NSW Self Insurance Corporation v EEH

NCAT Appeal Panel|2023-04-21

Introduction

This is an appeal against a decision of the Tribunal upholding an application for review of a decision of the appellant to dismiss an application by the respondent under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). In the decision under appeal (EEH v NSW Self Insurance Corporation [2022] NSWCATAD 361) the Tribunal found that the appellant had breached a number of information protection principles in respect of personal information of the respondent and made orders requiring the appellant to take steps to rectify those breaches, including providing an apology.
To preserve the privacy of their personal affairs, the Tribunal made orders prohibiting the publication of the name of the respondent, who was referred to in the Tribunal's decision as EEH. We will make similar orders and also refer to the respondent as EEH.
The appeal was lodged on 8 December 2022. On 13 January 2023 the Appeal Panel stayed the operation of the orders of the Tribunal until further order of the Tribunal or finalisation of the appeal, whichever is the earlier.
The respondent did not appear at the hearing of the appeal, which took place on 21 April 2023. The appellant provided evidence that the appellant's appeal bundle, including the Notice of Appeal, the appellant's written submissions and the orders of the Appeal Panel fixing the appeal for hearing, were sent by post to the respondent's last known address, as permitted by rule 13(2)(b)(ii) of the Civil and Administrative Tribunal Rules 2014 (NSW), and that tracking data recorded the package as having been delivered.
The appeal hearing proceeded in the absence of the respondent.

The decision

The Tribunal determined the application on the papers. By the decision, published on 10 November 2022, the Tribunal dismissed the claim that the appellant had collected the respondent's personal information by unlawful means, but concluded that the appellant had breached each of IPP's 1, 2 and 5 (as set out in ss 8(1), 9 and 12 respectively of the PPIP Act) and ordered: (1) Within 30 days of the date of these Reasons for Decision the Respondent must: (a) permanently and securely redact or delete in accordance with IPP 5(b) all of the Applicant's personal information which has been found in these Reasons for Decision to have been collected and/or is being held by the Respondent in breach of any of IPPs 1, 2 and/or 5 (i) contained in all copies of the Deed held by or under the control of the Respondent and (ii) which has otherwise been extracted or copied from the Deed and is held in any records of or under the control of the Respondent. This personal information includes, at a minimum, paragraphs D, E, F and G, the definitions of "Claims" and "[Name] Private Prosecution", clauses 2 and 6 and Schedules 1, 2, 3, 4, 5 and 10 of the Deed; and (b) provide to the Applicant an unreserved formal written apology addressing and apologising for the Respondent's breaches of IPPs 1, 2 and 5 as identified in these Reasons for Decision and for all harm, distress, loss and embarrassment caused to the Applicant resulting from such. (2) The Respondent must give the Applicant written notice of its compliance with Order (1)(a) above within 14 days of the date that the Respondent complied with that Order.
In so finding, the Tribunal accepted, at [54], that: "… there may be a lawful purpose related to a function or activity of the Respondent as regards the collection of relevant personal and/or health information of the Applicant by the Respondent to manage and pay the Applicant's workers compensation claims settled as part of the Deed of Release (WC Function). The settlement of the relevant workers compensation claims included, in this case, discussions with and the approval of EML (on behalf of the Respondent) as noted in the Deed. Even though neither the Respondent nor EML on its behalf was a party to the Deed, the Deed recognises the Respondent's role in assisting with the settlement of the workers compensation claims as the "workers compensation insurer" and to perform the WC Function."
The Tribunal rejected submissions from the appellant that: 1. The appellant had not collected the respondent's personal information contained in the Deed, as it had not been solicited by the appellant; 2. The respondent had authorised the collection of the information in the Deed which was not relevant to the resolution of the respondent's workers compensation claims; 3. The collection of the information was "necessarily implied or reasonably contemplated by" the NSW Self Insurance Corporation Act 2004 (NSW) and the Workers Compensation Act 1987 (NSW), so that s 25(b) of the PPIP Act permitted the appellant's collection of the respondent's personal information other than directly from the respondent; 4. Section 26 of the PPIP Act exempted the appellant from compliance with IPP 2 (s 9 of the PPIP Act); 5. Section 21 of the State Records Act 1998 (NSW) required the appellant to retain the whole of the Deed.
Sections 25 and 26 of the PPIP Act provide: 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if - (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998). 26 Other exemptions where non-compliance would benefit the individual concerned (1) A public sector agency is not required to comply with section 9 or 10 if compliance by the agency would, in the circumstances, prejudice the interests of the individual to whom the information relates. (2) A public sector agency is not required to comply with section 10, 18 or 19 if the individual to whom the information relates has expressly consented to the agency not complying with the principle concerned.
Sections 11 and 21 of the State Records Act relevantly provide: 11 Obligation to protect records (1) Each public office must ensure the safe custody and proper preservation of the State records that it has control of. (2) A public office must ensure that arrangements under which a State record that it has control of but that is in the possession or custody of some other person include arrangements for the safe keeping, proper preservation and due return of the record. (3) A public office must take all reasonable steps to recover a State record for which the public office is responsible and that the public office does not have control of, unless the record is under the control of the Authority or of some other person with lawful authority. 21 Protection measures (1) A person must not - (a) abandon or dispose of a State record, or … (d) damage or alter a State record, or … (2) None of the following is a contravention of this section - (a) anything done in accordance with normal administrative practice in a public office (as provided by section 22), (b) anything that is authorised or required to be done by or under this Act, or by or under a provision of any other Act that is prescribed by the regulations as being an exception to this Part, … (d) anything done pursuant to an order or determination of a court or tribunal, … (6) This section prevails over a provision of any other Act enacted before the commencement of this section. (7) An Act enacted after the commencement of this section is not to be interpreted as prevailing over or otherwise altering the effect or operation of this section except in so far as that Act provides expressly for that Act to have effect despite this section.
At the time of the decision, "State record" was defined in s 3 of the State Records Act as follows: State record means any record made and kept, or received and kept, by any person in the course of the exercise of official functions in a public office, or for any purpose of a public office, or for the use of a public office, whether before or after the commencement of this section.
That definition was amended with effect from 31 December 2022 by Schedule 4 to the Museums of History NSW Act 2022 (NSW). "State record" is now defined as follows: State record means a record made or received by a person, whether before or after the commencement of this section - (a) in the course of exercising official functions in a public office, or (b) for a purpose of a public office, or (c) for the use of a public office.
We do not consider that the amendment of the definition has any significance for the present appeal.

