Smallbone v New South Wales Bar Association [2011] FCA 1145

FEDERAL COURT OF AUSTRALIA

Smallbone v New South Wales Bar Association [2011] FCA 1145 Citation: Smallbone v New South Wales Bar Association [2011] FCA 1145

Parties: DAVID ANDREW SMALLBONE v NEW SOUTH WALES BAR ASSOCIATION ACN 000 033 652

File number(s): NSD 1685 of 2011

Judge: YATES J

Date of judgment: 6 October 2011

Catchwords: HUMAN RIGHTS – privacy – personal information about applicant held by respondent – information provided for collection on express assurance of confidentiality – whether providing access would have an unreasonable impact upon the privacy of other individuals

Legislation: Privacy Act 1988 (Cth) ss 6, 16A(2), 98, Sch 3 National Privacy Principle 6

Cases cited: C v Insurance Company [2006] PrivCmrA 3 Phillips v Military Rehabilitation and Compensation Commission [2006] FCA 882

Date of hearing: 5 October 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 77

Counsel for the Applicant: Mr T Molomby SC

Counsel for the Respondent: Dr J Griffiths SC with Ms S Pritchard

Solicitor for the Respondent: Hicksons Lawyers

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1685 of 2011

BETWEEN: DAVID ANDREW SMALLBONE

Applicant

AND: THE NEW SOUTH WALES BAR ASSOCIATION

ACN 000 033 652

Respondent

JUDGE: YATES J DATE OF ORDER: 6 OCTOBER 2011 WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Pursuant to section 98 of the Privacy Act 1988 (Cth) the respondent, within 4 business days after the making of these orders, provide the applicant with access to the personal information about him that the respondent has collected in relation to the applicant's application for appointment as Senior Counsel in 2011, including responses that it has collected about the applicant from members of the consultation groups established under the Senior Counsel Protocol dated June 2011 published by the respondent, save that the respondent is not obliged to provide access to information which discloses: (a) the identity of persons who are members of the consultation groups who have provided information to the respondent and, in the case of members of the consultation groups who are judicial officers, the identity of the court to which that member has been appointed, if it is a court other than the Supreme Court of New South Wales; or (b) the identity of or information about other persons who are applicants for appointment as Senior Counsel in 2011 or who have provided information about persons who are applicants for appointment as Senior Counsel in 2011. 2. The access referred to in order 1 be provided by the respondent by permitting the applicant to inspect in private the records of the information that the respondent has in its possession, custody or control, at the premises of the respondent at 174 Phillip Street, Sydney during ordinary business hours, or by the provision of copies of those records, or in such other manner as may be agreed in writing by the applicant and the respondent. 3. Until the later of: (a) the expiry of 7 days after completion of the inspection or other provision of the access provided in order 1; or (b) the date on which the applicant notifies the respondent in writing that he no longer requires the personal information to which access has been granted to be retained for the purpose of consideration of the outcome of his application for appointment as senior counsel, or for the purpose of any complaint, review, suit, proceeding or other procedure concerning his application for appointment as senior counsel, the respondent be restrained from, by itself, its officers, servants or agents, destroying or disposing of any record of any personal information about the applicant to which the applicant has been provided access in accordance with order 1. 4. Until the expiry of 7 days after completion of the inspection or other provision of access given in accordance with order 1, the respondent be restrained from, by itself, its officers, servants or agents, making any adverse determination of the applicant's application for appointment as Senior Counsel lodged with the respondent in July 2011. 5. Liberty be granted to each of the parties to apply upon 1 day's notice for further directions concerning the manner of executing these orders or otherwise for the working out of these orders and/or for extension or amendment of any time limited by these orders for the taking of any step. 6. The proceeding stand over to a date to be fixed to determine any disputed question about costs. Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.