FZK v Department of Customer Service

Introduction

1. The appellant seeks to appeal against the decision of the Tribunal (the Tribunal at first instance, or the Tribunal) in FZK v Department of Customer Service [2024] NSWCATAD 89 (the Original Decision).
2. The appellant's name was anonymised in the proceedings in the Tribunal. There was no issue between the parties concerning the continuation of the non-disclosure order for the purposes of this appeal. Accordingly, the Appeal Panel will make an order to that effect.
3. The Original Decision concerned an administrative review application by the appellant made under s 55(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (Privacy Act). The application alleged that the Department of Customer Service (the respondent), which had formerly employed the appellant, contravened the Information Privacy Principles (IPPs) set out in Part 2, Division 1 of the Privacy Act in relation to records it held about the appellant's employment.
4. Before embarking on the determination of the appeal, the Appeal Panel considered a recusal application made by the appellant. For the reasons set out below under the heading "Correction and recusal applications", we have declined to recuse ourselves.
5. The Appeal Panel has decided that the appellant's appeal should be dismissed. These are our reasons for dismissing the appeal.

Relevant legislative provisions

1. The appellant contends that there has been a contravention of the IPPs set out in ss 14, 15, 16 and 18 of the Privacy Act.
2. Section 14 of the Privacy Act sets out what is referred to as IPP 7. It provides as follows: 14 Access to personal information held by agencies A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.
3. Section 15 of the Privacy Act sets out what is referred to as IPP 8. It provides as follows: 15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information - (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. (4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998. (5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with. (6) In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister's personal staff.
4. Section 16 of the Privacy Act sets out what is referred to as IPP 9. It provides as follows: 16 Agency must check accuracy of personal information before use A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.
5. Section 18 of the Privacy Act sets out what is referred to as IPP 11. It provides as follows: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
6. A public sector agency includes a Public Service agency: Privacy Act, s 3(1) (definition of "public sector agency"). The Department of Customer Service is a Public Service agency: Government Sector Employment Act 2013 (NSW) (GSE Act), s 3(1) (definition of "Public Service agency", read with the definition of "Department") and Sch 1, Pt 1. The respondent is therefore a public sector agency for the purposes of the Privacy Act.
7. Personal information is information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion: Privacy Act, s 4(1). Information about an individual's employment is personal information unless it falls within the exclusion provided by s 4(3)(j). Section 4(3)(j) excludes information or an opinion about an individual's suitability for appointment or employment as a public sector official from the definition of personal information. There is no dispute that the information about the appellant at issue here is personal information.
8. Section 53 of the Privacy Act provides that a person who is aggrieved by the conduct of a public sector agency is entitled to apply to the agency for an internal review of its conduct.
9. Section 55(1) of the Privacy Act provides that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of conduct of a public sector agency that was the subject of an internal review application made by the person under s 53 if the person is not satisfied with the findings of the internal review or the action taken by the agency in relation to the internal review application.
10. Conduct for the purposes of both ss 53 and 55 includes the contravention, or alleged contravention, by a public sector agency of the IPPs that apply to the agency: Privacy Act, s 52(1)(a) and (2).
11. Section 9(2) of the ADR Act provides that if enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied. Consequently, the subject matter of an administrative review application to the Tribunal under s 55 of the Privacy Act is the conduct that was the subject of the internal review application: CWS v NSW Department of Education [2017] NSWCATAD 287 (CWS) at [14].
12. Ultimately, the dispute in this appeal centres on the ambit of the internal review application and the corresponding scope of the Tribunal's jurisdiction.

