In these Reasons for Decision the name of the Applicant has been anonymised and some details genericised so as to preserve the privacy of their personal affairs. The applicant is referred to as "EJX" or the "Applicant".
[2]
Background
The Applicant commenced administrative review proceedings against the Respondent in this Tribunal on 15 March 2021 (AR Proceedings) seeking review of a decision of the respondent under s 55 the Privacy and Personal Information Protection Act 1998 (PPIP Act) and s 55 of the Administrative Decisions Review Act 1997 (ADR Act).
The final hearing for the AR Application took place in person on 6 October 2022 (Hearing) and the Tribunal reserved its decision.
On 14 October 2022, some eight (8) days after the Hearing and before the Tribunal had delivered its decision, the Respondent lodged with the Tribunal (and later on 17 October 2022 served on the Applicant) additional s58 ADR Act documents (Additional s58 Documents) which the Respondent says were inadvertently left out of (and are now needed to supplement) the s58 bundle of documents originally lodged by the Respondent on 14 March 2022 (Original s58 Bundle). The Original s58 Bundle was also augmented by the Respondent lodging further s58 ADR Act documents with the Tribunal on 3 May 2022, adding to the documents of the Original s58 Bundle.
The Additional s58 Documents were lodged with the Tribunal on 14 October 2022 together with an affidavit of Ms Jennifer Parkes (Parkes Affidavit) explaining the reasons for the delay in lodging the Additional s58 Documents until after the Hearing, seven (7) months after lodging the Original s58 Bundle, five (5) months after the further s58 ADR Act documents were lodged and some 18 months after the date mandated for lodging the s58 ADR Act documents under s58 ADR Act.
After correspondence from the Applicant relating to the Respondent's lodging of the Additional s58 Documents, on 22 November 2022 the Tribunal issued directions (22 November Directions) giving the parties the opportunity to make submissions (Additional Submissions) on, among other things:
1. the relevance and impact of the Additional s58 Documents and whether their lodgement should be accepted by the Tribunal;
2. the matters raised by the Applicant in their correspondence after the Hearing and before the 22 November Directions;
3. whether a further hearing (including any additional witnesses or cross-examinations) relevant to any issues arising from the Additional s58 Documents as regards the issues in dispute between the parties in the AR Proceedings is required; and
4. whether the issues noted above in (1) to (3) and the Additional Submissions of the parties can be determined on the papers, in the absence of the parties.
Pursuant to the 22 November Directions the Respondent filed and served its Additional Submissions on 6 December 2022 and the Applicant filed and served their Additional Submissions on 20 December 2022.
[3]
On the papers
Section 50 of the Civil and Administrative Tribunal Act 2013 (CAT Act) provides, in summary and most relevantly, that:
….
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account…
[4]
ADR Act
Section 58 ADR Act provides, in summary and most relevantly, that:
58 Duty of administrator to lodge material documents with Tribunal where decision reviewed
(1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:
…
(b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. …
[5]
CAT Act
Section 36 CAT Act provides, in summary and most relevantly, that:
36 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it -
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal -
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. …
Section 38 CAT Act provides, in summary and most relevantly, that:
38 Procedure of Tribunal generally
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
…
(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(5) The Tribunal is to take such measures as are reasonably practicable:
…
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
(6) The Tribunal:
(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(b) may require evidence or argument to be presented orally or in writing, and
(c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
[6]
Procedural fairness/natural justice
Procedural fairness (also referred to as natural justice) comprises two common law rules designed to ensure that fair procedures are followed in the making of decisions (including those of the Tribunal under the administrative review jurisdiction) which affect the rights, interests of legitimate expectations of persons. Of relevance in these proceedings is the 'rule' requiring the decision-maker to afford a hearing in 'appropriate circumstances'. As noted by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs: Exparte Lam (2003) 214 CLR 1, in considering procedural fairness one must bear in mind "practical justice" and "avoid practical injustice" in applying this rule.
The 'hearing rule', combined with the Tribunal's obligations under ss36 and 38 CAT Act, requires that the Tribunal consider, in a practical manner, that the Applicant (in this case) should have an opportunity to put their case and to meet the case (including all evidence) put against them (see Re Minister for Immigration and Multicultural Affairs Exparte Miah (2001) 206 CLR 57 at [99] and [140]).
[7]
Issues for determination
The issues for determination arising from the Additional s58 Documents and the Additional Submissions of the parties are whether (Post-Hearing Issues):
1. the issues in (2) and (3) below and the Additional Submissions of the parties can be dealt with on the papers, in absence of the parties;
2. the Respondent's late lodgement of the Additional s58 Documents after the Hearing should be accepted by the Tribunal; and
3. if the Respondent's late lodgement of the Additional s58 Documents is accepted by the Tribunal, another hearing is required to allow the Applicant to address the additional evidence/new materials included in the Additional s58 Documents to afford procedural fairness to the Applicant and to better enable the Tribunal to make the correct and preferable decision in the AR Proceedings.
