Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EJX v University of Newcastle [2022] NSWCATAP 105 Hearing dates: 11 March 2022 Date of orders: 07 April 2022 Decision date: 07 April 2022 Jurisdiction: Appeal Panel Before: R Dubler SC, Senior Member D Robertson, Senior Member Decision: (1) An extension of time for the lodgement of an appeal against orders made on 30 July 2021 and 16 August 2021 is refused. (2) Leave to appeal against the orders made on 26 October 2021 is refused. (3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the appellant is prohibited. Catchwords: PROCEDURE – administrative review proceedings – applicant sought the issue to the respondent of a summons to produce documents– whether legitimate forensic purpose – whether summons appropriate when documents required to be produced by the respondent pursuant to statutory obligation. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: AIN v Medical Council of NSW [2017] NSWCATAP 36 Collins v Urban [2014] NSWCATAP 17 CPJ v The University of Newcastle [2017] NSWCATAD 350 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lonsdale v University of Sydney [2015] NSWCATAP 277 Nominal Defendant v Manning (2000) 50 NSWLR 139 R v Saleam (1989) 16 NSWLR 14 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 Category: Principal judgment Parties: EJX (Appellant) University of Newcastle (Respondent) Representation: Counsel: J Parkes (solicitor) (Respondent) Solicitors: Appellant (self-represented) Hicksons Lawyers (Respondent) File Number(s): 2021/00321720 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the appellant is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: N/A Date of Decision: 30 July 2021; 16 August 2021; 26 October 2021 Before: M Bechini, Registrar (30 July 2021) K Ransome, Senior Member (16 August 2021) S Montgomery, Senior Member (26 October 2021) File Number(s): 2021/00074545 REASONS FOR DECISION Introduction 1. The appellant has brought proceedings against the respondent seeking review of a decision of the respondent under the Privacy and Personal Information Protection Act 1998 (NSW). 2. The proceedings brought by the appellant (The Administrative Review Proceedings) relate to the conduct of the respondent in creating an email address for the appellant ("the Dedicated Email Address") which incorporated the appellant's student ID number. The appellant lodged a complaint, asserting that: "I believe that my privacy is breached because my unique student ID is used without my consent and notice for making an email account while I do not have any access to the email account settings or know the addresses. Moreover, I do not have any authority to check what information (in relation to me) is being disclosed through the Dedicated Email Address. The University refuses to give me access to my information unless I accept that my privacy remains breached by them." 1. The appellant's complaint was the subject of internal review pursuant to s 53 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The outcome of the internal review was communicated to the appellant by letter dated 15 February 2021. The appellant commenced the Administrative Review Proceedings on 15 March 2021. 2. By notice of appeal filed on 11 November 2021 the appellant seeks to challenge orders of the Tribunal made in the Administrative Review Proceedings on three occasions. The orders the subject of the appeal are: 1. Orders made on 30 July 2021 by a Registrar of the Tribunal refusing to issue a summons at the request of the appellant for the reason that "it has not been established the material being sought is relevant to the conduct that is subject to the application" 2. Orders made on 16 August 2021 by Senior Member Ransome refusing the application of the appellant to issue the summons which the appellant had previously sought to have issued and amending directions made on 5 July 2021 for the filing of points of claim and material in support by the appellant, points of defence and material in support by the respondent and material in reply by the appellant . The reasons given for the refusal to issue the summons were as follows: "The documents sought under items 1 to 3 of the summons request are irrelevant to the issues in the case or the request is overly broad and lacks a legitimate forensic purpose. Documents in item 4 are already required to be produced in accordance with the directions of the Tribunal made on 5 July 2021 and the request is overly broad in any event. Documents sought under item 5 are publicly available and therefore already available to the applicant." 1. Orders made on 26 October 2021 by Senior Member Montgomery further amending the orders made on 5 July 2021. 1. It is necessary to note immediately that each of the orders challenged by the appellant is an interlocutory order of the Tribunal (as that term is defined in s 4(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)) and therefore, pursuant to section 80 (2) (a) of the NCAT Act, the appellant requires the leave of the Appeal Panel to bring the appeal. 