Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BVV v Commissioner of Police [2023] NSWCATAP 6 Hearing dates: 25 February 2022 Date of orders: 11 January 2023 Decision date: 11 January 2023 Jurisdiction: Appeal Panel Before: I Coleman SC ADCJ, Principal Member T Simon, Principal Member Decision: 1. The Appeal is dismissed Catchwords: APPEAL – privacy and personal information protection - apprehended bias – s 18 (1) (a) of the Privacy and Personal Information Protection Act 1998 – summons - procedural fairness– adequacy of reasons Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: C G Constructions Pty Limited v Hanson Constructions Materials Pty Limited [2017] NSWCATAP 130 Chapman v Taylor [2004] NSWCA 456 Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Monie v Commonwealth [2005] NSWCA 25; 63 NSWLR 729 Stoker v Adecco Gemuale Constructions Pty Ltd [2004] NSWCA 449 The Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Texts Cited: None Cited Category: Principal judgment Parties: BVV (Appellant) Commissioner of Police (Respondent) Representation: Counsel: J Curtin (Respondent) Solicitors: BVV (Appellant in person) Crown Solicitor (Respondent) File Number(s): 2021/266019 Publication restriction: The name of the Appellant is not to be published. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 250 Date of Decision: 20 August 2021 Before: D Dinnen, Senior Member File Number(s): 2020/20455 REASONS FOR DECISION 1. This is an appeal from a decision of the Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal (NCAT), made under the Privacy and Personal Information Protection Act 1998 (NSW) (PIPP Act). 2. On 21 January 2020, BVV made an application to NCAT seeking review of a decision of the respondent in relation to disclosure of a deed executed on 22 November 2011. BVV alleged that the respondent had breached s 12(c) of the PIPP Act. The substantive hearing of the matter commenced on 1 April 2021 and was resumed on 23 April 2021. At the resumed hearing BVV made an application for the Senior Member to disqualify herself from the proceedings and sought an adjournment on that basis. The Senior Member refused the request. The Tribunal later provided reasons for that decision on 17 August 2021 (the disqualification decision). On 20 August 2021, the Tribunal made orders in the substantive application not to take any action in the matter (the substantive decision). The appellant appeals both those decisions. The Appeal 1. Decisions of the Tribunal are internally appealable decisions and an appeal can be made from them as of right where there is a question of law and with the leave of the Appeal Panel on specified grounds: see, s 80(1) and (2) (a) and (b) of the Civil and Administrative Tribunal Act 2013 (NSW), (NCAT Act). The Notice of Appeal was lodged within the 28-days as period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules). 2. BVV raises 5 grounds of appeal which he categorises as raising questions of law: 1. The Senior Member did not disqualify herself from hearing the matter and there was a reasonable apprehension of bias. 2. The Tribunal failed to exercise jurisdiction because it failed to hear and determine BVV's: 1. request for referral of his objection to production of his objection to production of material under the respondent's summons to the Tribunal for decision 2. A second request for disqualification dated 13 July 2021. 1. There has been a denial of procedural fairness by: 1. Commencing the hearing on 1 April 2021 without the BVV having been given access to the material produced under the summons 2. Interrupting BVV's evidence 3. Disregarding BVV's objections to questions on the ground of privilege 4. Pressing BVV to give answers to questions that supported the respondent's case (including disclosure of privilege communications 5. Refusing BVV an opportunity to conduct re-examination of himself 6. Informing BVV that the respondent would have an opportunity to conduct re-examination of the respondent's witnesses 7. Unreasonably delaying the provision of reasons for refusing the BVV's first request for disqualification dated 23 April 2021 1. Tribunal erred by misapplying the exception in section 18(1)(a) of the PIPP Act. 2. The Tribunal did not provide adequate reasons in rejecting BVV's submissions regarding disclosure. 1. At the hearing before us, although provided with the opportunity to do so, the parties provided only sought to provide brief oral submissions in relation to the first ground. Documents received by the Appeal Panel 1. The Appeal Panel received the following submissions and documents from the parties. 1. Notice of Appeal received from BVV, lodged on 17 September 2021, together with documents and submissions. 2. A reply to the Appeal received from the respondent on 1 October 2021 3. Submissions received from BVV on 22 December 2021 4. Agreed Appeal Bundle received on 4 January 2022 5. Submissions received from the respondent on 31 January 2022. 1. The Appeal Panel also had a copy of the directions that had been made by the Appeal Panel and a copy of the original orders and reasons for the decision provided by the Tribunal for the disqualification and substantive decisions. Ground 1 – Apprehended Bias 1. The application for the Senior Member to disqualify herself was on the basis that BVV alleged that the Senior Member had a long-running relationship with the respondent from 2012 to 2017. He alleges that the Senior Member continued to represent the respondent's interests in proceedings in the Industrial Relations Commission of NSW after she was appointed a part-time Senior Member of the Tribunal and that the Senior Member did not disclose the relationship to BVV. 2. BVV also submits that the Senior Member did not provide reasons at the time she made the decision refusing to disqualify herself and subsequently did not provide reasons within 28 days after BVV's request for written reasons in accordance with s 62 of the NCAT Act. 3. On 13 July 2021, while the decision was reserved, BVV made a further request that the Senior Member disqualify herself from further involvement in the matter on the ground of apprehended bias. On 17 August 2021, the Tribunal published reasons for the disqualification decision and on 20 August 2021 the Tribunal published the reasons in the substantive matter. 4. BVV submits that: * The Senior Member did not immediately give reasons for her refusal to disqualify herself and subsequently delayed in providing the written reasons. * The Senior Member failed to address the case of Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69, which BVv had raised. * The Tribunal refused to conduct an oral hearing regarding BVV's second application for the Senior Member to disqualify herself. 