[8]
Respondent's submissions and evidence
In its Additional Submissions the Respondent submits, in summary and most relevantly, that:
1. the Additional s58 Documents are appendices to the Respondent's Privacy Management Plan (PMP) which was referred in the Respondent's decision dated 15 February 2022 on the Applicant's complaint. The PMP (excluding the Additional s58 Documents) was included in the Original s58 Bundle;
2. the Additional s58 Documents were 'only submitted for the benefit of the Tribunal' in considering the matter. That is, to complete the PMP submitted as part of the Original s58 Bundle;
3. the Parkes Affidavit "speaks" to the inadvertent omission of the Additional s58 Documents from the Original s58 Bundle, the reason the error was not previously corrected and why the Respondent is now filing the Additional s58 Documents;
4. the delay in filing the Additional s58 Documents was not deliberate or "a purposeful choice" by the Respondent;
5. the Applicant's allegation that parts of the Parkes Affidavit are false fails to identify the specific subject(s) of such allegation;
6. (despite lodging the Additional s58 Documents after the Hearing) all evidence relevant to the issues in dispute has already been taken by the Tribunal and the relevant cross-examination of the Respondent's decision maker has been completed and no additional evidence or witnesses are required in response to the Additional s58 Documents; and
7. the matters of relevance in and arising from the Additional s58 Documents and the matters raised in the Additional Submissions of the parties can be determined without a further hearing and can be decided on the papers, in the absence of the parties.
[9]
Applicant's submissions and evidence
In their correspondence dated 18 October 2022 and Additional Submissions the Applicant submits, in summary and most relevantly, that:
1. as the Original s58 Bundle was not lodged until March 2022 (some 11 months after the mandated time in s58 ADR Act) the Respondent had ample time to determine the documents necessary to comply with s58 ADR Act (i.e. lodge all the relevant documents);
2. the Respondent has already had an extra opportunity to (and did) provide new material to add to the Original s58 Bundle;
3. the Respondent's delay in providing the Additional s58 Documents has further prolonged and complicated the proceedings;
4. the Hearing and the AR Proceedings are already completed and providing the Additional s58 Documents after the Hearing prejudices the Applicant if the Applicant has no chance to respond to them;
5. the Applicant's case and conduct at the Hearing was based and proceeded on the basis of the material and evidence filed before the Hearing and thus admitting the Additional s58 Documents now, after the Hearing, will prejudice the Applicant unless the Applicant is given (and the Applicant requests) an opportunity to address the new evidence and cross-examine the Respondent's witnesses on it;
6. the Parkes Affidavit was filed eight (8) days after the Hearing and AR Proceedings were completed and, if done before the Hearing, Ms Parkes would have been required to be available for cross-examination at the Hearing;
7. despite the 22 November Directions requiring it, the Respondent has not identified any issues or the IPPs allegedly breached resulting from the conduct of concern that the Additional s58 Documents relate to. In the absence of such identification the Additional s58 Documents are irrelevant to the issues in dispute and thus should not be permitted to be lodged after the Hearing and AR Proceedings have been completed;
8. some of the Additional s58 Documents do not have any merit and do not support the Respondent's claims in any way;
9. if the Additional s58 Documents are accepted by the Tribunal after the Hearing and AR Proceedings have been completed then a new hearing is required to enable the Applicant to address the new evidence and in order to maintain the fairness of the process. The Applicant requires Ms Kelly for further cross-examination, Ms Parkes for cross-examination and for the ability to make further submissions at a hearing in relation to the impact of the Additional s58 Documents on the issues in dispute in order to assist the Tribunal to make the correct and preferable decision; and
10. the Respondent has not addressed the Applicant's stated concerns around the accuracy and veracity of the Additional s58 Documents.
[10]
Consideration and findings
Given the lack of objection of the parties specifically to the determination of the Post-Hearing Issues on the papers in the Additional Submissions, based on the material before the Tribunal and the "guiding principle" set out in s 36(1) CAT Act I am satisfied that there is nothing that could be added by having a hearing in respect of the Post-Hearing Issues. That is, I am satisfied that the Post-Hearing Issues for determination can be adequately dealt with by the Tribunal in the absence of the parties on the papers by considering the Additional Submissions of the parties and the other material that is before me in these proceedings.
While the Tribunal ordinarily may not have allowed for the filing of additional evidence or submissions after the conclusion of the Hearing and AR Proceedings (in this case), unless such was expressly raised and discussed during the Hearing (as in this case as regards the Applicant's amended Points of Claim and the Respondent's rights to submit its amended Points of Defence), I am mindful that:
1. section 58 ADR Act mandates that 'a copy of every document or part of a document in the possession or control of the Respondent (in this case) that the Respondent considers relevant to the AR Proceedings (in this case) (the s58 Documents) must be lodged with the Tribunals within 28 days after receiving note of the application';
2. even if not lodged within the required 28 days (and while there may be other consequences for this failure), the s58 Documents play a fundamental role in providing to the Tribunal all of the relevant documentation in order for the Tribunal to undertake its administrative review and determine the correct and preferable decision (see paragraph [13] of Edwards v Commission for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCA7AP 208 (Edwards)); and
3. failure to accept the late lodgement of the Additional s58 Documents which the Respondent has presumably considered, determined as relevant and thus lodged under s58 ADR Act as documents or parts of documents subject to its obligations under s58 ADR Act (i.e that should have originally been lodged as s58 Documents within 28 days of receipt of the application for the AR Proceedings) may amount to a denial of procedural fairness to the Applicant (see paragraphs [19] and [30] of Edwards), negatively impacting the Applicant as well as the decision to be made by the Tribunal (i.e the Tribunal may be unable to make the correct and preferable decision in the circumstances).
