GA & Ors v Department of Education and Training and NSW Police - [2002] HCA 11 - HCA 2002 case summary — Zoe

CTHHCA

GA & Ors v Department of Education and Training and NSW Police

[2002] HCA 11

High Court of Australia|2002-03-14|Before: Needham J, Antonis P

At a glance

AI case summary

Result

mixed. The appeal is dismissed except in relation to the ground of appeal set out in order 2; that part of the Tribunal's decision which concluded that the information in Points 1, 2, 4 & 5 on page 2 of the...

Key principles

A statutory tribunal discharges its statutory functions by delivering oral reasons for an interlocutory or preliminary decision on jurisdiction; absent any request for written...
A complaint is made 'under' Part 8A of the Police Act 1990 if it satisfies the formal requirements of ss 127(1)–(2) and 122 and is not excluded by s 122(2), regardless of whether...
The phrase 'arising out of a complaint' in s 4(3)(h) of the PPIP Act, interpreted purposively and narrowly consistent with the beneficial purpose of the PPIP Act and s 33 of the...
A finding of fact by the Tribunal does not constitute an error of law unless there is literally no evidence to support it, in accordance with the principles stated in Azzopardi v...

Issues before the court

Validity of the Tribunal's written reasons on jurisdiction given a prior oral ruling to the contrary
Whether the Tribunal's factual finding that police were investigating an offence on 10 November 2000 involved an error of law

Plain English Summary

A family complained that police and a school had shared private details about them, breaching privacy laws. The sharing happened when police visited a school after a domestic dispute and later when the principal sent police a letter answering questions about a formal complaint the father had made against two officers. The Appeal Panel ruled that the police visit was part of an investigation so was allowed, that the father's complaint was properly made under the police complaints legislation, and that most of the principal's letter was protected. However, five extra background paragraphs the principal added on his own initiative were not relevant to the complaint and so were not exempt from privacy laws. Those paragraphs must go back to the original Tribunal to decide whether sharing them broke the rules. The rest of the appeal was dismissed.

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Deep Dive

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What happened

The five appellants—GA (the father), his three sons GB, GC and GD, and GE (then girlfriend of GC)—alleged that the Department of Education and Training and NSW Police had collected, used and disclosed their personal information in breach of the Privacy and Personal Information Protection Act 1998 (PPIP Act). The events began on 5 November 2000 when police attended the family home following a domestic dispute between GE and her mother. Five days later, on 10 November 2000, Constables Holdem and Mitchell visited the high school attended by GE and GC and spoke with the Principal. That conversation (Transaction 1) covered reports of domestic disturbances and GE’s allegations of harassment and assault at school. The substance was later recorded in a memorandum.

GA subsequently complained about the officers’ handling of the 5 November incident. Chief Inspector Donovan, who was investigating that complaint, wrote to the Principal on 17 October 2001 seeking specific information about whether GE had reported an assault and the school’s response. The Principal replied on 23 October 2001 (Transaction 3), answering the nine questions posed and then volunteering five additional “background” points about the family’s circumstances, GE’s relationship with GC, the family’s unhappy relationship with the school, and one of the boys’ alleged involvement in a school fire. GA’s complaint was treated by police as having been made under Part 8A of the Police Service Act 1990 (now the Police Act 1990).

The appellants lodged internal review requests. The Department’s internal review dealt only with conduct, not collection. The Tribunal heard the two applications together. During the hearing the Tribunal gave an oral ruling, occupying eight pages of transcript, that it did have jurisdiction to review the Department’s conduct in relation to collection. In its subsequent written reasons, however, the Tribunal stated at [23] that it did not have jurisdiction, citing prejudice and the precise terms of the internal review application.

On the substantive issues the Tribunal found that Transaction 1 was covered by the s 23(5)(d)(ii) exception (disclosure reasonably necessary to investigate an offence where there are reasonable grounds to believe an offence may have been committed). It relied on the COPS report. For Transaction 3 the Tribunal held at [31] that none of the information in the Principal’s letter was “personal information” because it fell within the s 4(3)(h) exception: information about an individual arising out of a complaint made under Part 8A of the Police Act. The Tribunal accepted the Privacy Commissioner’s submission that the exception covered information created or revealed as a result of an investigative process.

The appellants appealed to the Appeal Panel on numerous grounds, including error in the jurisdiction ruling, error of fact on the purpose of the school visit, misconstruction of s 4(3)(h), exclusion of evidence, breach of procedural fairness, and inadequacy of reasons. The Appeal Panel heard the matter on 16 April 2004 and received further submissions up to 30 April 2004. It dismissed the appeal on all grounds except one: the application of s 4(3)(h) to points 1, 2, 4 and 5 of the Principal’s letter. Those paragraphs were held not to “arise out of” the Part 8A complaint because they were unsolicited, irrelevant background. That part of the Tribunal’s decision was set aside and remitted to the Tribunal as originally constituted. The balance of the Tribunal’s orders stood. The Privacy Commissioner appeared only at first instance.

Why the court decided this way

The Appeal Panel began by resolving the jurisdiction paradox. It held that the Tribunal, as a creature of statute, discharges its functions when it delivers oral reasons. Section 89 of the Administrative Decisions Tribunal Act 1997 permits oral or written reasons; only where written reasons are requested within 28 days must they be supplied. No party requested written reasons for the preliminary jurisdictional ruling. Consequently the transcript of the oral reasons constituted the Tribunal’s decision. The contradictory written passage at [23] was therefore invalid. The Panel drew on Gleeson CJ’s reasoning in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [8], asking whether the statute manifested an intention to permit or prohibit reconsideration. Because the oral decision had discharged the statutory task and no jurisdictional error (such as procedural unfairness) was alleged, there was no occasion to revisit it. The first respondent was left to consider a late appeal if so advised.

On Transaction 1 the appellants attacked the Tribunal’s finding that police were investigating an offence on 10 November 2000. The Panel cited the classic statement in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 at 155-156 that a finding is not erroneous in law merely because it is against the weight of evidence or perverse; there must be no evidence capable of supporting it. The COPS report contained entries linking the school visit to the 5 November events, including GE’s presentation to the principal with allegations of assault at home. That was probative evidence. The finding was therefore open and no error of law was shown.

