FTD v NSW Ambulance; FTD v NSW Ambulance

Jurisdiction and legal principle

1. The power to set aside a Summons is an instance of the Tribunal's power to regulate its processes and intervene in a case of abuse of its processes: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown City Council) at [32], [60], [88], [98], [100].
2. As submitted by the Respondent, a Summons should be set aside if it lacks a legitimate forensic purpose. The forensic onus is on the issuing party to identify a legitimate forensic purpose: see Re Don [2006] NSWSC 1125 at [26(3)].
3. In icare NSW v Webb [2023] NSWCATAP 192, Principal Member A Suthers observed that the same principles applying to an issue of a Summons for production of documents could apply to the issue of a Summons to a potential witness to testify in proceedings with the appropriate adjustment. In this respect, consideration was given to the decision of Blacktown City Council where it was observed by Bell P (as he was then known): It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are 'apparently relevant' or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist.
4. In the same decision, Brereton JA said at [89] l agree with [Bell P], for the reasons given by his Honour, that an issuing party is not required to show that it is 'likely' (or 'on the cards') that the documents sought will materially assist its case, as distinct from that it is 'likely' (or 'on the cards') that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they 'appear relevant in the sense that they relate to the subject matter of the proceedings'; or that they could possibly throw light on the issues in the case…
5. His Honour continued, at [96]: … it was unnecessary […] to demonstrate that the documents sought to be produced would materially assist [the applicant for a Summons'] case, and sufficient to establish that the documents would assist on an identified issue.
6. In consideration of this decision, Principal Member A Suthers stated: A summons to a witness to attend a hearing will not generally be an abuse of process if their evidence is likely to, or it is "on the cards" that it will, in some way, add to the relevant evidence in the case on an identified issue. However, if it can separately be demonstrated that the party issuing the summons "has done so for some improper, illegitimate or ulterior purpose foreign to the litigation", the Tribunal in the exercise of its discretion may still set aside the summons as an abuse of process. [citation omitted]

Submissions of the parties

1. In respect of the First Application and the Summons issued to Mr Kelly, the Respondent submitted that: 1. since the Respondent has subsequently provided all of the information identified by Mr Kelly and referenced in the initial decision, despite Mr Kelly initially withholding some of that information, the only issues in the proceedings are: 1. whether the Respondent holds further personal information falling within the scope of the Applicant's access request, and that has not been provided to the Applicant as a result of the Respondent failing to undertake reasonable searches; and 2. whether there was any "excessive delay" in the Applicant being provided with the information she has already been provided. 1. In respect of those questions, the Respondent contends that Mr Kelly's evidence "would not add to the relevant evidence before the Tribunal" in relation to these issues. Rather, Mr Jack Henderson (being the Associate Director of Legal Services of the Respondent who conducted the internal review) has provided "extensive evidence" as to these matters and will be available for cross-examination.
2. In respect of the Second Application and the Summons issued to Ms Thorn, the Respondent submitted that: 1. as it was not in dispute that Ms Thorn collected the Applicant's personal information, recorded a file note which contained her own opinions about the Applicant's performance and disclosed certain information to the University of Tasmania, the only issues before the Tribunal are whether that conduct was in contravention of the PPIP Act and specifically: 1. Whether that collection was for a lawful purpose directly related to the Respondent's functions and was not collected by unlawful means; and 2. Whether the Respondent took reasonable steps to make the Applicant aware that the information would be collected. 1. In respect of those questions, the Respondent contends that Ms Thorn cannot give any evidence as she was not involved in the "use" or "disclosure" of any of the Applicant's personal information. Rather, Mr Jack Henderson and Mr Mike Richer (Associate Director of Clinical Education of the Respondent) can answer questions with respect to these issues and have provided statements and are available for cross-examination. As described by the Respondent: These statements contain evidence about the administration of clinical placements at NSW Ambulance and the information that is provided to students (including the applicant) about the processes in placement for monitoring their conduct and performance and reporting any issues with their conduct and performance to their university."
3. In respect of both Summonses, the Respondent relies upon Lonsdale v University of Sydney [2015] NSWCATAP 277 for the proposition that there must be "strong reasons" for issuing a Summons to staff members of an agency who the agency has not chosen to call as a witness as well as CYL v YZA [2017] NSWCATAP 105 for the principle that great care must be taken in privacy proceeding not to have them become a forum for general review of agency policies and actions with which the review applicant disagrees. The Respondent submits that allowing these individuals to be called as witnesses is inconsistent with the just, quick and cheap resolution of these proceedings: s 36 of the Civil and Administrative Tribunal Act 2013 (NSW).
4. In response, the Applicant submits that the evidence of both potential witnesses serve obvious forensic purposes including with respect to Mr Kelly: 1. The reasonableness of the searches that were undertaken and/or co-ordinated by Mr Kelly; 2. The instructions he gave to others when co-ordinating searches for information responding to the Applicant's request; 3. Whether those instructions align with a proper interpretation of privacy law principles; 4. The steps taken, if any, to verify the adequacy of the searches undertaken by others; 5. Mr Kelly's personal "extraordinary" reasoning in the selection and use of a range of public interest considerations against disclosure that led to the initial non-disclosure of certain information (which was subsequently disclosed to the Applicant).
5. With respect to Ms Thorn: 1. The reasonableness of the searches that were undertaken by Ms Thorn at the request of Mr Kelly; 2. The purpose of Ms Thorn's collection of the Applicant's personal information and use of that information; 3. The adequacy of Ms Thorn's alleged obligation to make the Applicant aware of the collection of the Applicant's personal information; and 4. Whether file notes and documents containing the opinion of Ms Thorn and/ or evaluations about the Applicant's placement experience were "sufficiently relevant, accurate, up to date, complete and not misleading".