It is not the Tribunal's role at this stage (i.e. at lodgement and prior to making its decision) to assess whether the Additional s58 Documents are relevant to the issues in dispute between the parties and/or necessary for the Tribunal to make the correct and preferable decision. As noted in [18] above, it is the Respondent's obligation to lodge (and thus its determination of the relevant materials in the first instance which are) the s58 Documents in accordance with s58 ADR Act. As the Respondent has sought, after the Hearing, to lodge the Additional s58 Documents the Tribunal assumes that the Respondent has done so after determining they have "some discernible forensic purpose or detectable connection to the determination of the issues" (see [13] of Edwards citing Bristol Custodian Limited v Chief Commissioner of Staff Revenue [2021] NSWADTAP 44 at [53]).
Based on the Additional Submissions of the parties and materials before the Tribunal, the concerns raised in [18] above, the guiding principle in s36 CAT Act and the obligations imposed on the Tribunal under ss38(2), (4), (5) and (6) CAT Act, the Tribunal will accept the Respondent's very late lodgement of the Additional s58 Documents.
Notwithstanding the finding in [20] above (and the Orders made below), I urge the Respondent to review and, as necessary, revise its processes in relation to its s58 ADR Act obligations to ensure it complies with those obligations in a timely manner in accordance with s58 ADR Act in future administrative review proceedings before the Tribunal. Failure of the Respondent to meet its s58 ADR Act obligations may significantly impact both the applicant and the Tribunal in the relevant proceedings potentially leading to, among other things, a request by relevant applicants for costs and/or damages for any delays caused by and any resulting harm occasioned to the applicant arising from any such conduct by the Respondent.
As regards the issue as to whether a further hearing in respect of the impact of the Additional s58 Documents on the issues in dispute in the AR Proceedings is required, including to afford the Applicant procedural fairness, as noted by the Appeal Panel in Edwards:
[38] …The potential injustice is that the appellant has been deprived of having a contractor licence granted by the Tribunal in the exercise of its administrative review jurisdiction, in circumstances where the Tribunal did not have all relevant material before it when making the 'correct and preferable' decision on the facts ….. and …
[41] In the absence of the respondent producing all relevant documents on which its decision to refuse the licence application was based, the appellant lost the opportunity to challenge the basis on which the respondent's decision was originally made. If new evidence had been put before the Tribunal below, the appellant would have had an opportunity to respond to that material, to cross-examine Fair Trading Officers on that material, and to make submissions in relation to that material.
Based on the Additional Submissions of the parties, the other materials before the Tribunal, the matters noted in [18] and [19] above, the guiding principle in s36 CAT Act and the Tribunal's obligations under ss38 (2), (4), (5)(c) and 50 CAT Act, I have determined that a further hearing is warranted. That is, a further hearing on how the Additional s58 Documents support (or otherwise) the alleged breaches of IPPs or HPPs arising from the conduct or concern raised in the Applicant's original complaint to the Respondent under s53 PPIP Act and the subject of the AR Proceedings (Core Issues). This further hearing will not address the late lodgement of the Additional s58 Documents or whether they should have been accepted by the Tribunal as lodged as these issues are dealt with by this decision. The further hearing, as noted, is in the interests of procedural fairness to allow the Applicant to respond to the Additional s58 Documents, cross-examine (and/or further cross-examine) the Respondent's witnesses and make submissions on the Additional s58 Documents as they impact the Core Issues in order to assist the Tribunal in its determination of the correct and preferable decision.
[11]
Conclusion
In conclusion, following the numbering in [14] above:
1. determination of the Post-Hearing Issues by the Tribunal can be adequately dealt with on the papers, in the absence of the parties;
2. the late lodgement by the Respondent of the Additional s58 Documents after the conclusion of the Hearing and before the Tribunal's decision is accepted by the Tribunal; and
3. a further hearing on the relevance of the Additional s58 Documents to the issues in dispute/the AR Proceedings (i.e. the Core Issues) is required to afford procedural fairness to the Applicant and assist the Tribunal to make the correct and preferable decision.
[12]
Orders
1. A further hearing in relation to the Post-Hearing Issues is dispensed with under s50 of the CAT Act.
2. The Additional s58 Documents lodged by the Respondent with the Tribunal after the Hearing and before the Tribunal's decision are accepted and will, subject to Order (3) below, be considered by the Tribunal in determining the correct and preferable decision in this case.
3. A further hearing on the impact of and any issues arising from the Additional s58 Documents on/in relation to the Core Issues is listed for hearing on Tuesday, 14 February 2023 at 2.00pm at John Maddison Towers, Level 10, 86-90 Goulburn Street, Sydney for a half day.
[13]
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: 09 January 2023