2. It is also appropriate to recognise that the first orders challenged by the appellant, those made by the Registrar on 30 July 2021, were superseded by the orders of the Tribunal made on 16 August 2021. 3. It is further appropriate to recognise that the orders made by the Tribunal on 26 October 2021 were superseded by orders made on 18 November 2021 which set aside the directions, made on 5 July 2021 and amended on 26 October 2021, and listed the Administrative Review Application on 29 March 2022, for directions. 4. The appellant submitted that she was not appealing against the directions made on 26 October 2021, but rather against the refusal of the Tribunal on 26 October 2021 to direct the issue of the summons. We note that s 80 of the NCAT Act permits an appeal against a "decision" of the Tribunal. "Decision" is defined in s 5(1) of the NCAT Act to include refusing to make an order. However, we note that the appellant did not make any formal application to the Tribunal on 26 October 2021 that it reconsider the decision of Senior Member Ransome and that, in the absence of "a change of circumstances or fresh evidence", any such application would have been appropriately dismissed as an abuse of process: Nominal Defendant v Manning (2000) 50 NSWLR 139 at [71] – [72] and [122] – [124]. (See also AIN v Medical Council of NSW [2017] NSWCATAP 36 at [23] and [25].) The Tribunal did not make any formal order declining to issue the summons on 26 October 2021. 5. Finally, as a preliminary matter, it is appropriate to note that the appeal, to the extent it challenges the orders made on 30 July and 16 August 2021, is filed outside the time laid down by the NCAT Act for the lodgement of an appeal against a decision of the Tribunal. Therefore, the appellant requires an extension of time for the lodgement of her appeal in respect of the orders made on 30 July and 16 August 2021. 6. As the orders made by a Registrar on 30 July 2021 were superseded by the orders made on 16 August 2021 it is not necessary to consider further the appeal to the extent it challenges the orders made on 30 July 2021. 7. As the orders made on 26 October 2021 have been set aside and the appellant's challenge is not to the orders themselves but to the Tribunal's failure to make an order, which the appellant had not formally sought and would, if sought, likely have been refused for the reasons outlined above, it is also not necessary to consider further the appeal to the extent that it challenges the orders made on 26 October 2021. 8. The issues before the Appeal Panel are, therefore: first, whether the appellant should be granted an extension of time to appeal against the orders made on 16 August 2021 refusing to issue a summons at the appellant's request; secondly, whether the appellant should be granted leave to appeal against those orders; and thirdly, if the first two issues are resolved in the appellant's favour, whether the decision to refuse to issue the summons sought by the appellant was infected by error. 9. Both parties filed written submissions in chief and the appellant filed submissions in reply. The respondent's submissions in chief and the appellant's submissions in reply both included a transcript of the hearings on 16 August and 26 October 2021. 10. The respondent filed two pages headed "Respondent's Further Submissions" on 7 March 2022. The appellant objected to the Appeal Panel receiving those submissions as they were not filed in accordance with directions. Although the further submissions merely referred to further authorities which the Appeal Panel might have had regard to in any event, the Appeal Panel permitted the appellant to file further submissions in response within 7 days after the hearing. That timetable was subsequently extended and the appellant filed her further submissions on 24 March 2022. We have read and had regard to all submissions filed by the parties. The nature and scope of internal appeals 1. 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]. 2. 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]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. Grounds of Appeal 1. The appellant's grounds of appeal in relation to the order of 16 August 2021 were as follows: a) The grounds for administrative review application to Tribunal includes breach of applicant's privacy and internal review process under the Act. b) Applicant's appeal was not reviewed by Tribunal at the time the Order was made. c) Applicant believes that production/release of materials is required for making an impartial evidence-based decision by the Tribunal, and to make equal opportunity for both parties to rely on the evidence. … d) The comment by Tribunal is false in relation to Documents in item 5 of issue of summons. This item was not discussed at the Summons Hearing. Tribunal has decided only relying on the claims by respondents' solicitor without hearing Applicant. Applicant is in the view that her submission is ignored by the member. e) Applicant had already objected making a determination by Tribunal on a submission-based-only. Applicant raised her concerns at hearings on 3 and 16 August 2021 for records after notice of not being heard f) General nature of Respondent's objection to issue of summons is