumstances involving the agency that might amount to a possible contravention of an information principle: PPIPA s 52" was "conduct" and that an internal review application must show a "connection between "conduct" and an IPP".
The authorities establishing "that there needs to be material that can be understood by the agency, fairly read, as connecting the action or circumstances of concern to a principle, whether or not the (information) principle itself is actually specified by the application" were identified by the Tribunal [55].
The Tribunal recorded [56] that it only had jurisdiction to review conduct that was complained about in the relevant internal review application and, thus could not review matters which were not raised in the course of the internal review.
The legislative provisions governing internal reviews by public sector agencies were recorded by the Tribunal [58]-[62]. So were the matters which are to be addressed in an internal review investigation and report [63]-[64].
The Tribunal identified [66] the orders which it could make pursuant to s 55(2) of the PPIP Act. They included s 55(2)(a) "an order requiring the agency to pay to an applicant "damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct" and various other forms of non-monetary action which do not assume significance for present purposes.
Under the heading "Orders for damages and causation", the Tribunal considered the substantive issues in the proceedings before it. The Tribunal recorded [67] that the power to award damages to the Appellant by way of compensation for any loss or damage suffered could "only be made if the Tribunal was satisfied that the Applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the Council" pursuant to s 55(4) of the PPIP Act.
The Tribunal further recorded [68] that the Appellant bore the onus of establishing a "causal link" between the breach of privacy and the damage allegedly suffered. The Tribunal considered [69] whether it must be "satisfied that the damage would not have occurred "but for" the conduct of the Respondent", for which proposition authority was cited.
However, the Tribunal considered [70] that the "material contribution" test embraced in CPJ v The University of Newcastle [2017] NSWCATAD 350 was the appropriate test. In reliance upon the authorities there cited, the Tribunal found [71] that for the Appellant to succeed, "particular evidence is required that the conduct of the agency that is the subject of the complaint (and not the conduct of the agency more generally) has caused the alleged loss or harm". Psychological harm was accepted as encompassing "a situation where an individual suffers some impairment of their mental states and processes" which could include a condition such as "depression and anxiety".
The Tribunal accepted [72] that a medical report that establishes a causal connection between an agency's conduct and psychological harm suffered by an applicant "meets the precondition in s 55(4)(b) of the PPIP Act". A medical report asserting aggravation of an applicant's stress was held to be "probably not sufficient to establish that the person is suffering from a physical or psychological condition "because of the conduct of the public sector agency"" (GR v Department of Housing [2003] NSWADT 268).
The Tribunal observed that a claim for damages for psychological harm could fail for insufficient evidence, including a lack of "specific diagnosis or prognosis in respect of any psychological harm". The Tribunal accepted [73] that "mere distress" was recoverable psychological harm. The Tribunal recorded [74] by reference to CJU v SafeWork NSW [2018] NSWCATAD 300 that the "types of claims, supported by some independent evidence, that would be needed to seek compensation on the grounds of psychological harm by way of distress, would be "specific consequences that flowed from (the conduct) such as impact upon (an applicant's) … work, sleeping, lifestyle, relationships or treatment for (an applicant's) state of mind".
The "sequence of events leading to privacy complaint and evidence considered" recorded [75] that the Appellant "complained" to the Respondent about two issues. The first (complaint 1) about the "family tip" was made verbally and was found by the Tribunal to have most likely been made on or around 4 September 2019. The Appellant's complaint about heavy vehicle restrictions (complaint 2) was made in writing. The "sequence of events" precipitating EEC's privacy complaint was set out in detail by the Tribunal and provides background to and context for the present proceedings.
The Tribunal recorded [77] that the Appellant "was concerned about a built up area of the local township that he alleged was frequently used as a "family tip"". The Appellant asserted that, apart from the Ombudsman, the local government office, the Environment Protection Authority, Council staff and Councillor Whitechurch, he had not told anyone about his complaint concerning the "family tip" [78].
The Appellant alleged that, on or about 4 September 2019 [80] he spoke to a Council officer and "explained there was a "sensitive situation" that needed to be addressed, that it concerned the longstanding usage of land as a "family tip", and that created an "image problem" for the Council and Mayor". After the conversation with the Council officer [82] the Appellant "understood that the officer would investigate the matter and provide an update to him". In the following week the Appellant left a number of telephone messages with respect to his concerns, the third of such messages being left on the same day that he delivered his letter to councillors with respect to heavy vehicle restrictions.
The Tribunal referred [84] to the evidence of the Respondent's "Sale Yards, Ranger and Town Services Coordinator" ("Ranger") noting that it could not be "reconciled" with some aspects of the Appellant's recollection of the telephone call on or about 4 September 2019. The Tribunal found [85] that in giving oral evidence, the Ranger had a "clear recollection" that a Council staff member had transferred the Appellant's call through to his mobile phone but that, contrary to the Appellant's assertion, he did not return the call. The Ranger was cross-examined by the Appellant. The Tribunal noted [86] that the Ranger could "not recall whether he had introduced himself to the Appellant but that, he never referred to himself, as the Appellant did, as the "dog catcher", usually introducing himself as "the Ranger"".
The Tribunal recorded the evidence of the Ranger that the Appellant was "upset and angry in the phone conversation" and had alleged that "the waste problem had been going on for some time and that the Council was corrupt". At that point, according to the Ranger, he informed the Appellant that he would raise the Appellant's complaint with his Director, Ms Appleyard [87].
The Tribunal recorded [88] a number of matters about which the Ranger had no clear recollection, although [89] his "clear recollection" was that EEC was not happy. The Tribunal referred to a written statement (which became Exhibit R1) [90] and found [91] that the Ranger's "oral evidence was generally consistent with the matters referred to in his written statement".
The Tribunal considered the evidence of Ms Appleyard, who was the Respondent's Director, Development and Environmental Services [92]. Ms Appleyard deposed to the Ranger having "escalated to her a concern raised by EEC about the disposal of waste on land owned by a member of the mayor's family" but had "not shared the complaint with anyone outside the Council". The Tribunal recorded [94] Ms Appleyard's oral evidence that an "independent assessment of the "family tip" issue was conducted and "no health concerns were identified with dumping of waste on the property". Ms Appleyard further stated that a visual survey "had concluded there was no asbestos, that materials were taken to Urana landfill, that the land had been cleaned up to an independent standard which met the EPA's requirements, and there were no hazardous materials on the site".
The Tribunal recorded [95] that cross-examination of Ms Appleyard by the Appellant did not involve any questions concerning "how his personal information was managed". The Tribunal referred [96] to evidence given by Ms Appleyard in response to a question by it with respect to the process for dealing with a complaint of the kind made by the Appellant and "how the matter was captured in the Council's records". Ms Appleyard was recorded as having said that the "information would be entered in the Council's Customer Request System or in an email or file note". Ms Appleyard had in this instance emailed the General Manager and copied the Ranger into that email. Ms Appleyard was recorded as having "identified that the property address was linked to the Mayor's family" and, in those circumstances having "engaged an independent private contractor to ensure there was no conflict of interest".
For the reasons which it articulated [97] the Tribunal preferred the evidence of the Ranger to that of the Appellant with respect to the conversation between the Appellant and a Council officer on or about 4 September 2019, in which the Appellant raised his concern about the "family tip".
The Tribunal considered the deficiencies in the evidence of each of the Ranger and Ms Appleyard [98], noting that the Ranger's memory was "nonetheless clear on the subject matter discussed and EEC's emotional state" during the telephone conversation on 4 September 2019.
The Appellant's concerns about heavy vehicle restrictions were considered. The Appellant's letter to the Councillors of the Respondent of 7 September 2019 (the letter), nine hard copies of which he delivered to the Respondent on 11 September 2019 were considered [99]. None of the nine copies was "individually addressed to each Councillor and none were individually numbered to distinguish one copy from another". The letter contained the Appellant's name, address and mobile phone number, and was not marked "confidential" or "personal" or "private" [100]. The subject matter of the letter was heavy vehicle restrictions affecting a particular street in Urana, as the statement on the top right hand corner of the letter confirmed.
The Tribunal recorded [102] the Appellant's assertion that he "did not tell anyone about his letter of 7 September 2019 before discussing it with XX". The Tribunal found [104] that it was "difficult to understand the full content and purpose of EEC's letter dated 7 September 2019. It appeared to assert that the Council failed to consult with the community and lacked transparency in its decision making on the issue of heavy vehicle restrictions impacting upon traffic in Urana. It contained highly emotive language in parts and asked questions that are neither direct nor purposeful". The letter was considered [105] to contain a paragraph which was "overtly critical" of the Respondent's General Manager in the respects identified by the Tribunal.
The Tribunal referred [107] to the Council's assertion that the Appellant's letter about heavy vehicle restrictions had been considered by a Council meeting attended by Councillors and the Council's General Manager on 17 September 2019 from 9.30 a.m. until 12.30 p.m. A hard copy of the Appellant's letter had been placed at the seat of each of the nine Councillors who attended that meeting. The meeting was interrupted for a citizenship ceremony from 10.30 a.m. to 11.15, whereafter the letter was considered [108].