Background to appeal

1. The appellant was employed by the respondent from 15 February 2021 until 2 November 2022.
2. On 18 May 2022, the appellant was advised that she was being placed immediately on what was described as special leave while an inquiry was conducted into potential misconduct. The appellant contended both in the administrative review application and this appeal that the respondent's records are erroneous because she could not be placed on special leave under the industrial award governing her employment unless she applied for special leave. The appellant contends she never applied for special leave.
3. The appellant's employment ended after she was notified by a letter dated 31 October 2022 that her employment was to be terminated under s 69(4)(a) of the GSE Act on the grounds of misconduct.
4. On 31 May 2023, the appellant sent the respondent an email requesting information about her former employment. The request (the Employment Information Request) was in the following terms: "I need information from my personnel file (P file) to check my entitlements. Could you please provide me with the following records from Feb 2021 to Nov 2022: 1. the business legal name and ABN 2. my start date 3. my termination date and the reason for my termination 4. my employment status (full-time, part-time, etc) 5. records of the hours I worked 6. pay slips 7. any deductions from my pay 8. my leave records showing leave accrued and taken 9. manager evaluations, performance reviews, and other assessments 10. recognition of achievements if applicable 11. complaints filed against me if applicable 12. documentation of disciplinary action if applicable 13. termination documentation, including exit records 14. any other documents related to my employment."
5. From at least 13 June 2023, the respondent treated the Employment Information Request as a request under s 14 of the Privacy Act (IPP 7), rather than as a request under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), for access to her employment records: the Original Decision at [27].
6. Initially, the appellant did not receive all the information she sought: the Original Decision at [28]-[41]. As a result, on 18 June 2023 the appellant applied to the respondent for an internal review under s 53 of the Privacy Act of the respondent's conduct in relation to giving her access to her employment records. The original internal review application: 1. alleged that there had been a refusal by the respondent "to let [the appellant] access or find out about [her] own personal or health information"; and 2. stated that the appellant would like the agency to "set aside the decision and provide access to all the records on my personnel file as per s 14 of the [Privacy Act]".
7. The appellant submitted an amended internal review application on 10 July 2023 in which the appellant alleged that there had been a "refusal to let me access or find out about my own personal or health information" and stated that she would like the agency to "[a]rrange an inspection of my P file and refer the conduct to relevant business unit for investigation and action".
8. The internal review decision was made on 22 August 2023 and noted that it was confined to events occurring before 6 July 2023. The internal reviewer: 1. found: 1. the appellant's request for access to personal information had been "partially fulfilled"; and 2. the response to the request had been made "without excessive delay"; and 3. there were continuing discussions between the parties "on other information requested and the means of access"; and 1. recommended that "further searches" be conducted to satisfy the request after the scope of the access request had been determined by agreement between the appellant and respondent.
9. On 14 September 2023, the appellant lodged an application with the Tribunal under s 55 of the Privacy Act for an administrative review of the respondent's conduct.
10. Following lodgement of the administrative review application, correspondence continued between the parties concerning access to the appellant's employment records. However, on 19 October 2023 the appellant emailed the respondent's lawyers in the following terms (the s 15 correction request): "Special leaves can only be applied by the employee (s3.41 CECEA, attached)', notwithstanding, none of the officers in the email chain has delegation to approve the special leave (s2.5.3 HR Delegation, attached). Hence the 'de-identification'? But I have the original emails. I request DCS to delete the special leaves per s15 of PPIP Act, recalculate the leave entitlement, email me the updated Leave Records and payslips, and make adjustment payment if applicable."
11. The reference to "s 3.41 CECEA" is a reference to cl 3.40 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 made by the NSW Industrial Relations Commission (the "Crown Employees Award").
12. The s 15 correction request was discussed at a case conference for the administrative review application held later in 2023. A transcript of the hearing (the "case conference transcript"), which is attached to the appellant's written appeal submissions filed 13 June 2024, includes the following exchanges (at pp 7−9 and 11) between the Tribunal (Perrignon SM), the respondent's legal representative (Mr Goldsmith) and the appellant (referred to as Applicant): "APPLICANT: I have received the department's records, but there are major errors in the records, so I requested the department to correct it before releasing it. Because whatever information be released, must be, at the point of time, they are accurate and correct. But I received response this morning from Mr Goldsmith said because the request for correction was not in my application, therefore, I need to go, start a complete process again, go through the DCS internal review, ... But to be fair, I would never know to include it in the application until I see the records, and also ... PERRIGNON SM: That's about with anyone, unless you become aware of it, you can't do any better. APPLICANT: Yes, the thing is, as said, I did highlight, as I said, the department can't say: 'I have fulfilled my obligation' when there is an error. They can't rely on that document and say we have done our obligation, because it is required by s16 that the department can't use the information if they are incorrect. They are using it to fulfil their obligation which is not right. PERRIGNON SM: What is the error, please. APPLICANT: There was 19 days of leave, which I did not apply. PERRIGNON SM: Which you did not what? APPLICANT: I did not apply, you know when you go on leave, right? You apply, you get approved. PERRIGNON SM: You took annual leave, are you? APPLICANT: It is named as 'special leave', I didn't apply for those leaves, there are 19 days, and it is on the records, so I said you need to remove it. PERRIGNON SM: Alright, okay, Mr Goldsmith as your client consider it, whether it is correct or not? GOLDSMITH: The short answer is yes, Senior Member, and its view, it is correct, but if I might just set out the proposal for the way forward because I don't understand to be anything in particular between the parties in substance. As I understand it is now coming grounded that the department has provided [the Applicant] all the information that she requested, it holds, in the form which it holds it. I understand [the Applicant] now takes the issue with the contents of that information. PERRIGNON SM: That's right. GOLDSMITH: My client's current understanding is the information is accurate, but it's content to treat [the Applicant's] request for that information to be changed as a fresh application under s15, under which it's required to ensure, take reasonable steps to ensure the information it has is accurate. That's a separate procedure contemplated at the Act, that it would run separately to, and probably after, as [the Applicant] says, obtained the information. Because she is right, she couldn't have known if there is any error in that information until she has it. So, in circumstance where the information that was the subject of this application, which concerns the request for information, all that information has been provided, the department's position is, there is no subject matter left for this tribunal to determine, then these proceedings ought to be withdrawn or dismissed. As the department will treat [the Applicant's] request as new s15 request, and we will respond accordingly in due course. And if [the Applicant] is dissatisfied with the outcome of, the way the department deals with her s15 application, then it maybe that she makes these tribunal procedures again. But at this stage, it is simply not appropriate for the tribunal to hear anything further on the matter that is not within its jurisdiction because it wasn't the subject matter to the application. The matter that is the subject to the application is now resolved as far as I understand, there is nothing, [the Applicant] agrees, in the sense that the information that she requested, that the department holds, has been provided. … APPLICANT: Oh yes, oh look, I just want to add a bit more why, I think you have already said so, because, as I said, it's a long journey, I felt like if the department is willing to, you know, treat the, like will fairly deal with the application, if I go, from the beginning, why couldn't they do it now? I mean, really, and like I said, it's a long journey, it was not pleasant. and it's been like rejection or delay, you know, all through out, and another request ask me to lodge a fresh application for something they could have ... GOLDSMITH: If I might, if I might just clarify one, [the Applicant], just to assist to ensure we are on the same page here, I am saying that you wouldn't be required to take any further action, in order to, in order for the department to consider your amendment request, so in effect, I don't see there is any meaningful difference between, the proceedings being discontinued today and my client writing to you with the outcome of its consideration of s15 amendment. amendment point, and as us discussed within the context of these tribunal proceedings, which, in the department's view and announce the matter, the issue has been resolve. There is no further dispute between the parties, as far as producing the documents as they currently, in their current form as concerned. So, I don't, I only interrupted you, to just, to ensure that you understand that my client isn't requiring you to take any further action, the materials, all the correspondence you sent to us on Friday and this morning will be treated under our proposal and I understand under Senior Member's proposal, note in the order dismissing these proceedings, your correspondence will be treated as application for the amendment and we will reply accordingly, having considered, once we have the opportunity to consider your request. APPLICANT: Mr Goldsmith, if that's the case, the only difference between you and me, oh, between the two parties is whether this process is within the proceedings or outside the proceedings. I think mediation is the best option."

Decision of the Tribunal at first instance

1. The Tribunal identified the issues raised in the administrative review application in the Original Decision at [7], as follows: "Having considered the applicant's written and oral submissions, and questioned the applicant on the scope of her application during the hearing, my understanding of the application is that the applicant alleges the respondent breached s 14 of the PPIP Act based on the following three related propositions: (1) Issue 1: Section 16 of the PPIP Act requires the respondent to 'check the accuracy' of personal information the subject of a request under s 14 'before use' - that is, before providing that information to the applicant pursuant to its obligation under s 14. (2) Issue 2: Section 16 of the PPIP Act requires the respondent to 'correct any error … to ensure the leave records are accurate' before providing the requested information to the applicant pursuant to its obligation under s 14. (3) Issue 3: The respondent's records, insofar as they record the applicant having been on special leave, are erroneous because, pursuant to the terms of the relevant award, an employee cannot be placed on special leave unless the employee first applies to be on special leave, and the applicant did not at any stage apply to be on special leave."
2. The appellant was granted leave to amend her application to include an alternative allegation of a breach of s 15 of the Privacy Act on the ground that the respondent refused her request to correct its records: Original Decision at [8]. We refer to this as Issue 4.
3. The appellant does not dispute that these were the issues raised by her application. Indeed, as we note below, they form the basis for her appeal grounds.
4. The Tribunal identified that the scope of its review jurisdiction was "determined by reference to the conduct that was the subject of the application for internal review": Original Decision at [82]. The Tribunal then identified what "conduct" was the subject of the internal review application: Original Decision at [82]. Significantly, the Tribunal found that the internal review application could not be construed to include conduct referrable to compliance with ss 15 or 16 of the Privacy Act, "whether as a precondition to compliance with s 14 or otherwise": Original Decision at [85].
5. Having found that the conduct concerning correction of the records was not the subject of the internal review application, the Tribunal found that it did not have jurisdiction to consider the four issues because the conduct alleged was not the subject of the appellant's internal review application: the Original Decision at [85]. The Tribunal found that the complaint raised in Issue 4 about the respondent's failure to correct the alleged erroneous information was first made after the internal review decision was made and, indeed, after the commencement of the administrative review proceedings: the Original Decision at [87]. The Tribunal concluded at [90]-[92]: "[90] For the above reasons the following conduct complained of by the applicant is not reviewable in these proceedings: (1) conduct that the applicant says breaches s 14 of the PPIP Act because it did not 'check the accuracy' of personal information or 'correct any error in the personal information' before providing it to her; (2) conduct that the applicant says breaches s 15 of the PPIP Act; and (3) conduct that the applicant says breaches s 16 of the PPIP Act (whether as a prerequisite to compliance with s 14 or otherwise). [91] It is therefore not necessary for me to consider the other jurisdictional issue raised by the respondent (that is, whether the Tribunal has no jurisdiction to consider questions about the lawfulness of the respondent's conduct in placing the applicant on special leave). [92] It is also not necessary to address the respondent's further submissions in relation to the above matters, including as to whether compliance with s 16 is a 'pre-requirement for compliance with s 14', whether the respondent's provision of the applicant's personal information to her constitutes a 'use' of that information, and whether there has been no breach of s 15 because the information held is accurate."
6. Despite deciding that the Tribunal did not have jurisdiction to deal with these issues, the Tribunal considered whether the respondent had breached s 14 of the Privacy Act (IPP 7) because it did not provide the information requested without excessive delay. The Tribunal found that there had not been any breach: the Original Decision at [93]-[107].
7. Consequently, the Tribunal ordered that, pursuant to s 55(2) of the Privacy Act, no further action be taken with respect to the appellant's administrative review application. It also dismissed the application.