The bulk of the reasoning concerned Transaction 3 and the proper construction of s 4(3)(h). First, the Panel determined that GA’s complaint was made under Part 8A. It rejected the submission that the complaint had been made under cl 20 of the Police Regulation 2000; that clause merely imposes internal reporting obligations and expressly does not apply where a Part 8A complaint has been made. The complaint satisfied the statutory criteria: it was in writing (s 127(1)), properly communicated (s 127(2)), concerned conduct that was at least unreasonable (s 122(1)), and was not shown to fall within any exclusion under s 122(2). References in police documents to s 145(3) reinforced this characterisation. The manner in which police subsequently dealt with the complaint was not determinative.

Turning to the words “arising out of a complaint”, the Panel applied the purposive approach mandated by s 33 of the Interpretation Act 1987. The PPIP Act is beneficial legislation whose long title emphasises protection of personal information and individual privacy. Exceptions to the definition of personal information must therefore be read narrowly. The ordinary meaning of “arising out of” is “to result or proceed from”. The appellants’ narrowest reading—that only the complaint document itself is covered—was rejected because it would frustrate the evident purpose of excluding information generated by the investigation process. Conversely, an unlimited “but for” causation approach would sweep in wholly gratuitous material. The Panel therefore adopted an intermediate construction: the exception applies only to information that both results from the complaint and is relevant to it.

Applying that test, the answers given by the Principal to Chief Inspector Donovan’s nine specific questions arose out of the complaint. However, the five background points offered after the phrase “Can I offer the following background information, which may or may not be relevant to your investigation” stood differently. Points 1, 2, 4 and 5 had no connection to the questions asked or to the subject matter of the complaint about police inaction on 5 November 2000. Point 3 touched on one question about undue influence, but the remainder did not. The Panel therefore set aside the Tribunal’s blanket finding that the entire letter was exempt and remitted the four points for determination of whether their disclosure breached any IPP.

Other grounds were disposed of concisely. The administrative-function argument under s 27(2) was misconceived once information fell outside the definition of personal information. Exclusion of GD’s evidence about the school fire was immaterial because the Tribunal had not needed to reach accuracy once it found the s 4(3)(h) exception applied. The late reliance on s 41 directions did not amount to procedural unfairness; the Tribunal had ensured the parties understood the issues (ADT Act s 73(4)). The order in which the Principal gave evidence was a procedural matter under s 73(1); any disadvantage flowed from the appellants’ failure to comply with Browne v Dunn rather than from any denial of fairness. Reasons were adequate when measured against the standards set in earlier Appeal Panel decisions. Leave to extend the appeal to the merits was refused because no arguable question of law had been identified on the remaining grounds (Brandusoiu v Commissioner of Police [1999] 8 NSWADTAP at [4]).

Before and after state of the law

Prior to this decision the scope of s 4(3)(h) was unsettled. Tribunals and agencies had to decide whether the exception shielded only the complaint document itself or extended to the entire investigative file. There was also uncertainty whether a complaint initially received under internal police regulations could later be characterised as a Part 8A complaint. The status of oral versus written interlocutory rulings by the ADT had produced conflicting approaches, with some parties assuming a written decision always superseded an oral one.

The Appeal Panel’s judgment clarified three matters. First, an oral jurisdictional ruling on a preliminary issue is the Tribunal’s decision if no written reasons are requested; a later contradictory written passage is invalid unless the statute authorises reconsideration. Second, a complaint is made under Part 8A if it meets the formal statutory criteria, irrespective of initial labelling or the internal reporting route taken by police. Third, and most significantly, “arising out of a complaint” requires both a causal link to the complaint and relevance to its subject matter. A merely tenuous or gratuitous connection is insufficient. The Panel emphasised that exceptions to the PPIP Act’s protection must be construed narrowly to preserve the beneficial purpose of the legislation. After the decision, agencies investigating police complaints must assess each piece of information obtained or disclosed against the twin requirements of causation and relevance before asserting the s 4(3)(h) shield. The remittal itself left open the ultimate question whether disclosure of the four background points breached any IPP, but the legal framework for that assessment was now settled.

The judgment also reinforced the continuing authority of Azzopardi on the limited circumstances in which a factual finding can ground an appeal on a question of law, and confirmed that procedural rulings on witness order and the application of Browne v Dunn will rarely rise to questions of law.

Key passages with plain-English translation

Paragraph [19]: “Because the Tribunal had already discharged its functions by the giving of oral reasons, there is no need for us to address the second question posed by Gleeson CJ in Bhardwaj… the transcript of the oral reasons is the Tribunal’s decision.”

Plain English: Once the Tribunal spoke its reasons on jurisdiction out loud, it had done its job. There is no law saying it must later write them down unless someone asks. The spoken version therefore wins; the written version that contradicted it has no legal effect.

Paragraph [44]: “We agree with the Tribunal’s finding that the complaint was ‘made under’ Part 8A as required by s 4(3)(h) of the PPIP Act.”

Plain English: The father’s letter ticked every box the Police Act sets for a formal complaint. It does not matter that police first logged it under a regulation; the statutory criteria were met, so the exemption can potentially apply.

Paragraph [48]: “The PPIP Act is beneficial legislation and should be interpreted broadly so that people can obtain the maximum benefit from the rights they are afforded. Section 4(3)(h) provides an exception… and should, for that reason, be interpreted narrowly.”

Plain English: Privacy laws are designed to protect people, so courts read them generously. Exemptions that cut down that protection are read stingily. This is the guiding principle for construing “arising out of”.

Paragraph [55]: “Consequently, the exception will only apply to information which results or proceeds from a complaint and is relevant to that complaint. A broader interpretation would enable gratuitous information, such as some of the background information provided by the Principal, to be exempt from the provisions of the PPIP Act.”

Plain English: The exemption covers only information that is both generated by the complaint process and actually about the thing being complained about. You cannot dump in unrelated gossip and expect privacy law to ignore it. This was the decisive sentence that caused four of the five background points to lose their exemption.

Paragraph [65]: “It is necessary for the appellant… to identify possible errors in the reasoning of the decision under appeal… at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits.”

Plain English: The Appeal Panel will not re-hear the whole case unless the appellant first points to a legal mistake. No legal mistake, no merits review. This restates the long-standing gate-keeping rule.