Factual allegations

1. The Applicant has referred to and relied upon the evidence of Mr Jack Henderson and Mr Mike Richer as described above but has not filed a statement of Mr Kelly and Ms Thorn. As noted above, Mr Henderson is the Associate Director of Legal Services of the Respondent who conducted the internal review and Mr Richer is the Associate Director of Clinical Education of the Respondent.

Alleged initial searches

1. At [29] to [34] of Mr Henderson's Statement dated 29 May 2024 (Mr Henderson's First Statement), Mr Henderson gives evidence of Mr Kelly's conduct with respect to the alleged steps taken by Mr Kelly to identify information responsive to the Applicant's access application and alleged steps taken by others including Ms Thorn to respond to Mr Kelly's request. Mr Henderson's evidence on this matter is not based on any direct evidence but rather, upon his review of emails sent and received by Mr Kelly that Mr Henderson was not originally privy to, but which were presumably subsequently provided to, or obtained by, Mr Henderson being "records held and maintained by NSW Ambulance" as stated by him at [5] of that Statement. Significantly, in the Internal Review, Mr Henderson states: In my view, and on review of those searches, I consider that [Mr Kelly's] searches were reasonable.
2. This opinion is affirmed by Mr Henderson at [43] of his Statement where he confirms that this view was based on his review of the emails Mr Kelly sent and replies to those emails by, amongst others, Ms Thorn. The emails and replies described at [32] of Mr Henderson's Statement are as follows: The Notice of Decision did not provide an overview of the searches that Mr Kelly conducted to locate this information. However, from my review of Mr Kelly's emails from that time, I note that: 1. Mr Kelly contacted Inspector lan Dwyer, Ambulance Officer Ashleigh Thorn, and Michael Corbett to outline the information sought in the Applicant's second access request, and to ask them to provide that information. These were the three staff members of NSW Ambulance who were named in the Applicant's access application. Ms Thorn was the Applicant's preceptor during her placement at Tuncurry Ambulance Station. Inspector Dwyer was the Duty Operations Manager for the North Coast Sector, in which that station is located. Mr Corbett is a Paramedic Educator and I understand that in this role he was also involved in organising clinical placements with students. 2. Ms Thorn provided Mr Kelly with the emails that she exchanged with Inspector Dwyer in relation to the Applicant during the relevant period. 3. Inspector Dwyer provided Mr Kelly with the two file notes that were recorded in relation to the Applicant during the relevant period, and with the emails he exchanged with Suzanne Avis (a staff member at the Sydney Campus of the University of Tasmania) in relation to the Applicant. 4. Mr Corbett provided Mr Kelly with a copy of the Excel spreadsheet referred to above.

