Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Skiba v Department of Communities and Justice [2021] NSWCATAD 3 Hearing dates: On the papers Date of orders: 6 January 2021 Decision date: 06 January 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: J Lonsdale, Senior Member Decision: The application made under cl 9 of the Civil and Administrative Tribunal Regulation 2014 (NSW) for an order to set aside the decision made on 27 July 2020 is refused Catchwords: PRACTICE AND PROCEDURE – application to set aside decision – whether decision made in absence of party – whether absence resulted in party's case not being adequately before the Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Privacy and Personal Information Protection Act 1988 (NSW) Cases Cited: Choi v University of Technology Sydney [2019] NSWCATAD 212 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Skiba v Department of Communities and Justice [2020] NSWCATAD 191 Texts Cited: None cited Category: Consequential orders (other than Costs) Parties: Zofia Skiba (Applicant) Department of Communities and Justice (Respondent) Representation: Solicitors: Applicant (Self-Represented) Department of Communities and Justice (Open Government, Information and Privacy) (Respondent) File Number(s): 2020/00079707 Publication restriction: None REASONS FOR DECISION 1. The applicant has applied to the Tribunal to set aside the decision dismissing proceedings in Skiba v Department of Communities and Justice [2020] NSWCATAD 191 (Initial Decision) under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) (the Regulation). 2. Clause 9 gives the Tribunal power to set aside or vary a decision that determines proceedings either with the consent of all parties (cl 9(1)(a)), or if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in that party's case not being adequately put to the Tribunal (cl 9(1)(b)). 3. For the reasons that follow the Tribunal has decided that the application to set aside the Initial Decision should be refused. Background 1. The proceeding in respect of which the Initial Decision was made was an application under the Privacy and Personal Information Protection Act 1988 (NSW) (PPIP Act). The background to the proceedings is summarised in the Initial Decision at [2] to [6] as follows: 2 In December 2019, the Applicant requested that the Respondent undertake an internal review pursuant to section 53 of the PPIP Act. She indicated that she sought review of a decision by the registry of the [Tribunal] to amend the name of a party in proceedings before the Tribunal. The Applicant was a party to those proceedings. 3 In January 2020, the Respondent wrote to the Applicant and advised her that no further action would be taken on the matter. It stated that the conduct had been addressed previously and that it had been dealt with appropriately. It considered that the matter had been also determined in the Tribunal: see DXD v NSW Department of Justice [2019] NSWCATAD 214. 4 The matter came before me for a case conference in April 2020. At the case conference the Applicant contended that the issue to be determined in this application differs from the issue in her previous matter. She argued that her previous application looked to the conduct of the Tribunal Member making the order to amend the name of the party, and that this application relates to the conduct of the Tribunal Registry declining to make the administrative change. 5 The Respondent seeks that these proceedings be dismissed for want of jurisdiction or otherwise pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). 6 Each of the parties has filed written submissions in relation to the dismissal application. 1. The directions required the respondent and the applicant to file and serve all material on which they wished to rely in respect of the application for dismissal. The respondent filed a document headed Legal Contentions of the Respondent. The applicant filed a document headed Applicant's Submissions and Issues. 2. Section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) enables the Tribunal to dispense with a hearing if satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions or other documents or material, having given the parties an opportunity to make submissions about the proposed order and having taken any such submissions into account under s 50(3) of the NCAT Act. 3. In the Initial Decision, the Senior Member considered whether a hearing should be dispensed with. The Senior Member made an order under s 50(2), explaining his reasons as follows at [9] and [10]: 9 In this case both parties have indicated their agreement to the application being determined on the papers. Having reviewed all the materials I am satisfied that this is matter [that] can be adequately determined in the absence of the parties, by considering the materials lodged by them. I therefore dispense with a hearing. 