EMF v Cessnock City Council

NCAT Appeal Panel|2021-07-30|Before: Dr J, The Hon J

he appellant's name or of material that identifies the appellant or is likely to lead to the appellant's identification. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2021] NSWCATAD 83 Date of Decision: 31 March 2021 Before: A Starke, Senior Member File Number(s): 2020/00276345

Summary

The appellant appeals from a decision of the Administrative and Equal Opportunity Division of the Tribunal (Tribunal) of 31 March 2021: EMF v Cessnock City Council [2021] NSWCATAD 83 (the Decision).

Background

The background to the appeal is adequately set out in the Decision as follows: 2 The applicant's original complaint about his personal information having been redirected from the Mayor's office to Council staff for action, asked that the matters be treated as a complaint under the Council's Code of Conduct. At the same time, his complaint alleged that the Council had failed to comply with its obligations under the PPIP Act, the Information Privacy Principles (IPPs) and the Code of Practice for Local Government (LG Code of Practice). 3 The Council did not accept the applicant's complaint as a Code of Conduct complaint but accepted it as a complaint about privacy under the PPIP Act. In its outcome letter of 4 May 2020, the Council advised that it was not satisfied that the applicant's privacy had been breached. 4 The applicant asked for an internal review, alleging that his personal information which identifies him included his "personal political opinions" and that the information was improperly disclosed, accessed or used by the respondent. In particular, he alleged that the Council failed to protect his personal information from unauthorised disclosure/access/use under sections 12, 18 and 19 of the PPIP Act and that the Council breached Information Protection Principles (IPPs), specifically IPP 5, IPP 11 and IPP 12. 5 In its internal review decision dated 2 October 2020 the Council determined that it had complied with all of the IPPs in handling the applicant's personal information. 6 In his application to the Tribunal for administrative review, the applicant stated that the ground for seeking an external review of the respondent's conduct was that the respondent had "failed to respond within required time (deemed refusal)" to his request for an internal review of the Council's decision. 7 The Council contended that its internal review decision was completed within the timeframe required under s 53(6) of the PPIP Act and that it was provided to the applicant within the timeframe specified in s 53(8) of the PPIP Act. 8 The applicant sought an award of damages for stress and anger which he asserted was caused by the conduct of the respondent and that this had a profound adverse impact on pre-existing health issues. The respondent attempted to engage with him so as to ascertain what remedy he sought. However, the applicant did not provide details to enable the respondent to consider why it may, or may not, consider offering an award of any type of damages in resolution of the matter.
The appellant applied to the Tribunal after sixty days had expired since lodging his internal review application, but before he received the internal review report. The matter originally was given the file number 2020/276345.
In his application to the Tribunal, he stated that the ground for seeking review of the respondent's conduct was that it "failed to respond within required time (deemed refusal)" to his request for an internal review of the respondent's conduct.
On 24 December 2020, the respondent served on the appellant a document purporting to be an affidavit of Ms Darryllen Allan. The appellant considered that it did not comply with the formal requirements for an affidavit in several respects. He checked the NSW Public JP register and found that the name of the witness was not included on that register.
On 28 December 2020, the appellant filed an application for miscellaneous orders.
A short hearing was held in the matter on 19 January 2021 to determine the applicant's application for miscellaneous orders. It appears that the Tribunal determined on this date, among other things, that the hearing which had been listed for 5 February 2021 would proceed and that the respondent could rely upon Ms Allan's affidavit.
The appellant lodged an application for leave to appeal and an application for a stay of the orders made on 19 January 2021.
On 1 February 2021, the Appeal Panel, constituted by Deputy President Westgarth, listed the hearing of the application for a stay on 12 February 2021. This was after the date listed for the hearing in these proceedings. Direction 4 was as follows: "The application for an immediate ex parte stay is refused. The application for a stay can be considered at the callover. It will be a matter for the member hearing the matter on 5 February 2021 and the case conference on 8 February 2021 to decide what should happen with those hearings."
The reference to the "case conference on 8 February 2021" was a reference to a case conference in different proceedings involving the same parties, which the appellant claimed were related.
The hearing in this matter proceeded, as planned, on 5 February 2021.
The appellant withdrew his first appeal on 22 February 2021.
As indicated above, the Tribunal made the Decision and provided reasons on 31 March 2021. The appellant lodged a Notice of Appeal from the Decision on 27 April 2021. There is no dispute that the appeal was lodged within time.