The nature and scope of internal appeals

By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The principles applicable to the grant of leave to appeal were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84].
At [84] the Appeal Panel held: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; …

Grounds of Appeal

The appellant set out, in an attachment to its Notice of Appeal, 10 "grounds of appeal" and 6 grounds seeking leave to appeal. It is convenient to set out the sixteen grounds in full. "1. The Tribunal erred in its application of s 8 of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") in that it imposed a threshold for the lawful collection of personal information by a public sector agency higher than that required by the "reasonably necessary" test that appears in s 8(1)(b) of the PPIP Act: [56], [58]. 2. The Tribunal erred by identifying the wrong issue or asking the wrong question with respect to the alleged contravention of s 8 of the PPIP Act, when it asked whether the collection of the Respondent's "Other Personal Information", being the personal information contained in Schedules 1, 2, 3, 4, 5 and 10 of the deed of release executed by the Respondent and the NSW Police Force ("NSWPF") on 22 November 2011 ("the Deed"), as opposed to the information contained in Schedules 1, 2, 3,4,5 and 10 of the Deed, was reasonably necessary for the claimed purpose for which the Deed (and the information in it) was collected by the Appellant: [56], [58]. 3. In the alternative to grounds 1 and 2 above, the Tribunal erred by: a failing to properly apply s 8 of the PPIP Act in determining that the Appellant had "collected" the Other Personal Information when that personal information was unsolicited by the Appellant within the meaning of s 4(5) of the PPIP Act and no decision had been made by the Appellant to make use of or take action in relation to any of the Other Personal Information: [73]; and b making a material finding of fact, where there was no evidence to support such a finding, that the Other Personal Information was accepted by, taken into the Appellant's possession and records and under the control of and/or used by the Appellant for its administrative purposes and/or purportedly for the "WC Function" (that is, to manage and pay the Respondent's workers' compensation claims settled as part of the Deed): [73]. 4. The Tribunal erred by denying the Appellant procedural fairness, in that it did not deal with a clearly articulated case that the Respondent expressly authorised collection of the Deed by Employers Mutual Limited ("EML") as agent for the Appellant from the NSWPF in the furtherance of the Appellant's functions as the NSWPF's workers' compensation insurer, and therefore was not required, pursuant to s 9 of the PPIP Act, to collect the Other Personal Information directly from the Respondent: [66]. 5. The Tribunal erred by making a material finding of fact, wholly unsupported by the evidence, that the Respondent had not authorised the collection of the Other Personal Information by the Appellant from the NSWPF or anyone else: [66]. 6. The Tribunal erred by failing to give proper consideration to the totality of the evidence contained in the Deed and elsewhere regarding the Respondent's authorisation provided to the Appellant to collect the Other Personal Information from the NSWPF. 7. The Tribunal misapplied the exemption to s 9 of the PPIP Act found in s 25(b) of the PPIP Act by asking the wrong question in determining whether that exemption applied, namely, whether collection of all of the Respondent's personal information contained in the Deed was necessarily implied or reasonably contemplated by the NSW Self Insurance Corporation Act 2004 ("the SICorp Act") or the Workers Compensation Act 1987 ("the WC Act"): [76] - [77]. 8. The Tribunal erred by failing to properly apply the exemption to s 9 of the PPIP Act found in s 26(1) of the PPIP Act, in considering that: a. the determination of whether or not the exemption applies calls for a balancing exercise between the potential prejudice to the interests of the individual to whom the information relates if the public sector agency were required to comply with s 9 of the PPIP Act on the one hand, and on the other hand, the potential prejudice to the interests of that individual if their privacy rights were not complied with by the agency; and b. a public sector agency is first required to attempt to comply with s 9 of the PPIP Act by asking the individual for their personal information, as a pre-condition to the operation of the exemption; ([79] - [80]). 9. The Tribunal erred at law in finding that s 12(a) of the PPIP Act required the Appellant to review the Deed and securely delete or redact the Other Personal information contained within it, in particular having regard to: a. the Appellant's obligations under ss 11(1) and 21(1) of the State Records Act 1998 ("the SR Act"); and b. the effect of s 21(6) of the SR Act, pursuant to which, an agency's obligations under s 21 of the SR Act prevail over its obligations under s 12(a) of the PPIP Act. 10. The Tribunal erred at law in failing to give adequate reasons for its decision in accordance with s 62(3) of the Civil and Administrative Tribunal Act, in that the Tribunal: a. failed to set out the Tribunal's understanding of the applicable law, particularly with respect to the "reasonably necessary" test for collection of personal information by an agency that appears ins 8(1)(b) of the PPIP Act; and b failed to explain the process which led the Tribunal to the conclusion it made. In particular, the Tribunal failed to provide adequate reasons with respect to: c. the reasons why the Tribunal was not satisfied that the collection of the Other Personal Information was not reasonably necessary for the Appellant's lawful purpose for which the Deed was collected; d. the reasons why the Tribunal was satisfied that the Other Personal Information could be taken to have been collected by the Appellant; and e. the reasons why the Tribunal was not satisfied that non-compliance with s 9 of the PPIP Act was necessarily implied or reasonably contemplated by the SICorp Act or the WC Act. Leave required 11. The Tribunal erred in finding that a significant part of the Respondent's personal information in the Deed, particularly the Other Personal Information, had no direct or apparent relevance to the resolution, settlement, subsequent payment or management of the Respondent's workers' compensation claims: [52]. 12. The Tribunal erred in finding that there was no lawful purpose directly related to a function or activity of the Appellant for it to collect the Other Personal Information in the Deed: [57]. 13. The Tribunal erred in finding that the Respondent did not authorise, constructively or otherwise, the collection of the Other Personal Information by the Appellant from the NSWPF or anyone else: [66]. 14. The Tribunal erred in finding that the Appellant had no separate entitlement to hold a copy of the Deed in its entirety: [68]. 15. The Tribunal erred in finding that it was no longer necessary for the Appellant to keep the Other Personal Information contained within the Deed: [69]. 16. The Tribunal erred in finding that the Other Personal Information was accepted by, taken into the Appellant's possession and records and under the control of and/or used by the Appellant for its administrative purposes and/or to manage the settled workers' compensation claims: [73]."
As expressed in the attachment to the Notice of Appeal, none of the appellant's grounds identify a question of law.
In Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [58]-[59] the Appeal Panel stated in respect of an appeal under s 80(2)(b) of the NCAT Act: "58 A Notice of Appeal is required to properly identify the questions of law which are the subject matter of the appeal. As the Court of Appeal stated in Ferella v Chief Commissioner of State Revenue (2014) 96 ATR 875; [2014] NSWCA 378 ("Ferella") at [22] in respect of an appeal from the Administrative Decisions Tribunal to the Appeal Panel (per White J, Barrett JA and Leeming JA agreeing): "As the notice of appeal to the Appeal Panel purported to bе ап appeal оп questions of law, it was necessary for the notice of appeal to identify precisely the particular question or questions of law. It was those questions, if there were any, that should have formed the subject matter of the appeal to the Appeal Panel unless leave were sought and obtained for a merits review [citations omitted]." 59 It is not enough to simply assert (as the appellant did), that the Tribunal erred in its construction and application of certain provisions of the PTA without also identifying how that purportedly occurred. Further, as Leeming JA stated in Ferella at [6], "it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal". What is required is that a particular question of law be identified for determination on the appeal."
That statement was referred to with approval by Leeming JA (with whom Meagher JA and Griffiths AJA agreed) when those proceedings were further appealed to the Court of Appeal: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26].
In the appellant's written submissions, the appellant grouped together the 16 grounds under five headings: Grounds 1-2, and 10 - 12: the collection of the Respondent's personal information was "reasonably necessary" Grounds 3 and 16: there was no collection of the Respondent's Other Personal Information Grounds 4 - 6 and 13: authorised collection Grounds 7 and 8: the exemptions to compliance with s. 9 of the PPIP Act Grounds 9, 14 and 15: the retention of the Respondent's personal information
Notwithstanding that the Notice of Appeal does not specifically identify any question of law, we will consider whether the appellant's submissions raise a question of law as well as whether leave to appeal should be granted.
It is convenient to deal with the appellant's grounds of appeal in the groups in which they are addressed in the appellant's written submissions.