1. At the commencement of the second day of the hearing on 23 April 2021, the Senior Member dealt with an application from BVV to disqualify herself on the ground of apprehended bias. The transcript reveals that the Senior Member refused the application and when asked for reasons told BVV that she would provide reasons with the substantive application. Below are the relevant parts of the transcript: SENIOR MEMBER: All right. Thank you. I've had a chance to consider that application, BVV, and the submissions made by yourself and Ms Curtin. I'm going to refuse the application. I find that there is no basis - sorry, I withdraw that. I'm going to refuse the application, and we're going to proceed with the substantive hearing now. APPLICANT: Senior Member, are you - do you propose to provide reasons for your decision? SENIOR MEMBER: I'm not going to provide reasons at this point, in the interests of concluding this hearing. I will provide reasons along with the substantive reasons when I - when the matter is concluded. APPLICANT: Thank you. Senior Member. I propose to terminate the call now. I am of the view that it's procedurally unfair that you are not providing reasons in relation to the issue. I - before I do, I request that this matter be adjourned, as I propose to appeal your decision. So, I - before I take any further steps can you please decide my request for an adjournment pending an application to appeal your decision to refuse to recuse yourself? SENIOR MEMBER: On what basis are you seeking an adjournment? APPLICANT: On the basis that I propose to file an appeal against your decision refusing to recuse yourself. SENIOR MEMBER: Well, you can do that at any stage, you don't need to do it now. What - what reason - what basis do you have for us adjourning this morning's hearing? APPLICANT: There - in my view you have erred by not disqualifying yourself, or recusing yourself. You have declined to provide any reasons for that. I propose to appeal your decision, and I don't wish to participate any further in the hearing — … SENIOR MEMBER: I'm sorry, I said I will be providing reasons with the substantive hearing decision. I didn't refuse to provide reasons, I'm just not providing them today. APPLICANT: I - I understand that's what you said. Nonetheless, given the - the reasons for making the application, and the authorities that have been provided in support of that. I'm of the view that you are disqualified on the ground of apprehended bias, and your decision is erroneous not to do so, to - to disqualify yourself, and I propose to appeal that decision. And, that is the basis this matter should not proceed in the interim while that issue is outstanding. … APPLICANT: And, I can undertake to file my application for the appeal within seven days of today to ensure it is progressed in a timely manner. 35 SENIOR MEMBER: Yes. Ms Curtin? MS CURTIN: Senior Member, in the - a stay, as - as - as you know. Senior Member, is not automatically granted in these circumstances, simply because BVV has indicated that he wishes to appeal the decision that you've just made. BVV needs to articulate a basis for why it is that he says it's appropriate in the circumstances for a stay to be granted and, in my submission, he hasn't articulated one. A stay, in my submission, would not be warranted in the circumstances, and the proceeding should continue. I - I might add that particularly the case in circumstances where these proceedings have been on foot since they were commenced in January last year. This is the second day of a hearing that had been initially set down for one day. Those factors don't, in my submission, actually make any difference to the decision that has to be made as to whether a stay should be warranted, but I simply indicate that that would amount to prejudice, I suppose, if a stay were granted to the Respondent. And, so, when we're 10 considering the balance of convenience as to whether a stay is warranted, in my submission the balance of convenience tips in favour of the Respondent rather than the Applicant. SENIOR MEMBER: Yes, thank you. Now, BVV — 15 APPLICANT: Yes. SENIOR MEMBER: — I - I don't propose to adjourn the matter, and I see no basis for making - for making orders in relation to a stay of the proceedings pending an appeal of the disqualification application. If you choose to hang up, that's - that's a matter for you. But, this is your application. I'll then be - it - it's up to the - the Commissioner of Police what - what they wish to do with the application from - from there. But, it is my intention to continue this matter today as - as planned, and I see no basis for departing from that. APPLICANT: Yes, I understand. I - I will hang up the call now, thank you very much. I will be appealing your decision, for the record, and I also note the - that, as I've said there, it is procedural unfairness in not 30 providing reasons this morning for that decision, and I'll hang up now. Thank you. Good morning. APPLICANT DISCONNECTS 1. The Senior Member then adjourned the matter for 30 minutes and the following exchange occurred when the hearing recommenced: SENIOR MEMBER: Thank you. The Registry has sent both yourself and BVV notice that the matter would be resuming today at 11:20. I note that BVV is not on the line. What I might do is just try to dial him in. MS CURTIN: Yes, thank you. … SENIOR MEMBER: I've tried to dial him in using the mobile phone on his applications, but there's no answer. So, we might continue. 1. The hearing then continued in the absence of BVV. Delay in giving Reasons 1. BVV submits that the Tribunal did not provide written reasons in accordance with s 62 of the NCAT Act. 2. Section 62(2) of the NCAT Act relevantly provides that: (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. 1. Section 62(2) requires the Tribunal to provide a written statement of reasons 28 days after a request is made. It does not require the Tribunal to provide reasons, immediately, at the time of making the decision. 2. BVV states that the Tribunal did not comply with the statutory obligation to provide written reasons within 28 days after his request. The respondent submits that, the time for providing reason was extended to 90 days during the COVID-19 pandemic and on that basis the reasons were within time. 3. Clause 27 of sch 1 of the NCAT Act relevantly provided: If, during the prescribed period, the Tribunal is requested to provide a written statement of reasons under section 62, the Tribunal is to provide the statement within 90 days (or any other period of time prescribed by the regulations) after the request is made instead of within 28 days. 1. The reasons for the decision were published to the parties on 17 August 2021, that would be more than 90 days after the date the decision was made at the hearing. 