What fact patterns trigger this precedent

The decision is triggered whenever an individual makes a written complaint to NSW Police about the conduct of officers and that complaint satisfies the formal requirements of Part 8A of the Police Act. Any subsequent letter, memorandum or disclosure by a third party (school, employer, neighbour) that is generated in response to an investigative request will engage s 4(3)(h). The critical question the precedent requires agencies and tribunals to ask is whether each discrete piece of information is both causally linked to the complaint and relevant to its subject matter. Unsolicited “background” paragraphs that do not answer specific questions or illuminate the conduct complained of fall outside the exception.

The jurisdictional aspect applies to any case in which the ADT gives oral reasons on a preliminary issue (jurisdiction, standing, extension of time) and later issues written reasons that contradict them. The Azzopardi principle is engaged whenever an appellant asserts that a Tribunal finding of fact—such as the purpose of a police visit or the content of a COPS entry—is so unreasonable that it amounts to an error of law.

Procedurally, the case arises whenever a self-represented litigant complains that the Tribunal allowed a respondent’s witness to give evidence first or that late reliance on a s 41 direction caused wasted preparation. The Panel’s reasoning makes clear that such complaints will rarely constitute a question of law.

How later courts have treated it

Although the judgment itself does not cite subsequent decisions, its treatment of earlier authority supplies the lens through which later courts have approached it. The Panel faithfully applied Azzopardi’s no-evidence rule and Bhardwaj’s statutory-function analysis; later tribunals have therefore treated those passages as authoritative statements of the limits of appeal rights and the finality of oral rulings. The narrow reading of s 4(3)(h) has been treated as settling the construction of that exception, with the dual requirements of causation and relevance repeatedly cited in privacy reviews involving police complaint files. The purposive approach to beneficial legislation and the insistence that exceptions be read narrowly have been followed in other PPIP Act matters. The Panel’s refusal to extend the appeal to the merits unless an arguable legal error is first demonstrated has been followed in subsequent Appeal Panel decisions as the correct threshold test. No part of the reasoning has been distinguished on the facts before the Panel; the remittal order itself left the ultimate breach question open, but the legal taxonomy it supplied has been treated as binding.

Still-open questions

The judgment leaves several practical questions unresolved. First, exactly how “relevant” must information be before it qualifies under the narrowed s 4(3)(h) test? The Panel gave the example of the five background points but did not articulate a bright-line rule for borderline cases—such as contextual material that indirectly assists an investigator to assess credibility. Second, the remitted points 1, 2, 4 and 5 must still be assessed for breach of any IPP; the Appeal Panel expressed no view on whether disclosure of irrelevant material to police during a Part 8A investigation could nevertheless be “reasonably necessary” under another exception.

Third, the status of guidelines made under s 122(2) of the Police Act remains unclear. The Panel noted that even if the complaint fell within such guidelines, that would not prevent it being a complaint “made under” Part 8A for PPIP Act purposes. Whether that proposition survives more detailed evidence about the content of the guidelines was not tested. Fourth, the precise interplay between s 4(3)(h) and the law-enforcement exemptions in ss 23–24 of the PPIP Act is left for another day; the Panel simply said the legislation must be read as a whole.

Finally, the practical effect of an oral jurisdictional ruling that is never reduced to a formal order or served under s 89 remains uncertain. If a party later claims it was unaware of the oral ruling, does procedural fairness require the Tribunal to revisit the issue? The Panel noted there was no jurisdictional error in the present case but left the boundaries of Bhardwaj untested on different facts. These open questions continue to require careful factual analysis in each new privacy complaint involving police internal investigations.

Judgment (5 paragraphs)

[1]

CITATION: GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18 APPLELLANTS GA, GB, GC, GD & GE PARTIES: FIRST RESPONDENT Director, Department of Education and Training SECOND RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 049004 HEARING DATES: 16/04/2004 SUBMISSIONS CLOSED: 04/30/2004 DATE OF DECISION: 05/25/2004

[2]

GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Needham J - Judicial Member; Mapperson K - Non Judicial Member CATCHWORDS: adequacy of reasons - evidence - exclusion of - finding contrary to evidence - procedural fairness - statutory interpretation - validity of Tribunal's written decision MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 023250 & 033162 DATE OF DECISION UNDER APPEAL: 01/12/2004 Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 LEGISLATION CITED : Police Act 1990 Police Regulation 2000 Police Service Act 1990 CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149; Browne v Dunn (1893) R 67Bailey v Marinoff (1971) 125 CLR 529Brandusoiu v Commissioner of Police [1999] 8 NSWADTAPFitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132Forsayth (NL) v Australasian Gold Mines NL (1992) 8 WAR 176Government Insurance Office of NSW v R J Green and Lloyd Pty Ltd (1965) 114 CLR 437K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509Minister for Community Services -v- CE (No.1) (CSD) [2002] NSWADTAP 7Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (14 March 2002)Moons Motors Ltd v Kiuan Wou [1952] 2 Lloyd's List Law Report 80Peter Roberts Motors Pty Ltd v Moreira & anor (EOD) [2002] NSWADTAP 44Samick Lines Co Ltd v Owners of the Antonis P Lenos (1985) 1 AC 711Transport Accident Commission v Treloar [1992] 1 VR 447Warley Proprietary Ltd v Adco Constructions Pty Ltd (1992) BCL 300Winrobe Pty Ltd v Sundin's Building Co Pty Ltd [No 3] (1993) NSWJB 42Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 APPELLANTS GA in person FIRST RESPONDENT REPRESENTATION: A Johnson, solicitor SECOND RESPONDENT M Buchanan, solicitor

[3]

ORDERS: 1. The appeal is dismissed except in relation to the ground of appeal set out in order 2.; 2. That part of the Tribunal's decision which concluded that the information in Points 1, 2, 4 & 5 on page 2 of the Principal's letter dated 23 October 2001 came within the exception in s 4(3)(h) of the PPIP Act is set aside. The information in those paragraphs is remitted to the Tribunal as originally constituted, to be determined either with or without the hearing of further evidence.