First group - Grounds 1 - 2 and 10 - 12: the collection of the respondent's personal information was "reasonably necessary".

We have set out above (at [15]) paragraph [54] of the decision.
The Tribunal in that paragraph identified what it described as the "WC Function" of the appellant, being "to manage and pay the [respondent's] workers compensation claims settled as part of the Deed of Release".
At [55] - [58] the Tribunal held: 55 The Other Personal Information (relating to the allegations and claims settled in the Deed of Release other than the workers compensation claims) were separately dealt with in discrete sections and standalone schedules of the Deed. 56 I prefer the submissions of the Applicant that none of that Other Personal Information was reasonably necessary for the Respondent's claimed purpose for which the Deed (and the information in it) was collected by the Respondent, being the WC Function (i.e. the management and payment of the relevant settled workers compensation claims as per the terms and conditions of the Deed). 57 I also prefer the Applicant's submissions and evidence that, even if there was a lawful purpose for collecting the information in the Deed relevant to the WC Function, there is no lawful purpose for the Respondent to collect the Other Personal Information in the Deed and such has not been established by the Respondent as directly related to the WC Function or another function or activity of the Respondent. 58 Even if it could be argued that there was a lawful purpose for collecting the Other Personal Information (i.e. it was directly related to the WC Function), I am satisfied that the Respondent fails in respect of IPP 1(1)(b) because I find (in the absence of any compelling submissions or evidence of the Respondent to the contrary) that the Other Personal Information was not reasonably necessary for the Respondent's performance of the WC Function.
The appellant submitted that the Tribunal had applied the wrong test in determining that the collection of the respondent's personal information in schedules 1, 2, 3, 4, 5 and 10 to the Deed (the "Other Personal Information") was not reasonably necessary for a lawful purpose directly related to a function or activity of the appellant.
The appellant referred to the Appeal Panel decision in ALZ v WorkCover NSW [2015] NSWCATAP 138 at [51] which held that "reasonably necessary" in s 8(1)(b) of the PPIP Act meant something falling "towards the higher end of a continuum that might be seen as having 'of some relevance' at one end and 'essential' at the other end".
The appellant submitted that the Tribunal did not explain how it reached the conclusion that the appellant had not met the standard. The appellant submitted that the Tribunal: "indicated only that it preferred the submissions of the Respondent that none of the Other Personal Information was reasonably necessary for the Respondent's claimed purpose for which the Deed (and the information in it) was collected, namely, the management and payment of the relevantly settled worker's compensation claims."
The appellant submitted that, in that respect, the Tribunal had failed to provide adequate reasons for its conclusion.
The appellant further submitted: "The Tribunal appears to have concluded that because the Other Personal Information had no direct or apparent relevance to the resolution or management of the Respondent's workers' compensation claims, that information was not absolutely necessary in order for SICorp to pay and manage those claims, and as a result, the test for lawful collection posed by s. 8(1)(b) had not been met. But this is not what the words of the provision require. The provision asks whether the collection of the information was reasonably necessary. The whole Deed, not only the parts of it specifically relevant to the workers' compensation claims, was required for SICorp properly to fulfil its functions. It is axiomatic that a deed must be construed as a whole. The principles that apply to the construction of contracts also apply to the construction of deeds. As with a contract, the construction of a deed involves determination of the meaning of the words of the deed by reference to its entire text, context and purpose [citing Victoria v Tatts Group Ltd [2016] HCA 5; 90 ALJR 392 at [51] and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at [46] - [51]]."
The appellant also referred to Else v Service NSW [2021] NSWCATAD 172, where the Tribunal (at [95]) determined that "necessary" in s 17(c) of the PPIP Act meant "reasonably appropriate and adapted". In reaching that conclusion, the Tribunal in Else v Service NSW referred to Mulholland v Australian Electoral Commission (2004) 220 CLR 181 and ALZ v SafeWork NSW [2017] NSWCATAP 51 at [82]. In the latter case the Appeal Panel held that the PPIP Act (and other privacy legislation) "strikes a balance between the rights of individuals to privacy and the need for agencies to carry out their legitimate functions efficiently and effectively" and that the "assumption that the legislation should be interpreted in a way which protects [an individual's] privacy to the greatest extent possible is not correct".
The appellant submitted: "28. As a matter of principle, where the same word or phrase appears in the one statute, it is presumed to have the same meaning throughout unless expressly or by implication from its context, the statute provides otherwise." If the definition given by the Tribunal in Else to the word "necessary" as it appears in s. 17(c) of the PPIP Act were applied to the word necessary as it appears in s. 8(1)(b), it is submitted that what may be seen as "reasonably necessary" would fall lower in the continuum between "of some relevance" and "essential" than the Tribunal's current approach to s. 8(1)(b) (as articulated by the Appeal Panel in ALZ v WorkCover) would suggest. Given this apparent tension between the Tribunal's established approach to s. 8(1)(b) of the PPIP Act, and the Tribunal's recent decision in Else, it is submitted that the circumstances of this case warrant the Appeal Panel revisiting the issue of the meaning to be given to the words "reasonably necessary" as they appear in s. 8(1)(b) of the PPIP Act. However, on either view, whether or not the meaning of the expression "reasonably necessary" hovers somewhere lower than essential but more than merely useful, or whether it means something equivalent to what would be reasonably appropriate and adapted, the threshold or standard applied by the Tribunal in this case for the lawful collection of the Respondent's personal information was too high. The collection of the Deed, which by necessity meant all of the information contained within in it, was reasonably necessary for the performance by SICorp of its WC Function."
The appellant further submitted: "29. It is also apparent that, by asking whether the collection of the Respondent's Other Personal Information (that is, the personal information contained in Schedules 1, 2, 3, 4, 5 and 10 of the Deed) was reasonably necessary for the claimed purpose for which the Deed (and the information in it) was collected by SICorp, that the Tribunal erred by asking itself the wrong question. This is the error of law for which SICorp contends in Ground 2. The terms of s. 8(1)(b) ask whether "the collection of the information" (which constitutes personal information) is reasonably necessary, not whether the collection of the information as personal information was reasonably necessary. The distinction, though subtle, is not merely semantic. It is important, because the use of the word "information" alone in s. 8(1)(b) suggests a deliberate choice on the part of the legislature to impose on a public sector agency a lower threshold for the lawful collection of an individual's personal information than might otherwise be the case. It is not necessary for the agency to consider whether it is possible to achieve the identified purpose without collecting personal information. Rather, the question posed by s. 8(1)(b) is only whether the collection of the information, which constitutes personal information, is reasonably necessary for the lawful purpose for which it has been collected. The collection by SICorp of the information in the Deed, which in part constituted the Other Personal Information, was reasonably necessary for it to manage and pay the relevant workers' compensation claims that were resolved as between the Respondent and the NSWPF, by way of the Deed."
In seeking leave to appeal, the appellant submitted that the Tribunal made errors of fact in that: "the Tribunal erred in finding (at [52] of the Decision) that a significant part of the Respondent's personal information in the Deed, particularly the Other Personal Information, had no direct or apparent relevance to the resolution, settlement, subsequent payment or management of the Respondent's workers' compensation claims"; and that "the Tribunal also erred in finding (at [57]) that there was no lawful purpose directly related to a function or activity of SICorp for it to collect the Other Personal Information in the Deed. The collection of all of the information in the Deed was reasonably necessary for the lawful purpose of resolving the Respondent's workers' compensation claims."
The appellant submitted: "… The relevance of the Other Personal Information to the resolution, settlement, payment and management of the Respondent's workers' compensation claims ought to have been plain to the Tribunal: it formed part of a deed of settlement by which those workers' compensation claims were resolved. 31. The Deed created rights and obligations as between the parties in relation to all claims brought and allegations made against the NSWPF. It effected a holistic settlement. That this was the case is apparent on the face of the document. Unsurprisingly, given the purpose of the Deed, the clauses interact with and refer to each other. Accordingly, in order to give effect to those rights and obligations as they pertained to the workers' compensation claims, SICorp required the Deed in its entirety. For example, clause 3, which creates an obligation on the NSWPF (and SICorp standing in its shoes as effectively its insurer) to pay the Respondent an amount by way of settlement of his workers' compensation claims. This clause commences with the words: "Subject to clause 2". Clause 2, which contained the Respondent's Other Personal Information (and which the Tribunal ordered to be permanently and securely redacted or deleted) was therefore of direct relevance to the resolution, settlement, subsequent payment or management of the Respondent's workers' compensation claims as SICorp was required to read it in order fully to understand the nature of the obligations and rights created by clause 3. By way of further example, in clause 3 of Schedule 9 to the Deed, it is provided that the Respondent acknowledged that NSWPF and its workers compensation insurer (SICorp/EML) "consents to the Deed of Release herein by way of compromise ...". This makes plain that the Deed in its entirety (including the Other Personal Information), and not only those parts bearing express relevance to the workers' compensation claims, were relevant to the resolution, settlement, payment and management of the Respondent's workers' compensation claims."