Overview

The appellant relies on approximately 23 grounds of appeal, some of which overlap. These can be summarised as follows: 1. the Tribunal failed to properly satisfy itself that it had jurisdiction (ground 1); 2. the Tribunal erred by failing to relevantly consider, or properly inform itself, about the directions of the Appeal Panel on 1 February 2021, which required the Tribunal to decide what should happen with the hearing. This is said to be a failure to comply with s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), namely that 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, (ground 2); 3. the Tribunal erred by failing to relevantly consider, and necessarily comply with s 38(5)(c) of the NCAT Act, namely that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (ground 3); 4. the Tribunal erred by failing to relevantly consider, and necessarily comply with s 38(6)(a) of the NCAT Act, namely that the Tribunal is to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (ground 4); 5. the Tribunal erred by failing to relevantly and properly consider the directions made by the Appeal Panel on 1 February 2021; this is said to be a failure to comply with s 43(3) of the NCAT Act, namely that the Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal (ground 5); 6. the Tribunal erred in the hearing by referring to the Tribunal being able to determine its own procedure and failed to properly consider s 38(1) of the NCAT Act, namely that 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 (ground 6); 7. the Tribunal erred by failing to relevantly properly consider and correctly apply s 36 of the NCAT Act, namely the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings and erred by failing to necessarily consider or apply s 33 of the Interpretation Act 1987 (NSW) (Interpretation Act), requiring the Tribunal to have regard to the purpose of s 36 of the NCAT Act (ground 7); 8. the Tribunal erred by failing to adjourn the hearing "without first considering and determining whether the Tribunal actually had jurisdiction", an error the appellant says is so unreasonable that it "abandons common sense". In doing so, the appellant says that the Tribunal failed to reasonably understand or consider s 28 of the NCAT Act which states that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation, and consists of the kinds of jurisdiction set out in s 28(2) (ground 8); 9. the Tribunal erred by taking into account an irrelevant consideration (grounds 9, 12, and 13), erred by failing to take into account a relevant consideration (grounds 9, 10 and 11), and erred by failing to consider the right questions, and failing to consider and apply the law (grounds 10, 11, 12 and 13). Some of these grounds relate to the jurisdiction issue (grounds 12 and 13); 10. the Decision was infected by a reasonable apprehension of bias due to the conduct of the Senior Member. This is the appellant's ground 14 which he says consists of 10 separate sub-grounds.

Approach of the Appeal Panel

We consider that these grounds fall into three key groups, and we propose to approach our task on that basis.
The first group of grounds are those that relate to the question of jurisdiction. The appellant submits that the Tribunal erred in finding that it had jurisdiction because it:

failed to determine the question of jurisdiction before commencing the hearing;
failed to adjourn the hearing, and in particular failed to consider the implications of direction 4 of the Appeal Panel on 1 February 2021 (made in an appeal from orders made in a short interlocutory hearing in the proceedings by a different Tribunal member on 19 January 2021); and
failed in its reasons to refer to the validity of a "resubmitted" affidavit of Ms Darryllen Allan dated 27 January 2021 which replaced an earlier affidavit dated 23 December 2020.

The second group of grounds broadly relate to procedural fairness. Many of the matters relate to the first ground. These may be described as other miscellaneous grounds relating to procedural fairness, including that Tribunal erred by taking into account irrelevant considerations, failing to take into account relevant considerations, failing to consider the right questions, and failing to consider and apply the correct law.
The third group of grounds relate to the issue of apprehended bias.

Materials before the Appeal Panel

The appellant's materials included his Notice of Appeal to which was attached 58 pages of submissions with 15 annexures being correspondence between the appellant and the respondent (being approximately 40 pages); approximately 60 pages of materials on 18 June 2021 being partial transcript of the hearing of the Tribunal on 5 February 2021 (the hearing) and approximately 27 pages of reply submissions dated 20 July 2021.
The respondent's materials included its Reply dated 11 May 2021 and submissions filed 16 July 2021. The respondent also included parts of the transcript of the hearing on which it wished to rely.
The appellant also filed submissions as to costs on 23 July 2021 (with what he described as "several hundred pages of supporting documentation") and on 29 July 2021.
We make directions as to the filing of submissions on costs at the conclusion of these reasons.

Nature of an appeal

Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right.
In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
We have undertaken that exercise and are satisfied that the appellant has identified questions of law in his appeal.

Overview

Before considering the grounds of appeal, we thought it appropriate to make a number of observations.
First, in Liang v University of Technology, Sydney [2018] NSWCATAP 285, the Appeal Panel stated it is not necessary to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. This is particularly so where, as is the case here, the submissions are voluminous and lack substance. We do not propose to make findings on every argument or every submission.
Secondly, this was also the case for the Tribunal. It is not required to make findings on every argument or every submission advanced before it and to record those findings and submissions in the Decision.
In Gussoni v Burnheim [2018] NSWCATAP 75 at [32] the Appeal Panel referred with approval to the statement of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, referring to McHugh JA in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, who noted that a failure to explain the basis of a crucial finding of fact involved a breach of the principle that justice must not only be done but must be seen to be done. His Honour went on to state that: … it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. (emphasis added)
See too the remarks of Meagher JA in Beale at 443 - 444 (citations omitted): … reasons need not necessarily be lengthy or elaborate ... The scope of the reasons to be given is ... related "… to the function to be served by the giving of reasons". Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlook the evidence or failed to give consideration to it ... Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. ... Third, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. ... …In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal. … an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice… (emphasis added)
Thirdly, as was noted in Upton v Martin and Stein Antiques Pty Ltd [2017] NSWCATAP 175 at [18], on an appeal from bodies like the Tribunal, the role of the Appeal Panel is to examine the decision appealed from in a sensible and balanced way and not to go over the reasons for decision with a fine tooth comb and an eye keenly attuned to a perception of error: Politis v Federal Commissioner of Taxation [1988] FCA 446 at [14] per Lockhart J.

Parties' submissions

We also thought it appropriate to make some general comments on the parties' submissions.