The Tribunal found [109] that on 17 September 2019, before the Council meeting concluded and some time prior to 11.37 a.m., XX who was a "member of the family who allegedly used the land in question as a tip, approached EEC in the street, to ask why he had written nine letters to the Council about the "family tip"". The Appellant denied to XX that he had written a letter to the Councillors about the tip. The Tribunal recorded [110] the Appellant's recollection (from a document named "Affidavit 004") of the conversation as:
"XX [asked] was my head alright and what my problem was with their hole in the ground, confused I admitted I had spoken to some compliance person (dogcatcher) about (the land), XX then repeated the line and added why write 9 letter(s) about it? Other discussion transpire for some reason XX continued to repeat why write 9 letters like 3 times during an exchange of dialogue. I was then obligated to produce a copy of the 9 letters I sent to XX to validate my dialogue during the interaction outside Tuesday 11.45 a.m. is the time I emailed a copy to XX."
The Tribunal referred to the Appellant's email, actually at 11.37 a.m., to XX "to demonstrate that the letter was not about the tip, but about heavy vehicle restrictions."
On 19 September 2019 the Appellant made a privacy complaint to the Council.
The Tribunal considered the evidence of XX in some detail, and commenced by referring to XX's written statement that he did not hear about the Appellant's complaint from a Councillor or Council officer, but rather "was advised about the complaint by another member of the local community who shared with me that they had heard [EEC] discussing his complaint". The Tribunal recorded [115] that "XX's oral evidence was that when he saw EEC in the street, he immediately approached him about the matter. XX said that he wanted to solve the issue because it caused stress for his father". XX was found [116] to have had a "reasonably clear recollection of his conversation with EEC, and of saying to him "Why take the matter to council? We'll sort it out"". The Tribunal also referred to other matters emerging from XX's evidence.
XX was found [117] to be unable to recall "exactly when he had learned about EEC's complaint, thinking that it was "possibly a day or two before his conversation with EEC" and that he "may have been in the pub" when he had learned in discussion with a member of the local community that EEC had been "overhead" talking about his complaint to Council about the "family tip".
Although not entirely clear, the Tribunal found that although XX "maintained that he had learned about EEC's complaints from a conversation in the pub, at some point in time, the Council's inspection of the land took place in response to EEC having raised the matter with Council".
The Tribunal found [119] XX to have given "oral evidence in a forthright manner". For the reasons it articulated, the Tribunal [119]-[121] inferentially accepted XX's version of the relevant conversation with EEC, but noted [122] that XX's oral evidence "did not solve the mystery of how a connection was somehow made between EEC's letter to the Councillors and EEC's verbal complaint about the family tip. The source of XX's information was not disclosed, was not corroborated by any other evidence, and could not be tested".
The Tribunal referred to the Council's reconsidered decision noting [127] that "the Council did not proffer an explanation about how XX or another unrelated third party may have known about both EEC's letter to Council and his complaint about the "family tip"". The Tribunal recorded a number of matters "postulated" by the Respondent as to how XX would have come to know, on the day of the Council meeting when 9 copies of the Appellant's letter were circulated to Council members, that EEC had actually generated 9 letters.
After referring to the "Council's findings on IPPs" [128]-[137], the Tribunal considered as the "first issue" its jurisdiction to hear the matter. We do not understand either party suggests that the Tribunal lacked jurisdiction to hear and determine the proceedings. The Appellant seeks that the proceedings be re-heard, which is clearly inconsistent with any assertion that the Tribunal lacked jurisdiction. The Respondent's submissions in opposition to each of the reliefs sought by the Appellant do not involve any suggestion that the Tribunal lacked jurisdiction to determine the proceedings, its contention being that the Tribunal had such jurisdiction and exercised it in ways that would not enliven appellate intervention.
The Tribunal found [150] that, because of what were considered deficiencies in the Respondent's recordkeeping practices, it was "not known what personal information of the Applicant was in fact recorded in Ms Appleyard's email", it being possible that "none of EEC's personal information was recorded". The Tribunal found that it was "reasonable to conclude that (his) name and mobile phone number were recorded somewhere within the Council's records".
The Tribunal found [151] that "since the collection of EEC's personal information related to a complaint about a parcel of land being used for waste dumping within the jurisdiction of the Council, this was a matter within the Council's functions and the collection was therefore lawful, in compliance with IPP1. The information was obtained directly from EEC, and therefore was in compliance with IPP2". The Tribunal found that the information collected "was not excessive, and there was no breach of IPP4".
So far as the heavy vehicle restrictions complaint was concerned, the Tribunal found [153] that collection of EEC's personal information was "lawful" and satisfied IPP1, for the reasons which the Tribunal recorded at [154].
As the Respondent had not advised EEC "of who else might see his information or how he could view and correct personal information" the Respondent was found [156] to have not fully complied with the requirements of IPP3. The information collected by the Tribunal was held [157] to be "relevant to the purpose for which it was collected and was not excessive, accurate up to date and complete in so far as it comprised information provided by EEC on his letter to Councillors" and therefore complied with IPP4.
The Tribunal found with respect to the Appellant's first complaint that there was "no evidence that the Council's email system is not safe or secure" [159]. With respect to the heavy vehicle issue, the Tribunal found [161] that there was "insufficient information to know what happened to each of the nine hard copies of the letter once the meeting had concluded". The Tribunal thus found [162] that there was "no evidence to suggest that the Council's record management system or email system are not secure or not adequate".
The Tribunal found the Respondent's examination of its recordkeeping practices, as revealed by its reconsidered decision to be "not particularly detailed or thorough but, no breach of IPP5 with respect to either complaint had been established" [163].
For reasons recorded by it [164]-[167] the Tribunal found that no breach of IPP6, IPP7, IPP9 or IPP10 had been made out. IPP12 was held to have no relevance to the facts and circumstances of the matter before the Tribunal [168].
The Tribunal identified as the "key issue to be considered" [169] IPP1 and "whether the Council through its Councillors and/or staff, disclosed EEC's personal information to a member of the public with respect to complaint 1 and complaint 2 without EEC's consent". The Tribunal referred [170] to the evidence of the Respondent's General Manager that he had read EEC's letter on heavy vehicle restrictions, discussed such restrictions with Councillors and Council officers, and had not shared information about EEC's concerns with parties outside Council.
The Mayor provided a written statement, the first paragraph of which the Tribunal found [171] to be "very confusing" as it stated "I am aware that Council has received a letter from [EEC] regarding his concerns about activity on my father's property and which he has referred to as the "family tip". The Mayor stated [171] that he had not seen the letter referred to in his statement and "was aware of the issue because his father had received a letter from the Council Health Inspector and that was how he was made aware". The Mayor was recorded [173] as being unable to recall receiving the letter to Council from EEC and unable to remember whether other Councillors had received the letter, although the thought "that must have happened at some stage since heavy vehicle restrictions are a longstanding issue".
The Tribunal referred [174] to the evidence of the Deputy Mayor, Councillor Whitechurch, at [175], denying that he had "shared information" about the Appellant's heavy vehicle restrictions concerns with parties outside Council. The Deputy Mayor was not required to attend and give evidence by either party. The Tribunal recorded that his statement "could therefore not be tested and is given little weight" [175].
The Tribunal identified the Council staff who knew, or may have known, about complaint 1 concerning the "family tip" [176]. The Tribunal identified the Councillors and Council staff who knew about the heavy vehicle complaint [177]. The Tribunal found [181] that the Appellant had "not presented any objective evidence to prove that someone within the Council, whether a Councillor a staff member, told XX about EEC's complaints. EEC has therefore generally failed to establish his allegations". The Tribunal added [182] that "Overall, there is insufficient evidence to conclude that the Council through its Councillors and/or Council staff disclosed EEC's personal information in contravention of IPP11 with respect to both complaint 1 and complaint 2".
Whether the Appellant had suffered loss or harm because of the conduct of the Council was then considered. As is not in doubt, part of the Appellant's claim related to "psychological harm". The Tribunal recorded [184] that "Even where a causal link sufficient to satisfy s 55(4)(b) of the PPIP Act is made out, the award of statutory damages under the PPIP Act is discretionary".
The Tribunal considered [185] the referral of the Appellant for "medical screening and psychiatry assessment on 26 August 2020 by his treating GP who said that the Applicant had acute symptoms of emotional lability/anger and suicidal ideation." The referral from the GP recorded that the Appellant had been "diagnosed with depression in January 2017", two years and eight months before EEC made his complaints to the Respondent.
