FZK v Department of Customer Service [2025] NSWCATAD 173

1. The Respondent submitted the application for summons to issue should be refused on three grounds, namely:

(1) There is no legitimate forensic purpose to summons the named officer of the Respondent and while the Applicant asserts there is such a purpose, it has not been identified.

(2) It is a matter for the Respondent to present their own case and decide who speaks for an agency, citing Lonsdale v University of Sydney [2015] NSWCATAP 277 at [29]- [31] (Lonsdale) a decision in respect of proceedings under the Government Information (Public Access) Act 2009 but, the Respondent submitted, also applicable to PPIP Act proceedings.

(3) The application for summons to issue is an attempt to expand the scope of the proceedings, contrary to the guiding principle: s 36 of the CAT Act.

1. The Applicant's written submissions in reply assert the Respondent's written submissions were false on a number of bases and concluded:

"Accordingly, in the absence of valid reason for the error, [name redacted]'s evidence is the only relevant evidence."

1. The Applicant's submissions at the hearing on 15 July 2025 included that:

(1) She wanted to find the cause of the error and the named officer who created the relevant record is the only person who knows what caused the error;

(2) The relevant documents do not speak for themselves, nor was the "offboarding" a standard process, disagreeing with the Respondent's contentions to the contrary set out in its written submissions;

(3) The named officer was not just apparently relevant, his evidence was the only evidence that is relevant, particularly given the lack of documentary evidence at the time certain records were created; and

(4) The application for a summons to issue was not an attempt to widen the scope of the administrative review proceedings.

1. Section 15 of the PPIP Act relevantly provides:

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.

1. The power of the Tribunal to direct the Registrar to issue a summons is provided in s 48(1)(b) of the CAT Act.
2. The Tribunal is required "to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (s 3(d) of the CAT Act), and its practice and procedure "should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings" (s 36(4) of the CAT Act).
3. The Tribunal is not bound by the rules of evidence (subject to natural justice) and may determine its own procedure (s 38 of the CAT Act), as noted above.
4. Those are matters that must be considered, by the Registrar at first instance, as well as by the Tribunal when considering whether to direct the Registrar, in determining whether to accept the application to issue a summons and whether a summons should be issued.
5. A summons must have a legitimate forensic purpose and be apparently relevant to the proceedings. A summons must not constitute a fishing expedition, be oppressive or an abuse of process. Those are matters that are to be considered in deciding whether to allow the issue of a summons.
6. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 the Court set out the following principals regarding relevance in respect of document production, per Bell P as he then was (at [65], [69]-[70]):

"65. 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. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.

...

69. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is 'not sufficient', and a similar statement in Carroll at 182 that 'mere relevance is not enough' may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena:

'must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient.'

There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a 'bearing on the issues in the case and may well have evidentiary value', a subpoena seeking such a document or documents will not amount to fishing.

70. Of course it will remain the case that, if it can be demonstrated that the party issuing the subpoena has done so for some improper, illegitimate or ulterior purpose foreign to the litigation, the Court in the exercise of its discretion may set aside the subpoena as an abuse of process or refuse access to the subpoenaed documents in spite of their apparent relevance. Provided, however, that the documents sought are apparently relevant to the issues that have or are likely to arise in the proceedings or have some evidential value (which may extend to value for the purposes of cross-examination, including testing the credit of witnesses including expert witnesses), to the extent it may be necessary to establish a legitimate forensic purpose, such a purpose may be presumed."

"I 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. Moreover, documents will add 'in some way' to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence." (footnotes omitted)

1. In icare v Webb [2023] NSWCATAP 192 at [39] the Appeal Panel considered those principles applied equally to a summons to a potential witness to provide evidence.
2. The Tribunal will apply the principles identified above when considering whether to direct the Registrar to issue the summons for which the Applicant has applied.

Should the Tribunal direct the Registrar to issue the summons?

1. The issues to be determined in the substantive proceedings relate to the Applicant's requests, made late last year, for her personal information to be corrected. The proceedings will involve review of a refusal of the Respondent to amend the Applicant's personal information under s 15 of the PPIP Act.
2. In VZ v University of Newcastle (No 2) [2012] NSWADT 167 the Judicial Member stated (at [23]):

"Section 15 of the PPIP Act is a vehicle that enables individuals to ensure that their personal information held by agencies is complete, accurate and not misleading. It does not provide a backdoor means for individuals to call into question the validity, legality, merits or fairness of what is recorded."

1. In determining the application for administrative review in these proceedings relating to s 15 of the PPIP Act, the Tribunal will consider the accuracy or otherwise of the Applicant's personal information held in the relevant records.
2. Therefore the original record creation, that occurred several years ago, is of no relevance to determination of the application for administrative review in these proceedings. That is, the cause of error in documents or entries is not relevant to these proceedings, which instead relate to correction, grounded on the Applicant's request for correction made in late 2024.
3. The named officer of the Respondent, the subject of the application to issue a summons, created records and made entries that the Applicant takes issue with. However that is not relevant to the current proceedings relating to correction.
4. The Applicant did not demonstrate that the named officer to whom the summons is directed is able to provide evidence relevant to the matters in issue in the proceedings.
5. I therefore could not be satisfied there is a legitimate forensic purpose in requiring the named officer of the Respondent to appear and give evidence in the proceedings.
6. Further, the named officer is not a witness in the proceedings and, consistent with the approach of the Appeal Panel in Lonsdale, in these proceedings under the PPIP Act, allowing the Applicant to summon witnesses who are officers of the Respondent has the potential to subvert the Respondent's case. In the absence of strong reasons and a clear legitimate forensic purpose demonstrated by the Applicant, this consideration weighs further against issue of the summons.
7. It follows the Registrar should not be directed to issue the summons.

(1) The Tribunal declines to direct the Registrar to issue the summons pursuant to s 48(1)(b) of the Civil and Administrative Tribunal Act 2013.

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.