Alleged subsequent "additional searches" and discovery of email attaching photograph

1. Notwithstanding this opinion, at [44] of Mr Henderson's First Statement he states that he recommended that further searches be conducted to identify whether the Respondent held any additional information of the kind described in her internal application. The reference to "of the kind described in her internal application" was to the position taken by the Applicant that it was self-evident from the documents disclosed to her that the reproduction of photographs was obtained through the use of a mobile phone. According to the Applicant this meant that additional personal information was recorded and transferred but the documentation evidencing this transfer was not produced by the Respondent supporting that information responding to her access request had not been disclosed.
2. The "further searches" conducted by Mr Henderson, according to Mr Henderson's First Statement was by way of a request by email of Ms Thorn to request that Ms Thorn confirm whether any photographs were taken. This is described at paragraphs [47] to [49] as follows: On 27 November 2023, pursuant to my recommendation that further searches be conducted for the information described by the Applicant, I sent an email to Ashleigh Thorn to enquire whether any other photographs were taken of the Applicant's documents at the time that the photographs of the evaluation form were taken. I considered that Ms Thorn was the most appropriate person to make this enquiry to, as I understood that she was the person who had taken the photographs of the evaluation form already released to the Applicant. On 10 December 2023, Ms Thorn replied to me to confirm that she did not see any other documents belonging to the Applicant at the time that she took photographs of the Applicant's evaluation form. A copy of this email exchange is at Tab 17 of Exhibit JH-1. On 11 December 2023, I notified the Applicant that, as recommended in the second internal review decision, NSW Ambulance had undertaken further searches to identify whether it held any additional photographs of documents belonging to the Applicant, and that no additional photographs were held. A copy of that letter and its covering email is at Tab 18 of Exhibit JH-1.
3. At [54], Mr Henderson in his First Statement gives details of a telephone conversation with Ms Thorn "in May 2024" being approximately six months after the alleged "additional search" conducted in November 2023 regarding how photographs were transferred from a mobile phone to the Respondent's IT System. Paragraph [54] reads: In May 2024, I contacted Paramedic Thorn by telephone to obtain further information about how the photographs were transferred from a mobile phone onto NSW Ambulance "IT systems" so that they could be annexed to her file note. I was informed by Paramedic Thorn that transfer of the photographs did occur by email between a phone and a computer. During the telephone call, Paramedic Thorn was unable to provide greater detail on whether the email was still available to her. As a result of my employment within NSW Ambulance, I am generally aware that an "auto-archive" system is in place whereby emails outside of a certain period are automatically removed from Outlook access and stored in archive systems. I am not aware of whether this occurred, or whether email archives have been searched at this point in time. I remain of the view expressed in my internal review decision that the searches conducted by Mr Kelly outlined at [32] above - which have now been supplemented by the searches outlined at [47]-(48] and [54] above - were reasonable in the circumstances.
4. Mr Henderson then gives opinion evidence which is based on the absence of information (at [56] and [57] of the First Statement): In my experience as A/Associate Director of Legal Services and in my previous role as Senior Solicitor at NSW Ambulance, it is standard procedure for searches for information to be conducted by contacting staff members who are likely to have access to the information sought, and asking those staff members to identify and provide that information (for example, by searching their email inboxes and outboxes). I am not aware of any matters that would suggest that the staff members contacted in this case - being Ms Thorn, Mr Corbett and Inspector Dwyer - would not have complied with Mr Kelly's and my requests to conduct relevant searches, or would not have provided an honest report on the results of those searches. The responses received from those staff members provided documents falling within the scope of the Applicant's access request. In my view, the fact that the staff members provided documents that were responsive to the access request supports the conclusion that it was reasonable for Mr Kelly to request that those staff members conduct searches for relevant documents, that they did in fact conduct reasonable searches to identify those documents, and that they did not withhold any of the documents that were found by those searches. Other than the searches outlined at [32], [47]-[48] and [54] above, I am noi (sic) aware of any additional searches that could be (or could reasonably be) undertaken which might result in information being identified that is responsive to the applicant's second access application.
5. Mr Henderson then prepared a subsequent statement dated 7 June 2024. At [6] of Mr Henderson's Second Statement Mr Henderson gives further alleged details of his conversation with Ms Thorn: "In paragraph [54] of my previous statement, I said that Ms Thorn had informed me in a telephone conversation on 29 May 2024 that she had transferred the photographs that she took of the Applicant's evaluation form on her mobile phone to NSW Ambulance's "IT systems* by attaching the photographs to an email that she sent from her mobile phone and then accessed on a computer. At that point, I did not know whether the email had been located by Ms Thorn. On 5 June 2024, I had a further telephone conversation with Ms Thorn, in which she informed me that she had accessed her email archives to find the email that she had sent from her mobile phone, attaching the photographs of the Applicant's evaluation form. Ms Thorn clarified that she had taken the photographs on her personal iPhone, as at that point NSW Ambulance had not provided her with a work phone and she was expected to use her personal phone for work purposes. I am informed Ms Thorn attached the photographs to an email that was sent from her personal email address to her work email address, which she then accessed on a work computer and annexed to the file note that she recorded on 2 February 2024. Ms Thorn informed me that this email did not contain any text or information except for the photographs included in her file note and the words "Sent from my iPhone"