The Tribunal referred [186] to the GP's assessment of the Appellant's mental health on 2 November 2020. The Tribunal referred [187] to a number of relevant aspects of the Appellant's medical and social history [187]. The Tribunal also referred to a report from the Appellant's treating Psychologist, Dr Woodhouse, of 20 April 2021. Dr Woodhouse. The Tribunal found [188] that the Appellant's treating Psychologist did not know the Appellant prior to her report of 20 April 2021 "and did not offer her own opinion about the cause of EEC's mental state", although she reported that "EEC felt that the action of making a complaint and the process that followed, contributed to his poor mood" and that "since ceasing his business, he had experienced financial strain".
A subsequent report from the Appellant's Psychologist was referred to [189]. Although again finding that the Appellant was "suffering from anxiety and depression" the psychologist did not express "her own opinion about the cause of EEC's condition", having "relied upon EEC's statements that he feels the impact of making his complaint to NCAT has been the major contributor to his poor mental state".
The medical evidence established [190] that the Appellant had a "family history of psychiatric illness and was diagnosed with depression in January 2017, prior to his complaints to the Council". The Tribunal further found that the mental health assessment of the Appellant in November 2020 found the "stressors to be the closure of EEC's business (around 12 months before his complaints to the Council) and his anger with local government for failing to provide support for the growth of businesses in the area". The Tribunal recorded that the assessment "did not make a causal connection between EEC's privacy complaints and his mental state".
The Tribunal reiterated [191] its earlier findings that the Appellant's treating psychologist had "not provided her objective opinion on the cause of the Applicant's depression, relying instead on his statements that he feels his mental state as a result of his complaints and the process that followed".
The Tribunal recorded [192] that while "distress is a recoverable psychological harm" the reports of the Appellant's treating psychiatrist in reliance upon the Appellant's own statements about his assessment of the cause of his anxiety and depression was "not sufficient to establish that the person is suffering from a psychological condition "because of the conduct of the public sector agency"". The Tribunal reiterated the absence of expert opinion evidence with respect to "any causal link" between the mental health of the Appellant and the process associated with his complaints.
The Tribunal referred [193] to the Appellant's submissions that "the Council's delay in completing the internal review caused him significant stress and frustration". For the reasons which it recorded [194]-[196], the Tribunal found [197] that the Appellant had "suffered distress because of the Council's tardiness to undertake the internal review" and awarded him $1,000 for his distress.
So far as the Appellant's "claim for financial loss" was concerned, the Tribunal set out at [198]-[202] the reasons for its inability to find [202] that the Appellant had demonstrated a causal link between the conduct of the Council and any asserted financial loss [201].
[4]
Principles governing the appeal
The principles governing the Appellant's appeal are not in doubt and do not require extensive reiteration. Pursuant to s 80(2)(b) of the CAT Act the Appellant may appeal as of right on any "question of law". In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at 13 the Appeal Panel recorded a non-exclusive list of "questions of law", being (citations omitted):
"(i) whether there has been a failure to provide proper reasons;
(ii) whether the Tribunal identified the wrong issue or asked the wrong question;
(iii) whether a wrong principle of law had been applied;
(iv) whether there was a failure to afford procedural fairness;
(v) whether the Tribunal failed to take into account relevant (i.e. mandatory considerations);
(vi) whether the Tribunal took into account any relevant consideration;
(vii) whether there was no evidence to support a finding of fact; and
(viii) whether the decision is so unreasonable that no reasonable decision maker would make it."
The Appellant's grounds of appeal assert:
"1 The Tribunal below erred in finding that there is insufficient evidence to conclude that the Council, through its Councillors and Council staff, disclosed the Appellant's personal information concerning complaints 1 and 2 that are referred to in paragraph 75 of the Tribunal's reasons.
2 That the Tribunal below erred in failing to find that the Council did in fact disclose the Appellant's personal information.
3 That the Tribunal below erred in finding that the Appellant failed to suffer and [sic] loss or damage arising out of the Council's disclosure of the Appellant's personal information."
Although a finding of fact which is not supported by evidence involves a question of law, the position is less clear when a complaint is expressed in the terms of ground 1 of the Appellant's Notice of Appeal (Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390). The question of law asserted pursuant to ground 2 is not readily apparent. We approach grounds 1 and 2 on the basis that the Appellant asserts that the Tribunal at first instance made a material error of fact in each of the respects asserted by those grounds. In Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274 at [45], Heydon JA accepted that a discretionary decision based upon a material error of fact could be erroneous in law.
Grounds 1 and 2 do not purport to raise any other question of law. Unless the Appeal Panel finds that each of the challenged findings of fact was "wrong", these grounds of appeal must fail.
As the authorities establish, an appeal is not a "second go", or an opportunity to re-run a case with a view to plugging "gaps" in the case presented at first instance which the decision at first instance reveals. Heydon JA observed in Micallef, at [45] that, even if the appellate court, or tribunal, "might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance…any such conclusion would be immaterial".
[5]
The Appellant's appeal- grounds 1 and 2
These grounds can properly be considered conjointly.
After referring in detail to the reasons for the decision of the Tribunal at first instance (31-37), the Appellant submitted (38) that the Tribunal "reasoned that because the Appellant had not presented any objective evidence to prove that someone within the Council, whether a Councillor or a staff member, told XX about EEC's complaints, he had failed to establish his allegations". It was then submitted (39) that this "form of reasoning" was erroneous "as it did not engage with or adequately deal with the evidence that was the subject of express findings made by the Tribunal". It was submitted to be relevant in that regard that the Tribunal had been critical of the Mayor's "confusing evidence", and "particularly critical" of XX's evidence.
The Appellant referred to the Tribunal's reasons at [119] recording that XX's evidence:
"that he "may" have been in the pub when he learned about EEC's complaint regarding the tip was, however, somewhat vague and evasive. In my view, XX lacked candour in recalling the circumstances of when and how he had learned about EEC's complaint. Some allowance can be made for XX's assertion that the person who had informed him about EEC's complaint wanted his identity protected because the community is very small. Nonetheless, only a small amount of weight can be attributed to that aspect of XX's evidence."
The Appellant referred (40) to the finding of the Tribunal, at [122], that XX's "oral evidence did not solve the mystery of how a connection was somehow made between EEC's letter to Councillors and EEC's verbal complaint about the family tip. The source of XX's information was not disclosed, was not corroborated by any other evidence, and could not be tested."
The Appellant asserted, without identifying the legal basis for doing so, that he "challenges this finding" (41). The Appellant further submitted (42) that the Tribunal "ought to have found that the evidence was sufficient to establish on the balance of probabilities that the disclosure of the substance of the Appellant's complaints to [XX] came from a Councillor or staff member".
Although not a ground of appeal, or in our view reasonably implied by any ground of appeal, the Appellant further submitted (43) that, to the extent that "proof of disclosure required proof of every link in the chain of disclosure, which seems to be the case from the findings at [122] and [181] to [182]" the Tribunal fell into error. It was submitted that a case like that of the Appellant "based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence". Although we do not disagree with that proposition, the Appeal Panel is unconvinced that this was not, ultimately, a case involving inconsistent versions of events in which neither party's version was materially advanced by circumstantial or other evidence, and ultimately turned on whether the Appellant had proved his case on the balance of probabilities.
Although, as it does not arise pursuant to a ground of appeal, it is strictly unnecessary to do so, we record that we are not persuaded that the Tribunal required "proof of every link in the chain of disclosure". The Tribunal considered the evidence of all witnesses with respect to the issues requiring determination. No ground of appeal asserts a failure to have regard to a relevant considerations, or to have had regard to irrelevant considerations. The Appellant does not challenge the adequacy of the Tribunal's reasons for its decision.
In a submission which could advance the pleaded grounds of appeal, the Appellant further asserted (43) that "a series of basic facts, when considered as a whole, not individually or in isolation, all point in the direction of the source of the information concerning the disclosure of both complaints being either a Councillor or a Council staff member". To succeed with that contention, the Appellant needs to demonstrate that the "basic facts" could, on balance, only point in that "direction". Merely demonstrating that they could do so would not establish appealable error.
The Appellant submitted (44) that "the counterfactual to disclosure from a Councillor or staff member is that XX somehow became aware of the circumstances of 9 letters having been sent to the Appellant and the circumstances of complaint 1. Such a possibility is highly improbable since it assumes that it was the Appellant that disclosed the circumstances of both complaints to a member of the community that had no association with the Council. It assumes that the Appellant was prepared to tell such a person that he had made a complaint that was in effect a complaint about the Mayor and his family. It also assumes that he told such a person that he had sent 9 letters about the substance. That possibility can be discounted given the action taken by the Appellant at 11.37 p.m. [sic] to assure [XX] that the letters he sent related to the circumstances of complaint 2."
The Appellant relied (45) on the evidence of XX that he "may" have been in a pub when he learned about complaint 1, that a "third man" made him aware of complaint 1, that he did not want to name the third man as he "wanted his identity protected because the community is very small" and that the third man was a member of the local community who "overheard" the Appellant talking about complaint 1. The Appellant relied upon the findings of the Tribunal that the evidence of XX concerning the source of his knowledge of the circumstances of complaint 1 was "somewhat vague and evasive" and that he "lacked candour in recalling the circumstances of when and how he had learned about EEC's complaint".