Interlocutory application concerning the respondent's submissions

1. Before turning to the appeal grounds, it is necessary to deal with an interlocutory application made by the appellant concerning the respondent's submissions in this appeal.
2. The current Crown Solicitor, Karen Smith, is the solicitor on the record for the respondent. Mr Allchurch, who appeared in the hearing of this appeal, is an employed solicitor in the Crown Solicitor's Office. The appellant does not dispute this.
3. The Crown Solicitor was also the solicitor on the record for the respondent in the proceedings in the Tribunal. The Crown Solicitor may, in her official capacity, act as solicitor for a body established by an Act or other law of New South Wales: Legal Profession Uniform Law Application Act 2014 (NSW), s 44(1)(d). The respondent is such a body because it is a Government Department established by statute: GSE Act, s 22 and Sch 1, Pt 1.
4. The appellant has applied for interlocutory orders for the Appeal Panel to reject the respondent's submissions and for the respondent to refile submissions signed by the Crown Solicitor herself. The appellant submits it is not clear from the signature block for the respondent's submissions as to who signed the submissions. The written application dated 18 July 2024, states: "8. On 12 July 2024, Mr Allchurch filed and served a document named 'Submissions of the Respondent'. 9. The Appellant found the document is not signed by Karen Smith. 10. It looks like Mr Allchurch's signature but he altered the official signature block by deleting the 'name' section, so as, the signatory can't be identified."
5. The appellant then makes serious allegations concerning the submissions, including that they are a "false document" and the alteration of the submissions constitutes a forgery under the Crimes Act 1900 (NSW). The appellant points to no evidence to support these serious allegations other than her own reading of the document. In oral submissions, the appellant also submitted that it was important to know the lawyer with carriage of the appeal for the respondent, if questions arise in the future concerning the conduct of the appeal.
6. It is obvious from the signature block that Mr Allchurch signed the respondent's submissions in this appeal for the Crown Solicitor, in his capacity as an employed solicitor of the Crown Solicitor's Office. The signature block indicates the document is filed by "Karen Smith, Crown Solicitor, Solicitor for the respondent". The signature is prefaced by the words "Signed in my capacity as a solicitor employed in the office of the said Karen Smith". After the signature, Mr Allchurch's email is listed and "Tom Allchurch" is also listed along with a reference number next to "Ref". Although Mr Allchurch's name is not printed in full immediately under the signature, it is clear that he signed the document on behalf of the Crown Solicitor.
7. The Appeal Panel rejects the appellant's submission that it is unclear as to the identity of the lawyer who has responsibility for the conduct of the respondent's case in this appeal. The Crown Solicitor heads the Crown Solicitor's Office in which Mr Allchurch is employed as a solicitor: GSE Act, Sch 1, Pt 2. It has been accepted practice over many years for the Crown Solicitor to represent clients in legal proceedings with the assistance of employed solicitors in the Crown Solicitor's Office even though the Crown Solicitor is the solicitor on the record for the proceedings. As the solicitor on the record for the respondent in this appeal, the Crown Solicitor is ultimately responsible for the conduct of the respondent's case in the appeal even though day-to-day work may be delegated to employed solicitors in her office: Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278 at [96] (Barrett J).
8. The respondent's submissions are neither false nor fraudulent. The appellant's application for interlocutory orders concerning those submissions is dismissed.

Appeal grounds

1. The appellant's Notice of Appeal states the following three appeal grounds: "1. Whether s16 (of PPIP Act) is a pre-requirement of s14 2. Whether correction is part of s14's obligation 3. Whether the special leave records are erroneous, when there is no evidence to the contrary, an error of law The Tribunal failed to answer all three questions, therefore, the appeal is on three questions of law."
2. These grounds substantially mirror the first three issues identified in the Original Decision at [7].
3. A fourth ground was raised in the appellant's written submissions filed on 13 June 2024 at [14]-[17] concerning "[w]hether the Tribunal has no jurisdiction because the correction request was not in the Appellant's s14 internal review application".
4. Those written submissions at [20]-[25] seek the following orders from the Appeal Panel: 1. The appeal is allowed. 2. Set aside the Original Decision. 3. A determination that s16 is a pre-requirement of s14 of Privacy Act. 4. A determination that correction of erroneous records is the respondent's obligation under s 14 of Privacy Act. 5. A determination that the special leave records on appellant's personal file are erroneous. 6. An order for the respondent to correct the leave records as required by s 14, alternatively, under s 15.