Appellant's submissions

As we have noted the appellant's submissions were 58 pages in length, together with approximately 40 pages of annexures. There are some substantive matters raised in the body of the submissions, but the large proportion of the submissions take the form of a commentary on the reasons for Decision, together with reflections of the appellant on irrelevant matters. To take but one example, p 19 of the appellant's submissions describes the decision of the Tribunal in BKM v Sydney Local Health District [2015] NSWCATAD 87 as "Relevant Background Information". BKM was an application by the respondent to strike out the applicant's claim. The application was dismissed.
The Tribunal was constituted by Senior Member McAteer. The appellant's submissions state: "I personally believe that Mr McAteer is a highly principled man, and his role in both the IPC and the Tribunal is generally highly meritorious and well regarded. However, having read Senior Member McAteer's full judgment in BKM (which is noted and reference by the IPC), I reasonably think on that occasion he erred. This specific questions of law, and why I reasonably think the decision in BKM is erroneous, were not considered by the Appeal Panel because I decided to withdraw my stay application and notice of appeal after Senior Member Starke insisted on the 5 Feb 2021 hearing proceeding, to instead appeal her decision."
The appellant then states that Tribunal "affirmed" BKM in its Decision, and asks the Appeal Panel "to consider and determine questions of law that reasonably indicate the decision in [BKM] is erroneous". He explains that the Tribunal failed to properly consider and apply the relevant law, and failed to take into account "the relevant considerations of" various sections of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), the Interpretation Act, the PPIP Act and s 36(5) of the NCAT Act.
Suffice it to say, it is not our role in this appeal to reconsider the correctness of BKM.
Submissions such as these, and many others that appeared in the appellant's lengthy submissions, do not assist the Appeal Panel in its task.
Further, the appellant's application to the Tribunal appears to us to have been misconceived, insofar as it sought review of the respondent's failure to respond within the required time to his application for internal review. The Tribunal does not have jurisdiction to review an agency's conduct in undertaking an internal review. Its jurisdiction is limited to reviewing the conduct the subject of an internal review application (relevantly, an alleged contravention by a public sector agency of an information protection principle or a privacy code of practice: see PPIP Act, ss 52(1), 55(1)).
The appellant's apparent misapprehension that the Tribunal is entitled to review the agency's conduct of an internal review also affected many of his grounds of appeal.

Respondent's submissions

We will deal with the substance of the respondent's submissions below. But we note that at the commencement of its submissions, in a "General Submission". the respondent submits that: "Council submits that the Senior Member Starke was more than fair and equitable towards the Appellant at the hearing. The evidence tendered by the Appellant at the hearing had no weight to support the relevant arguments, which is why Senior Member Starke found there was no privacy breach. Considering the evidence and arguments and coming to a conclusion that is different than what the Appellant is seeking does not constitute an error of law or grounds for any reasonable apprehension of bias."
The appellant says in reply that this is a "completely baseless and irrelevant statement".

Appellant's submissions in reply

Following that observation, the first four pages of the appellant's reply submissions assert that the respondent's submissions were prepared by a solicitor and not by the respondent's Public Officer. There is no evidence to support this submission and we give it no weight. In any event, the refusal of the Tribunal to grant leave to a party to be legally represented does not prevent it from obtaining legal advice, including in the preparation of submissions and other documents.
The appellant also asserts that the solicitor who allegedly prepared the respondent's submissions had previously given false and misleading information to the Tribunal including "demonstrably misleading statements".
These are serious matters to assert and we need make no further comment other than that they should not have been made in this forum and in this way.
As to the conduct of the Tribunal Member, the appellant states a range of examples of conduct of the Senior Member which he says establishes apprehended bias. We will consider these below.
The appellant also makes submissions in relation to the respondent's submissions. On the whole, these are expressed in generalised language with appellant asserting that the respondent:

(in relation to various issues), has "failed to provide any factual evidence, or cite any law, that that can support … baseless" submissions;
failed to honestly disclose relevant facts to the Tribunal;
failed to inform the Appeal Panel of all relevant facts;
provided submissions that were capable of misleading the Appeal Panel; and
made claims that "are demonstrably false and misleading".

There were various iterations of these submissions.
We turn now to the appellant's grounds of appeal.

The Tribunal failed to properly satisfy itself that it had jurisdiction

Appellant's submissions

As noted above, there were three broad aspects to this submission.

The Tribunal erred by failing to determine the question of jurisdiction before commencing the hearing

The first was that the Tribunal erred by failing to determine the question of jurisdiction before commencing the hearing.
The appellant submits that it was "manifestly wrong" for the Tribunal to "insist" on the hearing: "before the Tribunal's jurisdiction had first been considered and determined by the Tribunal's Appeal Panel. Or at the very least before the Presiding Member herself actually determined this matter".
The appellant submits that the decision of the Tribunal "to insist on a six hour hearing proceeding" without first properly considering and determining whether the Tribunal actually had jurisdiction to hear his application from a deemed refusal decision of the respondent, "abandons common sense". He submits that that decision was so unreasonable that no reasonable member would make it.
The appellant also submitted that the Tribunal erred by giving priority to the guiding principle of the NCAT Act (see s 36(1)) rather than satisfying itself as a preliminary matter that the Tribunal had jurisdiction.
We have noted the some of the appellant's submissions overlap. In his submissions the appellant submits that the Tribunal erred by failing to consider or comply with the requirements of s 38(6)(a) of the NCAT Act, namely "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". In this respect, it is the appellant's submission that jurisdiction is a "real issue" in relation to the Tribunal "and is only conferred by statute!", and that failure to determine jurisdiction results in appeals which are not quick and cheap.
The appellant also asserts that things occurred at the hearing which are not reflected in the Decision but can be understood by perusing the transcript.