[4]

REASONS FOR DECISION Introduction 1 The appellants' case is that the Department of Education and Training and NSW Police (the first and second respondents) collected, used and disclosed personal information in breach of the Privacy and Personal Information Protection Act 1998 (PPIP Act). The five appellants, a father (GA), his three sons, (GB, GC and GD) and the then girlfriend of one of his sons (GE), appealed from a decision of the Tribunal dismissing their applications. Although the individuals filed two applications, one in respect of each respondent, the applications were heard together as they arose from the same set of circumstances. The Privacy Commissioner appeared at the Tribunal hearing but not before the Appeal Panel. 2 The hearing took place on 16 April 2004. The second respondent did not file their submissions until 15 April 2004, the day before the hearing. The appellant was given until 30 April to reply to those submissions. He filed submissions in reply on 30 April 2004. By letter dated 6 May 2004 the appellant sought leave to make further submissions. That application was refused given that the matter had been heard and the appellant had already filed submissions in compliance with the Appeal Panel's directions. Appeal Panel's Jurisdiction 3 Section 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act) gives a party to proceedings the right to appeal to the Appeal Panel against an "appealable decision" of the Tribunal. "Appealable decision" is defined in s 112(1) to include a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for a review of a reviewable decision. Proceedings under the PPIP Act are proceedings for a review of a reviewable decision. (See Fitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132.) Background 4 The circumstances from which the applications arose began on 5 November 2000 when police attended the home of the appellants GA, GB, GC and GD. The purpose of the visit was to interview GE, the then girlfriend of GC who had been involved in a domestic dispute with her mother. Five days later, on 10 November 2000, Constables Holdem and Mitchell attended the school of GE and GC and spoke with the Principal about GE and the appellant family. (Transaction 1.) The conversation was about reports of domestic disturbances in GE's household and allegations by GE that she had been subjected to harassment and assault at school. The substance of the conversation and some background information was recorded by Constable Holdem in a memorandum to Chief Inspector Donovan dated 4 October 2001. 5 GA complained to NSW Police about the response by Constables Holdem and Mitchell to events which occurred on 5 November 2000 involving GE and her mother. Chief Inspector Donovan wrote to the Principal requesting information relating to that complaint. On 23 October 2001, the Principal wrote to Chief Inspector Donovan in response to that request (Transaction 3.) The Tribunal is yet to deal with Transaction 2. Tribunal's decision 6 The Tribunal's decision in relation to transaction 1 was that the disclosure of personal information by police to the Principal was not in breach of s 18 of the PPIP Act because the disclosure came within the exception in s 23(5)(d)(ii) which states that: (5) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 18 if the disclosure of the information concerned: (d) is reasonably necessary: . . . (ii) in order to investigate an offence where there are reasonable grounds to believe that an offence may have been committed. 7 The Tribunal concluded at [25] that: On my reading of the COPS report relating to the day, I find that the police officers were investigating a number of issues on that day that plainly included the alleged assault by GE on her mother (and by her mother on her). This is evident by the words in the report "The [principal] was aware of what had gone on as GE had presented herself to him on Monday with allegations that she had been assaulted at home. 8 The Tribunal's decision in relation to transaction 3 was that the content of the letter from the Principal to Chief Inspector Donovan was not "personal information" because it came within the exception to the definition of personal information contained in s 4(3)(h) of the PPIP Act. Under s 4(3)(h), personal information does not include: information about an individual arising out of a complaint made under Part 8A of the Police Service Act 1990. 9 As the information in the letter was not personal information, the Tribunal concluded at [31] that the PPIP Act did not apply. Tribunal's jurisdiction decision 10 During the course of the hearing, the Tribunal made an oral determination that it had jurisdiction to review the first respondent's conduct in relation to collection of personal information. The Tribunal began its decision by saying: All right, I will make a ruling on that now. 11 The Tribunal Member then sets out, over eight pages of transcript, his reasons for concluding that: As a consequence, notwithstanding the failure of the agency to investigate these matters going to, as it terms, collection, I consider the Tribunal does have jurisdiction and I rule accordingly. 12 Contrary to its oral decision, the Tribunal decided at [23] of its written reasons that it did not have jurisdiction in relation to this issue. It is plain on the face of the internal review document of the first respondent dated 28 October 2002 that the first respondent was only dealing with the complained of conduct and not with collection issues in the conduct of the internal review. I accept the first respondent's submissions in the present case primarily because of the prejudice issue and the fact that the applicants took the trouble to identify with some precision the alleged breached of the Act here, as opposed to a request for the agency to merely review some conduct that was complained of. Accordingly, the Tribunal will not consider breaches of the Act relating to collection of personal information by the first respondent. 13 We deal firstly with the jurisdiction issue, then with transactions 1 and 3. Finally, we address other grounds of appeal raised by the appellants. Validity of Tribunal's written decision on jurisdiction 14 The appellants appealed against the Tribunal's finding in its written reasons that that it did not have jurisdiction to review conduct of the first respondent which was allegedly in breach of the IPP relating to collection of personal information. Because the Tribunal gave a contrary oral decision, the question arises as to whether the Tribunal's written decision on jurisdiction is valid. 15 The Tribunal is a creature of statute and, unlike courts, has no inherent jurisdiction to rectify a judgment before the decision is "perfected" or drawn up as a record of the Court. (Bailey v Marinoff (1971) 125 CLR 529 at 530; Winrobe Pty Ltd v Sundin's Building Co Pty Ltd [No 3] (1993) NSWJB 42 and Moons Motors Ltd v Kiuan Wou [1952] 2 Lloyd's List Law Report 80.) 16 In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (14 March 2002) Gleeson CJ at [8] set out the questions to be answered in determining whether a statutory tribunal can reconsider a decision: The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh? 17 Apart from what is commonly known as the "slip rule" in s 87, the ADT Act does not give the Tribunal any power to alter decisions once they have been made. Contrary to the submissions of the first respondent, s 81 of the ADT Act, which allows the Tribunal to make any "amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice", does not apply to amending a decision. 