2. However, the exchange between the parties on 23 April 2022 does not demonstrate that BVV explicitly sort written reasons for the decision pursuant to s 62 of the NCAT Act. The exchange implies that BVV was expecting oral reasons as soon as the decision was given. There was no basis for that expectation. The Senior Member had indicated she would provide the reasons with the substantive application. 3. Even if it we were to infer that the exchange at the hearing was a request for written reasons (which we do not) for decision under s 62(2) of the NCAT Act, in our view the delay itself would not give rise to a question of law. In Monie v Commonwealth [2005] NSWCA 25; 63 NSWLR 729, Hunt AJA concluded in relation to delay in providing reasons for decision at [44]: 44 It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial. Delay may assist an appellant in establishing such error because, as the approach identified by the Full Federal Court demonstrates, the inference will more readily be drawn that a trial judge's failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge - either because of the time which has passed or because of the pressure on the judge in the end to complete the judgment. In Boodhoo v Attorney General of Trinidad and Tobago [2004] 1 WLR 1689 at [11], the Privy Council acknowledged that the delay in giving the decision may adversely affect its quality to such an extent that it cannot be allowed to stand. That is what must be shown in order to demonstrate error resulting from delay which warrants either a reversal or a new trial. That is what I understand the judgment in Expectation Pty Ltd v PRD Realty Pty Ltd at [69] et seq to be saying. 1. BVV would need to demonstrate any consequence that arose because of the delay. Having considered the remaining issues raised by BVV in relation to this ground, he has failed to demonstrate that the delay had any consequence that affected the proceedings or the decsion. Failure to take into consideration Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69 1. The legal test for apprehended bias requires a decision maker to disqualify themselves from hearing a matter if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided. (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8].) 2. The basis for BVV's allegation of apprehended bias, was that the Senior Member had a long- running relationship with the respondent spanning from 2012 to 2017 and continued to represent the respondent's interests in proceedings in the Industrial Relations Commission of NSW after she was appointed as a part-time Senior Member of the Tribunal.. 3. At [4] – [14] of the reasons for decision, the Tribunal considered that application and relevantly stated: 4. The Applicant's application on 23 April 2021 for me to disqualify myself from these proceedings was expressed to be founded on my past professional association with the Respondent. Specifically, my appearance as counsel for the Commissioner of Police and NSW Police Force in the matters of Rasmussen v State of NSW, NSW Police Force [2013] NSWADT 277, Stephen Bell v Commissioner of Police [2015] NSWIC 11 and Tysoe v Commissioner of Police [2017] NSWIRComm 1002. 5. The Applicant submitted that because I had represented the Respondent as counsel on three occasions between 2013 and 2016, I was not independent, was biased towards the Respondent, and should recuse myself from hearing this matter. The Applicant submitted that my representation of the Respondent after my appointment to NCAT in 2016 was further proof of my partiality towards the Respondent. 6. During oral submissions the Applicant added that my involvement as counsel in the matter reported as Lym International Pty Limited v Westpac Banking Corporation [2011] NSWSC 927 was a further basis for my disqualification, because I had appeared for Westpac in circumstances where they were instructed by Henry Davis York, and a witness in these proceedings had previously been employed by Henry Davis York. 7. The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy in the following way at [8]: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 8. An application for disqualification should be determined by the decision-maker whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240. 9. These proceedings involve an assessment of whether the Respondent has breached certain provisions of the Privacy and Personal Information Protection Act 1998 with respect to the Applicant's personal information. The Applicant did not make any submissions logically or reasonably articulating how my previous appearances as counsel for the Respondent would or could impact my decision making in relation to the specific issues in these proceedings involving privacy legislation. The reasons for his application were articulated more broadly to encompass my alleged bias towards the Respondent generally, irrespective of the subject matter of these proceedings. The Applicant also did not make any logical or reasonable submissions articulating how the extremely tenuous link between a witness' past employment by Henry Davis York and my appearance for Westpac on one occasion in 2011 could possibly impact my consideration of evidence in these proceedings. 10. My involvement as counsel for the Respondent in the matters reported as Rasmussen v State of NSW, NSW Police Force [2013] NSWADT 277, Stephen Bell v Commissioner of Police [2015] NSWIC 11 and Tysoe v Commissioner of Police [2017] NSWIRComm 1002 is a matter of public record, as is my appointment to NCAT as a part-time senior member in July 2016. My inclusion as second junior counsel in the matter reported as Lym International Pty Limited v Westpac Banking Corporation [2011] NSWSC 927 is also a matter of public record. There were no factual disputes arising. 11. In considering the Applicant's application for my recusal, I noted that the size and breadth of the Respondent as an agency involved in legal proceedings in New South Wales was considerable, as is their use of counsel. Relevant also was the fact that considerable time had passed since I was last briefed by the Respondent, and that none of the matters I had been briefed in involved consideration of the privacy legislation or privacy issues. There was no factual basis to support the submission made by the Applicant that I had any form of continuous or ongoing engagement or involvement with the Respondent beyond my role as counsel briefed in those three specific matters. 