The Appellant also referred to the conversation between the Appellant and XX, who was the brother of the Mayor which occured towards the end of the Council meeting on 17 September 2019, which was the first time complaint 2 was raised with the majority of the Council members.
The Appellant submitted that it had not been put to the Appellant that he had disclosed the circumstances of complaint 1 to any person "outside of the Respondent". It was thus submitted that the Tribunal fell into error in determining that there had been no breach of IPP11 and that the Appeal Panel should make findings to that effect. The alternate submission (47) of the Appellant that, if the Appellant was successful, the proceedings should be remitted for rehearing identifies the only outcome which could result in those circumstances.
Significantly, the Tribunal did not find that the Appellant had disclosed the circumstances of complaint 1 in the manner described by the Appellant. As the transcript records, the Appellant and XX did not materially disagree about what was said by each of them on 17 September 2019. The issue was whether XX's statements during the conversation could be accepted. If XX's explanation was, or should have been rejected, the Tribunal would have been obliged to find for the Appellant with respect to the disclosure of his personal information. With respect to the Appellant, it does not follow that, absent a finding that the Appellant did make the relevant disclosure, the Tribunal should have found that the disclosure of the Appellant's personal information was, or must have been made by the Respondent.
The Respondent submitted (20) that it was not clear whether the Appellant's challenges to the quantum of damages awarded to him was dependent upon successfully overturning the Tribunal's finding with respect to IPP1, or whether the Appellant suggests that if the finding below, that there was only a breach of IPP3 is not disturbed, the damages should be for the greater amount. If the Appeal Panel upheld grounds 1 and/or 2 success on ground 3 would necessarily follow, having regard to the basis of the damages awarded by the Tribunal at first instance. Although, as pleaded, ground 3 may not have an independent foundation, we understand from oral submissions on his behalf that the Appellant challenges that decision independently of the fate of grounds 1 and 2. If grounds 1 and 2 fail, ground 3 is in substance a challenge to the Tribunal's exercise of discretion with respect to the award of damages on the limited basis upon which they were awarded.
[6]
Consideration- grounds 1 and 2
In oral submissions, Counsel for the parties referred extensively to the evidence before the Tribunal at first instance. The reasons for the Tribunal also referred extensively to that evidence. Rather than refer sequentially to the passages of transcript referred to by the Appellant, and then to those referred to by the Respondent, it is more instructive to follow the narrative which the transcript reveals.
XX gave evidence before the Tribunal at first instance by AVL. Before the Tribunal was a file note made by the Respondent's Director of Corporate and Community Services on 3 November 2020 (Appeal Book p366) which recorded a "discussion" on 29 October 2020 between XX and the Council officer. The Council officer's file note stated:
"(XX) confirmed that he had an exchange of words with [EEC] on, or around the date in question. He confirmed that he had knowledge that a complaint letter had been sent to Council. He advised that the letter had come to his attention through a contact in the [redacted]. His understanding was that [EEC] had complained to the [redacted] and that this is where his informant became aware of the situation."
The file note further recorded "(XX) expressed his concern for the protection of the individual who had advised him of the existence of the letters, given that Urana has a very small population and the individual would not be difficult to identify if further information was supplied. He requested that the identity of the individual remain strictly confidential."
XX's own statement dated 7 April 2021 (Appeal Bundle p367) relevantly recorded:
"2 I had an exchange of words with (EEC) in mid-September 2019, in which I referred to a complaint that he had sent to Council in relation to the "family tip".
3 I was advised about the complaint by another member of the local community who shared with me that they had heard (EEC) discussing his complaint. I did not hear about the complaint from a councillor or council officer."
It is apparent from the transcript of the hearing (commencing at Appeal Bundle p88) that there were some difficulties with the technology during XX's oral evidence. XX confirmed (Appeal Bundle p89) that he had not seen a document which EEC provided to the Tribunal describing the conversation which EEC asserted that he had with XX on 17 September 2019.
On 24 October 2019, in response to questions asked of him by the Respondent's Privacy Contact Officer, EEC said (Appeal Bundle p544) with respect to his conversation with XX on 17 September 2019 that:
"At 11.25 a.m. approximately I was asked by contractor not sure about Council officer [XX] was my head already and what my problem was with their hole in the ground, confused I admitted I had spoken to some compliance person (dogcatcher) about "Kashmers" block, [XX] then repeated the line and added why write 9 letter about it? Other discussion transpire for some reason [XX] continued to repeat why write 9 letters like 3 times during an exchange of dialogue. I then was obliged to produce a copy of the 9 letters I sent to [XX] to validate my dialogue during the interaction outside the Urana newsagency 17/9/19 Tuesday 11.45 is the time I emailed a copy to [XX]. As for how or who, when or why [XX] had the understanding he had in relation to the hole in the ground or family tip and me writing 9 letter about it is a mystery to me, [XX] might have some recall in relation to his gospel understanding or belief."
After some difficulty with the technology, XX's cross-examination by EEC commenced (Appeal Bundle p91). The Appellant asked XX "Remember our conversation back in mid-September when we met down the street there in front of the café, when you weren't happy about" to which XX replied "Yeah, I do". The Appellant then asked "The information that [XX] had that I'd made a complaint about his hole in the ground, was that information he got that day, or was it a couple of days before, or the week before or". XX replied (p92) "I couldn't really tell you that. When I saw you there, I thought I'd go and discuss it with ya, because you're really having a go at my father not me. And my father's 84, and I don't want him copping that sort of stress". The Appellant replied "That's fair enough [XX]. I've got no problem with that, but I will run through a couple other questions for you, right?"
The Appellant then asked "So you can't say whether you got that information that day?". XX replied "Nah I can't really remember what day I got it." When pressed further, XX reiterated that he could not "remember what day I got it" but did confirm that it was not the day before or two days before the conversation.
The Appellant asked XX whether he remembered where he was when "the person told you that they heard me talking to somebody else about a complaint", to which XX replied "Vaguely. No, not really", adding "Might have been in the pub, I'm not sure", the "pub" in question inferentially being the Urana Hotel.
XX was questioned about the "tip bit". The Tribunal raised (p94) with the Appellant the relevance of his questioning. Although the relevance of the questioning is difficult to suggest, the Tribunal did not prevent the Appellant from asking further questions about the "tip".
The Appellant asked "Has anybody from Federation Council asked (XX) if there were any concerns in relation to what may be in the tip, or the hole in the ground". The Tribunal suggested that, "if it is a question that relates to whether you think that someone at Council has said something to Mr Bourke about your complaint, can you put your question in … those terms please".
The Appellant then asked "I believe that because of your complaints that the tip was inspected by Council, and was given the okay - that there's no contaminants." In response to the question XX said [p96] "I believe that because of your complaints that that tip was inspected by Council, and was given the okay - that there's no contaminants. Yeah, but nobody has asked me because that land is not in my (inaudible), it's in my father's."
The Appellant returned to the subject matter of the proceedings before the Tribunal asking (p96):
"Do you recall saying "Why write 9 letters? What's wrong with your head?" Do you recall saying that inaudible when we met down the street that day or did you just want to have a talk to me about?"
XX replied:
"I spoke to you about the tip, and I - I approached you, not to have a blue, but to resolve the problem. I said to you "Why take it to Council. Why don't you come and see a bloke, and we'll sort it out. And it will be quicker than going through Council if you - you know, if it's such a problem we'll get rid of it". And I told you "I actually don't like it, it looks like an eyesore so, you know, we'll clean it up". And then you just [interruption] "Went on, and on, and on, and you - you actually went on and said about Pat Slash saying that the council had brainwashed him, and Adrian Butlers nothing but a c**t and he'll get his."
At the request of the Tribunal, XX reiterated the substance of the answer he had just given.
In subsequent exchanges (p97) the Appellant suggested that XX's evidence was "garbage that's come out of your mouth", to which XX replied "Well, you - this is what was said, that's what I'm telling ya". The Appellant replied "Well I'll put it to you this way (XX), that the only person's interests you're protecting is yours and your family's, and I don't understand why you come up with this garbage". The Tribunal at that point intervened to "de-escalate" the exchange.
In response to a question from the Tribunal, XX said (p98) "I heard he had complained to Council about our tip" and clarified that he "thought it was a verbal complaint". The Tribunal referred XX to his statement that "I was advised about the complaint by another member of the local community who shared with me that they had heard (EEC) discussing the complaint". The Tribunal asked XX about the conversation to which he replied "I don't really remember, because I got - I got pretty wild about it, but I don't really remember where I was, I am sorry."
The Tribunal then explained that it was seeking to "clarify" how the conversation occurred. XX said "No, they just said to me inaudible, "I hear [EEC's] complaining about your tip to Council" (p99).
