Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Police v DTN [2020] NSWCATAP 165 Hearing dates: 17 July 2020 Date of orders: 4 August 2020 Decision date: 04 August 2020 Jurisdiction: Appeal Panel Before: Cole DCJ, Deputy President J Kearney, Senior Member. Decision: The appellant's application for leave to appeal is refused. Catchwords: ADMINISTRATIVE LAW – Privacy – appeal from an interlocutory decision of the Tribunal – leave to appeal - application for internal review of conduct – meaning of 'the time the applicant first became aware of the conduct the subject of the application' – principal and agent – imputed knowledge Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: DTN v Commissioner of Police [2020] NSWCATAD 107 Department of Education and Training v EM [2011] NSWADTAP 4 Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44 Harris v Commercial Minerals Ltd (1995-96) 186 CLR 1; [1996] HCA 49 Waldron v Joondalup Hospital Pty Ltd (2018) 98 NSWLR 552; [2018] NSWCA 182 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 225 FLR 1; [2008] WASC 239 Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 Wassef v Panagiotopoulos [2019] NSWCATAP 18 Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Category: Principal judgment Parties: Commissioner of Police (Appellant) DTN (Respondent) Representation: Sparke Helmore Lawyers (Appellant) Respondent (Self Represented) File Number(s): AP 20/21699 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the respondent to this appeal is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 107 Date of Decision: 17 April 2020 Before: M Easton, Senior Member File Number(s): 2019/00350181 REASONS FOR DECISION Introduction 1. On 18 September 2019, pursuant to s 53 of the Privacy and Personal Information Protection Act 1998 (NSW), ('the PPIP Act'), DTN applied to the 'NSW Police Force' ('the Agency') for the internal review of certain conduct of the agency. The conduct complained of was the provision of an internal report of the Agency to DTN's solicitors, in July 2018, in circumstances where that document, it was alleged by DTN, contained false information about him. The document had come into existence in 2012. 2. The Agency responded to DTN by letter dated 23 October 2019. The Agency said that it considered that DTN's application for an internal review had been made outside of the statutory six month time limit (see s 53(3)(d) of the PPIP Act). The Agency declined to extend the time for the making of the application. The consequence of this decision would be that the internal review requested would not be undertaken. 3. Further correspondence ensued. By letter dated 1 November 2019 from the Office of the General Counsel of the Agency the following further reasons were given for the refusal of DTN's application for an internal review: It is clear from your letter you maintain the view the date on which you became aware of the conduct was when the information was provided to you by Carroll & O'Dea Lawyers on 8 April 2019. However, the NSWPF maintains the view that you were aware of the conduct and its legal import on or about 19 July 2018 as that was [the] date legal representatives acting on your behalf, as your agents, were provided the subject information. Significant consideration has been given to the fact that at the time the subject information was provided to Carroll & O'Dea Lawyers, they were acting on your behalf. In addition, significant consideration has been given to the fact the provision of the subject information to your legal representatives was in direct response to your request, through your legal representatives, for access to information made under the Privacy and Personal Information Act 1998. 1. DTN appealed to the Tribunal. The respondent to that appeal was, properly, named as the Commissioner of Police ('the Commissioner'). The Tribunal at first instance determined that the application for an internal review had not been made outside of the six month time limit, because time began to run when DTN became aware of the conduct the subject of the application. The Tribunal found that DTN became aware of the conduct on 8 April of 2019. DTN's application for internal review was made on 18 September 2019, less than 6 months later. The Tribunal made an order requiring that DTN's application for an internal review be dealt with. 2. The Commissioner has appealed to the Appeal Panel against that decision. The decision at first instance 1. The PPIP Act provides, in s 53(1), (1A), (2) and (3): 53 Internal review by public sector agencies (1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. (1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information). Note. Any such conduct can still be administratively reviewed by the Tribunal. See section 55 (1A). (2) The review is to be undertaken by the public sector agency concerned. (3) An application for such a review must— (a) be in writing, and (b) be addressed to the public sector agency concerned, and (c) specify an address in Australia to which a notice under subsection (8) may be sent, and (d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and (e) comply with such other requirements as may be prescribed by the regulations. 