10 Section 63 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 1. Paragraphs [9] and [10] of the Initial Decision confirm procedural directions in a case conference which included a direction that the "case will be decided on the basis of the written material without the need for the parties to be present" and a note that "both parties consent to the matter being determined on the basis of the written material that is filed, without the need for a hearing". 2. The Senior Member then turned to the respondent's dismissal application, noting that the question that arose is whether, by virtue of s 6(1) of the PPIP Act, the respondent is exempt from compliance with the information protection principles in the PPIP Act. Section 6 of the PPIP provides as follows: 6 Courts, tribunals and Royal Commissions not affected (1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions. (2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission's functions. (3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes— (a) in relation to a Magistrate—such of the functions of the Magistrate as relate to the conduct of committal proceedings, and (b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009. 1. In considering what is encompassed in 'judicial functions' for the purposes of s 6 of the PPIP Act, the Senior Member stated at [17] to [21]: 17 The scope of the Tribunal's judicial functions has been considered in a number of matters. The judicial functions of the former Administrative Decisions Tribunal were considered by Judicial Member Molony in LG v Attorney Generals Department of NSW [2009] NSWADT 141. He considered a number of earlier decisions that had dealt with conduct of registry staff and he stated at paragraphs [24] – [27]: 24 What is encompassed within the concept of a court or tribunal's 'judicial functions' has been the subject of a number of earlier decisions in relation to the PIPP Act and the Freedom of Information Act 1989. In NZ v Attorney-General's Department [2005] NSWADT 103, the President considered the term in the context of s 6 of the PIPP Act. There the conduct in issue was the release by the Registrar of a Local Court of documents filed by an applicant for an AVO to other parties. He said, at [14 -18] "14 Section 6(1), to reiterate, provides that: `Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions.' The Department referred in its submissions to the structure of courts, and in particular s 10 of the Local Courts Act which provides for the office of registrar of a local court. The Tribunal is satisfied that a Registrar of a Local Court is the holder of an office of a court. 15 The conduct did not occur in Court, but involved access to files given at the counter by Registry staff. Does activity of this kind fall within the meaning of the 'judicial functions' of the Court? Section 6(3), to reiterate, provides relevantly that: 'In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it...'. 16 The Tribunal agrees with the Department's submission that the words 'relate to' have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings ... 17 See also N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33 at [32]- [33] where I dealt with a similar question, there involving a similarly-expressed immunity from review contained in s 10 of the Freedom of Information Act 1989. In that case there was an issue as to whether communications with the Registry from professional representatives were immune from the operation of the FOI Act on the basis that they were documents held by the Registry in the exercise of functions that 'relate to' the hearing and determination of claims. In that instance I ruled that professional communications of this kind 'are necessary to the efficient conduct of a claim, and fall within the scope ... of those functions that 'relate to' the hearing and determination of claims' (at [31]) (appeal dismissed, [2002] NSWADTAP 41). 18 This is a stronger case. The applicant's personal information is found in documents lodged with the Registry for use as evidence in support of her application for AVOs. The efficient performance of judicial functions depends greatly on there being a system for the receipt and organization of intended evidence in advance of the formal hearing of a matter. This system is commonly provided by a Registry under the direction of a Registrar. Decisions will frequently have to be taken by Registry officers as to the extent to which access is given to this material, ahead of hearing; or after the material has been dealt with at hearing, and has, possibly, become part of the evidence. The function of giving access to documents of that kind, and to the personal information they may contain, is one, I consider, that 'relates to' the exercise by the Court of its judicial functions. 25 On appeal from that decision the Appeal Panel in NZ v Director-General, Attorney-General's Department [2005] NSWADTAP 62 at [9] said: 9 The appellant disputed that the Registry is part of the Court. Whether or not the Registry is part of the Court is not the issue. Section 6(1) has the effect that nothing in the [PPIP Act] affects the manner in which the Registrar (or those acting on behalf of the Registrar) exercises the court's judicial functions. The Tribunal found at [14] that a Registrar of a Local Court is the holder of an office of a court within the terms of s 6. The appellant agreed with that finding. No error of law is disclosed. 