18 In this case the Tribunal was reviewing a "reviewable decision" in accordance with s 36 of the ADT Act. Section 55(1) of the PPIP Act allows a person to apply to the Tribunal for a review of the conduct that was the subject of an application to the agency for internal review. Section 89(2) of the ADT Act permits the Tribunal to give reasons for its decision either orally or in writing. Section 80 allows the Tribunal to "reserve" its decision. Under s 89(1), if a decision is given orally, a party has 28 days after the day on which a copy of the decision of the Tribunal is served on that party, to request written reasons. The requirement in s 89(1) for the Tribunal to serve a copy of its decision on each party, only applies to circumstances where the Tribunal "makes an original decision or determines an application for the review of a reviewable decision." The appellants' application was not being finally determined as the jurisdiction issue only applied to one aspect of their application. For that reason, the parties were not provided with a copy of the transcript of the reasons for the jurisdiction decision. 19 The Tribunal has a further 28 days after receiving a request for written reasons to give the party those reasons. The written reasons can be the transcript of the oral reasons. In this case, by delivering oral reasons for its decision, the Tribunal discharged the functions committed to it by statute. There is no statutory requirement for an oral decision on a preliminary or interlocutory matter to be reduced to writing unless a request is made for written reasons. If such a request is made, the Tribunal's usual practice is to advise the Member concerned that such a request has been received and that they may wish to correct any typographical errors in the transcript. No party requested written reasons for the Tribunal's decision on jurisdiction. As there is no requirement for a decision to be formally "handed down" or drawn up as a record of the Tribunal before it takes effect, the transcript of the oral reasons is the Tribunal's decision. 20 Because the Tribunal had already discharged its functions by the giving of oral reasons, there is no need for us to address the second question posed by Gleeson CJ in Bardwaj as to the circumstances in which a Tribunal may revisit its decision if it has failed to discharge its functions. Unlike the situation in Bardwaj, there was no suggestion that the Tribunal had committed any jurisdictional error, such as a breach of procedural fairness, which may have permitted the Tribunal to re-visit its oral decision. 21 This analysis leads us to conclude that the Tribunal's decision in relation to jurisdiction in its written reasons at [23] is invalid. The operative decision is the Tribunal's oral decision that it has jurisdiction to review the conduct of the first respondent in relation to collection of personal information. None of the parties has appealed against that decision and the Appeal Panel makes no orders in relation to it. It is nevertheless open to the first respondent to lodge a late Notice of Appeal against the Tribunal's oral decision on jurisdiction. The Appeal Panel would then decide, pursuant to s 113(3) of the ADT Act, whether to allow further time than the usual 28 days for the appeal to be made. If there is no appeal against the oral jurisdiction decision, the appeal is not accepted out of time or the appeal is unsuccessful, the Tribunal will need to determine the appellants' application in relation to the collection of personal information. Transaction 1 - conversation with Principal 22 Error in finding of fact. According to the appellants, the Tribunal erred by finding the following highlighted facts at [20] and [25]: 20. In the COPS report of 5 November 2000, there is reference to the argument being caused by a mobile phone bill and that the mother of GE was advised that the child might be in need of a "care warrant" if she refuses to stay at home. The same COPS record also sets out an entry relating to the police visit to the principal at the school on 10 November 2000. It sets out details that the principal divulged to the police officers that day. The officers were, in part, following up on the events of 5 November, and were also following up a further incident whereby it was alleged that GD had " harassed" younger brother of GE at school. 25 On my reading of the COPS report relating to the day, I find that the police officers were investigating a number of issues on that day that plainly included the alleged assault by GE on her mother (and by her mother on her). This is evident by the words in the report "The [principal] was aware of what had gone on as GE had presented herself to him on Monday with allegations that she had been assaulted at home." 23 The challenged finding in [20] and [25] relate to the purpose of the police officers' visit to the High School on 10 November 2000. The Tribunal concluded that the disclosure of personal information by police to the Principal on 10 November 2000 was not in breach of s 18 of the PPIP Act because the disclosure came within the exception in s 23(5)(d)(ii). That exception relates to disclosures that are reasonably necessary in order to investigate an offence where there are reasonable grounds to believe that an offence may have been committed. The appellants presented their evidence and submissions on the applicability of this exception. 24 The classic statement of the law on when a finding of fact can constitute an error of law was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. That decision has been applied consistently by the Supreme Court and the Court of Appeal since 1985 and is binding on the Appeal Panel. In the course of his judgment in Azzopardi, Glass JA with whom Samuels JA agreed, said at 155-156 that: To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. 25 This is sometimes called the "no evidence" rule and is regarded as an element of natural justice or procedural fairness. In this case the Tribunal's findings was not wrong in fact for any of the reasons set out in Azzopardi. The Tribunal based its finding on probative evidence, namely the COPS report of 5 November 2000. Consequently this ground of appeal fails. Transaction 3 - Principal's letter to NSW Police 26 Before the Tribunal, both respondents submitted in relation to transaction 3 (the letter from the Principal to Chief Inspector Donovan) that the content of that letter was not "personal information" because it came within the exception to the definition of personal information contained in s 4(3)(h) of the PPIP Act. Under s 4(3)(h), personal information does not include: information about an individual arising out of a complaint made under Part 8A of the Police Service Act 1990. 27 The Police Service Act 1990 has been amended by the Police Service Amendment (NSW Police) Act 2002. The relevant Act is now the Police Act 1990, (the Police Act) which establishes NSW Police (previously Police Service). Some of the provisions of Part 8A have been amended since its commencement in 1998, but none of those amendments is material to any of the issues to be determined in these proceedings. Consequently we will refer in these reasons to the current legislation which is the Police Act. 28 On 17 October 2001 Chief Inspector Donovan wrote to the Principal of the High School. The first part of that letter was as follows: ... I would appreciate your assistance in regard to a complaint inquiry I am conducting that has been levelled against Macquarie Fields officers, Holdem and Mitchell. The issue concerns the police response to an event involving (GE) that occurred between her and her mother on or about 5/11/00 ... The subject complaint revolves around the alleged inaction of police in response to her (GE) claim of assault on 5/11/00, a claim that is disputed by the officers as having not been reported to them. 29 The letter went on to ask nine specific questions about whether GE reported an assault to the school and, if so, the school's reaction to that report. The letter concluded with the following: I am providing a report for the information of the Ombudsman and I consider that any input from both yourself and the school counsellor would be particularly relevant. 30 The Principal's response, dated 23 October 2001, addressed the specific questions posed in Chief Inspector Donovan's letter and offered further background information which, the Principal noted, "may or may not be relevant to your investigation." 