Failure to adjourn the hearing, and in particular failed to consider the implications of the direction 4 of the Appeal Panel on 1 February 2021

The second principal matter relied on by the appellant was that the Tribunal failed to adjourn the hearing, and in particular failed to consider the implications of the directions made by Deputy President Westgarth on 1 February 2021.
Those directions were included in the appellant's material and Direction 4 is reproduced above.

Failure to consider the validity of a "resubmitted" affidavit of Ms Darrylen Allan dated 27 January 2021 which replaced an earlier affidavit date 23 December 2020

In relation to this issue the appellant had filed with the Tribunal:

a letter dated 5 January 2021 (filed on 8 January 2021) concerning a document purporting to be an affidavit of Ms Darrylen Allan dated 23 December 2020 (Exhibit A7) (the December 2020 affidavit); and
a letter dated 13 January 2021 (filed on 15 January 2021) attaching a certificate under s 11(4) of the Justice of the Peace Act 2002 (NSW) concerning the document purporting to be an affidavit of Ms Darrylen Allan (Exhibit A8).

The appellant submits in relation to the December 2020 affidavit:

no part of the jurat clause was completed and none of the pages were properly signed or witnessed;
the person who invalidly and incompetently witnessed the affidavit was a work colleague of Ms Allan's and was not a Justice of the Peace, her registration as a Justice of the Peace having expired.

In January 2021 the appellant obtained an evidentiary certificate from the Department of Communities and Justice which he says confirms that the witness was not a Justice of the Peace. While the Tribunal notes receipt of the evidentiary certificate at [39(8)] of the Decision, the appellant submits that the Tribunal erred in then failing to consider it any further in the Decision.
It appears that in response to the attacks on the validity of the December 2020 affidavit, a resubmitted affidavit was made by Ms Allan on 27 January 2021. This was before the Tribunal as Exhibit R3. The appellant submits that this affidavit too suffered from defects in that, although witnessed by "an actual JP", again no one of the 14 annexures were witnessed or certified, and the respondent's employee Justice of the Peace failed to necessarily indicate if she had administered either an oath or affirmation.
The importance of this affidavit, as we understand it, is that it relates to the factual issues whether the respondent completed its internal review within 60 days and whether the respondent notified the applicant of its review findings.

Respondent's submissions

The respondent submits generally that the ground of appeal relating to jurisdiction is clearly misconceived, as the Tribunal determined that the Tribunal had jurisdiction under s 55 of the PPIP Act because the internal review was not completed within 60 days from the day on which the internal review application was received (see the Decision at [140] and [140(5)]) where the Tribunal found as a matter of fact that the report was not completed by 19 September 2020).