based on the registrar's determination in First Order issued on 30 July 2021. … g) Given the lack of reviews and judgment by the registrar as described above, the Tribunal could and should not have accepted the Respondent's objections to issue of summons. h) The material to produce is related to the Applicant's privacy claims and concerns reported to the Agency under the Act. In the circumstances that the Agency refused to seek clarification on the allegations, the Tribunal should not have refused issue of summons, while one of the grounds for administrative review application is about faulty internal review process. … i) The Agency reviewer's decision has been made relying on the documents that applicant has requested under summons, noting that the material was not provided to her together with the findings. … j) It is not fair that Tribunal refuses issue of all summons items without proper reasons. If a "broad timeframe" is a concern by the respondent, the Tribunal had capacity and could have limited the timeframe or the requested items in Summons application. k) The Tribunal is ignorant of the fact that the respondent did not object to production of internal review material under summons; the only concern was the timeframe. … For procedural fairness and judgment, the timeframe must include all evidence and material that was used for internal review, not specifically what respondent wish to provide. l) Tribunal could and should have been properly concerned about the independency of the stressed objection made by respondent's solicitor in relation to the issue of summons as concern raised by the Applicant … . m) The Order is made on the basis that "Documents in item 4 are already required to be produced in accordance with the directions of the Tribunal made on 5 July 2021". In contrary, the Order issued on 5 July says, "University of Newcastle is to give to the Tribunal and … (EJX) its points of defence and material in support by 27 September 2021." Contrary to the order made on 16 August 2021, there is no requirement for the respondents to produce the documents in item 4 of order made on 5 July 2021. This was also confirmed by Senior Member Montgomery in the direction hearing on 26 October 2021. Extension of time 1. The Appeal Panel has power to extend the time for the lodging of an appeal by virtue of s 41 of the NCAT Act. 2. The principles applicable to the exercise of the discretion to extend time were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision — Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success — Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), — Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable — Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]–[59]. 1. The delay in this case in filing an appeal against the orders of 16 August 2021 is substantial. 2. The explanation for the delay in filing the appeal appears to be that the appellant only understood that the appropriate mechanism to challenge the orders of 16 August 2021 was to lodge an appeal against those orders when Senior Member Montgomery, in the course of the directions hearing on 26 October 2021, commented, in response to an assertion by the appellant that the member hearing the application for issue of a summons on 16 August 2021 "didn't review my application and made the order based on assumptions", that, if the appellant considered that the Senior Member had "got it wrong", the appellant could appeal her decision. That is some explanation for the delay, albeit not an entirely satisfactory explanation. 3. The respondent does not suggest that it is prejudiced by the late filing of the appeal. 4. In those circumstances, in our view, the determinative factor in considering whether to grant an extension of time must be the strength of the appellant's case. The appellant's case 1. The summons which the appellant sought to have issued to the respondent sought the following documents: 1 The information exchanged between The University and its Units/staff/services in relation to creation and use of the Dedicated Email Address, 2 Contact details of the of the intended addresses of the Dedicated Email Address at The University as referred to in the outcome report with Ref LEG 20-0800. 3 The information exchanged between The University with its Units/staff in relation to Applicant after creation of the Dedicated Email Address. All communication transferred through Dedicated Email Address in addition to all communication between the University and external agencies including the IPC. 4. All documents relevant to the internal review. 5 All relevant policies as relied on them for making determination in the outcome report with Ref LEG 20-0800 issued by The University on 15 February 2021. 1. The appellant's written submissions in support of her appeal generally repeat the grounds of appeal with some elaboration. It is not necessary to canvass the appellant's submissions or grounds of appeal in detail. In light of the fact that this appeal relates to a question of practice and procedure we note the comments of the Appeal Panel in Collins v Urban at [84(3)]. 