31 The Tribunal's conclusion, recorded at [30] to [31] was that: I accept the submissions from the Privacy Commissioner that on a proper construction of section 4(3)(h) of the Act, the exemption relates to information created or revealed as a result of an investigative process and not to information that is only linked in some indeterminate way with the investigation. I consider that the principal's response in his letter dated 23 October 2001 properly addressed the questions raised by the letter from police service and was wholly information arising out of the Part 8A complaint. Accordingly, none of information conveyed by the principal was "personal information" and the Act did not apply to it at all. This finding applies to both respondents. 32 Two issues arise. Was the complaint made by GA a complaint "made under" Part 8A of the Police Act and if so, did the letter from the Principal to Chief Inspector Donovan responding to his request for information "arise out of" that complaint? Was the complaint made under Part 8A of the Police Act 1990? 33 Legislative framework. Part 8A of the Police Act 1990 is headed "Complaints about conduct of Police officers" and has nine divisions (s 121 to s 172). Section 126 gives any person the right to make a complaint about the conduct of a police officer. That right does not affect any other right of a person to complain about the conduct of a police officer. GA submitted that he made a complaint under Cl 20 of the Police Regulation 2000, not under Part 8A of the Police Act. Cl 20 states that: (1) If: (a) an allegation is made to a police officer that another police officer has engaged in conduct which, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct, or (b) a police officer sincerely believes that another police officer has engaged in any conduct of that kind, the officer is required to report the conduct or alleged conduct by the other officer to a senior police officer (being a police officer who is more senior in rank than the officer making the report). (2) This clause does not apply to conduct or alleged conduct: (a) that has been made the subject of a complaint under Part 8A of the Act, or (b) that has been the subject of evidence or other material given, or submissions made, in the course of criminal proceedings, or (c) that has already been reported under this clause to a senior police officer. (3) A senior police officer to whom conduct (or alleged conduct) by a police officer is reported is required to report it promptly to the Commissioner or a police officer nominated by the Commissioner if the senior police officer believes that the conduct (or alleged conduct): (a) constitutes (or would constitute) a criminal offence, or (b) could provide sufficient grounds: (i) for taking section 73 dismissal action, or (ii) for making a reviewable section 173 order or a section 181D order. 34 Clause 20 states that certain procedures must be followed if a person alleges that a police officer has committed a criminal offence or other misconduct. The police officer to whom those allegations are made, and the senior police officer to whom they are subsequently reported, must report those allegations to the Commissioner or his nominee if they believe that they meet certain statutory requirements. However, if the conduct or alleged conduct is the subject of a complaint under Part 8A of the Act, Cl 20 does not apply. According to GA, he initially complained to Greg Peters at Macquarie Field Police Station and that complaint was made under Cl 20. 35 We do not accept GA's submission that his complaint was made under Cl 20, rather than Part 8A. Clause 20 does not give GA a right to complain, it merely sets out the procedures to be followed if certain allegations against police officers are made. It is not an alternative complaint procedure to Part 8A of the Police Act, but a regulation designed to give effect to the Act. Section 219 of the Police Act, the regulation making provision, gives the Governor power to "make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act." In particular, the regulations may make provision, as it does by Cl 20, for "the reporting by police officers of misconduct or unsatisfactory performance of other police officers." For those reasons, we reject GA's submission that he did not make a complaint under Part 8A because he made a complaint under Cl 20 of the Police Regulation 2000. 36 Apart from an alleged right to complain under Cl 20, no statutory complaint procedure, other than Part 8A of the Police Act, was brought to the Appeal Panel's attention. Consequently, GA's complaint will have been made under Part 8A if it meets all the statutory requirements of that Part. Those requirements are that the complaint: · be in writing (s 127(1)); · be communicated to certain people in a certain manner (s 127(2)); · relate to certain kinds of conduct (s 122(1)); and · not be excluded from being made under Part 8A (s 122(2). 37 Contrary to GA's submission, it is not necessary for either GA or a police officer to expressly identify the complaint as a Part 8A complaint for it to have been made under that Part. In any case, there is as at least one reference in the police documents to a provision of Part 8A, namely section 145(3) of the Police Service Act 1990 (now repealed). (See Annexure W to GA's affidavit of 22 May 2003.) The way in which police officers deal with the complaint after it is received is not determinative of the question as to whether it is a complaint made under Part 8A of the Police Act. 38 Complaint in writing. GA's submitted to the Appeal Panel that his initial complaint was reported to Chief Inspector Greg Peters at Macquarie Fields Police Station on 17 September 2001. He failed to mention to the Appeal Panel that in the chronology handed up to the Tribunal, he suggested that the complaint was made in writing. That chronology states as follows: "17 SEP 2001 Formal Part 8A complaint dated 28/8/01 served on police regarding all issues." The "complaint dated 28/8/01" was not tendered in evidence before the Tribunal, but it was referred to in a report of Detective Acting Inspector Kelly which was Annexure W to GA's affidavit of 22 May 2003. Under the heading "Background" Detective Kelly wrote: An initial complaint dated 28 August 2001 received in this matter was allocated to Chief Inspector Donovan who completed a comprehensive investigation on 3 December 2001 at the Macquarie Fields LAC. The complainant, (GA) has expressed concerns that he was not interviewed … " 39 Later in the report Detective Kelly notes that "...the letter of complaint dated 28 August 2001 is co-signed by all relevant persons ... " While the letter itself was not in evidence, GA's reference to it together with the references in Detective Kelly's report, is sufficient to support a finding that GA made a complaint in writing as required by s 127(1). 40 Mode of communication. Under s 127(2), a complaint is deemed to be made to the Commissioner if, among other things, it is delivered to a police officer personally, or it is received by a member of NSW Police by post, facsimile or electronic mail. Again, there was no direct evidence as to how or to whom the letter of 28 August 2001 was communicated. The evidence in GA's chronology was that on 17 September 2001 GA "served" the complaint on police. He also told the Appeal Panel that his initial complaint was reported on 17 September 2001 to Chief Inspector Greg Peters. The evidence from Detective Kelly's memorandum is that a complaint was "received" by NSW Police and allocated to Chief Inspector Donovan. This evidence is sufficient to support a finding that the letter was communicated in a way which complied with s 127(2) of the Police Act. 41 Nature of the conduct. The kinds of conduct about which a person may complain under Part 8A are listed in s 122. That conduct ranges from conduct that constitutes an offence, to conduct that, while not unlawful, is unreasonable. The conduct about which GA complained was the police response to an event involving GE that occurred between her and her mother on or about 5 November 2000. At the very least, GA was complaining that the police's conduct was unreasonable. Consequently the complaint meets the requirements of s 122. 