The Tribunal then asked XX whether that was "the first time … that you knew that, or had any inkling that (EEC) was making a complaint about the land being used in that way?". XX replied "Yeah, it was". The Tribunal then asked "Do you know who it was alleged that (EEC) was telling? This - so this person said that he'd overheard (EEC) telling someone about his complaint. Do you know who it is that it's asserted (EEC) was saying he'd made a complaint to? Because this is important." XX replied "Yeah, I know, I'm sorry, I didn't ask". XX reiterated that he did not know whether he had the conversation with the unknown person in the community on the day he met with EEC or potentially a day or two earlier. XX reiterated "Not really, it was a long time ago". XX clarified that the "issue" in his mind was that EEC had made a complaint to Council "purely about the tip" and that he had no knowledge that EEC had written to Council about heavy vehicle restrictions.
XX gratuitously stated that the Appellant was "always complaining about something, and he's just a nuisance, but when it involves us, well that's when I got involved". XX's evidence then concluded.
Adrian Butler, an officer of the Respondent made a statement which was before the Tribunal, and was cross-examined by the Appellant. Nothing to which we have been referred, or discovered for ourselves, suggests that the evidence of Mr Butler assumes significance for present purposes.
The Mayor of the Respondent at all material times, provided a statement on 23 October 2020 which was before the Tribunal. The Mayor adhered to his statement. He was cross-examined by the Appellant. The Mayor stated (p113) that he or his father had received a letter from the Council Health Inspector about the "family tip" and "came down to me fairly worried and concerned about it. So, that was how I was made aware of that complaint". The Mayor was unable to recall the wording of the letter.
After some disruption resulting from technical difficulties, the Mayor reiterated that he had become aware that the Respondent had received a letter from EEC expressing concerns about the "family tip" as a result of a letter from the Respondent to his father, which the Mayor's father showed him. The Mayor reiterated (p115) "We got a letter of complaint … about the tip, that was brought to me by my father" which he thought was written by "Director Appleyard, or the Health Inspector Hugh Watters".
With respect to the letter the Appellant wrote to the Council in relation to heavy vehicle movements, the Mayor confirmed (p116) that "There was a letter written to Council, but I don't think that letter actually was ever directed to me I think all the other Councillors got a copy. Whether that was by email or hard copy I don't know, but my comment was I felt that they had bypassed me".
The Appellant's cross-examination of the Mayor continued, albeit, in our view, without materially advancing the issues which are presently relevant.
David Coppolino, Council's Ranger, referred to at times as the "dogcatcher", made a statement on 7 October 2019, which was before the Tribunal. After some technical difficulties, Mr Coppolino was cross-examined by the Appellant. When asked about his conversation with the Appellant in September 2017 (p70), Mr Coppolino said that he could "briefly remember the phone call … it was a long time ago … so I can't remember the whole thing", nor could Mr Coppolino remember how he introduced himself to the Appellant during that conversation.
In a serious of statements (p71), the Appellant appeared to suggest that the person purporting to be Mr Coppolino was not the person to whom he spoke on the telephone in September 2019. Mr Coppolino clarified, in response to an invitation from the Tribunal, to which the Appellant did not object (p72) that:
"I recall some phone call in regards to some waste being on Mr Bourke's property. And I recall during that conversation, obviously (EEC) was upset, and he said this has been going on since the Urana [Council] had been going, and I recall myself just saying, "Sorry, this is not for me, I'm going to raise it with my Director", which I did. So, I escalated it. So once I heard (EEC) say that there was waste, and it had been going on a for while, and he thought the Council was corrupt, I kinda - that was the - the end of my conversation, and I told him that I would raise it with my Director, which I did."
Nothing emerging from the cross-examination of Mr Coppolino to which we have been referred, or discovered for ourselves, suggests that it was not open to the Tribunal to accept his evidence.
Ms Appleyard, the Respondent's Director of Development and Environmental Services, who provided a statement on 7 October 2021 which was before the Tribunal, was briefly cross-examined by the Appellant (pp77-79). Nothing emerging from that cross-examination to which we have been referred, or discovered for ourselves, suggests that it was not open to the Tribunal to accept Ms Appleyard's evidence.
The Appellant was not cross-examined. The Appellant's version of relevant conversations was thus not directly tested. In closing submissions (p130) the Appellant reiterated his version of the events which are central to these grounds. The Appellant submitted that XX's hearing of his complaint with respect to the "family tip" from "someone in the community" was "a total untruth, and impossible. Absolutely impossible, because nobody even knew I was writing the letters about Stephen Street, let alone ringing up about the bloody - the tip!" The Appellant submitted that the Respondent's contentions with respect to the disputed events was "grossly wrong, and the hostility that (XX) showed me in the interview tells me that he didn't like to be there, and it also gives me an insight into his character …".
The Appellant further suggested that if the Respondent "had done your interview with (XX) and said :
"Righto, well who told you?" I've got no problem with whoever told it - they've got more to worry about from the family than they have from me … you've only got to see how they've worked themselves and - righto so - so all this all this other nonsense with all this harassment and all this stuff which has got nothing to do with my - my - my privacy breach, but it's all to do with the fact that you did not handle this properly and nip it in the bud in the first place."
In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, at [25] Gleeson CJ, Gummow and Kirby JJ said that "the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowances in that respect'".
Their Honours added, at [29] that in "some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compeling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect' to its own conclusion".
In Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, at [304] Barwick CJ said that an appeal by way of rehearing was not "a retrial of the issues. The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong".
The Appeal Panel approaches the present challenges in the manner required by the authorities to which we have referred.
The Tribunal's consideration of the evidence with respect to the issues with which these grounds are concerned commenced with its consideration of the evidence of the Appellant and the other witnesses who gave evidence at the hearing.
The Tribunal recorded [80] the Appellant's allegation that, on 4 September 2019, he had a telephone conversation with a Council officer who introduced himself as "the dogcatcher" in response to a call which the Appellant had earlier made to the Respondent asking to speak with a "compliance officer" during which the Appellant raised the longstanding usage of land as a "family tip" by members of the family of the Mayor.
Reference was then made to the evidence of Mr Coppolino, the Council officer who the Appellant alleged had identified himself as the "dogcatcher" who was in fact the Respondent's Saleyards Ranger and Town Services Coordinator. The Tribunal found [84] that Mr Coppolino's evidence "cannot be reconciled with some aspects of EEC's recollection of the telephone call in which he complained about the "family tip"". In particular the Tribunal identified the assertion that Mr Coppolino had identified himself as "the dogcatcher".
The Tribunal found [86] that Mr Coppolino confirmed that, whilst he could not recall whether he had introduced himself, he would not have referred to himself as the "dogcatcher". It is objectively difficult to see why, given Mr Coppolino's position, he would, when making a phone call in the course of his employment, so refer to himself. The Tribunal referred [87]-[88] to Mr Coppolino's version of the conversation and the limitations on his recollection of the conversation. The Tribunal also referred [89]-[90] to the Appellant's manner during the conversation. The Appellant's own evidence provides support for Mr Coppolino's observations in that regard.
The Tribunal recorded [90] Mr Coppolino's evidence that "he had not shared information about EEC's verbal complaint about the family tip with anyone except his supervising Director at the Council" and that he had "not spoken with XX about the matter". We have not been referred to any suggestion by the Appellant that Mr Coppolino had "shared" his personal information with anyone outside the Council.
The Tribunal recorded [91] that, although Mr Coppolino could not "recall the entirety of his conversation with EEC" his "oral evidence was generally consistent with the matters referred to in his written statement". Nothing to which we have been referred, or discovered for ourselves with respect to the evidence of Mr Coppolino, either on the basis of credibility or otherwise, establishes that his evidence could not be accepted. Nothing to which we have been referred suggests that Mr Coppolino's credibility was impaired by cross-examination or any other evidence. Nor was his evidence inherently improbable. Nothing emerging from mr Coppolino's evidence evidence in our view ought to have led the Tribunal not to accept his evidence. Acceptance of Mr Coppolino's evidence did not assist, but did not cause or contribute to the rejection of the Appellant's case at first instance. It simply eliminated a possible discloser of the Appellant's personal information.
The Tribunal referred to the evidence of Ms Appleyard, the Respondent's Director of Development and Environmental Services [92]-[95]. The Tribunal recorded, accurately in our view, that no questions were asked of Ms Appleyard concerning how the Appellant's personal information was managed. No other evidence to which we have been referred suggests that Ms Appleyard's evidence should not have been accepted. Ms Appleyard was accordingly eliminated as a possible discloser of the Appellant's personal information.
The Tribunal recorded [96] Ms Appleyard's evidence with respect to the Respondent's process for dealing with a complaint of the kind made by the Appellant and "how the matter was captured in the Council records". The Tribunal recorded Ms Appleyard's evidence that as the property at which the "family tip" was alleged to be conducted was "linked to the Mayor's family, she engaged an independent private contractor to ensure there was no conflict of interest".