2. A number of the appellant's grounds of appeal can be quickly dismissed. We will address those grounds of appeal first, before turning to those which require greater consideration. 3. We note, as a preliminary matter, that the respondent had not, as at the date of the hearing of the appeal, lodged with the Tribunal the documents referred to in s 58 of the ADR Act. That section provides: 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. (2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs. (3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order. (4) If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator: (a) stating that the Tribunal or President is of that opinion, and (b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator. (5) The principal registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours. (6) If a party to proceedings before the Tribunal seeks a summons under the Civil and Administrative Tribunal Act 2013 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the principal registrar of the Tribunal to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons. (7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following: (a) an order made under section 59 (Objections to lodgment), (b) an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, (c) section 66 (Effect of Government Information (Public Access) Act 2009) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act). (8) For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access. 1. Ms Parkes, solicitor, who appeared for the respondent, submitted that the respondent's obligation pursuant to s 58(1) was encompassed within the directions for the exchange of documents made on 5 July 2021 (as subsequently amended). 2. When this proposition was questioned by the Appeal Panel, Ms Parkes obtained instructions and informed the Appeal Panel that the documents would be lodged by the Monday following the hearing. Consideration of the appellant's grounds of appeal in respect of the orders of 16 August 2021 Ground (a) 1. This ground does not raise any basis for challenge to the Senior Member's decision Ground (b) 1. This ground involves the assertion that the Senior Member did not review the decision of the registrar. That was not necessary, the Senior Member determined afresh the question whether the summons should issue. Ground (c) 1. This ground does not identify any basis of challenge to the Senior Member's decision Ground (d) 1. This ground asserts that the Tribunal's refusal to require production of category 5, that is, policies relied upon by the respondent, was based upon a false premise, that is that the policies were publicly available. 2. The respondent submitted that the appellant had pointed to no evidence to suggest that the policies were not publicly available. The appellant asserted in the course of oral submissions that she had not been able to find the policies. 3. The appellant, also in the course of oral submissions, identified the policies which paragraph 5 was intended to capture as two documents referred to in the respondent's internal review. Those documents are clearly documents encompassed by s 58(1)(b) of the ADR Act and will be produced by the respondent pursuant to that provision. We do not consider that the requirements for the grant of leave to appeal as set out in Collins v Urban at [84(2)] have been established in relation to the refusal to require production of category 5. Ground (e) 1. This ground asserts that the Tribunal erred by making a determination on the basis of written submissions. However both versions of the transcript of the hearing on 16 August 2021 indicate that the appellant was given the opportunity to make oral submissions in support of her application for the issue of the summons. Grounds (f) and (g) 1. These grounds also rely upon the proposition that the Senior Member was required to review the decision of the Registrar. As we have noted in relation to ground (b), that is not correct. Ground (j) 1. This ground adds nothing to the appellant's challenges to the Tribunal's conclusion that the documents sought under items 1 to 3 were irrelevant to the appellant's case Ground (l) 1. This ground raises concern about the independence of the respondent's solicitor. That is no basis for challenge to the Tribunal's decision to refuse the summons 2. The remaining grounds require greater consideration. 3. Ground (h) challenges the Tribunal's conclusion that the documents sought in items 1 to 3 of the proposed summons were irrelevant to the appellant's case. 4. Grounds (i), (k) and (m) challenge the Tribunal's refusal to order production of the documents sought in item 4 of the proposed summons, that is documents relevant to the internal review. Ground (h) 1. The test for whether the Tribunal should issue a summons for the production of documents at the request of a party has been equated to the test applied by the Courts in relation to the setting aside of a subpoena. 2. In Lonsdale v University of Sydney [2015] NSWCATAP 277 at [22] the Appeal Panel noted that the Court of Appeal decision in R v Saleam (1989) 16 NSWLR 14 at [11]: "stands for the following propositions: before a summons is issued, 'the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case'". 