The background to the application that is before me for determination today is set out in EMQ v Cumberland Council [2022] NSWCATAD 51. It is sufficient for present purposes to note that the substantive application in this proceeding is an application under section 55 of the Administrative Decisions Review Act 1997 for an administrative review under section 55(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) of alleged conduct by Cumberland City Council (the agency) that was in contravention of information protection principles contained in Part 2, Division 1 of the PPIP Act following an internal review of that conduct by the agency. I am dealing with an interlocutory application made by the agency on 29 October 2021 for orders that it is exempt from producing 10 documents within the scope of Order 1 of the Orders of the Appeal Panel in Decision Restricted [2021] NSWCATAP 288 which arise from a Summons to produce documents issued by the applicant on the agency on 25 March 2021.
There are also currently proceedings between the parties concerning an application made by the applicant under the Government Information (Public Access) Act 2009 (GIPA Act). A first instance decision in those proceedings (FHG v Cumberland City Council [2021] NSWCATAD 379) is the subject of an appeal which is presently set down for hearing on 17 June 2022 (Appeal No. 2022/88146 FHG v Cumberland City Council) (the GIPA Appeal proceedings). I am advised by both parties that there is substantial concurrence between the documents which are the subject of the applicant's access application under the GIPA Act and the documents he has sought to have produced by the agency in these proceedings under Summons.
Both the agency and the applicant sought an adjournment of the hearing today in applications submitted by email to the Registrar on 14 and 21 April 2022 respectively. The applicant did so on the ground that he had recently made an application to the Law Society for pro-bono legal assistance which had yet to be determined. The agency did so on the ground that there was potential for inconsistent determinations of the Tribunal if its' General Application were to be determined prior to the outcome of the GIPA Appeal proceedings. At the hearing, both parties consented to the other's application for adjournment.
I determined to grant the applicant's request for an adjournment on the ground he submitted. While such an application made so close to a final hearing in circumstances where there had been ample opportunity to engage legal assistance prior to the hearing would not usually be granted, I was satisfied that it was appropriate to do so in the particular circumstances of this case. Two factors led me to this conclusion. First, there is complexity in the proceedings which has continued to develop because of the related GIPA Appeal proceedings. The applicant ought to be permitted to reconsider his position as to legal representation in response to this developing complexity. Second, the agency has now engaged counsel to act for it in these proceedings. The applicant was not on notice as to that prior to the hearing. I am satisfied that this impacts the relative party capabilities to the potential disadvantage of the applicant.
As I determined to grant an adjournment on the applicant's application, it was unnecessary for me to consider the agency's request on its merits. I therefore make no determination on the question of whether the outcome of an access application under the GIPA Act has any bearing on an obligation to comply with a Summons to produce documents. Nevertheless, to avoid any addition to the complexity of the proceedings, I have adjourned the hearing of the agency's General Application to a date after the GIPA Appeal proceedings have been determined.
In its correspondence to the Registrar dated 14 April 2022 the agency also indicated that it sought a 'ruling' on the 'outstanding issue' of whether it is able to produce documents to the Tribunal under Summons without committing an offence under s 159(1) of the Children's Guardian Act 2009. Notwithstanding its request for an adjournment of the hearing of its General Application the agency pressed a hearing of that issue today. The applicant did not object to that issue being dealt with. I determined to approach this question on the basis that it was an objection by the agency to compliance with the Summons on that ground that it would be a contravention of s 159(1).
Part 11, Division 1 (ss 159 - 162) of the Children's Guardian Act 2009 establishes offences in relation to the improper use and disclosure of information obtained in connection with the administration and execution of that Act. Specifically, s 159(1) provides:
159 Disclosure of information
(1) A person who discloses information obtained in connection with the administration or execution of this Act is guilty of an offence unless the disclosure is made -
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act or the regulations, or
(c) for the purposes of legal proceedings, or a report about legal proceedings, arising out of this Act or the regulations, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) with lawful excuse.
Maximum penalty - 10 penalty units or imprisonment for a period not exceeding 12 months, or both
The agency is not a body corporate or corporation by operation of s 220(2) of the Local Government Act 1993. However, a law of the state applies to and in respect of a council in the same way as it applies to and in respect of a body corporate, including a corporation: s 220(4). The Children's Guardian Act 2009 is a law of the state for the purposes of s 220 of the Local Government Act 1993. Consequently, to understand the gravamen of the agency's objection it is also necessary to have regard to Division 2 of Part 11 of the Children's Guardian Act 2009, which deals with 'executive liability offences' which are defined in s 164 to include an offence under s 159(1).
Section 165 relevantly provides:
165 Executive liability offences committed by person
(1) A person commits an executive liability offence if -
(a) a corporation commits an executive liability offence, and
(b) the person is -
…
(ii) an individual who is involved in the management of the corporation in relation to the commission of the executive liability offence, and
(c) the person -
(i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and
(ii) fails to take all reasonable steps to prevent or stop the commission of that offence.
Maximum penalty -
…
(c) otherwise - the maximum penalty for the executive liability offence if committed by an individual
…
(3) In this section -
"reasonable steps", in relation to the commission of an executive liability offence, includes, but is not limited to, action of the following kinds that is reasonable in all the circumstances:
(a) action towards -
(i) assessing the corporation's compliance with the provision creating the executive liability offence, and
…
The agency contends that the Summons purports to compel it to produce documents that have been created as a result of action that it has carried out pursuant to obligations imposed on it by Part 4 of the Children's Guardian Act 2009. It contends that if it were to comply with the Summons it would commit a corporate liability offence under s 159(1).
This objection to the production of documents pursuant to the Summons is misconceived. The Summons is a compulsory process (or order) of the Tribunal: s 48 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). Failure to comply with the Summons is capable of constituting contempt of the Tribunal: s 73(1) and (2) of the NCAT Act. The agency therefore plainly has a "lawful excuse" within the meaning of s 159(1)(e) of the Children's Guardian Act 2009 to produce to the Tribunal the documents sought by the Summons. In doing so, it could not commit an offence under that section.
I note that production of documents to the Tribunal pursuant to the Summons does not constitute a general release of those documents. These documents are produced for the purpose of the legal proceedings before the Tribunal only. That production is subject to the implied undertaking that the documents cannot be used by the applicant for any purpose other than that for which they were produced without leave of the Tribunal unless they are received into evidence: Hearne v Street (2008) 235 CLR 125 at [96].
Having produced to the Tribunal the documents subject to the Summons, it remains open to the agency to object to or request conditions on their release (whether to the applicant or otherwise), on specific grounds. Any such objections will be determined in the final hearing of the agency's General Application.
I also note that s 64 of the NCAT Act gives the Tribunal broad powers to prohibit or restrict the disclosure of the contents of a document lodged with the Tribunal or received into evidence by the Tribunal in relation to proceedings before it. The exercise of those powers is potentially available to the agency in relation to any documents produced pursuant to the Summons upon application.
[2]
Order
For the foregoing reasons I make the following orders:
1. The respondent's General Application filed on 29 October 2021 is adjourned to a date to be fixed by the Registrar after the determination of Appeal proceeding 2022/88146 FHG v Cumberland Council.
2. The respondent's objection to the production of documents under the Summons based on s 159(1) of the Children's Guardian Act 2019 is dismissed.
3. The parties have liberty to apply for further orders.
[3]
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: 27 April 2022