Consideration

Clauses 2 and 3of the Deed relevantly provided as follows: "2.1 Payment Subject to clause 3, NSWPF will pay the sum of [$xxxx] (Settlement Sum) to [EEH], no more than 10 Business Days after satisfaction of the condition precedent in clause 1.4 (Due Date) in full and final settlement of [a number of matters including matters listed in schedules 1, 2 and 3 but not including workers compensation claims] … 3.1 Subject to clause 2, NSWPF agrees to pay: (a) to [EEH] an amount of [$xxxx] for permanent loss compensation pursuant to Sections 66 and 67 of the Workers Compensation Act 1987 …; (b) to [EEH] an amount of [$xxxx] for damages (clear of workers compensation payments made to date and inclusive of costs); (c) to Medicare [a sum in satisfaction of a claim by Medicare to reimbursement of benefits], with such compensation and damages being in full and final satisfaction of the injuries as set out in this document. 3.2 The parties agree that the payment referred to in clause 3.1 does not constitute an admission of liability by NSWPF in respect of any claim or allegation made by [EEH]. 3.3 In consideration of the payment referred to in clause 3.1 [EEH] releases and will release NSWPF and each of its related bodies corporate, officers, employees, successors, heirs and assigns from all Claims and liabilities of any nature (including any costs) connected with or incidental to [the workers compensation claims identified in the Background clauses to the Deed and injuries of any kind (excluding claims in respect of exposure to asbestos) resulting from EEH's employment with the NSWPF]. 3.4 [EEH], as a condition of this settlement and in consideration of the sums of money paid by NSWPF in clause 3.1 undertakes to: … (c) execute a letter to Employers Mutual Limited and NSW Police Force formally requesting that [a specified workers compensation claim] be finalised and closed; (d) make admissions in respect of [the injury the subject of the specified workers compensation claim]
Clause 3.5 required the parties to execute documents required to give effect to the transaction, including Schedules 8 and 9. Schedule 8 was the letter to EML required by clause 3.4(c) and Schedule 9 set out the admissions required by clause 3.4(d).
The execution by EEH of the letter to EML and the NSW Police Force and the making of the admissions were also identified as conditions precedent to the operation of the Deed in clause 1.4.
It is clear in our view that the appellant required a copy of the Deed to fulfil its function of making payments to the respondent in respect of their workers compensation claims in accordance with the resolution of those claims documented by the Deed. Without access to the Deed, the appellant would not have been able to verify EEH's compliance with clause 3.4.
It is equally clear in our view, that it is not appropriate to seek to sever parts of the Deed. The appellant is correct in submitting that the Deed is required to be read as a whole. In the event that any dispute arose concerning compliance with the terms of the Deed, including payments in respect of the respondent's workers compensation claims, which required the appellant, in its function of administering the workers compensation claims, to rely upon any term of the Deed, a Court or Tribunal determining that dispute would expect to be provided with the whole of the Deed.
In this context we do not consider it necessary to determine whether the Tribunal made an error with respect to a question of law. In particular, in circumstances where the respondent did not file a reply to the appeal, file written submissions or appear at the hearing of the appeal, we do not consider it necessary or appropriate to seek to resolve the issues raised by the appellant's submissions concerning the meaning of "reasonably necessary" in s 8(1)(b) of the PPIP Act or to consider whether the Tribunal applied the wrong test in considering whether the "Other Personal Information" was reasonably necessary for the appellant's fulfilment of the "WC Function".
In our view the Tribunal's decision, in failing to recognise that the Deed is required to be read as a whole, so that, if part of the Deed is reasonably necessary for the fulfilment of a function of the appellant, the whole of the Deed is so required, is clearly wrong and involves an injustice which is reasonably clear. Accordingly, we would grant leave to appeal, if necessary, against the finding that the appellant breached IPP 1 (ie s 8 of the PPIP Act).