Jurisdiction generally

1. Jurisdiction is the authority of a court or tribunal to decide a case and is to be distinguished from the powers that the court or tribunal may use in exercising its jurisdiction to decide the case: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 at [6] (Gleeson CJ and McHugh J). It is the "first duty" of a court or tribunal to be satisfied it has jurisdiction: Federated Engine Drivers' and Firemen's Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398 at p 415; [1911] HCA 31 (Griffith CJ). The Tribunal, whether constituted as an Appeal Panel or otherwise, must itself be satisfied it has jurisdiction. As Lee J observed in Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [9], "jurisdiction cannot be conferred by agreement and the views of the parties are not determinative of a jurisdictional question": see also Uddin v Truong [2022] NSWCATAP 323 at [54]; Meyers v Casey (1913) 17 CLR 90 at p 117; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at p 163. The jurisdiction of the Tribunal to consider an application in relation to an alleged breach of the Privacy Act, when the information was submitted not to be "personal information" was recently considered by the Appeal Panel in Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176.
2. The jurisdiction of the Tribunal is carefully circumscribed by the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). It is limited to such jurisdiction as may be conferred or imposed on it by legislation: NCAT Act, s 28. The duty of a court or tribunal to comply with the limits of its own jurisdiction is judicially enforceable: Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [21] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).
3. This appeal raises questions concerning the jurisdiction of both the Tribunal and the Appeal Panel. The appeal grounds concern the Tribunal's jurisdiction at first instance. We turn first to the jurisdiction of the Appeal Panel.

Jurisdiction of Appeal Panel

1. Section 80 of the NCAT Act provides for internal appeals as follows: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note - Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
2. An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction: NCAT Act, s 32(4). The internal appeal jurisdiction of the Tribunal includes jurisdiction over administratively reviewable decisions: NCAT Act, s 32(1)(a).
3. An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction: NCAT Act, s 30(5). Administrative review jurisdiction is conferred on the Tribunal if legislation enables a person to apply to the Tribunal for administrative review under the ADR Act of a decision of a specified administrator: NCAT Act, s 30 (1); ADR Act, s 9(1).
4. A decision for this purpose extends beyond the ordinary meaning of the term (for example, a decision to refuse to grant a licence) to include conduct involving doing or refusing to do any other act or thing: ADR Act, s 6(1)(g); see also NCAT Act, s 5(1)(g). It also includes a refusal by an administrator to make a decision under enabling legislation because the administrator considers that the decision concerned cannot lawfully be made under the legislation: ADR Act, s 6(4); see also NCAT Act, s 5(2)(c).
5. As noted above, the decision of the Tribunal was made in respect of an administrative review application made under s 55 of the Privacy Act. It follows that the decision is an internally appealable decision for the purposes of s 80 of the NCAT Act.
6. However, s 80 of the NCAT Act does not give a party to proceedings for an administratively reviewable decision a right to appeal the decision on any ground. An appeal is not simply an opportunity for a losing party to rerun their case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Except where the decision is an interlocutory decision, s 80(2) provides that a party's right to appeal is limited to questions of law. Leave is required for an appeal on any other grounds. In the case of an interlocutory decision, leave is required even if the ground involves a question of law.
7. Recently, the Appeal Panel in Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [24]−[26] stated the relevant principles concerning questions of law in the following terms: "[24] An appeal may be brought, under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW), on a question of law, or with leave of the Appeal Panel, on any other grounds. The question of law must be a pure question of law and must be articulated with precision, as it is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]. It should be possible to discern the question of law from the notice of appeal: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]. These authorities were recently applied by the Appeal Panel in Gennacker Pty Ltd t/as Homestead Holiday Park v Hohnberg [2024] NSWCATAP 96 at [11]. The Court of Appeal of NSW in Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [96]-[97] recently reiterated the importance of identifying the question of law. [25] The Criminal Court of Appeal in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [48] and [109], identified that the pure question of law must be discernible on the face of the ground and not depend upon disputed facts: '[48] As was noted in Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as "pure questions of law". This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125]. … [109] Those questions of law should be, in our opinion, what are sometimes described as "pure questions of law". They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question.' [26] The relevant principles were recently stated by Chen J in Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [87]-[90]. Of particular relevance to this case is what his Honour said at [89]-[90]: '[89] As to this last matter, what amounts to a question of law alone is as stated by Gibbs CJ in Williams v R (1986) 161 CLR 278, 287: … there is "a question of law alone" if the question of law can be stated and considered separately from the facts with which it may be connected in a given case. [90] The question of law alone is not, however, an abstract or hypothetical question. Rather, the appeal is against the conviction "on a ground that involves a question of law alone". That requires that the answer to the question of law, and the consequential questions that follow from its resolution, be material to the outcome 'in the sense that it could have affected the outcome': Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41]; Styles v Rowley [2023] NSWSC 1053 at [50]-[51]; R v GAT [2024] NSWCCA 32 at [90]. In that way, the appeal against the conviction "involves" the question of law alone.'"
8. The need for a question of law to be a "pure" question of law can occasion difficulty when applying s 80 of the NCAT Act.
9. Leave for a ground of appeal that is not "on" a "question of law" is granted only in limited circumstances. To obtain leave, the appellant must identify some point of principle or question of public importance, or an unorthodox approach to the fact finding, a finding that was unreasonably arrived at, or a clear injustice; and there must be utility in granting leave: FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 at [33]; Ros v Commissioner of Police [2020] NSWCATAP 70 at [20]-[23], Collins v Urban [2014] NSWCATAP 17 at [82]-[84]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [44]-[45]; see also Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 at [34] (Mason P).
10. With these principles in mind, we will consider each of the four appeal grounds in turn; noting that leave to appeal was not sought.

What are appeal grounds 1 and 2?

1. Appeal grounds 1 and 2 each raise the issue of the relationship between ss 14 and 16 of the Privacy Act. Accordingly, it is appropriate to deal with the grounds together.
2. Section 16 requires a public sector agency not to use personal information it holds without taking reasonable steps to ensure the information is relevant, accurate, up to date, complete and not misleading.
3. Appeal ground 1 is that s 16 of the Privacy Act operates as a "pre-requirement" to providing access to personal information under s 14. This is said to be because s 16 requires a public sector agency to "check the accuracy" of personal information before providing access to it under s 14. The appellant submits that the respondent should therefore have checked the accuracy of its employment records about her before providing her with access to them.
4. Appeal ground 2 is that s 16 of the Privacy Act also requires a public sector agency to "correct" erroneous personal information before providing access to it under s 14. The appellant submits that the respondent should therefore have corrected its erroneous employment records about her before providing her with access to them.

Whether appeal grounds 1 and 2 raise questions of law

1. On its face, appeal ground 1 raises a question of law. The question is whether the Tribunal misconstrued the Privacy Act by, in effect, failing to recognise that s 16 is a prerequisite to s 14. A question of statutory construction raises a question of law: Re R [2000] NSWSC 886 at [25] (Young J); Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 at [22], citing Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [71]-[74] and Craig v South Australia (1995) 184 CLR 163 at pp 177-178.
2. At first blush, appeal ground 2 also appears to raise a question of law; it again engages with the question of whether s 16 is a prerequisite to s 14 of the Privacy Act. However, it goes further and delves into whether a correction ought to have been made. Section 16 requires the agency to take "reasonable" steps. What is reasonable in any given situation requires an analysis of facts and circumstances in the context of the statutory test.
3. Appeal ground 2 does not raise a pure question of law and is dismissed.