1. DTN's application to the Tribunal at first instance for the review of the Agency's decision cited the following grounds:- On the 18.09.19 I completed and lodged an IPC 'Internal Review Application', a copy of which, together with supporting documents, I forwarded to the Commissioner of Police NSWPF. On 4.10.19 NSWPF wrote a letter to me acknowledging receipt of the file and advising their internal reference allocation D/2019/892819. On 23.10.19 NSWPF wrote to me advising they were declining to conduct an internal review alleging exceedance of the six month time limit. On 27.10.19 I wrote to NSWPF in reply and enclosed a number of documents proving my application had been made within six months. On 01.11.19 NSWPF wrote in reply upholding their decision to decline a review, this in spite of the overwhelming evidence that proves my application was made within six months from [the] date I became aware of the NSWPF conduct. 1. It was common ground that DTN retained Carroll & O'Dea Lawyers ('the solicitors') to act for him. DTN provided the solicitors with an authority to obtain information on his behalf on 23 March 2018. The solicitors sought information concerning DTN from the Agency on 4 July 2018. The Agency provided documents to the solicitors in response to that request on 19 July 2018. The solicitors did not, at that time, provide those documents to DTN. 2. In April 2019, DTN asked the solicitors to provide him with all of the personal information of his which they held on file. On 8 April 2019, the solicitors provided DTN with a CD Rom which contained numerous documents, among which was the document dated 6 March 2012 ('the contentious document'), which is the subject of DTN's application for an internal review to the Agency. DTN had never seen the contentious document before 8 April 2019. 3. The Tribunal at first instance determined the matter on the papers, under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW). It was argued in the Agency's submissions to the Tribunal at first instance that DTN had constructive knowledge of the contentious document from the time that the solicitors were given it. This argument reflected the Agency's reasons, set out in its letter of 1 November 2019 (see [3], above). It was argued that the solicitors were acting as DTN's agent, that the solicitors therefore had a duty to communicate the content of the contentious document to DTN and that, as a result, knowledge of the content of the contentious document must be imputed to DTN. 4. Quite detailed submissions were made in the Agency's written submissions concerning the meaning of 'the time the applicant first became aware of the conduct the subject of the application' in s 53(3)(d) of the PPIP Act. 5. The Tribunal at first instance said, at [41], citing Department of Education and Training v EM [2011] NSWADTAP 4, Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44, Harris v Commercial Minerals Ltd (1995-96) 186 CLR 1; [1996] HCA 49, Waldron v Joondalup Hospital Pty Ltd (2018) 98 NSWLR 552; [2018] NSWCA 182, Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 225 FLR 1; [2008] WASC 239 and Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868: For present purposes the relevant principles from the above authorities are: (1) the phrase "first became aware of the conduct the subject of the application" in s 53(3)(d) of the PIPP Act refers to the actual awareness of the relevant person (per DEC v EM); (2) applying the "subjective construction of Deming, Harris and Waldron, the tribunal is to look at actual awareness rather than imputed or constructive awareness; (3) an agent's knowledge or awareness can be attributed to a principal but (1) only knowledge that is material to the transaction or purpose for which the agent is acting, and (2) only in relation to knowledge obtained within the scope of the agent's authority, and (3) only where there is a duty on the agent to communicate that information to the principal (per Bell Group and Almona); (4) where such an agency might exist the Tribunal must relevantly determine (1) the precise parameters or scope of the agent's authority, both substantively and temporally; (2) whether the knowledge in issue was obtained in the course of that authority; and (3) whether the knowledge is relevant to the authority (per Bell Group); (5) the awareness of the relevant person, for the purposes of s 53 of the PIPP Act, could include the awareness of an agent if the agent was properly authorised to act for the applicant at the relevant stages of the process (per DEC v EM); (6) where an agent has actual or apparent authority to receive formal notification from a third party, notification to the agent within the scope of that actual or apparent authority will effectively bind the principal regardless of whether the principal actually receives the information (per Bell Group); and (7) where the principal is expressly or impliedly reliant on the judgment and skill of the agent, the principal can be fixed with the expert comprehension of the agent even if the agent did not express those views to the client (per Bell Group). 1. The Tribunal found that, in 2018, DTN engaged the solicitors solely for the purpose of advising him in relation to a workers compensation claim. The solicitors' request to the Agency for DTN's personal information was made in that context (see DTN v Commissioner of Police [2020] NSWCATAD 107 at [42]). 2. The Tribunal determined that the solicitors were DTN's agent only in relation to a potential workers compensation claim, and not for all purposes (see DTN v Commissioner of Police at [46]). 