Under the heading "Assessment of the evidence about the family tip complaint" the Tribunal recorded [97] that the Appellant's written statement was made "approximately 18 months after his telephone call to the Council and suffers from lapse of time". That observation was consistent with longstanding authority accepting that memory "fades with time" (Watson v Foxman (1995) 49 NSWLR 315; Nominal Defendant v Smith [2015] NSWCA 339).
The Tribunal referred, accurately having regard to the transcript, to the Appellant's assertion that Mr Coppolino "could not have been, and was not in fact, the person he had spoken with" whereas Mr Coppolino had no hesitation in recalling his conversation with EEC. For the reasons which it advanced, the Tribunal accepted the evidence of Mr Coppolino that he was the person who took the complaint and had received the call on his mobile phone from EEC in the circumstances to which Mr Coppolino deposed. Having read the transcript of Mr Coppolino's evidence, in our view it was amply open to the Tribunal to prefer his version of disputed events to that of the Appellant. As we have earlier recorded, that finding was not fatal to the Appellant's case.
The Tribunal recorded [98] that the statements by Ms Appleyard and Mr Coppolino were made two years after the Appellant's telephone complaint and also suffered "from lapse of time". Their written statements were noted to be "not particularly detailed". Both were found to be "direct and forthright in giving their oral evidence". Mr Coppolino's memory was clear on the critical components of his telephone conversation with the Appellant. It is relevant that the Tribunal also acknowledged the impact on recollection of memory of the "lapse of time" with respect to the Respondent's witnesses.
In the context of its consideration of Complaint 2, the Tribunal referred to the Appellant's letter to the Respondent of 7 September 2019 [104]-[108] and the sequence of events in relation to the placing of a hard copy of the letter on the seat of each of the nine Councillors when the Council met on 17 September 2019.
The Tribunal recorded [110] the Appellant's version of the conversation with XX, a "member of the family who allegedly used the land in question as a "tip"" in the street at approximately 11.37 a.m. on 17 September 2019, which asserted "[XX] asked was my head alright and what my problem was with their hole in the ground, confused I admitted I had spoken with some compliance person (dogcatcher) about [the land], XX then repeated the line and added why write 9 letter[s] about it? Other discussion transpired for some reason XX continued to repeat why write 9 letters like 3 times during an exchange of dialogue. I was then obligated to produce a copy of the 9 letters I sent to XX to validate my dialogue during the interaction outside Tuesday 11.45 a.m. is the time I emailed a copy to XX".
The Tribunal referred in detail to XX's evidence [114]-[118]. Importantly, the Tribunal recorded [117] that XX "could not recall exactly when he had learned about EEC's complaint. He said he thought it was possibly a day or two before his conversation with EEC. His recollection was that he may have been in the pub when he had learned in discussion with a member of the local community that EEC had been overheard talking about his complaint to Council about the "family tip"".
Having read the transcript, we do not find that the Tribunal's account of XX's evidence was inaccurate. The Tribunal also recorded [118], accurately, that the crux of XX's evidence was that whilst he "maintained that he had learned about EEC's complaints from a conversation in a pub, at some point in time the Council's inspection of the land took place in response to EEC having raised the matter with Council". It is possible that XX learnt of the Appellant's complaint by the latter means, but that does not, without more, assist the Appellant's case.
The Tribunal closely assessed XX's evidence [119]-[122]. For the reasons which it provided, the Tribunal afforded only a "small amount of weight" to XX's evidence that his informant "wanted his identity protected". The Tribunal addressed [120] submissions made by the Appellant with respect to XX's asserted "hostility in giving his evidence" but accepted that XX was "speaking frankly and honestly about his exchange with EEC in the street" and, significantly, that "XX's oral evidence was generally consistent with some of the matters referred to in EEC's written statement about having criticised the Mayor and the General Manager".
The Tribunal recorded [121] its finding that XX's evidence was not "tainted by his professional association with the Council or his familial relationship with the Mayor", notwithstanding which "the weight to be given to his evidence is limited".
In the passage upon which the Appellant placed significant reliance, the Tribunal recorded as "important" that "XX's oral evidence did not solve the mystery of how a connection was somehow made between EEC's letter to Councillors and EEC's verbal complaint about the family tip. The Tribunal recorded that the "source of XX's information was not disclosed, was not corroborated by any other evidence, and could not be tested".
The Tribunal considered the evidence of the Mayor [171]-[173] which it found in parts to be "very confusing", for the reasons which it explained, which were valid. If the Appellant's case was that the Mayor had disclosed his personal information, the cross-examination of the Mayor does not in our view reveal that, however inexpertly, the Appellant, then or at any other time raised that suggestion. Notwithstanding the deficiencies in the evidence of the Mayor to which the Tribunal alluded, we do not find that anything arising from the Mayor's evidence assists the present challenges. We have not been referred to any suggestion by the Appellant that the Mayor wrongfully disclosed his personal information.
In a passage upon which the Appellant placed significant reliance, the Tribunal found that "EEC has not presented any objective evidence to prove that someone within the Council, whether a Councillor or a staff member, told XX about EEC's complaints. EEC has therefore generally failed to establish his allegations". If, as the Appellant contends, the Tribunal had said no more in relation to the issue, the Appellant's complaints may have had merit. In reality, there probably was no "objective evidence" which either party could have adduced. The Appellant's case was, necessarily in the circumstances, that, on the balance of probability, the disclosure of his personal information could only have been by an officer of the Respondent.
Significantly, the Tribunal further recorded [102] that "overall, there is insufficient evidence to conclude that the Council through its Councillors and/or Council staff disclosed EEC's personal information in contravention of IPP11 with respect to both complaint 1 and complaint 2". Although the Tribunal may have expressed its findings more clearly than it did, we are satisfied that "read fairly and as a whole" (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, at [77]) the Tribunal did not misdirect itself by dismissing the Appellant's case on the basis asserted by the Appellant.
Importantly, although inferentially preferring the evidence of other witnesses to the evidence of the Appellant where the two were in conflict, the Tribunal did not reject the Appellant's version of the conversation with XX on 17 September 2019. Nor, as noted earlier, did it find that the Appellant had told anyone "outside" the Respondent about the "tip" issue. The issue was whether the Appellant had discharged the onus of proof. That in turn involved the Appellant demonstrating that the evidence of XX and/or the Respondent's officers should not be accepted. As the Appellant made clear before the Tribunal, his case was that XX's assertions with respect to how he became aware of the Appellant's personal information should not be accepted, and that the Tribunal should find that, contrary to XX's claims, a Council officer, or a Councillor had disclosed his personal information to XX. The Tribunal did not find that the Appellant had told XX's unnmamed informant about his complaints. In the circumstances, the rule in Browne v Dunn (1893) 6 R 67 had no application. The Tribunal did not reject the Appellant's version of the conversation with XX on 17 September 2019, which did not differ materially from that proffered by XX in any event.
Having read the transcript, it is apparent that the Tribunal's task in hearing and determining these proceedings was not easy, for the reasons which the Tribunal recorded. To the extent that the Appellant challenges the Tribunal's acceptance of the evidence of Mr Coppolino, the Mayor, or the other Council officers who gave evidence, we are not persuaded that such challenges succeed on any basis emerging from the authorities to which we have referred. In any event, having regard to the case which the Appellant presented in the Tribunal, declining to find error in the acceptance of the evidence of those witnesses did not defeat the Appellant's claim, although, clearly, it removed each of those persons as a probable, or possible source of the disclosure of the Appellant's personal information.
The Tribunal gave proper, genuine and realistic consideration to the evidence of XX (Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291). It did so in a logical and principled manner, and had regard to relevant matters. Nothing to which we have been referred establishes tha the Tribunal erred by failing to reject XX's explanation of how the Appellant's personal information had been disclosed to him. Properly in the circumstances, the Tribunal had reservations about XX's credibility, but, for the reasons it recorded, did not reject his evidence. Although other findings may have been open to it, we do not find that the findings made by the Tribunal were "wrong", ot vitiated in any of the ways which the authorities recognise. We are not persuaded that the Tribunal erred in the manner asserted by either of these grounds.
We accordingly reject grounds 1 and 2.
[7]
Ground 3
The Appellant's submissions in support of this ground referred to the reasons for decision with respect to the claim for psychological harm and financial loss (48-50). The Appellant challenged the finding of the Tribunal that he had failed to establish a causal link between the conduct of the Council and any asserted financial loss and stated (51) that he "seeks to adduce further evidence concerning the nature of the distress suffered and how it affected him both professionally and emotionally". It was submitted that the further evidence demonstrated that "harm was suffered by the Appellant and it was significant, despite the evidence before the Tribunal at first instance being limited". A number of reasons were advanced for that state of affairs.
It is tolerably clear from the Appellant's submissions of 15 June 2022, and more readily apparent from his submissions of 20 September 2022, that the real challenge to the determination with respect to damages for psychological harm is in reliance upon further evidence.