Second group - Grounds 3 and 16: no collection of the respondent's personal information

These grounds were relied upon by the appellant in the alternative to grounds 1 and 2. As we have upheld the appeal in respect of the Tribunal's conclusion that the appellant's receipt of the respondent's personal information in the Deed was a breach of IPP 1, it is not strictly necessary to determine whether the Tribunal also erred in concluding that the appellant had collected the respondent's personal information in the Deed.
The relevant finding in the decision was paragraph [73]. 73 I am satisfied that once the Other Personal Information was accepted by, taken into the Respondent's possession and records under the control of and/or used by the Respondent for its administrative purposes and/or, purportedly, for the WC Function (e.g. to manage the settled workers compensation claims) then the Respondent has (or will be taken to have) collected the Other Personal Information for the purposes of the PPIP Act.
The appellant submitted that: "33. The third ground of appeal raised by SICorp, which is in two parts, is put in the alternative to Grounds 1 and 2 above. First, SICorp contends that the Tribunal misapplied s. 8 of the PPIP Act in determining that SICorp had "collected" the Other Personal Information, when that personal information was unsolicited by SICorp within the meaning of s. 4(5) of the PPIP Act and no decision had been made by SICorp to make use of or take action in relation to any of the Other Personal Information. Subsection 4(5) of the PPJP Act provides as follows: "For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited." "Unsolicited" has been construed by the Tribunal to mean "not asked for", or information passively received. SlCorp was given a copy of the Deed so that it might fulfil its functions as the NSWPF's workers' compensation insurer, and make the payment of money required under the Deed in connection with the workers' compensation claims. To the extent that any information in the Deed was not reasonably necessary in order that SlCorp might perform that function, then that information was unsolicited within the meaning of s.4(5) of the PPIP Act, and therefore not collected. 34. The Tribunal's error stems from a misconceived reliance on an observation made by the Appeal Panel in ZR v Department of Education and Training (GD) [2010] NSWADTAP 75 ("ZR") in order to deem that SlCorp had "collected" the personal information in the Deed not relating to the Respondent's workers' compensation by merely retaining a copy of the Deed. The reliance on the observation in ZR was misconceived because it was taken out of context and as a result, misunderstood. In ZR, the Appeal Panel said as follows: ...the limitation in s 4(5) ought not be applied to the entirety of the information handling cycle. Information that was unsolicited at origin, once taken under the control of the agency for one of its administrative purposes should be treated as 'collected' and no longer retaining the character of 'unsolicited' information. 35. The Appeal Panel in ZR did not mean that the mere holding of unsolicited information would constitute a collection by the agency for the purposes of s.8(1) of the PPIP Act, but rather that information that was initially unsolicited would, in certain circumstances, be treated as collected for the purposes of construing some of the later IPPs that only attach their requirements to 'collected' information. To construe the word "collection" as including the mere holding of unsolicited information would be inconsistent with the approach taken by the Tribunal in OA v New South Wales Department of Housing (No 2) [2006] NSWADT 94, where the Tribunal deemed there to be a "collection" by an agency at the point it decided to make use of the unsolicited personal information, and not prior when the information was lying dormant on the file. 36. There was, in any event, no evidence before the Tribunal to suggest that SlCorp had sought to use the personal information in the Deed not relating to the Respondent's workers' compensation claims. In finding that the Other Personal Information was "accepted by, taken into [SlCorp's] possession and records under the control of and/or used by [SlCorp] for its administrative purposes and/or purportedly, for the WC Function", the Tribunal erred as a matter of law (as contended by Ground 3) by making a material finding of fact where there was no evidence to support such a finding. It also follows that the Tribunal made an error of fact (as SlCorp contends, with the Appeal Panel's leave, by Ground 16). Further, in the premises, and on a proper understanding of the authorities addressing when unsolicited information will be deemed to be collected, it was not open to the Tribunal to deem that SlCorp had collected the Other Personal Information. 37. Finally, the Tribunal's reasoning as to why it was that the Other Personal Information could be deemed to have been collected is, at best, opaque. The Tribunal does not identify how it was that the Other Personal Information was taken under the control of SlCorp and/or used for its administrative purposes, or why it was satisfied that, in the premises, the Other Personal Information could be taken to have been collected within the meaning of s. 8(1) of the PPIP Act. It is for these reasons that (by Ground 10) SlCorp contends that the Tribunal erred by failing to give adequate reasons in connection with this finding. [Footnotes omitted.]"

Consideration

We agree with the appellant's submission that, to the extent that the "Other Personal Information" could be severed from the balance of the Deed, the appellant did not, in utilising the Deed for the purposes of the "WC function", take the "other personal information" under its control, or use it for its administrative purposes.
However, as we have indicated above, the Deed must be considered as a whole. In other words, the Other Personal Information cannot be severed from the Deed, if the Deed is to fulfil its function. To that extent, in taking the Deed under its control and using it for its administrative purposes, being the WC Function, the appellant may be said to have collected all of the information in the Deed, but that would be because all of the information in the Deed is a necessary and inseparable part of the Deed.
In the circumstances we do not consider it necessary to say more about the second group of grounds of appeal.

Third group - Grounds 4 - 6 and 13: authorised collection

These grounds challenge the Tribunal's finding that the appellant had breached IPP 2 by collecting personal information other than directly from the respondent and, in so finding, rejecting the appellant's submission that the respondent had authorised the collection of the information from someone else.
The relevant findings in the decision are paragraphs [65] and [66]: 65 For reasons similar to those noted above in respect of IPP 1 I am satisfied that, as regards the information relating to the workers compensation claims settled in the Deed, the evidence shows that both the context and attendance of EML (on behalf of the Respondent) at the November 2011 Meeting and the reference to the workers compensation insurer approving the workers compensation settlement that it is possible (although not being decided in these proceedings) that the Applicant may have authorised (or constructively authorised) the collection of relevant workers compensation claims related information from the NSWPF but not necessarily the Deed or any other personal information of the Applicant contained in the Deed. 66 Given the terms of the Deed raised in the Applicant Submissions with respect to confidentiality and exclusion of prior negotiations and representations of the parties to the Deed and my analysis above in respect of IPP 1 and the Other Personal Information, I am satisfied that the Applicant did not authorise (constructively or otherwise) the collection of the Other Personal Information by the Respondent from the NSWPF (or anyone else). The Respondent was therefore required to collect (if it could do so pursuant to IPP 1) the Other Personal Information directly from the Applicant in accordance with IPP 2.
The terms of the Deed relating to confidentiality and the exclusion of prior negotiations and representations, upon which the Tribunal's finding was based, were contained in clauses 12 and 15 of the Deed, which provided: "12 Entire agreement This deed: (a) records the entire agreement between the parties; and (b) supersedes all previous negotiations, understandings, representations and agreements, in relation to the subject matter of this deed. 15 Confidentiality The negotiations, discussions and meetings leading to the preparation of this deed, and the contents of this deed, are strictly confidential and are not to be disclosed by the parties, other than to their legal and financial advisers on receiving an undertaking from that person to keep the terms of this document confidential, for the purpose of enforcement of this document or as may be required by law."
Those clauses were in a standard form common in settlement contracts including deeds of release.
The appellant submitted that: "[T]he Tribunal did not appear to have regard to the evidence contained in the Deed and elsewhere that SICorp had relied upon in support of its argument that the Respondent had authorised the collection of the Other Personal Information. This included a document entitled "Authority to Receive" addressed to "DLA Piper solicitors for NSW Police Force & Employers Mutual Ltd", which was signed by the Respondent on 22 November 2011 (the day of the mediation). This document sets out instructions to EML's solicitors (DLA Piper, who attended the mediation) authorising and instructing them to deal with the Respondent's "settlement/verdict/award/cost moneys in the following way..." As was submitted by SICorp before the Tribunal, the document expressly refers to EML, SICorp's agent. Further, the "settlement/verdict/award/cost moneys" referred to in the document are those payable under the Deed. … No reference was made by the Tribunal to the document, nor explanation provided as to why, contrary to the submission made by SICorp, it did not establish that the Respondent had authorised collection of the Deed by SICorp from the NSWPF or anyone else. … 41 Further, the Tribunal did not appear to have regard, in finding that the Respondent had not authorised indirect collection, to the other evidence contained in the Deed and elsewhere that supported SICorp's contention that, at a minimum, the Respondent had constructively authorised the collection of the Other Personal Information. This included EML's participation in the mediation through its legal representatives, as well as textual indications in the Deed itself."
In relation to the "textual indications in the Deed itself", the appellant referred to its submissions to the Tribunal, which it submitted the Tribunal had not addressed. The relevant textual indications were: 1. Clause 3 in Schedule 9, the schedule of admissions, which stated: "The Employee [EEH] acknowledges that the employer and its workers compensation insurer consents to the Deed of Release herein by way of compromise and in reliance upon the admissions the Employee has made." and 1. Clause 1.2(g) of the Deed, which provided: "A reference to a party or a person includes that party's or person's executors, legal personal representatives, successors, liquidators, administrators, trustees in bankruptcy and similar officers and, where permitted under this deed, their substitutes and assigns".