1. In support of the application for the Senior Member to disqualify herself, BVV cited the decision in Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69. BVV submits that the Tribunal failed to properly consider that case. BVV relied on comments made at by His Honour, Justice Livesey, at [67] of the judgement: However, in this case the representation of Adelaide Brighton was in relatively long-running litigation which only came to an end immediately before my appointment to this Court. It seems to me that it is the combination of representation for a period exceeding two years, and its subsistence until immediately before my appointment, that may be capable of giving rise to the requisite apprehension: namely, the fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the case because it appears that I represented the interests of Adelaide Brighton until a day before my appointment in January of this year. 1. In our view, it was unnecessary for the Tribunal to refer to that case even if the BVV had raised it in submissions. The decision in Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited does not raise any additional legal principles to what was referred to by the Senior Member at [6] – [7] of her reasons for decision. The factual circumstances of Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited are also distinguishable. The basis of that application Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited was that before His Honour's appointment to the Supreme Court of South Australia, he had represented the defendant, Adelaide Brighton Cement Limited, in two matters where there were issues raised like those in the proceedings that were before him. 2. In these proceedings there was no suggestion that the Senior Member, had been briefed by the respondent in matters involving similar issues immediately prior to her appointment to NCAT. Simply have represented the respondent, a large government agency in unrelated proceedings which did not raise similar issue does not raise a reasonable apprehension of bias. It was correct for the Senior to find that BVV had failed to demonstrate how her previous appearances as Counsel for the respondent would or could impact her decision making in relation to the specific issues in these privacy proceedings. Obligation to raise previous association 1. In relation to BVV's submission that the Senor Member has an obligation to raise that she has previously acted as Counsel for the respondent, in Ebner v Official Trustee in Bankruptcy in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ, they stated at [69] – [70]: 69 As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. It is common, and proper, practice for a judge who owns shares in a company which is involved in a case in which the judge is sitting to inform the parties of that fact and to give them an opportunity to raise an objection should they wish to be heard. In most cases, the outcome is that no objection is raised and, by reason of waiver, any potential problem disappears. One reason for the practice is that it gives the parties an opportunity to bring to the attention of the judge some aspect of the case, or of its possible consequences, not known to, or fully appreciated by, the judge. It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any "duty" to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias [footnote omitted]. A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness. 1. Consistent with the principles set out in Ebner v Official Trustee in Bankruptcy there was no obligation or duty for the Senior Member to have to raise the issue with the parties. The respondent is a large public agency and the fact that Counsel may have represented them previously in proceedings, is not unusual. The very fact that the Senior Member has represented the agency does not give rise to an association that would potentially lead to disqualification. There was no serious possibility of interests or associations that would potentially have needed the Senior Member to disclose her association or disqualify herself from the proceedings. Second request for disqualification 1. On 13 July 2021, BVV made a second request for the Senior Member to disqualify herself and on 15 July 2021, BVV sought an oral hearing of that request. BVV submits that the Senior Member did not deal with the second request for disqualification. BVV also submits that he was denied the opportunity to be heard in relation to that second request for disqualification and that the Senior Member failed to take into consideration his submissions in relation to the second application. 2. At [3] of the reasons for the disqualification decision, the Tribunal stated: On 14 July 2021 the Tribunal received a further request from the Applicant for me to disqualify myself, on the basis that written reasons had not been provided for the request made on 23 April 2021 within 28 days. This is despite the parties being informed on 23 April 2021 that reasons would be provided with the substantive decision, and the decision being reserved. 1. It is clear from those reasons that the Senior Member was on notice of the request and the basis of the request and did deal with the request and there was no reasons to have a further oral hearing. The Tribunal went on to give reasons for the refusal of the Senior Member to disqualify herself. The substance of the second disqualification request, was that no reasons had been provided for the first disqualification request. However, the Senior Member did proceed to give reasons for the disqualification request. BVV has not demonstrated that the second request for disqualification was being made on any other basis than what was in the first request. On that basis no question of law arises out of the Tribunal's findings in relation to the appellants assertion about apprehended bias or the way in which it dealt with the second request. 