Submissions relevant to appeal ground 1

1. The appellant submits that s 16 of the Privacy Act required the respondent to check the accuracy of her employment records before using them. She relies on Director General, Department of Education and Training v MT [2005] NSWADTAP 77 (MT) at [37]−[39] as authority for the proposition that s 16 is a pre-requirement of all uses of personal information, including disclosure. The appellant submits s 18 of the Privacy Act recognises that "disclosure" includes disclosure to the individual to whom the information relates and disclosure is a form of use.
2. The appellant submits that because s 16 of the Privacy Act required the respondent not to use her employment records without taking reasonable steps to ensure they were accurate, it followed that the respondent could not use her leave records when complying with its obligation to provide access if they were erroneous. Consequently, the respondent had an obligation to ensure the appellant's leave records were accurate before disclosing them to her. She submits that the respondent had an obligation to correct her records under s 14 without the need for her to make a separate application for a correction under s 15.
3. The appellant relies principally on the following passages from the decision of the Appeal Panel of the Administrative Decisions Tribunal in MT at [37]−[39]: "[37] The importance of s 16 in the scheme of the Act should not be underestimated. It is, arguably, the most important of the IPPs. Its status is reflected in the fact that it has not been disapplied in a specific way by any other provision of the Act. This stands in contrast to the position in relation to several other IPPs. In Division 3 of Part 2 (ss 22 to 28) many of the IPPs are disapplied in specific circumstances which amount, in effect, to further exceptions to the IPP mentioned. Not once in the provisions from ss 22 to 28 is s 16 specifically disapplied. It is only disapplied in those instances where there is a global exception disapplying all the IPPs, as for example in s 27, where the operations of several law enforcement agencies are immunised from all the IPPs except in relation to their administrative and educative functions. [38] It would be an odd outcome if the data quality standard reflected in s 16 of the NSW Act (in similar terms to the original formulation found in the ALRC model bill) were not to apply to the gravest form of 'use' - disclosure of the information to another agency. [39] We see the relationship between ss 16, 17 and 18 as follows. Section 16 applies a data quality standard to all uses of personal information by an agency including conduct involving disclosure of personal information by the agency. Then s 17 and s 18 operate in separate spheres. Section 17 deals with internal use of the personal information by the agency, while s 18 deals with external disclosure of the personal information by the agency."
4. In essence, the appellant's contention is this: an agency giving an individual access under s 14 to personal information it holds about the individual constitutes a "use" of that information to which s 16 applies.
5. The appellant also submits that s 18(1), which prevents the disclosure of personal information to persons or bodies except in limited circumstances, indicates that, generally, disclosure in the Privacy Act includes disclosure of personal information to the individual to whom the information relates because s 18 expressly excludes from its operation disclosure to a person "other than the individual to whom the information relates". Providing access under s 14 is, it is submitted, a form of disclosure to the individual concerned.
6. The respondent submits the following: 1. It is contrary to authority to hold that providing information in response to a request by the individual to whom it relates is a "use" by the agency for the purposes of the Privacy Act. 2. Even if complying with a request under s 14 is a "use" for the purposes of the Privacy Act, s 16 only requires a public sector agency to take "such steps as are reasonable in the circumstances" to ensure its accuracy before using it, "having regard to the purpose for which the information is proposed to be used." 3. If the "use" is the provision of the information to the individual to whom it relates, it is reasonable for a public sector agency to take no steps before providing it to the individual because any inaccuracy in the information would more reasonably be addressed by providing the information to the individual under s 14 and waiting for a request for appropriate amendments.
7. The respondent submits that s 16 does not apply to the provision of access to information to the individual to whom the information relates. The respondent submits that MT concerned the relationship between ss 16, 17 and 18 of the Privacy Act and said nothing about the relationship between s 14, 16 or 15.
8. The respondent relies on both EJE v Commissioner for Fair Trading [2022] NSWCATAD 33 (EJE) at [40] and Department of Education and Communities v VK (GD) [2011] NSWADTAP 61 (VK) at [20] in support of the proposition that providing access under s 14 is not a use of information for the purposes of s 16. In VK, the Appeal Panel of the Administrative Decisions Tribunal held at [20] that "'[u]se' is understood to refer to action taken by the agency to use information for its own purposes". It is submitted that the respondent giving the appellant access to personal information she requested was not a use of the information by the respondent for its own purposes.

Consideration of appeal ground 1

1. This ground concerns the Tribunal's jurisdiction at first instance.
2. Contrary to the Original Decision, the Tribunal had jurisdiction to consider whether s 16 of the Privacy Act operates as a precondition to providing access under s 14, even if it was not raised as an issue in the appellant's internal review application. This is for the reason that if s 16 operates as submitted by the appellant, as a prerequisite to s 14, then it imposes a statutory obligation on an agency in fulfilling their obligation under s 14, regardless of whether it is specifically raised in an internal review application concerning s 14. It is merely part of the s 14 process.
3. We now turn to the issue of whether s 16 operates as submitted by the appellant.
4. The passages from MT relied on by the appellant are, in terms, not directed to the relationship between ss 14 and 16. Rather, they are directed to the relationship between ss 16, 17 and 18 and to disclosure by one agency to another agency. Nevertheless, the appellant relies on them to contend that the requirements of s 16 operate to condition the way in which access to personal information about an individual is to be given under s 14 to the individual.
5. The relationship between ss 14 and 16 cannot be properly understood without first considering the relationship between ss 14 and 15. Section 15, as we have seen, enables an individual to request a correction of the individual's personal information. The relationship between ss 14 and 15 was correctly stated by Montgomery JM in Ormonde v NSW National Parks & Wildlife Service (No 2) [2004] NSWADT 253 at [84]: "[S]ection 14 of the [Privacy] Act should be seen as protecting the overall interest of individuals in the protection of their privacy by giving them the opportunity to find out what information is held about them, assisting them to take action under section 15 to correct this information if it is inaccurate, irrelevant, out-of-date, incomplete, or misleading, and seeking redress under the other IPPs if the presence or the context of the information indicates a likely breach. Section 14 is not intended as a vehicle for functions such as legal discovery or opening up to scrutiny the operations of Government which do not specifically affect the individual's privacy or liberties."
6. This paragraph was cited with approval in EEH v Insurance & Care NSW [2022] NSWCATAD 82 at [95].
7. Affording an individual the opportunity to see their personal information enables the individual to assess whether it is accurate. Consulting the individual concerned may constitute a reasonable step: ALZ v SafeWork NSW [2017] NSWCATAP 51 at [110]. Indeed, it may be an important preliminary step in ensuring the information is accurate. In some cases, the input of the individual may be the only way for a public sector agency to test the accuracy of the personal information it holds about the individual. Further, there is danger in an agency, unilaterally, altering the personal information it holds about an individual. It may risk the rewriting of history: Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 (Crewdson) at [35].
8. There has been some debate and conflicting case law concerning whether a disclosure of personal information by a public sector agency amounts to a use by the agency for the purposes of s 16: Salinger Privacy, PPIPA in Practice (Edition 18.2, August 2024) at pp 162-164. The Appeal Panel in AIN v Medical Council of New South Wales [2017] NSWCATAP 23 at [81] concluded that disclosure without separate "internal use" did not amount to a relevant use.
9. In at least two instances, the Tribunal has found that providing access to information requested under the GIPA Act does not amount to a use: EJE and SF v Shoalhaven City Council [2013] NSWADT 94 at [180]-[182]. In EJE, it was said at [40]: "[the Applicant] submitted that the provision of documents to her by the Department of Customer Service constituted "use" by the Respondent under the PPIP Act. I disagree that the Department of Customer Services providing access to information to the Applicant pursuant to a request under the GIPA Act would generally constitute "use" by the Respondent of the Applicant's personal information within the meaning of the PPIP Act. "Use" under the PPIP Act has generally been considered in the context of an agency using information for its own purposes: Department of Education and Communities v VK [2011] NSWADTAP 61 at [20]."
10. As already noted by the respondent, in Department of Education and Communities v VK [2011] NSWADTAP 61, the Administrative Decisions Tribunal said at [20] that "'[u]se' is understood to refer to action taken by the agency to use information for its own purposes."
11. The Appeal Panel is satisfied that the provision of access to an individual's personal information under s 14 of the Privacy Act, alone, does not constitute use for the purpose of s 16 of the Privacy Act. Section 16 is not a prerequisite to s 14 of the Privacy Act.
12. We are conscious however, that the respondent has indeed used the records. They have been used to calculate the appellant's leave entitlements. However, on this appeal, we are only concerned with whether, in the provision of access to an individual's personal information, there is a "use" of information for the purposes of s 16 of the Privacy Act. We are not, here, concerned with some separate and distinct use of the records.
13. Appeal ground 1 is dismissed.