26 On further appeal to the Supreme Court in Budd v Director, Attorney Generals Department [2006] NSWSC 1267 Bell J said, at [20]: … The Plaintiff's complaint concerned the release of information containing personal details. There is no question of the PPIP Act applying to a court or the holder of an office relating to a court exercising the court's judicial functions. Once the actions of the registry staff were found to relate to the judicial functions of the court within the meaning of the PPIP Act, that was an end to the matter. There could be no question of the Tribunal exercising jurisdiction under that Act. For these reasons, the grounds that I have identified as paragraph [14] (a) and (b) do not establish error of law in the way the Appeal Panel determined the issue. 27 At [27] Bell J commented on the role of the Registrar of the Local Court: 27 The Registrar of a Local Court is, to my mind, plainly the holder of an office relating to the Local Court. The duties of the Registrar Include the custody and control of documents filed in proceedings. Thus, provision is made in Pt 31.11 of the UCPR for the Registrar to produce to the Court any documents in the Registrar's custody that by notice in writing, any party to proceedings requests the Registrar to produce to the Court for the purposes of the proceedings. 18 A similar approach is to be taken in relation to the Tribunal's registry. As I noted in BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79, a case that involved the release of the applicant's personal information, in error, by registry staff of the Consumer, Trader & Tenancy Tribunal: "42. … what is relevant is whether there were proceedings before the CTTT that required "hearing" or "determination"; and whether the function that was being exercised is related to those proceedings. … 45. In my view, the provision of information relevant to the matter to be determined by the CTTT, to a party to the proceedings, is exercising a function relating to the judicial functions of the CTTT. 19 In the present case, the conduct under review is that of the Tribunal's Registrar or those acting on behalf of the Registrar. There were proceedings before the Tribunal that required "hearing" or "determination". The naming of parties bound by a determination is a central and important feature of any adjudicated decision. In my view, a decision in relation to the naming of parties is clearly related to those proceedings. Similarly, a refusal to amend the name of a party in proceedings before the Tribunal is related to those proceedings. 20 Pursuant to section 6, the PPIPA Act has no application in respect the conduct complained of by the Applicant because that conduct was undertaken in the exercise of a judicial function of the Tribunal. 21 The Tribunal therefore has no jurisdiction to review that conduct under the PPIPA Act. The application to set aside the Initial Decision 1. On 30 July 2020, the applicant lodged an "Application to set aside or vary Tribunal decision" (Set Aside Application) using the Tribunal form for applications under cl 9 of the Regulation. The applicant attached a statutory declaration and submissions in the form of an Appendix to the Set Aside Application. 2. On receipt of the Set Aside Application, the Registrar wrote to the applicant advising that, on a preliminary view, a set aside application under cl 9 of the Regulation was not appropriate and she may wish to consider lodging an appeal. The Registrar advised that the Tribunal could treat the application as an appeal of the decision, in which case they would need to pay the applicable fee less what had been paid already. The correspondence noted that time limits apply for filing applications. 3. On 20 August 2020, the applicant advised that she wished the application to be taken as a set aside application. Directions were then made for the parties to make submissions in respect of the set aside application. 4. On 6 October 2020, the respondent sent an email to the applicant and the Tribunal advising that the respondent "contends that the decision of the Tribunal dated 27 July 2020 is the correct and preferable decision". 5. In the interests of clarity (as it was unclear whether the respondent considered he was only entitled to make submissions as to whether he consented to the Set Aside Application) the parties were afforded a further opportunity to make submissions regarding the Set Aside Application and any proposed order. The applicant filed submissions dated 22 October 2020 in support of the Set Aside Application. The respondent did not file any further submissions. Applicable legislation 1. Clause 9 of the Regulation provides: 9. Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if: (a) an internal appeal or appeal to a court against the decision has been lodged or determined, or (b) an application for a judicial review of the decision has been made or determined. (6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied. (7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside. Note. An example of such a consequent order may be an order for costs in the proceedings. (8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act. Note. A hearing is not required for proceedings that are prescribed for the purposes of section 50 (1) (d) of the Act. (9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings. Discussion and findings 1. The respondent's submission that the Initial Decision is the "correct and preferable" decision must, in my view, be taken to be a submission that the respondent does not consent to the Set Aside Application for the purposes of cl 9(1)(a) of the Regulation. Accordingly, the Tribunal's power to set aside a decision under cl 9(b) of the Regulation is the relevant power and requires that the Tribunal be satisfied that: 1. the decision was made in the absence of a party; and 2. the absence resulted in the party's case not being adequately put to the Tribunal. 1. As noted above, the Senior Member made an order under s 50(2) of the NCAT Act to dispense with a hearing on the basis that the parties consented to such an order and after the Senior Member considered whether the matter can be adequately determined in the absence of the parties. 2. The decision to dispense with a hearing is a decision for the Tribunal, having taken into account any submissions of the parties as required by s 50(3) of the NCAT Act. Having formally dispensed with a hearing, it may be that the Initial Decision could not be said to have been made "in the absence of…" a party, as required by cl 9(1)(b) of the Regulation. Without the benefit of detailed submissions addressing this issue, it is not appropriate to express a concluded view in this decision. For the purposes of determining this application, the Tribunal adopts the course taken in Choi v University of Technology Sydney [2019] NSWCATAD 212 and assumes (without deciding) that the Initial Decision was made in the "absence" of the applicant. 3. The issue is then whether any such absence resulted in the applicant's case not being adequately put to the Tribunal. 4. In the Set Aside Application, the applicant summarises the case that she would have put to the Tribunal had she not been "absent" as follows: All applicant actions have been misconstrued by the Tribunal, what resulted in making a decision about conduct the applicant has not requested to review, and not making a decision regarding the conduct the applicant requested to review. 1. Further information was provided in an Appendix to the Set Aside Application and may be broadly summarised as follows: 1. The Tribunal was incorrect in stating that the applicant applied for an external review of the refusal by the respondent to conduct an internal review of her complaint. The applicant submits that she applied for a review of the "conduct that was the subject of the complaint, namely a change of name of a party to a proceeding by the NCAT Registry". 2. The Tribunal was incorrect in stating that the applicant requested a review of a decision by the NCAT Registry to amend the name of a party in proceedings. The applicant submits that she applied for a "review of an act of the [NCAT Registry] which was the change of a party name". 3. The Tribunal was incorrect in stating that the parties had filed written submissions regarding the dismissal application. The applicant states that she filed submissions only in respect of the orders she sought (namely, an apology from the respondent and a written statement). 4. The Tribunal was incorrect in finding that there were proceedings before the Tribunal at the time the alleged conduct occurred. The applicant submits that there were no such proceedings as the conduct "was done at the phase of filing an application". 1. The applicant's submissions dated 29 October 2020 raise a number of alleged inaccuracies or errors in the submissions filed by the respondent. In these submissions (and again, broadly summarised) the applicant raises similar issues as those identified above in respect of the Tribunal's statements and findings in the Initial. The applicant also submits that the respondent incorrectly referenced s 53(7)(a) of the PPIP Act as the basis on which it determined to take no further action in respect of her application for an internal review under the PPIP Act. While unclear, it appears that these submissions may to the effect that the "absence" of the respondent also resulted in the respondent's case not being adequately put. 2. In my view, the applicant's submissions: 1. Seek to argue narrow distinctions between description of the relevant conduct as well as whether something is an 'act' as opposed to a 'decision'. These arguments are made in response to the applicant's review of the Initial Decision once handed down and do not identify matters relevant to the adequacy of the case she was able to put through her written submissions. 