2. Having considered this ground, the Senior Member was correct in finding that there was no reasonable apprehension of bias in her determining the application and no question of law arises. Ground 2: Tribunal constructively failed to exercise jurisdiction 1. A question of law can arise where there is a constructive failure to exercise jurisdiction by not making a finding on a material question of fact: C G Constructions Pty Limited v Hanson Constructions Materials Pty Limited [2017] NSWCATAP 130 at [33]-[35]. Second disqualification application 1. BVV alleges that the Tribunal failed to exercise jurisdiction because the Tribunal failed to deal with the second request for disqualification dated 13 July 2021. BVV repeats the submissions he made regarding this issue in his first ground of appeal. BVV further submits that the Tribunal failed to constructively exercise jurisdiction because the Tribunal failed to hear and determine BVV's second request for disqualification dated 13 July 2021. For the reasons we have provided at [34] – [35] above, we are of the view that the Tribunal did refer to and deal with the second application for disqualification in the disqualification decision. The second application was made on the basis that the Tribunal had failed to provided reasons for decision for the first decision. However, reasons were subsequently provided and there was no reason to deal with the second application any further. In any case, given that the issues raised by BVV could not give rise to a reasonable apprehension of bias, any constructive failure to deal with the second disqualification request could not have had any material effect on the proceedings or the disqualification and substantive decision. BVV has not provided any basis that the second disqualification application could or should have had any material effect on the proceedings and so no question of law arises. Failure to deal with summons referral 1. BVV also submits that the Tribunal failed to hear and determine his request for referral of his objection to production of material produced under the respondent's summons. 2. On 18 February 2021, the Registrar issued a summons to produce documents on application of the respondent. On 1 March 2021, BVV sent an email to the Registrar seeking 'first access' to any material produced under the summons, pursuant to paragraph 37 of the NCAT Procedural Direction 2. BVV also gave the Registrar his contact telephone number. The Registrar did not contact the appellant for the return of summons. 3. On 2 March 2021, BVV sent an email to the Registrar complaining that the failure to contact him by telephone for first attendance at the return of summons was a denial of procedural fairness. BVV requested that the matter be referred to a Tribunal Member for a decision as soon as possible and submitted that the respondent should not be given access to any material produced under the summons. 4. On 23 March 2021, BVV also sent an email to the respondent noting that he made a complaint to the Registrar that he had been denied procedural fairness in relation to the return of the summons and requested that the matter be referred to a Tribunal Member for decision. 5. On 29 March 2021, BVV sent a further email to the Registrar noting his email of 2 March 2021, and stating that he had been denied procedural fairness in relation to the return of summons and again requested that the matter be referred to a Member for a decision. 6. On 1 April 2021, BVV raised the issue before the Senior Member at the hearingh. BVV requested reasons in relation to any decision about the summons. The Tribunal stated that reasons for decision would be included in the substantive decision. No formal orders were made about the summons. 7. BVV submits that the Tribunal constructively failed to exercise jurisdiction because the Tribunal failed to hear and determine BVV's request for referral of his objection to production of material produced under the respondent's summons. 8. The reasons for the substantive decision discuss the summons for the purpose of addressing the refusal of the appellant's request for an adjournment of the hearing on 1 April 2021. The Tribunal relevantly states at [20] – [23]: 20. The hearing was conducted via telephone over two days, on 1 April 2021 and 23 April 2021. At the commencement of the hearing on 1 April 2021 the Applicant complained that he had been denied procedural fairness in relation to a number of issues that arose during the case management process of this matter, and requested an adjournment of the hearing. He claimed that he had not been provided with access to material produced under summons on 2 March 2021, and that he had not been called by the Tribunal's Registrar when the summons was being considered. He claimed that he needed to review the summonsed records and obtain legal advice to be able to respond to the Respondent's evidence and submissions at hearing. … 22. Although not clearly articulated, the Applicant's concerns regarding the summonsed material and the basis for his desire to obtain an adjournment at the commencement of the hearing on 1 April 2021 were expressed by him as an allegation that the documents the Respondent was relying on which had been obtained via the summons had been altered from the originals which he retained in personal storage, but which he had not obtained or reviewed prior to the hearing. He therefore wished to obtain his records in personal storage and compare them to the material produced under summons issued to iCare, to confirm whether or not the documents the Respondent was relying on had been altered. He also wished to obtain legal advice, although he did not provide any adequate explanation as to why such advice had not been obtained earlier in the proceedings prior to the substantive hearing date, in circumstances where there had been a long procedural history. 23 I declined to adjourn the hearing at the commencement of the proceedings for the following reasons, bearing in mind the Tribunal's guiding principles in relation to practice and procedure pursuant to s 36 of the Civil and Administrative Tribunal Act 2013 ('CAT Act'). First, the summons issued to iCare by the Respondent sought the very records upon which the Applicant had made his PPIP Act complaint, so the Applicant had those records since 18 November 2019 at the latest. Second, the Applicant could have accessed the summonsed records through the Tribunal Registry from 2 March 2021 and could continue to do so. Third, the Applicant had ample opportunity to obtain legal advice on issues which had not materially changed since the commencement of proceedings by him in February 2020. Fourth, the allegation that the documents produced under summons to a third party had been altered from the original was improbable in all the circumstances. Fifth, if the Applicant retained documents in physical storage which were relevant to his claim in these proceedings, he had provided no reasonable explanation why these had not been accessed and obtained in the period between February 2020 when he commenced the proceedings, and the hearing date, or why he had not obtained the documents via other means, such as through the solicitors who represented him in 2011. 