Appeal ground 3

1. Appeal ground 3 is that the records of the respondent about the appellant's special leave are erroneous because there is no evidence to the contrary. The appellant submits that under the Crown Employees Award she could not have been placed on special leave, unless she applied for the leave. She submits it is common ground that she did not apply for special leave.
2. A question of law arises when the contention is that there was no evidence for a particular factual finding: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at pp 355-56; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at p 138.
3. However, the Tribunal did not make a finding about whether the records were erroneous; it decided it did not have jurisdiction to do so. There is therefore no operative finding that could raise a question of law based on a no evidence ground.
4. Looking at this from another perspective: to say that there was no evidence to not make a finding that the records were erroneous, does not raise a question of law. This is explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at p 156D: To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof.
5. Whilst we are not here concerned with an onus, the extract is nonetheless apposite.
6. Appeal ground 3 does not arise on the appeal and it does not raise a question of law.
7. Further, a consideration of the appeal ground may require the Appeal Panel to venture into territory over which it has no jurisdiction. It would require the Appeal Panel to decide whether, as a matter of employment law, the respondent wrongly placed the appellant on special leave. The Tribunal's central role in these proceedings is to decide whether the respondent contravened the Privacy Act. There is no dispute that the respondent purported to place the appellant on special leave, whether rightly or wrongly. To require the respondent to alter its records to indicate it had not placed the appellant on special leave when it in fact had, would involve rewriting history: the appellant is seeking that the Tribunal determine the validity of that conduct. This raises the issue of whether this raises an impermissible collateral attack. In Crewdson at [24] the Court of Appeal held in similar circumstances that such attack is outside the Tribunal's remit. The whole question of collateral attack is nuanced and vexed. It was the subject of lengthy analysis by the Tribunal in Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89 at [289]-[321]. As it is not necessary to decide because the ground does not arise and it does not raise a question of law, the Appeal Panel will refrain from saying anything further.
8. Accordingly, appeal ground 3 is dismissed.

What is appeal ground 4?

1. Appeal ground 4 is whether the Tribunal at first instance had no jurisdiction because the correction request was not in the appellant's s 14 internal review application. The appellant submits that this ground arises only if she fails on appeal grounds 1 and 2.
2. In the alternative (the alternative ground), the appellant submits that the Tribunal at first instance had jurisdiction under s 15 of the Privacy Act because: 1. the appellant lodged a s 15 internal review application; and 2. the respondent refused that application; and 3. the Tribunal at first instance allowed the external review application to be amended in those proceedings to include a claim that s 15 had been contravened.
3. The respondent submits that the Tribunal at first instance did not have jurisdiction to deal with the issues raised by the first three appeal grounds because the issues were not raised in the appellant's internal review application. The respondent submits that the jurisdiction of the Tribunal at first instance was limited to conducting an external review of the issues raised in the internal review application.
4. In relation to the alternative ground, the respondent conceded at the hearing of the appeal that it had agreed to consider a request made by the appellant after the commencement of proceedings in the Tribunal for a correction under s 15 of the Privacy Act and that it had refused the request. However, it submits the appellant did not lodge an internal review application concerning that refusal. Consequently, the Tribunal did not have jurisdiction to conduct an administrative review of the refusal under s 55 of the Privacy Act. The respondent also submitted that the grant of leave by the Tribunal for the administrative review application to include a claim that s 15 had been contravened did not constitute an acceptance by the Tribunal that an internal review had been requested and conducted. In any event, the Tribunal could not consider a claim it did not have jurisdiction to consider, even if it granted leave for the claim to be included in the application.
5. The appellant, however, contends that the correction request was a prerequisite to s 14 obligations and therefore well within the ambit of her application for internal review. The appellant also highlighted that the respondent agreed to treat her correction request as having been made, as evidenced by the case conference transcript.
6. For reasons explained above, we have decided that the Tribunal had jurisdiction to consider the issues raised by appeal ground 1, as it concerned the adequacy of access under s 14 taking into account the appellant's construction of s 16. The same may be said for appeal ground 2 though it did not raise a pure question of law for the purposes of the appeal. However, we decided that the grounds should be dismissed for reasons set out above. This therefore disposes of the first aspect of appeal ground 4. The alternative ground in appeal ground 4 raises a different issue.