Consideration

1. The Respondent's contention that the evidence of Mr Kelly and Ms Thorn has no forensic purpose is rejected as supported by firstly, the substance of the First and Second Application and secondly, in the evidence that the Respondent purports to rely upon in the hearing of those applications.
2. In respect to the substance of the applications, a core issue for the purposes of the First Application: 1. is whether the searches conducted in response to the Applicant's access request were reasonable. Apart from some subsequent limited email correspondence and a conversation between Mr Henderson and Ms Thorn, the totality of those searches was conducted by Mr Kelly. It is self-evident that Mr Kelly can give direct and relevant evidence in that respect such as: 1. Any oral communications with Ms Thorn and the other individuals the subject of the access application upon whom he relied on to provide him with any responding information; 2. What if any verification was conducted as to the searches undertaken by those individuals (either by him or by an independent party unrelated to the application or the Applicant such as the IT department or otherwise); 3. The appropriateness of relying upon the individuals that were the subject of the access application, including Ms Thorn, to produce the documents responding to the access request: 1. where the Applicant was critical of the conduct of at least Ms Thorn which may have placed Ms Thorn in a conflict of interest in providing communications that were adverse to her personal interests; and 2. where it is evident from the First Statement of Mr Henderson that the Respondent maintains records that may be accessed where an individual is not originally privy to those communications (see paragraph [5] of the First Statement). This is evident because this is the basis upon which Mr Henderson has made his First Statement with respect to the conduct of Mr Kelly based upon emails to and from Mr Kelly. 1. Given Mr Henderson's reliance on the steps taken by Mr Kelly, who in turn relied upon Ms Thorn's searches (amongst others), Ms Thorn can also give direct and relevant evidence as to the instructions she received, her understanding of those instructions and the steps undertaken by her including but not limited to, why the email she had sent from her mobile phone was only identified by her in June 2024 and whether it was only in June 2024 that she undertook a search of her archived material.
3. As for the Second Application, the Applicant contends that the Respondent contravened ss 8-10, 16 and 18 of the PPIP Act on the basis that the Respondent has unlawfully "collected" the Applicant's personal information, "used" her information without taking reasonable steps to check its accuracy and "disclosed" her information to a third party. It was Ms Thorn who was the "collector" and according to the Applicant, did not take reasonable steps to check the information's accuracy before using that information. Again, it is self-evident that Ms Thorn can give direct and relevant evidence in respect of her conduct regarding these matters.
4. Even if there was any doubt as to the forensic purpose of calling Mr Kelly and Ms Thorn to give evidence (and there is not), it is implicit in the evidence relied upon by the Respondent, that their evidence is probative. As extracted above, the Respondent relies upon the purported conduct of Mr Kelly and Ms Thorn but attempts to do so by relying upon hearsay evidence. That is, the Respondent relies upon Mr Henderson's review of Mr Kelly's emails and telephone conversations with Ms Thorn to prove the fact of Mr Kelly's and Ms Thorn's conduct as opposed to direct evidence from Mr Kelly and Ms Thorn. If the Evidence Act 1995 (NSW) applied in this jurisdiction, such evidence would be objectionable and, most likely, inadmissible.
5. While the Evidence Act 1995 (NSW) does not apply in this jurisdiction, the rules of natural justice do. It would be inconsistent with those rules to allow a party to rely upon such hearsay evidence while simultaneously denying the opposing party the opportunity of calling the person who can give direct evidence as to those facts and circumstances to challenge those facts and circumstances. If this approach was permissible, a party could have an unrelated third party make a statement based upon telephone conversations and emails with relevant individuals and thereby protect those relevant individuals from cross-examination and challenge. That would be an unfair and impermissible approach.