Consideration

We agree that this ground of appeal should be rejected. This is for the following reasons.
First, the Tribunal carefully considered the question of jurisdiction in the section of the Decision titled "Jurisdiction and Scope" consisting of at [10] to [17] stating: Jurisdiction and scope 10 The Tribunal's jurisdiction to hear and determine an application in regard to the conduct of an agency alleged to be contrary to the provisions of the PPIP Act arises from s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and both s 53(6) and s 55(1) of the PPIP Act. 11 This matter concerns conduct under s 52(1)(a) of the PPIP Act, namely the alleged contravention by the Council of a number of IPPs that apply to it as a public sector agency (as defined in s 3 of the PPIP Act). 12 To the extent that the IPPs are modified by the Privacy Code of Practice for Local Government published in the Government Gazette Number 179 on 20 December 2019 (reference n2019-4051) (the LG Privacy Code), this matter also concerns conduct under s 52(1)(b) of the PPIP Act, namely the alleged contravention by the Council of the LG Privacy Code. 13 For completeness, I note that no complaint has been made with respect to conduct under s 52(1)(c) of the PPIP Act, namely disclosure by the respondent of personal information kept in a public register. Tribunal's jurisdiction does not extend to alleged breaches of Local Government Act 1993 or a Council's Code of Conduct or a Council's Privacy Management Plan Policy 14 The scope of the Tribunal's jurisdiction to administratively review the conduct of the respondent does not extend to matters asserted by the applicant to concern alleged breaches of the Local Government Act 1993 (NSW) (LG Act) or the Local Government (General) Regulation 2005 (NSW) or alleged non-compliance with the Cessnock City Council Code of Conduct (Code of Conduct) or the Cessnock City Council Privacy Management Plan Policy. The LG Privacy Code provides at clause 6.3 that the Council's Privacy Management Plan should include provisions to comply with the obligations imposed by the PPIP Act and the provisions of the LG Privacy Code. However, no jurisdiction is conferred on the Tribunal (arising from clause 6.3 of the LG Privacy Code) to consider or determine whether the Council has failed to comply with its Privacy Management Plan Policy. Tribunal has no jurisdiction to deal with charges of criminal offences 15 I also note for completeness the applicant's allegations against Council staff of corrupt disclosure and use of personal information. Section 62(1) in Part 8 of the PPIP Act (Miscellaneous) refers to the offence of intentional disclosure or use of personal information about another person otherwise than in connection with the lawful exercise of a public sector official's functions. 16 The matters referred to in Part 8 of the PPIP Act are not administratively reviewable decisions as defined in s 7 of the ADR Act and accordingly the Tribunal does not have jurisdiction. There is no jurisdiction conferred on the Tribunal to deal with charges of criminal offences: HW v Commissioner of Police, NSW Police and Anor [2003] NSWADT 214 at [35]. Proceedings for offences against the PPIP Act are dealt with summarily before the Local Court. Jurisdiction is confined in these proceedings to PPIP Act, IPPs and the LG Privacy Code 17 Accordingly, as noted above, this determination is confined to considering whether the Council failed to comply with the PPIP Act, the IPPs or the LG Privacy Code.
We are not persuaded that there is any error in the Tribunal's reasoning.
In addition, at [140] the Tribunal stated: Accordingly, I am satisfied that this Tribunal has jurisdiction to review the conduct the subject of the internal review application in circumstances where an internal review decision may not be available. Having said that, if an internal review decision is finalised after the time that an applicant seeks external review but before a hearing in the matter takes place, the Tribunal may have the benefit of an agency's internal review decision among the material that is placed before the Tribunal. However, the findings of the internal review decision are irrelevant since the jurisdiction is to conduct a fresh review of the original conduct: NS v Commissioner, Department of Corrective Services [2004] NSWADT 263 at [43].
The Tribunal found that it had that jurisdiction because the internal review was not completed within 60 days from the day on which the internal review application was received as the report was not completed by 19 September 2020: Decision at [140(5)]. The appellant had applied to the Tribunal for review of the conduct the subject of the internal review application within 28 days of that date: see Civil and Administrative Tribunal Rules 2014 (NSW), r 24(4)(a1)(ii).
That was a finding in the appellant's favour. He does not dispute that the Tribunal has jurisdiction and that the internal review was not completed within 60 days. According to his submissions, the respondent "had persistently maintained that a condition necessary for the Tribunal to have jurisdiction was not satisfied in relation to my application" because, the respondent had said, the internal review was completed in 59 days.
The appellant also submitted that: "it was manifestly wrong for Senior Member Starke to insist on the 5 Feb 2021 Hearing, before the Tribunal's jurisdiction had first properly been considered and determined by the Tribunal's Appeal Panel. Or at very least before the Presiding Member herself actually determined this matter."
The first proposition there stated is incorrect. As for the second proposition, it is correct that a Tribunal must be satisfied that it has jurisdiction to hear and determine a matter.
That is precisely what the Tribunal did.
The Tribunal noted that on 19 January 2021 the orders made included a note that the parties agreed that the Tribunal had jurisdiction to hear and determine the matter. This should be interpreted as the parties agreeing that there was no challenge to the jurisdiction of the Tribunal (contrary to the respondent's initial position), the appellant being correct in submitting that the parties cannot confer jurisdiction on a Tribunal where none exists.
Another matter of particular concern to the appellant, and addressed at great length in his written submissions, was the fact that the Tribunal refused his application to adjourn (or to use the appellant's term, "stay") the proceedings.
This was explained at [18] of the Decision as follows: "In oral submissions at the outset of the hearing, the applicant sought to have these proceedings deferred pending the hearing of another matter (not before me) in which he had appealed the decision of the Tribunal to refuse to grant a stay. The proceedings before me had been the subject of an order made on 19 January 2021 following the applicant's application for miscellaneous matters dated 10 January 2021. The orders sought in the miscellaneous matters application were not pressed and were not relevant to the matter before me on 5 February 2021. Pursuant to the order made on 19 January 2021, the matter before me remained listed for hearing on 5 February 2021. The order included a note that the parties agreed that the Tribunal has jurisdiction to hear and determine this matter before me."
The Tribunal then (at [21]): "explained to the [appellant] that the stay proceedings and appeal were not matters that were listed before me and that, as I had no knowledge of those other matters, and having regard to the respondent's objection to a deferral and the order made on 31 January 2021, this hearing (on 5 February 2021) would proceed."
The appellant also asserts that things occurred at the hearing which are not reflected in the Decision but can be understood by perusing the transcript. The point is that the appellant sought to raise with the Tribunal the directions made by Deputy President Westgarth on 1 February 2021.
Those directions were included in the appellant's material and are set out above.
Relevantly for the purposes of the proceedings before the Senior Member, what the Deputy President directed was simply that what should happen at the hearing would be a matter for the Senior Member. Although it appears that the Senior Member initially did not understand that the appellant was seeking an adjournment, this was made clear to her during the course of the hearing and she made a decision to proceed.
Here we note that it is quite usual for a Tribunal to determine whether or not it has jurisdiction (where it is an issue) as part of the entire proceedings, and not as a separate or preliminary issue. Indeed, the courts have warned of the dangers in doing so. Where, as here, one of the issues relating to jurisdiction is fact dependent, it seems entirely appropriate that the Tribunal not determine jurisdiction as a preliminary matter.
Thirdly, we see no substance in the submissions in relation to the January 2021 affidavit. The transcript shows that the appellant raised the issue of unwitnessed annexures, but agreed to the Tribunal's suggestion that the annexures to the December 2020 affidavit replace those of the January 2021 affidavit. The transcript also shows that the appellant made oral submissions to the effect that in any event the Tribunal should reject the January 2021 affidavit. Amongst other matters, the appellant submitted that the Tribunal had not been filed in accordance with directions. The Transcript records the Senior Member stating: "… so the Council has attempted the cure the defect of the first Affidavit by re-swearing another Affidavit before a Justice of the Peace and I would like to remind the parties again of the matters I raised earlier under the CAT Act which is the Tribunal is not bound by rules of evidence and it can enquire into and inform itself on any matter as it thinks fit and is to act with as little formality as the circumstances of the case permit. The material, the information contained in an Affidavit could just of well have been information provided by way of a Statement."
A debate between Tribunal and the appellant continues for some pages. The Tribunal observed: "Well, what I'm going to say is that the information contained in the Affidavit, the information, that is the Statements being made by the person deposing the Affidavit. The information could be produced, quite frankly, very informally, it could, it can be a simple situation where Ms Allan, for instance, who is available to the Tribunal, for this hearing, could be asked whether the information contained in that document is true and accurate and Ms Allan could be asked to swear, which she will be if she is going to give evidence anyway, she needs to be sworn in as a witness, and swear that those matters are true and that would … cure … any defect as well and the Tribunal I would be prepared and this Tribunal would be prepared to accept that by way of evidence and of course [EMF] you then will have the opportunity to test that evidence, that is what a hearing is all about. You can test that evidence you can ask [EMF] I understand that Senior Member You can ask questions of Ms Allan … Senior Member … the fact of the matter is the Tribunal was to act with as little formality as the circumstances permit and in this particular case, this material, the information in the Affidavit is not new to you, the information in the attachments is, according to Mr Maginnity, not new to you. It was emailed to the Tribunal on the date that it was required to be provided and since you were not and Mr Maginnity explained that Ms Allan was on leave until 27 January and the material was put in an Express Post envelope to you. In the circumstances, since they were matters discussed before the Tribunal on the 19th January it is very difficult to see why an objection can be raised and sustained."
Further dialogue ensues and eventually the Tribunal stated: "[EMF] we are going to deal with the substance of the matter and not the form and this matter can be dealt with by way of simply Ms Allan being called and she can swear or attest to the truth and accuracy of what is in that document and refer to the attachments and you can cross examine her on it."
And this position was accepted by the appellant: "Thank you, will we proceed with that next then Madam."
This is a good example of an issue which, while occupying much hearing time, does not appear to us to be necessary for the Tribunal to have referred to in the Decision. That is because ultimately the appellant accepted at the hearing that, notwithstanding what he saw as formal defects the January 2021 affidavit, the Tribunal allowed it to be admitted on the basis that the appellant could cross-examine the deponent Ms Allan, which he did.
Therefore, we see no substance in the appellant's submissions that the Tribunal erred by failing to refer to these matters in the Decision or to rely on those matters as a reason to not find jurisdiction or to adjourn the hearing.
In conclusion, we do not accept that the appeal should be allowed on the basis of any of the arguments of the appellant relating to the Tribunal's finding that it had jurisdiction to hear and determine the matter. As the appellant acknowledged at the hearing of the appeal, that is a finding he supported.