Whether the alternative ground raise a question of law

1. Whether the Tribunal at first instance has jurisdiction to deal with a matter ordinarily raises a question of law. However, the question must be pure question of law discernible on the face of the ground and not depend on disputed facts.
2. As noted above, s 9(2) of the ADR Act provides that if enabling legislation makes provision for administrative review applications to be made subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied. Moreover, the legislative scheme created by the Privacy Act is plainly intended to give a public sector agency the first opportunity to deal with a complaint about its conduct: KO and KP v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56 (KO and KP) at [13]. Given this context, the Tribunal has treated the requirement in s 55 of the Privacy Act for the conduct to which an administrative review application relates to have been the subject of an internal review application as a jurisdictional precondition: Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 at [7].
3. However, whether particular conduct was the subject of an internal review application is a question of fact, which requires the Tribunal to look objectively and reasonably at the scope of the application: KO and KP at [14]. Ordinarily, an applicant cannot widen the scope of the internal review application after the public sector agency has dealt with it on an internal review: OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13]-[14]. Although, the scope of the internal review application may be the subject of further particulars prior to its determination. An internal review application that does not provide a public sector agency with reasonable notice about why the complainant is aggrieved by its conduct would deny the agency the first opportunity to deal with the complaint as required by the Privacy Act.
4. The appellant submits that the respondent and the Tribunal accepted that she was not required to lodge a separate internal review application concerning the respondent's refusal to make a correction under s 15 of the Privacy Act. She contends the respondent led her to believe that she did not have to do anything more. She relies on emails exchanged with the respondent's legal representatives and the case conference transcript.
5. The appellant also referred to a document from the respondent given to her in connection with the mediation in which she participated that was marked "without prejudice". We understand the document was not given to the Tribunal at first instance and it was not given to us.
6. Certain passages from the case conference transcript set out above (which are emphasised with bold text) arguably support the appellant's contention. However, as there is a dispute between the parties to this appeal about whether the refusal to make a correction under s 15 of the Privacy Act was conduct that was the subject of an internal review application and this depends upon more than a construction of documents, this raises a question of fact or, at least, a question of mixed fact and law. This is not a pure question of law.
7. As a result, the Appeal Panel would need to grant leave for the question to be dealt with in this appeal. At the hearing on 1 August 2024, the appellant submitted that the alternative ground raised a question of law and did not seek leave to raise the ground.
8. If no internal review application was made with respect to the refusal to correct the records, there would be a fundamental legal obstacle in making out the ground to the extent it relies on the alleged approbation of the Tribunal concerning whether the s 15 point could be raised. The Tribunal had no power to dispense with the requirement for an internal review application under s 53 of the Privacy Act as a precondition for an external review by the Tribunal.
9. It is true that s 55(4)(b) of the ADR Act enables the Tribunal to deal with an administrative review application to protect an applicant's interests even though the applicant has not duly applied for an internal review. However, this power has been held not to apply to internal review applications for the purposes of the Privacy Act: CWS at [15]. We agree.
10. Section 4(1) of the ADR Act defines "internal review" to mean an internal review conducted under section 53 of the ADR Act. Accordingly, a reference to an internal review in the ADR Act (including in s 55) is limited to internal reviews under that Act and does not extend to internal reviews under other Acts. Indeed, s 52(4) of the Privacy Act expressly provides that s 53 of the ADR Act does not apply to or in respect of conduct under Part 5 of the Privacy Act.
11. In these circumstances, the alternative ground must also be dismissed.
12. Appeal ground 4 is dismissed.

Correction and recusal applications

1. There are two more issues raised by the appellant in an application made after the hearing on 1 August 2024. They concern whether an order we made for an adjournment incorrectly reserved the question of costs.

Background

1. The appeal was first listed for hearing on 26 July 2024. The appellant applied for, and was granted, an adjournment. Mr Allchurch appearing for the respondent informed the Appeal Panel at the hearing that the respondent wished to reserve the position on costs. The formal order issued that day granting the adjournment (the adjournment order) included an order 2 that costs were reserved.
2. Before the next hearing on 1 August 2024, the appellant made an application (the correction application) seeking a correction of the order under s 63 of the NCAT Act to the extent it reserved costs. The appellant pressed her application at the hearing on 1 August 2024. The appellant submitted that the order should not have reserved costs, because neither party had applied for costs and the appellant had not been given an opportunity to make submissions about the issue.
3. At the hearing on 1 August 2024, the Appeal Panel explained that the reservation of the issue of costs did not operate as an award of costs and that costs would be awarded only if a party actually made an application for costs; and then only if both parties were given an opportunity to make submissions about the issue. Significantly, Mr Allchurch also confirmed at the hearing that the respondent had not yet applied for costs and indicated that the respondent would continue to reserve its position as to costs until the Appeal Panel decided the appeal.
4. On 2 August 2024, the appellant made a further application (the recusal application) by way of an email sent to the Appeal Registry for the members of the Appeal Panel to recuse themselves on the grounds of bias. The application was expressed in the following terms: "This Application of Recusal is lodged in the event the Appeal Panel refuses the Appellant's s63 Application for Correction with foreshadowed reason that order 2 is to reserve Respondent's costs application against the Appellant for the whole appeal. The refusal displays actual bias because order 2 could only be correct/made after the appeal is dismissed."
5. Both the appellant and the respondent were then given an opportunity to make submissions about the recusal application and whether it could be determined without a hearing (that is, on the papers).
6. There are therefore two applications before us concerning the reservation of costs: (1) the correction application; and (2) the recusal application. We will deal with each application in this order as the recusal application is expressed to be conditional on our decision in relation to the correction application.

Correction application

1. The appellant's submissions concerning the correction application have been noted above. The appellant relies on s 63 of the NCAT Act, which provides that the President or presiding member may direct a registrar to alter the text of the notice of a decision it has made if the Tribunal is satisfied that there is an obvious error in the text of the notice.
2. At general law, the reservation of costs on an interlocutory application by a court does not mean that the court has expressed any opinion about whether costs should be awarded or by whom they should be borne: Kitay v Frigger [No 2] [2024] WASC 113 (S) at [53] (Hill J) citing How v Earl of Winterton (No 4) (1905) 91 LT 763 at p 765 (Kekewich J). The same principle applies in the Tribunal. The effect of a reservation of costs is not to award costs. Rather, it is to leave the determination of the issue to a later date.
3. By order 2, costs have not been awarded against either party. Costs will not be awarded unless there is an application for costs and the Appeal Panel decides it is appropriate to award costs after giving each party an opportunity to make submissions about it. In this regard, s 60(1) of the NCAT Act generally requires each party to pay their own costs. Section 60(2) provides that the Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs.
4. There is no obvious error in order 2 requiring a correction. The correction application is therefore dismissed.

Recusal application

1. We now turn to the recusal application.
2. In accordance with s 50 of the NCAT Act, the parties were given an opportunity to make submissions on whether the issue of recusal may be dealt with without an oral hearing. The Appeal Panel has determined that the issue may be dealt with on the basis of written submissions filed by the parties.