1. The Registrar's power to make access orders with respect to documents produced in compliance with a summons is exercised "on behalf of the Tribunal" pursuant to r 41(1) of the NCAT Rules. The Registrar made general access orders on 1 March 2021 and the respondent had uplifted the documents on the same day. The access had already occurred by the time BVV was seeking referral of the matter to a Tribunal Member. BVV has failed to demonstrate the basis for referral of the matter to a Tribunal Member or what powers the Tribunal Member may have in those circumstances or any disadvantage that arose because of the general access orders. 2. In any case, the Tribunal acknowledged BVV's concerns that he had not been called by the Tribunal's Registrar when the summons was being considered and rejected his application to adjourn the hearing on that basis. There were no other orders for the Tribunal to consider making. The Tribunal dealt with the only issue that was open to deal with and that was the application to adjourn the matter. On that basis this ground must also fail. Ground 3 – Denial of Procedural Fairness 1. BVV submits that the Tribunal denied him natural justice. A failure to afford procedural fairness may give rise to a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. Section 38 of the NCAT Act prescribes the procedure of the Tribunal generally. Section 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness. 2. BVV sets out a series of matter which he submits have the "cumulative effect" of denying him procedural fairness. We have dealt with these separately below. The summons and refusal to adjourn 1. BVV submits that the Tribunal commenced the hearing on 1 April 2021 without BVV having been given access to the material produced under the respondent's summons. BVV also asserts that on 1 April 2021, the Tribunal refused BVV's adjournment application and commenced hearing the matter even though BVV had not been given access to the material produced under summons. BVV states that Counsel for the respondent described the documents produced under the summons as "important documents'' and so the hearing of the matter should not have proceeded until BVV was given access to the material and afforded an opportunity to get legal advice. 2. As noted above, BVV was given access to the documents under summons, however his complaint was that he was not given first access. BVV was aware that he had been granted access to the documents but took no steps to access them because he was objecting to not having been given first access. In any event, BVV had seen or had the opportunity to see the documents produced under summons in the documents provided to the Tribunal. The summonsed documents were exhibits annexed to the affidavit affirmed by Mr Greg Waddington on 5 March 2021. Further, the respondent had requested BVV provide him with a copy of the email attachment on several occasions prior to applying for a summons to be issued for its production. BVV stated under cross-examination that he had "flicked through" and "scanned" the documents. BVV was aware of the documents and in that regard, there can be no disadvantage to BVV in the hearing proceedings. BVV has failed to demonstrate a breach of procedural fairness. Interrupting the Evidence 1. BVV complains that the Tribunal Member interrupted his evidence. BVV points to parts in the transcript where those interruptions occur. Having considered those parts of the transcript, in our view, those interruptions do not amount to a denial of procedural fairness. When the interruptions did occur, they usually occurred for the Tribunal to clarify or understand the evidence or submissions that was being put to the Tribunal. On other occasion the Tribunal interrupted to ask BVV to listen to Counsel's question's and answer the questions being put to him. Having read the transcript, we are not satisfied that the Tribunal interrupted BVV in an inappropriate manner. The objections 1. Section 38 of the NCAT Act relevantly provides: (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 1. BVV submits that the Tribunal disregarded his objections to questions regarding privilege. Having read the relevant parts of the transcript, the Tribunal did not disregard BVV's objections. Rather, the transcript reveals that the Tribunal considered BVV's objections and overruled them on the basis that BVV had impliedly waived privilege by referring to the emails that his legal representative had provided to him in his statement dated 14 December 2020. There was no breach of natural justice in the way that the Tribunal dealt with BVV's objections. 2. BVV also submits that the Tribunal Member pressed him to give answers to questions that supported the respondent's case (including disclosure of privilege communications). The Tribunal member did direct BVV to answer questions he objected to answering based on privilege, however that was after overruling the objection. That was not inappropriate. The answering of questions is consistent with the obligation under s 38(6)(a) of the NCAT Act to ensure that "all relevant material is disclosed to the Tribunal" and the BVV has failed to demonstrate how the matter amounts to a denial of procedural fairness. Re-examination 1. BVV submits that the Tribunal refused BVV an opportunity to conduct re-examination of himself or inform BVV that the respondent would have an opportunity to conduct re-examination of the respondent's witnesses. 2. The Tribunal asked BVV to identify what it was that he wished to clarify. He did not provide that clarification and stated that he would need to examine the recording to determine what might need clarification. The transcript reveals the following exchange between the Senior Member and BVV: SENIOR MEMBER: What - what do you wish to - what do you wish- what do you wish to state in re-examination, Mr …? APPLICANT: Well, there was - there's a long list of things I - but, there was - where do I start? All these allegations of putting things to me, and - I can't rattle them off right now, I need to have a - have a good think about it, but there was plenty - plenty of things that were put to me suggesting that, you know, my statement, and all this sort of thing, was inconsistent and — … SENIOR MEMBER: Sorry, Mr …, the purpose of re-examination is for you to clarify any evidence that you may have given during cross- examination. It's - it's unusual for a - someone who's been - an - it's unusual for someone who is - who is not represented to seek to be re-examined when the - when they've given their own evidence. Is there something in particular that you wish to clarify, or is it something that you could address in submissions? APPLICANT: I - I need to - I need to sit down and - and put all the issues - write out all the issues, but because of all those - and, I - there was obviously the concern by you. Senior Member, with my answers, and I suppose I was trying to clarify - I was - I was trying to do what I seek to do, and that is clarify my answers as I was going along. And - and, since I couldn't do that I'd like the opportunity to do that - - - SENIOR MEMBER: But - -- APPLICANT: — to clarify where I was asked yes or no questions, and did you or did you not do something I'd like to clarify those points as well. SENIOR MEMBER: Well, if you can identify something that you wish to clarify, Mr …, I can consider it, but if you're just saying generally that you wish to provide some additional evidence that's - that's not in the nature of - of reply to - to the - it's not in the nature of re-examination. Can - can you identify what it is that you wish to clarify? APPLICANT: I - I can't do it right now. I'm sorry. It's - there's been so much I need to sit down and - but, as I was going along there was - I need to, perhaps, get the recording and - and go through that myself, 15 and each time I tried to clarify and I was told to - not to do so I need to, obviously, consider those points and - and - and effectively re-examine myself. Surely, if a solicitor - because I don't have a solicitor I don't have that opportunity. I mean, I find that hard to accept that had I had a solicitor I would have the opportunity to do that, and because I'm unrepresented I don't. I mean — SENIOR MEMBER: Well, I - I don't think that's quite the case. You haven't examined yourself either. You've provided a statement, and you were cross-examined on the statement. But - but, anything that you wish to clarify I would think could be dealt with in - in submissions. So, you'll have an opportunity - you'll have an opportunity to - to - to provide submissions about what you've said, and - and to clarify in that respect. If there's additional evidence that you're wanting to provide that hasn't been addressed, then that - that's something separate. 1. Having considered the transcript it cannot be said that the Tribunal did not give BVV a reasonable opportunity to re-examine himself or that the way that the Tribunal dealt with re-examination amounted to a denial of procedural fairness. 2. BVV's complaint that the Senior Member informed the appellant that the respondent would have the opportunity to conduct re-examination of its own witnesses, also does not amount to a procedural fairness. It is the ordinary course that a witness can be subject to re-examination, and it was always open to BVV to raise any objection. Unreasonable Delay 1. This issue relates to the delay in providing reasons for refusing the appellant's first request for disqualification dated 23 April 2021. This has been dealt with in ground 1 above and BVV was informed on the day the first disqualification request was made that it had been rejected. BVV has failed to demonstrate how a delay, even assuming there was one, resulted in a procedural unfairness. Conclusion on Procedural Fairness 1. Having regard to the above, there is no basis to suggest that the purported conduct of the Tribunal, either individually or cumulatively, amounted to a denial of procedural fairness. Ground 4 – Misapplication of section 18(1)(a) of the PPIP Act. 1. A misapplication of the law would raise a question of law: see Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing). 2. BVV was an employed by the NSW Police Force from 21 December 2001 until 10 March 2011. He was medically discharged and in or around mid-2011 the parties engaged in settlement discussions regarding a number of ongoing proceedings, complaints and requests that had been brought or made by the BVV against the respondent, including a workers compensation claim. 3. Mediation took place on 27 September 2011 and on 22 November 2011. The mediation resulted in a settlement being reached in respect of all matters, including BVV's workers compensation claims. A Deed of Release was entered into by the parties on 22 November 2011 (the deed). 4. On 18 November 2019, the applicant received an email from Insurance and Care NSW ('iCare') which attached two pdf files. The first pdf was a copy of the deed. The second pdf was described as "other related settlement documents". 5. BVV made a complaint pursuant to the PPIP Act that the Respondent contravened sections 12(c) and 18(1) of the PPIP Act in connection with the disclosure by the respondent of the Deed to Employers Mutual Limited (EML), who were the claims managers on behalf of iCare. 6. On 14 January 2020 the Respondent declined BVV's request for internal review. BVV then made an application to the Tribunal pursuant to s 55 of the PPIP Act. It was not in dispute that that the respondent disclosed the Deed. However, the respondent denied that the disclosure constituted a contravention of either of sections 12(c) or 18(1) of the PPIP Act. 7. The Tribunal found the information disclosed to EML fell within the exceptions found in s 18(1)(a) of the PPIP Act. BVV submits that the Tribunal misapplied s 18(1)(a) of the PPIP Act. 8. Section 18 (1)(a) of the PIPP Act provides: (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless— (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or 1. The Tribunal found at [43] of the reasons for decision that the disclosure was directly related to the purpose for which the information was collected and stated: 43. The evidence of EML's management of the Respondent's workers compensation claims made by the Applicant is undisputed, irrespective of the Applicant's knowledge. On the basis of the Respondent's evidence of the management of the Applicant's claims and complaints, I find that the Applicant's personal information contained in the Deed, both "workers compensation related information" and "non-workers compensation related" was collected by the Respondent for the purpose of managing those claims and complaints. This information was reproduced in the Deed to express the detailed terms and conditions upon which the holistic settlement of the Applicant's claims and complaints against the Respondent was to be achieved. Disclosure of the Deed to EML in order to facilitate the payment of settlement sums pursuant to the Deed is directly related to the collection by the Respondent of the information contained in the Deed. 1. The Tribunal also found that in the circumstances that the respondent had no reason to believe that the BVV would object to the disclosure. At [53] the Tribunal stated: 53. The Respondent's evidence, which I accept, demonstrates