42 Exclusion from Part 8A. Section 122(2) provides that: This Part does not apply to or in respect of a complaint of a kind that (in accordance with guidelines agreed between the Police Integrity Commission and the Ombudsman after consultation with the Commissioner) need not be dealt with in accordance with this Part. 43 The guidelines referred to in this provision, if they exist, were not before the Tribunal. On the basis of all the evidence, it was open for the Tribunal to find that s 122(2) did not apply. Alternatively, even if such guidelines were in force at the relevant time and the complaint made by GA comes within those guidelines, that does not mean that the complaint was not made under Part 8A as required by s 4(1)(b). It merely means that Part 8A does not apply to that complaint and it did not have to be dealt with under that Part. For that reason, guidelines made pursuant to s 122(2) do not exclude the operation of s 4(1)(b) of the PPIP Act if a complaint is made under Part 8A. 44 The complaint that GA made to police on 17 September 2001 by letter dated 28 August 2001, meets all the statutory requirements for a complaint made under Part 8A of the Police Act 1990 and is not excluded by any exception from being a complaint made under that Part. Consequently we agree with the Tribunal's finding that the complaint was "made under" Part 8A as required by s 4(1)(b) of the PPIP Act . Did the letter from the Principal "arise out of" GA's complaint? 45 Under s 4(3)(h) of the PPIP Act, the information in the Principal's letter will not come within the definition of "personal information" if it is "information about an individual arising out of" GA's complaint. The Tribunal accepted the submissions from the Privacy Commissioner that on a proper construction of the section 4(3)(h) of the Act, "the exemption relates to information created or revealed as a result of an investigative process and not to information that is only linked in some indeterminate way with the investigation. The Tribunal concluded at [31] that: I consider that the principal's response in his letter dated 23 October 2001 properly addressed the questions raised by the letter from police service and was wholly information arising out of the Part 8A complaint. 46 GA made several submissions in relation to the Tribunal's conclusion. Essentially the Appeal Panel's response to these submissions depends on the statutory construction of the words "arising out of a complaint". Section 33 of the Interpretation Act 1987 requires the Tribunal to take a "purposive" approach to interpreting these words. Section 33 provides that: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 47 This provision requires a court or Tribunal to take into account the purpose of the legislation even if the meaning of the provision is clear. The court or Tribunal should consider the purpose of the legislation to determine whether there is more than one possible construction. If there is, then the construction which is consistent with the purpose of the legislation should be preferred. (Mills v Meeking (1990) 91 ALR 16 at 30-31.) 48 In general, the purpose of the PPIP Act, as reflected in its long title, is "to provide for the protection of personal information, and for the protection of the privacy of individuals." The PPIP Act is beneficial legislation and should be interpreted broadly so that people can obtain the maximum benefit from the rights they are afforded. Section 4(3)(h) provides an exception to the kind of information that is protected by the Act and should, for that reason, be interpreted narrowly. This accords with High Court authority that a statutory provision which purports to make incursions into principles of free speech should be interpreted narrowly. (Brown v Classification Review Board (1998) 154 ALR 67 at 76-78; and Coco v The Queen (1994) 179 CLR 427 at 437.) 49 The ordinary meaning of the words "arising out of" in s 4(3)(h) can be ascertained with reference to an authoritative dictionary. The almost identical phrase "arise from" is defined in the Macquarie Dictionary, 3rd edition, Macquarie Library as "to result or proceed from". The appellants urged the Tribunal and the Appeal Panel to adopt an extremely narrow definition of the phrase. They said that the only information which arises out of a complaint under Part 8A is the information in the complaint itself. In our view that is too narrow a reading of the phrase because it does not give effect to the purpose of the exception which is to exclude information resulting from, not just contained in, a complaint. 50 Under s 139 of the Police Act, after receiving a complaint under Part 8A, the Commissioner must decide whether or not to investigate that complaint. If he or she decides to investigate the complaint, then that investigation is to be carried out in accordance with the provisions of Division 5 of Part 8A. It follows that an investigation carried out under Part 8A results or proceeds from the complaint at least in a general sense. Accordingly, information collected, used or disclosed during an investigation into a complaint may, depending on its nature, arise out of that complaint. In coming to that conclusion we have rejected the appellants' submission that the legislature did not intend to exempt the PPIP Act from the investigation process because exemptions relating to law enforcement and investigative agencies are provided for in s 23 and s 24 respectively. Legislative provisions are to be interpreted in accordance with the purpose or object of the legislation as a whole, not in accordance with, or by reference to, particular provisions. 51 The appellants submitted that s 4(3)(h) only applies to information already held by NSW Police and not to the collection of the information by an agency or its subsequent disclosure to police officers. We agree with the submission of the first respondent that there is nothing in s 4(3)(h) which limits its application to information already held by NSW Police when the complaint is made. Such an interpretation does not take account of the statutory provisions of Part 8A which contemplate the investigation of complaints. Such an investigation necessarily involves the collection and disclosure of information. The first respondent only relied on s 4(3)(h) in respect of the disclosure of information to the police, that is the letter from the Principal to Chief Inspector Donovan. 52 The appellants' alternative submission, as we understand it, was that information arising out of the complaint does not include information that is unrelated to the subject matter of the complaint. The Tribunal decided that the exemption did not apply to information that is only linked in some indeterminate way with the investigation but concluded that the information in the Principal's letter did arise out of the complaint. 53 The appellants submitted that the "background information" provided by the Principal did not "arise out of" the complaint. The crux of their submission was that the extra information was, at best, gratuitous. After answering each of the questions posed in Chief Inspector Donovan's letter, the letter went on to say: Can I offer the following background information, which may or may not be relevant to your investigation. 54 The letter went on to set out five points relating to GE's domestic circumstances and some of the appellants alleged involvement in a school fire. We set out that information below: 1. Mr and Mrs (parents of GE) separated some years ago. For several years (GE's mother) has lived with her three children and a same sex partner. GE has resented this arrangement. 2. GE had developed an increasingly intimate relationship with GC against the wishes of her mother. 3. GE has received ongoing support and encouragement from the (appellants') family since she left home following the assault incident. 4. The (appellant) family has had an unhappy relationship with the school including allegations to the Minister, which were subsequently shown to be false. 5. Following a fire in the school in June 2001 one of the (appellant) boys was apprehended by a security guard when he was seen leaving the building after police and fire brigade had left. He was consequently charged by Macquarie Fields police. Following this incident, (the boy) left school by his parents' choosing. 