Consideration

Once it is recognised that the appellant required a copy of the Deed in order to fulfil its function of making payments to the respondent in respect of their workers compensation claims in accordance with the resolution of those claims documented in the Deed, it must follow that the respondent had consented to the appellant receiving a copy of the whole of the Deed.
The authority to receive upon which the appellant relied was addressed to "DLA Piper as solicitors for NSW Police Force & Employers Mutual Ltd". Schedule 8 to the Deed was a letter from the respondent to "Employers Mutual Limited, acting as agent for" the appellant, by which the respondent "formally acknowledge that I have received all entitlements to compensation in respect of [a specified workers compensation claim] and formally request that same be finalised and closed."
The respondent can be taken to have been aware, at the time of executing the authority to receive, that EML was acting as agent for the appellant and that, in order to arrange the payments in respect of workers compensation for which the Deed provided, EML would require a copy of the Deed. The Deed contains no explicit provision prohibiting the provision of a copy to EML. Neither the confidentiality provision in clause 15, nor the entire agreement clause (clause 12) is relevant to the question whether the respondent authorised the appellant, or EML on its behalf, to receive a copy of the Deed.
Accordingly, as we have held in relation to the first group of grounds, we are satisfied that, even if the Tribunal cannot be said to have erred with respect to a question of law, the Tribunal's decision, that the appellant breached IPP 2 (section 9 of the PPIP Act) by not receiving the Deed directly from the respondent, involves an error that is plain and readily apparent, and to the extent necessary we will grant leave to appeal against that finding.

Fourth group - grounds 7 and 8: exemptions to compliance with section 9 of the PPIP Act

As grounds 7 and 8 relate to different exemptions to compliance, it is appropriate to deal with them separately.

Ground 7: section 25(b) of the PPIP Act

Ground 7 relates to the application of s 25(b) of the PPIP Act.
The Tribunal addressed this issue at [76] - [77]: 76 The Respondent's collection of the Applicant's personal information (and health information, as the case may be) from other than the Applicant may be necessarily implied or reasonably contemplated by the SICorp Act or WC Act for the WC Function (although this is not a question to be determined in these proceedings). However, the issue under the s 25(b) PPIP Act exemption in this case is whether collection of all of the Applicant's personal information actually contained in the Deed (in particular the Other Personal Information), whether or not relevant to or required for WC Function, from other than the Applicant is 'necessarily implied or reasonably contemplated' by the SICorp Act or WC Act. If so, non-compliance of the Respondent with IPP 2 under s 25(b) PPIP Act is permitted. If not, the Respondent is not excused from compliance with IPP 2 as regards, at least, the Other Personal Information. 77 On the material before the Tribunal I am not satisfied that, as regards the Other Personal Information, the Respondent's non-compliance with IPP 2 (i.e. collecting that personal information from other than the Applicant) is "necessarily implied or reasonably contemplated" by the SICorp Act or WC Act. Therefore, at least in respect of the Other Personal Information, the Respondent must comply with the requirement of IPP 2 (s 9 PPIP Act). As such the findings in paragraphs [63] to [66] above are undisturbed as non-compliance with IPP 2 is not permitted or excused by s 25 PPIP Act in this case as regards the Other Personal Information.
The appellant submits that the Tribunal asked itself the wrong question and thereby misapplied s 25(b) of the PPIP Act and that the Tribunal's reasons for finding s 25(b) not applicable were inadequate. The appellant referred to the decision of the Tribunal in CYL v YZA [2016] NSWCATAD 314 at [97] where the Tribunal noted that the authorities provided "express or implicit support" for a number of propositions, including: (1) No narrow view of the s 25(b) exemption should be taken. (2) A practical approach needs to be taken that avoids a detailed examination of every aspect of the information supplied and the identification of a sufficient connection between each aspect and the contemplation of the alternate law. Hence, one should focus upon the kind or type of information supplied to the external agency rather than its precise contents. Otherwise, there is danger that enforcement of the IPPs becomes embroiled in technical and lengthy disputes. (3) In a similar vein, one does not drill down into too much detail about the processes for provision of information under the alternate law. The search is not for what the alternate law requires or as to what would be in accordance with such law, but with the much broader inquiry of reasonable contemplation by that law.
The Tribunal's reasoning in that case was endorsed by the Appeal Panel on appeal from the decision: CYL v YZA [2017] NSWCATAP 105 at [56].
The appellant submitted: "[I]n asking whether or not the collection of all of the Respondent's personal information contained in the Deed whether or not relevant to SICorp's workers' compensation functions, was necessarily implied or reasonably contemplated under the SiCorp Act or the WC Act, the Tribunal took an approach that was inconsistent with these authorities. A practical approach would have looked to the kind or type of information supplied to SICorp - namely, a deed of settlement that, inter alia, facilitated the settlement of the Respondent's workers' compensation claims, rather than drilled down to the precise contents of the Deed. An adoption of the practical approach required the Tribunal to ask not whether all of the information in the Deed was necessarily implied or reasonably contemplated by the SICorp Act or WC Act, but rather, whether that legislation would require the provision to SICorp by the self-insured NSWPF of a deed of settlement that facilitates the settlement of claims managed by SICorp on its behalf."