As we have earlier recorded, the fate of grounds 1 and 2 means that the Appellant could only challenge the award of damages on the basis that such award was manifestly inadequate. The Appellant was awarded damages in the sum of $1,000 because he had "suffered distress because of the Council's tardiness to undertake the internal review" [197]. As the award of damages involved the exercise of an undoubtedly broad discretion, the Appellant could only successfully challenge it if he made out an accepted challenge to the exercise of the Tribunal's discretion.
The grounds on which a discretionary decision can be impugned are not in doubt, and can be briefly reiterated. In House v R [1936] HCA 40; (1936) 55 CLR 499, the High Court held that "it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred".
In Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, at [8] Brennan J said, by reference to earlier authorities that "the 'generous ambit within which reasonable disagreement is possible' is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference".
Nothing to which we have been referred establishes that the Tribunal erred in making the findings which it did with respect to the absence of a causal connection between the alleged disclosure of the Appellant's personal information and any psychological damage or financial loss suffered by him.
Damages may be awarded for distress in the absence of independent evidence of psychological harm, where there was acceptance from the submissions and material filed in proccedings, and an assessment of the applicant when the person participated in the main hearing, that the person has suffered emotional distress and harm, because of the aspect of the conduct of respondent in relation to which there was a finding of contravention (AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 at [20] and [30]). The Tribunal made such a finding, which was open to it.
In those circumstances, it is difficult to see on what basis the Tribunal erred on a question of law in awarding $1,000 for distress on the limited basis that it did. Objectively, the award was pursuant to the exercise of a broad discretion. Nothing to which we have been referred establishes any recognised basis for appellate intervention with respect to that decision. The Tribunal may permissibly have made a more generous award, but that is not the test.
None of the Appellant's grounds of appeal as of right having been demonstrated, it becomes necessary to consider his application for leave to appeal, and in that context, the application to adduce further evidence, it being reasonably apparent that, as submitted by the Respondent, the application for leave to appeal is substantially, if not entirely, dependent upon the receipt of further or assertedly "new" evidence.
[8]
Leave to appeal and to adduce further evidence
The principles governing applications for leave to appeal, and to adduce further evidence, in appeals from decisions of the Tribunal, other than decisions of the Consumer and Commercial Division, are not in doubt and were comprehensively reviewed in Ros v Commissioner of Police [2020] NSWCATAP 70. The Appeal Panel there recorded [20] that it was "well established that the Tribunal is entitled to weigh competing evidence concerning findings of fact or in considering the "merits" of a decision" notwithstanding that an alleged failure by the Tribunal to give "sufficient" weight to evidence does not identify any question of law and that it is not enough that the members of the appellate court consider that, had they been in the position of the original decision maker, they would have made a different decision, some error in exercising the discretion having to be established.
The Tribunal further recorded [22] that "The jurisdiction to review merits is not predicated on the appellant identifying a question of law or persuading the Tribunal that there has been an error of law". By reference to the decision in Collins v Urban [2014] NSWCATAP 17, the Appeal Panel accepted that "In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision making was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact". The Appeal Panel reiterated at [23] the observations of the Appeal Panel in Collins that:
"Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
It is readily apparent, and acknowledged by the submissions of Counsel for both parties, that leave to appeal in this case is dependent upon whether or not the further evidence advanced by the Appellant is allowed. If it is not, then having regard to our decision with respect to the Appellant's grounds of appeal, no recognised basis for a grant of leave to appeal could be made out.
In Ros, at [33]-[35], the Appeal Panel considered the principles governing an application for admission of further evidence in appellate proceedings of the present kind. The Appeal Panel recorded [33] that "generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision". We do not consider that the Appellant's application for leave to adduce further evidence in these proceedings is impeded by that requirement.
The Appeal Panel further recorded that "whether it is likely the further evidence would have produced a different result of the Tribunal is relevant". As will be seen, that ultimately assumes critical significance in the determination of these proceedings.
The Appeal Panel also recorded that "any potential prejudice to the other party upon the receipt of further evidence is also relevant". The Respondent submitted that it would be prejudiced if the further evidence were received in the appeal.
The Appeal Panel recorded that "whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant".
We approach the Appellant's application for leave to adduce further evidence in the light of those observations.
A report of Dr Woodhouse dated 30 May 2022 was sought to be relied upon by the Appellant as further evidence. The Appellant also sought to rely upon witness statements made by himself and his partner on 10 June 2022. The Appellant's further witness statement (Court Book 137-145, together with Annexures) reiterated the background to the events which gave rise to the proceedings.
A significant proportion of the statement reiterates, in substantially the same terms, the Appellant's previous allegations. His "confrontation by [XX] - 17 September 2019 (paragraphs 27-31), is a restatement of the Appellant's previous evidence.
Under the heading "Problems with work", the Appellant set out (37-49) matters which he does not appear to have previously asserted. On a date which is not specified but, inferentially, was "towards the end of 2019", the Appellant asserted that a cousin of the Mayor "filmed me walking in" to Urana Nursery "with her smartphone" (45). The events referred to were alleged by the Appellant to have "caused me some real concern and it distracted me from my baling and mechanical work to the point where I considered that I could accidentally cause an accident. I was very worried about this. I found it difficult to sleep and became angry often without any direct cause for my anger". The effect of those events was asserted by the Appellant to be that he was unable to continue with that employment by the end of 2019, albeit he resumed doing some "relief sowing work" in 2021.
Nothing stated in any of those paragraphs provides support for the Appellant's case with respect to complaints 1 or 2, or his claim for psychological damage or financial loss. It is readily apparent that the evidence was available when the case was heard by the Tribunal. Although we accept that ignorance of the law is no excuse for failing to have adduced this evidence then, as the Appellant was then self-represented, we would not reject it on the basis that it was available at the first instance hearing. Acceptance of the evidence does not advance the Appellant's case with respect to disclosure of his personal information by the Respondent.
Under the heading "Fireworks accusation" the Appellant referred (50-68) to events in June 2021 when "there were about 5 days in a row when somebody was letting off fireworks in our neighbourhood" (50). The Appellant asserted (53) that on 28 June 2021 an employee of the Respondent "was banging on my front door, so hard that I thought the glass was going to crack" and said (54) "The town has had a gutful of you and everyone had enough". The conversation then referred to the Appellant's alleged "letting fireworks off all over town", which the Appellant alleges that the Council officer said he had "saw you doing" (56). The Appellant asked the Council officer (57) whether he had spoken to anyone other than him about the matter, to which the Council officer allegedly replied (58) "No I don't have to". Nothing there raised by the Appellant has any connection with or could advance, on any basis, the Appellant's complaints. Our comments above [178] also apply to this evidence.
Under the heading "Lost income", the Appellant stated (69) that he was "in the process of collecting my tax invoices and other income statements which I will submit to the Respondent and the Tribunal at the first opportunity". He further stated (70) "I have lost about 3 years of my life trying to follow up on a serious breach of my privacy which has left me in a state of constant panic and anxiety".
The further witness statement of the Appellant dated 4 August 2022 (Appeal Bundle pp 191-233) enclosed the Respondent's Tax Returns for the years ended 30 June 2017 to 30 June 2022 inclusive. Those Returns revealed the following taxable incomes:
1. 2016/2017 financial year - taxable income $4,297 - main business or professional activity - "car dealer - new and/or used".
2. 2017/2018 financial year - taxable income zero - main business or professional activity - "car dealer - new and/or used".
3. 2018/2019 financial year - taxable income $16,673 - main business or professional activity - "car dealer - new and/or used".
4. 2019/2020 financial year - taxable income $12,557 - main business or professional activity - "car dealer - new and/or used".
5. 2020/2021 financial year - taxable income zero - main business or professional activity - "car dealer - new and/or used".
6. 2021/2022 financial year - taxable income $5,429 - main business or professional activity described as - "car dealer - new and/or used".
Those taxation returns cannot assist the Appellant's case. The Appellant's average taxable income was approximately $7,000. They do not establish a causal link between anything relating to the disclosure of the Appellant's personal information and any asserted economic loss.
The Appellant's partner provided a statement (Court Book pp161-182). The Appellant's partner did not give evidence before the Tribunal at first instance. The Appellant's partner stated (4) that "after the incident between [XX] and [EEC] in September 2019, I noticed changes in the way that local residents interacted with me". With respect to her, nothing asserted by the Appellant's partner with respect to the conduct of members of the community advances the Appellant's case with respect to either disclosure of his personal information, or his claim for damages for psychological damage or financial loss.
The Appellant's partner asserted (13) that "In around May 2020, I noticed that [EEC's] mental state was not good". Examples of the Appellant's conduct were set out. The witness was clearly not qualified to express psychological or medical opinions about anything relating to EEC. To the extent that evidence of her observations of him would be capable of being probative of an issue, no nexus between any alleged disclosure of the Appellant's personal information emerges. The distress of the Appellant appears to be assertedly referable to conduct of the Respondent in relation to his complaints and/or the legal processes which were in train, rather than to the basis on which damages were awarded.