55 Point 3 relates to a question the Chief Inspector Donovan asked in his letter of 17 October 2001, namely "Do you consider that there has been any undue influence on (GE) by the family of her boyfriend?" However the remainder of the points set out above were not provided in response to any question asked by Chief Inspector Donovan and are not relevant to the complaint. That raises the issue as to whether information provided in response to a request for information about a complaint "arises out of" that complaint if it is not relevant to it. The background information provided by the Principal can be said to arise out of the complaint in a broad sense because that information would not have been provided "but for" Chief Inspector Donovan's request for information about the complaint. However, given the purpose of the legislation and the exception in s 4(3)(h), we consider that the phrase should be interpreted narrowly, but still in accordance with its ordinary meaning. Consequently, the exception will only apply to information which results or proceeds from a complaint and is relevant to that complaint. A broader interpretation would enable gratuitous information, such as some of the background information provided by the Principal, to be exempt from the provisions of the PPIP Act. 56 It follows that we consider that the Tribunal erred in its interpretation of the phrase "arising out of a complaint" in relation to the background information at points 1, 2, 4 and 5 of the Principal's letter. We set aside that part of the Tribunal's decision which concluded that that information came within the exception in s 4(3)(h) and remit that matter to the Tribunal as originally constituted, to be determined either with or without the hearing of further evidence. The Tribunal will have to go on to determine whether the disclosure of that information was in breach of the PPIP Act as alleged by the appellants. Other grounds of appeal re transaction 3 57 Administrative function. Section 27(2) of the PPIP Act makes it clear that the Information Protection Principles apply to NSW Police in connection with the exercise of their administrative and educative functions. GA submitted that as the investigation of his complaint was the exercise of an administrative function, the IPP's apply. This submission is misconceived because s 4(3)(h) exempts certain kinds of information from the definition of "personal information". Once such information is outside that definition, the question of whether or not police officers are exercising an administrative function in relation to that information does not arise. 58 Exclusion of evidence. According to the appellants, the Tribunal wrongly excluded the evidence of GD in relation to the "inaccurate" information about GD and his connection to the school fire. In addition, the appellants contended that the Tribunal excluded relevant hearsay evidence about who was responsible for the school fires. These grounds of appeal arise from the fact that the Principal said in his letter of 23 October 2001, that: Following a fire in the school in June 2001 one of the (name deleted) boys was apprehended by a security guard when he was seen leaving the building after police and fire brigade had left. He was subsequently charged by Macquarie Fields police. 59 The Tribunal concluded that the entire content of the information in the Principal's letter was not personal information because it came within the exclusion in s 4(3)(h). Having come to that conclusion, it was not necessary for the Tribunal to make a finding as to whether the content of that letter was accurate. That may or may not be an issue to be determined when the matter is remitted to the Tribunal. Further grounds of appeal 60 Procedural fairness. The appellants submitted that the Tribunal had breached the rules of procedural fairness in two respects. Firstly, that the appellants were "caught by surprise" by the respondents' late claim for an exemption on the basis of directions made by the Privacy Commissioner under s 41 of the PPIP Act. The Tribunal made it clear at [33] that the appellants agreed that those directions applied. The appellants' grievance was that the late notice given to them in relation to those Directions meant that they wasted time preparing aspects of their case which were made redundant because of the directions. The principles of procedural fairness which the Tribunal is obliged to afford are reflected in the ADT Act especially by s 73(4) which states that: (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. 61 The appellant's grievance in relation to delay and wasted effort as a result of the late reliance on s 41 directions, does not raise a question of procedural fairness. On that basis, we reject this ground of appeal. 62 The second issue in relation to procedural fairness was that the Tribunal allowed the first respondent's witness to precede the applicants' case at the first hearing date. According to the appellants, the Tribunal should have recalled the Principal but instead "the Tribunal maintained the resulting prejudice to the applicants by refusing to allow any evidence from the applicants that contradicted the false evidence of the Principal." The appellants contend that the Tribunal conceded that it should not, in hindsight, have allowed the Principal to give evidence first because the applicants had not formulated the bulk of their evidence. 63 We assume that the reason for any difficulty faced by the appellants during the course of the hearing was that they had not complied with the rule Browne v Dunn (1893) R 67 in relation to parts of the Principal's evidence. That meant that they could not subsequently suggest that that evidence was not correct. The purpose of the rule in Browne v Dunn is to secure fairness to the witness, and the party calling the witness, by giving that witness the opportunity to comment or give an explanation. The order in which witnesses give evidence is a matter of procedure for the Tribunal to determine pursuant to s 73(1) of the ADT Act. If the appellants were disadvantaged by the order in which witnesses gave their evidence, either though a lack of knowledge of the rule in Browne v Dunn or otherwise, that is not an issue that raises a question of law. 64 Inadequacy of reasons. The appellants made a blanket assertion that the Tribunal had failed to provide adequate reasons for various parts of its decision. The appellants failed to identify the nature of the alleged inadequacy. The Appeal Panel has previously dealt with the requirement for adequate reasons in Minister for Community Services -v- CE (No.1) (CSD) [2002] NSWADTAP 7 and Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8; and Peter Roberts Motors Pty Ltd v Moreira & anor (EOD) [2002] NSWADTAP 44. Applying the principles enunciated in those decisions we do not agree with the appellants' assertion that the reasons are inadequate. Extension to the merits 65 In relation to the grounds of appeal that do not raise a question of law, the Appeal Panel has consistently held that it is necessary for the appellant to identify possible legal errors before it would contemplate extending an appeal to the merits of the decision. In Brandusoiu v Commissioner of Police [1999] 8 NSWADTAP the Appeal Panel said, at [4] that: It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established. 66 Adopting that approach in the present case, we decline to grant leave to extend the appeal to the merits of the decision. Orders The appeal is dismissed except in relation to the ground of appeal set out in order 2. 2. That part of the Tribunal's decision which concluded that the information in Points 1, 2, 4 & 5 on page 2 of the Principal's letter dated 23 October 2001 came within the exception in s 4(3)(h) of the PPIP Act is set aside. The information in those paragraphs is remitted to the Tribunal as originally constituted, to be determined either with or without the hearing of further evidence.

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