1. In CPJ v The University of Newcastle [2017] NSWCATAD 350 Deputy President Hennessy held, at [9] – [12] 9 A registrar may, on the application of a party to proceedings or at the direction of the Tribunal, issue a summons: NCAT Act, s 48. NCAT Procedural Direction 2 gives as an example of an objection that can be made to a summons, that the "evidence, documents or other things identified in the summons are not relevant to any issue in dispute in the proceedings". The Tribunal may draw on common law principles when determining whether to set aside a summons. At common law, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]. 10 It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. It is also impermissible for a party to use a summons for "fishing". The author Bernard Cairns describes "fishing" as "where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge": Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 585. 11 The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25]. The test is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447. 12 In a recent Supreme Court case, Brereton J summarised the principle as being "… that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they "appear relevant in the sense they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35] (footnotes deleted.) 1. The issue in the Administrative Review Proceedings is whether the respondent's response to the appellant's complaint, as expressed in the outcome of the internal review, was the correct and preferable decision (ADR Act s 63). That will require determination of whether the respondent breached the Information Protection Principles set out in the PPIPA Act by creating and using the Dedicated Email Address. 2. The appellant's submissions do not articulate any legitimate forensic purpose relating to that issue for any of items 1 to 3 in the proposed summons. 3. The appellant's submissions tended to suggest that the documents were relevant to issues other than those the subject of the Administrative Review Proceedings. 4. The appellant asserted that documents the subject of item 1, "information exchanged between the University and its Units/staff/services in relation to creation and use of the Dedicated Email Address" were relevant to the reasons for the creation of the Dedicated Email Address. 5. However, the reasons for the respondent's establishment of the Dedicated Email Address are not obviously relevant to the issue whether the creation and use of the Dedicated Email Address was contrary to the Information Protection Principles. The appellant did not in either her written or oral submissions articulate any basis upon which the reasons might be relevant. 6. In oral submissions the appellant argued that the documents the subject of item 2, "contact details of the intended addresses of the Dedicated Email Address" related to the "small number of University officers that are responsible for managing your inquiries and concerns" to whom, according to paragraph 4(b) of the respondent's internal review, "access to the Dedicated Email Address is limited". 7. We are not persuaded that documents identifying the officers of the respondent who have access to the Dedicated Email Address or providing their contact details would be relevant to the issues arising in the Administrative Review Proceedings or have any legitimate forensic purpose in those proceedings. 8. Item 3 in the proposed summons seeks two categories of documents: information exchanged between the respondent and its units or staff in relation to the appellant after creation of the Dedicated Email Address; and communications transferred through the Dedicated Email Address. 9. The former category has no apparent relevance to the issues arising in the Administrative Review Proceedings. With respect to the latter category, as the appellant would have access to any documents transferred through the Dedicated Email Address, there could be no legitimate forensic purpose in requiring the respondent to produce those documents. 10. We are not persuaded that ground (h) of the appellant's grounds of appeal in respect of the orders of 16 August 2021 warrants the grant of leave to appeal or an extension of time for the lodgment of the appeal. In our view there is not, in the Senior Member's decision to refuse to direct the issue of a summons requiring production of the documents in items 1 to 3 in the appellant's draft summons, 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. Grounds (i), (k) and (m) 1. On 16 August 2021 Senior Member Ransome gave two reasons for refusing the issue of a summons to produce the documents in item 4 of the proposed summons. That the category was too broad and that the relevant documents would be produced in any event. 2. We agree with the Senior Member that the request as drafted was too broad. 3. A subpoena (or summons) which requires the production of documents "relevant" to an issue in proceedings is objectionable because it impermissibly imposes an obligation in the nature of discovery: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 at 718. 