Consideration

Again, once it is recognised that the appellant's fulfilment of the WC Function required it to have a copy of the whole Deed, it follows that the appellant's obtaining and retention of the Deed was reasonably contemplated by the NSW Self Insurance Corporation Act, which imposed that function upon it. For the same reasons as we have stated in relation to the first and third groups of grounds, we would grant leave to appeal to raise this ground.

Ground 8: section 26(1) of the PPIP act

We have set out s 26(1) of the PPIP Act at [17] above. The Tribunal's decision concerning s 26(1) was set out at [78] - [80]: 78 The exemption from compliance with IPP 2 pursuant to s 26 PPIP Act is a high bar to establish, which the Respondent's submissions and evidence did not meet. It is not enough for the Respondent to simply assert that asking the Applicant for the relevant information needed (e.g. a copy of the relevant sections of the Deed including the information relevant to the settlement of the workers compensation claims) may have conceivably delayed payment of the relevant settlement amount to the Applicant and that the Respondent feels that, in its view, this would have prejudiced the Applicant. 79 It must be remembered that it is also prejudicial to an individual if any of the IPPs (i.e. their privacy rights) are not complied with by an agency as regards their personal information. That is, the rights of individuals under the PPIP Act/IPPs (i.e. the Applicant in this case) need to be navigated carefully before simply claiming that an individual's insistence on their rights under the IPPs would delay a payment process, for example, and therefore prejudice them under s 26 PPIP Act such that an agency is entitled to ignore the relevant IPPs (and/or wishes of the individual in respect of their privacy) and, in this case, simply obtain the information from someone else without even asking the Applicant for the relevant information in the first place. 80 Failure of the Applicant to comply with a request for the relevant information from the Respondent (if such had been made) may well have delayed the payment to the Applicant. However that decision is for the Applicant to make, as would be the decision whether or not to seek legal advice or otherwise to determine what of their personal information they should provide and how their privacy/personal information could be best protected in doing so. I am satisfied that the exemption in s 26 PPIP Act is not made out and, as such, the findings in paragraphs [63] to [66] are undisturbed.
The appellant submitted that the Tribunal misapplied section 26(1) in two ways: First, the Tribunal approached the question of whether or not the exemption applied by way of an evaluative weighing exercise, balancing the Respondent's interests in compliance with his privacy rights on the one hand, against the interests said to be prejudiced on the other. SICorp contends this approach, which is neither required by the PPIP Act, nor supported by any authority, was in error. SICorp submits that the words "prejudice the interests of the individual to whom the information relates" should be given their ordinary meaning, rather than given a strained interpretation in order that it might achieve the beneficial purpose of the PPIP Act of protecting an individual's privacy. Second, the Tribunal erred by determining that SICorp should have at least asked the Respondent for the information in the Deed, before collecting it from the NSWPF. Again, there is no statutory foundation for imposing this limitation on the availability of the exemption found in s. 26(1) of PPIP Act. Further, it is submitted that there is no basis to read such a limitation into the provision.

Consideration

We are not persuaded that the Tribunal's decision concerning section 26(1) of the PPIP Act involved an error with respect to a question of law, or that it was plainly wrong.
We note that, given our findings in relation to the other grounds of appeal our decision in respect of this ground of appeal will not affect the outcome of the appeal in any event.
The assessment of whether seeking a copy of the Deed directly from the respondent rather than obtaining it from the solicitors for the New South Wales Police Force and EML would have delayed the payment to the respondent of the amounts to which they were entitled under the Deed, and whether doing so would have been to the respondent's detriment, involves questions of fact and degree. As the Tribunal noted, the appellant did not seek to establish the existence of such detriment by tendering evidence.
Accordingly ground 8 must be rejected.

Fifth group of grounds - grounds 9, 14 and 15: the retention of the respondent's personal information