3. The Tribunal determined that the solicitors obtained the contentious document within the scope of the authority given to them by DTN (see DTN v Commissioner of Police at [46]). However, the Tribunal decided that there was no basis upon which it could determine that the solicitors owed a specific duty to communicate the content of the contentious document to DTN in 2018. The Tribunal found that DTN had not engaged the solicitors in relation to issues of privacy or the PPIP Act (see DTN v Commissioner of Police at [47]-[48]). 4. The Tribunal concluded that, within the meaning of s 53(3)(d) of the PPIP Act, DTN first became aware of the conduct the subject of the application in April 2019, notwithstanding that his solicitors were aware of the conduct in 2018. 5. The Tribunal said, at [52]–[62]: 52 Even if I am wrong about this, the respondent's proposition fails at the second hurdle in s 53(3)(d). 53 Apart from being aware of the conduct, the relevant person must be aware of the legal significance of the conduct (per Deming, Harris and DEC v EM). If DTN's solicitor/agent, rather than DTN, was the relevant person in 2018, there is no basis to find that the agent was aware of the legal significance of the 2012 Report under the PIPP Act. 54 It is one thing for Carroll & O'Dea to have received the report, it is another for them to have been aware of its legal significance under the PIPP Act. 55 DTN's application under s 53 is founded upon the 2012 Report containing information that DTN claims is false. The legal significance of the 2012 Report is its possible connection to the respondent's obligations under privacy laws. 56 As noted above, Carroll & O'Dea do not appear to have been asked by DTN to consider any alleged breaches of privacy laws, nor do they appear to have been armed with enough information to separately recognise the legal significance of the allegedly false information within the 2012 Report. 57 The respondent does not submit that in 2018, or at all, Carroll & O'Dea were aware of the legal significance of the 2012 Report. The respondent instead submits that DTN "would have had a general awareness of whether the Conduct would have contravened, or possibly contravened, a privacy principle". 58 The weakness of this submission is readily apparent. 59 On the respondent's case neither the agent nor the principal had any awareness of the legal significance of the 2012 Report in 2018. The respondent instead relies upon the combined effect of the solicitor's awareness of the existence of the 2012 Report, the solicitor's knowledge being imputed to DTN by way of the solicitor's agency, and the presumption that DTN would have appreciated the legal significance of the 2012 Report if he had been aware of it in 2018. 60 Taken at its highest the respondent's argument is akin to the argument put by Joondalup Hospital but rejected by the Court of Appeal in Waldron. The hospital argued that Ms Waldron's first solicitors had enough information from the expert's report to conclude that there was a basis to commence proceedings. The hospital argued that even though the first solicitors did not realise such a basis existed and did not advise Ms Waldron that such a basis existed, Ms Waldron should nonetheless be imputed to have been relevantly "aware" of the cause of action. The Court of Appeal rejected the proposition that it was sufficient for an agent to be aware of some or all the primary facts without also having an awareness of the legal consequences of those primary facts (at [82] and [112]). 61 Even if Carroll & O'Dea were DTN's properly authorised agents for the purposes of the PIPP Act in 2018, they were not aware of the relevant legal significance of the 2012 Report within the meaning of s 53 of the PIPP Act. 62 In determining the threshold issue allocated to me on the papers, I find that DTN first became aware of the alleged privacy breach in April 2019. As such, DTN's application for internal review was made within the time limit in s 53(3)(d) of the PIPP Act. The Appeal 1. The Commissioner appealed from the Tribunal's decision at first instance on the following grounds: Ground 1 Procedural fairness – The Tribunal raised issues without giving the Respondent an opportunity to address those issues prior to making a decision. Accordingly, the Respondent was not given an opportunity to lead evidence relevant to the matters raised by the Tribunal or make submissions about the correct interpretation of the legal issues. Ground 2 Evidence does not support the factual findings made – The finding in relation to the scope of the agency arrangement between the Applicant and his solicitors (Carroll & O'Dea Lawyers) is not supported by the evidence. Ground 3 Incorrect Application of Law – The Tribunal incorrectly applied the law in relation to the interpretation of section 53(3)(d) of the PPIP Act in the context of an agency agreement. Leave to appeal an interlocutory decision 1. The Civil and Administrative Tribunal Act 2013 says, in s 80: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made— (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may— (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. The Civil and Administrative Tribunal Act 2013 defines 'interlocutory decision' as follows: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following— (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. 