4. Although the appellant may be correct that the directions made on 5 July 2021 did not require the respondent to produce all documents relevant to the internal review, it is clear in our view that s 58(1)(b) of the ADR Act does have that effect and that, for that reason, it was appropriate to refuse to issue a summons in terms of item 4 in the appellant's draft summons. 5. We also note the comments of the Appeal Panel in Lonsdale v University of Sydney [2015] NSWCATAP 277 AT [31] – [32]: 31 The review jurisdiction of the Tribunal is not strictly adversarial in the way seen, for example, in civil jurisdictions such as consumer claims or home building disputes. The object of the proceedings is to ascertain the 'correct and preferable' administrative decision having regard to 'all relevant factual material' and 'any applicable written or unwritten law': Administrative Decisions Review Act 1997, s 63. To that end, the agency is obliged to furnish to the Tribunal all material in its possession that it considers relevant to the proceedings: s 58. The Tribunal has an active role to play in scrutinising and assessing the documents for which protection is sought, and forming a view as to what might be relevant to its consideration of the matter. It will first decide if the documents are of a kind to which the consideration relied upon by the agency applies. It will then weigh the considerations for and against disclosure, having regard to the leaning position in favour of access (GIPA Act, ss 12, 13). Critical to its consideration will be the evidence relied upon by the agency, and the testing of that evidence by the review applicant. Sometimes there will be little that the review applicant can effectively add to the process, because the applicant (and any witnesses called by the applicant) will not have seen the documents in issue. 32 … It is open to the Tribunal or the registrar to form a view as to whether the witnesses to be produced by the agency and the material produced in connection with the decision under review (including the documents in dispute) provide sufficient, relevant information to enable it to hear and determine the issues that arise. 1. Although the Appeal Panel was there dealing with proceedings arising under the Government Information (Public Access) Act 2009 (NSW) rather than the Privacy and Personal Information Protection Act 1998 (NSW), the principles stated are equally applicable. Conclusion 1. It follows from the above that the appellant's case in respect of the orders of 30 July 2021 and 16 August 2021 does not warrant the extension of time within which to appeal and we decline to extend time for the lodgement of an appeal in respect of those orders. 2. We decline to grant the appellant leave to appeal against the decision of 26 October 2021. Costs 1. The respondent sought an order for the costs of the appeal. 2. Section 60 of the NCAT Act provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following— (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may— (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section— costs includes— (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. Accordingly, we must find that there are special circumstances before making an order for costs. 2. The respondent submitted that there were special circumstances in this case. It relied upon paragraphs (b), (c) and (e) of sub-section 60(3), submitting: that "the appellant is responsible for prolonging unreasonably the time taken to complete the proceedings"; that "the appellant has made an interlocutory appeal which has no tenable basis in fact or law"; and that "the appeal is misconceived and lacking in substance". 3. We are not persuaded that there are special circumstances in this case warranting an order for costs. 4. Although the lodgement of the appeal may have prolonged the Administrative Review Proceedings, we are concerned with the conduct of the appeal proceedings. On the material which has been put before the Appeal Panel there is no basis to suggest that the appeal proceedings were unreasonably prolonged, or that the appellant was responsible for any delay in the prosecution of the appeal. 5. We have found that the appeal and application for leave to appeal were largely misconceived. However, in circumstances where the respondent, for reasons which were not fully explained to the Appeal Panel, had failed to comply with its obligations pursuant to s 58(1)(b) of the ADR Act, we cannot find that the appeal was brought entirely without a tenable basis. As we have noted, the refusal to issue a summons for the production of documents relevant to the internal review was warranted. However, had s 58(1) been complied with, the appellant may not have felt the need to seek the issue of a summons in those terms. Order 1. An extension of time for the lodgement of an appeal against orders made on 30 July 2021 and 16 August 2021 is refused. 2. Leave to appeal against the orders made on 26 October 2021 is refused. 3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the appellant is prohibited. ********** 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: 07 April 2022