The significant part of the witness statement relates (39ff) to events which allegedly occurred in and after November 2020, none of which, if accepted, could advance the Appellant's case. Similar observations relate to the allegations with respect to the "fireworks accusation" to which EEC referred in his June 2022 statement.
The matters referred to in the statement with respect to the conduct of the Mayor, the Respondent's General Manager and XX (82-83) could not advance the Appellant's case. Nor could the Facebook postings assuming, which is not established, that they were referable to the person referred to in the statement.
The further statement of Dr Woodhouse (183-184) dated 30 May 2022 records a number of matters of history provided to her by EEC on 16 March 2022. Based upon her initial and consequent consultations, Dr Woodhouse recorded that "upon presentation at the initial (16/03/21) and consequent consultations, [EEC] was visibly distressed, even tearful at times".
Dr Woodhouse's opinion, as expressed in her earlier report which was before the Tribunal, was that EEC "appears to be suffering from depression, anxiety and stress". Based upon her observations and a "self-report scale" the "scores" on the tests administered by Dr Woodhouse were considered to be "indicative of someone experiencing extremely severe depression, anxiety and stress".
Dr Woodhouse recorded that she did not know EEC prior to 16 March 2021 and did not have access to his medical records and was thus "unable to comment on his mood before this time". As is readily apparent, Dr Woodhouse first saw the Appellant 18 months after the events which gave rise to the proceedings in the Tribunal. Why Dr Woodhouse was not given access to the Appellant's medical records has not been explained.
Dr Woodhouse recorded a number of matters about which the Appellant complained. Dr Woodhouse reiterated that "as I do not have access to [EEC's] previous medical or psychological (if there are any) records, I do not know what [EEC's] mental health or psychological status was prior to our first consultation" but added:
"From my dealings with [EEC] and as [EEC] went through the NCAT process, in my opinion, his mood dropped and he became increasingly upset and agitated. It is my assumption that going through the NCAT process and the dealings that [EEC] had with the members of the Federal Council have impacted [EEC's] mood; flared his depression, anxiety and stress."
It is not insignificant that, no doubt choosing her words carefully, Dr Woodhouse referred to her "assumption" as opposed to findings, conclusions or professional opinion.
Dr Woodhouse set out what she and the Appellant had "worked together" on and stated that she would "anticipate that [EEC] will require ongoing Psychological Therapy in order to calm his heightened nervous system and to manage his thoughts more effectively". Dr Woodhouse recorded that "given that [EEC] continues to live in an environment where he feels targeted and, in some ways, an outcast, I believe that the prognosis for his recovery is poor (if he remains living in Urana). I also believe that, in his current state, it would be very difficult for [EEC] to recommence his business (garage). I feel that [EEC] has some capacity for work but seems to be only able to manage short term work which is outside his town/community".
The difficulty which confronts the Appellant with respect to Dr Woodhouse's report is that it only speaks from March 2021. There is no reliable evidence of any psychological impairment prior to that date, much less any evidence that any such impairment was causally linked with the alleged disclosure of the Appellant's personal information, or, more relevantly, the Respondent's delay in dealing with his complaints, which was the basis on which the Tribunal awarded damages. The Appellant's Tax Returns do not refer to his having conducted a "business (garage)".
The Appellant submitted that the further evidence sought to be relied upon by him would establish the causal link between the conduct of the Respondent with respect to disclosure of his personal information, the consequential impact on his health, and the consequences of those matters on the Appellant's asserted financial losses.
It was submitted (51) the fact "that he was unable to present his claim in a manner that enabled the merit and strength of that claim to be appreciated should be appreciated and rectified on this appeal". The Appeal Panel takes into account, as did the Tribunal at first instance, the difficulties which confronted the Appellant in the presentation of his case. We would not reject the Appellant's further evidence application on the basis that the evidence was available at the hearing in the Tribunal.
The Appellant submitted that the updated report of Dr Woodhouse outlined "her opinion that the Appellant's personal life has deteriorated significantly and that his mental health has likewise deteriorated in response to this serious breach of his privacy by the Respondent". As will be seen, that submission overlooks what Dr Woodhouse did not say in her report which was before the Tribunal, and continues not to say in her more recent report. It also overlooks the distinction between expressions of expert opinion, and the factual assumptions on which it is based. Dr Woodhouse's assumptions do not establish the facts assumed by her. Dr woodhouse did not suggest otherwise.
The Respondent objected (31) to the absence of an explanation for the failure to put material now sought to be relied upon before the Tribunal at first instance. It is in our view plain that, as submitted by the Respondent, having the benefit of the reasons for the decision at first instance, and the further benefit of competent legal advice, the Appellant seeks to have a "another bite of the evidentiary apple" (33). Although there is force in the submission of the Respondent, as will be seen, we do not need to reject the further evidence and, as a consequence, the application for leave to appeal on that basis. It has not been established, and ultimately does not need to in the present circumstances, that the further evidence was not reasonably available before the Tribunal at first instance.
The Respondent, not unreasonably in our view, referred (37-38) to the prejudice to it if the further evidence were now allowed to be relied upon. For the reasons which follow, we do not need to engage with that contention. If the issue were otherwise finely balanced, the Respondent's submissions with respect to prejudice could not be readily rejected.
The Respondent submitted (45-50) that the further evidence of the Appellant "goes nowhere on any point". The reasons advanced in support of that contention are persuasive. So far as the Appellant's provision of his Tax Returns is concerned, to the extent that they establish a decline in his taxable income after September 2019, which we do not accept that they necessarily do, that does not establish that such decline in income, and inferentially earning capacity, were, on balance, referable to any alleged, but unproved disclosure of the Appellant's person information. Far more would need to have been alleged, and capable of being accepted, for the correctness of the decision at first instance to be questioned in relation to the claim for economic loss. We agree with the Respondent that the Appellant's further statement does not advance his case on this or any other basis.
So far as the further statement of the Appellant's partner is concerned, the contentions of the Respondent at (41-44) are also persuasive. We agree with the Respondent that the Appellant's partner's statement "does not set out anything substantially different to the material she provided at first instance". We need not comment on the submissions with respect to the motivation of the Appellant's partner. Her support of his complaint is unsurprising in all the circumstances.
Largely for the reasons asserted by the Respondent (42), we agree that the matters referred to by the Appellant's partner are either "not new" or do not cast doubt on the correctness of the decision of the Tribunal at first instance. We agree with the submission of the Respondent (44) that nothing emerging from the Appellant's partner's further statement "involves the identification of any issue that gives rise to a substantial injustice for the overall disposition of the case".
The Respondent submitted (52) that the further report of Dr Woodhouse "goes no further than that of April 2021", for the reasons which are set out in the Respondent's submissions (53-55). As we have earlier observed, and as one would expect of a Psychologist with Dr Woodhouse's qualifications and experience, Dr Woodhouse has expressed her opinions with appropriate qualifications and circumspection. We agree with the Respondent that nothing emerging from Dr Woodhouse's May 2022 report advances the Appellant's case.
We have earlier referred in detail to the transcript of the proceedings at first instance. We do not accept that the Appellant required leave to rely upon the transcript, or believe that the Respondent seriously suggested that he did. The transcript was relevant to the determination of both the appeal and the Appellant's application for leave to appeal.
Applying recognised principles, there is in our view no basis for receiving the further evidence as its receipt could not, pursuant to leave to appeal, advance the Appellant's case. As, realistically, the Appellant's application for leave to appeal was dependent upon the receipt of further evidence, no basis for granting leave to appeal has been demonstrated. This case involves no issues of principle. Nor does it involve questions of public importance or matters of administration or policy which might have general application. The Appellant has not demonstrated an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand. Nor, either in reliance upon further evidence or otherwise, has the Appellant demonstrated a factual error that, howsoever arrived at, whether unreasonably or otherwise, was clearly mistaken.
To the extent that it might by implication be suggested by the Appellant that the Tribunal at first instance went about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, nothing to which we have been referred, either in reliance upon further evidence or otherwise, establishes that ground for appellate intervention.
The Appeal Panel has been mindful of the other matters to which the Appeal Panel referred in Ros, which we have earlier set out.
[9]
Conclusion
The Appellant's appeal will be dismissed. The application for leave to appeal will be dismissed. The application for leave to adduce further evidence in the appeal will be dismissed. Costs will be reserved and directions made for the filing of costs submissions.
[10]
Order
1. Leave to appeal is refused.
2. The appeal is dismissed.
3. Leave to adduce further evidence is refused.
4. The respondent shall file and serve submissions on the question of costs seven days after publication of these reasons.
5. The applicant shall file and serve submissions on the question of costs fourteen days after publication of these reasons.
6. The submissions should address whether a hearing on the question of costs can be dispensed with pursuant to s 50(2) of the Civil and Adminstrative Tribunal Act 2013 (NSW).
[11]
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: 25 November 2022