1. The issue before the Tribunal at first instance was whether the Agency had correctly dealt with DTN's application for an internal review as an application which had been made out of time. Decisions with respect to time limits are usually characterised as interlocutory decisions, consistent with clause (d) of the definition of 'interlocutory decision'. We consider that the issue before the Tribunal at first instance is an interlocutory issue under clause (i) of the definition. 2. When the Notice of Appeal was filed, the requirement to apply for leave to appeal on account of the decision appealed from being an interlocutory decision was overlooked. We drew this to the attention of Ms Tipene, who appeared for the Commissioner, and Ms Tipene applied to amend the Notice of Appeal to apply for leave at the hearing. DTN did not object to that course and the amendment was permitted. 3. In Wassef v Panagiotopoulos [2019] NSWCATAP 101, the Appeal Panel set out the principles applicable to an application for leave to appeal an interlocutory decision: 23. In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 the Appeal Panel set out the principles relevant to a grant of leave to appeal an interlocutory decision: 35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave. 24. The Appeal Panel's reference to "Collins" is a reference to Collins v Urban [2014] NSWCATAP 17, in which the Appeal Panel relevantly stated at [84]: [84] The general principles derived from these cases can be summarised as follows: (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]; 1. It is necessary, in this matter, to consider the merits of the appeal in order to deal with the application for leave to appeal. Merits of the appeal 1. In Ground 1 in the Notice of Appeal, the Commissioner pleaded that the Tribunal at first instance had denied him natural justice. 2. The Commissioner's written submissions in relation to Ground 1 were as follows: 3.1 The Appellant submits that the Tribunal raised issues which were adverse to the interests of the Appellant without first giving the Appellant an opportunity to be heard on those issues In doing so, the Tribunal denied the Appellant procedural fairness. 3.2 The natural justice hearing rule requires that a person who will be adversely affected by a decision be given an opportunity to present their case, be told the substance of the case to be answered and be given an opportunity of replying to it.1 3.3 In SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317, the Full Court held that the primary judge did not afford the appellant procedural fairness because no reasonable opportunity was given to present evidence before the Tribunal or make submissions. Procedural fairness requires the substance of the information to be conveyed, so that the Appellant may have an opportunity to address it before the final decision is made. 3.4 Further, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25], the Court held "what is required by procedural fairness is a fair hearing, not a fair outcome". 3.5 In Kioa v West2, His Honour Justice Mason stated that "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that generally speaking when an order is made which will deprive a person of some right or interest or legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it". 3.6 The Respondent was self-represented in the Original Decision and the evidence and submissions before the Tribunal (Attachments B and D to these submissions) deal with the whether the Respondent had any subjective knowledge of the content of the personal information disclosed to his lawyers It focuses on the scope of Carroll & O'Dea Lawyers' retainer and that Carroll & O'Dea Lawyers did not disclose the contents of the material to the Respondent until 8 April 2019. 3.7 Significantly, the Respondent's written material does not engage with the legal issues in relation to agency and implied knowledge and the extent to which the Respondent's solicitors were engaged by the Respondent to provide advice under the PPIP Act. 3.8 The Appellant submits that given the limited contents of the Respondent's written material in dealing with the legal issues, and the Tribunal's consideration of those legal issues in paragraphs [25] to [41] of the Original Decision goes well beyond the Respondent's consideration of the issues in his submissions dated 5 February 2020. In those circumstances, the Appellant should have been afforded an opportunity to consider and subsequently produce written submissions in respect to the legal issues as raised by the Tribunal before the Original Decision was made. By having failed to provide the Appellant with that opportunity, the Tribunal failed to afford the Appellant procedural fairness 3.9 The Appellant has an interest in the outcome of the Original Decision because it potentially gives rise to a risk of non-compliance by the Appellant with the Information Protection Principles (IPPs) set out in the PPIP Act. In those circumstances, the Appellant submits that it should have been given an opportunity to address the legal matters raised in paragraphs [25] to [41] of the Original Decision before the Original Decision was made. 1 Kioa v West [1985] HCA 159 CLR 550 per Mason J at 582 2 Kioa v West [1985] HCA 159 CLR 550 per Mason J at 582 1. In argument, at the hearing, Ms Tipene relied upon the written submissions in relation to Ground 1. 