Other miscellaneous grounds relating to procedural fairness, including that Tribunal erred by taking into account irrelevant considerations, failing to take into account relevant considerations, failing to consider the right questions, and failing to consider and apply the law.

The appellant submits that he was denied procedural fairness or natural justice in many aspects of the conduct of the hearing and by the approach taken by the Tribunal. As noted, many of these grounds overlap with his jurisdiction/failure to adjourn ground and include the following claims:

the Tribunal erred by failing to relevantly consider, or properly inform itself about the 1 February 2021 directions;
the Tribunal failed to afford him the opportunity to properly explain his pending stay application;
the Tribunal misunderstood the basis or reason for his stay application;
"the Tribunal failed to ensure that all relevant material was disclosed to the Tribunal to enable it to determine all of the relevant facts in issue";
the Tribunal failed to afford the appellant the opportunity to be heard "and made no attempt, and showed no interest, in enquiring about" why Deputy President Westgarth gave his directions for the Tribunal to consider what should happen with the 5 February 2021 hearing;
the Tribunal failed to relevantly and properly consider the directions made by the Appeal Panel, or consider what should happen with the hearing.

In addition, the appellant also submits that:

the Tribunal did not allow the appellant the opportunity to inform the Tribunal of "the real issues";
the Tribunal erred by failing to consider or apply s 33 of the Interpretation Act;
the Tribunal erred by "failing to consider, properly or at all, any of the relevant principles of law" that should be considered by the Tribunal to arrive at a correct and just decision when exercising its power under s 43(3) of the NCAT Act.
the Tribunal failed to take into account various sections of the ADR Act, the Interpretation Act, the PPIP Act and s 36(5) of the NCAT Act in following BKM;
the Tribunal failed to take into account an evidentiary certificate which related to an "invalidly and incompetently 'witnessed' affidavit";
the Tribunal failed to reasonably give any proper consideration to exercising its enforcement jurisdiction under s 33 of the NCAT Act, and failed to give any relevant consideration to whether or not any false or misleading statements may have been made to the Tribunal contrary to s 71 of the NCAT Act;
the Tribunal failed to apply the "guiding principle" in NCAT Act, s 36(3);
the Tribunal failed to "inquire into and inform itself on any manner as it thinks fit" in accordance with s38(2) of the NCAT Act;
the Tribunal further erred by failing to consider or direct its mind to the Tribunal's obligation to judicially exercise power under s 43(3) of the NCAT Act to secure the effectiveness of the determination of an appeal;
the Tribunal "did not ask or consider what the interests of justice fairly require!"