Submissions about recusal application

1. In her original written submissions concerning recusal, the appellant submitted that the members of the Appeal Panel should recuse themselves if we refused her correction application "because order 2 could only be correct after the appeal is dismissed, not a week before the hearing, and the refusal displays actual bias, in that, the Appeal Panel will logically dismiss the appeal to ensure order 2 and the refusal on Application of Correction are correct".
2. The respondent submitted that there is no basis to conclude that there was either actual or apprehended bias on the part of the Appeal Panel. In particular, the respondent submitted among other things: 1. Order 2 did not reflect a decision adverse to the appellant's interests. 2. An order noting that costs are reserved does not suggest a lack of an impartial and open mind. Rather, it suggests the Appeal Panel is keeping an impartial and open mind about the question of costs, which it has not yet decided.
3. In reply, the appellant also submitted that order 2 was ultra vires because the following preconditions were not satisfied before the order was made: 1. The matter was heard and determined. 2. The winning party applied for costs. 3. The parties were given an opportunity to make submissions about the application for costs.

Consideration of recusal application

1. The conditional nature of the recusal application suggests that the appellant does not object to the members of the Appeal Panel dealing with the substance of this appeal provided she obtains the result she seeks concerning the correction application.
2. The submissions made in support of the recusal application also suggest the appellant misunderstands the effect of reserving costs at an interlocutory stage. First, order 2 concerned only the adjournment application and not the costs of the appeal proceedings generally. Second, the reservation does not operate to award costs. The Appeal Panel has not made any determination against either party about costs. Indeed, the orders we make in this appeal afford the parties an opportunity to make an application for costs of the appeal (including any interlocutory applications). In this sense, order 2 is overtaken by the final orders made on the appeal. Third, the appellant's submissions seem to imply that as she succeeded in gaining the adjournment that, at least absent s 60 of the NCAT Act, costs in her favour would follow the event. However, it is not uncommon for a party who is granted an adjournment to suffer an adverse costs order: see, for e.g., Andrew Wheeler trading as PricewaterhouseCoopers v Aoyin Group Ltd (No 2) [2021] NSWSC 1115 and Moneytech Finance Pty Ltd v Diamond Made Pty Ltd [2018] NSWSC 1785.
3. A decision made when there is either actual or apprehended bias constitutes a jurisdictional error rendering the decision invalid regardless of the effect the bias might have had on the decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6]. We will deal with both forms of bias.
4. Disqualification on the ground of actual basis involves the application of a subjective test. It requires proof of "a pre-existing state of mind which disables the decision-maker from undertaking or renders [the decision-maker] unwilling to undertake any or any proper evaluation of the materials before [the decision-maker] which are relevant to the decision to be made": Jia Le Geng v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at p 104; [1998] FCA 768 (French J). In South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16, McColl JA at [97] observed that a person alleging actual bias carries a heavy onus of proof because case law establishes that an allegation of actual bias must be distinctly made and clearly proved; that a finding should not be made lightly; and that cogent evidence is required.
5. The appellant was unable to point to any evidence apart from her construction of the effect of order 2 to prove that the members of the Appeal Panel would actually bring biased minds to the determination of her appeal. As the respondent submitted, the reservation of costs (when properly understood) suggests the Appeal Panel is keeping an open mind as to the question of costs. Consequently, there is no basis for us to recuse ourselves on the ground of actual bias.
6. To the extent the applicant raises apprehended bias, disqualification on this ground involves a different test. The leading Australian case on the test for apprehended bias is the decision of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner).
7. In Ebner at [6]−[7], Gleeson CJ, McHugh, Gummow and Hayne JJ stated the test to be whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide". Their Honours at [8] held the test involves 2 steps before the reasonableness of the apprehension can be assessed: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a [decision-maker] to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a [decision-maker] has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
8. The purpose of the "double might" in the apprehended bias test is to stress that the apprehended bias rule is concerned as much to preserve the public appearance of independence and impartiality on the part of the decision-maker as it is to preserve the actuality: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 (CNY17) at [18] (Kiefel CJ and Gageler J).
9. The test involves one of objective possibility rather than probability: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] (Gageler J). However, the possibility must be real and not remote: Ebner at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
10. The test is to be applied by reference to what a fair-minded lay observer might reasonably apprehend and not by reference to what the party alleging bias apprehends. The fair-minded lay observer is neither a judge nor a lawyer. Rather, the fair-minded lay observer is a member of the public who courts and tribunals are meant to serve. Accordingly, the fair-minded lay observer will not have a detailed knowledge of the law or of the character or ability of the particular decision-maker: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [12], quoting Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13].
11. However, the fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it was made, and the circumstances leading to the decision: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (QYFM) at [72] (Gordon J). Also, the fair-minded lay observer is taken to have a broad knowledge of the material objective facts, as distinct from a detailed knowledge of the law or of the character and ability of the decision-maker: QYFM at [72] (Gordon J).
12. It is critical when dealing with a recusal application on the grounds of apprehended bias to assess, objectively, the connection between the facts and circumstances alleged to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear, to ground the application resulting in a possible departure from impartiality. The appellant's recusal application, as we have indicated, is based on a misunderstanding of the effect of the reservation of costs of the interlocutory application for an adjournment. Consequently, we do not consider that apprehended bias has been made out.
13. The appellant's recusal application is dismissed.

Conclusion and orders

1. The Appeal Panel dismisses the correction and recusal applications and also the application made by the appellant concerning the respondent's submissions. In addition, the appellant has not succeeded on the appeal grounds.
2. The appropriate order for the Appeal Panel to make is to dismiss the appeal.
3. At this stage, as we have noted, no order as to costs has been made. Costs may be awarded only if the Tribunal is satisfied that there are special circumstances warranting an award of costs: NCAT Act, s 60(2). The orders we make provide for the exchange of written submissions and other documents if a party to this appeal wishes to make an application for costs. The orders also provide for the parties to include in their written submissions their views about whether the Appeal Panel can dispense with a hearing in relation to any application for costs. If an application for costs is made, the Appeal Panel will decide whether to dispense with a hearing having regard to those submissions.
4. To be clear, unless an application is made in accordance with the timetable set out in the orders below, there will be no order as to costs or the appeal, including any interlocutory applications. As mentioned above, order 2 made on 26 July 2024, has been overtaken by this appeal and these orders.

Orders

1. The Appeal Panel makes the following orders: 1. In relation to the application made by the appellant for the members of the Appeal Panel to recuse themselves: 1. the Appeal Panel, after giving the parties the opportunity to make submissions as to whether the Appeal Panel should dispense with a hearing and being satisfied that the matter can be adequately determined in the absence of the parties, dispenses with a hearing of the application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW); and 2. the application is dismissed. 1. The disclosure of the name of the appellant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The appellant is to continue to be known by the pseudonym FZK. 2. The interlocutory application made by the appellant concerning the respondent's submissions is dismissed. 3. The application made by the appellant concerning the correction of the Appeal Panel's adjournment order is dismissed. 4. The appeal is dismissed. 5. If a party to the appeal wishes to make an application for costs, the following directions apply: 1. the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Appeal Registry any submissions and documents the costs applicant intends to rely on in relation to the application; 2. the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Appeal Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs; 3. the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Appeal Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent's submissions and documents; 4. the parties are to include, in their written submissions concerning the application for costs, their views about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2024