2. Seek to argue whether it could be said that a matter relates to the hearing or determination of a "proceeding" in circumstances where the Tribunal clearly concluded at [19] in the Initial Decision (and after setting out its reasons) that "a decision in relation to the naming of parties is clearly related to those proceedings … [and similarly] a refusal to amend the name of a party in proceedings before the Tribunal is related to those proceedings". I also note that the issue of whether something forms part of "judicial functions" was raised in the applicant's submissions (and, in particular, in a section entitled Applicant's Response to Respondent's submissions) that were filed for the purposes of the respondent's dismissal application. 1. On the basis of the material before me there is nothing to support a finding that the applicant was unable to adequately put her case in writing in opposition to the respondent's application for dismissal given the opportunities provided by the procedural directions for her to do so. There is no indication as to what else she might have been able to put to the Tribunal had there been an oral hearing. Rather, the applicant appears to misunderstand or does not accept: 1. The terms of s 55 of the PPIP Act and, in particular, s 55(1) which provides that persons who have made an application for internal review who are not satisfied with the "findings of a review" or the "action taken … in relation to the application [for review]" may apply to the Tribunal for administrative review of the "conduct that was the subject of the application" for internal review. 2. The "broad meaning" and "wide connotation" of judicial functions for the purposes of s 6 of the PPIP Act and as set out in some detail in the Initial Decision at [17] to [21]. 1. Regardless of whether the applicant misunderstands or does not accept such aspects of the Initial Decision, the requirement of cl 9(1)(b) of the Regulation is that the Tribunal is satisfied that the absence of a party resulted in that party's case not being adequately put to the Tribunal. 2. I note for completeness that: 1. The applicant's submissions indicate that she had only filed submissions in respect of the orders she sought and not "submissions regarding the dismissal application". This is not relevant for the purposes of cl 9(1)(b) of the Regulation. The directions given to the parties clearly required the parties to file submissions, evidence and material in relation to the respondent's dismissal application. If the applicant decided to limit her submissions to the orders she sought, that is a decision of the applicant in respect of how she wishes to put her case and not a matter that could be said to arise from her "absence". 2. The applicant's submissions refer to alleged inaccuracies or errors in the respondent's submissions regarding s 53(7)(a) of the PPIP Act as the relevant section on which the respondent determined to take no further action. Again, this is a submission from the applicant as to her view as to the accuracy of a statement. It does not raise issues relevant to the absence of a party resulting in the party's case not being adequately put for the purposes of cl 9(1)(b) of the Regulation. I also note that the respondent has not made any submissions that he was unable to adequately put his case by way of the written submissions, evidence and material he filed. 1. For the reasons set out above, the Tribunal is not satisfied that the requirements of cl 9(1)(b) of the Regulation are met. 2. Even if the legislative requirements for granting the application are satisfied, the Tribunal has a discretion whether or not to set aside the Tribunal's decision. It is not mandatory to do so (see Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [74] to [80]). In exercising that discretion, the central question is whether there is a real likelihood that it would be unjust to let the decision stand, and that would only be likely to result if the party has an arguable defence or arguable case that a different decision could have been reached. Relevant considerations are why the party was absent, whether the party had a reasonable opportunity to be heard or have their submissions considered and whether the absent party has an arguable defence, or case that a different decision could have been reached. 3. For the reasons already identified above, there is no basis in the material available to the Tribunal that would suggest that, even if cl 9(1)(b) of the Regulation was met, the residual discretion to set aside a decision should be exercised in the applicant's favour. In the circumstances, the Tribunal is not satisfied that it could be said that the applicant has an arguable defence or arguable case that a different decision could have been reached. Orders 1. The Tribunal orders: 1. The application made under cl 9 of the Civil and Administrative Tribunal Regulation 2014 (NSW) for an order to set aside the decision made on 27 July 2020 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 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: 06 January 2021