The respondent submits that:

no error is demonstrated;
the appellant's submissions are not supported by an examination of the evidence;
the applicant has not provided evidence of any instance at where the Tribunal 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;
in fact, the Tribunal allowed the appellant to outline his arguments regarding his stay application to the point where the appellant was unreasonably prolonging the hearing and not accepting the explanations by Senior Member Starke for her actions;
the discretion not to adjourn the hearing was exercised judicially after the Tribunal's careful and thorough consideration of the circumstances. In this respect, the respondent relies on the transcript;
ultimately, the appellant failed to establish to the satisfaction of the Tribunal that it was appropriate to stay the hearing, despite the many opportunities the appellant was given to demonstrate a sufficient basis.

In summary, the respondent says that these submissions are without substance.
In relation to the BKM point, the respondent submits, correctly, that even if the decision was incorrectly decided, the Tribunal understood that its task was not to review the internal review decision but to make the correct and preferable decision.
In relation to the other matters, the respondent variously submits that the submissions are without merit or irrelevant.
In relation to the affidavit issue, the respondent submits that the procedural shortcomings of the affidavit were factually irrelevant to the factual issue, and the Senior Member indicated during the hearing that while aware of the issue she considered it to be not relevant to her fact finding exercise.

Consideration

We consider that the appellant's submissions on this issue are without substance. They are confused, repetitive, prolix and difficult to understand.
In our view, a fair reading of the transcript shows that the hearing was conducted in a polite and appropriate manner by the Senior Member. There is force in the respondent's submission that the Senior Member "exercised great care to ensure that the [appellant] received a fair hearing on the matters of actual relevance to the matters she was seized with".
A fair reading of the Decision shows that the Senior Member wrote detailed and considered reasons in an entirely orthodox manner consistent with the expectations of the Court of Appeal described in Soulmezis and Beale.
Many of the matters raised by the appellant in support of these grounds are misconceived. For example, he submits that "[i]f Ms Allan failed to complete her internal review in the mandatory 60 calendar days allowed by s 6(5) of the ADR Act and PPIP Act then whether or not I was notified of an outcome within 14 days is an irrelevant consideration." Given, however, that the Tribunal found, in the appellant's favour, that the review was not completed within 60 days, and that the appellant was entitled to make the application to the Tribunal that he made, the issue raised by the appellant was irrelevant to the Tribunal's determination.
The appellant submitted that the internal review decision was "ultra vires" because made out of time and the Tribunal erred by allowing the respondent to rely upon it. Neither proposition is correct.
The Tribunal noted (at [131]-[131]) that the respondent's obligation under s 53(6) of the PPIP Act was to complete the internal review as soon as is reasonably practicable in the circumstances (and not necessarily within 60 days). The Tribunal's observation (at [133]) that the entitlement to make an application to the Tribunal for review after 60 days was a "separate aspect entirely" has some merit.
In any event, the Tribunal remarked at [140]: "I am satisfied that this Tribunal has jurisdiction to review the conduct the subject of the internal review application in circumstances where an internal review decision may not be available. Having said that, if an internal review decision is finalised after the time that an applicant seeks external review but before a hearing in the matter takes place, the Tribunal may have the benefit of an agency's internal review decision among the material that is placed before the Tribunal. However, the findings of the internal review decision are irrelevant since the jurisdiction is to conduct a fresh review of the original conduct: NS v Commissioner, Department of Corrective Services [2004] NSWADT 263 at [43]."
There was no error in this approach. The Tribunal correctly identified that its task was to review the conduct the subject of the internal review application, and not the internal review itself. As the Tribunal may inform itself as it thinks fit (NCAT Act, s 38(2)), there is no reason why it cannot have regard to the internal review as part of the material before it.
All of these grounds of appeal should be rejected.

Preliminary observation

We commence our treatment of this issue with the following observation.
The Hon J D Heydon, sitting as the Royal Commissioner Royal Commission into Trade Union Governance and Corruption, relevantly stated in his Reasons for Ruling on Disqualification Application (31 August 2015): 30. Much of the applicable law in relation to issues of 'apprehended bias' concerns how a fair-minded lay observer would reason. To some minds, including those of fair-minded lay observers, it might seem strange that a person complaining about the bias of a Royal Commissioner should make application for disqualification not to a court, but to the person accused of bias or apprehended bias. What are the prospects of success in making an application against a Royal Commissioner on that ground, it might be said, when that Commissioner hears the application? 31. Of course if the application to the decision-maker for disqualification fails, the applicant then has the opportunity to seek relief from a court of competent jurisdiction. But why should the applicant have to go through the preliminary step of applying to the decision- maker? Whatever the reasons, it is at least a custom and, leaving aside exceptional circumstances, possibly also a rule of law, that in the first instance the application should be made to the person whom the applicant alleges is biased or is apparently biased. If that is not done, the court to which the application is made may reject it as premature. (emphasis added)
However, as the appellant was not represented at the Tribunal, we accept that he would have been unaware of the niceties of points such as this. As the appellant clearly raised the conduct of the Senior Member in conducting of the hearing with her, describing her rulings as inter alia "unfair," we consider that we should determine this ground of appeal on its merits.