2. In Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106, Gleeson JA, with whom Emmett AJA agreed, said, at [25] to [27]: 25 In Adamson v Ede [2009] NSWCA 379, Campbell JA (Giles and Hodgson JJA agreeing), referred to the content of the obligation of natural justice in court proceedings and said, relevantly for the present case, at [59]-[61]: [59] Both in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case. However, as Gaudron J (with whom Dawson J agreed) pointed out in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (sub nom Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220): "… the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358." (original emphasis) [60] The role of established procedures of courts, in deciding whether natural justice has been accorded to a litigant, is illustrated in Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288 where Owen J (with whom GB Simpson J agreed) said: "A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a Magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or cases of that kind." (emphasis added) [61] This principle stated by Owen J was applied in Ex parte Lucas (1910) 10 SR (NSW) 325 at 334 per Cullen CJ and in Ex parte Taylor; Re Butler (1924) 41 WN (NSW) 81 at 83 per Owen J, and was quoted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 98 [35]. (Emphasis added) 26 Plainly, Mr Ritson had a reasonable opportunity to make submissions on costs had he wanted to do so, and he did not take the opportunity during the 2013 hearing. By stating in his written submissions a wish to be heard separately on the question of costs, Mr Ritson sought to arrogate to himself a separate hearing on the question of costs to which he had no entitlement, nor legitimate expectation. 27 The primary judge was not required in the circumstances to afford Mr Ritson a separate hearing on costs. Nor was the Judge required to ensure that Mr Ritson took advantage of the opportunity to make submissions on costs during the 2013 hearing: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). The failure by Mr Ritson to address on costs at the 2013 hearing could be taken as indicating that no special or unusual costs orders were required. 1. As we have said, in [10] above, the Commissioner's submissions to the Tribunal at first instance dealt, in some detail, with the issue of the meaning of the words 'the time the applicant first became aware of the conduct the subject of the application' in s 53(3)(d) of the PPIP Act. Both the awareness of the conduct and the awareness of the legal significance of the conduct were addressed in those written submissions. The question of when the knowledge of an agent is to be imputed to the principal was also addressed in the Commissioners written submissions at first instance. None of this is surprising. The Agency relied upon a particular interpretation of those words in refusing to deal with DTN's application for an internal review, as we have set out above in [2] and [3]. 2. The Commissioner complained that DTN's submissions to the Tribunal at first instance did not engage with 'the legal issues in relation to agency and implied knowledge and the extent to which the Respondent's solicitors were engaged by the Respondents to provide advice under the PPIP Act'. Even if this were so, this cannot be a basis for an argument that the Tribunal at first instance denied the Commissioner a fair hearing or a reasonable opportunity to present his case. The Commissioner was the respondent at first instance. It was the Agency, in its letter of 1 November 2019, and the Commissioner, in his written submissions, who raised the issues of agency, implied knowledge and the terms of engagement of the solicitors by DTN, to support the Commissioner's argument that the application to the Agency for an internal review was outside of the six month time limit. Any omission by DTN at first instance to make submissions on any point is irrelevant to the issue of whether procedural fairness was accorded to the Commissioner by the Tribunal. 3. In argument (and we paraphrase), Ms Tipene said that it was her expectation that, when the Tribunal at first instance realised that its reasoning in relation to an issue would 'go beyond' what had been put to it by a party, then the Tribunal would hold a further hearing or case conference to discuss its reasoning with the parties. We reject the submission that any requirement to proceed in that way arose under the fair hearing rule in this matter. The issues upon which the decision at first instance turned were issues raised by the Agency and the Commissioner. The Tribunal at first instance considered authorities additional to those cited in the Commissioner's case in considering those issues in its reasoning, but that does not give rise to any obligation to give the parties a further opportunity to make submissions unless a new issue arises. In this matter, no new issue arose. We repeat the words of Gaudron J in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (see [28] above): procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled' 1. Ms Tipene submitted that, had the Tribunal at first instance disclosed its reasoning to the parties prior to publishing its decision, it would have given the Commissioner the opportunity to consider issuing summonses to investigate the precise ambit of the agency agreement between DTN and the solicitors. Documentary evidence of that agency agreement was before the Tribunal, in the material provided by DTN. On the basis of the material before the Tribunal, there is no reason to believe that there is necessarily any further information to be discovered about that agency agreement. It is not the task of the Tribunal to alert legally represented litigants to all possible avenues of enquiry in relation to the issues before it. The Tribunal is an independent decision maker. The Agency's refusal to deal with DTN's application for an internal review was based upon its perception of the extent of the agency agreement. Substantiating that perception was a task for the Commissioner at the hearing at first instance. 