These grounds challenge the conclusion of the Tribunal that the appellant breached IPP 5 (s 12 of the PPIP Act) by keeping the respondent's personal information longer than was necessary, and the rejection by the Tribunal of the appellant's submission that it was required to keep the whole Deed pursuant to the State Records Act
The Tribunal's decision regarding IPP 5 was set out at [67] - [70] 67 In the Guide ["A Guide to the Information Protection Principles", 1999] the Privacy Commissioner advises agencies to look to the retention period established under the SR Act but also to "consider matters such as legal or administrative accountability when deciding whether to dispose of personal information" (page 16). In GR v Department of Housing (GD) [2004] NSWADTAP 26 (GR) at [57] the Tribunal's predecessor Appeal Panel stated: The obligation in s.12 [IPP 5] is addressed to the keeping of personal information by the public sector agency. It should not 'keep' information for longer than it may lawfully be used. It follows that it then should be disposed of, possibly in accordance with State Records Act disposal procedures. It may be that the records could then be archived with the State Records Act in a way that does not offend the principle contained in s.12. 68 The Respondent made a number of submissions with respect to the 'integrity of the Deed' and the need to hold the entirety of the Deed for future defence/management of the settled workers compensation claims purposes. However, while the Respondent may be entitled to certain of the information in the Deed (i.e. the information relevant to the settled workers compensation claims) it is not, pursuant to the PPIP Act and IPPs, generally "entitled" to the entirety of the Applicant's personal information in the Deed, in particular the Other Personal Information contained in it, per se. As noted by the Applicant, the relevant IPPs relate to the Applicant's personal information in the Deed, not the Deed itself as a document. This is especially the case given that the Respondent is not a party to the Deed. The Respondent has no separate entitlement (as do the parties to the Deed) to hold a copy of the Deed in its entirety (i.e. as opposed to certain information in it necessary for the Respondent to perform the WC Function). This is confirmed by the strict confidentiality terms of the Deed and the fact that, presumably because of the other confidential non‑workers compensation allegations and claims settled between the two parties to the Deed (i.e. the NSWPF and the Applicant), the Respondent (or EML on its behalf) was not made a party to the Deed even though EML (on behalf of the Respondent) participated in the settlement of the workers compensation claims. 69 In this case I prefer the submissions of the Applicant that, essentially, even if the settled workers compensation claims related personal information was legitimately collected by the Respondent under IPP 1 (i.e. for the WC Function) and may be kept indefinitely (although the Tribunal makes no decision as to that), it has not been established by the Respondent that it is necessary for the Respondent to keep the Other Personal Information for the WC Function or any other established lawful purpose of the Respondent. Therefore, under IPP 1 the Respondent had no right to collect and/or under IPP 5 keep the Other Personal Information once it obtained such when it obtained a copy of the Deed as part of the process of collecting the settled workers compensation claims related personal information. That is, in this case, immediately on receipt of the Deed the Respondent should have reviewed the Deed and determined whether it contained other than the information relevant to the settled workers compensation claims and, if so, if it could collect such and, if it had collected or then held such Other Personal Information whether, under IPP 5, that Other Personal Information was 'no longer necessary for the purpose for which the information could be lawfully used' and should be securely deleted or redacted (Initial Deed Review Period), especially in the circumstances where the Other Personal Information had been collected by the Respondent in breach of IPPs 1 and/or 2. 70 In line with the Tribunal's findings above that the Respondent was not entitled to collect (i.e. put into its records, hold or use for its purposes) the Other Personal Information from the Deed under IPP 1 in the first place, I am satisfied that the Other Personal Information should not be held by the Respondent for longer than the Initial Deed Review Period. In any event, the Other Personal Information should not be held any longer by the Respondent, some 11 years after receipt of the Deed and the expiry of the Initial Deed Review Period. Thus, the continued holding of the Other Personal Information by the Respondent is in breach of IPP 5.
The Tribunal addressed section 21 of the State Records Act at [81] - [83]: 81 In addition to the comments noted from GR above at paragraph [67] as regards the interaction between the PPIP Act and the SR Act, the Appeal Panel in GR at [57] also noted, following an argument by the respondent in that case seeking to justify its retention practices by general references to the SR Act and to escape the application of the PPIP Act, that: In our view every attempt should be made to read the provisions of the Privacy Act and the State Records Act harmoniously. 82 That is, the Deed might be kept by the Respondent in accordance with s 21 SR Act by redacting the Other Personal Information from the Deed, information which the Respondent was not entitled to collect in the first place. 83 In addition, I note that s 21(2)(d) SR Act expressly permits (i.e. excludes as a contravention of s 21 SR Act) "anything done pursuant to an order or determination of a court or tribunal".
The appellant submitted: 48 … The Deed is a "State record" as defined by s. 3(1) of the SR Act. Accordingly, SICorp submits that the Tribunal fell into error having regard to its obligations, created by ss. 11(1) and 21(1) of the SR Act. Section 11(1) of the SR Act imposes an obligation on SICorp to "ensure the safe custody and proper preservation of the State records that it has control of." Section 21(1) of the SR Act provides that SICorp must not abandon or dispose of (s. 21(1)(a)) or damage or alter (s. 21(1)(d)) a State record. Even a finding by the Tribunal that SICorp was not entitled to information contained within it cannot be said to alter or change the Deed's quality as a State record. Deleting or redacting parts of the Deed, as the Tribunal found SICorp was required to do, places SICorp in contravention of the protection measures provided for in s. 21(1) of the SR Act. The fact that, pursuant to s. 21(2)(c) of the SR Act, anything done pursuant to an order or determination of a court or tribunal will not be a contravention of s. 21(1) of the SR Act (as observed by the Tribunal at [83]) is not, at least in these proceedings, to the point. This is because an order made by the Tribunal that SICorp permanently and securely redact or delete the Respondent's personal information found to have been collected and retained in breach of ss. 8, 9 and 12 of the PPIP Act cannot retrospectively impact upon the obligation SICorp has under the SR Act (and the Functional Retention and Disposal Authority: FA343) to retain the Deed. 49. Further, the Tribunal failed to have regard to the fact that the inconsistency between the two obligations created by s. 12(a) of the PPIP Act and s. 21 of the SR Act, was already resolved by operation of s. 21(6) of the SR Act, pursuant to which an agency's obligations under s. 21 of the SR Act prevail over its obligations under s. 12(a) of the PPIP Act.

Consideration

We agree with the appellant that the proposition at [83] of the decision, if intended to provide further justification for the decision, is fallacious. The question the Tribunal was required to determine was: What was the correct and preferable decision? In so determining, the Tribunal stands in the shoes of the agency. Suggesting that a decision is the correct and preferable decision because an order of the Tribunal will override the agency's obligations under the State Records Act involves a form of "bootstraps" reasoning, that is, assuming the result in order to justify it.
Nevertheless, in respect of the Tribunal's conclusions apart from paragraph [83], we note that the appellant's submissions do not address the propositions stated by the Appeal Panel of the Administrative Decisions Tribunal in GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 at [57], cited by the Tribunal.
We also note that the appellant's assertion that s 21(6) of the State Records Act clearly resolved any conflict between the appellant's obligations under the PPIP Act and its obligations under the State Records Act in favour of the latter, is not obviously correct. Section 21(6) provides that s 21 prevails over "a provision of any other Act enacted before the commencement of this section". The State Records Act received assent on 2 June 1998 and, apart from Part 4 (ss 26-36), commenced operation on 1 January 1999. The PPIP Act received assent on 30 November 1998, and, relevantly, commenced operation on 1 July 2000. Thus, the PPIP Act was enacted after s 21 of the State Records Act was enacted, but before it commenced, and itself, relevantly, commenced after s 21 had commenced. In those circumstances, the operation of s 21(6) of the State Records Act in relation to the PPIP Act cannot be said to be straightforward. We consider that, in the absence of submissions from both parties, it is better that we do not attempt to resolve that issue.
The Tribunal did not purport to determine whether the State Records Act required the retention of the Deed, to the extent that it contained personal information other than that which the Tribunal required to be redacted.
However, the Tribunal's determination that the appellant had breached IPP 5 by continuing to hold the "Other Personal Information" was infected by the Tribunal's conclusion, which we have found to be erroneous, that the whole of the Deed was not information the collection of which was reasonably necessary for the appellant's WC Function. We therefore conclude that the Tribunal's finding that the appellant was in breach of IPP 5 involved error, if not with respect to a question of law, nevertheless an error which was plain and readily apparent and warrants the grant of leave to appeal.
It does not appear that the respondent made any submission that the retention by the appellant of the parts of the Deed which contained personal information relevant to the resolution of the respondent's workers compensation claim was a breach of IPP 5.
Pursuant to s 16 of the Limitation Act 1969 (NSW), a cause of action founded on a deed is maintainable for 12 years from the date when the cause of action accrues. The Deed was executed in November 2011. Furthermore, the release given by the respondent in clause 3.3 (and a further release contained in clause 7) continue to operate indefinitely. Both releases exclude claims relating to exposure to asbestos which notoriously may cause disease long after exposure. In those circumstances, regardless of the requirements of the State Records Act, it cannot be said in 2023 that the appellant has retained the Deed "for longer than is necessary for the purposes for which the information [in the Deed] may lawfully be used".
To the extent necessary we would grant leave to appeal in respect of the finding that the appellant had breached IPP 5.

Conclusion

It follows from our conclusions set out above that the decision of the Tribunal that the appellant was in breach of each of IPP 1, IPP 2, and IPP 5 was incorrect and must be set aside.

ORDERS

Our orders are: 1. Pursuant to S 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the respondent is prohibited. 2. To the extent necessary, grant leave to appeal against the decision of the Tribunal published on 10 November 2022 in proceedings 2020/00215886. 3. Allow the appeal. 4. Set aside orders 1 and 2 made on 10 November 2022 in proceedings 2020/00215886.

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: 04 July 2023

Self Insurance Corporation Act 2004(NSW)

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Judgment (21 paragraphs)

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Cases Cited (18)

Cited By (3)