Appellant's submissions

The appellant submits that his claim of apprehended bias relies on "multiple instance of conduct" of the Senior Member during the hearing. These include, but are not limited to:

admitting the January 2021 affidavit - in that she failed to consider and apply rr 22 and 26 of the Civil and Administrative Rules 2014 (NSW) to exclude the 27 January 2021 affidavit;
"insisting" on the hearing proceeding;
failing to enquire why Deputy President Westgarth gave the direction he did on 1 February 2021;
intervening during the examination of a witness;
selectively referring to the appellant's concerns and "significantly and selectively" omitting "highly relevant additional information from her selected quote of 'facts'" at [71];
ignoring factual evidence;
making misleading statements at [22] and [23] of the Decision;
not agreeing to the appellant's request to provide the Tribunal directly with evidence of his damages after the hearing;
failing to intervene while the respondent's representative at the hearing submitted that the appellant had made defamatory statements about the respondent. In submissions covering a page he concludes: The Presiding Member's failure to intervene, and her failure to inform the Respondent it was inappropriate and unacceptable to accuse me of defamation, might cause a fair-minded lay observer to reasonably think that the Presiding Member might not impartially and neutrally evaluate and determine the proper questions of whether the Respondent breached the PPIP Act-based on merit. The Presiding Member was prepared to turn a blind eye to the manifestly inappropriate and baseless allegation made by the [r]espondent's Public Officer.

Respondent's submissions

The submissions commence by noting that this ground of appeal, comprised of 10 sub-grounds over some 22 pages, is repetitive of the factual and legal issues already raised by the earlier grounds. The submissions state that the respondent relies generally on its submissions on the factual questions raised and submits that the allegations do not individually or collectively amount to something that could reasonably be considered to give rise to a reasonable apprehension of bias on the part of the Senior Member.
The respondent then makes three principal submissions.
First, a review of the transcript and Decision indicates that the Senior Member exercised great care to ensure that the appellant received a fair hearing on the matters of actual relevance to the matters she was seized with determining at the hearing.
Secondly, as to the intervention by the Senior Member during the examination of a witness, the appellant was conducting an inappropriate line of questioning.
Thirdly, as to the Senior Member not agreeing to the appellant's request to provide the Tribunal directly with evidence of his damages after the hearing, the Senior Member rejected the appellant's request because (as was explained at the hearing), the appellant should have had his case prepared for the hearing at the time listed. This determination of the Senior Member was an entirely unexceptional ruling about a matter of ordinary civil procedure.

Consideration

In Wootten v Godfrey [2019] NSWCATAP 255 at [26] and following the Appeal Panel summarised the relevant principles, which we paraphrase as follows. 1. in the contexts of courts, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). 2. in Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, in the context of a decision by a local council committee, Kiefel, Bell, Keane and Nettle JJ at [20], stated the test to be "whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made". Their Honours stated that this was largely a factual question "albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made". 3. the test of apprehended bias is objective. It involves possibilities (real and not remote) not probabilities. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the fair-minded lay observer might reasonably apprehend that to be the case. While the observer assessing possible bias is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless they are taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23]. 4. the question of whether the fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the matter is directed not to the correctness of the outcome, but to the apparent fairness of the process: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [3]. 5. Where the claim of apprehended bias relies on multiple instances of conduct, it is necessary to consider those instances both individually and cumulatively to determine whether they were capable of giving rise to a reasonable apprehension of bias: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [176]; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [114].
See too Kirby v Dental Council of New South Wales [2017] NSWCATOD 64 at [81] to [83].
In summary, the appellant submits that the Senior Member conducted herself in a way that gives rise to a reasonable apprehension of bias by:

acting "without any rational reason for doing so";
ignoring evidence without justification;
failing to understand the basis of or reason for his application, and failing to respond to it;
"completely misunderst[anding]" each of the issues;
being "fundamentally confused about actual basic facts".

Despite the 22 pages of submissions, we see no factor that individually or factors cumulatively which suggest that a fair-minded lay observer might reasonably apprehend that the Senior Member might not bring an impartial and unprejudiced mind to the resolution of the question she was required to decide.
We repeat our observations at [100]. In our view, a fair reading of the transcript shows that the Senior Member exercised great care to ensure that the appellant received a fair hearing.
The fact a party disagrees with the ultimate outcome of an application, or disagrees with decisions made during that process, does not found a basis for a claim of apprehended bias.
As the Appeal Panel noted in Wooten at [54], the issue is not whether the Tribunal Member's conduct fell short of the desirable standards but, rather, whether on the basis of that conduct, the fair-minded lay observer might reasonably apprehend that the Tribunal Member might not bring an impartial mind to the determination of the merits of the application, or was not open to persuasion.
When the conduct of the hearing by the Senior Member is considered as a whole, we are not persuaded that the fair-minded lay observer might reasonably apprehend that the Senior Member might not bring an impartial mind to the determination of the merits of the application.
This ground of appeal is rejected.

Conclusion

We see no merit in any of the various arguments of the appellant.
The appeal should be dismissed.

Costs

The appellant has been unsuccessful.
If the respondent seeks costs, it should provide submissions on costs to the Tribunal and the appellant within 14 days. Those submissions must be limited to three pages in length, identify the relevant costs rule and provide reasons for seeking the order.
The appellant may respond within a further 14 days, and his submissions must also be limited to three pages.
The respondent may reply to the appellant's submissions within a further 7 days.
As we informed the parties at the hearing, we propose to deal with the question of costs "on the papers" and without a further hearing. If either party opposes that course, it should address that issue in its submissions.

Orders

The Appeal Panel orders: 1. The appeal is dismissed. 2. Any party who wishes to apply for costs may file any submissions as to costs within 14 days. 3. The respondent to any costs application is to file any submissions in response within a further 14 days. 4. The costs applicant may reply within a further 7 days.

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 August 2021

Civil and Administrative Rules 2014(NSW)

Local Government (General) Regulation 2005(NSW)

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