6. The Respondent's response is that the evidence that could potentially be given by Mr Kelly and Ms Thorn is "not in dispute". I do not accept that proposition given their obvious relationship with the issues in dispute as described above. The basis of the Respondent's submission in this respect appears to be because the Respondent has put on hearsay evidence through Mr Henderson (as to the searches conducted by Mr Kelly and Ms Thorn, as well as the collection information and the use of that information by Ms Thorn) those facts are not in dispute. That is incorrect. The fact that the Respondent relies upon a statement does not make the contents agreed. The Applicant clearly challenges the propositions that the searches undertaken on behalf of the Respondent (including those undertaken by Mr Kelly) were reasonable and that Ms Thorn's conduct in the collection and use of her personal information was consistent with the PIPP Act.
7. While I accept that the Summonses should not be set aside for the reasons above, I do not accept all the Applicant's submissions as to the purpose of Mr Kelly and Ms Thorn's examination. In this respect, if the purported legitimate forensic purpose was limited to testing the witnesses as to issues of law or seeking to re-write evaluation forms to align with the Applicant's opinion about herself, the outcome of these applications to set aside these Summonses may be different. In this respect: 1. First, issues of law and the correct application of legislation are matters for submission based upon the facts supported by the evidence with such issues of law ultimately being decided by the Tribunal. The opinion of witnesses as to legal principle (i.e. testing whether a witness applies a proper interpretation of privacy law principles) is of little to no assistance to this Tribunal. As are questions going to issues outside of the administrative review of the decision of the Respondent-agency such as general wrongdoing or professional negligence. As stated in my decision FFP v Cumberland City Council [2022] NSWCATAD 136 at [24] in the context of a recusal application: [V]entilating matters and making accusations [in the context of an administrative review], either by way of cross-examination or otherwise, that fall outside of that ambit was unhelpful to the Tribunal: See for example KT v Sydney Local Health Network [2011] NSWADT 171 at [15]. Conduct outside of the conduct complained of, such as allegations of general wrongdoing, professional negligence, or professional misconduct as against the witness or allegations of wider systemic issues involving the Respondent, were not before the Tribunal. Questions posed to the witness attempting to establish as such were objectionable because at best they were lacking in probative value or, at worst were unfair to the witness. 1. Secondly, the purpose of the proceedings is an administrative review of the decision of the Respondent-agency. The purpose of the proceedings is not to provide an opportunity to the Applicant, by way of cross-examination, to rewrite placement evaluation forms that contain an opinion of another that is inconsistent with the Applicant's own opinion about herself. An opinion may differ from time to time and from person to person. A difference of opinion need not mean that at least one of those opinions is "inaccurate".
8. However, to the extent that questions are asked of the witnesses that are objectionable because they have no probative value, oppressive or an abuse of process; or for some other reason the Respondent may object and the Senior Tribunal Member hearing the matter may decide the objection as per the usual course. The potential that such questions may be asked does not create a basis to set aside Summonses to call witnesses whose evidence otherwise has a legitimate forensic purpose.

Orders 1. The application to set aside the Summons issued to Ms Ashleigh Thorn is refused. 2. The application to set aside the Summons issued to Mr Shaun Kelly is refused. 3. The proceedings are set down for directions on 23 July 2024 at 9:30am by AVL in the AEOD Directions List with the intention of setting a hearing date.

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: 18 July 2024