2. Ground 1 of the Notice of Appeal cannot succeed. 3. Ground 2 of the Notice of Appeal is that the 'evidence does not support the factual findings made – The finding in relation to the scope of the agency arrangement between the Applicant and his solicitors (Carroll & O'Dea Lawyers) is not supported by the evidence.' 4. DTN provided to the Tribunal at first instance a letter of 21 March 2018, from the solicitors to him, which sets out in detail the scope of the work that DTN had instructed the solicitors to perform for him. It is abundantly clear from the terms of that letter that the solicitors were engaged by DTN in relation to a possible claim by DTN under the Workers Compensation Act 1987. The Tribunal at first instance makes it clear in its decision at [8] and [42] that it relied on the letter from the solicitors to DTN in finding, at [46]–[48] (citing Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 225 FLR 1; [2008] WASC 239): 46 In determining the questions posed in Bell Group concerning the scope of the solicitor's agency, I find that Carroll & O'Dea was not DTN's agent for all purposes, but only DTN's agent in 2018 in relation to a potential workers compensation claim. I find that knowledge of the 2012 Report, or at least knowledge of the existence of the 2012 Report, was obtained by Carroll & O'Dea in 2018 within the scope of their authority and I find that this knowledge was prima facie relevant to Carroll & O'Dea's authority. 47 It is not reasonably open to find, however, any basis upon which Carroll & O'Dea owed a specific duty to communicate the contents of the 2012 Report to DTN in 2018. I accept that DTN engaged Carroll & O'Dea for the firm's particular abilities and legal experience. I cannot find, however that their abilities and experience relevantly extend to possible contraventions of privacy principles under the PIPP Act. I do not know if Carroll & O'Dea has expertise in privacy matters but even if they do, they were not engaged by DTN for those particular abilities and expertise. 48 No materials provided to the Tribunal suggest that Carroll & O'Dea were engaged to consider any claims or matters under the PIPP Act and the respondent does not make any submission that they were so engaged. The respondent does submit that since 2011 DTN has been aware of his appeal rights under the PIPP Act, but there is no indication that, even if DTN was still aware of his appeal rights in 2018, that he engaged Carroll & O'Dea in 2018 in relation to any such rights. 1. Ground 2 of the Notice of Appeal cannot succeed. The evidence before the Tribunal at first instance supports the findings made. 2. Ground 3 in the notice of appeal is: 'Incorrect Application of Law – The Tribunal incorrectly applied the law in relation to the interpretation of section 53(3)(d) of the PPIP Act in the context of an agency agreement.' 3. In the written submissions in relation to this ground, it was again argued that the solicitors were DTN's agent for all purposes in relation to the PPIP Act. That submission is rejected for the reasons set out above. 4. Given that the scope of the solicitors' retainer did not encompass the giving of advice in relation to conduct under the PPIP Act, an argument that the solicitors' knowledge of the contested document must be imputed to DTN from the time that the solicitors came into possession of the contested document cannot be sustained. 5. No error of law by the Tribunal at first instance can be demonstrated on behalf of the Commissioner with respect to the interpretation of s 53(3)(d) of the PPIP Act. Conclusion 1. We have concluded that none of the three grounds of appeal has merit. The appeal has no reasonable chance of success. No error of principle has been identified which will result in a substantial injustice. No error of law or fact has been demonstrated in the decision at first instance. In considering the matters relevant to the discretion to be exercised under s. 80(2)(a) of the Civil and Administrative Tribunal Act 2013 as to whether leave to appeal should be granted, we conclude that the decision of the Tribunal is not attended with sufficient doubt to warrant re-consideration by the Appeal Panel. Nor has the appellant persuaded us that there is any other relevant factor to justify leave being granted. 2. Leave to appeal should be declined. 3. We make the following order: 1. The appellant's application for leave to appeal is refused. ********** 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 Amendments 04 August 2020 - Date of decision corrected. 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 August 2020