that HDY spoke at length with the Applicant's solicitor, Mr Mitchell, in relation to the scope of the settlement, the attendees at the mediation on 22 November 2011, and the obligations set out in the Deed, and that he was specifically aware of EML's role in the settlement negotiations, finalisation of the Deed and its related documents, and payment of the settlement monies to the Applicant. As far as the Respondent was aware, the Applicant was kept apprised of the steps the Respondent had taken to involve EML in the proposed future settlement discussions with the Applicant, by Mr Mitchell. The Applicant did not provide any evidence or submissions which would dispute his solicitor's role as his representative in the settlement negotiations or their culmination in the Deed and payment of settlement monies. In those circumstances and considering the references to EML contained in the Deed as outlined above at [48] I find it difficult to understand how the Respondent could possibly have had reason to believe that the Applicant would object to the disclosure of the Deed to EML. 1. The workers compensation claims were part of the settlement negotiations and EML, who were the claims manager, would have had to be involved on behalf of the NSW Police Force's workers compensation insurer. The deed, which is before us, imposes obligations on BVV to execute letters to EML and the NSW Police Force. 2. BVV submits that s18(1) applies to "personal information", not a particular document. BVV submits that a particular document contains different pieces of personal information and section 18(1)(a) must be applied to each piece of information individually. He submits that it is necessary to determine the purpose for which each piece of information was collected, and in turn, whether the disclosure of that information is directly related to that purpose. BVV submits that the Tribunal failed to apply section 18(1)(a) to each of the personal information individually to determine the purpose for which each of them was collected. 3. We are not of the view that it was necessary to separate the various aspects of the deed to determine the purpose for which the information was collected. The information was collected for the purposes of the settlement. Having regard to the circumstances leading to the deed and EML's involvement and that the workers compensation claim was part of that settlement, it was necessary for EML to be involved in the settlement of the deed. We agree with the respondent's submissions that it would have been artificial for the Tribunal to attempt to undertake an analysis to different pieces of information in the document. In our view the Tribunal did not misapply s 18(1)(a) of the PPIP Act. 4. BVV's submissions also raise issues in the way in which the Tribunal evaluated the evidence that led to the finding that there was no reason to believe that the BVV would object to the disclosure. That is a matter which would require leave. BVV did not seek leave to appeal. BVV's disagreement with the factual findings made by the Tribunal is not a proper basis to say that the Tribunal misapplied s 18(1)(a) of the PPIP Act. 5. This ground must also fail. Ground 5: Inadequacy of Reasons 1. BVV submits that the Tribunal did not provide adequate reasons for rejecting his submission that the confidentiality clause in cl 15 of the deed provided the respondent with a reason to believe that BVV would object to the disclosure of the deed to EML. 2. A failure to give proper reasons may give rise to a question of law: Stoker v Adecco Gemuale Constructions Pty Ltd [2004] NSWCA 449 per Santow JA at [41]. 3. The Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 considered what constituted adequate reasoning on the part of a Tribunal and referred to relevant at [76] to [77] (per Bell P, with Ward JA agreeing) (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291. 1. It is with the principles in mind that we consider whether the Tribunal erred in relation to the reasons for rejecting the confidentiality clause. 2. At [47] of the reasons for the substantive decision the Tribunal stated: The Applicant submitted that he was unaware that the Respondent would disclose the Deed to EML, on the basis of the reasons above at 44 and the fact that he was unaware that DLA Piper was in attendance at the mediation on behalf of EML, not on behalf of the Respondent. The Applicant placed some reliance on the contents of the Deed itself to support his submission that the Respondent would have reason to believe he would object to the Deed's disclosure. EML is not named as a party to the Deed and the confidentiality provision at Clause 15 of the Deed does not make allowance for disclosure to the parties' insurers specifically, rather referring to "their legal and financial advisers on receiving an undertaking from that person to keep the terms of the document confidential, for the purpose of enforcement of the document or as may be required by law". The Applicant submitted that "the parties contemplated a very limited form of communication with EML in the form of the letter in Schedule 8 to the Deed" and relied on Schedule 4 to the Deed, which contained a letter to the applicant to the effect that "NSWPF has taken all practical steps to ensure the applicant's files are never again improperly disclosed to, or accessed by, third parties". 1. The Tribunal did provide reasons in relation to the confidentiality clause and whether the respondent would have reasons to believe BVV would object to disclosure. Those reasons were adequate. EML was not a named party to the deed and was not the respondent's legal or financial adviser. BVV did not demonstrate that EML had provided an undertaking consistent with cl 15. 2. BVV also submits that the Tribunal did not provide adequate reasons that the respondent had an adequate reason to believe that BVV would object to the disclosure of the deed. 3. After setting out the parties respective position, as identified at [53] (set out in paragraph 71 above) the Tribunal accepted the respondent's evidence as to why it supported a finding that the NSW Police Force had no reason to believe that BVV would object to the Deed being disclosed to EML. In our view the reasons were adequate. Conclusion on the Appeal 1. Having considered the grounds of appeal we are not satisfied that the appeal raises any questions of law and on that basis the appeal must be dismissed. 2. We have made the orders accordingly. ********** 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 12 January 2023 - Members name correction 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: 12 January 2023